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HARVARD LAW SCHOOL
UBRARY
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WfctioMl Reporter System— State Series
THE
SOUTHEASTERN REPORTER
WITH KEY-NUMBER ANNOTATIONS
VOLUME 78
PERMANENT EDITION
CONTAINING ALL THE DECISIONS OF THE
SUPREME COURTS OF APPEALS OF VIRGINIA AND WEST VIRGINIA
THE SUPREME COURTS OF NORTH CAROLINA AND SOUTH
CAROLINA, AND THE SUPREME COURT AND
COURT OF APPEALS OF GEORGIA
VrrR TABLB OF SOUTHEASTERN CASES IN WHICH RBHBARINGS
HAVB BEEN DENIED
MAY 34 — SEPTEMBER 6, 1913 \ 35
ST. PAUL
WEST PUBLISHING CO.
1913 Digitized by GoOglc
COFTBIQHT, 1013
BT
WEST PUBLISHING COMPAlinr
(78S.B.1
Digitized by Google
SOUTHEASTERN REPORTER, VOLUME 71
JUDGES
OPTHB
COURTS REPORTED DURING THE PERIOD
COVERED BY THIS VOLUME
GEORGIA— Supreme Court
WILLIAM H. FISH. Oehv Tmaom.
BEVEBLY D. EVANS, PusiDina JunttM,
ASSOOXATI JVBnCKB.
J. H. LUMPKIN. SAMUEL G ATKINSON.
KABCUS W. BECK. H. W. HILL.
Court of Appeals.
BENJAMIN H. HILU CBizr JuDOB.
BIOHABD B. BUSSELL. J. B. POTTLE:
NORTH CAROLINA— Supreme Court
WALTEB CLARK. Cbocf Jxtstjoi.
ABSOCIATB JUBTICKS.
PLATT D. WALKBB. WILLIAM A. HOKIL
OEOBGE H. BROWN. WM. B. ALLEN.
SOUTH CAROUNA— Supreme Court
EUGENE B. GABY, Ghiki Justzck
ABSocun JTjancis.
C A. WO0DS.I B. O. WATTS.
DANIEL B. HYDBIOK. T. B. FBASEB.
VIRGINIA— Suprone Court of Appeals.
JAMES KEITH, Pbmidbnt.
jrtTDacs.
BIOHABD H. OABDWBLL. GEOBOB M. HABBISON.
JOHN A. BUCHANAN. STAFFOBD G. WHITTLE.
WEST VIRGINIA— Supreme Court of Appeals.
GEOBQB POEFENBABOBB, Pxsbidknt.
JUDOU.
WILLIAM N. MILLEB. L. JUDBON WILLIAM&
IBA Bl BOBINSON. CHABLES W. LYNCH.
597744
'BMigntd Jan« Y. WX
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CASES REPORTED
Pass
A. Blanton Grocery Co. t. Taylor (N. C) 276
Adair, Haidin t. (Oa.) 1073
Adanu T. State (Oa. App.) 473
^tna Life Ins. Co., Trench t. (S. 00-..> 632
^tna Life Ins. Co., Sanders t. (S. O.)... 632
AlbrittoQ T. OiddiDgs (Ga.) 723
Alderman & Sons Co. McKnight (S. Oj 982
Aldridse, Clarke t. (N. O.) 21S
Alexander, Lansfords (N. C.) 275
Alexander, Misenbeimet T. (N. C.) 16X
Alexander, Smith & Co. T. Fint Mat Bank
(Ga.) 1071
Alexander t- State (Ga.) 116
Alexander Lambar OoL Uontgomery t.
(Ga.) .TTT..... .7... ...... 413
Allen. Central of Georgia R. Co. T. (GaJ. .101^
Almand t. Hathcock (Ga.) 846
Alpine Safe & Lock Co. t. W. EL Parsons
St Bro. (Ga. App.) 1023
Amburseu Hydraulic Const Co. t. North-
em CoDtractins Co. (Ga.) 840
American Bonding Co., Dixie Fire Ina. Co.
T. (N. a)....7: 430
American Lumber Co. t. Qalett (N. C). . . 2S4
American Nat. Bank. Taylor t. (Ga. App^ 196
American Nat Ut» I118.C0.. White T.CTa.) 682
Ametiaui Troat Co t. Nlcholaon (N. a)... 162
Amoe T. SUte (Ga. App.) 866
Anderson t. Anderson (Ga. App.) 271
Anderson, Anoistead t. (Ga.) 457
Anderson t. Hamphrles (Ga.) 1079
Anderson, Idnam v., two cases (Ga. App.) 424
Andenon t. Meadows (N. C.) 279
Anderson, Stewart t. (Ga.) 467
AnderMO. WUUnson t. (Ga.) 467
Anderson Connty, Latimer v. (S. 0 879
Andnwa, Seaboard Air line By. t. (Ga.). . 926
Ardan, Uiddle Atlantic Immlgntion Co. r.
(Va.) 688
Anniatead t. Anderson (Ga.) 467
Arnold, Cnmmfnss t. (Ga. Appj.........ll02
Aabwj T. Aibemade (N. O) 146
Ash T. Lynch (W. Va.) 365
Ashbom Anto Co. t. Black (Ga. App.) .... 470
Athens Mnt Ina. Co., Beaaley t. (Oa.).... 722
Atkinaim t. Cook (Ga. App.) 827
AtUnson t. Kreis (Qa.) 466
Atkinson t. Olmstead (Ga.) 720
Atkinson, Phillips t. (Ga.) 116
Atkinson t. Soathem Exp. Co. (S. C.).... 616
Atkinson t. Soathem Exp. Co. (S. a).... 620
Atkinson t. Taylor (Ga. App.) 830
Atkinson, Wilson Lumber ft MllUng Co. t.
m. c5 '
AtUnta Telephone ft Telegraph Co. t.
CSiesliira (Qa. App.)
Atlantic Coast Zdiie '
a)
Atlantle Coast Une B. Ca, Seels t.
a)
AOantic Coast line B. Co., Uima t.
C.)
Atlantic Coast Line B. Co., Steele T.
a)
Atlantic Coaat line R. Co. v, TbomasriUe
Live Stock Co. (Ga. App.) 1019
Atlantic Beel^ Corp., Blschoff t. (3. C.) . . 988
Angnsta By. ft Electric Co. t. Beaglea (Qa.
App.) 949
AngtiBta Real Estate Co. t. Nixon (Gaj. .1006
Augusta-Aiken By. ft Electric Corp., Col-
lins T. (Ga. App.) 944
Aoltman Nationai Bank of Tiftim (Ga.) 833
Anstitt T. Berlin Supply Co. (Ga. App.).. 723
Qranlte ~
B. Oo^ Beylot r. (S.
(a
(S.,
Z\2
63
8n
168
.1081
70S
Aostln, Georgia Granl
Ayers t. Bailey (N. a)
78 &&
Oou T. (Ga.).
1008
66
Bachman, Reed T. (W. 695
Bailey, Ayers v. (N. 0.) 68
Bailey Freeman (Ga.) 423
Baird, Morris v. (W. Vaj 871
Baker t. Workman (W. Va.) 670
BaU T. Madden (Ga.) • 26
Ballew, Clark t. (Ga.) 4131
BaU-Thrash ft Co. v. McConnick (N. C). . ^
Baltimore ft O. B. Co., Roberts t. (W. VaJ 367
Baltimore ft O. R. Co., Thompson r. (W.
Va.) 624
Bank of Adalrsrille, Parks t. (Ga. App.) . . 868
Bank of Fairmonnt, Furr t. (Ga.) 181
Bank of Tifton, Taylor t. (Ga.) 335
Bank of Union, Clark t. (W. VaJ 785
Banks t. State (Ga. App.) .1014'
Bartter ft Son t. SIngletary (Ga.App.),.1100
Barfield t. Tremere (Ga. App.) 729
Barge,- Prater t. (Ga.) 119
Barlow, McLester t. (3. C.) 62a
Barnes, Bent t. (W. Va.) 874'
Barnes, Meana T. (W. Va.) 665
Barrett, Lambert t. (Ta.) 686
Barrett t. Mayor, stb, of Savannali (Qa.
App.) „. 827
Barrow r. Barrow (Ga.) 123
Bartlett Boggess t. nV. Va.). , 241
~ ~ R. Co. T. (Ga.) 116
885
(Til)
Bartlett Central of Georgia it Co. T. (Ga.)
BatsoQ T. Greenville ft E. R. Co. (S. C.)
Beagles, Augusta Ry. ft Electric Go. t.
(Qa. App.) 949
Beard, Jackson t. (N. C.) S
Beasley t. Athens Mut Ins. Co. (Oa.) 722
Beasley t. Phoenix Ins. Co. (Ga.) 722
Beauehamp, Callaway t. {Q».) 846
Beck T. Northwestern B. Co. of Sonth Car-
olina (S. C.) 994
Bell T. Jackson (S. C.) 679
BeU ft Co., Trippe t. (Ga.) 12«
Benedum r. First Otisens' Bank (W. Va.).. 656
Benford T. ShlTer (Qtu AppA 860
BennettariUe ft C R. Co., DlmeiT t. (S.
C.) .* 87T
Bent T. Barnes (W. Va.) 374
Berlin Suraly Co., Aoatla t. (Ga. App.) . . 723
Bernard, Theatrical Club t. (Ga.T 410
Bernhardt, Hagaman t. (N. C.) 20fi[
Bernhardt YatStin Lumber Go. t. (N. C). . 485
Berry, Fore t. (S. C.) 706
Besheres t. State (Ga. App.) 483
Bethea, Gibson t. (S. C.) 102S
Bethea T. Western Union Td. Co. (& a) 742
Bethune, State t. (S. C.) 1000
Benchler t. Georgia Ry. ft Power Co.
(Ga.) m
Beylot T. Atlantic Coast Line B. Co.
<8. C.) 871
Big Cold Water Creek Dmlnaca Dlst, In re
(N. o) rrr....... 14
Bighara t. Hawkins (Qa.) 809
Big Sandy Coal ft Coke Co.. Sprinkle t.
(W. Va.) ! 971
BiDioQ V. Central of Georgia B. Co, (Qa.
App.) 182
Birdsong, Wardell t. (Va.) 564
Bischotr T. Atlantic Realty Corp. (S. CI). . 988
Bishop r. Georgia Nat. Bank (Ga. App.). . 947
Black, Ex parte (N. C.) 273
BladE, Aakbnra Auto Co. t. (Ga. AppO.. 470
BlaS^ State t. (N. C.) 210
BlackweU, State t. N. C.) 816
Blanton Grocery Co. t. Taylor (N. a).... 276
Bloomer, Sehon t. (W. Va.) lOS
Blount T. Charleston ft W. 0. R. Oo. (S.
l£«nrTr8Uto\GaOlli.>>IIIIl^IIIII* ^
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Tiii
78 80T7THBASTBBN BHPOBTOB
Pt«a
Blnme Oo^ & Ooka Oo^ OBWdUi T. (W.
Ta.) 7W
Blimt T. Mercantile By., Bnlldliig ft Loan
Aiw'n (VaJ 654
Board of Cfom'rs of Bandolph Oonnty*
Gregg r. ra. G.) 801
Bodiford t. State (Ga. App.) 201
Boggess T. Bartlett fW. Va.). 241
BoggB T. Onllowbee Mia. Co. (N. O) 274
Booker t. Jarwtt (W. Va.).... ......... 754
Borland, Central of Geoqiia B. Go. t. ^a. ^ ^
App.) 852
Bosworth, Crawford v. (W. Va.) 623
Boucbelle. Vii%iiiia-GaroUna Chemical Co.
T. (Ga. App.) 61
Bowen, Cooper t. (Ga.) 413
BowUrig T. Walla iW. Va.) 781
Bowyer t. Continental Casualty Co. (W.
Va,^ 1000
Boyce t. Cook (Ga.) 1057
Boyd T. Southern R. Co. (Va.) 648
Boyer, Smith v. (W. Va.) 787
Bragg T. TinkUnk Land ft Improvement
C6. (Va.)....T7. 541
Branan-Aken Co« Fort-Mima ft SayVM
Co. v. (Ga.) 721
Branch, Chapman t. (W. Va.) 235
Branch, Kennemer v. '(Ga.) 838
Brand Shoe Co. t. Women's Wear Shop
(S. C.) 446
BraBwell, Fortune v. (Ga. App.) 201
BriggB, Colclough V. (S. C.) 53(f
Brinson, Lane r. (Ga. App.) 726
Broadhnrst t. Hill (Ga.) 838
Brooks, Johnson t. (Ga.) 37
Brooks T. SUte (Ga. App.) 143
Brooks V. Winkles (Ga.) 129
Broughton v. Jos. Lazarus Co. (Oa. App.). .1024
Brown v. Brown (S. C.) 447
Brown r. Brown (W. Va.) ,.1040
Brown, Mabry v. (N. C.) 78
Brown T. Plnson (Ga.) 17B
Brown v. State (Ga. App.) 352
Brown State (Ga. App.) 868
Brown ft Parler t. Eolb (S. G.) 894
Browning v. Hoover (S. C.) 621
Bryan, City Bank of Wheeling v. (W. Va.) 400
B. T. Rnshing ft Co. v. Seaboard Air
Um By. (S. C.) 711
Bollard ft Woodson PUntera* Ware-
house ft Grocery Co. (Qa.) 848
Bultman, Osteen v. (S. C.) 445
Bums T. Stewart (N. C.) 321
Burrow t. Southern B. Co. (Ga.) 126
Burton, City of Richmond v. (Va.) 660
Butcher, McVey v. (W. Va.) 691
Butler, Chicago Bldg. ft Mfg. Go. t. (Oa.).. 244
Butler, Cleveland ft Williams (S. C.)... 81
Butler T. First Nat Bank (Ga. App.) 772
Butler, Sterena ft Co., EeUy t. (Ga. App.) 471
Butler V. Stewart (Ga.) 816
Butterick Pub. Co., Paxson Bros. t. (Qa.) 763
Byers Lumber Co,, Harby t. (S. C.) 622
Byrne v. Wheeling Can Co. (W. Va.) 758
OaDaway t. Beancbamp (Ga.) 846
Callaway, Beeves t. (Ga.) 717
Galrert Mortgage ft Denodt Co., Moore t.
(Ga. App.) 1097
Camden t. Virginia Sale Deposit ft Tmst
Corp. (Va.) 696
Campbell t. Myers (W. Va.) , 671
Campbell, Winding Golf OolHery Co. t.
(W. Va.) 384
Campbell Goal Co. t. White (Ga.) 1009
Cante/ y. McCkry-BroadwaT Co. (S. C.).. 614
Carmichael ▼. Southern Bell Telephone ft
Telegraph Co. (N. C.) 607
Games & Co., Seaboard Air Line Ry.
(Ga. AppJ 864
Carolina, O. ft O. Ry., Carpenter v. (N. G.) 158
Carpenter t. Carolina, C. ft O. Ry. (N. G.) 168
Carter t. State (Ga. App.) 206
Carter t. Stowers (W. Va.). 974
Catawba College v. Fetser (N. C) 152
Vace
Oavendiali t. Blnm* Coal ft Coke Oc (W. ^
Va.) 794
Cedartown Snpnly Co. t. Hooper (Ga. App.) 686
Cement Stone ft Tile Co. t. McC^a (Ua.) 333
Central of Oeoifia B. Ga t. Allen (Oa.). .1052
Central of Georgia B. Co. v. BarUett (Ga.) 116
Central of Georgia B. Co., Binion t. (Ga. ^
App.) JS2
Clentral of Georgia B. Oo. t. Bodand (Qa.
App.) 862
(Central of Georgtft B. Go. t. Doster {Qe. _
App.) «»
Central of Georgia B. Co. Macon By. ft
Light Co. (Ga.) 981
Central of Georgia R. Co., MUls t. (Oa). . SIS
Central of Georgia K. Co., Tidwell t. (Qa.) 888
Central of Georgia R. Go. y. WoodaU (Ga. _
App.) 781
Chambm T. Roanoke (Va.). 407
Champ T. Nicholas County Court (W. Va.) 861
Champion Fiber Co., Westerman T. (N. 221
Chandler t. Schofield (Ga. App.) 49
Chapman t. Branch (W. Va.)
Chapman, (3hesap»ke ft O. B. Co. t. (Va^ 631
Charleston ft W. C. R Co.. Blount t. (S.
C.) 24
Charleston ft W, O. R. Co. t. Cobb (Ga.) 763
Charleston ft W. O. R. Go. McElmnrray
Bros. (Ga. App.) 258
Charlotte Electric B. Co., Hartis T. (N. O.) 164
Chatham Real Estate ft Improrement Co.,
Williams r. (Ga. App.) 88»
Chesapeake & O. R. Co. t. Chapman (Va.) 681
Chesapeake ft O. B. Co., Melton r. (W. Va.) 869
Cheshire, Atlanta Telephone ft Telegraph
Co. T. (Ga. App.) 68
Chicago Bldg. ft Mfg. Co. t. Butler (Oa.). . 244
Chilton v. White (W. Va.) 1048
C. H. Lowe & Co., Moore t. (Ga. App,). .. 829
Citizens' Bank of Norfolk t. Norfolk ft W.
R. Co. (Va.) 668
Citizens' Nat Life Ins. Co. t. Ragan (Ga.
App.) 683
City Bank of Wheeling t. Bryan (W. Va.) 400
City Council of Union, State v. (S. G.) . . . . 738
City of Atlanta, v. (Qa.) 821
City of Atlanta, Ezell t. (Ga. App.) 850
City of Atlanta, Benfroe v. (Ga^ 44l>
City of Atlanta, Smith r. (Ga. App.) 428
City of Atlanta, £Smieh v. (Qa. App.) 472
City of Brunswick, Wright v. (Ga.) 839
City of Barlington, Moser t. (N. C.) 74
City of CarroUton, Meeks t. (Ga. App.J.. 777
City of Cedartown, Morgan t. (Qa. App;>. . 863
City of Cedartown, Thompson t. (Qa. App.) 864
City of Florence, Stone v. (S. 0.) 23
City of Ft. Valley, Cooper t. (Ga. App.)., 1097
City of QlenDvm& Stanley t. (Ga.) 1064
City of Momwe, Felker v. (Qa.) 847
City of M(mroe, Shuts Sewerage Co. v.
(N. c.).....v:
city of Norfolk, Norfolk ft P. Traction Co.
151
646
T. (VaJ,
City of Portsmouth, PhiUips v. (Va.)..... 651
City of Richmond v. Burton (Va.) 660
City of Roanoke, Chambers r. (Va.) 407
City of Rocky Mount, Hinei t. (N. C.).. 510
City of Rome t. Hania (Ga. AppO 47$
City of Savannah t. Standard Fuel Supply
Oo. (Ga.) 906
City of Sumter v. Eeela (S. C.) 888
City of Waycross, Lowther t. (Ga. AppO 141
City R. CJo., Jaeger v. fW. Va.) 69
C. J. Roehr ft Co^ Hall v. (Qa. App.).... 481
Clark T. Ballew (Qa.)..... 413
Clark T. Bank of Union (W. Va.). 785
Clarke t. Aldridge (N. C) 216
Clements t. State (Ga.) 716
Cleveland & Williams t. Butler (S, C.)... 81
Clinton C!6tton Mills, Tucker v. (S. G.)... 890
Cloud y. Ford (Ga.)". 1008
Glower r. Godwin (Ga.) 714
Coal ft Coke B. Co., Findley v. (W. Va.). . 398
Cobb, Charleston ft W. C. R. Oo. v. (Qa.). ._ 763
OA.SDS BEFOBTED
ix
Fags
Cobai T. Oohen (Ga.) 841
Cohen. Southern Ezp. Go. t. (Oa. Appj. .1111
CohntU Talc Co., Georgia Talc Co. t. (Ga.) 905
CoIdooEh T. Brigss (S. C.) 630
Coleman. HoUiday v. (Ga. AppJ 482
Coleman t. Kea (Ga. App.) 429
Colleton Cypress Cc^ Smyij t. (3. O.) 1026
Collier v. State (Qsl) 71?
Collins T. AncQsta-Aiken Bj, & Electric
Corp. (Ga. App.) 944
Collins. Qraj t. (Ga.) 127
Colombian Nat. Life Ins. Co. t. Miller
(Ga.) 1079
Oolumbas B. Co. t. Waller (Ga. App.) 52
Comer & Col, Blllis t. (Ga. App.) 1107
Commonwealth, Loone; T. (VaJ 626
Commonwealth. Patrick t. (Va.) 628
CommonwealthlVin^nla Beach Derelop-
ment Co. v. (Va.) 61?
Continental Casualty Co., Bowyer t. (W.
Va.) .....r.....: ...1000
Continental Fertilizer Co. r. J. F. Madden
& Sons (Ga.) 460
Conway. C. & W. B. Co., Horn t. (S. C). . 951
Gooh. Atkinson t. (Ga. ^p.) 827
Cook. Boyce v. (Ga.) 1057
Cooper T. Bowen (Ga.) 413
Cooper T. FL VaJley (Ga.App.) 1097
Gopeland t. McClelland (Ga. App.) 479
ConlsonT. State (Ga.App.) ^...1108
Craft V. State (Ga. App.) 776
Craig Fnmiture Co.. Hurst v. (S. C.) 960
Granor t. Southern R. Co. (Ga. App.). .. .1014
Crawford v. Bosworth (W. Va.) 623
Crawford t. Wilson (Ga.) 30
Creech. StiU v. (S. C.) 1039
Crim, Hudkins t. (W. Va.) 1043
Crislip, Wiseman (W. Va.) 107
Crisp, Hopkins v. (N. C.) 1040
Crosby, Georgia By. ft Electric Co. t. (Ga.
App.) 612
Crotty T. New Biver & Pocahontas ConsoL
Coal Co. (W, Va.) 233
Crouch T. Crouch (Ga.) 408
Gmmp T. Crump (Ga.) 1066
a T. Comer ft Co., Hillia (Ga. AppJ.. 1107
CuUen T. Tyler (Ga.) V... 332
CnUowhee Mln. Co.. Boggs t. (N. C) 274
CoUowhee Mining ft Beduction Oa, Moody
ft Morgan tTTn. C.) 1039
Onlpeper Nat ^nk t. Wrenn (Va.) 620
Cnmmings y. Arnold (GaA.pp.)....,...1102
Cunningham t. State (Ga. App.) 780
Corrence t. Sorereign Camp Woodmen iMC
the World (S. C.) 442
Gnrxy t. Jackson Mat Bank (Ga.) 116
Daniels t. State (Ga. App.) 777
Danaer t. Dorr (W. Va.) 367
DaTid T. Tucker (Ga.). 909
Davis T. First Nat Bank (Ga.) 190
Dayis. International Harreeter Co. of
America t. (Ga. App.) 770
Davis, LitUe ft Green r. (Ga.). 842
Davis, Seaboard Air Line By. t. (Ga.
App.) 687
Davis T. State (Ga. App.) 866
Davis, Toa^ v. (Ga. App.) 865
Davis T. Walters (Ga.) 838
Davis Wagon Co^ Harrell t. (Ga.) 713
Deal T. Much (GaJ 1006
Denson v. Keys (Ga.) 768
Denbler t. Hart <Ga.) 176
De Vaughn v. Hays (Ga.) 844
Devereaux v. State (Ga.) 849
Dewberry v. State (Ga.) 115
Dillard v. Dillanl (S. C.) 1037
DiUard T. Holtcendorf (Ga.) 414
Dimery v. Bennettsville ft O. B. Cow
(S. C.).... 877
Dixie Fire lia. Co. T. Aiurican Bonding
Co. (N. C.) : .T. 480
Dockery v. Hamlet (N. a) 18
Dodd V. Sparunbuzg By., Gas ft Electric
Co. (S. G).... 625
D«T, Danaer t. (W. TaO 867
Psi«
Dotson V. Savannah Pore Food Canning
Co. (Ga.) 801
Douglas V. Moore (Ga. App.) 429
Douglas T. Wilson (Ga. App.) 50
Dove. Sandy Croaa Gin Co. t. (Ga.) JBSG
Doder v. Central of Georgia B. Co. (Ga.
App.) 469
Dozier v. State (Ga. App.) 203
Drakeford. SUte v. (N. C.) SOS
Draper Coal ft Coke Co., Gartin v. (W.
Va^) : 673
Driggers v. Mosley (Ga. App.) 865
Driver, Hudson v. (Ga. AppJ... 1013
Du Bose. WeUs v. (Ga.) 715
Duffey, Wilson v. /Ga.) 114
Dufonr, Mayor, etc., of Savannah t. (Ga.
App.) 779
Dunn V. Evans (Ga.) 122
Dunn. Green v. (N. G.) 211
D. W. Alderman ft Sons Co. v. McKnlgbt
(S. C.) 982
Dy^ Yeargin r. (Ga. AppO 831
Earle. Geer v. (S. 0.) 826
Easterliiw v. State (Ga. Aro.) 140
EdgeU&Still v. (S. O) 1039
Edwarlsv. Price (N. O.)... 145
Edwards v. Southern B, Co. (N. C.) 219
Edwards v. Wysong & Miles Co. (Ga.).. 115
Ellen, Soutft Carolina ft W. By. v. (S. 0.) 963
Ellington, Thomas v. (N. C.) 12
Ellison V. Greenville. S. ft A. B. Co. (S. C.) 231
Ellison, Middleton v. (S. C.) 739
EUison, State v. (S. G.) 704
Emory v. Grand United Order of Odd Fel-
lows (Ga.) 922
Empire Life Ina. Co. v. Mason (Ga.) 035
Empire Lumber Co., Hopkins v. (N. C.) . . 286
Equitable Life Assnr. Soc of United
States, Thompson v. (S. G.) 489
Estes, Monroe v. (Ga.) 180
EstUl, Young Men's Christian Ass'n v.
(Ga.) 1075
Evans, In re (S. C.) 227
Evans, Dunn t. (Ga.) 122
Evans, Fraternal Lift ft Acddoit Ass'n v.
(gZ) 916
EzeU T. Atlanta (Ga.) 821
BmII t. Atlanta (Ga. App.) 860
Fairey v. Zeigler (S. C.) 797
Fant Fish Co.. Southern Exp. Co. v. (Ga.
App.) 197
Farmer t. Phillips (Ga. App.) 353
Felker v. Monroe (Ga.) 847
Felker t. Stark (Ga. App.) 202
Felty V. Southern Flour ft Grain Co.
(Ga.) 1074
Ferebee, Virginia By. ft Power Co. v. (VaO 6C6
Ferguson v. Glady Fork Lumber Co. (W.
Va.) 688
Fetzer, Trustees of Catawba College v. (N.
c.) .rrr....... 162
F. Q. Hnn ft Co., International. Silver Oow
V. (Ga.) 609
F. G. Hull ft Co., International Silver Co.
V. (Ga. App.) 610
Fidelity Mut Life Ins. Go. t. Gosa (Ga.
APP.T 735
Finch. Deal v. (Ga.) 1006
Findley v. Coal & Coke B. Co. (W. Va.) . . 896
Fink V. United States Coal ft Coke Co. (W.
Va.) 702
First Citizens' Bank, Eenedum v. (W. Va.) 656
First Nat Bank, Alexander, SmlUi ft. Ca
V. (Ga.) 1071
First Nat Bank. Butter v. (Ga. App.) 772
First Nat Bank, Davis v. (Ga.) 190
First Nat Bank, McMillan v. (Ga. App.). . 734
Fisher v. Montvale Lumber Co. (N. C.)... 286
Fiske. Wimbom v. (Ga.) 717
Flagg v. State (Ga.) 715
Flanders. McAfee v. (Ga.) 844
Fleming. Grantham v. (Ga. App.) 111%^
78 SOUTHBASTBlftN BBCOBTBS
PkC*
Flint Blver Nava] Storei Otk, Florida Tel-
low Pint) Oo. T. (Ga.).7. 900
Flint Hirer Naval Stores Co., Florida Yel-
low Pine Go. v. (Ga.) 901
Flood T. State (Ga. App.) 288
Florida Yellow Fine Co. t. Flint River Na-
val Stores Ca (Ga.) 900
Blorida Yellow Pine Co. t. Flint River Na-
val Stores Co. (Ga.) 901
Ford, Clond v. (Ga.) 1008
Ford T. State (Ga. App.) 782
Fore V. Berry (S. C.) 706
Fort-Mims & Haynes Co. Branan-Akers
Co. (Ga.) 721
Fortane v. Braawell (Ga. App.) 201
Fountain v. Hagan Gas lilngiiie & Mfg. Co.
(Ga.) tr.... 428
Fraternal Life & Accident Ass'n t. Brans
(Ga.) 915
Freeman, Bailey v. (Ga.) 423
French v. ^tna Life loa. Co. (S. C) 532
Fulton V. Parker (Ga.) 414
Fnrr v. Bank of Fairmount (Oa.) 181
Galssert. Martin v. (Ga.) 40
Galloway, McCall v. (N. C.) 429
Gamble v. Metropolitan Ldfe Ina. Co.
(S. a) 875
Garrison v. Flatwoods (W. Va.) 6«7
Gartin v. Draper Coal & Coke Co. (W. Va.) 673
Gates V. State (Ga. App.) 270
Geer v. Earle (S. C.) 326
Gem Knitting Mills v. Thurman (Ga.) 408
Georgia Coast & P. R. Co. v. Jones (Oa.) 766
Geoi^a EizcelBior Co. v. Hartfelder-Gar-
bntt Co. (Ga. App.). 611
Geoi^a, F. & A. A. Od. T. Norman (Ga.).. 411
Georgia Granite Co. T. Austin (Gtu) 1008
Georgia Life Ina. Go^ t. McCranie
(Ga.App.) 1115
Georgia Nat Bank, Bishop t. (Ga. App.) 047
Georgia By. & Electrie Co. t. Crosby (Ga.
App.) 612
Ge(»iia By. & Power Go, Benchler t.
(Ga.) 121
Georgia ft Power Co., StribUng t.
(Gfir.T:. : 42
Gcoigk, S. ft F. R. Co.. Holleman v. (Ga.
App.) 428
Georgia Talc Co. t. Cohutta Talc Co. (Ga.) 905
Georgia Veneer ft Padcage Co., GirTin t.
(Ga.) .V/. 1091
Gibbes v. Rivers (S. C.) 21
Gibson v. Bethea (S. C.) 1025
Gibson V. State (Ga. App.) 820
Gibson's Ex'x, Kincheloe t. (VaO >>..>.«. 603
Giddinss. Albritton t. (Ga.) 723
GUes, Maddox t. (Ga.) 885
GUI V. Raggles (S. C.) 536
GUleland, Polley v. (W. Va^ 96
Gillespie, Shields & Ca, Hodges t. (Ga.
App.) '.tTV7. 832
Girvin v. Georgia Veneer & Package Co.
(Ga.) 1091
Olady Fork Lumber Ca, Ferguson v. (W.
Va.) 689
GlawBon T. SUte (Ga.) 188
Glen Alum Coal Co.. Kennedy v. (W. VaO 788
Glen Alum Coal Co., Williamson T. (W.
Va.) 94
GleanviUs Supply Co.. Surrency t. (Ga.
App.) 1013
GodTrin, Clower v. (Ga.) 714
GooGtaTMcLeod t. (N. C.) 4
Gordon v. State (Ga. App.) 204
Gosa. Fidelity Mut Life Ins. Co. t.
(Ga. App.) 785
Graham, Jamea v., two cases (S. C.) 82
Grand United Order of Odd Fellows.
Emory v. (Ga.) 922
Granite Brick Co. v. Titus (S. C) 540
Grantham v. Fleming (GaJApp.) 1113
Gray v. CoUins (Ga.) 127
Green v. Dunn (N. 0.) 211
Greenlee. Lumpkin T. (Ga.) 1003
Page
GreenvlIIe-Caroliaa Power Co., UcDanld
V. (S. O.) 980
Greenville. S. ft A. R. Ca, Ellison t. (S.
C.) 281
GreenviUe, S. & A. B. Co^ Groce t. (S. C.) 888
Greeuviile & K B. Co.. Batson v. (S. a) 885
Greer, Sute v. (N. O.) - 810
Gregg V. Board of Com'rs of Randolph
County (N. a) 801
Gregory-Gonder ICnle Co. t. Roddey
(S. C.) 876
Gress v. Roberta (Ga.) 120
Groce GieenvUle. S. ft A. B. Oo. (S. a) 888
Grossmann Seed ft Supply Cob, Jaoot v.
(Va.) 646
Grubbs v. State (Ga. App.) , 775
Hagaman v. Bernhardt (N. 0.) 209
Bagan Gas Engine ft Mfg. Co., Fountain
V. (Ga.) ; 423
Hale ft Sons, Robson ft Erane T. (Ga.)... 177
HaU T. C. J. Roehr ft Oa (Ga. App.).... 481
Hall T. Penton (Ga.) 917
Hall V. Philadelphia Co. (W. Va.). 765
Halliburton v. Harsbfield Bros. App.) 49
Hamil. James t. (Ga.) 721
Hammond v. Hinman (Ga.) 897
Hammontree v. Hammontree (Ga.) 122
Hamrick, Shelby Nat. Bank t. (N. a).... 12
Harby v. Byers Lumber Co. (S. O.) 622
Harden v. State (Ga. App.) . 681
Hardin r. Adair (Ga.) 1073
Hardin v. Stansel (Ga. App.) 681
Hardman, Rennix t. (W. Va.) 7^
Harper v. Jeffers (Ga.). 172
Harper, Peterson v. (Ga. App.) 942
Haiper t. Terry (Ga.) 176
Harrell v. Davis Wagon Oo. (Ga.) 713
Harrelson, Usher t. (Ga. App.) 852
Harris, City of Rome v. (Ga. App.) 475
Harris Clay Co., Pearson v. (N. C3.) 73
Harrison v. State (Ga. App.).- 686
Harshfield Bros., Halliburton t. (Ga. App.) 49
Hart, Deubler v. (Ga.) 176
HartCelder-Garbutt Co, Georgia Excelsiar
Co. V. (Ga. App.) 611
Hartford Fire ine. Ca t. WimUih (Gm.
App.) 2es
Hartis v. Charlotte Electric R. Co. fl*. C) 164
Harveley v. Southern R, Co. (S. 0.)..... 887
Hatcher. Williams v. (8, C.) 916
Hathcoek, Almand T. (Ga.) S4S
Hatke. Smith's Adm'r t. (Va.) 084
Haught, South Penn OU Ca t. (W. VaJ.. 7S»
Hawkins. Bigham v. (Ga.) 809
Hawkins v. Studdard (Ga.) 116
Hawthorne t. State (Ga. App.) 478
Hayes v. Pace (N. O.) 290
Hayes v. Southern Power Ca (S. U) 956
Hays, De Taughn v. (Ga.). 844
Haywood V. Kitchens (Ga. App.) 614
Heath, Rafferty v. (Va.) 641
HemphUl. State v. (N. C.) 167
Hermitage Cotton Mills, Watts T. (S. C.) . . 798
Hemdon t. Southern Ry. (N. C.) 287
Hewlett, Seaboard Air Line R. Ca t. (S.
C.) ...329
H. H. Simmons ft Co., Thompson T. (Oft.) 410
Hickman, Mathews v. (Va.) 655
Hicks V. J. A. Warfield ft Co. (Ga. App.). .1096
Hicks ft Son v. S. G. Mozley & Co. (Ga.
App.) ISS
Hiedon ▼. Williamson (Ga.) i 767
HiU, Broadhurqt v. (Ga.) 833 .
Hill V. Saunders (Va.) 559
Hill T. State (Ga. App.) lOlS
Hillia T. O. T. Comer ft Co. (Ga. App.) . . . .1107
Hilton-Dodge Lumber Co, WUkiDs t. (8.
a) 878
Hines t. Rocky Mount (N. C.) 510
Hinman. Hammond v. (Ga.) 887
Hitchcock, Thornton t. (Ga.) 179
Hoard. Holloway v. (Ga.) 923
Hobgood, Runyan t. (Ga.) 1075
Hodges T. GiUespie, Shields ft Co. (tia.
OASES BBPOSTBD
Pmca
Bodsea, Pitman T. (Ga. Ajm.) 688
Hdlcombe r. apartanburs Ry., Qeb & Blee-
trie Cb. (S. OO TT. 231
Holder, Ken v. (Ga. App.) 682
Holding Election for Afderman in Ward 1,
in Ctty ot Union, In re (S. C.) 738
HoUaday r. Moore iVa.) 6Q1
Holleman t. Georgia, S. A F. B. Co. (Qa.
App.) 428
HoUev, Peyton y. (W. Va.) 666
HoUiday r. Coleman (Ga. App.)....^ 482
Holloway t. Hoard (Ga.) 928
Holmea t. Holmes (Ga.) 903
Holtxendorf, Dillard v. (QaO 414
Hood T. Venabte (Ga.) 1078
Hooper, Cedartown Supply Co. t. (Ga.
App.) 686
Hoover, Browning t. (S. O.) 521
Hopkins t. Crisp (N. C.) 1040
Hoptdus V. Empire Lumber Co. (N. C). . 286
Hopkins, Spmill r. (N. C.) 280
Horn T. Conway, C. & W. R. Co. (S. C). . . 951
Homsby t. Jensen (Ga. App.) 267
Horsley Woodlcy (Ga. App^ 260
Horton t. Seaboard Air Line B. Co. (N. C) 494
HoweU T. HoweU (N. C.) 222
Howell T. State (Ga. App.) 859
Hnbbard, Spiers t. (Ga. AppJ 136
Hobble, Nashville, C. & St L By. T. (GaO 919
Hndkina t. Crim (W. Va.) 1043
Hudson T. Driver (Ga. App.) 1018
Hnif T. Welch (Va^ ff73
Hull & Co., International Silver Ca v.
(Ga.) 609
Han ft Co., International Silver Go. r.
(Ga. App.) 610
Humphries, Anderson v. (Ga.) ...10T9
Hunt T. Lavender (Ga.) 805
Hnrst V. J. D. Oaig Furniture Co. (S. a). . 960
Hnrst V. Southern K. Co. (N. C.) 434
Independent Order of Good Samaritans
and Dao^ters of Samaria v. Mack' (Ga.) 838
International Harvester Co. of America v.
Davis (Ga. App.) 770
IntematioDal SUver Co. v. F. G. Hull ft
Co: (Ga.) 609
International Silver Co. t. F. G. Hall &
Co. (Ga. App.) 610
Jackson t. Beard (N. G.) 6
Jadkson, Bell v. (S. C) 679
Jackaon v. Seaboard Air Line By. (Ga.)..1059
Jackson v. State (Ga. App.) 53
Jackson v. State (Ga. App.) 867
Jackson Kat Bank, Gurry v. (6a.) 115
Jacot T. Grossmann Seed • Supply Co.
(Va.) 646
Jaeger y. City R. Co. (W. Va.) 59
Jameraon, Spriggs v. (Va.) B7l
Jana v. Grabam, two cases (S, C>) 82
James v. Hamil (Ga.) 721
Jamea v. James (Ga.) 114
Jarrett, Booker v. (W. Va.) 754
Jasper Trading Co., McSnheney r. (Ga.
App.) 727
' J. A. Warfleld & Co., Hicks v. (Ga. App.) . .1096
3. D. Craig Furniture Co.. Hurst v. (S. G.) 960
Jeffers, Harper v.(Ga.) 172
Jefferaon County Court, Shipley v. (W. Va.) 792
Jefferson Standard Ijfe Ins. Co., Wylie v.
(§. a) 745
Jeffords V. State (Ga. App.) 474
Jenkins v. State (Ga. App.) S28
Jensen, Homaby v. (Ga. App.) 267
J. F. Madden ft Sons, Contmental FertiliB-
er Co. V. (Ga.) 400
J. H. Hicks & Son v. S. G. Mozley & Go.
(Ga. App.) 133
J. L, Smathers ft Ca t. Toxavay Hotel Co.
Of. a) 224
Johns, Lancaster v. (Ga.) 713
Johnson v. Brooks (Ga.). 87
Johnson, McNair v. (S. a) 802
Johnson, Moor« t. (N. C.) 168
Jdinarai, Onrald T. (Ga.)....., 833
Page
Johnson. Stevens v. (W. Va.). 877
Jones, Geoivta Coast ft P. B. Go. T. (Ga.) 76$
Jones T. KeUy (S. Cj 17
Jones, Kennedy v. (Ga.) 1060
Jones, Mitchell v. (S. C.) 528
Jones V. State (Ga. App.) 474
Jones ft Oglesby, Presley v. (Ga.) J28
Jordan v. Walker (Va.) 643
Jos. Lazarus Co.. Broughton v. (Ga. App.) 1024
J. R. Hale ft Sons, Robson ft Evans v.
(Ga.) „ 177
Kalmon, Searboro r. (Oa. App.) 686
Kaylor v. Mayor, ate., of (jturallton (Ga.
AppO 827
Kea, Cmeman v. (Ga. App.).,... 420
Reefer v. Reefer (Ga^ 462
Keels, Ex parte (S. C.) 898
Keels V. Atlantic Coast Line R. Co. (S. C.) 168
Keels, City of Sumter v. (S. C.) 898
Keenan v. Warfield (8.0.) 16
KeUy v. Butler, Stevens ft Co. (Oa. App.) 471
Kelly, Jones v. (S. C.) 17
Kenned t. Glen Alum Coal Co. (W. Va.) 788
Kennedy v. Jones (Ga.) 1069
Kennedy. Pritchett v. (Ga.) 902
Kennemer v. Branch (Ga.) 838
Kerr v. Holder (Ga. App.) 682 .
Keys, Denson r. (Ga.) 708
Kiger v. Lilpfert Scales Co. (N. C.) 76
KiUebrew v. State (Ga. App.) 205
Kincbeloe v. Gibson's Ez'x (Va.) 60S
King V. SUte (Ga. App.) 483
Kitchens, Haywood v. (Ga. App.) 614
Klatte V. McKeand (S. C.) 712
Knight V. Knigbt (S. C) 744
Knott V. McWhirter (Ga.) 1063
Knowles. Smith v. (Ga. App.) 204
Kolb, Brown ft ParW v. (S. C.) 894
Kreis, Atkinson v. (Ga.) 46S
Lacherv. Manlev (Ga.).: 188
I>mar-Rankin Drug Co., Tancey v. (Ga.). .1078
Lambert v. Barrett (Va.) 686
Lambert V. Sbelfer (Ga.) 118
Lancaster v. Johns (Ga.) 713
Lane v. Brinson (Ga. App.) 725
Lane y. Newton (Ga.) 1082
Lflgie, Sherman V. (Ga.) 123
Lane v. State ((ia.) 837
Lanford, Watters v. (Ga.) 847
Lanham v. Meadows (W. Va.) 750
Lary, Little v., two cases (Ga. App.) 470
Latham v. Spragins (N. C) 282
Latham v. Stewart (Ga.) 812
Latimer v. Anderson County (S. C.) 879
Lavender, Hunt v. (Ga.) 805
Lazarus Co., Broughton v. (Ga. App.) 1024
Lewis, Rountree ft Leak v. (Ga. App.) .... 780
Uipfert Scales Co., Kiger v. (N. C.) 76
Linam v. Anderson, two cases (Ga. App.) 424
Lindsay v. Porter ft Garrett (Ga.) 848
Idnney v. Mints (N. C.) 1040
little V. Lary, two cases (Ga. Ajfp.) 470
Little ft Green v. Davis (Ga.) 842
Livingston, Luke v. (Ga. App.).. 778
LIotTt. North OaroUna H. Co. (N. O).. 489
Loi^ett V. RawIIna (Ga. AppO ^80
Logan V. Stanly (S. G0"> 624
Lqgaa Coal ft Supply Co., Southern Cement
Stone Co. v. (QC) 417
Long V. Mendel (Ghu App.) 471
Looney v. Commonwealth J Va.) 625
Lothridge v. Vamadore ((3a.) 721
Lovett, Roane Lumber Co. v. (W. Ya.).... 103
Lovett V. State (Ga. App.) 857
Lowe ft Co.^Moore v. (Ga. App.) 828
Iiowther T. WaycrosB (Ga. App.) 141
Luke V. Livingston (Ga. App.) 778
Lumpkin v. Greenlea ' (Ga.) 1003
Lunsfoids V. Alexander (N. C.) 275
Lykea V. Seaboard Air Line By. (S. &).. 710
Lynch, Ash v. (W. Va.) 365
Lynch v. Merrill (W. Va.) 669
MeiZt%f 'siuien ^(^tfjgi w
xU
78 SOUTHIDASTEBN BEPOBTBB
ICeCan T. OaUoway (N. O.) 420
McCalla. Cement Stone & Tile Co. t. (Ga.) 333
McClary-Broadway Co., Cantey t. (S. C.) . . 614
McClelland, Copeland v. (Ga. App.) 479
HcCord T. McCord, two cases (Ga.) 833
McCormick, Ball-Thrash & Co. v. C). . 303
M<5:;ormick t. Tribune-Herald Co. (Oa.
App.) 779
UcCoy T. Meador (Ga.) 848
McCranie, Georgia Life Ins. Co. r. (Ga.
App.) 1115
HcDaniel t. GreenvUle-Carolina Power Co.
(S. a) 980
McDermitt. State t. (W. Va.) S6
UcElheney v. Jasper Trading Co. (Ga.
App.) .: ....727
McElmurray Bros., Charleston & W. O. R.
Co. T. (Ga. App.). 258
McGarr t. State (Ga. App.) 776
Mcintosh. State v. (S. CO 827
Mclntyre Bros. & Co. v. South Atlantic
S. S. Line (Ga. App.) 847
Mack, Independent Order of Good Samar-
itans and Daughtera of Samaria v. (Ga.) 836
McKeand, Klatte t. (S. C.) 712
McKenzie r. United Cigar Stores Co.
(Ga-i 1006
McKnieht, D. W. Alderman & Sons Co. t.
(S. 0^ 982
McLaughlin T. SayersJW. Va.) 355
McLendon t. SeideUVGa.) 410
McLendon t. Sute (Ga. App.) 139
McLendon Bros. & Loi^ri^e t. Meador
(Ga.) 1008
McLeod V. Gooch (N. C.) 4
McLester t. Barlow (S. C.) 623
McMillan v. First Nat. Bank (Ga. App.). . 734
McMillan r. Wilcox (Ga. App.) 270
MUeNair t. Johnson (S. C.) 892
Macon Ry. & Light Co., Central of Georgia
B. Co. T. (Ga.) 981
McVey T. Butcher (W. Va.) 691
McWUrter, Knott t. (Ga.) 1062
Madden, Ball t. (Ga.) 26
Madden & Sons, Continental Fertilizer Go.
MadSox" V ' GflM '(Ga.) X t ! ! *. ! ! i i ! I ! ! ! I ^
Magill T. Southern B. Co. (S. C.) 1033
Major, State v. (S. Cd .896
Malloy. State t. (S. C.) 995
Maloy T. Williams (Ga.) 1054
Mangum t. Manoa (Ga. App.) 775
Manley, Lacher (Ga.) 188
Manos, Mangnm t. (Ga. App.) 775
Marion County Lumber Co., Matheson y.
(S. a) 070
Martin t. Gaissert (Ga.) 40
Mason, Ehnpire Life Ina Co. T. (Ga.) 935
Mason, Whitehurst v. (Ga.) 938
Masaie, State t. (W. Va.) 382
Matheson t. Marion County Lumber Co,
.(S. O.) v 970
Mathews v. Hickman f^a.) 656
MattisQU, State t. (S. C.) 1038
May T. Thomas (S. C.) 85
Mayor, etc.. of Cnrrollton, Kaylor t. (Ga.
. App.) 827
Mayor, etc- of Carrollton, Mayweather v.
(Ga. App.) 685
Mayor, etc., of Cedartown t. Vann (Ga.
App.) 820
Mayor, etc., of Milledgeville t. Stembridge
(Ga.)...., 86
Mayor, etc., of Savannah, Barrett t. (Ga.
App.) 827
Mayor. tt Savannah v. Dnfovr (Ga.
App.) 770
Mayweather t. Mayor, etc- of QarroUton
^ (Ga. App.) .77 685
Meador, McCoy t. (Ga.) 84S
Meador, McLendon Bros, ft Iiockridge T.
(Ga.) ;.1003
Meadows, Anderson v, (N. C.) 279
Meadows, Lanham v. (W. Va.),..« 750
Means T. Barnes (W. Va.) 665
Means. Whitfield t. (OaJ 1067
Pace
Meeks t. Carrollton (Ga. AppJ 777
Meldrim t. Meldrlm (Ga.)..V. 1089
Melton T. Chesapeake & O. B. Co. (W. Va.) 369
Mendel, Long t. (Ga. App.) 471
Mercantile By., Boilding ft Loan Asa'n,
Blunt T. (Va.) 654
Merck v. Merck (S. C.) 1027
Merrill, Lynch T. (W. Va.) 669
Merrill, State v. (W. Va.) 699
Metropolitan Life Ins. Co., Gamble v.
CS. C.) 875
Meyers v. Norfolk ft W. B. Co. (M. a). . . 280
Middle Atlantic Immigration Co. t. Ar-
dan (Va.) 088
Middleton t. Ellicon (8. O) 730
Miller, ColnmUan Nat IMt Iul Go. t.
(Ga.) , 1070
MiUer T. State (Ga.) 181
Miller, Strickland t. (Ga. App.) 48
Miller Supply Co. v. State Board of Con-
trol (W. Va.) 672
Mills V. Central of Georgia B. Co, (Ga.) . . 816
Mims r. Atlantic Coast line B. Oo.j(S. C) 1031
Mineral C!ou&ty Court t. Piedmont Cw. Va.) 63
Mintz, Unney v. (N. C.) 1040
MisenfaelAier v. Alexander (N. a) 161
MitcheU v. Jones (S. C.) 628
Mizell ft Bro. t. SatUla Tiupentine Co.
(Ga.) 336
Monroe v. Estes (Ga.) 130
Montgomery t. Alexander Lumber Co. (Ga.) 413
Montvale Lumber Co., Fisher t. Qi.C.)... 286
Moody & Morgan t. Callowhee Mining ft
Bednction Co. (N. a) 1089
Moon V. Wright (Ga. App.) 141
Moore v. Calvert Mortgage ft Deposit Co.
(Ga.AppO 1007
Moore v. C. H. Lowe & Co. (Ga. App.)... 829
Moore, Douglas r. (Ga. App.) 429
Moore V. Flatwoods (W. Va.) 667
Moore. Holtaday t. (Va.) 651
Moore t. Johnson (N. C.) 158
Moore v. Moore (W. Va.)... 99
Moore T. State (Ga. App.) 772
Moore v. State (Ga. App.) 774
Moore, Tonmana t. (Ga. App.) 862
Morgan t. Cedartown (Ga. App.) 863
Morgan T. State (Ga.) S07
Morgan T. State (Ga. App.) 041
Morris t. Baird (W. Va.) 371
Morris t. State (Ga. App.)..^.., 477
Moser t. Burlington (N. C.) 74
Mosley, Driggers (Ga. App.) 865
Moye T. Paul (Ga.) 115
Mozley ft Co., J. H. Hicks ft Son v. (Ga.
App.) 138
Margnlondo t. Nowlan's Ex'r (Va.) 800
Murrey, Smith t, (0&.) 423
Murray, Stokes t. (S. C.) 741
Myers, Campbell v. (W. Va.) 671
Myrick Bros., Ware ft Harper y. (Ga.) .... 1068
Nashville C. ft St L. By. v. Hubble (GaJ. . 010
National Bank of Tifton, Aaltman t. (Ga.) 833
New Biver ft Pocahontas Gonsol. Coal Co.,
Crotty v. (W. Va.) 233
Newton, Lane v. (Ga.) 1082
New York life Ins. Co., Stratton's Adm'r
V. (Va.) 636
Nicholas County Court, Champ v. CW. Va.) 861
Nicholson, American Trust Co. t. (N. C). . 162
Nixon, Augusta Beal Estate Co. v. (Ga-). . -1005
Norfolk Southern B. COy Beid v. (N. O). . 306
Norfolk ft P. Traction CSo. v. Norfolk (ViL) 646
Norfolk ft W. B. Co., CltlMns' Bank of
Norfolk T. (Va.) 668
Norfolk ft W. B. C!o., Meyers t. (N. C). . . 280
Norman, Georgia, F. ft A. B. Cow t. (Ga.) 411
Norman t. Behberg (Ga. AppO 256
Norris* Adm'r, St Stephens Eplseopal
Ghnrch v. (Va.) 622
North Orolina B. Ca, Lloyd v. (N. 0.). .. 480
Northern Contracting Co., AmburaeQ Hy-
draulic Const Co. T. (OaO 340
Northwestern B. Co. of Soath^rGuroliBa, i
OASES BBFOBTBD
Oertel, Wadley r. (Ga.) 912
O'G&n Coal Min. Co., Shlnn t. (W. Va.). . 104
Ogleab; t. State (6a. App.). 134
Oglethorpe Lodge No. 1, Thomauist t.
(Qa.).: " 7. 1086
Ohio Valley Electric & Go^ Perry t. (W.
Va.> 682
Olda Motor Works t. Olds Oakland Co.
(Ga.) 902
Olds Oakland Co., Olds Motor Works t.
(Ga.) 902
Oliker T. Williamaburgh City Fire Ids. Co.
(W. Va.) 746
OliTer, Southern B. Co. t. (Go. App.) 6S4
Olmstead, Atkinson v. (Ga.) 720
O'Neal, Parrish (Ga^ 420
Osteen r. Boltmaii (a CO 446
Oiwald ▼. Johnson (Qa^ 833
Pace. Hayes v. (N. C.) 290
Paden T. Phoenix Planing Mill (Ga.) 412
Parker. Fulton v. (Ga.) 414
Parks T. Bank of Adairsrllle (Ga. A^),. 856
Parrish t. O'Neal (Ga.) 420
Parry v. Southeastern Life Ins. Co. (S.
C.) 441
Parsons ft Bro.. Alpine Safe & Lock Co. t.
(Ga. App.) 1028
Patrick T. Conunonwealtb. (Va.) 628
Paul, Moye v. (Ga.) 115
Paulk, Woodson v. (Ga.) 35
PanU T. Pittsburgh, W. & E. R. Co. (W.
Va.) 100
Paxson Bros. v. Butterick Pub. Co. (Ga.) 763
Payne v. Seagars (Ga. App.) 829
Pearson v. Harris Clay Co. (N. C.) 73
Pearson T. White ft Cochran (Ga. App.). . 864
Pease, ToUey v. (W. Va.) Ill
Penton v. Hall (Ga.) 917
Perry v. Ohio Valley Bleetric H. Co. (W.
Va.) ...692
Peterson v. Harper (Ga. App.) 942
Peyton t. Holley (W. Va.) 666
Philadelphia Co., HaU v. (W. Va.) 755
Phillips V. Atkinson (Ga.) 116
Phillips, Farmer v. (Ga. App.) 853
Phillips T. Portsmouth (Va.) 651
Phcenii Ina. Co., Beasley v. (Ga.) 722
Phcenix Planing Mill, Paden t. (Ga.) 412
Piedmont Traction Co., Wadsworlh Land
Co. V. (N. C.) 297
Piedmont Traction Co., Wadsworth Land
Co. V. (N. C.) 299
Pilgrims' Health & Life Iiul Oo. t. Stott
(Ga. App.) 469
Piney Coal & Coke Ca, Ryan v, (W. Va.). . 789
Pinson, Brown t. (Ga.). 176
Pishner, State v. (W. Va.) 752
Pitman t. Hodges (Ga. App.) 688
Pittsburgh. W. ft K. H. (Do.. PauU t. (W.
Va.) 100
Planters* Warehonse & Grocery C^., Bul-
lard ft Woodson v. (Qa.) 848
PoUey v. GiUeland (W. Va.) 96
Pope & Ballance t. Bigbter-Parry Lum-
ber Co.. two cases (N. C.) 65
Porter ft Garrett, landsc? t. (Ga.) 846
Prater v. Barge (Ga.) 119
Prater t. Prater (Ga.) 1008
Presley v. Jones & Ogleaby (Ga.) 126
Price, Bdwards t. (N. C.) 145
Pritdiett t. Kennedy (Ga.) 902
Pockett, State r. (S. OO 737
Fylss T. State (Ga. App.) 144
Quiett Mfg. On, American Lumber Co. t.
(N. O) 284
RafFerty v. Heath (Va.) 641
Ragan, Citizens' Nat. Life Ins. Co. t. (Ga.
App.) 688
Raper v. WilUamB (Ga.) 253
Rash T. State (Ga. App.) 865
Rawlins, Lockett v. (Ga. App.) 780
Bead t. State (Ga. App.) 1023
Becker t. Southern B. Uo. (VaO 580
Page
Reed t. Baehman (W. Ta.)..>* 605
Reed v. Reed (S. C.) 712
Reeves t. Callaway (Ga.) 717
Register, Schumcr v. (Ga. App.) 731
Register t. State (Ga. App.) 142
Rehberg, Notman t. (Ga. App.) 256
Reid T. Norfolk Southern R. Co. (N. C). . 30fS
Kenfroe t. Atlanta (Ga.) 449
Rennix t. Hardman (W. Va.) 749
Reynolds t. Reynolds (W. Va.) 360
Rice's Adm'i, Southern R. Co. t. (VaJ.. 592
Righter-Parry Lumber C!o., Pope & Bal-
lance two cases (N. CO 66
Riley t. Royal Arcanum {Ga.) 803
Rivers, Gibbes v. (S. C.) 21
Roane Lumber Co. v. Lovett (W. Va.) . . . loa
Roberts v. Baltimore ft O. R. Co. (W. Va.) 357
Roberts, Oress t. (Ga.). 120
Roberts, Vanderbilt y.&.C.) * 166
Robertson t. Bussell (Ga. App.). 682
Robertson t. Western Union Tel. Oo. (S.
CO 977
Robinson t. State (Oa. AppO 53
RobeoD ft Evans t. J. B. Hale & Sons (Ga.) 177
Robson & Evans v. Weatherly Lumber Go.
(Ga. AppO 610
R. O. Campbell Coal Co. v. White (Ga0..1OO9
Roddey, Gregory-Conder Mule Co. v. (S.
CO 876
Roehr ft C^., Hall v. (Ga. App.) 481
Rogers, State v. (N. CO 293
Roland v. Roland, two cases (GaO 249
Rosenberg v. Cnited States Fidelity &
Guaranty Co. of Baltimore, Hd. (Va.) . . 557
Rose' Adm'x v. Ross (W. VaO 78!)
Ross, Ross' Adm'i v. (W. VaO 789
Rothschild v. State (Ga. AppO 201
Roton's Will, In re (S. CO 711
Rountree ft Leak v. Lewis (Ga. App.y. . . 780
Roy v. State (GaO 846
Royal Arcanum, Riley v. (GaO 803
Royster Guano Co., Walker v. (Ga. AppO. . 478
Buggies, GiU V. (S. CO SSS
Runyan v. Hobgood fOa.) 1075
Rushing ft Co. v. Seaboard Air Idne By.
(S. CO 711
Russell, Robertson T. (Ga. AppO 682
Ryan v. Piney Coal & Coke Co. (W. Va.).. 780
Rylee, Virginia-Carolina (Chemical Co. t-
(Ga.) 27
Ryon T. State (Qa. AppO 477
St Stephen's Episcopal Church v. Norris*
Adm'r (VaO 622
Salter, Snider ft Wright t. (Ga. AppO- .. .1023
Sanders v. Mtna. Life Ins. Co. (S. 0.) 532
Sandy Cross Gin Co. v. Dove (Ga.) 335
Santa Paula Commercial Co., Singer t.
(Ga.) 1094
Satilla Turpentine Co., Mizell ft Bro. t.
(GaO 335
Saunders, Hill t. (VaO. 559
Savannah Pure Food (Anning Go., Dotson
V. (GaO 801
Sayers, McLaughlin v. (W. Va.) 355
Scarboro t. Kalmon (Ga. App.) Q86
Schofield. Chandler v. (Ga. AppO 49
Scbumer v. Begbter (Ga. Apj^). 731
Scott, Pilgrims^ Health & Life Ins. Co. T.
(Ga. AppO 469
Scott V. Yaldosta. M. ft W. B. Oo. (Ga.
AppO 784
Seaboard Air Line By. v. Andrews (Ga.). . 925
Seaboard Air Line By. T. Cames ft Go.
(Ga. AppO 864
Seaboard Air line By. t. Davis (Ga. AppO 687
Seaboard Air Line B. Co. t. Hewlett (S.
CO 329
Seaboard Air Line B. Co,, Horton t. (N.
CO 494
Seaboard Air Line R. Co., Virginia ft 0. S.
R. Oo. V. (N. GO 68
Seaboard Air Line By., B. T. Rushing ft
Co. V. (S. CO 711,
Seaboard Air line By., Jackson,?. (Ga.);vA^?^lr>
Seaboaid Air Line Bj., £^^.%>H0>iV^l^*-
T8 SOUTHEASTERN BBPOBTBB
Pas*
Seagan, Payne t. (Ok. App.)....* 829
Segar t. State <0a. App.) 61
SehoQ T. Bloomer (W. V&.) 105
Seidell. McLendon t. (Qa.) 410
Sellen t. State JGa. AmS 196
S. G. MozIeT & Co., J. H. Hi(ta & Son T.
(Ga. App.) 183
Sheffield v. State (Ga. App.) 828
Shelby Nat Bank v. Hamrick (N. a) 12
Shelter, Lambert -r. (Ga^. U8
Sheppard, Davfi & Soutiiern R. Go. v.
(Ga.) : 1055
Sherman t. Lane (Ga.) 123
Shinn t. O'Gara Coal Min. Co. (W. Vaj . . 104
Shipley v. Jefferaon County Court (W. Va.) 7»2
Shiver. $enford r. (Ga. App.) 860
Shute Sewerage Co. v. Monroe (N. G.).... 151
Silver, Steine, v._(Ga.) 1079
Simmons & Co.. Thompaon T. (Ga.) 419
SimB, Witt T. raaj. 467
Singer v. Santa Panla Gommuelal Co.
(Ga.) 1094
Singletary, W. D. Barber & Son t. (Ga.
App.) 1100
Smathera ft Co. t. Tozaway Hotel Co. OH.
C.) 224
Smith T. Atlanta (Ga. App.) 428
Smith T. AtlantajGa. App.) 472
Smith T. Boyer (W. Va.) 787
Smith T. KnowiM (Ga. App.) 264
Smith Murphey (Ga.) 423
Smith T. State (Ga. App.) 134
Smith State (Ga. App.) 685
Smith V. White (W. Va-l 878
Smith's Adm'r t. Hatke (Va.) 584
Smyly t. Colleton Cypress Co. (S. C.) 1026
Snider & WrUbt t. Salter (Ga. App.) 1028
Solomon t. Solomon (Ga.) ..1079
South Atlantic S. S. Une, Melntyr« Bros.
& Co. T. (Ga. App.) 847
South CaroBna & W. Ry. v. Ellen (8. C). . 963
Southeastern life Ins. Co., Parry v. (S. G) 441
Southern Bdl Tel«>hone & Telegraph Co,
Garmichael t. (N. G.) 507
Southern Cement Stone Co. T. Logan Coal
* Supply Co. (Ga.) 417
Southern Exp. Co., Atkinson v. (S. C.) 616
Southern Exp. Co., Atkinson t. (S. C.) 620
Southern Exp. Co. t. Cohen (Ga. App.). .1111
Southern Exp. Co. t. Fant Fish (Ga.
App.) 197
Southem Flour & Grain Co., Felty T.
(Ga.) 1074
Southern Power Co., Hayes t. (3. &).... 066
Southern R. Co.. Boyd v. (Taj 548
Sonthem R Co., Burrow v. (Qa.) 125
Southern R. Co., Cranor t. (Ga. Apo.).. ..1014
Southern R. Co., Edwards t. (N. C.).... 219
Southern R. Co. v. Flemit« (Ga. App.). ... 682
Southern R. Co., Harveley v. (S. C.) 887
Southern R. Co., Hurst v. (N. G 0 434
Southem R. Co.. Magill v. (S. C.) 1033
Southem R. Co. t. OUPer (Ga. App.) 684
Southern R. Co.. Recker v. (Ya.) 680
Southern R. Co. v. Rice's Adm'x (Va.) 592
Southern R. Co. T. Sheppard, Davla Sc Nix
(Ga.) 1065
Southem R. Co., StalUns T. (Oa.) 421
Southern R. Oth, Toriie FunUtnrs Co. t.
(N. C.) 67
SonCbem By., Hemdw t. (N. Ch 287
South Penn Oi) Co. t. Haught (W. Ya.).. 769
Sovereign Camp Woodmen of the World.
Currenoe v. (S. C.) 442
Spartanburg Ry., Gas & Electric Co., Dodd
v. (S. C.f. 626
Spartanburg Ry» Gas & Electric Co., Hol>
oombe v. (S. G.) 231
Spiers v. Hubbard (Ga. App.) 136
Spragins, Latham v. (N. C.) 282
Spriggs T. Jamerson (Ya.) 671
Sprinkle t. Big Sandy Coal & C^ke Co. (W.
Va.) 971
Spruill T. Hopkins (N. C.) 280
Srodii T. Ventreea (Ga.) lOOS
StalUns T. Southern B. Go. (Ga.) 421
Pac»
Stendacd Fnel Supply Co., C3ty of Savan-
nah T. (Ga.) 909-
Stanley v. Glennville (Ga.) ....1064
Stanley, Logan v. (S. C.) B24
StanseL Hardin r. (Ga. App.) 681
StarlTFelkeT t. (Ga. App.). 202
State, Adams r. (Ga. App.) 473
State. Alexander v. (Ga.) 115
State, AmoB v. (Ga. App.) 866-
State, Banks v. (Ga. App.) 1014
State, Besheres t. (Ga. Appj 4^
State T. Bethnne (S. C.) 1000-
State T. Black (N. O.) 210-
State T. BlackweD (N. C.) 816
State, Blount v. (Ga.) 838-
State, Bodiford v. (Ga. App.) 20l
State, Brooks t. (Ga. App!) 148
State, Brown t. (Ga. App!) 862
State, Brown t. (Ga. App.) 868-
State, Coulson v. (Qa. App.) 1108
State, Garter v. (Ga. AppJ , 205
State v. City Council o( Union (S. C.)... 738
State, ClementoT. ((3a.) 716^
State, Collier v. (Ga.) 717
State, Craft v. (Gr. App.) 776
State, Cunningham v. (Ga. App.) ......... 780
State, Daniels v. (Ga. App.) 777
State, Davis v. (Ga. App.) 86&
State, Devereaux v. fGa.) 849
State. Dewberry v. (Ga.) 115
State, Doeier v. (Ga. App.) 203
State V. Drakeford (N. C.) 308
State, Eaeterling v. (Ga. App.) 140-
State V. EUison (S. C.) 704
State. Flagg v. ^G^^,... 716
State. Fletcher v. (Ga. App.) 478-
State. Flood v. (Ga. App.) 268
State, Ford v. (Ga. App.) 782
State, Gates T. (Ga. App.) 270
State, Gibson t. (Ga. App.) 829
State, GlawBon v. (Oa.) 188
State, Gordon v. (Ga, App.) 204
State V. Greer (N. C.) 810
State, Grubbs v. \Ga. App.) 776-
State, Harden v. (Ga. App.) 681
State, Harrison v. (Ga. App.) 686-
State, Hawthorne v. (Ga. App.) 473
State T. Hemphill (N. C.) 107
State. HUl V. (Ga. App.) 1018
State, Howell r. (Ga. App.) 869
State, Jackson v. (Ga. App.) 63
State. Jackson t. (Ga. App.) 867
State, Jetfords v. (Ga. AppJ 474
State. Jenkins v. jGa. App.) '828^
State, Jones v. (Ga. App.) 474
State, KUlebrew v. (Ga. App.) 206
State. King v. (Ga. App.) 483
State, Lane t. (Ga.) 887
State, Lovett v. (Ga. App.) 857
State v< McDennitt (W. Va.) 66
State, McGarr v. (Ga. App.) 776-
State V. Mcintosh (S. C.) 827
State, McLendon t. (Ga. App.)... 139-
Stats V. Major (S. C.) 896
State V. Malloy (S. C.) 995
State T. Massie (W. Ya.) 382
State V. Mattison (S. C.) 1038
State T. Merrill (W. Va.) 699
State, Miller v. (Go.) 181
State, Moore v. (Ga. App.) 772"
Stata, Moore ▼. (Ga. App.) 774
State, Morgan t. (Ga.) 807
State, Mo^an v. (Ga. App.) 041
State, Morris v. (Ga. App^ 477
State, Oglesby t. (Ga. App.) 134
State V. PiBbner (W. Va.) 752
State T. Puckett (S. C.) 737
State. Pylea v. (Ga. App.) 144
State, Rash v. (Ga. App.) 865
State, Read t. (Ga. App.) 1023
State, Register v. (Ga. App.) 142
State, Robinson t. (Ga. App.) 53
State V. Rogers (N. O.) 293
State, Rothschild v. (Ga. App.).^ fiOl
CA^BS REPORTBD
XT
Stated Senr t. (Os. Abp.) 61
State, SeUen t. (Ga. App.) 196
State, Sheffield t. (Ga. App.) 828
State. Smith t. (Ga. App.) 134
State, Smith t. (Ga. App.) 685
State, Staten t. (Ga.) 766
State, Thorn t. (Ga. App.) 853
State T. TinoTitB (W. Va.) 664
Stat^ Tolbert t. (Ga. App.) 131
Stats r. ToUisoh (S. G.) 621
State T. Tosv (N. m 166
State, Underwood t. (Ga. App)
State. Wade t. (Ga. ^p.) 863
State Wallace (N. C.) 1
State. Warren t. (Ga.) 836
State, Warren t. (Ga. App.) 202
Stat^ Watson T. fOa. App.) 1014
State T. Wataon (S. CJ 324
State, Weatherby t. (Cta. App.) 1014
State. Wllbam r. (Ga.) 810
State. Williams t. (Ga. App.) 854
State, WiUiama v. (Ga. App.) 1012
State. Wood t. (Ga. App.) 140
State. Woodward t. (Ga. App.) 1009
State. Wrenn V. (G*. App.)..... 202
State Board of Oontnd, Hiiler Supplr Co.
T. (W. Va.) v. .T.V..... 672
SUten T. State (GaO 766
Steele t. Atlantic Cxiaat line B. Go. (S.
C.) 706
Steiae v. Silver (Ga.) 1079
8tefflbii{lc«h Mayor, etc, of MilledgeTiUe
T. (OaO 35
Stevens t. Jtrfinaon (W. Va.) S77
Stewart t. Anderson (Ga.) 467
Stewart, Bums r. (N. C.) 821
Stewart. Bntler t. (Ga.) 816
Stewart, I«tbam t. (Ga.) 812
Still T. Creech (S. C.) 1039
Stai T. EdseUe {8,0.) 1039
Stokes T. Murray (S. O.) 741
Stone T. Plorenca (S. 0.) 23
Stowers. Carter t. (W. VaO 074
Stratton'B Adn^ t. V4m York Life Ina. Co.
(Va.) 636
Strauss, Taylor t. (S. C.) 883
StribliDS 7. Georgia By. & Power Co. (Ga.) 42
Strickland t. MiUer (Ga. App.) 48
Stoddard t. Hawkins (Ga.) 116
Sorrency t. Glenuville Supply Co. (Ga.
App.) 1013
Swaim's Will. In re (N. O.) 72
Tatnm & Gary t. Welsh (Ga.) 115
Taylor. A. Blanton Grocery Co. r. (N. C) 276
^ylor T. American Nat. Bank (Ga. App.) 106
Taylor, Atkinson t. (Ga. App.) 830
Taylor V. Bank of Tifton (Ga.) 835
Taylor T. Omega (Ga. App.) 144
Tnslor T. Stiauss fS. d) 883
Terry, Haroer t. (Ga.) 175
Theatrical Clnb t. Bernard (Ga.) 410
Thomaa t. Ellington (N. C) 12
Thomas, May t. (S. 85
Thomaton t. Victor Mfg. Co. (8. G.) 895
Thomasrille Live Stock Co., Atlantic Coast
line B. Co. v. (Ga. App.) 1019
Thompson T. Baltimore & O. B. Co. (W.
Va.) 624
Thompson t. Cedartown (Ga. App.) 864
Thompson t. Equitable Life Assur. Soc of
United States (S. C.) 489
Thompson H. H. Simmons & Co. (Ga.) 419
Thompson, Ward t. (Ga. App.) 1012
Thompson, WeUs t. (Ga.) 823
Thorn t. State (Ga. App^) 853
Thomqnist T. OtAo^rpe liOdge Vo. 1
(Ga.) a086
Thornton t. mtchooek (Ga.) 179
Thrasher t. Oobb Beal Estate Od. (Ga.
App.) 254
Thurman. Gem Knitting MlUs t. (Ga.).. 408
TidweU T. Central of Georgia R. Go. (Ga.) 898
Tinkling Land A Improrement Co., Bragg
T. mu> 641
Tinortts, State t. (W. Va.) 664
Titus, Granite Bride Co. t. (& O) 640
Pag9
Tolbert r. State (Ga. App.) 131
ToUey v. Pease (W. Va.!..-- lU
ToUison, State t. (S. O) 521
Toney, State t. (N. C.) 156
Toole T. Davis (Ga. App.) 865
Town of Albemarle. Asbary t. (N. C.).... 146
Town of Hamlet, Dockery t. JN. C.) 13
Town of Omega, Taylor t. (Ga. App.) . . . . 144
Town of Piedmont Mineral Ciounty Court
T. (W. Va.)..... 63
Toxaway Hotel Co., 3. L. Smathers & Co.
y. (N. a) 224
Tremere v. Barfield (Ga. App.) 720
Tribune-Herald Co., McCormick t. (Ga.
App.) 779
Trippe T. W. J. Bell & Co. (Ga.) 126.
Trigg Co., United States t. (Va^.
Trustee at Catawba CoUsge t. Fetxer (N.
C.) 1B2
Tucker t. Clinton Cotton Mills (S. a).. 690
Tucker, David v. (Ga.) 000
Tyler, CulUn t. (Ga.) 332
Tyner, Wynn & Roblnaon r. (Ga.) 185
Dnderwood t. State 03tL Am.}. ...HOB
United Cigar Stores Co. t. McKemde
(Ga.) 1006
United States T. WilUam R. Trigg Co.
(Va.) 642
United States Coal & Coke Co., Fink t.
(W. Va.) 702
United States .ridelity & Gu&ran^ Co. of
Baltimore Md., Rosenberg v. (Va.) 657
Usher t. Uarrelson (Ga. App.) 852
Taldosta, M. ft W. B. Co., Soott t. (Ga.
App.) ; 784
Vanderbilt t. Roberts (M. C) 150
Vann, Mayor, etc., of Cedartown T. (Ga.
App.) 820
Vamador^ Lothridge v. (Ga.) 721
Vaughn v. Wright (Ga.) 123
Venable, Hood t. (Ga.) 1078
Ventrees. Srochl y. (Ga.) 1003
Victor Mfg. Co., Thomason y. (S. CO 895
Village of Flatwoods. Garrison y^W. Va.) 667
ViUajKe of Flatwoods, Moore y. (W. Va.).. 667
VirginiB Beach Development Co. v. Com-
monwealth (Va.) 617
Virginia By. & Power Co. y. Ferebee (Va.) 556
Virginia Safe Deposit & Trust Corp.. Cam-
den y. (Va.)....-. 606
Virginia-Oaroliaa Chemical Co. y. Bou-
chelle (Ga. App.) 51
Virainia-Carolinti Chemical Co. y. Rylee
(Ga.) 27
Virginia & O. S. R. Co. T. Seaboard Air
line B. Co. (N. C.) 68
Wade y. State (Ga. App.) 863
Wadley y. Oertel (Ga.) 012
Wadsworth Land Co. T. Piedmont Traction
Co. (N. C.) 297
Wadsworth Land Co. y. Piedmont Traction
Co. (N. 0.) 299
Waldrep, Wooten y.JOa.) 125
Walker, Jordan y. fVa.) 643
Walker y. Boyater Guano Co. (Ga. App.) 478
Wallace, State y. (N. C.) 1
Waller, Columbus B. Go. y. (Ga. App.) ... 52
Walls, Bowling y. (W. Va.) 791
Walters, Davia t. (Ga.) 838
Ward y. Thompson (Ga. App.) 1012
WardeU y. Birdsong (Va.) 564
Ware & Harper v. Myrick Bros. (Ga.) 106S
Warfield, Keenan (S. C.) 16
Warfield & Co., Hicks t. (Ga. App.) 1096
Warren t. State (Ga.) 836
Warren r. State ((3a. App.) 202
Watson y. State (Ga. App.) 1014
Watson, State v. (S. CJ 324
Wataon y. Whitehead ((3a. App.) 50
Walters r. Lanford (Ga.) 847
Watts T. Hermitege Cotton Mills (S. C). . 798
W. D. Barber & Son y. SingletaBr~<Ga^
ZTi
78 SOUTHEASTERN RBPOBTBB
Pact
Weatberly Lmnbei Go^ Bobson & Evans
T. (Qa. App.) ^ eiO
Welch, Halt v. (VaJ 573
WellB T. Du Bose (Ga.) 715
WeUB T. Thompson (Ga.) 823
Welsh, Tatnm & Gary (Ga.) 116
W. E. Parsons & Brc, Alpine Safe & Lock
Co. T. (Ga. App.) 1023
Wratennan v. Champioa Fiber Co. (N. C.) 221
Western Union Tel. Co., Bethea v. (S. C^ 742
Western Union TeL Co., Robertson v. (S.
C.) 97T
Wheeling Can Co., Byrne t. fW. Va.).... 758
White T. American Nat Life In*. Co. (Ta.) 582
White, Chilton v. (W. YA.) 1048
White, K. O. Campbell Coal Co. v. (Ga.)..1009
White, Smith v. (W. Va.) 378
White & Cochran, Pearson t. (Ga. App.) 864
Whitehead, Watson t. (Ga. App.) 50
WhiteharstT. Mason (Qa.) 938
Whitfield T. Means (Ga.) 1067
Wilburn t. State «9b.) 819
Wilcox, McMillan r. (Ga. App.) 270
Wiley T. Wooten (Ga.) 835
Wilkiu T. Hilton'Dodge Lumber Co.
(S. C) .873
.Wilkinson T. Anderson (Oa.) 457
William B, Trigs Co., United States t.
(Va.) 642
Wmiams T. Chatham Beal EsUte ft Im-
provement Go. (Ga. App.) 869
WilHams t. Hatcher (S. C.) . . . . « 615
WilUams, Maloy ((3a.) 1054
Williams t. Kaper (Oa.) ^
Williataa y. State (Ga. App.) 854
Williams t. State (Ga. App.) 1012
WiUiamsburgh City Fire Ins. Co., 01ik»
V. (W. Va.) 746
Williamson r. Glen Alum Goal Go. (W.
Va.) 94
Williamson, Higdon T. (Ga.) 767
Wilson, Crawford v. (Ga.) 30
Wilson, Douglu t. (Ga. App.) 60
Wilson T. dS«7 (Oa.) U4
I Pam
Wilson T. Wilson (Ga.) 41
Wilson Lumber & Milling Co. t. Atkinson
m. a) 777. 212
Wimbish, Hartford Fire Ins. Go. t. (Ga.
App.) 265
Wimbum t. Viake (Ga.) 717
Winding Golf Colliery Ca t. Campbell (W.
Va.) 7 384
Winkles, Brooks v. (Oa.) 129
Wiseman v. Crislip (W. Va.) 107
Witt V. Sims (Ga.) 467
W. J. Bell & Co., Trippe v. (Ga.) 126
Women's Wear Shop, Brftnd »u» Co. t.
(S. 0.) 446
Wood V. State (Ga. App.) 140
Wood T. Wood (Ga.) 41«
Woodall, Central of Georgia R. Co. t. (Oa.
App.) 781
Woodley, Horsley t. (Ga. App.)... 260
Woodson T. Pauflt (Oa.) 35
Woodward r. State (Ga. AppJ 1009
Wooten V. Waldrep JOa.) 123
Wooten, Wiley y. (CSaJ 335
Workman, Baker v. (W. Va.) 670
Wrenn, Gnlpeper Nat. Bank r. (Va.) 620
Wnnn t. State (Ga. App.) 202
Wright T. Brunswick (Ga.) 839
Wright. Moon v. (Ga. App.) 141
Wright, Vaughn t. (Ga.) 123
Wybe T. Jefferson Standard Life Ins. Co.
„(S. C.) 74B
Wynn & Robloson t. Tyner (Ga.) 185
Wysong & Miles Co., Edwards v. (Ga.)... 116
Yadkin Lumber Co, ▼. Bernhardt (N. G.) 486
Yancey v. Lamar-Banktn Drag Co. (GkL)..1078
Yeargin v. Dye (Ga. App.) 831
Yorke Furniture Co. t. Southern B. Co.
(N. C.) 67
Youmans v. Moore (Ga. App.) 862
Young Men's Gbristian Ass'n T. Estill
(Ga3 J076
Zeigler, Falrey t. (SL O) 797
REHEARINGS DENIED
[OasM fat lAldi rehearings hare been denied, vltbont l^e rendition of a written o^nhn, iliiee
the publics tloQ <a the original opinions In previous voluzaes of this Beporter.]
TIBOINIA.
Adams T. Booker, 77 B. BL 611. Moore t. Harrison, 76 E, B. 920.
Colonial Cool ft Coke Co. t. Beam, 77 S. E. Norfolk ft W. B. Ga t. Interstate B. Co, 76
00& S. E. 940.
Jptpr V. VintoD-Boanoke Water Go., 76 S. E. Wooddy t. Taylor, 77 & B. 49a
921.
Digitized by Google
THE
SOUTHEASTERN REPORTER
VOLUME 78
(162 N. a mi
8TATB et sL T. WAIjL^CE et aL
(Soprame Oonrt of NorA OamUna. May 7,
1018.)
1. WITNE88BS (I 191*)— Bdmbakd ahd Wm
— WaimiT OouicoinKUXioir— PsBaBNTATioii
BT THZBD PeBSON.
In a proBecntioti of a faaiband for theft,
a letter wrltteo by tbe hasband to his wife
when presented by a third person was admis-
sible, and was not, objectionable as a confi-
dential commanicatlon between husband and
wife.
[Ed. Note.— For other cases, see ^^tnessea.
Cent Dig. I 738; Dec Dig. | 191.*]
3. GxiMiiiAL Lav (I 894*) ~ SviDSircB TSv-
LAWFinXT Obtaihkd,
That a letter written by accused to his
wife was obtained by an onlawfnl search of
Us premise* did not render tt fnadmlsalbie
•gainst him.
[Ed. Note.— For other cams, see Criminal
Law, Gent Dig. H 876, BTBTdSc. Dig. | 894.*]
8. Labceht (S 55*)— Evidbrcx.
In a prosecation for larceny of a money
package, drcumstantial evidence held sufficient
to sustain a coUTiction.
[Ed. Note. — For other cases, see L*rceny,
Cent H U2, 164. 166, 167-169; Dec
4. Cbiuiitai, Law (| 838*}— BTtDBNCB— Ma-
nSUALITT.
In a prosecQtlon for larceny of a money
packa^ from an express company, a question
asked of a state's witness whether be kuew
what bond a servant of Uie express company,
who handled raeh ptdugee, was under, was
immaterial.
[Ed. Note. — For other cases, see Criminal
Law, Cent Dig. H 752, 763, 765, 756, 787,
788, 801, 855; Dec Dig. | 838.*)
5. Cbiuinai. Law (| 1120*) — BxoLDSion or
EVIDBNCE—OfTEB OF PBOOy— APPEAL— Re-
VIBW.
Exdasion of a question is not reviewable
on appeal, in the abseQce of anything to In-
dicate the answer expected.
[Ed. Note.^For other cases, see Criminal
Law, Cent Dig. H 2981-2837; Dee. Dig. i
1120.*1
6. Cbhumai, Law (S 861*)— Btxdbncb —
FUQHT.
In a proseention for larceny, evidence as
to advertising for defendant was competent on
the issue of flight
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. H 776, 778-786. 980-982; De&
Dig. { 851.*] "
7. Cbiuinal Law <B 829* ) —Tbial— Request
TO ChABGB— iNSTBUCnONS GiVEN.
It is not error to refuse a request to
lAarge embodied in the InatmetlMu i^ven.
[Ed. Note.— For otiier cases, see Criminal
Law, Cent Dig. I aOU; Dee. Dlf. 1 829;*]
Appeal from Superior Court, lledOwlnirg
Ooontr; Webb, Judge.
Bam Wallace and Lola Wallace were In-
dicted for the larceny of an ezpreea pack-
age cootalnliig' $1^000 in maoey. A reidlct
In faror of fleffendant Lola WUlace was di-
rected b7 tlie court, and from a conTlctttn
of Bam Wallace, he appeals. Affirmed.
The state introduced evidence Uiat a pack-
age containing $1,650, which was being ship-
ped by the Southern Express Company from
the Treasury Department at Washington, D.
0., to the First National Bank of Shelby, N.
C, was lost on the 27tli day of May, 1012, In
the dty of Charlotte. This was what was
called t)y Bfiss Martin, a witness for the
state, who held a position In the Treasury
Department at Washington, "fit money"—
that is, money fit to go back into drcnlatlon
— this witness testifying that on the 23d day
of May, 1912, she approved a package of
money, $1,650, fifty 20*8 and sixty-five ID'S,
the First National Bank notes of Shelby, this
money having been once put In drcolation
and haying gone back into the Treasury De-
partment and rendered again fit for drcnla-
tlon. The witness testified that she placed
this money in a particular kind of envelope
and sealed It the same kind of package
which was Introduced In evidence, and that
the money in the package was of tSie same
class and character of the bill Introduced
and marked "Exhibit A."
William Marsh testified that he was nigbt
money clerk ; that his records show that he
received a package containing $1,650, which
was being shipped to the First National
Bank of Shelby, N. C. ; that this package
was the one that was lost ; that he got the
package from the express messenger on
train No. 36, the tratta which came from
Washington to Charlotte; that he receiyed
the package on Satorday Tiigbt, ICay 26Ui, at
^or etter ossss «— ssnie tople andseeUon NPMBTO la Bsc Dli. A Am. XHg. Kajr-Ko. Bartas A Rv'r IndvcM
TSSJBL-^ ^ I
Digitized by V^OOg.lC
2
78 SOOTHEASTEBN BEFOBTER
7.-1S tf'dock, wlMn be tomed tt orer to J.
H. MMamr* tlie dar moiuir detk.
J. H, MasMj, me day moiii^ defk, tesU^
flea thftt be femonbeced nculirliis IhB jiadE-
ase tnm MmxA on the momliie of May 27tb,
and tliat Ua leoorda aleo dwir an entzy of
receipt of tUa peclwie. wUch entry be made
blnuelf ; Manb tocfe the parages from tbe
■aCe (bat mondnf jnat befbre be tnmed
them orer to him ; that he receipted for them
and placed them Is bis safe, and about 9 or
10 o'clock Ur. B. W. Plezlco^ tbe transfer
derk. wbose bnsbiess It was to transfer tbe
money to the Seaboard statkm, came, and be
tomed tbe packages oyer to Plexlco; he gave
it to Plexioo^ and Flexioo tocdc it and carried
it towards bis safe; that Plexlco walked
around the radiator to the door.
Bk W. Plexlco testified that he was trans-
fer deA; tbat be reoeiyed a sealed padmge
of money, $1^600, from Washington to the
First National Bank of Shelby; tbat be was
Jnst inside of Mr. Uassey's offloe when be
reeelred it; tbat wlien be got tbe parages
be went to the safe with them and dropped
the packages down into the safe; that Sam
Wallace, the defendant, was standing be-
hind him, waiting to get the packages to take
thesD to tbe wagon; tbat be dropped ttie
packages Into the safe and then locked It
and striped Inside the room ; tbat after the
safe was locked, whldi was a jwrtable safe,
Sam Wallace, tbe dtfendant, was told to get
It, and defendant carried the safe to tbe
wagon, and Van Grier drove tbe wagon to
the Seaboard depot; tbat when tbe witness
got to the Seaboard depot, the train from
BnUierfordton came in; be <q>ened tbe safe^
took ont the contents and pnt them in bis
book, ai^ bad tbe driver. Tan CMw* to
drive bim across to the car; tbe defendant
Sam Wallace was standing near the car
door, and tbe witness stepped ri^t ont of
tbe truck into tbe car door ; tbat the witness
then gave tbe messenger on tbe Seaboard
train bis book to algn for, and be found that
tbe package of money was gone; tbat tbe
witness looked in tbe car, went back to bis
safe, and also followed over tbe route to see
if be bad dropped it ; be did not And it, and
has never found it
Mamie Orawford testifled: Tbat on tbe 8tb
day of August, 1912, she saw Sam Wallace
at tbe bouse ot a woman named Bose Chest-
nut and asked Bam for a nl&uH ter street
car fftre. Tbat Sam Wallace gave ber a
920 UU and told ber to get It dianged and
she could have tbe idckeL Tbat sbe took It
to Benlab Carpenter, who was on her way
up town, and asked ber to get it changed.
That Beulata came from op town and gave
her the change, and then they took it up to
the house vrhete Sam Wallace wa& Beulah
went with her to where Sam Wallace was,
and told Sam tbat idie got Uie money chai^
ed np town at tbe express office. That the
man queatioaed ber about It and looked like
be did not want to give her the diange.
Sam asked ber wbat they said, and die said
tbcy a^d ber wbem Ae wot OOm money.
Sam said. "Why didn't yon tell him tbat
your iKidiand give It to yon?" Tbat nothing
more was said onto some one said, "Here
comes the expressman and the poUce," that
Sam farther canUoned her, -If they ask yon
where yoo got tbis maoey, tell then tbat
your bosband gave It to yon." Benlab mid,
"I cant ten them that; because I bavoit
got no husband.** Sam got up and went out
of the room, and did not come back while
witness ms there
Beulah Carpenter saw tbe witness Mamie
Crawford, on tbe 8tb day of August, 1912,
receive the |20 bill which she had dianged
at tbe Sonthem Eqwess office Tbls was Ibe
bill which was Identifled by Jdba W. Hatley
aa tbe UU that be changed. The wUness
said that the man at the express office asked
ber who* she got tbe bill, and she told him
tbat a man gave it to ber. Sbe also testi-
fled that she "came about getting Into trou-
ble about It,** and Sam asked bw why sbe
did not say that her husband gave it to bw ;
that two men came down the railroad; and
that Sam went out the door, and afterwards
she did not see Um until tbe trial at the
recorder's court.
Beulah Pressly testifled tbat she was at
the same place, and corroborated Beulah as
to what Sam said, and further stated tbat
some one said, "Tbe police la coming** and
Sam went out the door.
William Young testifled that he was at
Rose Chestnut's house on the same day that
Sam was there ; that a girl asked Sam for a
nickel ; tbat he went out on the porch and
took the money out and went in the house;
that there were three $20 bills; he took one
of them off and gave it to the girl; that he
(the witness) was In the yard when the girl
got b&ck with the change ; be saw Sam leav-
ing tbe house, going a trot; that at that
time tbe poUoanan was coming in at the
back.
Tom Brown, a colored porter who is run-
ning on the Southern Railroad, about August
1, 1912, said: That Sam Wallace got on the
train at Grlffltba, about four miles from
Charlotte, at 6:40 or 6:50 in the morning.
This was the time that Sam left Charlotte.
That he went through Chester to CoruwalUs.
John W. Hatley said that Beulah Carpen-
ter brought a $20 bank note issued by the
First National Bank of Shelby to the express
office to get It changed; that he took tbe
number and asked wb^ she got it; he gave
her tbe change for It and turned It over to
the cashier.
Thore was evidence that Lula Wallace,
wife ot Sam Wallace, paid W. O. McDonald,
fnnilture collector, about June 11, 1912, a
$20 bUl when be went to collect $1.
l^iere was evidence tbat mi July 28, 1912,
Lula Wallace gave Mra W. B. Moore a $20
bill In payment of a bUl foB^9& i
Digitized by VjOOglC
N.O)
STATB T. WALLAOB
3
There waa evidence that the defendant
Sam Wallace had a $20 bill on an excursion
which went to Mooresrille, about the 26th
of June.
There was evidence that he defendant was
arrested twice prior to his arrest In Septem-
ber; that he was arrested once or twice after
the excursion to MooresvlUe; that the wit-
neas Jtduison talked to Sam atraut the money
business, and he denied having bnt "75 cents
to hla name." After he had been arrested in
October and asked to account for the $20
bill which he gave Mamie Crawford, he stat-
ed that he got this bill on an excaradon train
to Mooresvllle.
There was evidence that the defendant had
three front teeth crowned with gold before
he left Charlotte, and that after he was
found the crowns had been taken off.
For the inurpoae of showing the rigid busi-
ness methods of the express comimnr, and
for all other purposes tor which the question
ma7 be competent, the defendant asked the
staters witness Marsh. "Do yon know what
bond Plexlco was nnderT* Upra objection
bf the state this question was excluded, and
defendant excepted.
A policeman testlfled that, acting under a
search warrant, be searched the home of the
deftodant, and found there a letter which
the state ideitifled as a letter written by the
defendant to his wife. This letter was ad-
mitted In evidence; Hie d^endant excepting.
The lettw was material as impeaching evl-
d«tee; the defendant having denied on the
witness stand that he went to Tampa, Fla.,
after he leCt Charlotte and tbo letter con-
taining the statement that he bad done so.
The state Introduced evidence that after the
d^^duit left Charlotte advertlaemflsit was
made for him, and that post cards wwa writ-
ten to differait points, describing him, and
defendant excepted.
The defendant requested his honor to
diaive the jury that, "taUng all the evi-
dence Into consideration, It would not war-
rant the conviction of the defendant Sam
Wallace, and you are therefore instructed to
return a verdict of •not guilty.' " "That al-
though the evidence may excite suspicion,
even strong suspicion. In your mind that the
mala defoidant Is a guilt? persoi^ still, if
it la a rational conclusion that some other
person may have committed the crime. It Is
yonr duty to acquit him.** These requests
were denied, and defendant excepted.
His honor charged the jury, among other
things: **I am going to use the languagie as
given by the attorneys for the state and the
defendant The state, as I have stated, re-
lies upon drcumstantlal evidence in this case
and the court instructs you that each fact
proving a necessary link in the chain must
point to the guilt of the accused and must
be afi clearly and as distinctly proven as if
the whole question depended upon IL The
court further Instructs you that In cases of
this kind, where the state relies upon cir-
cumstantial evidence, in order to convict the
defendant the evidence must be clear, con-
vincing, and conclusive; It must be natural,
clear, and satisfactory. If the facts provoi
could all be true, and still not Inconslstoit
with the Innocence of the defendant, yonr
verdict should be *not ffuUty.* In order to
convict the defendant, the evidence must
naturally and necessarily imply his guilt, and
it must exfdnde the probability that some one
else might be the guilty party. If you should
find that the evidence only raises in your
minds a strong suspicion of the defendant
Sam Wallace's guilt, or that it Is not Incon-
sistent with his innocence, the court Instructs
you that It would be your duty to acquit
him,"
There was a verdict of guilty as to Sam
Wallace, and from the judgment pronounced
thereon be appealed.
Walter B. Henry, T. L. Klrlqiatrick, and
Stewart & McRae, all of Charlotte, for appel-
lant Atty. Qen. Bickett and T. H. Calvert,
at Balelsfa, for the Statet
ALLES, J. The exceptions chiefly relied
on by the defendant are to the admlsslbUlty
of the letter alleged to have been written by
the defendant to his .wife, and to the refusal
to Instruct the Jury tliat the evidence was
not sufllclent to sustain a conviction. The
objection to the Introduction of the letter is
upon two grounds: (1) That it Is a confiden-
tial communication between husband and
wife, which is excluded by the rules of the
common law upon grounds of public policy.
(2) That the letter was obtained by an Illegal
search of his premises, and to admit it In
evldmce la violative of the constitutional pro-
tection against unlawful searcnes and sei-
lures, and of the prlndpte that he cannot be
compelled to Incriminate himself.
[1] 1. The authorities seem to be uniform
that a third pwson may testify to an oral
comjnunlcaticm between husband and wlfe^
altbou^ his presence was not known; bnt
there Is much diversity of opUiion as to the
right to introduce a vnitlng from one to the
other In the hands of a tiiird person. The
cases are collected in the notes to Oross v.
State, 33 U B. A. (N. S.) 478, and Hammons
V. State, 8 Ana Cas. 916. It la difficult to
find a satisfactory reason for the distinction.
The rule of the common law Is based on the
confidential relationship existing between
husband and wife, and the Importance to the
public of maintaining this relationship, deem-
ing it wiser and to the public Interest for
some particular evidence to be suppressed
than to require the husband or wife to dis-
close a communication between them, as to
do so "might be a cause of implacable discord
and dissension between the husband and
wife, and a means of great lnconv«ilence**
(State T. Brittaba. 117 M. a 780^ 23 B.
Digitized by Google
4
78 SOUTHEASTfiK!! RBPORTBB
438. 434); but the InblblUon le u to the hus-
band or wife and not to a third person, and
if the communication by the husband Is In
writing, and la procured by a third person,
wltbont the consent or privity of the wife,
the reason for the exclusion of communica-
tions at common law no longer exists. In
our opinion the rule is stated correctly In
Whar. Cr. Ev. 8 398: "Uonfldentlal communi-
cations between husband and wife are so far
privileged that tbe law refuses to permit
eltber to be interrogated as to what occurred
in their confidential Intercourse during their
marital relations, covering, therefore, ad-
missions by silence aa well aa admissions by
words. The privilege, however, is personal
to the parties; a third person who happened
to overhear a confidential conversation be-
tween husband and wife may be examined as
to such conversation. A letter, also, written
confidentially by husband to wife, Is admis-
sible against the husband, wh^ brought Into
court by a third party."
[2] 2. The second objection Is fully met by
Adams V. New York, 192 XJ. 8. 59S, 24 Sup.
OL 872, 48 L. Bd. 675. In that case, the de-
fendant was conTlcted of the crime of having
. in his possession certain gambUng parapher-
nalia and one of flie ascdgnmenta of error
was: "First That the Tonrt erred In bold-
ing that by the reception In evidence of the
defendant's private papers seized in the raid
of his premises, against Us protest and with-
out his consent, which had no relation what-
soever to the game of policy, for the posses-
sion of papers used In connection with whlttb
said game he was convicted, his constitutional
right to be secure in his person, papers, and
^ects against unreasonable searches and
seizures was not violated, and that he was
also thereby not compelled to be a witness
against himself in contravention of the fourth,
fifth, and fourteenth articles of amendment
to the Constitution of the United States."
The court, In passing on this assignment,
says: "We think there was no violation
of the constitutional guaranty of privilege
from unlawful search or seizure In the ad-
mission of tbls testimony. Nor do we think
the accused was compelled to incriminate
himself." And Greenleaf, Bv. vol. 1,.} 254a,
is qnoted with approval, as follows: "It may
be mentioned In this place that, though
papers and other subjects of evidence may
have been Illegally taken from the possession
of the party agabist whom they are offered
or otherwise unlawfully obtained, this Is no
valid objection to their admlsBlhility If they
are pertinent to the inue. The court will
not take notice how they were obtained,
whether lawfully or unlawfully, nor will it
form an Issne to determine that question."
The court also discusses Boyd v. United
States, 116 U. S. 616, 6 Sup. Gt 624, 29 li.
Bd. 746,;and shows that tliat.decliAon Is con-
fined to the consideration of the constitution-
ality of an act compelling a party to produce
papers in an action to enforce a forfeiture
The same section from Ureenleaf, taken
from the Adams Case, Is approved In People
V. Adams, 176 N. T. 359, 68 N. E. 636, 63 Jj.
R. A. 406, 98 Am. St Rep. 675 ; Com. v. Tlb-
betts, 157 Mass. 519, 32 N. R 910: State r.
Griswold, 67 Conn. 306, 34 AU. 1046, 33 U R.
A. 227. And tbe same doctrine is declared
In State v. Puller, 34 Mont 26, 85 Pac. 369,
8 L. R. A. (N. S.) 702, 9 Ann. Caa 648;
Jacobs V. People, 117 IIL App. 206; Hart-
man V. n. S., 168 Fed. S3, 94 C. C A. 124;
Imboden v. People, 40 Colo. 142, 90 Pac.
620; and in other cases. We are therefore
of opinion there there was no error In adml^
ting the letter.
[3] The evidence was snfflclent to sustain
a verdict of guilty. If true, the defendant
had tbe opportunl^ to steal the money as
charged; he was found in possession of at
least one bill of tbe Shdby Bank of the same
denomination as that stolen; he and his
wife had other bills of that denomlnatitHL;
he made false statements about the xooaef
and tried to Induce another witness to mako
a false statement and he fled.
[4, S] We see no materiality in the ques-
tion asked the witness Marsh, and there la
nothing to Indicate what answer the witness
would lUTe made.
[I] The evidence as to adwOsing for de-
fendant was conyiettfit <« tbe question of
fOibt, hot in any event It had no relevancy
except to prove that Uie defendant was ab-
8«it from Ohariotte, and this he admitted.
[7] His honor chafed the Jury as Cavoi^
ably as the defendant was oitltled to. TbB
first prayer for instructions could not have
been given, as thore was evitoice of guilt
sufficient to be submitted to the Jury, and the
second was embodied in the charge given,
with additions favoratde to the defendant
No error.
(US N. a uo
McUSOD V. GOOOH et aL
(Supreme Oonrt of North OaroUna. April 80^
1918.)
1. Appeal aho Xlssoa H 9.34*) — Pbkstthp-
Tions.
In tbe absence of findiogs, the Supreme
Court must presume tiiat the u-ial judge found
socb facts as would support his ruling, since
it does not premnn error on the part of tfa«
trial court
[Ed. Note.— For other eaie^ see Appeal and
Error, Cent D^. H 8777-87Sl« 8782; Dee
Dig. S 934.*]
2. Appbal Airo Bbbob d 265*)— BzciFnoiTS
— Neckssitt.
An ajBsignment of error in refusing to make
fact findings must be based upon an exception
duly taken at triaL
[Eld. Note. — For other cases, see Appeal and
Error. Cent Dig. || 1461, 1636-1661; Deo.
Dig. i 266.*3
•PoroUMreMesiMiametople aads«etlo&NUUBBainDM.Dla. AAu. I»s. Kar-dj^if^^i
McCEOD Y. OOOCB
5
& Jvwnant 9 888*)— Vautioii— OionvM
— EXCVMBLB NBOLKCT.
\Vliere defendant was notified that the
term of court might end before the 2Tth and U
the court adjourned before the 2Ttb a motion
irould be disposed of before adjonmmeDtt de-
fendant's counsel was not entitled to rely ab-
solutely upon an agreement by plaintiff's coun-
sel to have the bearing on the 27th "it con-
venient to tbe judge," and bence coald not have
• jadsnMDt, entered on « bearing before that
date, Mt aside apon the sroand of snrpriH, is-
adTertence. and ezcasable neglect
FSd. Ntrte^For. other eaae*. see Jodgment,
CmL Die. I 705; Dec DJcTiSeS.*]
i. JuDOHMT (I (S69*)— Bm Judicata.
A proceeding to set aside a judgment on
the ground of excusable neglect and inadvert-
ence will not bar a snbseqncfnt proceeding to
■et it aalde upon the ground of trrefulanty.
(Ed. Note.— For other cases, see Judgment,
Cent Dig. 1 986; Dec. D^ 669.*]
Appeal from Snperior Court, OranTUla
County; Pa^le^ Jadge:
Action by NietU McLeod against J. W.
Gooch and others. From an order d^iylog
a motion to set aalde a jodgment for Oo-
fttidanta, plaintiff awwla* Amrmed.
This Is a motion to set adlde a judgment
upon the ground of "mistalie, inadvertence,
surprise or excusable neglect," under Re-
Tlaal, I 618. Tbe facts are that plaintlfT
brought tbla action to November term, 1910,
for the recovery of a planing machine with
Its outfit, alleged to be unlawfully detained
by def^dant He filed his complaint Janu-
ary 10, 1911, and defendant answered B^b-
ruary 27, 1911. The cause was continued
lUtU April term, 1912, whMi, plaintifr hav-
ing failed to appear, the court submitted the
tssues to the jury, which were answered as
funows; "a) Is the plaintiff the owner of
the pn^rty described In the complaint?
Answer: Na (2) What was the ralue of the
milling machinery, irianer, and other appa-
ratus at the time of the seizure by the sber-
IfT In tbe claim and delivery proceedings in
this action? Answer: J275" — and entered
Judgment for the defendant upon the verdict
Plaintiff moved to set asltfe the verdict and
Judgment, upon the ground of mistake, sur-
prise, inadvertence, fraud, and ezcnaable neg-
lect, which motion the court refused, and
plaintiff assigned the following errors; **(1)
To Oi» signing of the Jndgmoit dteylng the
motion to set aside tbe Jndgmoit imdered at
April term, 1912, and the Judgmmt and order
rendeiod at Novonbar term, 1912. (8) Kaln-
tlff exc^itB to the failure to set aside the
Jndgmeat rendered at April term, 1912, for
the reason that said judlgment was Told and
absolutely null, since def^dant's answer was
not verified as required by statute. (3) The
plaintiff excepts to the judgment on the
ground that the court failed and refused to
find the facts and set tbnn out In the casa"
Baggett & Baggett, of lilllngton, and jy,
Q. Brummltt, of Oxford, for appellant
ham 4k Defln, vt Oxford, for appeUafls.
WALKER. J. [1] Tliere are no findings <rt
fact In the record as to excusable neglect
The judge, at the hearing, merely denied the
motion. In the absence of the findings, we
must presume that the Judge found such facts
as would support his ruling, for we do not
presume error, but tbe appellant must show
it; the burden of doing so being upon him.
If he wished to review tho decision of the
court he should, In apt time, have reiinested
a finding of the facts. Albertson v. Teny,
108 N. C. 75, 12 S. B. 892; Hardware Go. t.
Buhman, 159 N. C. 611, 75 8. B. 781. TUm
Is the well-settled practice.
[3] The plaintiff, It is true, states in one
of his assignments of error that such a re-
guest was made and refused ; but an assign-
ment of error, as we have repeatedly held,
must be based upon an exception duly taken
during the trial of an action or the bearing of
a motion, and there is no such exception, and
nothing In the record to show that the re-
quest was made and reused. "The pr^ara-
tlon of the assignment of error is the work
of tbe attorney for the appellant, and Is not
a part of the case on appeal, and Its office
Is to group the exceptions noted in the case
on appeal, and if there Is an assignment of
error not supported by an exception. It win
be disregarded." Worley v. Logging Co., 16T
N. C. 490, 73 S. B. 107. We have, never-
theless, examined the affidavits filed by the
plaintiff In support of his motion, and find
nothing stated therein which tends to show a
case of excusable neglect The case was
pending In the court nearly two years before
the trial was had and the' judgment rendered
at April term, 1912, and no st^s were ever
taken to ascertain when It.would be called for
trial. It seems that plaintiff and his counsel
relied on the clerk or some one else to no-
tify them of the time ; but there was no legal
obligation resting npon any one to do so, and
no request was made to the clerk or to op-
posing counsd to give the Information, &o
far as appears, and no promise made
them, or ^ther-of them, to give seasonable
notice of the time when the case would be
reached in regular order on the calendar.
[91 The motion was first made before Judge
Whedbee, to set aside the judgment; but
plaintiff failed to a[^>ear at the time appoint-
ed for the hearing of the same, and he then
moved before Judge Peebles to set aside tihe
judgment and the former order of Judge
Whedbee denying the first motion. The judg-
ment was rendered at April term, 1912, mo-
tion to set it aside made July 10, 1912, near-
ly three months afterwards, and July term,
1012, set for the hearing. The defendant did
not api>ear in p«Mn or by counsel at that
term; but the court allowed plaintiff time to
flio addltloBal affidavits, and Tneeday of the
*For otim cases ■•• mom toplo aad aecUoa NUMBER Ib Deo. Dig. A Am. Dig. Ker-|
6
78 SOUTHBASTBBN BBPOBTBR
ex. a
next (NoTembo) term wu set as the day for
hearing the motion. ' It appears that plain-
tiff's counsel, by letter, ot November 1, 1912,
requested of defendant's conns^ that the
time for the hearing be dianged to Wednes-
day the 27th, and plaintiff's counsel agreed
to this date, 'if convodNit to the Jndge,"
but Insisted that the motion be heard during
Qie twm. The ooort adjourned on the
26H1, the day first set for Oie hearing. If
counsel of defendant had agreed uncondition-
ally that the motlcm should be heard on the
2701, our dedsltm might be different; but
they did not, and plaintiff should not have re-
lied upon the conditional promise, aa he was
warned by the terms of the letter that the
term might end before the 27th, and, if so, it
would not be convenient to the judge to
hear the motlw, and he was further notlfled
that, if the court did adjourn before the 27th,
"the matter would be disposed of by the
Judge before adjournment The terms of the
letter gave the plaintiff full notice that his
presaice, or that of his attorn^, was requir-
ed on Tuesday of the term. In order to pro-
tect his interests, and that delay was danger-
ous. ' He should not have taken the chance
of the court continuing in session until
Wednesday the 27th, in the circumstances, and
having taben It and lost his day in court, he
must abide the consequences. He was mak-
li^ serious charges against the defendant,
and should not have trusted to his favor or
leniency. Defendant's counsel were as liberal
towards bim as he had a right to expect and
as was consistent with their plain duty to
th^r cM&it Plaintiff should have employed
resident counsel to watch the calendar, or he
should, at least, have seen that his nonresi-
dent counsel attended the court and remained
on guard to take care of his interests, or, as
another alternative, that he had a more def-
inite agreement with plalntltTs counsd as to
the time for the hearing. Instead of this,
there was inatt^tlon and seeming indiffer-
ence throughout the progress of the case.
The undiwted facts do not show a case of
ezcnsaMe neglect White r. Rees, 150 N.
a 678, 64 8. SI 777. A party has no right to
abandtm all active prosecntloa of his case
simply because be has retained counsel to
repreaoit bim in Uie court We have lield
that he most bestow Uiat attentiim and care
upon It whidi a man of ordinary prudence
nsnaUy gives to his Important buslnesB. Boh-
«rt8 T. AUman, 166 N. O. 391, U S. B. 424.
It Menu that the d^^idant has recovwed
jodgmmt tor about $21K more than. In law
and good cmadaice, he is entitled to have,
and plaintiff's al^llcatlon to be reeved of
the Judgment a|K>ealB strongly to our aeaae
of Justice and right Defendant bought the
madilne for $2S0, paid $60, and now owes
9190 on the prlc& He has a Judgm^t for
9376. Now deducting the |60 paid by de-
fendant the latter has made a clear gain of
$215, unless he pays the $190, and we Into-
that he Is insolvent Plaintiff has the prop-
erty, to be sure ; but be must pay $216 and
the costs for the ^vllege of keying It
It apiiears to be a very hard case, but 1^
his own n^leet he has deprived ua (tf tba
power to help him, requiring the def^d-
ant to deal fairly and account for the price
of the property, which he promised to pay at
the time he received the machine and as a
condition of acquiring the title thereto. This
is taking the plaintiff's statement of the trans-
action betwem thttn. Hie def wdant denies
it, bat the fact remains that he will re-
ceive far more than he has parted with. In
law, however, he Is entitled to keep it, be-
cause the plaintiff has slept soundly upon bis
rights, and the court, therefore, cannot aid
him. If he had be«i vigilant as the defend-
ant was, and aa alert and mtas^atug^ he
would not have lost them. We are not now
passing upon the molts^ however. They may
an be with tba defodant as the facts, per-
haps, have not yet been fully disclosed.
(4] Tbe i^alntlff contended that the Judg-
ment was Irregular or taken contrary to the
course and practice of the court but he made
no such point below, and the Judge, there-
fore, has not passed upon it This proceed-
ing, though, will not bar him from moving
to set aside the Judgment, upon the ground of
Irregularity, and have it vacated. If the
facts and the law will sustain such action
by the coart McKe^-Bichardson Hardware
Ca V. Buhman, 159 N. C. 511, 76 S. E. 73L
There was no error that we can discover In
the mllnga of the court upon the motions.
No error,
CUI H. a UB)
JTACKSON et ox. v. BEARD et aL
(Supreme Court of North GaroUna. April 28,
1913.)
L Infants (| 31*)— Cokvktakcb or Wm'a
IiAND— Infant Husband— Disaitibuanci.
The joiniUR by the husband, neeesBary, un-
der Revisal 1906, | 952, to conveyance by a mar-
ried woman of her lands, being contractual, by
reason of Us estate as tenant by tbe curtesy in-
itiate, may, he being an Infant at the time, be
diaaffinoed on his arrival at majority, with the
effect of voiding the deed.
[Bd. Note.— For other cases, see Infants,
Cent Dig. H 41, 46, 60-63 ; Dec Dig. | 31.*]
2. Husband and Wifi (| 80*>— Contbactb—
Statutes.
Revisal 1905, | 2108, as to validity of con-
tracts Iwtween husband and wife, has no ap-
pllcatiim to contracts between them and a
third person.
Note.— For otiier cases, see Husband and
Wife, Cent Dig. ff 327-380; Dec. Dig. | 80.*]
8. Infants (S 31*)— Avoidance ot Deed-
Conveyance TO Tniao Pebson.
Tbe right of an infant to avoid his deed.
In a reasonable time after coming of age, is not
affected by the grantee having conveyed to a
'third person without notice.
[Ed. Note.— For other cases, see Infants,
Cent Dig. Si 41. 46, 50-63 ; Dec. Dig. | 31.*]
Qarkv C. 3., and Brown, J., dissenting.
Appeal from Superior Court, Cumberland
County; Peebles, Judge. r^^^^l.
•Tor otlwr eMW ■•• same tople sad sMUsa NUMDlEa la Dm. Dig. A Am. Dig. Kar<He. Ssrtes A Rsp'r X:
X.O)
JACKSON
r. BEABD
7
Actton by Pearl Jackson antf wife against
D. Bi Beard and another. From a jadgment
on a verdict for defendants, plaintiffs ap>
peal. Reversed, and new trial granted.
ClvU action to set aside certain deeds to
recover one undivided seventh of a tract of
land. On the hearing it was properly estab-
lished : That on the 2lBt of November, 1907.
Nancy Lee Jackson, feme plaintiff, was the
owner of one undivided seventh of this tract
of land in controversy, the same having de-
scended to her from her father, John C.
Beard, and on said day, for a small con-
sideration, executed a paper writing purport-
ing to be a valid deed of conveyance to James
B. Beard, one of def^dants, and on Decem-
ber 1907, the said grantee conv^ed the
sanw to bla brother and codefendant, D. B.
Beard. That the consideratton for said deed
from Naocy Lee Jackson was alleged to be
only fl8 and admitted by defendants to have
beoi only $3Si That Pearl Jackson, bnsband
of Nancy Lee Jackson, Joined In the execu-
tion of the otmv^ance of November 29th, and
at the time was under the age of 21. That
Immediately after bis becoming of age, he and
bis wife, a> coplalntUfs, joined In the pres-
ent salt to set aside the deed and recovor
the land, and that said Pearl Jackson bas
"done nothing since arriving at full age to
ratify or confirm said deed." The conrt, be-
ing of opinion that the infancy of the hus-
band did not In any way affect the validity of
the deed of blnwelf and wlfb, so instructed the
jury. There was verdict and Judgment for
defendants, and plainUETs ucepted and ap-
pealed.
y. 0. Bullard, of Fayetteville, for appel-
lanta H. h. Cook, of Fayetteville^ for a.p-
pellees.
HOKB, J. [1] Our statute, BeviBal, | 952,
provides that: "Every conveyance, power of
attorney or other Instrument affecting the
estate, right or title of any married woman
In lands, tenements, hereditaments, must be
executed by such married woman and ■ her
husband, and due proof or adcnowledgment
thereof must be made as to the husband and
due admowledgment thereof must be made
by the wife, and ber private examination,
touching her voluntary assent to such in-
strument, shall be takoL Borate and apart
from her husband, and such acknowledgment
or proof as to the execution by the husband
and such a<Anowledgmrat by the wUto and
ber private examination shall be token and
cwtifled as iwovlded law." This section
has been repeatedly held a constitutional and
viUid enactment, and authority with us Is
equally dedstve that, unless the formalities
estebllsbed by this stetuto are compiled with,
the deed of a married woman is absolutely
void. ConncU v. Pridgen, 1A3 N. a 443, 69
S. B. 404; Bank t. BenboWf UO N. a 781,
04 8. B, 891; Ban T. Faauln, 140 N. G. 83, 62
S. a 410. 2 L. B. A. (N. S.) 307; Smith V.
Bruton, 137 N. 0. 79, 49 S. E. 04; Ferguaw
V. Kinsiand, 93 N. a SS7; Sontberland T.
Hunter, 93 N. a 310.
In Council v. Frldgen, the accepted doc-
trine on this subject is stated as follows:
"Article 10, { 6, of our Constitution requiring
that a married woman conveying her sepa-
rate real estate shall have the 'written assent
of her husband,* the statute laws, now em-
bodied in Bevlsal, | 952, provides the manner
in which the assent of the husband must be
obtained, to wit, that the deed 'must be
executed by such married woman and her
husband and due proof or acknowledgment
thereof must be made by the wife, and her
privy examination taken,' etc.; and, thus
construed, the statutes are constitutional and
valid. In order to convey a married woman's
separate real estate or fix a charge upon It,
her privy examination Is required, and the
husband must Join In the deed. * * * A
deed executed by a married woman to her
separate real property, the name of the hus-
band not appearing in the body of the deed
or his signature thereto, proved on oath of a
snbscrlblng witness and registered on sueh
prot>ate, without her privy examination, la
Inoperative, and the written assent of her
husband indorsed on the deed does not meel
with the constitutional and statutory require-
moits necessary for ha to make a valid con-
veyance."
It will be noted that the essential require
menta to a valid deed by the fane covert
are that her husband must Join in the execu-
tion of the deed and the privy examination
of the wife must be taken, and, this act of
the hnsband b^ng contractual In ito nature,
both by the express terms of onr statutory
law and in ito operative effect, we are of
opinion that It Is subject to the general prlu>
ciple jwevaiUng here and elsewhere that the
deeds and contracte of an Infant, except for
necossaries, etc., may be avoided by bim in
a reasonable time after coming of age.
Weeks T. WUklns, 134 N. a S16, 47 S. B.
24; McCarty Woodstock iron Gow, 92 Ala.
463, 8 South. 417, 12 Ll B. A. 138; MUes v.
Lingerman. 94 Ind. 885 ; 22 Cya p. B4flL Tbe
porpose of onr statute In maklnff these
qniremento as to the deeds of fane covwt
is stated Chief Justice Smith, In Fergnstm
T. Kinsiand, supra, as foUom : "SbB require-
ment that tbe husband should exeqato the
same deed with the wife was to afford her
his protection against the wiles and Insidious
arte of others, while ber separate end private
examination was to secore ber against coer-
dtm and undue infioence firom blm." Fer-
gnsoa T. Kinsiand, supra, and Coamt, J.,
In Ball V. Paguln, supra, says: "For the pur-
pose of throwing around her the protection
of her husband's counsel and advice, the Leg-
islature declared that, with certain excep-
tions, she could not contract without the
written consent of her husband". Tbe,ti|uU^
Digitized by VjOOVlt
8
78 SOITEHEASTERN BEFOBTEB
(N.a
reason for permlttlDS Infants to avoid tbese
deeds and contracts Is tliat until tbey are 21
tbey are not supposed, to have the mental
capacity to make them, and, if the reasons
tOT snch enactment be correctly stated by
tbese eminent jurists, the principle shoald
apply, we think, when In order to Its validity
the husband is required to join in the execu-
tion of the deed for his wife's property. If
the hnaband were shown to be a lunatic and
this fact were known to the purchaser, it
would lurdly be contended that his assent
to his wife's deed would stand, and the same
reason for avoiding the deed in the one case
a^earg in the other, to wit» the mental in-
capacity to nuike a deed. '
The question has been directly presrated
to the Su[weme Oourt of Tennessee in Barker
Wilson, 61 Tenn. (4 Helsk.) 26S, and It
was there lield that "a bargain and sale
made by an infant husband Jointly with a
wife of full age. of the real estate of the
wife, is voidable at the election of the bus-
band," and In Cra^ v. Van Bebber, 100 Mo.
684, 18 S. W. 906, 18 Am. 8t Bep. 068, the
eoiut, treating of a similar question, said:
*Vo!w, it Is tme that In the oases <dted the
deeds were worthless from the beginning,
whilst here the deed la volilbble only ; but
we do not see that this makes any dUter-
ence. When the deed is disaffirmed because
of the minority of the wife, it becomes worth-
less as to the hnsband. As said in the case
last dted, the title can only be transferred
br an indivisible taktq^er, or not at alL So,
too, If the deed be avoided, as to the vita,
It Is avcdded as to tlie husband. It must
stand or tall as a whole." And c/ar own
court la not without expression on the sub-
ject The same artlcKS of onr Gonstttntlon
wUeh, in section 6, oiables a married woman,
to convey her property with the written as-
ant of h« husband, tai sectton 8 provides
that no deed made by the owner of a home-
stead sltall be vaHd without the 'Voluntary
signature and assent of his wife, signified
on her private examination, according to
law." There is nothing here said as to wheth-
er the wife shall foe over or under 21 years
old, and in Bitch v. Gates, 122 N. C. at page
633, 29 S. B. at page 902. In discussing the
validity of a deed by the husband and his
wife, who had Joined in the deed, being
privily examined and under age at the time
ot Its execution, the present Chief Justice
said : "She being nnder age, her assent,
though given with privy examination, is in-
valid; but the interest of the husband, a
mere right to call for the title, was not such
an interest as to require her I^al assent to
the conveyance to bar the husband's asser-
tion of a homestead therein." As the ex-
cerpt shows, tlie case was decided on other
grounds, to wit, that the husband's Interest
did not amount to a homestead, but the view
of the learned judge as to the validity of a
deed, under section 8 of the Constitution,
by an infants wife, seems to be in fnB accord
with the Tennessee decision. On reason
and authority, therefore, we are of opinion
that it was opoi to the husband to disaffirm
his consent on arrival at full age, and that,
having done so, the deed must be held void
as not conforming to our statute on the suN
Ject
It is earnestly urged that the act of the
husband In consenting to his wife's deed has
no operative or contractual effect, as he has
no longer any Interest In Ills wife's land;
but this, we think, cannot be maintained.
It Is true that, under the terms of our Con-
stitution, we have held that a wife may de-
vise her land and thus defeat any and aU
interest of the husband therein. Tlddy v.
Graves. 126 N. a 620, 36 S. E. 127. But un-
less this has been done the estote and Inter-
est of her husband, as tenant by curtesy
after Issue bom alive, is still regarded as ex-
istent under our law recognized both In our
statutes and decisions as a valuable Interest
In Revlsal, | 1730, where the interest of one
wlio has stored land di^ the estate Is recog-
nized. It may be lost by decree of divorce In
certoln cases. Bevlsal, H 2109-2111. By vir-
tue of snch estate he la regarded as a free-
holder. Thomiwon T. Wiggins, 109 N. 0.
S08, 14 S. fiL 801. In McGlennery v. MiUer.
90 N. a 215, It was held: "That a husband,
toumt by conrtosy, has an interest in bis
wife's land and to a necessary par^ to a
suit concerning it, and. If he refuses to be-
come a coplaintur In an action by the wlfa
to assert her r^ht to the property, he must
1^ made defendant." Pell's Bevlsal and note
to sectton 2102. In Tiddy r. Graves, supra,
ttiere are some expresslona to the opinion
which seem to favor d^endanf a poidtion,
but tiie dedston properly laeto npon the ex-
press provldon of the Gonstltotlon that the
wife may devise hex lands, and on the qnee-
tion presented here the expressions referred
to may not be allowed to reverse the entire
current of autiiorlty to the effect that a ten-
ancy by the curtesy toltlate most still be
considered an existent Interest
[2] As to section 2108 of the Bevlsal, a
provision much relied upon by defendant. It
clearly refers throughout to contracts be-
tween the husband and the wife and does not
and was not intended to affect the contracto
between the husband and the wife and tliird
parties. These, as we have seen, are chiefly
controlled by section 952 of the law as here-
tofore cited,
{9} We have not referred to the fact that
the first grantee, a brother of the feme cov-
ert, bad conveyed the property to another
brother. It does not appear whether the
second grantee did or did not have notice,
but this does not seem to affect the applica-
tion of the principle that an tofant may
avoid his deed within a reasonable time after
coratog of age. 22 Cyc. p. 651.
Few the reasons stated, we hol4 there was
Digitized by VjOOglC
XAOKSON T. BEABD
9
error In the proeeedlnss below which entltlM
plaintiff to a new trial of the canse.
New trial.
OLABK, a 3. (dlsaenttn^. The reqnlxe-
menta of Beriaal, | 962, as to tba eouT^ance
ct real estate by a married woman, have
been In erery partlcnlar aemsnlonslr com-
piled with. The deed ma executed by her
and her hnsband With doe proof tliweof aa to
both the hnsband and the wife and her
private examination duly eertlfled. The first
canae at action ailing fraud or nndne in^-
finance la negatiyed by the Jury, and there Is
no a^wal on that vAnt.
The plaintiff se^s to aet aaide the deed be-
cause he Insiata that the eourt abonld write
Into file statute words ttiat are not placed
therein by the Legislature and which are
not in the Constltntion, to wit. "the husband
being 21 years of age." He insists that these
words are Implied because a conTeyance of
xealty can tmlj be made one 21 years of
age. But "die written assent at the hu»>
band." which la all that la required by the
Constltntion and to which the degiriatnra
cannot add, and has not sou^t to add, Is not
aconreyancek
The husband had nothing to amTej. He
has no intowt In his wife's estate TtM
GcnutltDtlon expressly prohibits hla hariag
any. It says (Cbnst art 10, | 6) that "The
real and personal property of any fonale in
this state • • • shall be and remain the
Mis mtf wpofi^e property of sndi fnnale
* * * andmay be devisetf and bequeathed
and wlfli the written assent of her hnsband
may be Dom^eved by her oa if »h» ioer« im-
marrisA" If the property of a married
woman "shall be and remain her sole and
separate proper^, as V «W were immarritdt"
her husband certainly cannot bare any intw-
est thweln during her lifetime, nor acquire
any at her death unless by her wlU or dying
Intestate he succeeds thereto nnder the gen-
eral Btatabe distribution and deaoent
Such ''possibility of inheritance'* Is not an
'interest In" her property. He la fwbldden
the latter by the Cohstitntlon. Her children
or her heirs at law have exactly the same
possibility of succeeding to her pn^ierty by
devise, or In ease of intestaer* But that
does not confer on them any Interest In her
estate which requires them to Join In any
ctmreyance ttf her pnqterty. This written as*
sent does not Invest him with any Interest In
the pn^perty, but Is merely a "veto powu,**
and there is nothing In the Oonstitatioa or
In the statute which requires that the hus-
band Should be 21 years of Age. To so hold
Is for the court to write Into the Constitution
words which are not placed there, and which
the Legialatore has not attempted to place
in tlie statute^ and which would have been
unconstitatlraial If It had done so by requir-
ing an aMitlon . to the aimide requiremmt
of the Constltatlott. That simply gives the
husband a veto power. It requires n^etely
for the •Vrftten aasenf* that he shall be
her "husband" and nothing more.
It la true that Bevlsal, | 9S2, does veqnbv
that the husband must join in the deed and
proof of hla ezecntioQ most be made. If tbJs
meant that.he mu^ convey. It Is an addition-
al requirement n^ttvlng the guaranty gtvoi
by the Constitution that his "written assenf
shall be the only clog upon the wife's right
to convey her pnmerty aa If she had '*n-
malned unmarried." It can only be contmed
that the law required his formal acfeaKnri-
edgment to the deed, not as a convc^anea
Ctor he has nothing to convey), but simply as
a method of authentteattng his signaturs^
and, being sndb, fliere Is no necessity of Ills
bdng ZL years ol age. If he Is old enough
to be legally hur "husband." he la (dd moutfi
under the Constltntion to wiUihold Us assent,
or to i^TB It
The privy examination which is still re-
quired of women by the statute as to oonvey-
ances of her own property has been sustained
by tte court "mxin the ground solely that It
la not an additional dog upon her poww (tf
oonveysnoe (because the Legislature could
not add additional reqniremeate), but because
It was mertiy a means of authenticating her
signature and Is therefore allowable." Sea
V. Bea* 166 N. a 082, 72 & B. 074; Douglas,
3^ In Weathaia v. Borders, 124 M. a OBI, 22
8. E. SSL
After tlie sweeping ivovMon of the Con-
stitution whldi emancipated womoi aa to
their property ritfftta, retaining only the »•
qnlremeut of the written assent at the bns'
band as to eooveyanees of realty, tiiat provl-
don came to be oonstmed by judges who were
Imbued with the previous learning as to the
stetus of married women and whose deci-
sional to say the least, were not In aceorfr-
anee with the dear meaning of the Obn-
stitadon. Some of these dedidons have, been
overruled slnoe, and othen have been aC»
talned the majority of the comrt aoMy
upon the ground that It *'has bew so decided.'*
Connor, 3^ In Ball v. Paquln, 140 N. C. 90t
94, 02 8. B. 410^ 8 L. B. A. (N. S.) 307.
Many of these have since been cured by re-
peated acts of the Legislature conforming
the law more closely to the terms ot the Con-
stitution. But up to this time thwe has been
no deciskm oC the court that has writtm In-
to the Constltutloo, or the stetute, the words
requiring the husband to be of age when he
gave or withheld his written assent
But It is urged that It Is In the eternal m-
der of things that b«Core a man can make
himself responsible, or do any act, he must
be 21 years of age. That Is true In our law,
aa to oonveirftnoeB .and c(mtracte; but the
"writtra assent" of her husband required by
the Gonstltatlon Is neither a conveyance nor
a contract He has nothing to convey, for he
has no intereat In hla wife's land; nor is
It a ctmtraot, for there Is no conslderatloo
to him from the granteb There is nothiiv
magical in being "21 years of «geJ' 4hsf ^
Digitized by VjvJXJy It
10
78 SOUTHBASTBBN BEFOBTEB
purpose of contracts and eonTcylng and of
saffrage there must be some arbitrary age
substituted for proof of discretion which oth-
erwise would be required for each conveyance
or contract. This Is purely arbitrary and
varies In dUTerent coontrles. In many coun-
tries the age for suffrage la 25, and in some
it is 30. In Russia, and indeed In most
countries, a monarch who Is a minor becomes
of legal age, and Is invested with the highest
powers of government, at 16. We know that
In this country the Governor of one of our
territories was under 21 years of age when
he succeeded to that position under the an-
thority of the President U. S. v. Bixby (D.
C.) 10 Biss. 520, 9 Fed. 78. In that case
there Is a full discussion of the subject by
Judge Gresham, who points out that notaries
public are not required to be 21 years of
age unless in those few states where this
is specially required by statute. He says:
"While at common law persons are not ad-
mitted to full enjoyment of dvll and politi-
cal rights until they liare attained the age
of 21 years, yet Infants are capable of ex-
ecuting mere powers and as agents of mak-
ing binding contracts fOr others. Ita England
they are allowed to hold the office of park
ke^>er, forester, Jailer, and mayor of a town;
and la both England and this country they
are capable of holdii^ and discharging the
duties of such mere ministerial offices as
call for the exerdse <tf akUl and diligence
only." He then points out that Stevens S.
Mason at 19 years of age was appointed Sec-
retary of the Territory of Michigan by Pres-
ident Jackson In 1831 and succeeded to the
duties of Governor before he was 21, which
he discharged with "vigor and wisdom that
vindicated the propriety of his appointment"
We know that La Fayette was a Major Qea-
eral in the American army at 19 in the com-
mand of 4 brigades, the duties of which po-
sition he discharged with ability. We need
not multiply other well-known instances,
which are numerous. It Is sufficient to a^
that neither the Constitution, nor the stat-
ute, nor the eternal Qtness of things, requires
tlie court to write into the Constitution an
additional requirement that a married wo-
man cannot convey her realty "as If tUxe re-
mained single" unless the husband la "21
years of age." It may be that the courts
could write a better Constitution In some re-
spects than the convention with the approval
of the people have done; but that duty
was not committed to the courts, and we
should observe the plain requirements of the
Constitution, adding nothing thereto and tak-
ing nothing therefrom.
That the husband has no interest in the
wife's estate has been again and again held
by this court; but we need only cite the lucid
remarks of Merrlmon, C. J., In Walker v.
Long, 109 N. C. 510, 14 S. E. 299, In which
he says: "Const art 10, | 6, has wrought
very material and far-reaching changes as to
the rights rewecUvely of husband and wife
in respect to her property, both real and
personal, and enlarged her personalty and
power In respect to and control over her
property. It provides tliat *the real and per-
sonal property of any female in this state
acquired before marriage and all property
real and personal to which she may after
marriage become In any manner entitled
tJutll be and remain the tole and teparate
estate and property/ of »itch female, and Aall
not be liable for any debts, liabilities or en*
gagements of her husband and may be devis-
ed and bequeathed and with the written as-
sent of her husband conveyed by her a* if
she were unmarried.' This provision la very
broad, comprehensive and thorough in Its
terms, meaning and purpose, and pUUnHy
gives and secures to the wife the complete
ownership and control of her property at if
she were unmarried except in the single in-
stance of conveying it. She must convey
with the assent of her husband. It clearly
excludes the ownership of the husband as
such and sweeps away the oommon-lofw right
of estate which he might at one time have
had as tenant by the courtesy initiate. The
strong and exclusive language of the clause
above recited Is that the property 'shall be
and remain the sole and separate property
of such female.' The husband shall be, not
tenant by the courtesy Initiate, but toiant
by courtesy after the death of his wife in
case she die intestate." The court In Tiddy
V. Graves, 128 N. C. 622, 86 S. B. 127, Cited
verbatim and indorsed the above quotatloD
and negatives the argument which was in-
■is ted on, In that case, that tiie curtesy of
the huaband In the whole of the wife's real-
ty is the correlative of the dower of the wife
in one-third of the husband's realty, and hence
that if the Legislatore can confer dower it
can retain curtesy. The court referred to
the Constitution as conclusive of the abso-
lute and unlimited ownership of the wife In
her property during her lifetime and rests
the power of the Legislature to confer both
dower, or cnrt«7, after the death of a par-
ty, upon the ground that no one has a natu-
ral right to control his property after death
and that the disposition thereof whether by
will or by inheritance is purely statutory.
The decision In Tiddy v. Graves, 126 N. 0.
620, ae S. El 127, that the tenancy by the
curtesy initiate as an interest In the wife's
property has been destroyed by the ConsU-
tution and is now only a personal right to
associate with his wife, and the pmaibllUy
of inheriting (like her heirs at law) if she
dies intestate, la not only a summary of all
previous decisions, but It Is the last discus-
sion of the subject It has never been ques-
tioned since till now, but has been cited and
approved. On rehearing 127 N. 0. 602, 87
S. B. 613 (tiiough the result was changed In
that case aa the ground that It did not ap-
pear that the marriage occurred since 1868) ;
Ex parte Watts, 130 N. a 242, 41 S. K 289;
BaUyburton t. Slagle, 180 N. 0^482, 41 S. B.
Digitized by VjOOglC
JACKBON
r. BEARD
U
877; 8. e. (on rehearing 1S2 N. a M8, 44
& in 6BS; S. T. Jones, 132 N. a 1M7» 43 S.
E. 930, ei L. B. A 777, 85 Am. St Bep. 688 ;
Watts T. Griffin (Wnlker. J.) 137 N. a 670,
fiO S. E. 218; Same* t, Armstrong, 146 N.
a 6, 08 B. B. 167. 125 Am. St Bap. 4S6,
where Connor, J., says: 'Tbat ber husband
had *no estate or Interest* In tbe land, not-
wlthstandlnff Urth of issue, la settled.**
Rtchardaon Richardson (Walker, JO 150
N. a 653, 64 S. B. 610; 134 Am. St Sep.
94& The hnsband thwtfore bad nothing to
couT^, and there la no gronnd to require
Mm to be "of age." He could marry under
age and hta veto power la given by vlrtne
of marriage and not by virtue at Us ag&
Long before Walker t. Long, this court, In
Vanning t. Manning, 78 N. O. 293, 28 Am.
Rep. 824, and Id., 79 N. a SOI, in a
strong and lodd oi^ton by Byunm, J., had
affirmed the absolute ownership and Control
of tee property by a married woman and
held that the husband had no Interest there-
in of any kind whatever.
In three cases, filed on the same day and
mitten by three different Judges (Thompson
V. Wiggins, 109 N. a 608, 14 8. IB. 301;
Walker v. Long, 109 N. a 611, 14 8. B. 298;
and Jones v. Coffey, 108 N. a 616, 14 S.
B. 84). all three speaking for a onanlmous
court It was h61d that while a huaband may
atlU be caUed a "tenant by the curtesy ini-
tiate" and deemed a freeholder fbr the pur-
poses of sitting on a jury, he has In fact no
estate or interett whatever tn hta wiftfa prop-
erty and was entitled to no more than the
right of Ingress and egress, and that aho
conld. as the statute provides, sue for the
iwssesslon of her property and fbr rents and
damages thereto, without Joining her hus-
band. There are numerous oth^ decisions
to the above effect
- It being clear upon the fitee of tbe Con-
stitution and tbe aboveKilted dedatons that
the husband has "no Interest in" wife's
property which he can convey or refuse to
convey, there is nothing that authorizes Ju-
dicial legislation to read into the Constitu-
tion, or the statute, additional words which
will forbid a wife to convey hex realty, when
she haa the written assent of her husband,
without the additional clog added by the
courts "provided such husband la 21 yeara of
age.** This Is not required by the Constl-
tation, nor by the statute nor by the "re&-
son of the thing" which ^ves a husband
the veto power ex vlrtote offidl, without any
reference to bis age.
Ko opinion can be found whl<A denies the
powor of a wifo to ranvey her realty unless
hw husband is of age. McOlouery v. Mil-
ler. 80 N. a 216. which la reUed upon by
the plaintiff states in the fiiee of the opinion
that: 'The marriage took ^ace In 1880;
the wife was seised In fee of &e lands at
the time of the marriage and there were chil-
dren of the marriage bom alive. Hence the
husband has a Ufa eatate In the land as ten-
ant by the curtety intHate." The opinion Is
by Merrlmon, J., who wrote Walker y. Long,
109 N. G. 610; 14 S. EL 299, who there says
that the Constitution "weepa awav tbe com-
mon-law right of estate which he might at
one time have bad as tenant by the curtesy
initiate." The case of Barker v. Wilson,
61 Tenn. <4 Helak.) 208, speaks of a "bai^in
and sale" made by an Infant husband Jointly
with a wife of full age and Is under a Con-
stitution totally different from ours. Indeed,
Revlaal, | 2102, espedal^ restricts the ten-
ancy by the curtesy to cases "after the death
of the wife IntMtate." The absolute power
of the wife to devise her property Is set out
In the Constitution and In Bevlaal. | 2098*
wbldi oonld not be the case if the husband
had any vested Interest In her realty. Walk-
er, J.. In Watts V. Oriffln, 187 N. a 672, 60
S. B. 21& This Is further recognized by Be-
vlaal, H 2U6 and 2U7. which make the deed
of the wife of her property yaJiA where the
huslmnd ia an idiot or lonatic or haa aban-
doned ber wlthont any assent of the hus-
band, which oould not be the case If he had
any interest therein. See numerona cases
cited In Pell's Bevlsal under those sections*
holding them constitutional.
It may be noted that In all the more re-
cent state Constitutions the requirement of
the "written assent" of the husband has been
dispensed with, aa has alao been tbe case in
England and In Australia and Canada and
other Engllsb apeaklng countries. The re-
quirement of a privy examination of the wife
to a deed was aboUahed In BE«1and some 40
years ago. and also this has been followed
In Australia and Canada and in aU the states
of this Union, including all the states ad-
joining us— Vlrginta, South Carolina, Oeor*-
gia, and Tennessee — except in North Caro-
;Una and seven others. There can therefor*
be no protection and only an unneceBsary
Clog, in requiring an addition to the '*writ-
ten assent" of tbe huaband which la nof
set out In our Constitution nor in any stat
ute, ' '•
BBOWN, J., concurs In this dissenting'
opinion.
' DigHized by Google
12 78 SOUTBBASTEBN BEPOBTEB (N. a
on at. 0.00
THOMAS T. DLUNOTON et aL
(Bapmiw Court of North Gtndina. April 80,
19111.)
■ucrnroBS ard ADUNiffnuioBs 4S6*}—
AcnoHS— VENtfE.
The ODly jurisdictiooal fact alleged or ap-
pearing beii^: that the action is to recover from
defendant adminiatratrix the amoont due from
the estate to the other defendants as heirs of
deceased, pledged by diem to plaintiff to secure
their debt, and this involving an account and
settlement of the estate, Revisal 1005, { 421,
declaring the venue of actions against adminis-
trators in their official capacity to be in the
county where their bonds were given, applies.
[Ed. Note.— For other cases, see Executors
and Administrators, Cent Dig. H 172S-lT2Bi
Vte. Dig. f 43U.*]
Appeal from Superior Coart. IToraytli
County; Allen, Judge.
Act! cm by F. B. Thomas against R. C El-
lington and others. From a Jodgm^t chang*
lag the venue, plaintiff appeals Affirmed.
On motion, fonnally naade^ In apt time,
the cause was removed to the county of
Onilford, the court entering tlie following
judgment: "On written motion on the part
of the defendants to remoTO this cause to the
superior court of Guilford county, and It ap>
pearlng to the court that the intestate of the
executrix, Mrs. BalUnger, lived and died
In Guilford county, and then the executrix
duly qualified as such before the euperlor
court of GuUford county, and that the plain-
tiff seeks to recover out of the asaeta of the
said Intestate In her hands, the estate being
unsettled, It la now ordered that the motion
to remove to the superior court of GnllCord
county for trial be allowed."
Louis M. Swlnk, of Winston, for appel-
lant Watson, Buxton & Wataon* of Win-
ston, fi>r appellees.
HOKB, J. Kevlsal, | 421, enacts: "AU
actions upon official bonds or against exec-
utors and administrators In their official
capacity shall be Instituted In the county
where the bonds shall have been given, If
the principal or any of the anretieB on the
lK>nd is In the county; If not, thea In the
plaintiff's county." On the record it was
made to appear that the father of the de-
fendant, B. P. Balllnger, died resident In
Onilford comity, and that defendant Dora
T. BalUnger du^ qualified in said county
o his administratrix, and that a salt to ad-
just and settle the estate is now pending
in that county ; that plaintiff heretofore sold
to defaidants Ellington and B. P. BalUnger,
a tailoring business and outfit, and took
and holds three notes for the purcAiase price
in the as^T^te sum of ¥200, and aa secur-
ity for said notes a "pledge" of the property
sold, and as further security B. P. BalUnger
assigned to plaintiff "all his Interest due
him from tals father's estate."
It Is alleged In the complaint that the
business and property sold has been entire-
ly disposed of, and the action la to recover
judgment on liie 9200 no^ and to oondonn
and apply Qie Interest dna B. P. BalUngnr
from his father's estate to its payment.
The note for f200 being of Itself wltbln tha
JttriadlcUini of a justice of the peao^ and
the comidalnt having alleged that the prop-
erty sold had been «itirely disposed oC, the
<mly jorlsdlctlonal fiict aUeged in the ideadr
IngB or appearing of record Is an action to
recover tnm the adndnlstratriz the amount
dna B. P. Baningar from tals father's es-
tate. This InvolTcs aa account and aetUe>
meot of said estate^ and, 1^ the express
words <a the statut^ such an action must
be instituted In the oounl? where the ad-
ministrator qualified. Tba case of Boberts
T. Connor. 125 N. a 40* 84 S. BL 107, does
not conflict with this position. That was
a suit which eonooned the conduct of a
bank opraated bf an executor* and the dedr
sltm was put on the ojireBs ground that the
official acts and conduct of the executor
were In no wise involved.
The Jndgmrat r^noving the cause is af-
firmed
Afflrmsd.
OM N. a no
BHEIST MAT. BANK t. HAUBIGK et sL
(Supreme Court of North Ohi>H«ml April 80l
1918J
LurrATiOH or Acnons (| 16B*)— PATiains
BT Bbceiveb— Effbot.
Since it is only becanse payments by a
debtor recftgnlse the existence of the debt and
Us obllgatioB to pay the balance that they tall
the statute of limitations, payments by a re-
ceiver, or other representative of the debtor
for the benefit of creditors, do not have such
effect.
[Ed. Note.— For other cases, see limitation
of Actions. Cent. Dig. H 028-«0; Dee. Dig. |
155. •]
Appeal from Superior Conrt. Cleveland
County; Justice, Judge.
Action by the Shelby National Bank against
D. W. Hamrick and others to recover an al-
leged balance of (tt38.31 on a note executed
by the Ottoray Furniture Company to plain-
tiff with the other defendants as sureties.
Defendants' plea of limitations having been
sustained, plaintiff appeals. Affirmed.
Quinn, Hamrick & McBorle^ of Bother*
fordton, for appellant. Bybnm ft Hoey, of
Shelby, for appellees.
BROWN, J. It is agreed by counsel that
the only question Involved la whether the
payments made by the receiver of the Otto-,
ray Furniture Company at the time and In
the amounts shown by the credits entered
upon the note prevented the tnr of the sta^
ute of limitations.
We agree with the court below that sucb
payments do not prevent the bar of the stat-
•yor ouier cams cm same topic and secUon NUHBBB la Dee. Dig.
* am. D* Klg^<^;,^ tW^gf C
DOCKBRT ▼• TOWK OF HAMLEt
13
vte. 'Pajrmeiits made bj tnutee, or asstgnee,
for tbe beneOt ot credlton, do not bave sneb
effect 'Battle t. Battle. 116 N. C 161. 21 S.
E. 177; Cone t. HVatt, 132 N. a Sia 44 &
B. 678; Boblnson r. McDowdl, 138 V. O.
18S, 49 a. E. &43, 98 Am. SL Rep. 701. Nel-
tlier do pajmentB made by an assignee In
bankruptcy have such effect 13 Am. &
Eng. Bna 760; Bnrrtll on Asslgnmenta (6tb
Ed.) I 389, and cases tbere dted; Battle t.
Battle, 116 N. 0. 164, 21 8. B. 177. Nor pay-
ments by a receiver. 2B Cyc p. 1383, and cas-
es cited. In Battle's Case, supra, 116 N. O.
page 164, 21 S. B. 177, it is said partial pay-
ments are allowed tbe effect of stopping tbe
running of tbe statute "only wben It la nwde
under sucb drcnmstaneea as wUl warrant tbe
clear Inference ttiat tbe debtor recognizes tbe
debt as tben existing and his wUUngness, or
*t least his obligation, to pay tbe balanoe^"
Affirmed.
(let N. c. US)
DOGKERT T. TOWN OF HAMLBTT.
(Supreme Court of North Carolina. April 30,
1913.)
1. HURICIFAL CORPOBATIOHS (| 1022*)— -AO-
noRS— Pbxsbittation or Ci^ih.
Under Rertoal 190Q, | 396, providins that
all claims nrainst a ci^ shall be presented to
tbe chief omceni within two years after ma-
turity or recovery shall be barred, where a aaor
plaint showed that an nnitemlaed eWm Ibr oer-
sonal servkes was presented to the city on H«y
10, 1910, an action bronsht thereon on Decem-
ber 12, 1812, coold not be maintained, nor
conld such a claim be tbe basis of a subsequent
action if the services were rendered more than
two years before May 10, 1910.
[Ed. Note.— For other cases, see Municipal
^^rations, Cent Dig. | 2188; Dsc Dig. |
2. MxrniciPAL CoBPOKA-nom Q 1084*)—
Pleading — Deicubbbb— Grodnds.
Where it appeared on tlie face of tbe com-
plaint that a claim against a city for personal
•ervices was not rendered within two years be-
fore the nctioD was brought, as required by Re-
Tisal 1906. S 396, so that no action could be
maintained thereon, a demurrer was properly
sustained to tbe complaint on the ground that
it stated no cause of action.
[Ed. Note.— For other cases, see Manictpal
CorporatiODs. Gent Dig. H 2^03-2206; Dec
Dig. I 1034>1
B. PLKADzno (I 243*)— RnuHOS.
Where the complaint is merely a defective
statement of the canse of action and not neces-
sarily a statement of a defective cause of ac-
tion, the action should not be dismissed, but
piaintlff should be permitted to amend by alleg-
ing the essential matters.
[Ed. Nots^For other cases, see Pleading.
Gent. Dig. U 643-6&1. 820-^; Dea Dig. 1
243.*!
4. PlBADINO (I 408*)— OBJJBCnORB-'MAIOIBB
_ OP Objections.
An objection to a statement of a defective
cause of action must be raised by demurrer ot
It wiU be deemed waived.
[Bd. Note.— For other cases, see Pleading,
Cent Dig- SI 1362. 1.WA; Dec. Dig. | 408.*]
Appeal from Superior Court Richmond
County; B. B. F^lee, Judge.
Action by Mary I* Do^ery, Administra-
trix, against tbe Town of Hamlet From
a Judgment sustaining a demurrer to tbe
comidaint and dismissing tbe actfoi^ plain-
tiff aivaals. Judgment dismissing tbe ac-
tion reversed, bat ruling sustaining tbe de-
murrer affirmed.
Morrison ft McLaln, <tf Obarlotte, for afh
peUant M. W. Madi, of Hamlet, for i^V^laa-
CLARE. C. J. The plaintiff, administra-
trix of her hnsbaod, Institoted this action
December 12, 1912, against the town of Ham.
let for the "statement of an account" for tbe
services of her husband as an attorney. Tbe
complaint paragraph 7, alleges : "Ttiat
plalntiflTs intestate, previous to his death,
rendered various services as an attorney at
law to the defendant tbe exact character
of which she Is not Informed of, and tbe
exact amounts whlcb should be paid her for
said services are unlinown toiler; that she
is prepared to prove (as she is informed and ^
believes) service in various matters, but tbe
exact amount which she should receive Is
uncertain, unless defendant is to be bound
by the hill presented by Intestate on or about
May 10. 1910, a copy of which Is hereto at-
tached." The bill attached reads as follows :
"Exhibit A : Town of Hamlet to A. S. Dock-
ery, Attorney. Services In Steve Propat Har-
rington, Dobbin, Griffin, Henderson, Ohay
Hall, Nowell, Napier. Kendall, Hubbard*
Cooper, Harrington, Bennett Brown, Gor-
den, Suttle, Carter, Adams, Parham and oth-
er cases before the mayor Including retainer
for two years, drafting ordinances, etc., at-
tending several meetings of the board of
commissioners, including retainer for two
civil suits, McLean and Napier v. Town, In-
cluding services and advice In Orifflth Oaae,
together with prosecution of application for
pardon before Governor, together with costs,
aggr^tlDg $40; statements for all of which
were regularly presented to the board, less
9100 paid, $750."
The defendant town demurred :
(1) In that the complaint does not stat^ a
cause of action against the defendant
(2) That the complaint does not show that
an itemized verified account was presented
to the defendant to be audited and allowed;
therefore no itemized account was ever pre-
sented, as required by section 1385 of the
Revlsal of 1905.
(3) That the complaint does not show that
any claim was presented to the chief officers
of the town within two ^ara after tbe ma-
turity of said claim.
Taking the last paragraph of the demurrer
first, it a^ieara from the complaint tha^
even if the bill set out In Exhibit A was
sufficient In law. the denumd la barred, and
the demurrer should have been sustained.
*rerotb«r
SM a«m« topto asd ssetlon MUHBBR In Dec. Dig. * Am. Dig. Ksr*Ng. 8^«^ fyHSiO^^^LC
u
78 80DTHEASTEHN BEPOBTBB
<N.a
Rot. 896, provides that: "a) AU clainui
against the several conntles, dties and towns
Id this stat^ whether by bond or otherwise
shall be presented tp the chairman of the
board of connQr commissioners or to the
diief officers of said dtlea and towns, as the
case may be, within two years after the
matarli^ of said clalmE^ or the holders of
such claims shall be forever barred from a
recovery thereof."
In Wharton v. Commissioners, 82 N. 0. 14,
where this section first came np for review,
the court said: "The statute relied on la
not in strict terms an act limiting the time
In which the action may be prosecuted, but
It Imposes upon the creditor the duty of
presenting his claim within a defined period
of time, and, upon his failure to do so, for-
bids a recovery In any suit thereafter
brought. If the claim is presented, and the
commands of the statute complied with, no
bar or obstruction Is Interposed in the way
of Its successful prosecution." Farther on It
is said that the act Is "a restricted and con-
ditional limitation upon the right to sue."
The statute Is In elTect the same as Rev.
59, as to an action for "wrongful death,"
which has also been held to be not strictly
a statute of limitations but an act prescrib-
ing the time within which action can be
toongbt (Best v. Klnston, 106 N. 0. 205, 10
S. K. 997), and in which a demurrer lies un-
less It appears on the face of the complaint
that the action was brought In the time
limited.
The language above dted Is quoted and
approved In Royster v. Commissioners, 96
N. a 151, 3 S. E. 739. In Board of Educa-
tion V. GreenviUe, 132 N. C. 4, 43 S. K 472,
the above rulings are affirmed; Walker, J.,
saying: "We think it Is unnecessary to lur
quire or to decide whether the statute Is
strictly one of limitation, or whether it
merely imposes a duty upon the bolder of a
claim against a municipal corporation, the
performance of which Is a condition preced-
ent to his right of recovery. In either view
of the nature of the statute, the claimant,
by Its very words, is 'barred from a recov-
ery* of any part of the claim that did not
mature within the two years Immediately
preceding the date of his demand, and this
conclusion as to the effect of the statute la
all sufficient for the disposition of this ap-
peal."
[1] It ai^ears upon the face of the com-
plaint, therefore, that this claim was pre-
sented more than two years prior to the be-
ginning of this action, to wit, on May 10,
1910. , As the claim must have been mature
then, if valid. It appears upon the face of the
complaint that this action, which was not be-
gun till December 12, 1912, was not within
two years, and therefore no cause of action
is stated. The plaintiff does not aver that she
has made any demand, but on the contrary
says in the complaint, as above set out, that
she "Is not informed as to the character of
the services or the amount ttiat onght to be
paid," and that she has "asked a settlement."
But, OTen if there has been a demand allied
of BO uncertain and Insufficient a claim, It Is
not alleged (o have been made within two
years after May 10, 1910. Nor even as to
the claim filed on May 10, 1910, does it ap-
pear therelq that the services were rendered
in two years prior thereto, and hence it was
Invalid when filed and could be no basis for
a subsequent demand, if it had been made.
[2] Therefore, upon the face of the com-
plaint, the first and third grounds of the
demurrer were properly sustained by the
judge for "no cause of action stated." Whar-
ton V. Commissioners, 82 N. C. 14; Best v.
Klnston, 106 N. C. 205, 10 S. E. 997. It ts
therefore unnecessary to discuss the second
ground of demurrer.
[3] The demurrer was properly sustained.
But as the complaint is a defective state-
ment of a cause of action and not necessarily
a statement of a defective cause of action,
it was error to dismiss the action, and the
plaintiff should be allowed to amend by set-
ting out the matters required by the statute.
BowUng V. Burton, 101 N. O. 176, 7 S. B.
701, 2 L. R. A. 285; MlsseU T. Bnffin, 118
N. C. 69, 23 S. E. 927.
[4] Objection to a statement of a defective
cause of action must be taken advantage of
by a demurrer or it will be deemed waived.
Knowles v. Railroad. 102 N. C. 69, 0 S. E.
7; Ladd v. Xadd, 121 N. a 118^ 28 S. B.
190.
The Judgment dismissing the action Is re-
versed, but the action of the court In sustain-
ing the donnrrer. Is affirmed*
WALKER, did not sit.
OAS K. C. 127)
In re BIO COLD WATBB CBEBK DBA.IN-
AOB DIST.
(Supreme Court of North Carolina. ApiU 80^
1918.)
1. TiiAL a 295*)— InsTBUcnoNS— Goirnauo-
noN AS A Whole.
The entire charge, read as a whole, not
being misleading, it is immaterial that a por-
tion of it taken alone, might be some ground
for exception.
[E:d. Note.— For other cases, see Trial, Cent
Dig. SS 703-717; Dec. Dig. { 205.*]
2. Drains (i 14*)— Pboceedinos fob Estau-
LisHMEHT^AprtcAi/— Scope of Hbabino.
By expresfl provision of Pub. Laws 1911,
c. 67, 8 8, amending the Drainage Act (Pub.
Laws 1900, c. 442, § 17), appeal to tbe snperlor
court In a proceeding thereunder is to be heard
only on the ezceptionB. theretofore filed.
[Ed. Note.— For other cases, see Drains,
Cent. Dig. il 5. 6: Dec. Dig. | 14.*] '
3. Draivb (S 2*)— Statutes.
Pub. lAwa 1895, c. 206, slmplj aathorla*
ing tbe adjacent owners qn a certain creek to
clean oat and straighten its channel, somewhat
on the system under which the roads have been
•ror other cuw sm mum topic ud Mctlon MOMBEK la Dec. Dig. a Am.
IN BE Bia COLD WATER CBEEE DRAUYAQE DIST.
16
worked conscrtption of labor, even If not
repealed, is do bar to proceediiiKS onder Drain-
age Act (Pub. tiaws 1909, c 442), for a drain-
age district including Boch creek.
[£d. Note.— For other cases, see Draias,
Cent Die S 17; Dec. Die I 2;* Oonatltntlonat
Iaw, Cent Dig. | 884.]
Appeal from Superior Court, Oabarrns
Coant;; Justice, Judge.
Proceediog for establishment of tbe Big
CclA Water Greek Drainage District Object-
ors appealed to the saperior court, and from
its Jndgmait again appeal. Affirmed.
Morrison .Caldwell, of Concord, for appel-
lants. Herlot Clarkson, of Charlotte, U T.
Hartsen and J. Lee Crowdl, both of Concord,
for appellees.
CLARK, G. J. This is a proceeding nnder
the General Drainage Act, c 442, Laws 1900.
I'he pettdoners, 68 In number, filed their peti-
tion, duly signed and setting out tbe necessary
allegations. The summon^ was served upon
9 others in the district who did not Join in
the petition. Under section 3 of the act, and
after hearing objections, the order was made
establishing the drainage district and ap-
I>olnttng the board of viewers. Upon objec-
tions filed, the clerk confirmed the report of
the viewers, and an appeal iras taken to ttie
judge. At term an Issue was submitted to
tbe jury, upon the only objection filed by the
objectors, L "Ii the cost of construction
greater than the benefits that wlU accrue to
the land?" to which the jury responded "No,**
and thereupon judgment was rendered con-
firming tbe action of the clerk.
The proceedings were regular in all re-
cpects under chapter 442, Laws 1900, whose
constitutionality was thoroughly discussed
smd upheld by Mr. Justice Hoke In Sander-
Un T. Luken, 162 N. G. 739, 68 S. R 225,
which has been reaflSrmed. White t. Lane,
168 N. a 17, 68 a. B. 895; Trustees v. Webb,
156 N. a 386, 71 S. E. 620; Garter v. Com-
missioners (In re Drainage of Mattamuskeet
Lake) 166 N. C. 187. 72 S. B. 380.
[1] The objectors filed two assignments of
«rror to the charge. Tbe first of these Is
abandoned here. The other, that the court
instructed the jury to take Into consideration
tbe health of the community, Instead of
confining them to the question of health in
so far as It afiTected the lands within the
drainage district, cannot be sustained, for
the court charged that the Jury should con-
sider, "not only the increased facilities of
the land for producing crops, but the benefit
to the health of the people who live In the
fUstrict" Taking a detached portion of the
charge, there might he some ground for the
exception, but as Walker, J., said in Korne-
«ay V. RaUroad, 154 N. C 302, 70 S. E. 732:
"We are not permitted to select detached
portions of the charge, even If In themselves
aubject to criticism, and assign errors as to
thexo, when. If oonsldi»ed with the other por-
tions of the charge, they are readily explained
and the charge, in lis entirety appears to be
correct Each portion of the chaise must be
construed with reference to what precedes
and follows It * • • And this is the
only reasonable rule to adopt" Besdlng the
entire charge, we do not tUnk the Jury was
misled.
[2] The third exception Is that in thp
Judgment the derfc failed to find as a fact
that tbe lands described were "wet, swamp
or overfiowed lands, or lands covered by
water or that the drainage of tbe UuMto de-
scribed would boieflt the public -health or
be condncive to the general . welfare." The
court found as a fact that the allegations
set out in the petition were true^ and those
allegations are distinctly and clearly made
in the petition. Besides, on appeal the cause
was tried de novo, and the only issue raised
by ttie objectors was as to the cost of con-
structltni, and whether it would exceed tbe
benefits. The amendment to the Drainage
Act, I 3, c 67, Laws 1911, provides that ap-
peals in these cases "shall be -based and
heard only upon the exceptions theretofwe
filed by the complaining party, either as to
the issues of law or fiict, and no additional
exceptions shall be considered by the .court
upon the hearing €t the appeal.*' In fact;
none other was raised.
[S] Tbe objectors* last exception la that
chapter 442, Laws 1009, provided that It
should not repeal or change "any local drain-
age law already enacted or to be enacted by
the. General Assembly ot 1000." It was
nesUy debated before us whether that re-
striction applied to local drainage acta al-
mdy oiacted by the Oeneral Assembly of
1900 or to thM6 enacted iHior thereto. But
we need not pass upon the point AsUe from
the fact that this exception vnis not made
before the clerk, and therefore, under section
3, c 67, Laws 1911, uras not a matter for
consideration <m_ appeat we are (tf opinion
that chapter 206, Laws 1805, which dafend-
ants claim is a bar to this proceeding, in no
wise covers the ground of the ^tate under
which this proceeding is taken out Chapter
206, lAws 1805, slmidy authorized the ad-
jacent owners on Cold Water creek to clean
out and straighten the channel thereot
somewhat upon the system under which our
roads have been worked by conscription of
labor. The hands to be furnished were to
he worked not less than 4 nor more than 20
days In each year. Chapter 442, Laws 3009,
was a now departure In North Carolina.
It is tbe adoption of a system, heretofore
successfully operated In many other states,
for the co-operation of landowners In the
drainage of lands by forming drainage dis-
tricts, which wer« to become quasi public
corporations, for tbe purpose of Improving
the health of the district and the fertility
of the lands. Under this drainage district
system, tbe lands are assessed In proportion
16
m SOtrraSASTBRN BEPOnTEB
to the benefits derived. An organization ta
effected In each district to execute and main-
tain a system of drainage. As in every com-
mtinii7 there are sotoe who oppose any prop-
osltloD looking to co-operation for the pnbUc
benefit, this act provides therefore that,
when three-fifths of the landowners In any
proposed district shall sign a petition, no-
tice shall be Issued to the others, and If upon
namlnation of the petition, and Into the
facts, the clerk of the court shall find that
the law has been compiled with, a board of
viewers shall be appoiated who shall make
Investigation and report, with the aid of a
competent dvll engineer, and npon coming
in of the report of the viewers the clerk will
hear the objections raised and render a judg-
ment from which an appeal lies to the su-
perior court.
This act Is vrell drawn, and is based upon
the experience and the statntes of other
states, and np to date more than 100 of these
drainage districts have been oi^nized In
North Carolina with great benefit to the
health and in the Increased produetlTeness
of the lands in these districts. Together
with the increased school facilities and bet-
ter roads this new drainage system Is aiding
vastly In promoting the development of this
state. In Florida the state itself has cre-
ated a drainage district of 4,600,000 acres.
This system operating In many states has
by the co-operatlcai of landowners redeemed
a i^ast acreage.
The proceedings herein have been regular,
and we find therein no emv.
03 s. C. MS)
KDENAN T. WABFIBLD et iL
(Snpreaie Court of South Oandina. Jan. 29,
Ntnsairon (| 84*)— Ihjcnotxoh — Oommro-
non.
Complainant sued to abate a nuiBance, con-
sisting of tbe operation of a coal chute near
complainant's dwelling by the receivers of a
railroad company; the injury being occasioned
by the use of the chute in its objectionable lo-
cality. Held, that an injunction restraining de-
fendants from doing or carryiufr on the acts
and operations alleged in the complaint, or any of
them, and from operating any of the works de-
scribed, whereby further iidurT might result to
complsmant, etc, was confined to the nuisance
arising from the operation of the chute, without
more, and was therefore not objectionable as en-
joining defendants' use of tb«r traclu, where
tbe coal chute was located, for ordinary pur-
poses, after the chute bad been removed.
IJSA. Note.— For other cases, see Nuisance,
Cent Dig. H 196-199 ; Dec. Dig. | 84.*]
Appeal from Common Pleas Circuit Court
of Richland County; T. H. Spain, Judge.
Action by George Keenan against S. Da-
ties Warfleld and others, as receivers of
the Seaboard Air Line Railmy. Judgment
for plaintiff, and defendants appeal. Dlo-
mlssed.
Lylea A Lyles, of Columbia, for appd-
lauts. Frank O. Tompkins, of Columbia, for
respondent
FRA8BR, J. ' This is an actitm by tbe
plaintltF against the defendants, as receiv-
ers of the Seaboard Air Une Railway, to
abate a nuisance, to wit, the operation of
a coal chute in the city of Columbia, near
the dwelling of the plaintiff. The nuisance
is alleged to arise from coal dust, smoke
of engines, noise, etc., occasioned by tbe
use of the coal chute at its then location.
The Jury found a verdict for the plaintiff
for $1. Thereupon the presiding judge, his
honor. Judge Spain, issued an Injunction
against the defendants. The coal chute
has been removed, but tbe defendants ap-
pealed. There are several exceptions.
It was agreed by the attorneys represent-
ing the appellants and the respondent in
this court that this court ahall decide a
single question, aind that is the extent of
the Injunction contained In Judge Spain's
order.
The order provides: "It is therefore or-
dered that the defendants, their a^ts,
servants, and all persons or corporations
claiming under or as the principals of these
defendants, their agents and servants, be,
and tbey are hereby, enjoined and restrain-
ed from doing or carrying on the acts and
operations, or any of them, alleged In the
complaint In this action, and from operating
or maintaining any of the works described
In the complaint, whereby further Injury
may result to the plaintiff, hia home, prop-
erty, easements, and privileges alleged In
the complaint, and that the nuisance alleg-
ed in the complaint be forever abated and
stopped, anil that tbe prayer of the com-
plaint craving an injunction be granted."
The appellants claim that this order might
be construed to prevent the use of its traclts,
where the coal chute was located, for ordi-
nary purposes other than those Incident to
the coal chute. Tbe words, "enjoined and
restrained from ■ doing and carrying on tbe
acts and operations, or any of tbem, al-
leged in the complaint," confine the injunc-
tion to the acts alleged in the complaint.
Tbe complaint alleged that the nuisance
arose from the operation of the coal chute,
and nothing more. The order is confined to
the op^tion of the coal chute, and as it
has been removed there is nothing npon
which it can operate, except a re-eetalillsh-
ment of the coal chute. It does not bind
either party to any use of its tracks, unless
they are connected with the coal chute.
The judgment of this court is that the
appeal be dismissed.
GARY, a J., and WOODS, HTDBICK,
and WATTS, JJ., concur.
•Wot Other tnm in same ioifia and ssetion NUMBBR In Dm. Dig. * Am. Dig. Key-No. BwIm a^ep'r bid«M
Digitized by VjOOglC
B.G>
JONES T. KELLT
17
(H 8. C. MB)
JONES T. KEISLY tt'A
(Bnpreine Court of South Carolina. April 22,
1918.)
1. BnOUATIOIf OF InSTBUlCENTB Q .M*)—
HUTOAX. HlBTAKK— EVIDUVCI.
In a lait to refoTm, on tha ^nnd of
nratnai mistake, a deed coDveyiog a life estate,
ao as to make It conve; the fee, ertdence hel4
not to show mistake.
llCd. Note.— For other cases, see Reformation
or Inatraments, Oeat. Dig. II 1B7-19S; De&
Die |4&*]
^ RKiOBUAnoR or InmnnnHn (| 45*>—
MnrUAL HiBTAKK— BVIDKHCB.
That a grantee vbo obtained a deed for a
life estate paid full price for a fee does not of
itself, after the death of the grantor, justify a
RformatioQ of the deed so as to make it con-
Tcy the fee.
[Ed. Note.— For other cmm, see Befonnation
of Instmments, Cent Dig. H lS7-19tt; Dec
Dig. i 45.*]
3. Afpkal ahd IIbbob (I lOOtt*)— Habmlbss
Ebbor — BJBBOiraoDa EixcLnBioN or Evi-
DBHCS.
The error, if any, in excladlng evidence
which woatd not affect the result, is immateriaL
[Ed, Note.— For other cases, see Appeal and
Brror, Cent Dig. fS 4187-4iga, 4a07: Dec
Dig. f 105«.*]
4. WiTITEBBKS (I 112»)— COMPBTEIf or — IHTDI-
UT— SSLBA8B.
Under the statute exchidiog the testimony
where it clin in any manner affect the interest
of the witness or the interest previously repre-
sented by him, a witness who testifies to nets
that will relieve him from HabiUty Ii not com:
petent to testify to the same facta after be has
been released from liability.
[Ed. Note.— For other eases, see Witnesses,
Cent Dig. H 42&-475; Dec Dig. 1 112.*]
Wooda, J., dlaaenting.
Appeal from Common Pleaa Circuit Court
of Florenm County; & W. O. Sliipp. Judge.
Actlmi by ESLla F. Juua against Cbaa. M.
Ktily and otbm From a judgment for de-
fiHidHnts. plaiDtlfT appeals. AlBrmed.
Walter Hazard, of Georgetown, for appel-
lant Willcoi ft WiUcox and Henry B. Da-
tIb, all of Florence, for re^ndrata.
FRASER, J. This la an actlrai to reform
a deed. The complaint aUeges: That here-
tofore, to wit, on or about the 6th day of
October, 186S^ one Charles McAllister, being
then the owner thereof, executed and deliv-
ered to B. T. Moody bis certain deed, where-
by he amveyed, in conalderatioa of the sum
of $fSOO. a certain tract of land in Williams-
burg couDtgr containing 16 acres (desoiblng
the land). That at the time of the codv^-
ance above mentioned the sum of $SO0 was
the full and fair value of tiie absolute title
of said Chas. McAllister without any Umlta-
tiou or reservations. That as. idalntier is
Informed and believes the said Chas. Mc-
Allister and the said E. T. Moody both at
the time understood that said B. T. Moody
was receiving a conveyuice in fee simple
without reserratloQ or limitation, and the
said. B. T. Moody paid the eutsideratten
mentioned Id the deed with this understand-
tng ; but that on account of an error In the
preparation of the deed of conveyance (which
was prepared by a party not skilled in
such matters) Boch deed was so formed as
to convey, as plaintiff Is informed and be-
lieves, a life estate only to the said E. T.
Moody. That thereafter, by a succession of
conveyances, the land was conveyed to the
plaintiff. That Charles McAIUster died In
1870. That the defendants are his heirs at
law and the heirs of the heirs who are now
dead. The complaint prays for a reforma-
tion of said deed, and that she be declared
the owner of said land. Some of the de-
fendants answered the allegations as to a
mistake in the deed, and set up laches, etc
It was referred to a referee to take the tes-
timony. The trial was had before his honor.
Judge Prince, who in a very strong and elab-
orate decree found as follows: "Without
prolonging the discussion to greater lei^th,
it Is sufficient to say that a careful considera-
tion of all the facts established by the tes-
timony falls to satisfy me that there was a
contract between McAIUster and Moody,
wb^eby the former agreed to convey to the
latter a fee-simple estate in the property in
question, and that tlirough mistake Uie deed
which was executed by McAllister failed to
express that contract" E. T. Moody was
offored as a witness. Moody had warraated
the title, but during the taking of the testi-
mony, after he had testified, he vraa given
a release under his vrarranty, and be went
back on the stand, and reafflrmed his state-
ments. His honor ruled out the testimony
of Moody, and held that the plaintiff was
guilty of laches, and that the claim was
stale. In the view that this court takes of
this case^ it will only be necessary to con-
ei6er the ninth exception, and we will con-
sider that exception as raising the Initial
question In this case and in its consideration
will consider the testlmcmy of Moody. Has
the plaintiff shown that the deed from Mc-
Allister to Moody does not contain tlie em-
tract between the parties?
[1] There must be a meeting of two minds
In order to make a contract The com-
plaint recognizes this, and alleges that both
Charles McAllister and Moody understood
that B. T. Moody was receiving a convey-
ance in fee simple. Moody testified: That
he married a granddaughter of Charles Mc-
Allister. That he rented the land in dispute
from blm at f6 per month. That W. Q. Mc-
Allister, a son of Cbarles and the uncle of
Moody's wife, suggested to him that he buy
the place, and that he talk to Charles about
It That be (Moody) went to see him
(Charles), and the old man talked farorably
about the sala .That some time afterwards
he saw W. G. McAIUster again, and told
Mm that the old gentleman had talked fa-
vorably about It That W. G. McAllister told
him that ha <W. G.) would sea bis fiittier,
Tat other easM ise asms Uvle and sseUon NUHBBR la iW Dig. * Am. JUg. Kmr-t&i^MitH^ KaVUiil^MC
18
78 SOUTHEASTERN BEPORTEB
(s.a
and try to get tbe deed for him (Moody).
That six moDtbs afterwards be was given
tbe deed by W. G. McAllister, and executed
the notes for the purchase money. W. G.
McAllister Is also dead. All that Is known
of Charles McAllister afterwards Is that he
collected some of tbe notes, and lived In that
conunonlty until 1870. There ia no word of
direct evidence to thow toKat Charle$ M<y
AllUter tofended by the oomoeyawse. It i>
tuUd, however, that Charles McAllister lived
close by, and conld bave seen Moody cut
down the timber, and there is no evidence of
his objection. That fs true, bat Moody tea*
tlfled that tbe timber was "very poor. It
bad beoi colled ovor, and It had pretty well
all been burnt over." It is said that tbe
deed was drawn by W. O. McAllister, and
be was not skilled in sacb matters. That Is
true, bat In 1872 Moody sold tbe land to
M. L. Jonee. This deed is also said to bave
been written by W. O. McAllister, and con-
veya a tee and a warrants tbat Is signlfl-
cant Judge Prince tblnks that tbat warran-
ty indicatea a donbt as to tbe snffldency of
the tlUe. la ttils we cannot say be was In
error. W. O. McAllister used tbe word
"beCrs" in IST:^ and used it in an Inartificial
oonv^nce. Gharlea McAlUster was then
atlva and in that conummity. If the deed
dia not convey what he Intended to convey
and what Moody intoided to purchase, that
was the thne to correct the mistake.
[2] Bnt tt is said Moody paid fall price
for a fae, and that entitles lilm to a convey*
nnoe in fee. Foil price standing alone has
never bem held to be conclusive tJiat it was
tbe intenUon to convey a tea. If a fall
price la Bufflclent of Itself to carry a fee
aftw tlie death of the grantor, then a small
price ^ter the deaUi of the grantee ought to
cut down a fee to a Ufa estate or a term
<rf years. That would be a very dangerous
doctrine in this states where land valoee
are raitfdly Increasing. Tbat Is not tbe law,
and we bave not been refbrred to any case
tbat so holds. The witnesses are not agreed
as to whether it was full price or no. Mood^
paid $900 for land with a dwelling house
on It wfalch ratted for more than 7 per cent
on 91.000. It is said Charles McAllister did
not make any objection to the sale to M. L.
Jones. There la no evidence of any objeo-
don, but be bad no right to object as long
aa Moody lived. Moody lived until thia case
was nearly ready for a bearing before Judge
Prince and testified In the caae. Thia court
cannot find any evidence to contradict the
plain Import of the deed. 13iere is no evi-
dence that Charles McAllister ccmtracted to
convey a fee, and none that even Mr. Moody
stipulated ft>r a fte. There was conflicting
evidence as to what Mr, Moody thought be
was getting. It will be observed that Oie
plalntUf claims that ttie deed does not con-
vey a fee almple bat a life estate, and in tbe
failure to «mvey a fee It failed to expren
the contract between the parties. The ac-
tion is to reform the deed. Tbe plaintlfi'
proved that ' there was no contract except
tbe deed, and thereby failed utterly to prove
tbe essential fact necessary to refbrm tbe
deed.
13, 4] This court holds that the appellant
has failed to prove the contract set up in
the complaint The testimony, though for-
mally ruled out by Judge Prince, has been
considered by this court as It Is all In tbe
record. It would not have affected tbe re-
sult, and tbe error, if any. Is immaterial.
It was not error. Tbe stetute of this state
excludes the testimony where it "can In any
manner affect tbe interest of sncb witness
or tbe inierett prevtovelif owned or repre-
aented 6y him." What a travesty it would
be to put a witness on tbe stand and allow
him to state what will relieve btm from lia-
bility, then release him from llablli^, and
put him bade on the stand, and ask him if
the things to which be has Jiut sworn are
true or false. Our statute prevente Just
tbat thing. There was no error in ruling out
tbe testimony of BL T. Moody.
As this court has held tbat the appellant
has failed to establish the contract, the oth-
er questions do not arise.
Tbe Judgment of tills court la that the
judgment of the cireuit court be afllrmed.
GABY, O. J., and HYOBIGK and WATTS,
JJ., concur.
WOODS. J. (dissenting). Tbe plaintiff.
Ella F. Jones, being the bolder of the deed
to a tract of land hereinafter described,
brought this action against all the heirs of
Charles McAllister for the reformation of
the title wheret^ Chariee McAllister oonv v
ed the land to B. T. Moody, under whom
the plaintiff claims. The complaint allegea
that on or about the SOt day tt October,
1868; Gharies McAUiater executed and deUv-
ered his certain deed to B. T. Moody, in-
tending to convcgr the fe»4}niple title to 15
acres of land in the Incorporate limlta of
the town of lake City, county of Williams-
burg, for tbe named consideration of |900;
but by a ndstake, caused by tbe deed having
been drawn by an unskilled person, the nec-
essary words of inheritance were omitted
from tbe deed. Tbe land was conveyed by
B. T. Moody to M. li. Jones January 28,
1872; by M. I* Jones to Pittman Bros.; by
Flttman Bros, to B. Wallace Jones, Decem-
ber 17. 1885; by B. Wallace Jones to PiU-
man Bros. April 17, 189S; by Pittman Broa
to Ella F. Jones, tbe plaintiff In this action.
May 1, 1900. AH tiie deeds made to the
land ^noe the transfer from Charles MeM~
llster to E. T. Moody have been fise-slmple
titles. The deed which the plaintiff seeks to
have reformed is as follows; "State of South
Carolina. Williamsburg County. Enow all
men by these preaenta, that I, Charles McAl-
lister, of the county and state aforesaid, tor
and to consideration of the
Digitized by '
S.0)
JONES T. KBLLT
19
dred dollars to me paid by B. T. Moody, of
Wliuamsburg county and state aforesaid,
bare granted, bargained, sold and released,
unto the satd B. T. Moody, one lot or tract
of land, containing fifteen acres, more or
less, being a part of a tract of land, con-
taining fifteen hundred acres, surveyed for
Charles McAllister and to htm granted the
14th of March, 1790, situated In Williams-
bnrg county and state aforesaid on the south-
west side of Lynches* Lake, bounded N. B.
by lands of Ann Jones, on the Oeorgetown
road, south by Charles McAllister and Mrs.
Mary Murphy's land and continuing straight
line to W. G. McAllister's line, west by W.
G. McAllister's line, north by Alder and
Charles Kelley's line to the Georgetown road,
and has such shapes, forma and bonndlngs
88 a plat doth represent Together with all
the rights, titles, members and appurtenanc-
es incident or appertaining. Him to have
and to hold from tbla day forward the above
named land against myselt, and I, Charles
McAllister, of the aforesaid connly and state,
do further bind mydelf to warrant and de-
fend against my heirs, exeentora and admin-
istrators, and all other persons lawfully
claiming the same or any part ttiereof. In
witness whereof, I So hereunto set my band
and seal this Stb day of October, in the year
(tf our Lord one thousand eight hundred ftnd
slxty-^ht, and do sign, seal and deliver in
the presence of these witnesses. Charles
McAllister. [L. S.] 8. D. McGutchen. B.
D. Isgott"
The defendanta In th^ answer deny that
the omission ot the words of Inheritance
from tiie deed was dne to mistake, and set
up as a tortlier defense "that a period of more
time than forty (40) years has elapsed since
the date of the execution of the said deed
from Charles McAllister to B. T. Moody and
shice the date of its record in the office re-
quired by law; and fbe dafbndants there-
tore submit and all^ that the original
grantee and all his successors in interest and
privies in estate, including the plalntlif in
this action, have been and are now estopped
by the lapse of time and the staleness of the
claim. Involving the loss of evidence by the
death of Charles McAllister and others,
which would make It impossible to ascertain
the true facts, and it would therefore be In-
equitable to grant the retlef prayed for In
the complaint" The case, being at issue,
was referred by consent to Charles W. Stoll,
Esq., as special referee to take and report
the testimony. The report was made and
the case heard before Judge George E. Prince
at the November term of the court of com-
mon pleas for Florence county, that portion
of Williamsburg county where' the land is
situated being now In Florence county.
Judge Prince dismissed the complaint, hold-
ing in all elaborate decree (1) that the plain-
tiff had failed to show that the deed was
Dot intended to convey a life estate to Moody
but a fee simple ; and <2) that the plalntilTa
claim was barred by her laches In presenting
it to the court
In considering these conclusions of the
circuit court, it is of prime Importance to
bear In mind that the plaintiff is not assert-
ing a claim for reformation of the deed
against bona fide purchasers from the gran^
tor, Charles McAllister, but against his heirs
at law, who can have no higher right than
their ancestor would have If he were living.
It is true, however, that even as to the par-
ties to a deed the evidence of mistake In its
terms must be clear and convincing to war-
rant a reformation. I agree that the circuit
judge correctly held that the testimony of
the grantee, Moody, to the effect that the In-
tention was to convey a fee, was Incompe-
tent because such testimony as to the trans-
actions or communications between Moody
and McAllister, his deceased grantor, would
affect the interest previously owned by the
witness. But, leaving out of view ajl other
testimony, it seems to me ttmt the deed fur-
nishes on ite face evidence clear and con-
vincing that the Intention was to convey a
fee simple, and not a life estete. It was
manifestly drawn by one not familiar with
technical forms In conv^ances, tor only a
part of the usual tenendum dause is fonnd,
and the habendum and warrantgr are min-
gled in the same paragraph. The evidoice
leaves no doubt that the draftsman was W.
D. McAllister, a son of the grantor, a plain
countryman vithout professional training in
conveyancing.
In construing deeds as in the performance
of all other Judicial functions, tlte court must
teke Judicial nottoe of tlie manners and cus-
toms of the people wliose writings th^ try
to understand; and clear conviction arising
from teUng into account such manners and
customs surely is as good as any otiier con-
viction. Having In view the manners of the
plain people of the country, It Is inconceiva-
ble that any man without legal training
would write such a deed as is now before us
when his Intention was fo convey a life es-
tate. Indeed, it seems safe to say that if
two deeds were prraented to such a man,
one to A., and the other to A. and Ms heirs,
with the statement that one conveyed a life
estete and the other a fee simple, he would
say that the deed to A. was absolute and
the deed to A. and his heirs conveyed for
A.*8 life only and after his death to his
heirs. So universal iB the custom to use the
words "for life" or similar words when the
Intention is to convey a life estete, and not
a fee, that I venture to think that there will
be no dissent from the stetement that the
attempt to limit to a life estete Is never at-
tempted without the use of such words ei-
ther by lawyers or laymen, unless the pur-
pose be to entrap or deceive^ In view of
these facte, can there be a doubt that courto
of equity should reUere flf^?^6fO(iJ^le
20
78 80CTHBA8TBBN BEPOBTBB
(B.a
vrtUch arises from Uie absurd role of com-
moD law that the use of the word "twlra" la
necessary to create a fee whenever they ean
PO8BIM7 do so wltiunit Interforing with the
rights innocwit purchasers ax credltorsT
But In this eas^ not only Is the Intention to
«onv^ absolute and not to limit to a life
«8tmte shown the absence of any e^ntisa
ltanitad(»i, bnt the lanKuage of the deed af-
flnnattrely showe that intentfoo. The words
"together with all the rights, UUes." etc.,
Indicated, If they meant anytbing, to a man
untutored In the law that all the grantor's
rl^ts and titles In the land wore conveyed
wltboat reservation. The words "him to
have and to hold from this day fortcard"
etc, meant from this day forward iadeflnlte-
ly ; that Is, without limit They are equiva-
lent to the words "to have forever." In
Johnson T. Gilbert, 18 Rich. Eq. 42. there
were no words of inheritance la the deed,
yet the court held that the clause, "I, said
Jesse C^Ubert, Senior, warrants and defends
unto Jesse Gilbert, Junior, forever, against
myself, my heirs and assigns forever," etc.,
were in themselves "satlsfoctory evidence at
the least of an executory contract for the
sale of the land In fee," and that the heirs
of the grantor bad no Interest In the prop-
erty conveyed. Looking to the deed alone,
It seems to me that this case Is conclusive
authority for holding that the Intention In
the present case was to convey a fee simple
The case of Austin v. Hunter, 85 8. a 4T2,
67 S. E, 734, was decided on the same prin-
ciple. In Sullivan v. Moore, 92 S. a 806, 75
S. B. 497, the court said: "The deed of con-
veyance • * • was written by Jared D.
Sullivan, plaintlfTs husband. Unless the
■courts must look away from the obvious, they
know that It la probable almost to the point
.of certainty that In writing a deed no lay-
man would express the conveyance of a life
•estate by the mere omission of the word
'heirs' In the premises and the habendum
when using it In the warranty, and that no
lawyer would do so, exc^t one wholly pos-
.sessed with the spirit of prlggishness." In
Trustees y. Bryson, 34 S. C. 401, 13 S. E.
'619, and Sullivan v. Latlmra, S8 8. a 417,
17 & B. 221. It waa held that a paper in
form a deed and purporting on Its face to
be under seal furnished ctmclosive evidence
■that the parties Intended to seal it, and that
- in eanity it would he regard a good cod>
veyanca The ruling was based on the court's
knowledge that reasonable men would not
~ make such a pKfive wltboat tntoidSng to seal.
It seems to me that fiie court must know
■ with equal cwtalntgr Uut the people of this
. country do not make papers of this sort
when Uuy Intmd to convoy a life estate bnt
■ only when ttiey Intend to convey 'a fee sim-
ple, and that the mle of the cnmnmi law
that the use of the word "hdrs" la neo-
.^esBary to omvey a fee Is In modwn life a
4aetloa aa abanrd aa would ba Ita ancl«it con-
temporaries^ flnea and common xecoverlea.
With the Intention to convoy a fee mado
manifest beyond doubt fMm the teraw of the
deed Itself, it la by no means necessary for
the plalntUf to iwove that dio paid full
valn^ for the evidence of value la Important
only aa showing the Improbability of the
grantee paying the full value of the fee for a
life estate. If that intention Is evident from
the deed or otherwise, the plaintiff will not
be denied relief merely because the grantor
chose to take a small price When the evi-
dence of value Is considered In view of the
well-known depression in the price of land,
and the backwardness of the country where
it is situated in 1868, it seems to me the clear
preponderance favors the conclusion that
$500 was a full price for the fee-simple title
Certainly, It produces a clear conviction that
$500 would have been a very excessive prico
tor the life estate.
There are other circumstances showing
that the parties thought that McAllister had
parted with all Interest in the land. The re-
nunciation of dower was in the regular form
to Moody and his heirs. Moody cut and re-
moved timber from the land, and there was
no evidence of objection. He conveyed by
fee simple to M. L. Jones and W. G. McAllla-
ter, the son and agent of Charles McAUIstei^
wrote the deed, thus Indicating his belief
that Moody had the fee simple There ia
not a particle of evidence that Charles Mc-
Allister or any of hia heirs In ail the long
period since the deed was made to Moody,
and in view of all the changes In ownership
ever made or referred to any claim to a re-
version. The only other obstede to the ref-
ormation of the deed Is the alleged laches
of the plaintur. The plaintiff acquired tiUe
to . the land from Pittman Bros., through
Buccesrive conveyances from Moody, on May
1, 1900. There Is no claim that she had
actual knowledge of the defect in the OUe
until 1909, when It was devel(^>ed In an ac-
tion for specific performance of an agreement
for exchange of this land fw another lot
brought by the plaintiff against G. M. Kelly.
Hie plaintiff and those under whom she
daima have been In possession of the land
alnoo the conveyance from Charles McAllis-
ter to B. T. Moody. Bach grantee In these
sucoessiTO conveyances acqidred the rlghte of
his grantor, InelnOlng the right to have the
title reformed. There Is no evldoue Oiat any
of the parties, titba plaintiff m defendants,
knew at the defect, or that Charles McAllis-
ter or the defendants, his heirs, ever made
any <daim that they had any interest In the
land until the defect was discovered and in-
troduced in the course of the litigation with
Kelly. It is true that under the recording
lavra at tbe stete the plaintiff la duugeablo
vrlth constructive notice of the defendant's
dalm aa h^rs at law of Charles McAllister,
but it by no means follows that ahe or her
grantors an chargeable In a
Digilized by '
&a)
OIBBE8 BIVKBfl
2i
with ladiM in not knowing of tbe defect in
the deed, and asking for Ita reformatloB at
an earlier date. "Aa a definition of laches,
however, It is raffldaitly correct to say that
It la the neglecting or the omitting to do what
In law Bhonld have been done, and this for
an unreasonable and onexi^ned length of
time, and In drcomstanees which afforded
opportunity for diligence. * * * It Is
manifeat, therefore, that the period of time
which shall be a bar in eQuity most needs
Tary with the varying dxcnmstances In the
different cases. Thus, to constitute laches
In a case showing gross negligence, a lesaer
lapse of time would suffice than in a case of
ordinary carelessness and Inattention. So,
too, would the length of time deemed aofBr
tSent be greater or less according as tbe erl-
dence In the case might show whetlf^r the
party to whom laches Is Impated actoally
knew of the opportunity he neglected, or
was simply presnmed to have known." Babb
T. SnUlTan, 48 S. a 436, 21 B. B. 2n.
It would be a hard role for courts of
equity to deny to landholders relief against
th^ grantors from technical defects In old
deeds like this, on wtalCh their titles de-
pend, on the ground of laches, nkerely be-
cause mch defects which appear In the rec-
ord hare remained nndiaooTered for many
years. In this case It seems to me pe-
culiarly hard and inequitable. Am I haTe
andeuTored to show, the defendants have
nothing but a naked technical legal dalm,
based on a paper which ahows on Its face
tbe claim to be grossly inequitable^ and Its
assertion most unjust; the jdalntlff bought
without knowledge of tbe defset, paying full
Talne, and brought this action almost imme-
diate after the discovery of the technical
defect in the deed ; and the Issue la betweoi
the plaintiff and tbe beira of tbe grantw
who made the defective deed, no Innocent
purchasers being InvolTed.
All the equities being, In my opinion, on
the side of the plaintiff, and the defendants
haTing nothing to 8UMK>rt their unjust claim
except a naked legal technicality, I think
the Judgment should be reversed, and tbe
deed reformed according to the prayer of the
complaint.
<H & o. SO)
OIBBBS T. RIVERS.
<8apreme Coort of Sonth Carolina. Aprtl 2L
1918.)
JVDGicxNT (J 614*)— Issnxs— Ru Judicata.
Code <St. Ptoc I 821, provides that In
every action to recover personal property
pledged for debt the jury mar find the amooDt
dae plaintiff, and defendant BnaU be entitled to
pay such amount and costs, and free the prop-
erty from incumbrance. Plaintiff saed In re-
plevin to recover certain machinery under a
mortgage and recovered judgment for the sur-
render diereof, which judgment also fixed the
amoonrof the debt_damages for detention, etc.,
and was satisfied '%y tbe delivery of the ma-
chinery and wymeat of the costs," Flalnttff
then wdd tbe naehinery on foreclosure, recdv-
ing.but a part of the debt, and then sued to
recover tbe balance. Beld, that the finding of
the amount of the debt and damages In repler^
in was only to enable defendant to free the
property it be desired to par the debt, and that
the Batisfaction of that Jaagment was no bar
to an action for the balance of Qie debt.
[Ed, Note,— For otiier cases, see Judgment,
Cent Dig. H 112&-112»; Deo. Dig. 1 614.*]
Watts, J., dlsseatiag. .
Appeal from Common Pleas Circuit Court
of Hampton County; John S. Wilson, Judga
**To be ofBdally reported."
Action by A. SI. Glbbes, trading as Glbbes
Machinery Oompany^ against J. T. Rivers,
rrom a Judgment for defendant, plaintiff
appeals. Reversed.
J. W. Tlncait, of Hampton, for ai^>eUant
W. O. C^mor and J. P. Xoomans. both of
BmnsoDt fbr xofpondenL
HTDRIOK, J. To clearly understand the
Issue Invfrived, a brief statem^t is neces-
sary. On Uarch 20, 1911, defendant gave
plalndfl two notes for 972.03 and I7S.4S,
respectlvBly, and secured them by mortgage
of a planing madilne^ for the purchase
price ot which they wore givm in pfirt pay-
meat The notes were not paid at maturity,
and, idaintiiff^s demand tor posseraion of
the planer. In order that he might sell it
under tbe mortgage, having been refused,
he brought an action of claim and delivery
against d^iendant and J. CL Dowllng <who
seems to bave had actual posseaslon) to re-
cover the possesaitm, or tbe value thereof,
in case ddlvery could not be had, and dam-
ages for the detention thereot Tte defuid-
ants did not answer, but appeared and con-
sented that tbe whole case be referred. The
referee took the testimony and reported
that the value of tbe propwty sned for was
(200, that thwe was due on defendant's
notes to plaintiff 9160, and that plalntifl had
been damaged 9B0 by the detention of the
property. His report concluded as follows:
"I find as a matter of law that the plaintiff
Is Nititled to the possession of the machinery
in question, for tbe purposes contemplated
by his mortgage ova the same; and, in
case tbe said property cannot be delivered
to plaintiff, plaintifl is ^titled to Judgment
against tbe defendants. Jointly and severally,
In the sum of $150, and in the sum of $50,
actual damages, together with tbe costs of
this action." There w^ no exceptions to
tbe report On hearing tbe report, the
court passed the following order for Jndg-
mott: "It is ordered that the said report
be and the same Is her^y confirmed and
made the Judgment of this court It is fur-
ther ordered that tbe plaintiff herdn. A, M.
Glbbes, bave leave to enter up Judgment
against the defendants J. T. Rivers and J.
C. Dowllng for the posaessiMi of the prop-
erty mentioned and described in the aflldavit
«rerotta«reaMBNsnmste^ and sMUen NUHBSB Im Dae. Dig. ft Am. ZHs. Key-N&ificlMl ^id^AlUltl^lC
22
78 SOUTHEASTKBN BEPORTEB
and complaint In tUs action, and In caae a
deUvery thereof cannot be liad, then for the
ram of 9200, the ralne thereof, and for
tlie anm of 950 damages as fonnd bj the
referee, and toe his costs and dLslnirsemaits
In this action." Judgment was entered ac-
cordingly, and OMCotlon was Issned thereon.
Tbat Judgment was satisfied by paymoit of
the costs snd damages and deUvor ot the
property to the plaintiff who sold it under
the mortgage, and credited the net proceeds
of the sale on the notes. Plaintiff thai
brought this action to recover judgmrat for
the balance due on the notes. Defmdant
pleaded, besides several other defenses, that
the matter was res Judicata, because Che
retem had found and reported the amount
due on the notes In the action of claim and
d^T«T, and his report had been confirmed
by tbe court. AD tlie d^enses were orer-
ruled, except the plea <tf res judicata, which
waa sustained.
As to the aatlsfaetlon of ttu Judgment tiie
record is somewhat eonfnidng. While the
"caa«" states ttiat the judgment entered on
tbe reflnee's report has been fully satisfied,
it will be seen, upon exanfinatlon of defttid-
antTs answer and the testimony, Out detend-
ant only <dalmed fliat the judgment was
satisfied "by the delivery of ttie machine and
payment of tbe ooste." He did not oontoid
that it vras satisfied by paym»t otf tbe
amount found dne to tbm plainttfl m the
notes. On tlie contrary, he alleges In his
answer that the machine was adTcrtlsed
and sold by the plaintiff, under the mort-
gage, and brought (40, whidi was credited
on the notea The answw practicaUy admits,
and the evidmce shows, that the debt was
not paid.
The court ored in snstaiiUng tfte idea
of res judicata. Tbe findUag in tbe claim
and delivery aetion ct the amount dne on
tbe notes was not intmded to and did not
authortae the entry of judgment for that
amount, and no jn<Unnent ther^r was en-
tered. The finding was made nnda the au-
thority of section 921 of the Code of Pro-
cedure, whldi provides tiut, "in eveary ae*
tion toT tbe recovery of personal property
wtaidi bas been pledged in any way to se-
cnre credit ax debt, tbe defendant may
plead hla counterdMm sMslng out of the
same transaction, and the jury In su^ case
may find, in addition to the verdicts Aow
provided by law, Oie amount due to the
plaintiff. If any; and in mch case fiie de-
fendant shall have the right to pay said
amonnt, and costs, and the property shall
thereafter be free from Ote tncumbrance."
As it freqiuently happeu that the only am-
tentlon between the mortgagor and mort-
gagee of personal laiqwrty Is as to tbe
amonnt due on ttie mortgage^ and as the
mor^gee has the right to the poasesslffli of
the property after condition broken, tor the
purpose of selling It and applying tbe pro-
ceeds to the. mortgage debt, if anythinff Is
due thereon, the act above quoted was pass-
ed, in 1909, In order that the amount due
might be ascertained in the dalm and de-
livery action (whicii ooold not have been
done prior to tbe acQ, so that he (mort-
gagor) mlglit pay It, and save fnrthv ex-
pense and coats. But the finding of the
amonnt dne was, by liie tenns of the statute^
limited to that pnipoee^ snd no antiunlty
Is thereto given for tbe entry <tf a personal
judgment against tbe mor^agor finr that
amonnt Tbe defendant ml^t have paid
the amount found to be doe and tbe coati^
and, by tlie terms of 1^ statute, tte prop-
erty would have bem released from the In-
cnmbrance of the mortgage. But, having
tailed to pay the amount, he Is bound for
the balance dne on the debt after applica-
tion of the proceeds of tbe aale ot tbe mort-
gaged property.
Beveraed.
OAB.T, a J^ and WOODS and FBA8BB,.
JJ., ocmcnr.
WATTS, J. (dtssentinc). The record In the
case abows that the revendent, on BlanA
20, . 1911, bought of tbe appellant and gare
for the same part cash and balance In notes
and at the same time executed and delivered
to the appellant a diattd mortgage covering
the machinery so sold to the reqrandent to
secure tiie pigment of the notes, mie notes
w«e not paid at maturity, and demand was
made upon respondent for possession of the
machinery under chatty mortgage. Posses-
sion of the same was refused to tbe appe-
lant, and appellant thereupon brought an ac-
tion in claim and delivery for the posses-
sion of the madilnery, or. In case a delivery
thereof could not be bad, then for |200, the
value thereof and damages and costs. Tbe
respondent did not answer tbe complaint in
this action of claim and delivery, but appear-
ed and consented to an order of reference,
referring the whole matter to a referee. A
reference was held, testimony taken, and
report filed. No exceptions were filed to the
report of the referee, and it was confirmed
and made the judgment of the court Tbe
referee found: That the actual value of the
imperty sued for was $200, and that the
amount due on the two notes, attached to hla
report was $160, [Kinclpal and interest, ex-
clusive of ccets and expenses of collection.
That the notes were secured by a mortgage
over the machinery In question, and that the
mortgage ^s past due and condition broken.
That appellant had suffered actual damages
In the sum of $50 by reason of breach of con-
tract and detention of property, and that ap:
pellant la entitled to possession of the prop-
erty and recommends judgment for posses-
sion of tbe same, and, In the event It cannot
be delivered, a judgmrat for the value there-
of, $1.60, and $50 Actual damages. This re-
port la dated May 18, 1912, ^d his jDno]^
BTONB T. GITT OF VLOBBNOB
38
Judge Bloe, presiding Jadge, confirmed the
same on June 21, 1912. Judgment was duly
entered tbereon, and It Is admitted tiiat this
jodgment has been paid and satisfied And
duly extinguished*
Subsequent to this, on Amcast 28, 1502,
the appellant commenced this action against
the respondent to collect two notes, which
were seeored by mortgage over the machinery
and were Included In the snlt for claim and
delivery which had been reduced to Judgment
and paid. One of these notes was for ^72.02,
due November 1, 1911, and the other for
¥73.45. due December 20, 1911. The respond-
ent appeared and answered these two caaee,
which were tried together by consent before
Magistrate M>urdangb, on September 20, 1912,
who by an order dated October 3, 1912, says,
"After hearing tbe evidence and ailment
thereon, I find for the defendant." In bis
r^rt of the case after appeal therefrom
was duly perfected to tbe conrt of common
pleas, he says: *^be two cases entitled as
above were by consent tried together before
me on the 30th of September, 1912. The only
plea Int^iweed by the defendant was that
the plalntUf had sold to the defendant cer-
tain machinery to which machinery pl^ntUf
did not have title and there was a total
failure of consideration for the notes sued
upon. The evidence In the case showed to
my mind concluslTely that the plaintiff did
have good title and that there Is no failure
of consideration. In the trial the defendant
introduced In evidence the records of another
case in the court of common pleas In which
former case these same notes were an Issue
and a Judgment rendered thereon, for which
reason I have found for the defendant; it
appearing to me that the present controversy
has already been adjudicated. There was no
question of fact Involved, there being no
witnesses for the irtalntUF and no conflict oi
testimony in tbe case. If tbe conrt should
dedde that I am in enror In holding that the
present cimtroversy is res adjudlcata, tbe
plaintiff herdn li entitled to a Judgment for
the face value of the notes In question, in-
terest, attom^'s fees, and costs."
Upon appeal from magistrate, Judge Wil-
son dismissed the appeal, and appeal was
then taken to this court, questioning the cor-
rectness of bis mlint The evidence shows
that the Judgment In the first case was tolly
satisfied and that ap^Jellant got possession of
the property and ISO damage. We think Oie
excQ>tion8 should be overruled, not only on
grounds that the ma^strate and circuit
judge concurred in their findings of fftct and
there Is t^tlmony to sn^ln an<A findings
and this court will not disturb such findings
(Morgan v. Moorhead, 90 S. C. 278, 73 S. E.
189; Myers v. Burnsldes. 90 S. G. 186, 71
S. E. 977; Saunders v. Sonthern Ry. Co., 90
& a 79, 72 S. S. 637), but for the further
reason that tlie magistrate and clrcalt Judge
were ri^t in holding the question was res
adjudlcata. A decree was a final Judgment
where It disposed of the whole case on the
merits and left nothing further for considera-
tion. Wbitcoub T. Manderville, 90 S. a 8B1,
73 S. B. 77ff. "The role of res adjudlcata is
based upon the idea that there should be an
end of litigation as well upon the maxim
that one should, not be twice vexed for the
same cause." Ludwtck v. Penny, 168 N. 0.
104, 73 8. B. 228. Estoppel by Judgment ot
tbe merits covers not only what was actual*
ly decided but also what was necessarily
implied In the final result 23 Oyc 1306.
"A Judgment Is conclusive between the par-
ties to it not only as to those matters which
were actually detdded, but to all emdb as
Were necessarily Involved In Its rendition.
Trimmler v. Thomson, 19 S. C. 254; Cald-
well v! Mlcheau, 1 Speers, 276." WllUa v.
Tozer, 44 S. C. 17, 21 S. E. 622.
X think the Judgment should , be afllrmed.
(M s. C. S7Q
STOND T. CITY or FLOBBNCB.
(Supreme Conrt of South Carolina. April 22,
1913.)
L MUKICIPAL COBPOBATIONS (| 8l6*)— D«-
raonvB Stbeeteh-Actioiis— Plbadinos.
One suing a city for a personal InJun
must, as required by Civ. Code 1912, 1 3053,
allege and prove that his injury was not
brought about by his own negligence, and that
he dm not negligently contribute thereto.
[Ed. Note.~ror other cases, lee Mnnldpal
Corporations, Cent Die. H 1711-171^ 1718,
1720-1723; Dec. Dig, | 816.*1
2. HUHICIPAX. OOBPORATIOHS (| 817*)— DsFBO-
TXVB STBXETe— FbBEDOIC FBOU ConTftlBUTO-
BT KsQUOBnCB.
A child five years old Injured on a defeo-
tire street li presumptively incapable of negli-
gence within Civ. Code 1912, 1 30{^ providing
that one sning for injury on a defective street
must show that the iDjury was not caused by
his own negligence.
[Ed. Note.— For other casM, see Himidpal
Corporations, Cent f 1726; Dee. Dig. i
817.*]
3. Municipal Cobpobationb ^ 788*)— Dnno-
TivK Stekktb— Liability, .
A city negligently maintaining unguarded
a ditch along the edge of a street is liable for
injuries to a child uUiog into the ditch, for
negligence In the repair of the street may con-
sist in omission.
[Ed. Note.— For other cases, see Municipal
Corporations. Cent Dig. §g 1036, 1637; Dec.
Dig: 1 783.n
4. MnmOIPAL COBPOBATIONS (S 8l9*)— DXFEO.
TiVK Streets — Pusonal Injubiss— Liabil-
rrr.
Where a city, maintaining an unguarded
ditch along the edge of a street, dumpM trash
into It and the trash was set on fire and the
fire burned in tbe ditcb for nearly a week,
when a child five years old, playing In tbe
street fell into the ditch and was injured, an
inference that the city was negligent for fail-
in k to prevent Injury from the fire tp persona
using the street was justified.
[Ed. Note.— For other cases, see Municipal
Corporations Cent Dig. 1739-1743; Dec
IHg. i 819.n
•ror other flMHSM same tople ■adMetlaaNUMBBRlaX)ee.Dis.*Am.Dlg.K«r-l«i#lvtakK^]
78 80I7THBASTESN ROFORTEB (B.O.
24
Appeal from Oommon Fleas Ctrcidt Court
of Floraioe Coanty; J. W. De Ton. Judga
' AcOon iKT Fnndt BtoDe^ by U« gnardlaa
ad tttem, B. J. Bbeoe, agaliut ttie dtj of
Fl<Hraica IVom a Judgmoit tor plalntllf, d»>
fondant ivpeals. Afflnued.
Heuy E. Davla and D. Gordon Baker,
both of Floren^ for appellant Ragsdale ft
WUtlng, of Florence for reepondratt
HyDRIOE, X Aboat SO years ago, the
dty of Florence dug a drain from 12 to 15
feet deep through the western portion of the
dty, which was then undeveloped. Since
that time, HcQueoi street has been laid off
along the drain. There la conflict of evidrace
as to whether the drain is wholly within the
street— between the sidewalk and driveway—
or merely on the extreme eastern edg» of the
street; but, as we sliall see, tliat Is not ma-
terial. The drain remained an open water-
way nntll leiO, when the etty bnllt a eon-
creto arch in it, so as to leave suflldent
space beneath for drainage, and began fill-
ing the space above by dumping into it the
trash from the city, which contained a good
deal of combustible matter. About June 1,
1911, the dilver of the dty dump cart, after
damping in a Toad of trash, set fire to it.
Tba fire smouldered along the dltcb for near-
ly a week, and apparently went out; bat
there was left a bed of embers, Into which
the plaintiff, a child about five years old, fell,
while Ikying In McQueen street Plaintiff
was very badly burned and reoowed Jndg^
mcnt against liie cU? In this action for dam-
ages for his injuries.
t1] By the terms of the statute under which
tin action was bzoo^t Csectlim 8063, dv.
Oode 1012), It was incombeat npon the plain-
tiff to allege and prove tliat Us injury was
not brooght about by his own negligoit act,
and that fae did not negUgcntly contzlbnte
theretOL Walker t. COwster, 40 & O. 342, 18
S. a 986.
It] The plaintiff so aU^ced In bis com-
plaint, and, when he proved that fae was only
Ave years old, fae proved a fact wfalch raised
a presnmption tfaat fae was incapaUe of nei^-
gence CFncker t. Bnfflilo Mills; 76 8. CX 638,
07 8. B. 626. 121 Am. St Rep. 967), and in
that way fae folly con^lled wltfa tba ccmditlon
of the Btatnte.
[I] In Irvine t. Greenwood, 88 8. a Sll,
7SS.B228,S6i:*B.A.<y. 8.)868.the neg-
lect or mismanagement of tfae corporation In
the i^tr of Uie street cfHnplained of conslat-
ed In leaving an electric ligbt p(de In tfae
street from which an Iron chain connected
wltfa the wire hang so low tfaat plaintiff
caoght it and received a deadly diarge of
electrldty. It was argued for the dty that
this was not sodi a defect in the repair of
the street as was contemplated by the stat-
ute. In rejecting that contention, the conrt
asid: "But we are unable to give the duty
of keeping wtneta In npalr tt» narrow maaa-
ing contended tot by respondents. To keep a
street In repair means to kev it in nidi
pfayBleal coadltion tfaat it will be reascnably
safto for street pnrpoeea. <It la not encMigb
that its snrfttoe sfaoold be aafe: a street U
not in repair when poles or wires or other
strnctoxes are so placed in or over It as to
be dangi»oas to those making a ivoper use
of the street In Duncan v. Greoivllle, 71
S. a 170, 60 & & 776, it was faeld tfaat a
wagon left on the public road so as to put
travelers In peril must be r^rded under the
statute as a falhire to keep tfae road In re-
pair. In this case the pole was placed in
the street as a fixture and became a part of
the street wfalch it becanw the dnty ot the
mnnldpal aatfaorittes to keep safe." In
HntctalBoa t. Sunmervlllei 08 & a 442, 45 S.
B. 8, tills eonrt hM tfaat Che oorporatton was
liable for an Injury to plalntUT resisting from
negUgoioe In leavbig a ditdi at ike end of a
sidewalk nngoarded, so tfai^ plaintiff fell
Into it J^ne^ If a ditch or dr^ along tfae
edge ot a street or Ughway is nec^lgently
left nngnarded, and a person lawfully nsins
the highway Is Injured thereby, the corpwa-
tion Is liable; It IS not material, tfaawfnre,
whether tiie ditch Into wfaIcA tfae plsdntlff fell
was wtaolly wltbin the street, or merely along
the extrane easton edge of It; for. In A'
ther case, defendant Is liable^ if, under aU
the drcomstances. It was neglig^ice to iMVe
it unguarded. Nei^lgcaioe in Oie repair of a
street may consist . In omission or nonaction.
T4] There was testimony from which the
Jury might properly faave Inferred tfaat the
act of the driv^ la setting Are to the traslk
in the dlt(A was done within the scope of fala
duties, lliere was tfaerefore no error In re-
fusing defendantfs motlm to direct tfae ver-
dict on the ground tfaat there was no evi-
dence that the dty authorized tfae act More-
over, the fact that the fire burned in the
dltdi for nearly a week afforded ample
ground for an biferenee tfaat the dty au-
thorities knew of it, and made no' effort to
prevmt Injury therefrom to those properly
using tfae street *
Affirmed.
QART, 0. J., and WATTS and FBASEB,
JJ., conenr.
(M 8. C. flO>
BLOUMT T. CHABLESTON & W. C RT. Oa
(Supreme Oourt of Sonth Carolina. March 28,
1813. On PetttioB for Rdiearing,
May a, 18131)
1. AFPEAt AND BKBOB Q 888*>— FlNDIlTOS-
CONCLU SI VEIinSS.
The Supreme Court cannot consider the
preponderance of the evidence, but can only
coneider whether there was any evidence to sup-
port a finding.
TBd. Note.— For other eases, see Appeal euxi
Error, Cent Dig. 1 3807 : Dec Dig. f »89.«]
«Vor otbM essM sas wms topU and steUm tfVHBSB In Pto. pig. 4 Am. Ois,
&a)
BiiOmrr r OHABXfBffrozr * w. a bt. oo.
25
X ICasxbb Am 8BRVABT (i m*> — Vfmaa-
esitcB— MAsm's Dvtt.
Tbe fact that a freight car step did not
break wfaea an employ^ stepited tbereon woald
not of itaeU relieve tbe company from liability,
if it was negliswt in not pvorldlaf and main*
taloing a reasonably aafe and anitaue ^atf.
[Ed. Note.— For other caaes. aee Maater and
Servant, Cent Dig. H 21?W 2BB; Dec Dig.
I 111.*]
8. Masteb avd Sebvakt Q 208*>-Bukb Aa-
SUllED — ^NrOUOBNCB.
A railroad employ* did not aaaiinw flie neg-
ligence of tbe c<»npaay in not providing safe ap-
pliances.
[Ed. Note.— For other case*, see' Master and
Servant. Cent Dig. | 661; Dec Dig. | 208.*]
4 Masteb and Sebtaht a 28&*>— Oonivibt;-
TOBT NBQUQENCK — BOABDINO MOVXXO
It is not contributory negligence per se for
an employ^ to board a moving train; that da-
pending on the particular drcumstaoces.
[Ed. Note. — For other cases, see Muter and
Servant. Cent. Dig. || lOSIK 1000^ Kn3-il82;
Dec Dig. I 289.»T
5, MA0TBB AITD SBBTART Q 28B*>— IWJTOMBI
— JunT QuxanoN.
WhetiiCT a brakeman's injoriea in falling
while boar^iv a moving train by ^e step giv-
ing way were proximately caused by bis own
negligence held a question for tbe Jury.
[Eld. Note. — For other cases, see Master and
Senrant. Cent. Dig. H 10«iri090. KW2-U82;
Dec Dig. I 289.*] '
6. MAsm AITD SnvAirr 0 SSS^Inxcmm
— InsiBuoxzom— NnaxjainQB.
An instruction, in an action for a brake-
man's injuries while boarding a freight train,
tiiat it was not negligence per se to board a
moving train, necessarily snbrnittod tbe 'qnea-
tion of iriietner it waa nccUgence in tbe mil-
road in not stopping tbe train until plaintiS
could board it
[Ed. Note.— For other cases, see Master and
Servant. Cent Dig. H 1146-1166^ llSS-UeO;
Dec Dig. } 2d3.«]
Appeal from Common Pleas Circuit Court
of Edgefield County; QeorgeE. Prince, Judge.
Action by J. C Bloant against the Gbarle»-
ton ft Western Carolina Railway Company.
From a judgment for plaintiff, defendant ap*
peals. Affirmed.
Sbqipard Bros., of Sdoefletd, and F. B.
Grier, of Oveenwoodt for appellant Thnr*
mmd ft Ntcbolaon, ot Bdgefl^ for zevond-
«nt
FRASEB, J. Tbds Is an action for per*
aonal injury- The plaintiff alleges that be
was a flagman on a frelgbt train of tbe de-
fendant; that the train stopped at Lanford,
a station tm defendants railroad, and tbat
as the said train started the conductor of
said train gavo tbe defendant an order, when
the train was in motion, to board tbe last
car on said train while the train was In
motion; tbat tbe plaintiff was anbject to tbe
orders of tbe conductor; that the plaintiff
met Qie caboose (the last car), and, beUev-
ing that he could board It safelj, endeavored
to board It frcm the right side and caught
tbe grip Iron in front of tbe rear platform
of tbe caboose and placed Ua left foot on
the bottom step of tbe caboose, but said
step was old. badly worn, and was very
sleek, as defendant then and there well
knew, and was defective and insecure for
tbat reason, and tbe plalntUTs foot slipped
off said step and be was thrown to the
ground and Injured by tbe train — his leg
was brok«n. Ne^gence, reckleasaess, and
wantonness were alleged on the part of the
defendant Negllgenoe was alleged In tbat:
(a) The plaintiff was ordered to board a mov-
ing train knowing It to be moving, (b) In
falling to. provide a safe place to work in
that tbe step was old, worn, and very sleek,
and for tbat reason defective and unsafe, (c)
In falling to stop the train until the plain-
tiff conld board said train. The defendant
answered pleading assumption of risk and
contributory negligence. Tbe defendant made
a motion for a nonsuit at tbe close of plaln-
tifTs testimony, which was granted as to
reckloaness and wantonness, but refused as
to negUgmce. Tbe jury found for the plain-
tiff a verdict for $400, and judgment was en-
tered upon the verdict From this judgment
tbe defendant appealed. There are six ex-
ceptions, but the a)H>elIant states bis propo-
sitions In succinct form In his argument, and
we will adopt his statement
I. "There Is no testimony tending to es-
tablish actionable negligence aa a proximate
cause of plaintiff's injury."
[1] To this, proposition this court cannot
assent The plaintiff testified that the step
was worn sle^ and tiutt caused his foot to
slip off and that caused the injury. Was
tbe step sleek? If it was sleek, was it neg-
ligence to have a aleeh step? This court has
no jnrisdiction to determine these auestions.
There was testimony from which the jury
ml^t find that tiie step was not aafe and
suitable and that it was negligmicfc It Is
true that there was testimony to the con-
trary and by a greater nmnber of witnesses.
This court has no jurisdiction to consider tbe
preponderance in this case. The question
here is: Waa there evidencef There was
evldenca
[S] Appelant cLalms, howevor, tiiat fh«e
waa no evidwce tbat the a^ irai originally
defectives and If- It became unsafa In the
use the- master la not Uable^ and batea tida
<ilalm on Martin v. B<^ter Onano Ca, 72
S. a 21% 51 fl. E. 6Sa That case la not so
broad as that In the Martin Case the serv-
ant famlahed a aafa idaee to work and
helped to mate, an excavation that caved In
and Injured htm. It waa tiie servanTs own
act tbat produced the injury. The Martin
Gaae is not authoritr for the pn^Miattlon
that, if a maater once furnishes a sate place
and suitable machinery, he is absolved from
further duty to maintain them in safety. It
Is clalpied that, inasmuch as the step did
not break, the defendant U not liable. T*bft
*rar ether oasMiiss same topU aaaswrtlonmiUBSB^aDM. !»«. *Am. Dig. Kv-N{ig1|^;^f|j^|^^
26
78 SO tTTHB ASTERN BEtPORTESR
(Ga.
brefAlng of machinery U not the test at lia-
bility. The test Is: Was the defendant
g^ty of ne^igence In not proTidlng and
maintaining a reasonably suitable and safe
step?
II. "The testimony shows conclosiTely that
plalntUTs Injury was due to one of the or-
dinary risks Incident to his employment,
which he assumed <m entering the emplf^-
ment"
[3, 4] Not If the defendant was negligent
In proyldlng an unsafe step. Appellant
thinks that his honor ought to have charged
the Jury that there was no negligence In this
case arising from the order to board a mov-
ing train. His honor charged tlw jury that
boarding a moving train is not uegllgence
per Be. "Now, it is my duty to charge yon
that It Is not negligence per se for a man
to board a moving train. Tliat d^nds on
the apparent and obvious danger or, at least,
I should say I won't put it tliat way; It de-
pends on the danger of obedience to tliat or-
der." Tliat was as far as bis honor ought
to bave gone. In Creech v. Railway, 66 8.
O. 634. 45 S. B. 88, this court says, "Ordi-
narily It should be left to the jury to de-
termine whether the passenger's act of alight-
ing or boarding, under all drcnmstances, was
negligent" There is no reason why the same
rule should not be applied here.
III. "The testimony shows that, If there
was any negligence as alleged, plaintiirs in-
jur ' was due to his own contributory negli-
gence as a proximate cause in the manner
In which be undertoolc to board the train."
[i] Appellant says: "If he had put lils
foot on tiie step for a sufficient distance and
not simply caught on the ball or toe, he
would not tiave slipped." To catch "on the
ball or toe" may be the most approved and
safest method so far as this court can know.
That was a question for the jury, and this
ground cannot be sustained.
XT. "It was error in hla honor to allow
the jury to consider the specifications of
negligence contained in subdivisions 'a,* and
*c,' when there was not a particle of tes-
timony tending to support the same." -
[9] The circuit judge was requested to
ctiarge In accordance with tlila statement,
but said, "I cannot cSiarge it in those words."
His honor had dialled that It was not neg-
ligence to board a moTlng train. Tliat In-
<duded necessarily whether It was negligence
not to stop the train. It was a question of
fact whether, under all the circumstances, it
was negligence or not, and tliat question It
was proper to send to the jury.
The judgment of this court Is that the
judgment appealed trom be aiBrmed.
HYDRICK and WAITTS, JJ., concur.
WOODS, J. I concur in the result The
fact that the step of a car has been made
smooth and deek 1^ use la no eridenca that
the step was defective. To hold that a rail-
way company must see that Its car st^ are
rough, not smooth, m> that the foot of one
getting on a car ^Ue in motlim wUI not
slip, is carrying ttie law of negligence to s
decree of refinement not sanctioned by rea-
son or precedence. There was evidence, how-
ever, that the conductor of the train ordered
the plaintiff to board a moving car, and I
think it was for the jury to say whether It
was negligence on the part of the conductor
to give the order, or contributory negligence
on the part of the plaintiff to obey It On
this ground, I concur In afflrmhig the judg-
ni^t
On Petition tar Btiiearins.
PER CTTRIAM. After careful cntsidera-
ttpn of the petition Iier^n, this oonrt la sat-
isfied that no material qoestlon of law or
of fact has elttier been overlooked or dlsre*
garded. It la thwetore ordered that tJie pe-
tition be dismissed, and that the order here-
tofore granted etaylng tJie remlttltar be re-
voked.
(188 Qa. 727>
BALL T. MADDEN «t aL
(Supreme Court of Georgia. April 18, 1918.>
(8ifttdbu$ by th9 Oowrt,)
lNTBFijBu»K (I 11*) -~ Bight to Ihtib-
PXULDKU
"Whenever a person is poBsessed of prop-
erty or fnnda, or owes a debt or duty, to which
more than one person lays claim, and the
claims are of such a character as to render it
doubtful or dangeroua for the holder to act be
may apply to egnity to compel the claimants to
interplead." Civ. Code 1610, % 6471.
(a) Applying the above-stated role to the
facts of this case, the plaintiff In error had
no jiut ground of complaint of the refusal of
the judge to vacate an order for an interplead-
er and en Interlocutory Injunction.
[Ed. Note. — For other cases, see Interplead-
er. Cent Dig. H lS-34; Dec Dig. ! 11.*]
Error from Superior Court, Floyd Coun-
ty; J. W. Maddox, Judge.
Action by R. L. Madden against Charles
Ball and othera. Judgmmt for plaintiff, and
defendant Ball brings error. Affirmed.
Harris ft Harris^ of Rome, for plaintUf In
error. M. B. Enhante and Seaborn & Barry
Wright all of Borne, toe defendanta In er-
ror.
nSH, OL J. Mrs. Ediols, (he owner of s
farm tn noyd county, on January 24, 1911,
leased it for ttiree years, Iwglnnlttg January
1, 1912, to three peraoQS by the name of
Madden, who were In possession of the farm
as her tmants when the lease contract was
executed. This contract was In writing, but
was never recorded. The stipulated rental
was 3,000 ponnds of lint cotton for each
year, for which the tenants gave Mrs. Echols
their joint notes, maturing at stated Inter-
•mr other eaiwss* same to^ aad seetloa MUMKB Im Dm. Dig. * Am. Dig. ^t^^|^^^|flC?:JV9^?Kpl'^''
yiROINIA-CABOIilNA CHEMICAL 00. T- B.YISEB
27
Tils dniliig the montlu of October and No-
rember of each year daring tbe term. The
teoantB bave rince remained In posseBslon.
On Febmary 8. 19U, Mrs. Echols transfer;
red to the Olttams' Bank of Borne, as col*
lateral security for a loan, the notes glren
her by the tenants. The loan has never been
paid. On May 12, 1911, Mrs. Bchols executed
to WilUs a deed to the leased premises, to
secure a loan from him to her. This deed
contained a power to Willis to sell the lauds
at pnbUc sale and to pay the loan made by
Mm, in the event of its nonpayment at ma-
turity. A bond to reconv^ upon the pay-
mmt of the loan was given by Willis to Mrs.
Echols. At the time of this transaction Wil-
lis liad no actnal notice or knowledge of the
lease. Bis loan not having been paid at
maturity, Willis, In pivsuance of Uie power
of sale contained In tba security deed exe-
cuted to hiin bj Mra Bdiols, sold at public
outcry, on July 12, 1912, the lands compos-
ing tbe fhrm to Ban, and conveyed the same
to him by deed. At tbe time he purdiased,
Ball had actual notice of the lease contract
betweoi itxa. Blcbols and the Maddens.
WbCTi the note for Uie rent of 1912 became
due, the bank, who hsAA ttte same as collat-
eral for its unpaid loan to Mrs. Bchols, and
Ball, who had purchased the land, irere both
about to distrain for the rent of that year.
Therenptm tbe Maddens presented tM^ peti-
tion to the Judge of the superior court,
against the bank and Ball, setting fbrth tbe
fftcta above stated, alleging th^r ablUly and
readiness to pay the rent tor 1912, but de-
claring Oielr InaUllty to determine with
safe^ to themselves who was legally entitled
to the sam^ the bank or Ball. The petttion-
ers also olfered to deliver 13ie rent to the
court They priced that tbe bank and Ball
be required to Interplead as to th^ respec-
tive claims to the rent, and that meanwhile
they be enjoined from proceeding against
petitioners fbr the sam& Upon considering
such verifled petition, the Judge granted an
order enjoining tiie defmdants as prayed
for, until the furtbw order of the court, and
also regnlrlng th» defendants to Interplead
In tbia cause and set up ^rtiatever rii^t and
claim Oiey might bave against the r^t It
was further ordered that the petitioners de-
liver tbe rent to the clerk of the court, and
that thereupon they be discharged from any
and all fnriliar Uabllity to either of the de-
feodants tor such rent. This order was
granted October 15, 1912. Ten days there-
after BaU filed a motUm to vacate the or-
der. The facts set forth in the motion were
the same as those in the petition for int^
pleader, and which we have already stated.
Ttie motion further stated that when BaU
purchased the land ttie crops had not ma-
tured. The Maddms alone were made par-
ties respondent to the motion. TTpon the
hearing of the motion the facts stated In the
petition and the motion were admitted to be
true, and it was shown ttiat Oie crops had
not matured when BaU purchased the land.
Tbe Judge refused to grant the motion. By
conscmt of aU parties; the clerk of the court
was ordered to seU the cotton and deposit
tbe proceeds tn a deaignalied hank, to await
the final determination of tike interpleader
between BaU and tbe Citizens' Bank of
Bom^ and that tbe final Judgment in tbe
Interpleader attach to the fund as 'fully as
to Oie cotton had it not been sold.
Tbe only question presented for decision
is whether the Judge wred In refusing, on
the motlon of BaU, to vacate a totmex order
requiring BaU and the bank to Interplead,
and enj(dulng than botti, pending tbe inter-
pleader, from proceeding against tbe M^dr
dens fOr ooUectlon <tit tba rent due for
the year 1912. Tbe bank was not a party to
the motion; and, even if It bad been, it
would not bd necessary for us to determine
Aether it of BaU had the better claim to
tbe rent. "Whenever a person is possessed
of property or funds, or owes a debt or duty,
to wblcih more than me person la^ claim,
and the claims are of such a character as
to render it doubtful or dangerous for tbe
holder to act, he may apply to equity to com-
pel the clalmanto to interplead.** €Ml Oode»
I 5471. Applying the provisions of tbia sec-
tion to tbe facte of tbe case at bar, it Is
cilear enongl^ without diseussltm or the dte-
tlon of authority, that the Maddms had tbe
right to an Interpleader and an interlocutory
injunction, and that tbe Judge did not err
In refustog to revoke the ordor granting tbem
such rtilel Accordingly the Judgmrat is af-
firmed.
Judgmot a0nned. AU the Justices con-
cur.
(US oa. an)
VIROINIA-OAROLTNA CHEMICAIi'Oa T.
BYLBB et al.
(Supreme Court of Georgia. April 16, 1918.)
(Svltabut the Court,)
1. Iksolvunct (5 27*)— Invoi.T7Htaet Pbo-
OBBDxnos— Right to Maintain.
The statutory action onder Che iDBoIvent
traders* act is maiotalnable only agrainst one
who ia a trader at the time the petition is filed.
[Ed. Note.— For other cases, see Insolvency,
Cent Big. H 83, 84; Dec. Dig. | 27.*}
2. Bawkbuptct a 9*)— Adjudication— Er-
MOT on Pendiho Action.
In its orif^nal form, tbe action waa by lien
creditors against their debtor to cancel certain
deeds to land alleged to have been fraudulently
made by tbeir debtor, and to subject the land
to their specific Hens. By amendment It was
sought to subject the debtor's equity of redemp-
tion in the same land to the payment of these
liens. Such a suit is not a general insolvency
proceeding, and is unaffected by the debtor's
subsequent adjudication as a bankmpt. occur-
ring more than four months after the Hens on
the land were obtained.
[Bd. Note. — For other cases, see Bankruptcy,
Cent Dig. SS 7-9: Dec. Dig. S 9.*]
'Forotltar csass
■M Hm« topic and s«ct|on NUHBSB Im DM. Dls. A Am. DIfr Kir-No^tar]M^B^p|r ^^^^
28
T8 SOUTHBASTBBN BEFOBTEIB
(Oa.
3. tlxBCunoir A 88*)— Qhditobs' Stnr 7*)
— BQUITABLB iRTBBBSTa.
A debtor has no leviable intereet in land
which he has coDveyed to secure a debt until the
profwr^ has been redeemed b7 himself or the
movinr creditor ; and redemption can be ac>
complished onbr by payment m the secured debt
in fulL In the absence of equitable ground,
the mere fact that the lien of a judgment cred-
itor obtained against the grantor subsequently
to the makiiu; of the security deed cannot be
enforced' by levy and sale until the grantor's
title has become revested by redemption is in-
anfficient to subject the grantor's mterest in
the land as an equitable asset
r£!d. Note.— For other cases, see Elxecution,
Oent Dig. K 61. 98-102; Dec. Dig. {38;*
Creditors^ Suit, Gent. Dig. |i 8. &-11; Dec.
Dig. t 7.*]
4. <%BDITOBtf Sun (I 83*)— BAnEBTTPTOT (1
200*)— Rkceivkb— Tbusteb.
Applying the foregoing principles to tne
fkcti, no case was made authorizing the ap-
pointment ol a receiver of the property by the
state court ; and aa the property waa in costo-
dia legis by virtae of a levy of a distress war-
rant made more than four montlis prior to the
debtor's adjudication as a banlmipt, against
which a lev7 claim was filed and is now pend-
ing in the superior court, it was error to di-
rect the receiver to deliver posaessioD of the
property to the banfcrnpf s trustee for admfafa-
tration in the court of bankruptcy.
Bansruptcy, uent. L»ig.
816; Dec. Dig. { 200.*]
Brror from Sapertor Ooort, Hall Oonntjr;
J. B, JoneB. Jndgei
Actloa b7 the Tlrgtnla-Caxollna Chemical
Company against J. M. Rylee and <^lker8.
FrtHtt the judgment plainUft brings OTor.
Berersed.
The Virginia -GaroUna Chemical Company,
BUlnpa Phlnliy, and Hardeman A Phlnizy
fll£d an action i^alnat J. M. Rylee, his wife,
Ghastalet I^lee, and T. B. Atklna, praying
for the cancellation of cwtain deeds, the ap-
pointment of a receiver, and other eanUable
relief. It waa alleged that J. H. Bylee was
indebted to the Vlrglnla-CaroUna Chemical
Company in the principal sum of $594.90
npon a judgment dated March 16» 1908, to
BlUups Phlnii^ In the principal aom of II,-
247.54, iMsIdes interest, on a distress war-
rant, which had been levied on 200 acres of
land on January 1, 1908, and to Hardeman
& Phlnizy In the principal sum of $568.78 on
a judgment obtained May 16^ 1910, and that
these debts represent as mnch as one-third
in amount of the unsecured debts of Bylee,
and were Incurred while be was engaged in
the business of buying and selling cotton and
fertilizers; that Rylee la the owner of two
described tracts of land, one of which, con-
taining 200 acres, he has conveyed to T. B.
AtklDs, and the other to his wife. In fraud
of petitioners, and with Intent to hinder them
In the collection of their debts; and that
the debtor owes no other property upon
which petitioners can enforce their liens.
The prayers of the petition were to enjoin
the defendants from conveying the land or
changing the status, for cancellation of the
deeds from the debtor to his wife and to
Atldns, for process, and "that a receiver be
appointed to take charge of the property
above described, and to collect all of the as-
sets, real and personal, choses in action,
money, notes, and accounts of the defend-
ant, J. M. Rylee, and that the same may be
appropriated to the claims of your petition-
ers and the Just debts of the creditors of
said J. M. Rylee." By amendment the plain-
tiffs alleged that Bylee waa Insolvent; tliat
he was receiving the rents of the lands ; and
tliat for stated reasons a better price could
be secured If the land be sold by a recover
than if sold by the sheriff. In a second
amendment they alleged that the distress
warrant of Blllups Phtnlzy was levied on
the 200-acre tract of land on March 1, 1908 ;
that Atkins filed a clabn to the land, and
the papers were returned to the superior
court of Banks county for trial; that the
land was In the custody of the sheriff who
made the levy; that the land was conveyed
to Atkins to secure a debt amounting to
something over $3,000; that Atkins' title is
good as against all claims except those of
the Virginia-Carolina Chemical Company and
of Blllups Fhinlzy; that there is no contest
between these claims, inasmuch as the prop-
erty is enough to pay them all; that there
are outstanding Hens against the principal
debtor, four months older than the adjudica-
tion in bankruptcy, to the extent of $11,000;
that the holders of junior liens cannot levy
their fl. fas. without redeeming the property
and paying off the Atkins debt; that since
the petition was filed the court tias dissolved
the order appointing a receiver as to all the
property except the 200-acre tract, which
was worth from $6,000 to $7,000— much less
than the subsisting liens. Upon this petition
B. F. Carr was appointed temporary receive.
At an interlocutory hearing the court re-
fused to appoint a receiver for the land al-
lecced to have been conv^ed to Mrs. Byleo^
Afterward J. M. Rylee was adjudged a bank-
rupt, and his trustee filed an application to
require the temporary receiver to d^ver
to him the possession of the SOtMure tract
of land, to be administered In the court of
bankruptcy. The application toe the appoint-
ment of a permanoit recetver and tlie mo-
tion of the bankmpfa trustee were heard
together. In Us order, after recltlttg that
the crediton^ petition was an Insolvency pro-
ceediiv filed within four months of .the bank-
rupt's adjudication, the court ordered Uw
temporary receiver to deltvtf the property
In his hands to titie trustee In bankruptcy.
Exception was takoi to this judgment
Evlns ft Spence, of Atlanta, and Jno. J. ft
R. M. Strickland, of Athens, for plaintiff In
error. B. P. Gaillard, Jr., Johnson & John-
son, and C. N. Davie, all of Gainesville, for
def^dants In error.
•For otbsc eases sas wm topic aad ssetln NVMBBA la Dss. Dig.' * An. Dig. B«r(4Mal l^il^kittt^MMm
Ga.)
BYANS. P. J. (after stating tbe facts as
above). The application of tbe complaining
credltora for a permanent receiver and the
motion by the bankrupt's trustee to require
the temporary receiver to turn over to him
the tract of land for administration In the
United States court were heard together.
The judgment under review Is silent as to
any action by the court upon the creditors'
application for a permanent receiver; but,
notwithstanding the court's omission In this
regard, It becomes necessary In passing upon
the propriety of the Judgment to which ex-
ception Is taken to consider whether the evi-
dence on the interlocutory bearing preaent-
ed a case for receivership.
[1] 1. The court was of the opinion that
tbe suit before him was an insolvency pro-
ceeding. The petition had one or two ear^
marks of a statutory proceeding against an
Insolvent trader, but its general structure
dearly in^catea that it waa detigned to anb-
ject in equity two spedflc tracts of land to
the liens of the complaining creditors. Oae
factor is conclusive against characterMng
the petition as brought under the Insolvent
traders' act; and that is there is no pretense
that the principal debtor was a trader at
the time the petition was filed. Tbe statu-
tory proceeding under the insolvent traders'
act can be brought only against a trader —
one engaged In business at the time. Civil
Code. 8 3249; Ball v. Iiastlnger, 71 Ga. 678.
[2] 2. In Its original form the petition
■ought to subject in equity to the plaintiffs'
liens spedflc property alleged to have been
fraudulently conveyed for the purpose of
lilndering the complaining lien creditors. In
its amended form tbe plaintiffs sought to
subject the debtor's equity of redemption In
the same land to the payment of their liens.
At an interiocutory hearing the court elimi-
nated the creditors' attack on the tract of
land alleged to have been fraudulently con-
veyed to the debtor's wife. So Uiat all that
remained in the case at the time of the hear^
log were the allegations pertaining to the
plaintiffs' datm to subject In equity to the
payment of their liens Bylee's interest in the
200-acre tract of land which he conveyed
to T. E. Atkins.
It Is contended that, though the plaintiffs'
petition may not have been brought under
the insolvent traders* act, nevertheless it is
such 'an insolvency proceeding that the pos-
session of the temporary receiver thereunder
cannot be saved from the nullifying effect of
the bankruptcy of the principal defendant oc-
curring within four months of the filing of
the petition. The accuracy of this contention
depends upon the scope and purpose of the
suit The Hens of the complaining creditors
were obtained more than four months before
the defendant was adjudged a bankrupt
The distress warrant had been levied more
than four months before tbe defendant's
bankruptcy. Section 67 (e) of tbe Bankrupt-
Cr Act (Act July 1. 1888» c Ml. 80 Stat. M4
2»
IV. S. Comp. St 1901, p. 34491) applies only
to such Hens as are created within four
months prior to the filing of the petition In
bankruptcy; but, where the Hen of a judg-
ment or a distress warrant fixed by Its levy
Is obtained more than four months prior to
the filing of the petition. It Is not only not
to be deemed to be null and void on adjudi-
cation, but its validity is recognized. Met-
calf V. Barker, 187 II. S. 165, 23 Sup. Ct 67,
47 L. Ed. 122; 1 Loveland on Bankruptcy,
S 447. The plaintiffs bad vaUd Hens which
were unaffected by the bankruptcy of tbe de-
fendant, and which were enforceable in. the
state courts. They were attempting to en-
force these liens In an equitable action hav-
ing for its main purpose the equitable sub-
jection of a specific tract of land to their
lien. Where the main purpose of an equita-
ble action Is to subject spedfic property to
the plaintiffs' liens, an Inddental prayer f<v
relief a^ropriate to an Insolvency proceed-
ing will not alone suffice to convert the ac-
tion Into such a proceeding. Merry v. Jones^
119 Ga. 643, 46 8. B. 861.
[3] 8. On the hearing there was absolate-
'ly no evidence to sustain the original the-
ory of the petition that Rylee's deed to At-
kins was fraudulrat and made to hinder
creditors in the collection of their debta It
appeared that Bylee borrowed of Atkins ¥3,-
000, and secured the debt by deed to the
200-acre tract of land, and that he owed this
amount on January 1, 1913. SubsequenOy
to the execution of the deed, but prior to its
record, Blllups Fblnizy obtained a judgment
against Bylee, upon which execution is-
sued, and he also procured a distress war-
rant to be issued against Bylee and levied
before the record of the deed. These two
liens were levied on the same land, and
statutory claims were filed by Atkins. The
papers were returned to court and were
pending therein when tbe present petltloii
was filed four or five years thereafter, bur*
ing this time some sort of arrangement was
made between Blllups Phlnlzy and Atkins,
whereby the execution which tbe former held
against Rylee was transferred to Atkins, and
at tbe time of the hearing it had been re-
duced by payments made by Bylee to $257.
After tlie record of the security deed from By-
lee to Atkins, the Virginia-Carolina Chemical
Company obtained a judgment against Rylee,
and later on Hardeman & Phlnlzy obtained
Judgments against Bylee. More than four
months after the various judgments were
obtained against him, Rylee was adjudged
a bankrupt The only property of which
Bylee was possessed at the time of his ad-
judication was hlB equity of redemption In
this 200-acre tract of land. The land was
worth from $6,000 to (7,000, and the amount
due Atklus on his assigned execution and se-
curity deed, and that due to Billups Phlnlzy
on his distress warrant, aggregated about
$5,000. The amount of the judgments of the
Other coiq»lainlns c«»«iteff^„f<Ji^M^#e^J§li
VIRGINIA-CABOLDTA CHEMICAL 00. T. BTLEB
30
78 SODTHEASTBRN BB^B^B
(Qa.
these Hens, gieafly exceeded the valae of
the land. Etom the foregoing Bummazy of
the evidence It will amwar that the situation
was this: AtUns held a aecnrlty deed to the
land, and the oldest 0. fa. against the debt*
or. Billaps Fblnlzy had a distress warrant
which had been le^ed prior to the t«cord of
the security deed to Atkins. This prior levy
gave the warrant a priority of lien over the
secorlty deed. Civil Code, | 8307. So the
plalntUC Billups Phlnlzy needs no equitable
aid to enable his distress warrant to pro-
ceed.
Under the facts developed on the Inter-
locutory hearing, have the creditors whose
Judgments were obtained after tbe record of
the security deed the right to subject the
debtor's equity of redemption as an equita-
ble asset? Under tbe statute (Civil Code. S3
6037. 6039) the holder of a bond for Uties baa
no leviable Interest In the land until he be-
comes Invested with the legal title. Tbe stat-
ute has been held awllcable to the grantor
In a security deed, who has taken from his
grantee a bond to reconvey upon payment
of the debt Before credlton of a grantor
In a security deed can levy upon his Inter-,
est In the land, there must be a redemption
of tbe property, which can be accomplished
only by payment of the secured debt Phinl-
zy V. Clark, 62 Ga. 623; Groves v. Williams,
69 Oa. 614; Shumate v. Mcl^don, 120 Ga.
396, 48 S. B. 10. The mere fact that the
lien of a Ju^meut creditor, obtained against
the grantor subsequently to tbe making of the
security deed, cannot be enforced by levy
and sale until the grantor's title has become
revested by redemption. Is tnsufticient to sub-
ject the grantor's interest In the land as an
equitable asset Swift v. Lucas, 02 Ga. 796,
19 S. B. 758. Perhaps a Judgment creditor,
unable by reason of bis insolvency or inabil-
ity to redeem the land, might go into equity
and subject tbe interest of bis dd>tor in
land conveyed to another to secure a debt
without redemption; but no such ground
for equitable interference is made in this
case. The undisputed proof was that the
Judgment creditors were able to redeem tbe
land.
[4] 4. Therefore, Inasmuch as the integrity
of the security deed was not Impugned, and
as tbe Judgment creditors whose liens were
obtained subsequently to the record of the
security deed show no equitable ground for
tbe subjection of tbe maker's interest in the
land as an equitable asset, and as there is no
l^;al Impediment against the enforcement of
the liens obtained prior to the record of the
security deed, it follows that a permanent
receiver should not have been appointed.
There being no ground for tbe appointment
of a permanent receiver, tbe next question
is what disposition of the land in tbe hands
of the temporary receiver should have been
made. As we have sbown, the trustee was
not entitled to tbe possession of the property.
tot the reason that at the time of the bank-
rupt's adjudication the property was In cus-
todla legls by virtue of the levy of a lien
obtained more than four months prior to the
banknqitcy. It was improper to appoint a
permanrat receiver under the facts developed
at tbe hearing. Therefore the court should
have refused the application for a rectiver-
shlp and also tbe application of the trus-
tee of the bankrupt, and remanded the prop-
erty to tbe Aerlff, from whose custody it
was taken by the appointment of a temporary
receiver, to await the final disposition of the
Litigation pending in Banks superior court
to wit, the issue formed by the filing of a
claim to the levy of the distress warrant
Judgment reversed. All tbe Justtcea crai-
cnr.
(U9 Oa. 654)
CRAWFOED et aL v. WILSON.
(Supreme Court <tf Georgia. April 16, 1018.)
(ByOalMt ike Court)
1. ADOFTION (J 6*)— AOREEKKNT TO ADOPT—
OhtFOECEKENT— InHEBITA NCE.
A parol obligation by a penoD to admtt
the child of another aa his own accompanied by
a virtual, though not a statutory, adoption, and
acted upon by all parties concerned for many
years and during tbe obligor's life, may be en-
forced in equity upon the death of the obligor
by decreeing the child entitled as a child to the
property of the obl^r, undisposed of by wilL
[Bd. Xote.~For other cases, see Adoption,
Cent Dig. } U ; Dec Dig. | ft*]
2. Contracts (| 187*>— Right to Dittobob—
Thibd Pxssoit.
Socb an equitable suit is maintainable by
the child in her own name against the adminis-
trators of the obligor.
[Gd. Note.— For other cases, see Contracts,
Cent Dig. U 798-807 ; Dec Dig. { 187.*J
3. WiTNEssBs (5 144*)— CoMprreHOT— a^wa-
AcnoN WITH Deceased Pkbsoit— Oohibaot
FOB Adoption.
Where the contract for adoption Is made
by tbe grandmother of the child at the Instance
of the mother, and is subsequently ratified and
renewed between the person adopting the child
and the mother, in a suit by the child, oi tbe
nature described in the preceding headuotes,
against the administrators of tbe person con-
tracting to adopt the grandmother and the
mother are competent wltnesaes to prove the
contract
[Ed. Note.— For other eascn, see Witnenes,
Cent Dig. It 826-648; Dec. Dig. | 144.*]
4. Specific Pebfobuancb <| 106*)— IiAOhes—
Contract fob Adoption.
The plaintiff is not barred of her equitable
cause of action rdened to in beadnotes 1 and
2, where the suit Is Instituted within a few
months after the obligor's death, notwithstand-
ing the plaintiff may be 30 years of age at the
time of the Institution of the suit
[Ed, Note.— For other cases, see Specific Per-
formance, Cent Dig. IS 326^^ ; Dec Dig. |
105.*]
6. EhHECUTOBS AND ADUINIBTBATOBS <| 437*>—
Actions against— EXevptions fbou Suit
— Equmr.
The action in the instant case does not fall
within the provisions of the Civil Code 1910, |
4016, exempting admiuistrators from suits on
debts due by their intestate until after the
•For eUt«r oaaw sm suns toplo and secUoo NUMBER tn Dm. IMg. * Am. Dig.
ORAWFOBD T. WILSON
SI
laoBe of 12 months from their qaaliflcatiOB m
amninistniton.
[Ed. Note.— For other casei, lea Btcecnton
and Admiaistraton, Cent Dig: U X729-1701,
1764 : Dec Dig. S 437.*]
8. iNJtJNcnoir (I 38*) — Geouwds — AcnoH
AOAINST AdMINISTKATOBS — CONTRACT FOB
ADOPTION.
One of the prayers of the plaintiflf ii to en*
join the administrators from farther proceed-
ing with their application before the court of
ordinary for leave to sell the land aa that of
their intestate. Inasmuch as the plaintiff does
not occupy the legal status of heir or creditor,
she cannot contest in the court of ordinary,
with the administrators, their ri(ht to adtpiDiS'
ter the estate of their intestate. And her equi-
table claim to the property growinf out of the
defendant's intestate's failure to consummate
the plaintUTa adoption as a child extends to
the whole eatat? of the intestate, and as the
personal estate Is rafficient to par all debts,
equity will preserve the status of tne realty by
enjoining a sale of it pending the litigation.
[Ed. Note.— For other cases, see Injunction,
Cent Dig. U 86-«0: Dec Dig. | 38.*]
7. RxcnvEBS (i 16*)— Pbksibtatioh ot Pbof-
■BTT— Eqthiabu Aonon.
But as It was not shown that the adminis-
trators were guilty of waste or mismanagement,
and the circumstances are not such as to indi-
cate that the rights of all the parties would be
more effeetnally and eipeditiOQsly protected
and enforced hj tiie appointment of a receiver,
it waa error to appoint a receiver, and, on in-
terlocutory hearing, to divest the administra-
tors of the possesslcm of the property of their
intestate, i^oiding the litixation.
[Bd. Note.— Few other cases, see Receivers,
dnt. Dig. H 24, 28; Dec Dig. | 16.*!
Error from Superior Court, Hall Connt?;
J. B. Jones, Judge.
■Petition by Daisy Packett Wilson against
J. D. Crawford and othos, admluistratorB.
Jndgment for petitioner, and defendants
bring error. Affirmed, with directions.
J. H. Skelton, of Hartwell, and H. H.
Dean, of Gainesville, for plalntUh In error.
H. H. Perry and W. A. Charters, both of
GalnesTlIle, for defendant in error.
EVANS. P. 3. The plaintiffs In error, as
administrators of the estate of Mia. U. F,
Puck^ made an>Ucfttloa to the ordinary
fbr an oidw granting them leave to sell the
land of their Intestate, when Mrs, Daley
Packett WHsod filed her petition for injunc-
tion against sndi application on the ground
that she was entitled to the whole of the
estate by reason of the facts alleged In her
petition and for otha teli^. The snbstan*
tial aHegatknis of the petition are as foUows:
The petitioner Is the daughter of James 6af-
ney and his wife Katie. Shortly after her
Urth her father abandoned his family and
ranored to Texas, where be died many years
ago. In December, 1882, when she was an
Inftmt of about three months of age, she was
bronght to the home of Mrs. M. F. Packett
by her maternal grandmother and turned
over to the care and custody of Mrs. Packett
under an agreement by her mother and
^ndmotSwr that Mrs. Pnek^ was to hare
the sole custody and service and company of
petitioner during her minority, in constdwa-
tlon of Mrs. Pndcett's agreement and prom-
ise to take petitioner and keep h^ as her
own dilld and to adopt her as such, wlQi all
the rights of a child related to her as such
by blood. In pursuance of this contract, Mrs.
Pnckett took petitioner Into her home, gave
her name to her, and always treated her as
a child; and the petitioner knew no other
mother or home, and only Blnce the death of
Mrs. Puckett did she discover who her nat-
ural mother was. At the time petitioner
was received into Mrs. ipuckett's home, Mrs.
Puckett was a widow with one child, a son,
who never married, and who died before his
mother. Petitioner remained with Mrs.
Puckett until she was 20 years of age, when
she married, and during this time she gave
to Mrs. Pnckett her love and constant attoi-
tion as a child, assisting her in all house-
hold work, and rendering snch personal
service as only a dutiful child can render
a mother. Mrs. Pnckett was old and infirm
and required much personal attention; she
was peculiar in her temperament, lived large-
ly the life of a recluse, bad no hear relatives
to visit her and very few friends; and peti-
tioner devoted her life to cheering and com-
forting and waiting upon hw foster mother.
Up to Mrs. Puckett's death petitioner always
considered herself as her child, and was al-
ways treated by Mrs. Pnckett as such. Mrs.
Puckett told petitioner that she was adopted
by her as a child, and petitioner believed
this, and on the faith of It rendered the serv-
ice and bestowed upon her the love and affec-
tion of a child. After marriage she made
fkegu^t visits to her foster mother. Mrs.
Puckett was sick on several occasions and
sent for her, and she always responded to
her calls on such occasiona and watted ou
her during her illness.
Mrs Puekett died on July 20, 1912. tear-
ing no children; and her nearest relatives
are two brothers and two sisters, all of the
half blood. Petitioner Is unable to ssy
whether Mrs. Puckett erer took formal steps
to adopt her as a child, but slie has reason
to beliere that she did so, and that tbe pa-
pers have been misplaced In the office of the
derk of tbe snperior court, and bases sutdi
belleC on the oft-repeated declaration of Bfrs.
Puckett to petitioner and others that she
bad adopted petitioner as a child. When
petitions was about a year 6i& tm mother
desired to take her back, and Mrs. Packett
refused to surrender petitioner to her mother.
Mrs. Puctett told her mother that she had
legally adopted petitioner as a chUd and
caused her lawyer to state to her mother
that i)etitioner had beea l^Uy adopted, and
that her mother had no legal right to the
custody of petittoner; and petitioner's moth-
er, believing this statement to be true, relln-
*rer etber eases mlvm tople and section NUMBER la Dec Dig. * Am.
78 SOUTHIDASTBBN BBFOBTBIB
qnlshed *n efforts to Meow poaiuBBloii of
petltltmer. Mrs. Pnckett owned at her dttth
eoiulderable personal proper^ and two hous-
es and lots In the dtr of Oalnerrllle, In tme
of which peWlmer haa been residing since
Mrs. Pncketfs death. Mrs. Pnckett left no
debtSt and her persooal projfioetj la more
than snffldrat to pay the expenses of her
last Illness and burial. The defendants, as
administrators, have addled for leavo to sell
the land of their Intestate, and the petltlonw
cannot make any legal objection to the grant-
ing of the order for leave to sell, except In a
court 0t eQolty. The administrators refuse
to recognize petitioner as baring any Interest
In the estate of their Intestate, but claim
that they and their sisters are her sole heirs
at law and entitled to the whole of the estate;
and the defendants have taken possession
of the personal property of considerable val-
ue. The prayers are that petitioner be de-
creed to be entitled to all of the estate of
Mrs. Pudiett; that the administrators ae-
connt for what assets may have come Into
their hands; that they be enjoined from pay-
ing any money to any person claiming to be
a distributee of the estate, from interfering
with her possession of the lot she Is occupy-
ing, and from procuring an order to sell the
realty of the estate; that the letters of ad*
ministration be abated and a receiver be
appointed ; and for general relief. The de-
fendants showed cause against the grant of
an injunction .and the appointment of a re-
ceiver by demurrer and answer. On . the In-
terlocutory hearing, the court heard evidence
and granted the prayers for injunction and
receiver.
[1] 1. A child may be adopted on applica-
tion to the superior court, and, after Judg-
ment of adoption, the relation between the
person asking for the adoption and the
adopted child shall be, as to their legal rights
and liablltties, the relation of parwt and
child. The adoi^d child Inherits from the
adopting parent, hnt the latter does not In-
herit from the former. CIrll Code, | 8016.
There was no evidence on the Interlocutory
hearing before the Judge that Mrs. Pnckett
ercr allied for or obtained a Judgmoit
adopting Mra. VUson as her child, thoi^
several neighbors testified that she declared
that she had done so. Whatever right, there-
tore, the prtltloner may have In Mrs. Pndc>
etfs estate depends, not upon her status as
a legally adopted child, hnt upon equities
growing ont of the agreucd^ of Mn. PndC'
ett to adopt aa a child, and the actbu taken
thereunder by the parties thereto and the
petitioner. The anthoritlea tot generally
eatabllsh the proposition that a parol obliga-
tion by a person to adopt the child of anoth-
er aa his own, accompanied by a vlrtnal,
though not a statutory, adoption, and acted
upon by both parties during the obligor's life,
may be enforced, upm the death of the obli-
gor, by adjudging the child otUtled as a
(Qa.
child to the property of the obligor who dies
without disposing of his property by wtlL
Tan Tine t. Tan Tine <N. J. IEq.) IS AtL
249, 1 L. B. A. 1S6; Tan Dyne Tredand.
11 N. J. Bq. 870; Sharkey v. McDermott,
91 Mo. 646, 4 S. W. 107, 00 Am. Bep. 270;
Haines t. Halnea, 6 Md. 48S; Jaffee t. Jacob-
son, 48 IM. 21, 1 a a A. 11. 14 L. B. A.
862; Healy t. Simpson, 113 Mo. 840, 20 8.
W. 881; Chebak t. Batties, ISS Iowa, 107,
110 M. W. 830^ 8 Ii. B. A. (N. S.) 1130, 12
Ann. Caa. 140; Gates t. Gates, 34 App. Dlv.
606, S4 N. Z. Soppw 404. In these and in
other cases various reaaona were urged
against the specific performance of such an
agreement
It was said that an agreement to adopt
a child Is too indefinite to decree suefa child
rights to property as an heir; but It was re-
plied that, where a parent surrenders his
child to another who acc^its the custody on
the promise to adopt the child 'as his own.
It cannot be doubted that the parties intend-
ed that the act of adoption, when consum-
mated, would carry with It the rlg^it of In-
heritance, and that equity would consldor
that done which ought to have been done
and decree the child's right to his Inherit-
ance as If formal adoption had taken place.
Another objection urged against specific per-
formance was that adoption was not recog-
nized at common law ; but, inasmuch as our
statutes Justify It, such a contract cannot
be said to be illegal or contrary to public
policy. Then, again. It was said that. If
the contract rested In parol. It fell within
the stotute of frauds ; but the full perform-
ance of the contract by the parent and by
the chUd In the assumed relation was deem-
ed sufficient to overcome this objection. An-
other obstacle urged was that such a con-
tract, if broken, was remediable in damagea,
but It was shown that, where the considera-
tion of the agreement consists in services,
companionship, and a change of domestic re-
lationship, Its value cannot be adequately
compensated In damages. So that it Is now
well established by authority that an agree-
ment to adopt a child so as to constitute the
child an heir at law on the death of the
poson adopting, performed on the part of
the child, la enftnveahle upon the death of
the person adopting the child as to property
Milch l8 nndispoeed of by will. Though the
death of the promisor may prevent a literal
enforcement of the contract, yet equity con-
siders that done which mtiA to have been
dime; and as one of the consequences, it the
act of ad<v>tion has beoi formally conanm-
mated, would be that the child would Inherit
as an heir of tbe aOf^itor, oqnlty will en-
ftnce the ^contract decreeing that the
child la entitled to the fniito of a legal adop-
tion. 1 Gy& 986; Parsona on Contracts (9th
Ed.) 406, 407.
[2] 2. ^e point upon wtMli the parties
In this eaae moat aerioualy ^^^-j^-^f^i^^
Ga.)
- 0B4.WF0RD
T. WHJBOK
33
of tbe plaintiff, who was aot a party ta(Jtbe
coDtract upon wblcb sbe lu'edicates ber claim
to relief, to bring this suit The contract
was ori^nally made by the {UaintUTs grandr
mother with tbe assent of her mother, and
was afterwards ratified by Mra Puckett with
the plaintlfiTs mother. When tbe contract
was made, tbe plaintUTs father had aban-
doned his family, and under the atatute the
father lost his parental control over the
plaintiff, which surrived to the mother. Civ-
il Code. { 3021; Sav., etc., Ry. Go. t. Smith,
83 Qa. 742, 21 S. E. 157. It was wltbJn tbe
power of the mother to make the contract,
and tbe anestlon la whether tbe right to en-
force It Inheres ^clnalrely In her.
Before adverting to our own dedslona, we
wish to call attention to tbe two general
roles on the subject of aiforclsg a contract
1^ a person for whose benefit It was made,
tiiongh be was not a pftrtr to It, known re-
spectively as the Bngllsh and American roles,
tile statement and ratfonale of which is bo
clearly made by liompkln, J., in -Sheppard v.
Bridges, 137 Oa. 616. 74 8. B. m The mod-
ttn English rale has been thus fornnilated
by Cotton, Lb X: "As a general role, a con-
tract cannot be Mftwced eze^ by a party
to tbe contract; and eittier of two parsons
contracting together can sue tbe other, if
tbe other is guilty «f a breach of or does not
perform the obligations of that ocmtract
But a third person, a person who Is twt a
party to the contract, cannot do so. That
mle, however. Is subject to this exception:
If the contract, although in form it Is with
A., is Intended to secure a benefit to B., so
that B. is entitled to say he has a beneficial
right as cestui que trust under tbe contract;
then B. would. In a court of equity, be al-
lowed to Insist upon and enforce tbe con-
tract" Gandy v. Gandy, 30 L. R. Cb. Div.
S7. The role which obtains most generally
In America Is that a person not a party to
the contract may maintain an action on It
If he Is a party to the consideration or tbe
contract was entered Into for bla benefit;
and, If the person for whose benefit a con-
tract Is made has either a legal or equitable
Interest In the performance of the contract,
be need not necessarily be privy to the con-
sideration. 9 Gyc. 380. An exception to the
general rule that a stranger to a contract,
deriving a benefit from It, cannot sue upon
It arises when the contract has been so far
performed as to change the condition In life
of the stranger and to raise In him reason-
able expectations gronnded on tbe conduct
of the contractor. Waterman on Specific
Performance, f 64. An Illustration of the ap-
plication of this principle Is given by this
text-writer, as, when a gentleman of wealth
enters Into an agreement with a poor man
that the former wlU toke the child of tbe
latter, briikg him up In affluence, and leave
him certain property, and there la part per-
formance^ tbe child Is .entitled to have the
78S.B.-8
agreement carried oot, "his right,** says tbe
author, "being derived, :not from the contract
Itself, but from what has been done under
It, and the wrong he will otherwise sustain."
Where one takes an infant into bis home,
and tbe child performs all tbe duties grow-
ing out of the substituted relationship of
parent and child, rendering years of service,
companionship, and obedience to the foster
parent, upon tbe faith that such foster par-
ent stands In loco parentis, and that opon
his death tbe child will sustain the 1^|»1 re-
lationship to his estate of a natural chUd,
there Is equitable reason that the child may
appeal to a court of equity to consummate,
so far as It may be possible, the foster Tpai-
ent's omlssioB of doty in tbe matter ot for-
mal ad<vtlon.
In the case at bar Mrs. Wilson was reoelT-
ed into the home of Mrs. Fuckett as a tlnree
months old Infant upon the promise by Mrs.
Puckett to ber mother to adopt ber bs a
child, ror 2S years Mrs. Pockett accepted
her service upon the nnderstaadlng that tbe
agreenunt with petttloner'a mother was the
basis of the relattonsblp existing between
them. Petltlcmer grew np as a datiful
dan^ter of ber foster mother; and lat
tor, most probably with affection for Mrs:
Wilson, and with a dedre to bind that af-
fection, never disclosed who ber mother wa%
and left It to be dlscovored by petitions
after ber death. Under tbe agreement be-
tween bar moOier and Mrs. Pockett, petition-
er ma to receive something b^ond the liter-
al terms of the contract The eontraetnal
obligation was to adopt petitioner as a child.
If formal adoption had been consummated,
then the law would have vested her with a
right of inheritance from Mrs. Pnckett, and
It is this right of inheritance which petition-
er is seeking to enforce In this action.
Therefore, when we consider that this ac-
tion is not to recover for services under her
mother's contract, but Is gronnded on what
was done under It, the changed domestic
relation which was contemplated to be ac-
complished by the contract, and the personal
rights which would accrue to petitioner from
the act of adoption by operation of law,
we see no reason why it cannot be maintain-
ed by petitioner In her own name.
In reaching this conclusion we do not
think that we run counter to any decision
of this court or statute of this state. The
statute declares that "as a general rule" an
action on a contract must be brought by a
party to It Civil Code, | 5516. Tbe statu-
tory statement that as a general rule only
a party to a contract can enforce it carries
with It the implication that there are excep-
tions to tbe general rul& The various ad-
judications of this court on the subject were
critically analyzed in Sheppard v. Bridges,
supra; and in that case It was held that.
If a beneficiary: of a contract though not a
party to it, ,atand In a Quad, truait-relatlon .
. Digifizedby VjOCglC
34
78 SOUTHBASTSRN BEPOBTBR
<Qa.
to ItB subject-matter, he may enforce his
rights under it In a court of equitj with
proper parties. The present case is to be
differentiated from the cases of Ounter t.
Mooney, 72 Ga. 205, and Cooper t, Glazton,
122 Ga. 696. 60 S. R Which concerned
suits at law by a child to' recover, as for
breach of contract made by the parent with
a stranger, the stipulated compensation for
the child's serrlces. In the present case the
subject-matter of the contract was that the
petitioner was to be adopted as a child of
the promisor, which contract, if it had been
consummated, would hare given petitioner
a beneficial right of Inheritance by opera-
tion of law and beyond the express terms of
the contract The suit is in equity, and
the changed domestic relation between the
foBter parent and foster child, together with
the right of inheritance under the law, as a
result of the changed parental relation, if
formal adoption had been consummated un-
der the contract, serves to bring this cai^e
within the exception recognized in Sh^pard
7. Bridges, snpra; Robson t. Harwell, 6
Ga. 680.
[9] 8. In the discussion of the foregoing
legal principle, we hare been considering the
case on demurrer, which, of course, admitted
the truth of the allegatious of the petition.
The petitioner submitted evidence to support
her allegations, to the admissibility of some
of which objection was made. The petition-
er's grandmother and mother were permitted
to testify to the contract claimed to have
been made with them by Mrs. Puckett, over
objection that, if they were acting as agents
for the petitioner, they would be disqualified
nnder the Civil Code. 1 5868. In the trans-
ection between Mr& Puckett and the grand-
mother and mother of the petitioner, the lat-
ter did not purport to be acting as agent of
the petitioner; neither are they suing to
enforce the contract with Mrs. Puckett The
fact that the petitioner may profit by their
testimony will not exclude them. They do
not fall within any of the classes of per-
sons declared to be incompetent by the (^vll
Code, I 6858; and the next section declares
that there shall be no other exceptions.
Jackson v. Gallagher, 128 Ga. 821, 67 S. O.
760.
[4] 4. One ground of tlie demurrer is that
U petitioner had a cause of action, she is
barred by her laches In asserting It The
defendants' intestate, according to the al-
legations of the petition, never repudiated
ber contract to adopt petitioner ; ou the con-
trary, it is alleged that she repeatedly ad-
mitted that she had - taken petitioner for
adoption as her child. It is alleged further
that up to her death Mrs. Puckett always
treated the petitioner as her diild. Not
only this, but Mrs. Puckett never disclosed
to petitioner the Identity of her mother, and
it was not until after Mrs. Puckett had
died that petitioner found her mothw. Adult
persons may be adopted in like mftimer as
minors. Civil Code, | 30ia In view of these
circumstances and the fact that the petition
was brought a few months after Mrs. Puck-
ett'B death, we do not tblnk the petittoner's
action Is stale.
[E] 6. The action was brought within 12
months from the appointment of the defend-
ants as administrators of Mrs. Puckett ; and,
inasmuch as the statute exempts adminis-
trators from suit for 12 months after their
appointment It is contended that the action
Is premature. Tbe statute pr(^blts suits
against administrators within 12 months
from their qualification on debts due by the
decedent Civil Code, 1 4015. This section
has no application to a case like this. The
defendants were applying for an order to
sell the realty of the Intestate. The peti-
tlouer had no legal status as a child and
could not contest with them her right to the
estate in the court of ordinary. It was nec-
essary for her to come into equity to estab-
lish her right to the property, and the ef-
forts of the defendants to sell property which
in equity belonged Id her would defeat ber
right to the property if she were required to
wait 12 months before bringing suit
[6] 6. The petitioner's right to the remedy
of injunction and receiver is also d^ed.
As we have Jnst said, she had no legal status
as heir; and, as only heirs and creditors
may contest with an administrator respect-
ing the administration of the property of his
intestate, she was forced Into equity to es-
tablish her equitable claim to the property
which defendants were proceeding to ad-
minister as the property of their intestate.
Having an equitable Interest In the property
of the defendants* Intestate, and presenting
a meritorious case for its recovery, she had
the right to preserve Its status until final
decree, and injunction is an appropriate rem-
edy for that purpose.
[7] 7. But we do not think that a receiver
should have been appointed. There Is no
charge of waste or mlsmauagement by the
administrators. It Is not alleged that they
perpetrated any fraud on the ordinary In
procuring letters of administration. If the
petitioner should fall to prevail on the final
trial, an administration of the estate would
be necessary ; and although it Is alleged that
the Intestate left no debts, and that her per-
sonal estate is ample to pay the expenses of
the last Illness and burial, these creditors
would be entitled to have an administra-
tion. The equitable claim of the petitioner is
to the estate after all debts are discharged.
The tact that the personal estate is ample
to discharge the expenses of the intestate's
last illness does not compel an abatement ot
the administration. Courts of equity are
slow and cautious about appointing receivers
to take charge of the assets of an estate in
the hands of a duly appointed administra-
tor, and will not Interfere with Ms posses-
sion of property onning into his hands as
the property of Qie Intestate^ jeiccept in cases
Digitized by LjOOg IC
WOODSON T. PAULK
35
where all the drcumstances Indicate that tiie
rlghta of all parties would thereby be more
effectually and eipedltiouBly protected and
enforced. The case preE«nted In Hill v. Ar-
nold, 79 Ga. 367, 4 8. E. 751. Is quite dls-
atmllar to the case at bar. There aa admin-
istrator was seeking to administer, as 5e-
tonglng to bis Intestate, property to which
the intestate had no title, whereaa in the
case at bar the petitioner's title Is derWa-
tive from the defendant's intestate and Is
dependent upon her eBtabUshlng such equita-
ble relation to it as to constitnte her the
sole heir at law of the intestate^ According-
ly that portion of the interlocutory Injunc-
tion pertaining to the appointment of a re-
cover Is emmeona, and in afflrmlng the judg-
ment we direct its modification to that ex-
tent
Judgment afflrmed, with direction. All
tbe JuBtlcea conenr.
CI» Ga. a!)
MAYOE, ETC.. OF MILLEDGBVILLB t.
STEMBKIDGEL
(Supreme Court of Georgia. April 17, 1013.)
fBylUthu by th« Oew^i
1. MUMOIPAI. GOBFORATIORB (I 84B»)— TOaTB
— DiVEBSIOIT or SUBTAOI WATSK— ACTIOK
FOB DAHAQBS— PKntlOR.
Where a plaintiff sues a municipality for
negligently diTertiOf water apon premises used
by Mm as a lumber yard and a place for con-
ducting a business of selling lumber and build'
ers* supplies, and one of the items of damages
claimed Is a nws sum, alleged to have been ex-
pended In filling up the ditches caused by the
overflow of water, so that the premises could be
restored to their former condition and nse, auch
allegations are not open to special demurrer on
the ground that the ehancter of the washes,
the necessity for repairs, and the Tarlons items
of payment should be more siwcifically stated.
[Ed. Note.— For othw cases, see Municipal
Corporations, Cent Dig. H 1796-1802; Dec.
Dig. 8 845.*1
2. MUWICIPAL COBPOBATIONS (f 835*)— TOBTB
— ^DlVKBSION OF SnBFACS WATEB— CON-
sisucnoir or Seweb— Liabujtt.
Where a municipality constructs a sewer
in an open drain in a street, which hitherto
has been sufficient to carry off the surface wa-
ter, and by reason of the construction of the
sewer the aufaee water is diverted upon the
premises of an owner of abutting property, to
the injury and damage thereof, a cause of ac-
tion arises. Langley v. City Council of Atigus-
ta. lis Ga. 591, 45 8. B. 486, 98 Am. St Rep.
1^: Mayor, etc., of Albany v. Silces, 94 Oa.
30, 20 8. E. 257. 26 L. R. A. 653, 47 Am. St
Rep. 132.
(Ed. Note.— For other cases, see Municipal
Corpontions, GenL Dig. | 178S; Dec. Dig. |
8. Dakaobb <ii 69, 220*>-Tbial rf S43*)-In-
TBRBaT—YBBDioT— Actions Ex Deucto.
In actions ex delicto the Jury may well
allow Interest as part of the damages. If in-
terest is allowed, it Is not recoverable eo nom-
ine, and the verdict should express the dam-
ages in an aggr^ate sum. But verdicts are to
t>e given a reasonable intendment ; and where
the Jury return a verdict in an ex delicto ac-
tion tor the plaintiff in "the sum of $200 prin-
cipal, interest $47.82, making principal and in-
terest ^7.82,** It win be upheld as a finding
for $247.82 damages. W. & A. R. Co. v.
Brown, 102 Ga. 13, 29 S. E. 130 ; T. T. & G.
Ry. Co. V. Butler, 4 Ga. App. 191, 60 3. &.
1087.
[Ed. Note.— For other cases, see Damages,
Cent Dig. « 137-140, 563-563; Dec. Dig. Sl
69, 220 ;* 'Trial. Gent Dig. f$ 800-&12 ; Dee-
Dig. S 343.*]
4. JUDQMEITT ArriBMXD.
The charge of the court was comprehen-
sive, and fairly submitted the issues, and was
not open to any of the criticisms made upon it
The' evidence authorized the verdict, which has
the approval of the trial judge; and no suffi-
cient reason Is made to appear why a new trial
should be granted.
Error from Superior Court, Baldwin Goun-
ty; J. B. Park, Judge.
Action by J. E. Stembridge against the
Mayor, etc., of MUledgevllle. Judgment for
plaintiff, and defendant brbigs error. At*
firmed.
Livingston Kenan, of IfilledgevUle, for
plaintiff In error. Allen & Pottle^ of Mill-
edgerHle, for defendant In wror.
EVAMB, F. J. Judgment afiBnned. AH
the Justices concur.
CMOS. 7S0
WOODSON T. PATTLK et al
(Supreme Court of Georgia. April 1% 1918.)
(BvUalm if ike Court.)
1. Haweebs and Pbddlbbs (I 4*)— PAwra
Medicine Ybitdbb — Tax — ComrsDiB&iB
SOLDIEB.
The decision In t^e ease of Smith v. Whld-
don, 138 Ga. 471, 75 S. E. 635, Is controlling
upon the issues in the present case.
[Ed. Note.— For other cases, see Hawkers and
Peddlers, Gent Dig. H 7-»; Dec Dig. | 4.«]
2. Onmovt Arntaao and DisnifotnaHED.
The case of Smith v. Whiddon, supra, aft-
er review, is affirmed, and distinguished from
the older case of Hartfield v. City of Columbus,
109 Ga. 112, 34 8. BL 28a
(Additlonat Svftahitt »v BiltorM BUtf.)
8. Hawkebs and Peddubs <| 4*)— "Ped-
DLIHO"— "BUSlHESa,"
"Peddling" is not covered by the word
"busiuess," as employed in Civ. Code 1910, |
1888, suthoriztng indigent and disabled Confed-
erate soldiers to peddle or conduct business
without paving a tax therefor, and hence it
does not follow from the fact that employ^ of
an indigent Confederate soldier conducting a
business need not psy the license tax that the
same privilege extends to the employ^ ol a
peddler who is an indigent Confederate soldier.
[Ed. Note.— For other cases, see Hawkers and
Peddlers, Cent Dig. i| 7-8 ; Dec Dig. { 4.*
For other definitions, see Words and Pbrases,
vol. 1, pp. 915-926; vol. 8, pp. 7593, 7594;
ToL 6, pp. 5260-6267 ; vol. 8, p. TTItO.]
Error from Superior Court, Turner Coun-
ty; Frank Park, Judge.
Action by C. B. Woodson against B. T,
Paulk and otbers. Judgment for defendants,
and plaintiff brings error. Affirmed.
other eas«s«MS«m«topl« sadsMtloa NUHfiBR la Osc Dig. A Am. Dig. Kw-No. Ssrlss
Digitized
36
78 SODTHSASTERN BEPOFRTER
(Oft.
Mann & MUner, of Albany, for plaintiff In
error. W. B. Wooten, SoL Oen., and I. J.
Hofmayer, both of Albany, for defendants
In error.
BECK, J. C. B. Woodson filed a petition
seeking to enjoin the sheriff and the tax
collector of Turner county, from collecting
a special or occupation tax from petitioner,
who was engaged in selling patent medicine
In Bald county. He alleged that he was In
no way Interested In the goods sold, except
as the agent and employ^ of T. P. Bontin,
who was an Indigent Confederate soldier re-
siding In Dougherty county, and he attached
to his petition a copy of a certificate issued
by the ordinary of Dougherty county, certify-
ing that the said Bantln was an Indigent
Confederate soldier, and as snch entitled to
the exemptions In snch cases provided by
law. When the case came on for trial, it
was submitted, by consent, to the Judge to
be tried by him without the Intervention of
a Jury. It appeared from the testimony of
the plaintiff that he had been employed by
Bnntln on salary, and that he "carried the
goods with Mm In a buggy and sold tbem
and delivered tbem on the spot" The court
refused to grant the Injunction, and the
Iflalntiff excepted.
[1] Upon a comparison of the facts In the
present case with those in Smith t. Wbld-
don, las Ga. 471, 75 S. E. 635, it will be seen
that the two cases present Identically the
same question. And there It was held : "Un-
der the provisions of section 946 of the Civil
Code, one who actually travels as a hawker
or vender of patent medicine Is liable for
the payment of the tax provided for under
that section, although he may not be tbe
proprietor of the articles sold or of the ani-
mals and vehicles by means of which the
articles are transported from place to place,
and be acting only as the agent and employ^
of a disabled or indigent Confederate soldier,
who, under the provisions of section 1888 of
the Civil Code, Is authorized to peddle with-
out obtaining license for the privilege of so
doing." That ruling controls tbe present
case, unless the rulli^ there made be upon
review reversed.
[2] A review of the case of Smith v. Whid-
don has been Asked in this' court; counsel
for the plaintiff in error contending that it
conflicts with the ruling in the case of Hart-
field V. Columbus. 109 Oa. 112, S4 S. E. 288,
and that tbe ruling made in tba latter case,
which Is the the older of the two, shonld
prevail, as it has never been reversed or set
aside. Upon a review of tbe Whlddon Case
we are satisfied as to the soundness of the
decision as rendered, and do not find that it
is in conflict with the ruUng made In the
Hartfield Case, after 0.vtag the latter case,
as well as tbe former, very careful consid-
eration. IB the Hartfield Case it was said:
"We accordiiicfly bold that a Oonfederftte sol-
dta- baring a proper (»rtincate trom tbe pi-
dinary may carry «n a draylng business
without paying any license' for the privilege
of so doing, and also without baring any
si>ecific taxes upon the drays used by talm in
connection therewith; and, further, that ho
may engage In selling wood and delivering
the same by wagons without becoming liable
for any municipal tax either upon his occo*
pation or upon tbe vehicles by means of
which his business la conducted. As a mat>
ter of course bis servants and employes are
also protected by tbe o^tiflcake under which
be operates, and cannot themselves be call-
ed upon to pay for any Qcense covered by
the exemption granted to him." Ttiis rul-
ing covers tbe precise issues made by the
facta of that case. Stated briefly and simply,
the rule laid down in the Hartfield Case Is
that a Confederate soldier having a proper
certificate may conduct a business and em-
ploy therein the necessary instrumentalltiea,
however numerous tbey may be, and employ
servants and agents to carry on the business,
and that both the instrumentalities and the
servants and employes are covered by the
exemption granted to the soldier.
[3] Now, If the expression, "conduct busi-
ness," includes peddling, then a Oonfedmta
soldier having the proper certificate could
engage and appoint others to do the peddling
for Mm, and tbey would be covered by the
exemption granted to the soldier holding the
certificate. But, wUle the term "business**
In its broadest sense might Include "ped-
dling" and wMle peddling is a form of busi-
ness, it will be seen from a condderation of
the decisions which are cited and quoted
from in tbe case of Smith v. WMddon, su-
pra, and of tbe statutes providing for Im-
posing a tax upon peddlers, and the cognate
sections of the Code, tliat ''peddling" is not
covered by the word "business," as employed
In section 1888 of Oie Civil Code, that being
the section under which Indigent and disa-
bled Confederate soldiers derive their rigbt
to peddle or conduct business without paying
a fee or tax therefor. The expression em-
ployed in the section last referred to, "peddle
or conduct business," tends to show that
peddling was not necessarily included in the
term "business." If so, it would have been
unnecessary to use both the expressions "ped-
dle" and "conduct buslnesa" TMs idea that
"peddling" is distinguished from "conductinK
business" is further emphasized by a consid-
eration of sections 1889, 1890, and other see*
tlons to wMcb we will r«fer later. In section
18S9 It is provided that Confederate soldiers
of a certain class are authorised to conduct
the business of traveling lite insurance
agents or solicitors, or fire Insurance agents
or Bolltdtors, and may "peddle in the state"
without obtaining a license therefor. Herc^
in section 1889, the vocation of peddling Is
kept distinct and separate from other forms
of business. And in section 1890 tbe Con-
federate soldier seeking to avail faimself ttt
tbe priTHege of peddllQg wlttietUr obtalalng
Digitized by LjOO<?IC
Ga.)
JOBNSON T. BBO0K8
87
I Ucenrie l* nqnlredi a« ft oondltlon preced-
ent to the exerdae of tbat i»lvU^, to go
before the ordinary of the coonty of his reai-
dence, and make an affidavit wherein he
riuUl statu, among vtbeae things, "what bnsL-
neas he itroposea to conduct, and, If he pro-
poses to peddle^ state that the business
irtiich be pnvoses to carry on Is his own«
and that he will not sell, or offer to sell,
any article for another, dlrecty or Indirect-
ly." This qnotatlOQ la priimrlly for
the purpose of showing that the vocation of
peddling was k^t distinct in the l^lelatlTe
mind, in these sections relating to peddlers
and peddling, from *'oondiietiag a boalneBi^"
in the general and broad sense of the term
bnstnees. And It may be remarked, before
passing frwn a ouulderation of that portion
of section 1890 of the CItU Code which we
bare Just set forth, tbat the Confederate sol-
dler BvaiUng hlms^ of the privilege ctm-
ferred by these sections relating to peddling
most take an oath that "he will not sell, or
offer to sell, any article for another, ^rect*
ly €T Indirectly" ; which would hardly be re-
onired of him if he were proposing to carry
on a bnatnesB^ using the term in its brtnd
and general senses We do not overlook the
tact tbat the class of Confederate soldiers
referred to in section 1880 Is that of Con-
f6d»ate soldiers who have attained the age
of fiO years, while section 188S relates only
to disabled or Indlgeat scddiers. But tbat
difTerence in the class of sohllers dealt with
In no wise affects the force of the observa-
tion that in the legislative mind "peddling'
was kept distinct from "business" used in Its
broad and general sense. There are other
sections of the Code showing that peddling
and the peddler are dult with as subjects
of police regulation, and not merdy as
subjects of statutes intended to raise reve-
nue, snCh as those imposing taxes upon occu-
pations. And very properly so, when we
consider the fSct that the peddler under Ids
license travels tnm place to place in the
county, and enters the homes of citizens in
order to »Iilbit his wares. The law requires
a showing of good character to be made on
the part of a v^non who desires to peddle,
and of the snffldency of such proof a re-
lESKmslble official of the state is made the
judge. In dealing with the subject of grant-
ing prlTll^res to Confedwate veterans the
Legislature apparenty felt that an indigent
Oonfedmte veteran might be treated as be-
ing a pers<m of good character, without re-
quiring sacb proof as was demanded team
othen desiring to peddle- But It by no
means follows,- because the Indigent Confed-
erate veteran may be considered as a person
of good character, tbat every other person
who may be seekii^ to travel about the state
and enter the homes at the people to exhibit
goods or ptopecty for sale, under the cover
of a certlOcate granted to a Confederate vet-
eran, may be assumed to be of equally good
(ihanicter. The Uberali^ df the state to-
wards its Ccmfederate veterans did not go
to this extent In this connection we <!all
attention to sections 1886 and 1893. In sec-
tion 188S it is provided that every peddler
must apply to the ordinary of the county
where he desires , to trade for a license,
"which shall be grantMl to him im the terms
said ordinary has or may Impose. They are
authorized to Impose such tax as they may
deem advisable, to be used for county pur-
poses;" And in sectifHi 1893 it is prodded
that: "Every peddler shall famish said or^
dlnary witb evidence of bis good diiracter,
and shall take and subscribe before him this
oath: •! swear that I will use this license
In no other county than the one fbr irtddi
It is granted, nm suffer any person to use
it in my name^ and tbat I am a dtisen of
this stata So hdp me Ood.* " Sudi enact-
ments as these, wUdi deal with peddling as
a "thing apart* from bnslnesa In ito ordinuy
senssb considered In connection with the oth-
er statutes which we liaTe refWred to or re-
cited above, strwigthen us In the conclusion
announced, that the deeiil<m of our court
dealing with the right of a Confederate aoU
dier, exempted from the necessity of obtain-
ing ft license to conduct a business and em-
ploy therein the necessary Instnunentalltles
and agents Is not controlling upon the gues-
thm as to whether 13ie soldier thus exempted
may said out another person as- a peddler,
and whether the parson thus sent out and
who does the ftctual peddling and hawking
of the wares may cSaim the cover, of the ex-
mptlon. For these reasons we are of the
tq^nlon that the case of Hartfleld v. City of
Columbia, which deals with conducting busi-
ness In its general sense and not with "ped-
dling,** la clearly distinguishable from that
of Smith V. Wblddon, and that the latter
should be held to Iw controlling In die pres-
ent case.
Judgment affirmed. All the Justices con-
car.
(IM oa. «7)
JOHNSON T. BROOKS et ai., Oom'is of
Boads and Bennues.
(Snpreme Court of Georgia. April 18, IMS.)
(Syllahut by the Court.)
Judges <S{ 7. 22")— Offickbs (| 63*}— Abah-
DONUBNT or OlTICX— BZOBT TO GOHFEHBA-
TIOIT.
Petitioner for msndamas wtm appointed
for iudge ot the city court of Newton for the
term of four rears from November 1, 1906, and
UDtfl his Buccessoc should be appointed and
qualified. He qualified and discharged the du-
ties of the office until January 1, 1911. In
August, 1010, he was appoiuted for a like term
from November 1, 1910, but received no com-
mission under the reappointment until January,
1012, and did not qualify thereunder until that
time. After his reappointment in August, 1910,
the General Assembly passed an act abolislilag
the city court of Newton on and aftei* January
1, 1911, provided the act should be approved
9— nm* topic aod ucttoo NUUBBR in Dec. Dig. ft Am. Dllt. Key-:
38
78 SOUTHSASTBRN BEPO&TEB
by s majority of the qualified voters of Baker
coonty at an election to be held as designated
by the act An election was held in October,
1910, which resulted in the approval of the
act In January, 1912, the Supreme Court of
this state held the act to be nugatory and in-
effectual. Iq obedience to the act and the re-
sult of the election, all the records, boohs, pa-
pers, etc, in the office of the cleric of the city
court were taken possession of by the clerk , of
the superior court of Baker county, who was
ez officio clerk of the city court; and, accept-
ing the act and the election as valid, petitioner
on this account alone failed to discharge any of
the duties of the office of judge of the ci^
court during the year 1911. Held, (1) that peCi*
tioner was Judge of the city court durinx the
year 1911 ; <2) that he never abandoned the
office; (3) that he was entitled to receive the
salary annexed to the office for the year 1911;
(4) that the judge erred in granting a nonsuit
[E3d. Note.— For other cases, see Judges, Cent
Dfe. SS 24-28, 75-88, 179; Dec. Dig. « 7. 22;*
Officers, Cent Dig. 8 04; Dec. I>ig. | 63.*]
Error from Superior Court, Baker County;
Frank Park, Judge.
Petition b7 A. 8. Jotinaon against J. W.
Brooks and otbers, commladonerB of roads
and roTenues, tot mandamus. From a judg-
ment for defendants, plaintiff Iwlnga error.
Reversed.
Benton Odom, of Newton, W. L Geei', of
Colquitt, H. M. Calhoun, of ArUngtoo, L. H.
Ram bo, of Blakely, and B. B. Cox, of Camil-
la, for plalntlfr In error. EL M. Davis, of
Camilla, B. J. Bacon, of Albany, and Spoice
& Bennet, of OamUIa, far defendants In error.
FISH, C. J. In January, 1912. A. S.
Johnson brought bis petition for mandamus
against the county of Baker and the commis-
sioners of roads and rey^ittes thereof to com-
pel the commissioners to issue a warrant to
the treasurer of the county In favor of pe-
titioner for salary claimed to be due him as
Ju<^ of the clt7 court of Newton by the
county for the year 191L On the trial of
the case before a jury, tbe following facts
were made to appear in behalf of the pe-
titioner; Petitioner was duly appointed and
commissioned as Judge of the dty court of
Newton on August 18, 1906, for tbe term of
four years from Noveml}er 1, 1906, and until
his successor should be appointed and quail-
fled. He qualified aa judge on the last-nam-
ed day, entered upon the discharge of the
duties of the office, and continued to perform
them until January 1, 1911. On August 9,
1910, he was reappointed judge of tbe dty
court for a term of four years from Novem-
ber 1, 1910, but no commission was Issued to
him under this last appointment until Jan-
oary 25, 1912, when he qualified by taking
tbe oath of office. On August IS, 1910, the
General Assembly passed an act abolishing
the dty court of Newton on and after Janu-
ary 1, 1911, upon condition, however, that
Che provisions of the act should be ratified
by a majority of tbe qualified voters of
Baker county, at an election to be held for
the purpose of submitting to the voters of
that coun^ the question whether the act
should become t^ratlve. On October 5, 1910,
an election was accordingly held, and a ma-
jority of the qualified voters of the county
voted In favor of the abollstuneDt of the
court; and the commissioners of roads and
revenaes of tbe coanty on die same day de-
dared the result of the Section, and tbat
the court was abolished from and after Jan-
uary 1, 1911. The act establishing the dty
court (Acts 1900, p. 806^ | 7) made the Clerk
of tba snperlfff eonrt of Baker coonty tx
offldo clerk of the dty conrl^ and the act
for the abolishment of said court provided
that "all records, papers, books, suits mesne
and final processes of in^utever natnz^ and
all criminal cases tbat may be pending in
the dty court of Newton at the time this
act goes into effect as aforesaid be, and tbe
same are, hereby transferred to the superlOT
court of Baker county for trial and disposi-
tion.'' Acts 1910, p. 20L On January 1,
1911, the derk of the superior court of Baker
county took charge of all tbe records, papers,
books, dockets, etc, at that time in Ha oi-
fice of the dark ot the city court On Jan-
uary 22, 1012, tbe Supreme Court of tbe
state tn Cook t. State, 137 Ga. 486, 78 S.
E. 072, held the act to abolish tbe d^ court
of Newton to be nugatory and ineffectual,
because it failed to' provide how the election
therein mentioned should be held, who should
hold it, to whom the returns of the election
should be made, and whose duty it should be
to declare the result of such election. After
the rendition of this decision, Johnson, the
petitioner, made written demand upon the
commissioners of roads and revenues of
Baker county that they issue to him a war-
rant for his salary as judge of the city court
for the year 1911 on the treasurer of the
county, which demand was refused. On ac-
count of the passage of the act conditionally
providing for the abolishment of the city
court and of the result of the election held
in accordance therewith, and acquiesdng In
the presumed validity of such act, and of
the election, petitioner made no objection to
the taking by the clerk of tbe superior court
of the records, dockets, papers, etc, in the
office of the derk of the city court, and for
the same reason never made any demand
upon the clerk of the superior court for such
records, books, papers, etc., and for the like
reason petitioner performed no duties as
judge of the dty court during the year 1911.
Petitioner testified that he did not voluntari-
ly give up the office of Judge of the dty
court, but that he merely failed to act as
judge during the year 1911 in obedience to
what he thought to be the law. A nonsuit
was granted and the petitioner excepted.
In our opinion the court erred in granting
a nonsuit As the act providing for the abol-
*ror otbsr eaiM sm urn* bvlo and section NUKBBB In Dec. Dig. A Am. Dig. Key-No. Series ft
Digitized by Vj
JOHNSON BROOKS
89
Iduamt of tbe city court of Newton was
nugatory and In^ectnal, the court, of course,
was not abolished, and it Is equally manifest
that the oQice of Judge of the court baa con-
tinued to exist; and as the petitioner was
appointed Judge of the court for the term
of four years from NoTember 1, 1906, and
until his successor should be appointed and
qnalifled, and though he was appointed as
his own successor, no conunlsslon was Issued
to him until January, 1912; and, as he did
not qualify until then, it follows, with the
same certainty as the other results Just an-
nounced, that the petitioner held the office
of Judge of the city court during the year
1911 (GItU Oode, I 2«1; Shackelford t. West,
138 Oa. 159, 74 & B. 1079), unless his con-
duct and his failure to p^orm the duties
of the office In the drcnmstances above set
forth amounted to an abandonment of the
office, as was contended to be the case by
counsel for the defendants In error, who re-
lied upon Civil Code, | 291, par. 7, which
Is to the efTect that all offices in this state
"are vacated by abandoning the office and
ceasing to perform its duties, or either."
This ' language of the Code means the will-
fnl and voluntary forsaking or relinquish-
ment of the office or of the right to hold the
same, or a willful and voluntary failure to
perform the duties of the office, and not a
ftillure to discharge its duties by reason of
the acquiescence In the validity of a statute
until It is Judicially declared to be nugatory.
In Tumlpseed v. Hudson, CO Miss. 428, 19
Am. Bep. 16, the plaintiff was elected to an
office In 1871 for the term of four years. In
1873 an act was passed by the Legislature,
providing for an election In November of
that year to ffil the office. Among the con-
testants for election were the plaintiff and
defendant, who entered into a written agree-
ment to abide the result of a primary elec-
tion. At the primary the defendant was
selected, and In November he was elected,
and thereupon qualified and took possession
of the office, plaintlfF surrendering the same.
The statute was subsequently decided to be
unconstitutional and the election void, and
the plaintiff brought his action to recover
possession of the office. It was held (1) that
the plaintiff was not estopped by the agree*
ment with the defendant ; and (2) that such
agreement and the surrender of the office
by plaintiff did not amount to an abandon-
ment or resignation. In Hampton v. Dllley,
3 Idaho (Hash.) 427, 31 Pac. 807, the fol-
lowing facts appear: Hampton was duly
elected Judge of the probate court of Logan
county at the regrilar election in 1890. The
I«eglslatare on March 3, 1891, and after
Hampton had taken office In pursuance of
meb election, passed an act creating the
counties of Alta and Uncoln out of the ter^
xttory ttaeretftf ore oompriaing the coontiea of
Alturaa and Logan. When the act was pass-
ed, Bellevue was the county seat of Logan
county. Under the act, the town of Sho-
shone was made the county seat of Uucoln
county, and the town of Bellevue was In-
cluded within the boundaries of the county
of Alta. Upon the passage of the act, the
Governor immediately appointed various per-
sons to fill the several coun^ offices of Alta
and Lincoln, and among them Hampton was
appointed probate Judge of Lincolu count?.
He accepted the appointment and at once
qualified. The board of commissioners of
Logan county, refusing to recognize the va-
lidity of the act, immediately on the ac-
ceptance by Hampton of the appototment as
Judge of the probate court of Lincoln coun-
ty and his qualification as such officer, ap-
pointed DlUey probate Judge of Logan county
and Installed him In office. The Supreme
Court of the state subsequently held the
above-mentioned act to be unconstitutional.
Thereupon Hampton demanded of Dllley the
possession of the office of protmte Judge of
Logan coun^, which demand* was refused.
Hampton then Instituted proceedings against
Dllley to recover possession of that office; and
It was held by the Supreme Court of Idaho
that Hampton was entitled to recover. While
we are not to be taken as agreeing to all
that is said In the opinion rendered In the
two cases dted, we think the conclusions
reached are sound; that is, In effect, that
the mere acquleecence by the office In the
validity of a statote purporting to abolish
the office held by him, and his ftiilure on
that account alone to discharge the duties of
the office, do not amount to .an abandonment
of the office, where such statute Is subse-
quently held to be unconstitutional or oth-
erwise Invalid.
We have no doubt of the right of petition-
er to recover his salary as Judge of the dty
court of Newton for the year 1911, notwith-
standing under the facte of the case he dis-
charged none of the duties of the office dur-
ing that year. "It has often been held that
an officer's right to his compoisatlon does
not grow out of a contract between falm and
the stete or the municipality by which it
is payable. The compensation belongs to the
office, and Is an Incident of his office, and
he Is entitled to It, not by force of any con-
tract, but because the law attaches It to the
office." Throop on PubUc Officers, | 443. It
follows that the roles of law relative to con-
tracts do not apply to the official relation;
and therefore the fact that an officer has not
performed the duties of his office does not
deprive him of the right to the salary at-
tached thereto, provided his conduct does
not amount to an abandonment ot the <^oe.
29 Cyc. 1422.
Judgment rerecaed. All the JosUcea cod-
cut.
Digitized by Google
78 S013THEASTERN REPORTER
(Oa.
(U9 Oa. m)
MARTIN V. GAISSERT.
(Supreme Court of Georgia. April 17, 1013.)
(SvllaJmt hy the CourtJ
EXXCUTOBB AND ADMINISTBATOBS (S 176*)—
Widow's Sbppobt— Riqut to Aixowahcb.
Where application was filed by a widow,
under sectiona 4041 and 4042 of the CivU Code
1910, for a second 12 months* support for her-
selt, and on tlie trial of the case It appeared
that there were debts to pa; by the estate of
the testator, by virtue of whose will the estate
was being kept together. It was not error for
the trial judge to direct a verdict for the ez-
ecator against whom the application was filed.
[Ed. Note.— For other cases, see Executors
and Administrators, Gent £Hg. H 661-666;
Dec. Dig. S 176.*]
Error from Superior Court, Morgan Coun-
ty ; J. B. Park, Judge.
Actton by M. O. Martin against J. H. Gals-
sert, executor. Judgment for defendant, and
plaintiff brings error. Affirmed.
■ Zach Martin died In 1907, leaving a will
and nwn'^ng J. H. Oalssert- a> executor, who
quallfled aa such. Tbe testator left Ills wlf^
the plaintiCr In error here, and their son,
Steven B. Martin, as hia onl7 at law
and legatees under bis will. After tbe pro-
bate of tbe will In solemn form, the widow
made application for a year's support, and
Bbe was awarded tbe sum of f2,300, whlcb
was paid by tbe executor. Tbe executor re-
moved the administration of the estate from
Fulton county, where the testator died, and
where the will was probated and the flrst
12 months* support was granted, to Morgan
county, the place of his residence. There the
widow applied for a second year's support,
and to which application the ^ecutor filed
a demurrer and a caveat The widow was
awarded as a second year's support the sum
of $1,000. Both parties appealed from this
award to the superior court by consent. On
the trial of the case the plalntitf introduced
in evidence certified copies of the will and
of the Inventory and appraisement ; the lat-
ter showing the estate to have been appraised
at about $27,000. The testimony for tbe
widow tended to show that she had been
paid the sum of $2,300 as the flrst year's sup-
port, and that it required the whole of this
amount to meet her necessary exposes for
that year. The second year her health had
. Improved somewhat, and U required $1,200
for her support for the second year, and that
was the year the second application was
made. On cross-examination she testified
that she bad brought suit in Morgan superior
court against tbe executor to recover $2,058l-
37 whlcb the testator bad collected for her
in 1006 and deposited In bank in his own
name and never paid to her, and that suit
is still pending In court Also her suit
against J. H. Qaissert, executor, and Steven
B. Martin, for cancellation of a deed to cer-
tain real^ In Atlanta, and for tbe rents
thereof was filed In Mo^n superior court
on March 28, 1910, and wblcb Is stUl paid-
Ing.
The material portions of tbe will are aa
follows : "Item Second. X give and bequeath
to my wife, MolUe O. Martin, three thous-
and ($3,000.00) dollars Insurance In tbe O. R.
C, having already given ber six tbonsand
($6000.00) dollars; ateo my personal prop*
erty, except <me diamond ring once tbe prop*
erl; of my deceased danghto:. Item Third.
I wlU and direct that all tbe net Income of
my real estate, including notes and moneys,
be equally divided between my wife, MoUle
O. MarUn, and my aon, Steven B. Martin, my
wife to recdve ber part of tbe Income as
fast as collected during ber natural Ufa
Item Fonrtb. I direct tbat tbe part my acm
is to receive be beld In tmst by my exec*
ntor, unless my son become beUiless and In
want ot tbe necessities of life ; tbm my exec*
ntoi shall use bis own discretion as to bis
condition, and no oUier person to be cared
for or receive any benefit tbrongb or on ac-
count of my son Steven B. Martin. Item
Flftb. I will and direct that my executor
bold my estate togetber dnring my b^ved
wife's, MolUe O. Martin, natural life. In
the case of her death before ten years from
date of tbls will, I desire that my estate be
beld In tmst tUl Fobmary lltb, 1916. then it
shall be vested in and become the property
In fee simple to my son Steven B. Martin.*'
Tbe defendant testified that be paid an
of tbe debts of the estate of Zach Martin be-
fore tbe end of the year 1908, and that he
was holding the estate of the testator as di-
rected in item 6 of his will. At the close of
the testimony the court directed a verdict for
the defendant, on wUch ruling tbe plaintiff
assigned error.
F. a Foster and B. W. Butlw, both of
Madison, and Westmoreland Bros., of At-
lanta, for plaintlfl in error. 8. H. Slbl^, ot
Union Point, and Qeorge & Anderson, of
Madison, for defendant in wror.
HILL, J. The right to a second year's
support allowed a widow out of the estate o£
her deceased husband Is a statutory right;
and can only be obtained under strict con-
formity to the conditions of the statute.
Civil Code, | 4041, provides for the setting
apart of a year's support to a widow, or to a
widow and minor chHd or children only,
and Is ranked among the expenses of admin-
istration, to be preferred t>efore all other
debts, other than the exceptions made in
sections 4048 to 4060, Inclusive. By section
4042 a second year's support may be bad by
the widow, provided she comes within tt»
terms of that statute. One of the prereq-
uisites is that "there are no debts to p&j."
It becomes material to Inquire, therefore,
whether there are "debte to pay" In this
Vor oQkwr casM sm tama toplo and SMtUm MUHBBR in Dm. Dig. ft Am, Dig. Kay-No.
Digitized
Qa.)
WILSON T. WILdON
41
case. Tbe evidence shows tbat the widow
herself has filed suits against the estate
amountlDg to several thousand dollars toi
money claimed to be due her by the estate.
It cannot be held, at least at the Instance
of one asserting herself to be a creditor of
the estate, that under these circumstances
there are "no debts to pay." It certainly
was not the Intention of the statute to allow
the widow, or widow and minor child or
children, or minor child and children only,
while there Is pending litigation against the
estate, by repeated applications year after
year, to exhaust the estate, and thus defeat
the purpose of the will of the testator. It
will be borne In mind that this is not a case
of Intestacy and pending litigation where
tlie estate Is to be kept together until the
litigation ends or for other reasons. But
this Is a case where the testator has provid-
ed by will for the support of bis widow.
By the third item of his will he directs "that
all tbe net income of my real estate, includ-
ing notes and moneys, be equally divided be-
tween my wlf^ Hollie O. Martin, and my
son, Steven B. Martin, my wife to receive
her part of the Income as fast as collected
during her natural life." Tbe plaintUf In
error has already had one year's support,
amounting to ^,300. The first year's sup-
port Is Intended for the purpose of provid-
ing for the necessities of the decedent's fam-
ily for 12 months, within wtilch time the ez-
aeutor ts required to collect the debts due to
the estate and assent to and turn over tbe
legacies devised by the wUL The record In
tbe present case shows that tbe Income froin
the property devised In item 3 of the testa-
tor's will has been turned over to the widow.
Whether this amount is sufficient for her
support 1b not for onr dedston. But to hold
that It la not, and that a year's siq)port can
be set aside year after year, and thus ez-
banst tbe estate, would be to set aside bar
hDsband's will, as said by Mr. Justice Sim-
mons in tile case of Hill v. Lewis, 01 Oa. 796^
798, 790, 18 S. E. 83, 64. In that case he
■aid: "To allow a widow * • • and
have tbB whole property set apart to faer as
a support for all the years she has Uved on
It, would be to allow bar to set aside. hw
husband's will of her own volition, and to
d^nlve the remaindermen of tbe provision
left for them by their father. We are sore
tlie law will not antborlce sndi a iffoceed-
Inc." The ettttct of such policy would be to
eonsnme the whole estate before final dis-
tribution, whldi was never contemplated by
the lawmates or by the testator.
But It is Insisted that under the ruling In
the case ct Woodbrldge v. Woodbrldge; 70
6a. 783, although there are debts to pay, if
there is still enough left over of the estate
to supply tbe widow's wants, she should be
paid her second year's support The argu-
ment la that tbe question at last Is between
the widow and ttw creditors of taw estate^
This view leaves entirely out of cmsldera-
tlon l^tees and remaindermen under the
will, who certainty have rights— to say noth-
ing of the testator's intention. It no one
were lntu«sted but the widow and the cred-
itors of the estate, this position might be
tenable, and especially when the widow was
both the applicant for the year's support and
the creditor, as In tbe present case; but it
leaves entirely out of consideration the t«-
tamentary scheme and those who are inter-
ested as legatees or remaindermen under
the wiU. It is further Insisted that this
court held in the Woodbrldge Case, supra,
that the widow need not allege in bear appli-
cation that there are no debts to be paid, as
that would be a matter of defense. We have
examined the Woodbrldge Case, Including tbe
original record, and what was there said to
the effect that 'If tbe estate, ,nnder the facts,
should prove sufficient to pay off the debts
and also provide a reasonable support for
the widow dnrli^ the time the same may be
kept together, then the widow Is entitied to
snch allowance," was obiter dictum. The
statute is plain and unequivocal that the
widow is fflitltled to the second year's sup-
port undor the condition named, "and there
are no debts to pay." We cannot enlarge
the statute beyond the limits prescribed by
the Legislature. It Is within their province,
and not onrs, to extend tbe provisions of
the statute, if they so desire. Until such
time as they see fit to do so, we must con-
strue the statute as we find it The record
shows that there axe debts to pay relatively
to the applicant in this case, and therefore
the court did not an In dlxectlng a nrdlct
for the defendant
Judgmmt affirmed. All the Justices coft*
ear.
(U» OS. 731)
WILSON T. WILSON.
(Supreme Court of Georgia. April 18, 1918.)
(8yU9hiu &v the Courts
1. EXECUTOBS AND ADUIKISTRATOBS (| 1S*>—
Qualifications— Obdikast.
An ordinary cannot set as executor In the
county of which be is ordinary.
[Ed. Note.— ror other caaee, see Executors and
Admi^nistrators, Cent Dig. |i U2-VS; Dec. ZNg.
Will AnicnTBO to Pbobatb, 9ut Exioa-
TOB Not Allowed to Qualift.
Where, In such a case, the execntor, wlio Is
also the ordinary, files with tbe clerk of tbe
superior court (there being no judge of the city
or coonty court) a petition to probate the will
in common form and to bave himself qualifi^
as executor, and the clerk orders tbe will to
probate, and also allows the executor: to qualify
as audi, and where the case la appealed to the
anperior court and the trial Judge hears the
case without the tnterrentfon of a jury, and
readers his dedrion affirming the judgment of
tbe clerk as to tbe probate m tbe will, but re-
versing the judgment that the executor conU
gnali$ as snch, there was no error.
Dig. Kay-l^^Ptt^l^
*For eUiar saaas ■•• lame topla and aaeUim MtTICBBR la Dae. Dig. A Am,
42
78 SOU^BASTEBN REPORTER
Emnr from Superior Court, Taylor Coun-
ty; B. P. Gilbert, Judge.
Petltton by W B. Wilson to be allowed to
qualify as executor of tbe will of Robert E.
WilBon. The superior court reversed an or-
der of tbe clerk allowing him to qualify, and
he brings error. Affirmed.
W. D. Crawford, of Buena Vista, for plain-
tiff in error. C. W. Fay, of Butler, tor de-
fendant In error.
HILL, J. Robert E. Wilson died testate
In JSovember, 1911, and named W. B. Wilson,
his father, as executor of his last will and
testament W. B. Wilson at the time of the
death of his son was the ordinary of Taylor
county. On December 26, 1911, the named
executor presented tbe will, with an Indorse-
ment thereon of his disqualification as ordi-
nary to act in the matter of its probate, to
the clerk of the superior court of Taylor
county for probate In common form. There
being no city court or county court judge in
Taylor county, it was agreed upon the trial
that the clerk of the superior court had juris-
diction to probata tbe will. The petition was
accordingly heard by the clerk. A careat
was filed by the widow and sole heir at law
of the testator to tbe probate of the will
and to the right of tbe named executor to
qualify, upon the grounds: (1) That the
testator being a resident of Taylor county
at the time of bis death, the conrt of ordi-
nary of that county had excluslTe jurisdic-
tion of the probate of bis will. (2) That the
nominated executor of the will was also the
ordinary of Taylor coon^, and therefore in-
eligible to qualify and act as executor of
any will over which hia court had jurisdic-
tion, and, baring no other Interest, could not
offer the will for probate. On hearing the
case, the clerk, acting as ordinary, passed
an order probating the will, and allowing the
petitioner to qnalify as the executor thereof.
The caveatrix appealed from this decision
to the superior court By consent of the par-
ties the trial judge beard the case without
the intervention of a jury, and rendered
judgment allowing the decision of tbe clerk
to stand as to tbe probate of the will, but
reversed it as to allowing W. B. Wilson to
qualify as executor, and Wilson excepted.
[1, 2] 1. The sole question to be determined
In tba ease Is whether the ordinary of a
eounty, who has been named as executor,
can qualify and act as such In tbe county
of wblcb he Is ordinary. The Civil Code, {
4786, provides: "Tbe ellgibUlty and disabil-
ities of tbe ordinary, aside from the Constl-
tntton, are On same as tbe clerks of the
superior courts for tbelr t^ces, with tbe ad<
ditlon that tbey cannot, during tbelr termn
of office, be executora, admlnJabrators, or
guardians, or otber agents of a fldndary
nature required to account to their courts;
but tbey may be administrators, guardians,
or executors in cases where the jurisdiction
belongs to another county, or where, In we-
dal cases, they may be allowed by law and
required to account to the ordinary of an-
other county." This section of the Code by
express terms renders any ordinary IneligiUe
to act aa an executor during his term of
office where as such executor he would be
required to account to the court of ordinary.
In tbe present case the ordinary applied for
the executorship during his term of office.
While he remained in office as ordinary, be
would be accountable to himself. It la true
that by the terms of the will be was relieved
from giving bond, or from making any re-
turns to the ordinary. But this provision
in the will does not relieve bim from being
subject to the jurisdiction of the court of
ordinary with respect to bis otber acts and
doings as executor. For Instance, should
he refuse to make settlement with the leg-
atee, or legatees under the will, he (as exec-
utor) could be cited to appear before . him-
self (as ordinary) to make settlement with
any legatee. Civil Code, i 4073. Section
4787 goes to the extent of declaring that
when any persons holding such trusts as
executors, etc., are elected ordinaries, their
letters and powers immediately abate on their
qualification. The whole scheme of our law
with respect to tbe estates of decedents is
to put tbem under the control and supervi-
sion of the ordinary. Aside from the express
iuhibition of the statutes, it would be con-
trary to public policy to allow an ordinary
to become executor, guardian, etc, of vari-
ous estates, and thus disqualify bim to that
extent from discharging the duties be was
elected to perform. By so doing, he could
greatly Impede and retard the transaction
of business before his own court, and greatly
Inconvenience and hamper the administration
of estatea If he can act as executor of one
estate, be could of a dozen or more, and like*
wise as guardian of any number of minora,
and In this way create endless confusion by
occupying two relatlona utterly inconsistent
with each otber, and thus interfere with
the orderly process of business before his
court
Judgment affirmed. AU tbe Justices con-
cur.
cm Oa. 876)
8TRIBUNG et aL v. GEORGIA RT. ft
POWER CO.
(Supreme Conrt of Geoi^ April 18, 1013.)
(ByUabtu by the Judge.)
1. APFK&I. AKn EteBOB (I 801*}— Dl8]fI8BU<—
iNJDNCnoK.
Where an InjanctioD Is denied, and the de-
cision is brought to the Supreme Court by writ
of error, but do supersedeas la granted, a nra-
tion to dismiss such writ of error, on the ground
that before tbe hearing in this court the act or
•For otber casw sw hido topic and SActloo NUHBKB la Ow. Die. A Am. Dig.
BTItZBI.mO OBOBOIA BT. * FOWSB OO.
48
nets against wUdi tt was sought to enjoin have
been completed, viU be denied when tiie evi-
oence offered by the detendunt in error lu sup-
port at the motion to dismiss is controverted
by th« opposite party ai to facts material to
the ground of the motion.
{Kd. Note. — For other cases, see Appeal and
grror^ Cent Dig. St ;ilBl-mt54; lyec Dig. i
'i. IfilUNBHT DOUAIN ({ fi2*)— SXEBOISE OT
POWEB.
Where prorialoB is made by sections K240
and 5241 of the avil Code of 1910 for the exer-
cise of the right of eminent domain in connec-
tion with the generation and transmiesion of
electricity (or supplying light, hut, and power
to the pnUi& and section fi242 declares that
**the power given under the two preceding sec-
tions shall not be used to interfere with an;
mill or factory actually in operation," the pro-
hibition contained in the last section applied
to miila and factories operated by steam power,
as well as to those operated by water power.
[Ed. Note.— For other cases, see Etoinent Do-
main, Cent Dig. SS 121-130; Dec. Dig. | 52.*)
3. Appeal and Ebbob {% 947*)— RBrDSAL lO
EiXEBCisE DiscBETioN— Decision.
The presiding jndge in refusing to grant
the injunction prayed, having stated in his or-
der tliat he had concluded that he had "no dis-
ciedon in the premises," and having based his
mling on an erroneous view of the law which
he apparently thought concluded him, and not
upon a full consideration oC the application
for injunction on tbe issues of law and fact, his
judgment is reversed, with direction to rehear
the application and pass upon it on its merits.
lEd. Note.!— Fbr other cases, see Appeal and
Error, Cent Dig. | 8S1»; Dea Dig. | B47.*]
Error from Superior Coart, Habersham
County ; J. B. Jones, Jndge.
Action by H. B. Stribllng and otbers
against the Georgia Railway & Power Com-
pany. Judgment tor defendant, and plaln-
tlfTs bring error. Reversed, with directions.
Stribllng and others filed a petition against
tlie Georgia Railway & Power Company, al-
leging in substance as follows: As tenants
In common they are the owners of four
acrea of land (described) in Habersham coun-
ty, upon which they have located a manu-
facturing plant consisting of a gristmill,
planing mill, sawmill, and crate factory, to-
gether with lumber yards and buildings nec-
essary for the carrying on of their busi-
ness. The mills and factory are in actual
operation, grinding grists for the public, and
sawing lumber and manufacturing crates
for shipment and sale, and are permanent In
diaracter. The plaintiffs invested about $4,-
000 in the land, bnildingB, machinery, and
eantiKnent, and have established a rapidly
growing mnung and manufacturing busi-
ness. Tiie four aores are necess^ for the
operation of the milling and manufacturing
fflterprlse^ and are used and will be used
in the operatlmi thereof. The land Is pe-
culiarly adapted to the location of snCh an
enterprise, having a stream of running wa-
ter of sufficient flow to furnish water for
the generation of steam, and for other pur-
poses necessary and desirable in operation.
The defoidant, a corporation ciiartered for
the purpose of generating electild^ by wa-
ter, tat su]n>l7iug light, heat, and power to
the public. Is engaged in erecting a line of
towers between its works on the TaUulah
river and the city of Atlanta and othor
pcdnts proparatory to stringing wires fbr the
transmission of rtectrldty. It has purchased
from Mrs. Harriet M. Stribllng a right of
way over lands adjoinii^ on all sides the
four acres belonging to the plaintiffs, whldi
formerly belonged to Mrs. Stribllng, but had
been sold and conveyed t» them prior to the
sale of the right of vray by her. Though
the deed of convince was not recorded at
the time, the defendant had fuU knowledge
of it, and was notified that the plaintiffs
would not consent to or sell the privilege
of stringing wires charged with heavy volt-
age of electricity over their mill and manu-
facturing plant Nevertheless the defendant
has erected two towers on the lands of Mrs.
Stribllng adjoining that of the plaintiffs,
the towers being about 1,000 feet apart, and
Is threatmlng to string numbers of wires
to be charged with a heavy voltage of eleo-
trlclty from one tower to another over and
across the mills and manufacturing plant of
the plaintiffs. Tbe machinery and imple-
ments used in these mills are largely made
of steel, a substance highly attractive to
electricity, and the wires charged with high
voltage, hanging and sagging above the mill
and in close proximity to the machinery,
will render it almost Impossible for the
plaintiffs to continue business or to operate
their mills. The danger incident to tbe
breaking of wires, and their falling upon the
lumber, shavings, and other Inflammable
substances necessary to the operation of the
plaintiffs' business, would increase the Are
risk to such an extent as to make the cost
of insurance almost prohibitive; and tbe
danger and apprehension arising from work-
ing under wires so charged would render tt
almost impossible to secure effective labor
for the operation of the mill. Moreover. tUe
going through the plaintiffs' property In the
erection, repairing, and lualntenance of the
wires of the defendant would be a constant
interference with the operation of their mill
The injury will be Irreparable, and the dam-
ages of a character which cannot be calcu-
lated or recovered. The defendant is at
tempting to condemn an easement or right
of way over the plaintiffs* property, and
has served notice on them of its intention so
to do, and that the hearing before the as-
sessors will be had on the 16tb day of
June. It Is unnecessary for ttie defendant
to pass over the property of the plaintifb
in order to establish Its line of transmis-
sion, but It can be established at a small
outlay upon a right of way adjoining that
property.
Under the statute the defendant has no
authority to condemn a right of way so as
*For othar cans aee same topic and McUon NUMBER in Dec Dig. ft Am.
44 78 SOUrCHBASTBBN SBPOBTSB (Oft.
to Interfere wltb any mill or factory In oper*
atlon. The prayers were that the defeodant
te enjoiiied front farther proaecntlng or car-
rying on any proceeding for the condenma*
tlon and assessment of damages for an ease-
meot or right of way orer the property of
the idalntUFs ; and that *'the proceedings in-
stituted within the JnrlsdlcUon of the supeii-
or coort ot Habersham county by the Oeors^a
Railway & Power Company and now pend-
ing, for the condemnation and assessment
of damages for an easement or right of way
tOT Its power line over petitioners' mill and
mill plant, and the right to place wires and
charge tbero with electricity over petitioners'
four acres of land and upon which Is situat-
ed petitioners' mill and crate factory, be
stayed and perpetually enjoined." A rule to
show cause and a temporary restraining or-
der were granted.
The defendant denied the principal allega-
tions on which the petition was based, and
alleged in substance as follows: On Janu-
ary 23, 1912, the defendant purchased from
Mrs. Strlbling for $250 a complete right of
way 40 feet wide across her property, and
rec^ved a conveyance thereof. It has been
informed that on the evening before the
plaintiffs, with full notice of the fact that
Mrs. StribllDg had sold the right of way
and agreed to mabe a conveyance thereto,
obtained from her, their mother, some sort
of conveyance of the strip of land they now
claim, and that this was done for tlie pur-
pose of committing a fraud upon the defend-
ant, and In effect to hold up the development
and harass and "bleed" the defendant, or
prevent the completion of its tower line.
After purchasing the right of way from Mrs.
Strlbling, It proceeded to erect towers, and
completed the erection of the line of tow-
ers without placing any of them on the four
acres now claimed by the plaintiffs, and It is
not necessary to do so ; but It Is necessary
to string a line of wires across and over the
land from one tower to another. In doing
so the wires will be about 40 feet from the
ground, out of the way of any mill, machin-
ery, or buildings that the plaintiffs now have
upon the property, and will in no wise In-
terfere with tbelr operation. After the de-
fendant commenced the erection of Its power
line from Tallulah Falls to Atlanta, and aft-
er a large part of It was completed, and aft-
er the survey bad been completed, the plain-
tiffs found out where the line would cross
the property of their mother, and undertook
to move a small sawmill to one side of the
right of way or tower line ; and the defend-
ant is Informed that they obtained some sort
of a conveyance from their mother. The mill
and machinery were not in operation at the
time the defendant purchased the right of
way from Mrs. Strlbling, and the com mill
and attachments were not received and lo-
cated until after the towers had been erect-
ed and the plaintiffs were familiar there-
with. When Mrs, Strlbling executed the,
deed to Uie defendant; she stated that she
had made a deed to her children for the fbnr
acres on the preceding day. The mill and
machinery of the ptalntlffB are not dlreKHly
under the place where the line of wires wlU
be strung, but are located a considerable dis-
tance to one side, and the wires and electric
current will In no wise interfere with the
mill and machinery. The allegatlonB of dan-
ger to the mill and machinery from fire, and
of Injnry to persona or property, are denied.
Hie defisndant endeavored to procure by
contract the right to place its wires over the
property of the plainttfls, and offered $25 for
that purpose, but the plaintiffs refused to
negotiate with the defendant at all, or to
make any sale or contract for that purpose,
bnt Informed tlie defendant that it could not
procure such right at any pric^ and the de-
fendant was therefore forced to begin con-
demnation proceedings in order to obtain the
necessary right of way. It lias commence
proceedings for that purpose and notified the
plaintiffs, and Intends to proceed when per^
mltted to do so by the court It will only
cut such trees and brush or remove SQch oth-
er obstrufdlon as may now or hereafter in-
terfere with the operation of Its transmlstfon
line, or catise danger thereto by falling upon
the wires. The Uue of towers has beoi con-
structed as nearly straight as possible be-
tween Tallulah Falls and Atlanta; and to
place the Une around the four acres of the
plalntlfls would necessitate Tn^kipg four
bends at practically ri^t angles, which
would cause a heavy strain on the towers
and wires and subject them to great danger
of breakage, and cause greater danger to
persons and property. The defendant has
the legal right to exercise the power of em-
inent domain ; and. If It were prevented from
placing Its wires across the property of the
plaintiffs, this would entirely defeat the suc-
cessful transmission of electricity from Its
power plant at Tallulah Falls to the places
of consumption. The exception In the act
of 1897 in r^rd to a mill or factory refers
to a mill or factory in operation upon some
water course; and the Legislature did not
Intend to refer to any mill or factory that
might be located elsewhere -and operated by
steam. But, if this were otherwise, the Leg-
islature did not intend to permit persona
after having found out the location of a wa-
ter power plant and where the line for the
transmission of power is bdng located to
erect a temporary mill directly In the line of
such proposed development for the purpose
of "holding op and bleeding" the condemning
company, or to prevent and destroy such de-
velopment by using the exception thus made
in tbe statute for fraudulent and illegal pur-
poses. Any damages to the plalutlffs can be
estimated and determined In the condemna-
tion proceeding. The tower Une has been se-
cured in a direct line for almost the entire
distance from Tallulah Falls to Atlanta, with
very few exceptions In each ^^^^^^I^^
per cent of the line has been procured and
paid for, and It would be practically- Impoft-
sible for the defendant at this time to make
a chan^ in its line.
The defendant also filed a demurrer. The
hearing upon the application for injunction
ttwk place «d July 20th. On Atijrust 3d the
presiding Judge passed an order containing
the following; "I have concluded as follows :
(1) That I have no discretion in the prem-
ises, but that my duty is plain. (2) That un-
der the issue made by the pleading and evl'
d^ce the defendant has the right to pro-
ceed with its statutory condemnation pro-
ceeding. The interlocutory injunction is
therefore refused, and the restraining order
heretofore granted is dissolved." Whefeupon
the plalntiJCIs excepted.
^Iien the case was reached In the Sd-
pretite Court, it was submitted on briefs.
The defendant also filed a motion to dismiss
the writ of error, on the ground that no su-
persedeas was granted, and the condemnation
proceedings had been carried on and com-
pleted, the right of way condemned, wires
Btrung across the property, the right of way
cleared of trees and underbrush, ''and every-
thing has been done against ^ich injunction
was prayed," and that the award of the ar-
bitrators had been filed and the amount of
the ' award deposited with the clerfe of the
superior court, and, though more than 10
days had elapsed after the deposit, no appeal
had been entered. In the original brief of
counsel for the defendant in error on the mo-
tion to dismiss it was stated that "the ar-
Utrators having been chosen and hearing
bad, in which both parties were present by
Uiemselvee and counsel, evidence introduced
and .argument had, and the Judgment fixed
the damages at $50, and the money tendered
and refused, and then deposited In the office
of the clerk of the superior court," etc. Ac-
companying this motion- was an affidavit of
one of counsel for defendant In error (W. 8.
E:rwin, Esq.) to the effect that after the re-
fusal of the Injunction "said condemnation
proceedings were duly had and held, result-
ing in an award of $50 as damages, by said
assessors, to be paid to the said G. B. Strlb-
line et al. for said right of way; that said
award has been returned to the superior
court of Habersham county, and the money
there deposited after the same had been re-
fused by the said O. B. Stribling et al.;
and that no appeal has been entered from
said award since the filing of the same. De-
ponent further says that after said condem-
nation proceedings were had that the Geor-
gia Railway & Power Company proceeded
in accordance with its said petition, and
•trung Its said wires across and over the
property of the said G. B. StrlbUng et al.,
cut down trees, cleared up the right of way*
and have occupied the same in accordance
with its said condemnation proceedings, and
that all of the aets and things against which
Injunction la prayed have been completed
and finished." There was also a certificate
of the clerk of the superior court, dated De-
cember 28, 1912, that the return of the as-
sessors waa filed in his joffice on August 21,
1812, that no appeal was taken, and that
$50, the amount of the award, had been de-
posited, and remained subject to be paid over
to G. B. Stribling et al.
In reply the leading counsel for . the plain-
tiffs. (Hon. H. S. West, who stated that he
was the sole counsel until after the dental
of the injunction, and that he alone bad di-
rectly communicated with his clients) filed
an affidavit in which he denied that there
had been any hearing before "arbitrators"
(assessors), in which both parties were pres-
ent and participated by themselves and coun-
sel. He stated that be sent the bill of ex-
ceptions to the presiding Judge by mail, and
requested a supersedeas, and did not learn
until some time thereafter that it had not
been granted ; that he expected the Judge to
return the bill of exceptions to him, but some
days later waa notified by the clerk of the
court to which the case waa returnable that
he had found the papers in his office, and
that the adverse attorney had acknowledged
service on them ; that he Is Informed and
believes that on the day after the bill of ex-
ceptions was signed his clients were ap-
proached to appoint an arbitrator (assessor),
but declined to do so, and thereupon the com-
pany appointed as arbitrator (assessor) tor
his clients one of Its employ^; and that
neither the afilant nor his associate has ever
taken part or acquiesced in "the so-called
arbitration or award," and be denies Uiat
they are bound thereby. '
At a later date counsel for the defend-
ant sent to this court an additional brief on
the motion to dismiss. In which they stated
that In their original brief they had Inad-
vertently stated that "both parties were pres-
ent by themselves and counsel"; that this
was incorrect, as none of the plaintiffs or
their counsel attended the condemnation pro-
ceedings ; that this error crept into the brief
by copying a brief in another case, and they
desired to strike from the original brief the
words quoted, bat that they insisted that the
condemnation proceedings were legally held,
arbitrators (assessors) duly chosen, and par-
ties duly notified, and the bearing had in
pursuance of the notice required by law. Ac-
companying this additional brief was anoOier
affidavit of the same counsel who had filed
the original affidavit with the motion to dis-
miss. He deposed in substance as follows:
The condemnation proceedings were begun
on Hay 80. 1812. The petition to enjoin
against them was filed on June ISth, and
the injunction denied on August 3d. On
August 12th the ordinary of the county where
the proceedings were had appointed a named
person as assessor for the StribUngs, and
written notice was given to the original at-
torney for them, and personal notice also to
two ot them, who ^e^^^^^^^l
46
18 80DTHHA8TBRN BBPOBTBB
plaintiff resided ont of the etate, and no per-
sonal notice was glren to him, but notice was
given to bis attorney that the condemnation
proceedings would be held on the premises
on August 24th. The three arbitrators went
first to the residence of the two plaintiffs
mentioned, but they declined to go with the
arbitrators upon the premises, though re-
quested to do BO. The assessors then went
upon the premises and viewed them, heard
evidence, and made their award of $50. The
owners refused to accept that sum, and it
was deposited with the clerk of the superior
court on August 29th. The condemnation
proceedings were returned and filed on Au-
gust 24th, and no appeal was entered there-
from. After the award was so returned and
the money so deposited, the condemnor pro-
ceeded to clear off the right of way and
string wires "in accordance with their rights
secured by the said condemnation proceed-
ings." Counsel for the plaintiffs also filed an
additional aflidavlt In opposition to the mo-
tion to dismiss. 6. B. Strlbllng deposed In
sulratance as follows: He repeated the denial
that parties or their counsel were present or
took any part In the so-called arbitration,
and asserted, on the contrary, that they con-
sidered it illegal and void, and declined to
have anything to do with It The bill of ex-
ceptions was signed by the judge on August
24th, as deponent was Informed. The cer-
tificate was dated August 22d, and the entry
of filing was dated Augnst 26th. Deponent's
counsel lived in Athens, and the land was
located In Habersham county, 76 or 80 miles
distant On Saturday. August 24tb, "the
arUtratton" Assessment) took place. Nel-
tlier deponent nor any of tite plaintiffs se-
lected an "arbitrator" (assessor), but refused
to do so. The company thereupon selected
and bad appcdnted a person who deponent is
informed and belieTes la regularly employed
by it; and plaintiffs have since learned a
"so^Ued arbitration was had." Deponent
denied the statement in the brief accom-
panying the motion to dismiss Cbat "the com-
pany then proceeded and erected towers
upon this property In accordance with the
proposed condemnation proceeding." The
proposed proceeding showed on its face that
no towers were to be erected on this prop-
erty, and none bave been so erected. The In-
juries complained of by the plaintiffs have
not been fully completed. While some wires
have been strung over the property, not all
of the wires "contemplated, and that can be
and will be done, have yet been strung," and
more important still none of the wires hare
yet been charged with electricity, and the
principal apprehended damage was the send-
ing of a high voltage of electricity over
wires In close proximity to the mills of the
plaintiffs, causing danger of fire from break-
ing, and interfering with the mills by reason
of the menace arising from this high voltage
of electricity overhead, and the Interference
with the employmoit of hands Vhldi will
arise therefrom.
H. 8. West and E. K. Lumpkin, both of
Athens, for plaintiffs In error. H. H, D^n,
of Gainesville, and McMillan & Brwin, of
Clarksville, for defendant In error.
LUMPKIN. J. (after stating the facts aa
above). [1] 1. The motion to dismiss the
writ of error on the ground that since the
injunction was refused, and with no super-
sedeas granted, everything has been done
against wblcb lnjuncti<m was prayed, moat
be denied. The role on this subject Is dear^
ly stated la Tnells t. Torras. lis Oa. 001.
39 S. E. 456, thus: "If the judge zefoses to
grant an Injunctlcm to prevent the commla*
sion of a given act, and the refusal to grant
the Injunction Is brought to this court, no
supersedeas of the judgment haTli« been
obtained, and U appears to tbe satisfaction
of this court, by uncontroverted evidence,
that the act sought to be oijolned has been
completed, tbe writ of orror will be dis-
missed. If an Issue of act Is raised as to
this matter betweoi the parties to tbe case,
the writ of .emxr wlU not be dismissed."
And again: **When It la shown prima fade
to tbe satisfaction of this court that the act
sought to be enjoined bas been completed,
and, In response to the motion to dlsmlse.
the plaintiff dtlier admits the eztstoice of
tbe tects as claimed by the defendant In
error, or fidls to deny ttae existence of the
aame, the writ of error will be dismissed.
But when the existence of tiie fact Is in
any way denied, either by afBdavlt of the
party or his counsel or by statmnent of
counsel In open court, On motion to smiss
win be overmled."
In the case beftwe us the defoidant in
error made a prima facie showing that every-
thing bad beai done against which Injunc-
tion was prayed. But the counter shovring
tended to prove that everything against
which injunction was prayed had not been
fully completed. As to the attempted as-
sessment since the signing of the bUl of ex-
ceptions, the evidence seriously attacks Its
validity, both because of want of any statu-
tory authority therefor and also because of
the manner in which It was sought to be
made. If it was invalid, this might furnish
ground for an additional prayer for injunc-
tion; but, in view of tbe statements and coun-
ter statements, it would hardly be ground
for dismissing the writ of error. Under the
briefs and affidavits, the plaintiffs will not
be compelled by dismissal of their writ of
error to waive the contention that the at-
tempted assessment was void, and submit to
It as being valid by appealing from It or re-
ceiving the amount awarded. This case does
not fall within any of those relied on by
counsel for defendant In error. Tbe last
case on the subject Is that of Moody v. Geor-
gia Railway & Power Co..76 S. a,a5SyWbere
STBIBUNG T. GEOBOIA BT. * FOWBB 00.
47
Other CMM an dted. Tbtan anmn
from tbe record on file) an injunction was
Bought to restrain the company from con-
drainlng a rl^t of war or easemoit orer
curtain lota^ not on tbe ground that any mill
or factory was InToWed, and that there was
no authority to condemn under the statntet
but because of an all^Eed arbitrary and un-
necessary location, and damage espedally to
a hotel property. The injunction waa de>
nled, and exception was taken. In this
court tbe case ma submitted on brleft. and
a motion to dismiss the writ of error was
made^ on the ground that everything had
been already done against which Injunction
was prayed. An afBdarlt and cerdflcate of
the clerk were filed In support of the mo-
tion. When this court reached the case for
onslderatlon, after examining the affldavit
and certificate, a rnle was Issued requiring
the plaintiff In error to show cause why the
writ of error should not be dismissed. At
the time when the rule was returnable no re-
sponse to it was made, and there was no
traverse or denial of the facts stated in the
affidavit and certificate. The writ of error
was accordingly dismissed. The distinction
between the two cases is apparent.
[2] 2. There was conflicting evidence in the
case, but the presiding judge did not base hU
denial of an Injonctlon upon the facts in
controversy, nor did he pass a general order
refusing it He expressly statied in his order
that he had concluded that he had "no dis-
cretion in the premises," thus n^tivlng any
<liscretlonary finding on conflicting evidence.
The reason urged In tMs court in support of
this statement that the Judge had no discre-
tion, but was obliged to deny tbe injunction,
was that the exception from the right of
condemnation by corporations constructing
plants for generating electricity for supply-
ing light, heat, or power to tbe public, con-
tained in the avll Code, t Q242. did not ap-
ply to a mill or factory operated by steam,
but only to one in operation on a water
course. Sections 5240 to 5242 were codified
from the act of 1897. Section S240 is as fol-
lows: ''Any corporation or individual own-
ing or controlling any water power in this
state, or location for steam plant berrtnafter
mentioned, and tolerating or constructing or
prewiring to construct thereon a plant or
works for generating electricity by water or
steam vower, to he used for the purpose of
Us^tlng towns or dtlea, or supplying motive
power to railroads or street car lines, or
supplying U^t, heat, or power to the puUle,
shall have the right to purchase; leaser or
eondemh rights of way or other easements
upon the lands of others In order to run
lines of wires, maintain dams, flow back wa-
ter, or tor other uses necessary to said pur-
poses, upon first paying jurt oompaisation
to the owners of the land to be affected."
Seetloi 5212 Is as follows: ''Tbe power giv-
en vadet tbe two preradlng sections staall
not he tised to Interfere wlOi any mill or
factory actually In operation." It wlU be
observed that the first section quoted confera
tbe right at condemnation, not only on per-
sons owning or controlling "any water power
in thla state^** but also on those owning or
controlling a "locntlou for steam plant here-
inafter mentioned," and operatii^ or con-
structing or preparing to construct thereon
"a plant or wo^ for generating tiectrldty
by water or steam power," to be used as
there described. And by the second section
It is declared that the power given shall not
be used to interfere with "any mill or fac-
tory actually in operation." It has fre-
quently been held that acts conferring pow-
ers of this character upon individuals or cor-
porations, being in derogation of common
right, are to be strictly construed. Carr v.
Georgia Railroad, etc, Co., 1 Oa. S24; Young
V. McKenzie, 8 Oa. 810), 40; Justices of
the Inferior Court v. Orlffln, etc., Plank Road
Co., 9 Ga. 475; Ala. Great Southern R. v.
Gilbert, 71 Ga. 591; Frank v. City of At-
lanta, 72 Ga. 428 (2), 432. No good reason is
suggested to us for holding that in con-
ferring tbe power of condemnation persons
operating plants either by water or steam
power are included, but in protecting other
mills or factories In actual operation the Leg-
islature protected only those operated by wa-
ter power. There is nothing in the act to
indicate that the legislative purpose to pro-
tect mills and factories In actual operation
was limited to those run by water. The lan-
guage is broad enough to Include both class-
es; and there is nothing to ahow that tbe
Legislature meant leas.
The decision in the case of Nolan v. Cen-
tral Georgia Power Co., 134 Ga, 201, 67 S. R
656, does not confilct with this ruling. The
question decided in that case in the second
headnote was whether tbe power to condemn
land to "fiow back water" conferred by the
act of 1S97 (Civil Code, } 0240 et seq.) in-
cluded the right to condemn lands which
might contain a water power not In actual
use. The question being considered was
stated on page 203 of 134 Ga., on page 668
of 67 S. E. In discussing thli point in the
opinion, it waa said -{referring to what Is
now section 6242 of the CIyU Code): "This
section would be without meaning or applica-
bility unless the act Intended to give the
iwwer to ba^ water, e»!^t where it inter-
fered with a mill or factory In actual open' .
tlott." "AppUcabUity" to what? Palpably to
the facts of the case being considered, or
similar drcumstances; not to some entirely
different case, or imaginary drcnmstanoes
wholly IrreleraBt to the case then in hand.
Language of a discussion must be considered
In the light of the question being discussed,
and a sentence diould not be wrenched from
Its context and need as TB^oot ot a wholly
different proportion.
[3] 3. Modi of the brief <tf counsel for de^
Digitized by VjOOQIC
i8
fendant in error was deroted to contentlona
that the evidence showed that the line of
towers and the wires were not near enough
to the machinery of the plaintiffs to cause In-
terference therewith; that one who erects a
mill with knowledge and In the face of an
approaching public Improvement not bona
fide, but for the purpose of obstructing or
preventing condemnation, la not entitled to
the benefit of the statutory exemption-; and
that a person could not, after Ascertaining
that ft line of wires would pass over lils
property, remove a portable mill from an-
other' part of it so as to occupy the proposed
rigbt of way of the line about to be erected,
and obstruct it, and then obtain an Injunc-
tion to restrain interference with such mill.
Without determining the questions of law or
fact involved in these contentions, it is suffi-
cient to say again that the presiding judge
evidently did not base his judgment upon
them, or upon the conflicting evidence, but
upon the theory that he bad "no discretion
In the premises." As he determined the case
on an erroneous view of the law, binding
him, as. he apparently thought, opon a single
point, the case is returned with direction
that It be reheard upon Its merits.
Judgment reversed, wltb dlrectton. All
the Juetleea concur.
(U Oa. App. 671)
, STRICKLAND v. MILLBB. (No. 4,701.)
(Gonrt of AppwUa iSt <3«orgia. May ^ 191S.)
(Bytttibiu hj/ th* Cow%)
Tbotb&'and OoRVEBSion (!t 2, 52*)— Dau-
A0B8.
Where crude gum is wrongfully extracted
from growiog trees and manufactured i&to spir-
its of turpentine and resin, the owner may
maintain trover for the manufactared products.
If the taking was under an honest claim of
right, only the value of the crude gum can be
recovered ; but if the taking was not in good
faith the trespasser cannot set off the expense
ot maniuEactnre.
[Ed. Note.— Fw other case% see Trover and
CoQverBion, Cent Dig. H S-20, 289-271 ; Dec
Dig. a§ 2. 62.*]
Error from City Court of Quitman; J. G.
Cranford, Judg&
Action by F. 3. Miller against D. S. Strick-
land and .the Downing Company., Demurrer
to the petition overruled* and StrtdUand
brings error. Affirmed.
Bmnet, Long & HarrelU of Quitman, for
plaintiff In errw. BraniA A Snow, ot Quit-
man, for defradant in error.
POTTLE, J. Plalntlfl sued Strickland and
the Downing Company to recover the value
of certain spirits of tnrpenUne and resin. A
general demurrer to the petition was over-
ruled, and Stridtland excepted. The peti-
tion alleged that during the year 1911 the
plaintifF was owner and in possession of a
certain tract of land In Brooks county ; that
CQi.
Hie defendant Strickland entered upon this
land against the will of the plalntifT and
over his protest, ahd willfully and without
any lawful claim whatever extracted from
the pine trees growing on the ' land, crude
gum, from which he manufactured spirits of
turpentine and resin and sold the manu-
factured product to the Dofrnlng Company.
The argument In behalf of the defendant
proceeds upon the Idea that the property
sued for Is fmctus Industriales, and that,
since it appears from the petition that the
defendant was In possession of the trees and
gathered the crude gum therefrom, the plain-
tiff was not entitled to maintain an action
of trover to recover the value of the spirits
and resin manufactared from the gum.
Standing timber is a part of the realty,
and this includes' the constituent parts of
the timber, such as the wood, sap, leaves,
etc. 'However, when timber Is severed from
the soil, it becomes personalty, and trover
will lie to recover It from one who has
wrongfully converted It to his own use.
Thus, In MllUown Lumber Co. v. Carter, 5
Ga. App. 844, 63 S. E. 270, It was held that,
where timber Is severed from the soli by a
trespasser and manufactured Into lumber,
the owner may maintain trover, and In such
an action would be entitled to recover the
value of the manufactured product without
any deduction for the cost of the labor of
manufacture, if the trespass was willful;
but If the trespass was innocent or inadveiv
tent and under a bona flde claim of right
the defendant would hare the right to set
off the value of the labor by which the prop-
erty has been enhanced. There la little or
no distinction in principle between that case
and one where a person wrongfully takes a
part of the tlmher, such as the sap, rather
than the whole of It Crude turpentine,
which has been extracted from the tree, be-
comes personalty Immediately upon Its ex-
traction. Melrose Mfg. Co. t. Kennedy, 59
Fla. 812, 61 South. 695. And where such
crude gum has been unlawfully conrorted
trover may be maintained for Its recovery.
Quitman Naval Stores Co. v. Oonway, 63
Ma. 2SS, 58 South. 840; Branch & Thomas
V. Morrison, 50 N. G. 16, 69 Am. Dec. 7m
In the case last dted counsel sought to draw
a distinction between things which are culti-
vated on the soil and those which are tlie
natural growth of the earth. It was pointed
out by the court that the only distinction
between the two is In the fact that things
which are fmctus Industriales are personal
property tor some purposes before aererance ;
while things which are fntctna natnralee are
always a part of the realty until they are
severed from the soil. After severance both
are personal^, and the same princ^ Is
pllcable to each. The rule that after sever-
ance the property becomes personalty and
may be recovered in trover has been applied
78 SOtmBSASTSB]^ BBPOBTS&t
•Wat other camm sw luut tepU ud soctioo NUMBER Is D«c. Dig. A Am. Dig.
CHANPLB&T BOHOrZBtD
49
to saod, gravel, Mandbic ttmMr, growing
crops, fruit, and turpentine. See cues col*
lated in 88 Cjd Sfns.
Rdlanoe li placed by tbe plaintiff In erm
upon tbe decision of tlie Supreme Oourt in
tbe case of Dollar t. Boddenbery, 97 Oa.
148, 2S 8. EL 4ia It Was tbere beld tbat
where, after tbe renditloa <tf a judgment
against tbe owner of land, be rented tbe
land to another, wbo' planted a ttop tbereon,
tbe latter was entitled to tbe crop as against
tbe Judgment creditor. Tbls decision, bow-
erer, was distinctly put on tbe ground, not
tbat troTer would not lie for the recovery of
a crop which had matured or been severed
from the soil, or which after maturity was
to be treated as personalty, but upon the
ground that the entry of the tenant was
rightful, and his Utle to the crop was su-
perior to that of the execution creditor. This
appears clearly from the following excerpt
from tbe opinion in that case: "It Is an
ancient maxim of the law that he who right-
fully sows ought to reap the profits of his
labor, and If he rightfully enter in subordina-
tion to the title of another, but bis tenancy
be terminated without fault on his part and
in conseQuence of some uncertain event, he
shall be allowed to take away his way-go-
ing crops; for emblements, in strict law, are
confined to the products of tibe earth arising
from tbe annual labor of tbe tenant The
tenant, under the protection of this rule, is
Invited to agricultural Industry without the
apprehension of loss by reason of some un-
foreseen contlngen(7 which might arise and
terminate his estete." See. also, Blltch v.
Lee, 115 6a. 112, 41 S. E. 275; Garrison v.
Parker. 117 Ga. 537, 43 S. B. S49 ; Raines v.
Hlndman, ISO Ga. 4S0, 71 S. B. 738, 88 L. B.
A. (N. S.) 863, Ann. Cas. 19120, 347.
While tbe .petition In the present case al-
leges that the defendant was In possession of
the trees when the gum -w&a extracted, It' Is
distinctly alleged tlmt this possession was
tortious, against the will and over tbe pro-
test of the plalntlif. If the defendant's pos-
session was under an honest claim of right,
he would be liable to tbe plaintiff only for
the value of the crude gum extracted from
the trees. But if the taking was willful and
not in good faith, as the petition alleges, the
plaintiff would be entitled to recover the val-
ue of tbe manufactured product There was
no error In overruling tbe demurrer.
Judgment affirmed.
as a«- App. 6G2)
HALLIBURTON v. HABSHFIBLD BB03.
(No. 4,899.)
(Court of Appeals of Georgia. May Q, 1918.)
(8i/U9hM» If fh0 Oourt.)
JusncEB or tex Peace d 200*)— Cbbtiorasi.
Since the verdict rendered in the justice'i
court was not demanded by the evidence, tbe
Judge of the superior court did not err in sus-
taining tiie certletari and r«manding tbe case
for aaotiier triaL Fair v. Metropolitan Life
Insurance Company, 2 Ga. App. 376. 58 S. B.
492.
[Ed. Note.— For other cases, see Josticea of
the Peace. Out H 818-828; Dec Dig. {
20(t*]
Error from Superior Court, Bibb County;
N. E. Harrisf, Judge.
Action between R. L. Halliburton and
HarshQeld Bros. From an order of the
superior court, sustaining certiorari to the
verdict of a Justice and remanding the case,
Halliburton brings error. AlUrmcsd.
MaUaty & Wlmberly, of Macon, for plain-
tiff in error. Hardeman, Jones, Park *
Johnttcm, of Maoon, for detendant In enor.
BUSSBU^ J. judgment affirmed.
(U Oa. Aw. 6SD
OHANDLBR v. SOHOFIBLD. (No. 4^7X8.)
(Oourt of Appeals of Georgia. May 6, 1918.)
(SsUabua bv the Vourt.j
Neolioknce (I 186*)— Qui»nOH8 fob Juvt.
The erideoce was Buch as to auttkorise the
submission to tbe jury of the question whether
the defendant was negligent, and, if sa wheth-
er bia Degllgence or tbat of the plaintiff if the
plaintiff was negligent was ttie proximate cause
of the damage. It waa therefore eixor to grant
a Donsnit
[Bd. Mete^For other cases, see NwUgenM^
Cent Dig. U 277^368; DeeTDig. I 180*]^
BiTor from City Oorart ef Mmod; Bobt
Hodges, Judge.
Action by S. 8. Chandler against J. S.
Schofleld. From a Judgment of nonsuit
plaintiff brings error. Beversed. •
R. D. Feagtn and O. C. Hancock, hoth of
Macon, for plaintiff in error. Ernest O. Her^
ring, of Macon, fOr detendant In error.
POTTLB, J. The BOlt was fOr damage to
machinery which tbe defendant bad been em-
ployed to onload from a railway car. The
negligence alleged Is the fisllure to block and
properly rapport two planks composing an
Inclined plane along which tbe matihlii^
was to be unloaded. The plaintiff was non-
suited, and he excepted.
It appears from bis testimony tbat tbe de-
fendant, fbr an agreed price, undertook to
onload tbe madiinery in the manner above
pointed out, fomishing for this porpose ser-
eral of bia employte. Tbe plaintiff was
present when tbe madilnery was unloaded.
He noticed that the defendant did not have
enough blocking to properly support both
of the planks, and called tte attrition of
the defendanf 8 manager to this foet One
of the planks was properly blocked, learli^
only a 10-lnch block with which to rapport
the other plank. Thh plaintiff soggested to
the defendant's emplojngs that, as tb^ did
not have a saflki»C nomber of blocks, they
•Tor otber cmMi we suns tepio sad ■•etion NIfHBBR la Dae. Dig. * Am Dig. KvN»,||fg^ ^^I'^^M^lC
50
78 SOOTHEASTBBN BBPOBIBR
(Gai
mJcht take aome e-lndi pipes which thej
had, about 12 feet long, and fasten them In
■nch a way aa to make the plank safe. The
Idaintur offeied to aaslat the defendant's
servants in unloading the machinery by tak-
ing hold of a rope which had been lAaoed
aronnd the machin«7 ud *'easlng It off"
for them. The i^lntUE taBtened this rope
himself, and then got under the car with
the rope In his hand, and In this way eased
the nudilnery The def^danfs aerrants
directed the plaintiff when to slacken the
rope and let the machinery down onto the
planks. One of the planks had not beai
properly blodred. The plaintiff's suggestion
In reference to the use of the pipes was not
Allowed, and Uie maehinery Mt to the
ground and was damaged.
It was the duly of the defendant to use
ordinary care In unloading the machinery,
and this involved tike duty of using instru-
mentalities which were reasonably safe and
suitable ftir the purpose. The plaintiff al-
ibied, and testlfled positively, that an un-
safe and insecure instrumentality was on-
ployed by the defendant, and that this act
of negligence was the proximate and effi-
cient cause of the damage. The nonsuit was
doubtless awarded on the theory that, the
plaintiff having voluntarily undertaken to
astfst the defendanrs servants by adjusting
the tope and pulling the madilnery from
tlie car onto the planks, lie himself was
gnllty of n^Ugence in falling to ascertain
that the planks were properly blo<Aed before
he released the machinery by slackening the
rope. Of course, if damage to the machinery
was due to the negligence of the plaintiff—
that Is to say, If the plaintiff's negligence
In failiog to ascertain that the planks were
securely blocked was the proximate cause
of the damage— he would not be entitled to
recover. But this was a question, under the
evidence, which the trial judge ought not to
have resolved against the plaintiff, aa a mat-
ter of law. By his testimony he sufficiently
met the charge of negligence against him to
entitle him to be heard before a Jury. He
gave directions to the defendant's servants
as to how the planks should be blocked. If
they had followed these directions, and dam-
age had resulted from so doing, the defend-
ant would not be liable. The plaintiff testi-
fies that they failed to follow hla directions ;
that he was under the car in a position
where he could not see that the plank had
sot been blocked in accordance with bis
suggestion; and that the defendant's serv-
ants called to him to slacken the rope and
release the machinery. If this was true, we
do not think the plaintiff was guilty of
such negligence as would defeat a recovo?,
aa a matter of law. The Jury ehoold be
allowed to say whether there was any negli-
gence on the part of anybody, and, if so,
who was negligent ; and tf both plaintiff and
defendant were negligent tlie Jury should
be allowed to eompare their negligoices and
see which was the proximate cause of the
damage to the plalntUTs machinery.
We make no ruling in reference to the
respective itons of damage which the plain-
tiff claims in his petition, because it Is un-
necessary to do BO In the preseot state of Oie
record.
Judgment reversed.
01 Os. App. Ml)
DOUOLAa V. WILSON. (So. 4,667.)
^Oemt of Appeals of Oeo^ia. Hay 6^ Ifil&J
(ByUabiu Iv the Court.)
CSBTIOKABI (I ra*)— DlSUlSSAI..
This case Is controlled by the decision of
this court In High Co. v. Georgia Raflway ft
Power Co., 12 Ga. App. — , 77 S. K. 688. The
court erred in refusing to dismiss the certiorari
on the ground that tbe answer of the judge of
the city court was not filed within the time re-
qnired by law, and that no order was applied
for by the plaintiff in certiorari dnring the first
term, requiring aa answer to be filed. See, also,
Sutton V. State, 120 Ga. S6S, 48 & E. VsL
lEA. Note.— For other cases, see Certiorari,
Cent Dig. H U3. 167; DecTDlg. | 6a*]
Bmr from Superior Court; JcAnaon Oonn-
ty; K. J. Hawkins, Judge.
Action by J. A. Dboglu, survivor, against
J. A. Wilson. From an order rehiaing to
dismiss a certiorari, Douglas brings error.
Reversed.
B. H. Moye and A. L. Hatcher, both of
Wrightsvllle, for plaintiff in error.
POTTLID, X Judgment reversed
(U Oil App. 010)
WATSON T. WHITEHEAD. (Now 4,628.)
(Court of Appeals of Georgia. Hay 6, 1913.)
(Byttabiu by tk* Court.)
EnoBnca (f 441*)— Pabol Evidshcb— Coit-
SIDERATIOir or NOTK.
A plea of breaif^ of warranty or failure of
consideration does not add to, take from, or
vary the contract between the parties. There-
fore, in a suit on a note given for rent, eom-
taiaing a Umltaticm as to warranty, parol evi*
dence is admissible to to show that the con-
sideration of the note had failed, because the
maker did not get the number of acres for
which the note was given, and also that the
landlord, the payee in the note, bad not per-
formed dUc agreement to place <Hi the rented
land certain improvements. The coort erred
in excluding parol testimony offered to prove
the above-indicated defense to the note. Toll-
er V. Hewitt, 12 Ga. App. — , 77 S. B. 660;
Bagffs V. Funderburke. 11 Ga. Am. 17S, 74
a. E. 937; Burke v. Napier. 106 Ga. S27, S2
S. B. 134; Anderson v. Brown, 72 Ga. 718.
[Ed. Note. — For other cases, see Evidence,
Cent Dig. iS 1719. 1723-1763, 1765-1840[
2030-2047; Dec Dig. S 441.*]
Error from City Court of Housbm; A. OL
Rlley, Judge.
•For otbsr eases sst same topic and ssoUoa NUHBEK in Dsn. Dig. A Am. Dig. Ksg-No. ^ris^A^^'^J^^^
G«.)
SEOAB T. 8TATB
61
Action by W. C. Whitehead against W. D.
Watson. Jndgment for plaintiff, and defend-
ant brings error. Reversed.
Sara A. Nunn, of Perry, for plaintiff In
error. M. Knns, or Ferry, for defendant in
error.
HILL, 0. J. Jndgment reversed.
fU Ga, App. S61)
VIRGINIA-CAHOLINA CHEMICAL CO. v.
BOUOHELLE. (No. 4,647.)
(Court of Appeal* of Georgia. May 6, 1913.)
/jSyUstw 6tf the Court.}
1. VBaudulekt OonvzTAnoEs (| 47*)— Saus
in Bulk.
The act approved Aogast 17, 1903 (Civ.
Code 1910, S 3:r26 et Beq.), known as the sales
in bulk act, ia applicable to a stock of meat and
other merchandiae anch aa ii usually sold in a
market.
[Ed. Note, — For other cases, see Frandnlent
Conveyances, Cent Dig. | 84; Dec Dig. S 47.*]
2, Fbauduunt Contetahcxs (I 47*)— Sales
IV Bulk.
Where the ovner of a stock of goods sells
a half Intereat tfaereio to another, and a short
time thereafter sells to his partner the other
half interest in the bnsiness, the sale is void as
to the creditors of the vendor, unleto the provi-
sions ot the sale in bulk act have been complied
with.
[Ed. Note.— Tor otber cases, see Fraudulent
Conveyances, Cent Dig. | 34; Dec. Dig. f 47.*]
Error from City Court of Thomasvllle;
W. H. Hammond, Judge.
Proceeding between the Virginia-Carolina
■Chemical Company and H. P. Bouchelle to
determine claim to property levied on in
execution. Judgment for claimant, and tbe
Chemical Company brings error. Reversed.
Branch A Snow, of Quitman, and Snod-
grass & Maclntyre^ of Thomasvllle, for plain-
tiff in error. T. N. Hopkins and R. S. Burcta,
both of Thomasvllle^ for defaidant In error.
POTTLB, J. [1] The only qoestlon in thla
case is wh^er or not tlw sale was void as
against a creditor of the vendor under the
act of August 17* 1008 (ClvU Code, 1 8226 et
seq.), reguUtting sales of stocks of goods in
balk. That act Is aH>Ucable to sales of "any
8to(A of goods, wares and merchandise in
bulk.** It appears from tbe evidence that the
debtor owned a stoc^ of meet and other mer-
chandise such as is usaally sold in beef mar-
kets; On April 19, 1012, he sold ont a half in-
tereet In his badness to the claimant; and oa
June 16, 1912, the claimant bought the other
half Interest, and thus became the aole owner
of the stock of goods, in<anding all the fixtures.
It cannot admit of serious doubt that the
IHToperty was* a stodc of goods, wares, and
merchandise In bulk within the meaning of
the act of 190!l The decision in Cooney t.
Sweat, 133 Ga. 611. 66 S. B. 2S7, 25 L. R. A.
(N. SJ 7S8. rules nothli^r to the ocottrary.
It was simply hdd in that case that the act
of IW^ has no application to a sale of aU
the lumber manufactured by one who oper-
ates a sawmill at which trees were manufac-
tured into lumber. It has several times been
h^d that the act of 1003, being in derogation
of tbe common law, should be strictly con-
strued. Cooney v. Sweat, supra ; Stovall Co.
T. Shepherd Co., 10 Oa. App. 498, 73 S. E.
761. It Is insisted that, under a strict con-
struction of the act. It should not be made
to apply to a sale by one partner to his as-
sociate of his interest in a mercantile busi-
ness. This was held In Taylor v. Folds, 2 6a.
App. 453, 68 S. E. 683, a decision relied on
by the defendant in error. We are unwilling,
however, to extend the principle of that de-
cision so far as to Include a case like the
present, for to do so would practically nullify
the sales tu bulk act and defeat the very pur-
pose which the General Assembly had in
mind, namely, to protect persons who had
extended credit to a merchant on the faith
of apparent prosperity indicated by a stock
of goods which would be sold out gradually
and replenished from time to time.
[3] If tbe debtor and the claimant had
hem partners in the business at tbe time the
credit was extended to Cook, a subsequoit
sale by Cook to tbe claimant of his Interest
in the business would have been valid, under
the decision In Taylor v. Folds, supra. But
Cook and the claimant were not partners
when the credit was extended to Cook. Aft-
er the extension of credit. Cook sold out a
half interest in the business to the claimant,
and then within less than three months sold
out the other half Interest to his partner.
If a transaction of this kind could be sus-
tained, it would be quite an easy matter In
any case to defeat the act of 1903 by selling
out on one day a half Interest in a business
and then selling the other half on the day
following. No such construction of the act
of 1903 la permissible, and the dedslou in
Taylor v. Folds does not so hold.
Judgmoit reversed.
(12 App. 68S)
SE6AB T. STATE. (No. 4,771.)
(Court of Appeals of Georgia. May 6, 1918.)
(Byllabut ly the Court.}
1. Homicide (g 309*)— Instbuctionb— Ihtol-
UNTARY MaNSLACQHTEB.
Under the evidence and the prisoner's
statement, the law of murder, of vohutaiy
manslaughter, and justifiable homicide in self-
defense, and the sections of the Code applica-
ble to these subjects,' were clearly submitted to
the jury. Neither grade of involuntary man-
slaughter was in issue,, either under the evi-
dence or the statement of tbe accused, and the
trial Jud^e properly omitted any instruction oa
that subject.
[Bd. Note. — For other cases, see Homicide,
Cent. Dig. JS 649, 650, 652-^5; Dec. Dig. B
309.*]
•VorotaereaHSSM suae topic section NUMBEK In Dm. Dig. AAia. Dlf. Kay-Ni^
52
78 aOTST^BABTKBJX RBPOBTEB
2. Sbvibw on Appbac.
No error of law appears, and tbe verdict ia
supported by the evidence for the state. ,
Error from Bnperior Court, Madison Coun-
ty; B. r. Walker^ Judge.
George Segar was convicted of crime, and
brings error. Affirmed.
JobD E. Gordon, of DanlelsvUle, and W.
W. Stark, of Commerce, for plaintiff in error.
Thos. J. Brown, SoL Gen., of Elberton, for
tbe State.
HILL, 0. J. Judgment amrmed.
<u Chu App. 674)
COLTIMBUS B. GO. t. WALLEB.
(No. 4,705.)
(Court of Appeals of Georgia. May 6, 1913.)
(SpUaiw by the Court.)
1. Sthebt RAuaoADS (I 117*) — Collision
WITH AUTOHOBILB— OBDINANCBS— BkASONA-
The question whether a municipal ordi-
nance is reasonable snd valid is one of law for
the court. In the presoit case it was error,
requiring the granting of a new trial, to charge
the jury that ^ey should examine the facts
and circumstsnces in tbe evidence and deter-
mine whether or not the monlcipal ordinance
prescribing the maximum rate of apeed at
which automobiles could be propelled along a
Bpedfied part of the highway was reasonable
and valid. Tbe ordinance was reasonable, and
the only qnestiai for the jury was as to its ap-
plicability to the facts of the case on trial.
[Ed. Notew— For other cases, see Street Bail-
roads, Cent Dig. fi 289^7; De& Dig. i
ii7.*i
2. Review.
Other than as abore Indicated, there is
no error in the record.
Elrror ftom CStf Oonrt of Ooliunbai; G.
T. Tlgner, Judge.
Action by B. A. Waller against the Colum-
bus Ballroad Company. Judgment for plaln-
tU^ and defendant brings error. Bereraed.
r. XT. Garrard and A. W. COzart, both of
Columbus, and A. S. Bradley, of Swainsboro,
for plalntifl in error. Wynn it Wohlwender,
of Colnmbus, for defendant In error.
POTTLE, J. The plaintiff recovered a
verdict for an Injury to bis aatomobtle, re-
sulting from a collision with a street car of
tbe defendant, and the defendant excepts to
the overruling of its motion for new trial.
1. An ordinance of the city of Columbus
was Introduced in evidence, prohibiting tbe
running of an automobile on any bridge In
the city at a greater rate of speed than three
miles per hour. Complaint ts made that tbe
court refused a written request to charge
the Jury that, If the platntlfC ran his auto-
mobile on an approach to a bridge at a rate
of speed of over three miles per hour, he
would be guilty of an act of negligence, as a
matter of law; and that the court instructed
tbe jury that If they should find that the
plaintiff ran his automobile npon a bridge
(whldi wonUl Include tta ImiDedlatie abot-
meats and approaches) at a greetsr rate
speed than three mUee p» hour, and if they
should find, from the facts and drcumstanfr
es and the location, ttiat the ordinance was
reasonable and valid, and tbe plaintiff's in-
jury was caused by running his machine at
such a rate of speed, and not by reaaon of
the negligence of the company, he would not
be entitled to reoov^. The critldsm upon
tUs charge is, we tUnk, w^ founded. The
evidence wajB conflicting as to whether the
damage to tlie plaintlB*8 nuuihlne occurred
on an approach to a bridge, and also as to
the rate of speed at which the plaintiff was
propelling his machine^ Aeeordlng to his
testimony, the Injury occurred about 40 test
from the end of the bridge, and be was driv-
ing along very slowly. According to some
of the testimony for tbe defendant, the auto-
mobile was being propelled about 10 or 13
miles per hour, and the street car was run-
ning at a rate of about 6 or 6 miles per hour.
The automobile was struck just as tbe street
car turned off the bridge. It win thus be
seen tbat the evidence was In sharp conflict
both In reference to tbe rate at whidt tbn
plaintiff was driving his machine and as to
the exact point at which the collision took
place. It was tbe duty of tbe court, and not
of the Jury, to pass upon tbe reasonableneat
of tbe city ordinance. CentiU B. Go. v.
Brunswick ft Western B. Oo^ 87 Ga. 892,
18 S. BL S20; Atlantic Coast line B. Go. t.
Adams, 7 Ga. App. 146, 66 S. S. 494. The
ordinance Involved, in the present case can-
not be said to be unreasonable, as a matter,
of law. It la oitirely reasonable and proper
for Qie rate of speed to be limited at whlcb
a v^icle is propelled over a dangerous place
along the highway, such as a bridge and Its
approaches. The nuiximum rate of speed at
which it sbonld be allowed to nm ia a quea-
tfon for determination by the mnnidpal
authorities. ITnleas it sbonld appear tliat
the rate of speed prescribed is such as to
rend^ it Impossible for tbe machine to be
propelled, tbe limitation would not be beld
to be 80 unreasonable a> to make tlie ordlr
nance void.
Under the evidence In tbe present case^
the Jury should have been instructed that
the ordinance was a valid and reasonable
one, and that, if the collision occurred on
the bridge or an approach thereto, the plain-
tiff would be guilty of negligence, as a mat-
ter of law, if be was propelling his machine
at a greater rate of speed than three miles
per hour. Such an act of negligence, how-
ever, would not defeat the right of recovery
entirely. If the Jury believed that the prox-
imate cause of tbe damage was the defrad-
anfs negligence, or that tbe defendant was
guilty of a greater quantum of negl^^enoe
than the plaintiff. In view of the conflicting
character of the evidence, the erroneous in-
struction on the subject of tbe municipal
p. M wty M. A— tMj Tf-p^^ .[j^yi^^^g^*
ATI^ANTA TBLEPHONS A THLXCKRAFB 00..T. GHESHIBB
orOlnaiiee wm bo prejudicial aa to require a
sew trial. The ra>dlct for tbe ^ali^lfl
eoald noder this Instraction, and may In
fiact, have been baaed upon tlie theory that
the mnnldpal ordinance was xmreaaonable,
and that even U the plaintiff violated It, he
was not guilty of an act of negligence.
2. There are eereral oth^ assignments
oC error in the motion for a new trial, bat
none of them ate ot anBldmt Importance to
reqni^ the reversal of the Judgment iefn»>
ing a new trlaL It would not hare been
Improper for the trial Judge to hare given
the diaive requested tqr the defendant that,
where a party offers ^^F™lA|f as a wllness,
his testimony Is to- be construed most strong-
ly against him, and also to tuiTe charged
upon request that, where the witness know-
ingly testtfles fals^ to a material matter,
his entire testimony oni^t to be disregarded
unless corroborated. Upon anodier trial, it
requested, sudt Instructions would not be
improper. The othw requests, so far as le-
gal and pertinent, were covered by the gen-
eral charge. Other than above Indicated, we
find no error.
Judgmoit roTwaed.
(11 Os. App. cai)
JACKSON T. STATE. (No. 4317.)
(Court of Appeals (tf Get^gia. May 6, 191S.)
(BvlUbiu Iv *h6 Court.)
MAarsB AND Sjervart (S 67*)— VioLATioir or
IiABOE CONTHACT— EVIDENCI.
Tbe UDCODtroverted cTidence ahowins that
the accused was a minor, and that his uilure
to perform the serrices stipulated in bis con-
tract was due to the fact uat lils father, who
under tbe law was entitled to bis eerrices, had
hired him for the same period to another per-
Bost, hla eoQvictioo of a vloladon of tbe "labor
contract law" of 1903 (Pen. Code 1910, i 715),
was nnautboriiEed. Harwell v. State, 2 Ga.
App. 618. 68 S. E. 1111; Howard v. State.
326 Ga. 538, 66 S. E. m
[Ed. Note.— For other cases, see Ifoster and
Scrrant, Cent Dig. 1 75i Dea Dig. i 67.*1
Error from Oity Court of Sparta; B. W.
Moore, Judge.
Clarmce Jackson was convicted of a vio-
lation ot the labor law, and brings error.
Reversed.
T. L. Reese, of Sparta, for plaintiff In er-
ror. R. L. Mmitt, 8oL, of Sparta, for the
State.
HILU a J. Judgment reversed.
(12 a*. App. 681)
BOBINSON V. STATE. (No. 4.760.)
(Court of Appeals of Georgia. May 6, 1918.)
{BylUhut bv the Court.)
1. Gam a 7*)— FiSHxiTo on Laud or An-
OTHKB.
The primary purpose of tbe act approved
August 21, 1911 (Acts 1911, p. 137). Is tbe
S reservation of game and fish; but, as inci-
ental to this purpose, It Is by section 7 of the
act made a misdemeanor to "hunt or .fish upon
tbe lands of another, with or without a iicenae,
without first having obtained permission from
such laadowner." Consent of ttie landowner is
in all caf«e8 an esseutial condition precedent to
tbe right to bunt or fish on his lands. Blassin-
game v. State, 11 Ga. App. 800, 76 & E. 3^.
[Ed. Note.— For other caaea, sea Game, Cent.
Dig. H 6, 7; Dec Dig. | 7.»]
2. Gaub (I 7*)— FisniNQ on Land or Air-
OTUSB.
One who fishes upon tbe lands of another
without liis consent is guilty of a misdemeanor,
without reference to tbe character of the water
from which the fish are taken. Hence one who
enters upon the land of another without his
consent, and wtiile thereon takes fish from a
tuiTigable stream upon which the land abuta, Is
guilty ot a violation of AcU 1911, p. 137.
[Ed. Note.— For other cases, see Game. Cent
Dig. H 6, 7; Dec Dig. |TM
3. Navioable Stbgau.
It is not decided whether the Ocblochnee
river is a navigable stream in Tbooiaa county,
within the meaning <a section 36S1 of the Civil
(3ode of 1910.
Error from City Court of HiomasviUe; W.
H. Hammond, Judge.
F. W. BoblnsoQ was convicted of fishing on
the land of another, and brings error. Af-
firmed.
Fondrra MitebeU, of Thomasvllk^ for pUdn-
Ufl in error.
POfTTI^ 3. Judgmeat afflrmed.
(U 0«. App. 662)
ATLANTA TELEPHONE & TELEGRAPH
CO. V. CHESHIRE. (No. 4,SS4.)
(Court of Appeals of Oeonda. May 6, IMS.)
(SyUahmt ty the Court.)
I. Electbioitt <| 19*)— AonoM roa Innniis
—Petition— Genbbal Deiiubbbb.
The all^ations of the petition set forth a
cause of action due to tbe negligent conduct
therein described, and tbe geaenkl demurrer
thereto was properly overruled.
[Ed. Note.— For other cases, see Electricity,
Cent. Dig. I 11; Dec Dig. I 19.']
2. ELBcmoirr (i 10*)— Plkadino (f 8*)—
Conclusions— Action for Injubibb— Pbti-
tioN— Sfbciax, Dbucbbbbs.
Tbe special demurrers to the petition are
all without substantial merit.
[Ed. Note.— For other cases, see Electricity,
Cent Dig. i H ! I>«c- Dig. | 19;* Pleading
Cent Dig. n 12-28%, 68 ; Dec. Dig. { a*]
3. Elbctbicitt (i 19*)— ApPBAi. and Bbbob
({ 1002*)— Action fob iNjmufr— Ihbtbuo-
tion—Evidkhcb— Fin dings.
Where defendant claimed that plaintifC was
a trespasser, and plaintiff claimed that she was
a licensee, and the law applicable to both tlieo-
ries was fully and accurately presented In the
charge to tbe Jui7, defendant haa no ground ot
complaint if, in fact, there was evidence as to
both contenuoDs, and the verdict as to tiie b-
sue was conclusiTe.
[Ed. Note.— For other cases, see Electricity,
Cent. Dig. 8 H; Dec Dig. J 19;* Appeal and
Error, Coit IHg. ff 3930^^7; Dec Dig. I
1002.*]
4. Appeal and I^bob (8 1001*)— FmoxNOB—
Evidence.
Whether the defendant bad notice, actual
or constructive, of tbe dangerous condition of
•For etbar oasss see same topic and aectioD NUHBBE la Dm. Dig. * Am. Dig. KKr-Heci|^|^cft:,flO Ic
51
18 SOUTHBASTBmV BBFOBTBR
(Gft.
its win, as deacrilied mud proved, was for the
determination of the jury ; and there being evi-
dence to mpport the contention of at least con-
strncttve notice the finding as to this tsaue must
be accepted as final.
[Ed. Note.— For otiier easesu see 4epd
Error. Cent Dig. SS S^S92S-8Mii; Dec.
Dig. I 1001.*] •
5. Blbctbioitt i} 19*)— Action worn Ihjtibibs
— VaEIANCB— MATBItlALITT.
The allegations descriptive of the defend-
ant's negligence which caused the injuries to
the plaintiiT were substantlaUy proved as laid,
and there was no material vananee betweoi the
allegata and the probata.
[Ed. Note.— For other cases, see Blectricity,
Cent Dig. I 11 : Dec Dig. fU.*]
Error from GII7 Oourt of Atlanta; H. M.
Reid, Judge.
Action by Laura Cheshire against the At-
lanta Telephone & Telegraph Company. Judg-
ment for plalntUt, and dafaidant brings er-
ror. Affirmed.
Thla was a nit brought by Mrs. I4iara
Cheshire against tbe Atlanta Telephone &
Telegraph Company to recover damages for
persoul Injuries alleged to bare beoi sus-
tained by reason of tbe defendant's negli-
gence. The allegations of the petition in
aubstance are as follows: On February 27,
IDll, the defendant company was maintaining
a Une of tel^hone poles and wires along
the public road leading ftom Atlanta to Col-
lege PtixK and particularly at tbat point in
said road known as "Lakewood Crossing."
Directly t^tposlte tbls crosalnK and In front
of a grocery store carried on by plain tifTs
husband, waa a telephone pole belonging to
the defendant This pole had been there for
three years. For several years past and
until about two months prior to February
27, 1911, time was a cable box and a ground
wire on this pole. The ground wire was for
the purpose of protecting tbe cable and ca-
ble box from lightning. The ground wire
was an ordinary cable running fnnn the top
of the pole down along the side of the pole,
having its lower end burled In tSie ground
at the foot of the pole. On or about January
1, 1911, thla cable and cable box were re*
moved fnnn this pde by the company; It
being engaged at that time In pnttli^ the
poles and wires and cables along the side
of tbe public road. When the cable and ca-
ble box were thus removed from the pole, the
ground wire was left swinging Qierefrom In
close proximity to the feed wires ol the Geor-
gia Railway ft Electric Company. These feed
wires wore maintained by the electric com-
pany upon Its Une of poles parallel and near
to the line of poles of the defendant company,
and these feed wires wwe powerfnlly charg-
ed with electric current On February 27,
1911, the ground wire of the defendant com-
pany had come in contact «ith the feed wires
of the electric company, whereby It became
heavily tdiarged with tiectric currrat from
said wire. The lower end of the ground
wire, swinging from the pole, as above de-
scribed, had come in contact with plaintUTs
mall box, a galvanised Iron B. F. D. box, and
this box had become charged with the electric
current from said feed wires. On said day
tbe plaintiff wait to get her mall from tbe
box, and when she laid her hand upon the
box tat Hie purpoee of opening 1^ ahe re-
ceived a powerful current of dectzidty
through her hand, arm, and body and sus-
tained various Injuries, aa described in tbe
petition.
The particular netflgwoe charged againat
the defendant was as follows: Wbm tbe
defendant's cable and cable box were re-
moved from its pole, aa above described, tbe
ground wire was left to swing Idly and use-
lessly from the pole In doee ^xlmlty to and
likely to onne In contact with the hlSh-power
feed wires of tbe electric company, and said
ground wire was allowed to remain in con-
tact with said feed wires and with plalntUTa
mail box. Second, plaintiff was n^Ugent in
failing to secure said ground wire on Its pole,
so as to toevait Its ounlng In contact with
tbe live wires maintained parallel and near
to the defendant^a line of poles. Third, de-
fendant was negligent in maintaining the
ground wire In such a position aa that It
could and did come In contact with the feed
wires of the electric company, thereby becom-
ing charged with dectrldty. Fourth, defend-
ant waa negligent In maintaining the ground
wire In such a position as that It could and
did come In contact with the feed wires and
also with plaintiff's mall box at the same
tlmfc Plaintiff did not know of the existence
of defendant's ground wire, nor of Its era-
tact with the feed wlrei^ nor of Its electri-
fied condition, nor of Its contact wlQk her
mall box, and ahe had no means of knowing
these tacts; while the defendant knew, or
by the exerdse of ordinary diligence oonid
have known, them. A demurrer on general
and Bpedal grounds was overruled and ex-
ceptions pendente lite were preserved.
The evidence In support .of the allegations
of the petition waa, in substance, as follows:
In the faU and winter of 1910 and 1911, the
East Point road, on which the poles of the
defendant company were placed, was being
widened tfy the, county of Fulton. At tbe
western edge of the old road — that la, the
old road before It was widened — the defend-
ant company and tbe Georgia Railway ft
Electric Company had their wires strung
along on poles, ea(A separate and apart from
the otbBc line; the telephone wires of the
defendant company being from 8 to 6 feet
directly above the feed wires of tbe Georgia
Railway ft Elecble Company. When the
widening of the East Point road had reached
Lakewood Grossing, commonly known as
"KnoU'a Crossing," the road was widened
on the western side about 20 feet and there-
fore it waa necessary for the defendant com-
pany and the electric company to move their
respective lines of wires and poles to one
•For other cmhs ma ume txvtle sad seetlon NUUBBK la Dee. Dig. 4 Am. Dig. K^-l^o^^^«^
ATLANTA TXXJSPBOSE A TEUEOBAPH CX>. T. OHBSHUCB
56
side or the otber of the new road bo widen-
ed. At tills crossing the husband of the
plaintiff ran a little grocery store, located
on the western side of the road. Directly in
front of this store and up against the porch
of the same was one of the defendant's tele-
graph polea On this pole the plaintiff's sou
bad nailed a galvanized iron B. F. D. mall
box, and when the road was widened at this
point the grocery store was moved back west,
leaving the pole in the road. The mall box
had been there for about 2 or 2^ years. On
Febmary 27, 1911, the date wh^ the plaintiff
received her injury, the greater part of the
old lines bad been removed by the compa-
nies to the side of the new road. There vras
a section, however, from Knotts Crossing
running north for 700 feet which had not
been moved. So far as defendant's lines and
poles were concerned, this section was abso-
Intely dead, because all its wires were cut
and wrapped around the last pole. Directly
underneath this section of defendant'a wires
ran the highly charged feed wires of the
Georgia Bailway A Electric Company. At
the northern end of tbia section of the de-
fendant's dead wires, there was a guy wire
running from the last pole on which defend-
ant's wires were strnng to the bottom of the
last pole of the defendant's wires at the
northern end. This guy wire counterbalanc-
ed the stringing of the telephone wires to the
south and prevented these wires from sag-
ging down on the feed wires below. On the
telephone pole directly in front of the gro-
cery store of plalntiCTs husband, on which
the mall box was nailed, there was an ordi-
nary copper wire nailed up and down this
pole and known as the ground wire. This
wire was torn loose at the bottom, and from
a point directly above the mall box at the
top of the pole this ground wire was stabled
to the pole. The purpose of this ground wire
was to protect the pole from lightning.
There never was a cable box on this pole,
and this ground wire never bad any connec-
tion with the cable which had been removed.
About February 24, 1911, the northernmost
pole in the dead section of the defendant's
poles and wires was accidentally run into
and broken off by the county steam roller
and to this broken pole was attached the
guy wire above described. The evidence does
not show that the defendant company had
any notice of this broken pole. On Satur-
day, February 25th, at noon, the plaintiff re-
ceived some mall out of her mall box, at-
tached to the defendant's pole, without any
electric shock. The next day was Sunday,
and no mall was delivered. On Monday aft-
ernoon, February 27th, between 3 and 4
o'clock, the plaintiff received a violent shock,
when she went to open the metal mall box
for the pnrpose of getting her mail. On the
same afternoon the defendant sent a squad
of men to the scene of the accld«at to pre-
vent further possible danger to any one else.
Upon examlnatl<m It was diso>vered that at
a point several poles north of the scene of
the accident the defendant company's tele-
phone wires bad sagged and bad come in
contact with the feed wires of the electric
company below, and this sagging was the re-
sult of the breaking of the pole, above de-
serlbedf and in some unexplained way the
current was conveyed from the feed wires to
the ground wire, and thence to the plalntUCs
mall box. On these facts a verdict was re-
turned In favor of the plaintiff In the sum of
$2,760. The defendant moved for a new tri-
al on various grounds, and to the Ju^iment
overruling this motloD it excepted.
Smith, Hammond & Smith, of Atlanta, for
plaintiff in error. Colquitt ft Gonyers and
Geo. Gordon, aU of Atlanta, for defendant ta
error.
HILL^ O. J. (after stating the tACts as
above). [1] 1. The general demurrer was
properly overruled. It was based on the tbe^
ory that the only reasonable Inference fnan
the allegations of the petition la that the mail
box of the plainticrs husband was nailed to
the defendant company's pole ; that this plac-
ing of the box on the pole was done without
the defendant's knowledge and consent, ^ther
exprera or Implied; that therefore the plac-
ing of tiie box on the pole was an act of
trespass ; that for this reason tbe defendant
company owed only the duty of not wantonly
and willfully Injuring the plaintiff; and, as
the petition did not allege that this duty was
violated, or any facts from which willful
and wanton conduct by the defendant com-
pany In injuring the plaintiff could be fitirly
Inferred, that no cause of action was set
forth. It does not clearly appear from the
petition that the mall box was actually on
defendant's pole. It might have been on a
pole provided by tbe plaintiff near to the
pole of tbe defendant, near enough to have
been within reach of the wire ct the de-
fendant company, whldi was powerfully
charged with the electric current from the
wires of the Georgia Railway ft Electric Com-
pany. If more specific information had been
desired, or was necessary, as to the exact
location of the thall box, it should have been
called for by special demurrer. The allega-
tions of the petition were suffldent to with-
stand a general demurrer.
[2] 2. The grounds of special demurrer to
paragraphs of the petition, based upon the
theory that these paragraphs are merely con-
clusions of the pleader, witbout any alle-
gations of fact to support them, or that the
allegations fail to show that defendant knew,
or by the exercise of ordinary diligence
should have known, of tbe position of the
mail box on the pole, or that plaintiff, the
exercise of ordinary diligence could have dis-
covered the dangerous condition of the wires
In proximity to the mail box, contain no sub-
stantial merit, and were all properly over-
ruled.
m a. It i. contende^ g^^^^hg^flv^e^j.
66
T8 SOtJTHBASTBRN BEPOBTEB
(W.TB.
proved that plaintiff's mail box was on de-
fendant's pole without Its knowledge or con-
sent, and that In pladng the box on the
pole without authority the plaintiff was sim-
ply a trespasser, and took the risk Incident
to the trespass. There was evidence that
the mall box had been on this pole for over
two years ; that it had been seen on the pole
by various employes and officials of the de-
fendant company. It did not appear that
any objection was ever made to Its location.
The trial Judge, in his imtmctions, gave the
defendant the fall benefit of the contention
that the plaintiff was a trespasser, charging
the law pertinent to that theory. He also
properly submitted the contention of the
plaintiff^ that she was a licensee, and the law
applicable to that theory. The jury found In
favor of the latter theory, and certainly there
was evidence to sns^rt that conclusion.
[4] 4. Again, it is earnestly Insisted that
defendant company had no notice, either ac-
tual or constructive, of the fateful and dan-
gerous contact of Ita wire with those of the
electric company. According to the evidence,
this dangerous contact had not occurred as
late as Saturday afternoon, February 26,
1011; for on that day the plaintiff had taken
her mail from the box without injury. On
Sunday there was no Inspection of the sttna-
tian. The plaintiff was hurt on Monday
afternoon, and tbm, for the first time, the
defendant received notice of the dangerous
situation, and at once remedied it This ar-
gument is on the assumption that the dan-
gerous contact was caused by the . negligent
conduct of the county employes in knocking
down the defendant's guy post with ita steam
road roller. The evidence is not entirely
clear as to the exact point of dangerous con-
tact between the wire of the defendant com-
pany and the wires of the electric company,
whereby It becaxoe heavily charged with elec-
tricity. It was not controverted that the
wire of the defwdant ocHupany, whldi was In
dose proxlmitT to the plalntUTa mall box,
had in fact come in ^nyslcal contact with the
heavily diarged wires of the electric com-
pany, whereby the wire of the defmdant be-
came dangerously charged -widi dectrldty,
and that this highly charged wire bad, by
the negligence ot the defendant, been allowed
to come in physical contact with the plaintiff's
mall box. Assuming tbat the theory of the
defoidant as to the point of physical contact
between the wires of the two companies and
the consequent dangwous condition of the
defendant's wire was correct, it was for the
Jury to determine the Iserae of notice.
[I] 6. Plaintiff In error Insists that there
was ft material and fatal variance between
the allegata and probata as to the point of
contact between the "ground wire of the
defendant and the 'feed wires* of the railway
company." The allegation was that "said
ground wire was left to swing idly and use-
lessly from said pole in dose proximity to
and likely to come in contact with the- high-
power feed wires of the Georgia Railway
& Electric Company." The proof shows that
the feed wires came in contact with the tele-
phone wires some distance from the pole
carrying the ground wire and the mail box ;
said contact being the result of the steam roll-
er of the county knocking down the de-
fendant's guy post We do not think this
variance materiaL The place of physical
contact was not materiaL The fact of phys-
ical contact which caused the electrical con-
dition of the telephone wire was the ma-
terial question. The point of danger was the
broken ground wire of the defendant, hang-
ing in close proximity to the plaintiff's mail
box. This ground wire was in proximit? to
the feed wires of the electric company, and
did actually become charged trom the high-
voltage wires of the latter. The mail box
would not have been electrified and rendered
dangerous to the plaintiff but for the fact
that the heavily charged and broken ground
wire had been allowed to remain in that
condition in proximity to the mall box, where
it did come in contact vritb the mall box.
The question in a nutshell is Just this: The
broken end of the ground wire had been
negligently left dangerously near to the
mall box, -end this wire at some point, it
would seem iramateilal where, came into
physical contact with the higli-voltage wires
of the electric company; the current -extend-
ing throughout the length of the wire and
to the broken end, where It came In con-
tact with the mall box. This question la
fully controlled by the decision In Southern
Bell Telephone & Telegraph Co. v. Davis, 12
Ga. App. , 76 S. B. 786.
After a most careful consideration of the
able arguments of counsel, in connection
with the record, we have come to the con-
clusion that no substantial error of law was
committed, and that the Judgment refusing
anotlier trial should be affirmed.
(n w. Vs. z»i>
STATE, to Use of MASON G0UMT7
COURT. V. McDERMITT.
Sheriff, et al.
(Supreme Court of Appeals of West Virgliila.
April 15, 191S.)
(ByOaltu iv t^s Court.)
1. IRTEBBST (I 46*)— Accoums or Rsmnfo
Shebifp— Demand.
Interest on balances runs against a retiring
sheriff, only from the date of a lawful demand
CD him for payment to his successor.
[Ed. Note.— For other cases, see Interest,
Cent Dig. §S 95-105; Dec Dig. | 46.*]
2. Patmknt f8 41*)— Applicatioiv— Bax^ob
Dux FBOH BmuNO Shehiet.
When a sheriff receives payments from his
predecessor on balances against him on settle-
ment, and through ignorance of law or fact ap-
plies them, or any portion of them, to other
accounts than those directed by him, and after-
wmtds receives ether psymmts <m balances.
•Tor ottasr euw wm stms topis uA ssetloa NUHBBB la Dm. Dig. * Am. Dig. ^ttT!^c%f'^^<®<^)^i@^
STATE T. MoDEKMITX
B7
without' direction u to tb«ir ftppUcation, tlie
conrt, on equitable principies, io a suit by a
county court against suco ex-sheriff and the
sureties on his oilicial bond, for balances due it,
and asainst -which such first payments were so
misapplied, should apply sufficient of such sub-
sequent payments not otherwise specifically ap-
propriated on tiie accounts on wnich the first
payments were misapplied to make np the
amounts thereof, so as not to disturb settled ac-
counts of the sheriff receiving such payments,
and to do Justice to all parties concerned.
[Bd. Note.— For other cases, see Payment,
Gent Die. H 115-120; Dec Dig. | 41.<]
Error to Circuit Court, Maaon. Gonntr.
Action b7 the State, for vae of the County
Oonrt of Maaim GooBty, aiaJiiBt 3. O. Me-
Dermitt, SliraUC. and others. Judgment for
defendants, and plaintiff brings error. Be-
TOTsed and rendered.
B. H. Blagg, of Heights, and John E. Hel-
ler, of Point Pleasant, for plaintiff In error.
8. P. Bell and SomerviUe & SomervlUe. alt
of Point Pleasant, for defendants lii error.
MILLBR, X This Is an action for the use
of the county court of Mason county, against
McDermltt, late sberlfF, and the sureties ou
Us official bond, to recover 187,680.06, al-
leged to be due tbe conntr fMm McDermltt
on settlement
By agreement of the parties the case was
referred to a commissioner to state ^n ac-
count, and such an account was stated, In
two ways, on the dlfTerent theories of the
parties. On tbe theory tiiat all payments,
aggregating $29,535.36, made by McDermltt
to Austin, his successor, were properly ap-
plicable on McDermltf s Indebtedness to the
county court, the commissioner reported a
balance due the county. Including principal
and Interest, as of the date of filing his re-
port, of $8,S16.8S, or If the court should be
of opinion, that interest should run ttom
February 28, 1010, instead of July 7, 1011,
the date from which Interest had been calcu-
lated, that tbe Interest would be $024.00, In-
stead of $267.07, indnded In tbe balance
found.
On the theory that $10,063.79, of tbe pay-
ments BO made should hare been applied as
they In effect. If not In fact, were applied
on account of McDermltt's Indebtedness to
tbe boards of education of the Beverai school
districts of the county, the commissioner re-
ported as due the county court, principal and
Interest, if interest should run from July 7,
1911, the sum of $10,633.60, but If from Feb-
ruary 28, 1910, then the balance would be
$21,187.82.
By agreement of the parties the case was
tried by the court In ilea of a Jury. The
only points In controreray on the trial, rais-
ed exception to the report of the commis-
sioner, were as to the appUcatl<ni of said
$10,963.75, and the question of Interest to
which we haTo referred.
[1] One foct, as, reported by the eommla-
slpner, la, that the county court, first at a
special term held February 28, 1010, and
again at a regular term held July 7, 1911,
entered an order requiring McDermltt to pay
over to his successor tbe balance due the
county. If as claimed tbe first order enter-
ed at the q>eclal term, vot covering snch
business, la void, tbe latter, made at a regu-
lar term, la conceded to be valid. Tbe con-
troversy as to the date from which Interest
should be calculated arises oat of the al-
leged Invalldit^r of tbe order of February
28; lOia Interest runs against the aherlff
only from tbe date of a law^. demand on
him for payment to his succctBsor. State v.
Keadle, 63 W. Ta. .645, 60 S. E. 7S8. An<
other &ct also reported by tbe commissioner
is that nona of the boards of education of
said county ever made any order requlrlzig
McDermltt to pay the balance doe them to
Austin.
The court below found defendants were
entitled to bare said sum of $10^063.76, ap-
plied a« a-credlt on HcDermltt's indebted-
n^ to the oonnty court, and gave judgment
for plaintiff against defendants, for $8,202.00,
with Interest and costs, the balance found
due, after crediting them also with $1,205.00,
paid by McDermltt since the institution of
this suit To this finding and Judgment, the
present writ of error applies.
[2] On the principal question, the applica-
tion of iMtyments, tbe evidence shows pay-
ments by McDermltt to Austin, on and after
February 28, 1010, and for which he took
receipts, with stipulations as follows: Feb-
ruary 28, 1010, $12,086.97, "to be applied to
the balances due from blm from the various
funds County and Road"; May 16, 1910, $1.-
100.06, "to be credited on the various funds
due from him"; May 26, 1010, $1,500.00, "for
payment on Robinson, Graham and Waggon-
er Road Fund, up to May 30, 1010" ; Septem-
ber 21, 1910, $3,000.00, "for which I am to
credit him as Ex-Sheriff of Mason County" ;
January 3, 1911, $1,705.22, "to be credited to
blm on the account of his settlements as
bite eherlff"; April 20, 1911, $818.23, "In
various orders to be credited on his indebted-
ness to the County and Road Funds"; June
3. 1011, $9,204.78, "to be credited to him on
account of his various funds as Sheriff of
Mason County, West Virginia."
The conunissioner baaed his report mainly
on the t&ct that the boards of education bad
nevor made orders requiring McDermltt to
make payments to Austin, but tbe record of
the settlements of Sheriff Austin, with these
boards, for the first year of his term, shows
that be was chained with the balances doe
them respectively, according to the last pre-
ceding settlements with McDmnltt, and sev-
eral of these accounts show that aft^ thus
charging Austin with these balances and
with the levies for the year, the accounts
oUuroasM MS sam* toplo and sectton MUHBEB In Dm. Dig. * Am. Dig, Ksr-No. Berlss * tlm>'v laAm^i o
Digitized by vjCTOS? IV^
58
78 SOUTHBASnOlN BBPOBTER
(W.Va.
were dUier oTerdrawu or would have been
oTerdrawn -but tx these credits, ao tbat In
those cases the btnrds of education had
actually used the mon^ so oredlted and
charsed. Sections 130, 140 and 141, chapter
45, Code SuppL 1909, requires settlements by
the sheriff directly with the boards of educa-
tion of each district, and prescribes bow
those settlements shall be made, and sectlini
142. ot the same chapter, requires addition-
al settlements with the county court for
school moneys. So that It at^>eared to the
commissioner and to the court on the trial,
that although no orders had been made by
these boards of education requiring McDer-
mitt to pay Austin, each had accepted credit
In settlement and in some cases actnally
need all and more than all the mon^ so
paid. Were they not thereby forever estop-
ped from denylDg the legality of such pay-
ments? We think eo. Acceptance of the
credits in this way was justification to Aus-
tin for receiving payment and amounted to
ratification of payments by UcZ>ermltt, re-
quiring no subsequent order on the latter to
pay.
But what about the right of McDermltt,
as sheriff, to make application of payments?
It is argued, without reference to any legal
prindplee we know of, or to any adjudged
cases, that being a public officer and the
money being public money, he had no right
to direct its application. Speaking for my-
self, I would think he had such right, but
it Is probably not necessary to decide this
question. See Throop on Public Cheers, §
218, and 4 Am. & Eng. Ency. Law & Pract
1104, 1105, which at least imply such au-
thority. If McDermltt had such right, of
course Austin could not make a different ap-
plication. But there were payments more
than enfflcient in amount to make up the
sums credited to the accounts of the school
boards, and as to which the receipts make
no speciflc application, and as to which, ac-
cording to all rules, the creditor has the
right to make the application.
The only evidence outside the receipts
showing application of payments by McDer-
mltt Is his oral testimony. When asked
whether in making payments to his succes-
sor, he did not state how he wanted them
applied, and in most cases take receipts from
him, showing how these payments should be
applied, his only answer was: "I think so,
yes sir." But some of these receipts do not
make application, and the witness does not
state, outside the receipts, what his direc-
tions were, if any, which he only thinks he
gave. Now as to the payments of May 10,
1910, made before Anstin's first settlement
in August, 1910, that of September 21, 1010,
that of January 8, 1011, and the one of June
Z, 1011, ao appUcationa wert mad^ azoq^t
tbat they were to be credited g^ierally on
McDermitt'B indebtedness to the varlona
funds, or on account of taio settlemakts aa
late sheriff. Technically eveaklns we may
say tbat neither Austin nor the county court,
or the boards of education, bad distinct legal
right to apply any of the paymenta made
prior to July, 1910, to the indebtedness to
the several boards of education, unless it be
tbat of May 16, for (1,100.06, the receipt in
that caae sUpiilatlng "to be credited on the
various funds due from Urn"; this ml|^t
mean pro rata on all. We do know* how-
ever, the recelpta, wUfdi are not afEect-
ed by any other evidence, that sabeequent
payments woe made by HdDennitt largely
in excess of the suma erroneoualy credited
to the boards of education, and aa to wbl^
no application was made by the debtor, and
out of which Austin might have corrected
bis -error In the first Instancfc Should not
the court below on equitable rules applied
even In courts of law, have allowed the credits
to the boards of education to stand In lieu
of others, which Austin would have had the
right to make out of these subsequoit pay-
ments? Evidently the applications of the
first payments were made by mistake of
fact or law, or both. But being a public
officer, and In as much as Austin bad paid
out on orders of the school boards much If
not all the money so erroneously credited to
them, and in as much as applications ot
the last payments had not then been made,
the court below, we think, should have made
such application thereof as would have been
just under all the drcumstancea, either by
allowing the original credits to stand in lieu
of the credits which might have been so
made out of the subsequent payments, or to
hare re-stated the account, crediting McDer-
mltt and charging the county court with the
first payments, and crediting McDermltt and
charging the boards of education with euffl-
dent of the last payments not otherwise ap-
propriated to close those accounts with him.
To have pursued the latter course wonid
necessarily have subjected the parties and
the court to much annoyance and trouble,
wholly unnecessary for any purposes of do-
ing right and justice to the parties. For the
general rule which we think applicable In
such cases, see 4 Am. ft Eng. Ency. Law and
Pract <3d Ed.) 1081 et eeq.; SO Cyc. 1240,
text and notes on the Justice and Bqnl^
Bule.
We are of opinion, therefore, to reverse
: the judgment below and enter judgment here
in favor of the plaintiff against defendants,
McDermltt, principal, and the sureties on his
official bond, for the sum of $10,874.44, with
Interest from July 2, 1912. tiU paid, and with
costs In the circuit court, and In tUa court
in thla behalf eq^ended.
Digitized by Google
W.Ta.)
JAEaER T. dTT BT. Ca
69
<7S W. Va. JOT)
JASGER T. CCn BT. GO.
(Supreme Court of Appeals of Weit Tl^lnia.
April 15, 1913.)
(Sytlabut by the Court.)
1. Masteb and Sebtakt (I 219*)— Stbebt
BiJXBOAD EuPLoTfi^AssuupnoH or Bl8E
— Obvious Danoeb.
DefectiTe constructioii of a curve in a
railway trackj discernible only by meaBure-
meat, calcniationa, and tbe applicatioo of aci-
catific roleB and prindplea, la not an obvloiu
danger of which the employ^ of tbe railroad
company la deemed to have knowledge.
{Ed, Note.— For other cases, see Master and
Servant, Cent Dig. H 610-^; Dec. Dig. i
3tl9.*]
2. Neqmoewcb (5 108*)— Dbolabation— Sot-
mciEHCT— Theobt of AonoM.
It is not necessary, in the statement of a
cause of action in a coont of a declaration for
negligence, to assert a single hypothecs of
vrongful action or omitted duty and then ex-
clude every other. It suffices to set forth the
act or instrumentality of injury and attribute
the injury to the wrongful act, declaring it to
have been negligent This gives the defendant
reasonable notice of the ground of liability
charged, and compiles with the ni]« requiring
certainty to a common intent only.
[Ed. Note.— For other cases, see Nei^igeno^
Cent Dig. H 174. 170. ITOTiSO; De& EMcHI
loa*]
8. PiXADina (il 193, 367*)— DEOUUUTXOit—
Defect in Fosu—DEinrBBER— Motion.
The aaaertion in a declaration, by a serv-
ant against hia master for Injury by negligence,
of a Eigber degree of duty on the part of tbe
latter uan the law tanposea, as to provide the
servant a aafe place to work, Instead of a rea-
Bouably safe place, is a defect in form rather
than Bttbatance, remediable by application to
the court for a more specific statement of tbe
groond of the action, and does not render the
coont bad on demnrrer.
[Ed. Note.— For other cases, see Pleading,
Cent Dig. H 425, 428-435, 487-448, 11*^
1198: Dec. IHg. SI 193, 867.*]
4. TBIAt (I 255*)— ImRSDOnOn^NkOBBSITT
OF Request.
Failure of both parties in an action for
persona] Injury to ask for instructloQS as to
the degree of care due from the master to the
servant or the measure of the former's duty,
Is deemed a waiver of the right to an inatruc-
tioD upon that question, and in such case it is
not error for the court to give binding instruc-
tions hypotbetically submitting to tbe Jury the
acts of negligence complained of, withoot de-
fining the measure of duty on the part of the
master.
[Ed. Note.— For other cases, see Trial, Cent
Dig. SI 627-041; Dec. Dig. } 255.*]
5. Tbial (S 261*) — Bxfusal of Instbuc-
TI0N8.
The trial court propeilj refuse in-
stmetionB drawn in terms so inartificial, in-
apt and general as to make tbem misleading.
[BM. Note.— For other cases, see Trial, Cent
' 484, eeO, 671, 678, 970; Dec. Dig. S
a. Master and Sbbtant (SI 101, 102*)— Du-
TT OF MASTES— RxASONABLK OABX.
Tb9 measure of the duty of a master to
his servant is reasonable care, in view of the
situation of the parties, the relations they
have established, the nature of the business in
which the servant is employed, the character
of the machinery and appliances used, the sur-
ronndSng drcnmatancea and conditions, and the
exigencies which require vigilance and atten-
tion.
(Ed. Note.— For other cases, aee Master and
Servant Cent Dig. » 135. 171, 174, 178-184,
192: Dec. Dig. If 10l,.m*]
fAddHion«l aptMm hf Editorial Staff.)
7. TBIAI. (S 232*)- INSTBUCTION.
An instmction need not cover all phases of
the case, but may be properly given where it
correctly states the law applicable to its sub-
ject-matter, and is defective <»ily In the sense
of incompleteness.
[Ed. Note.— For other cases, see Trial, Gait
Dig. IS 024, 525: Dec. Dig. { 232.*]
Ema to GIrcalt Oonr^ Ohio Oount7.
Action b7 Baay Jaeger against the City
Ballway Conaumy. a corpoxatloii. Judgment
for idabitUE, and defendant brlnge error. Be-
veraed and r«nanded for new trlaL
John J. Oonlff and Charles J. Schuck, both
of Wheeling, for plaintlfF In error. John A.
Howard and O'Brien & O'Brien, all of Wheel-
ing, for Pendant In emw.
POFFENBABGEB, P. The declaration in
this action for damages for a personal Injury
to a street car conductor, occadoned by de-
railment of the car on which he was work-
ing, contains seven counts, the snfliciency of
eadi €ft which la diallenged by demurrer.
The trial court sustained the demurrer as to
the third count and overmled It as to all the
others. On this writ of error ihe defendant
complains of the rulings on Qie demurrer ad-
verse to It and the overruling of its objection
to certain instructions and its motionr to set
aside the verdict
[1] Improper construction of the curve at
whlc3i the derailment took place, set fbrth
with considerable detail and specification,
and operation of the cars thereon-, constitute
the gravaman of tbe first and second couota
In connection with this allegation of an nn>-
safe place of work for the plalntlfl, the oper-
ation of the car over the track so improperly
constmcted is admitted. On this admission
is founded an' argument or contention of as-
sumption of risk on the part of the plaintiff,
constituting a defense apparent on tbe face
of the counts themselves. A defect in con-
struction' of that sort, discoverable only by
measurements and the application of scten-
tlflc rales and principles, Is not an obvious
one of which an employ^ must take notice.
No palpably Improper constractlou' is admit-
ted. These counts say only that tbe defend-
ant carelessly and negligently constructed the
said curve, carelessly and negligently used In
the said construction improper and unsafe
rails, improper and unsafe guard rails, and
careles^y and negligently constructed an Ir-
regular, untrue. Improper, and unsafe curve.
All this may be true and the defect or dan-
ger be not open and notorious, so as to at-
tract the attention of the conductor passing
over the road in the course of bis employ-
ment
«rsrsttw<
I wm BSM twls and seetloa MDMBBB in Oea. Dig. * Am. Dig, K^-KoUlRHiKiftillkp^
60
78 SOUXHIiASTBBN BKP0BTH5B
[S] D^ecttve ecinlxaDeiit ttf Qie nr In le*
spect to brakes and uind aiqjtUancea is tbe
ground of net^^ience asserted In the Anirtb,
sixth, and seventh conifte, and fallnre in re-
spect to the dnty of inspection of the track
Is the durga of the fifth. As the fourth
merely alleges defectiveness of the brak^
withont showing the absence or iusuffldency
of other safety devices for the purposes for
which brakes are used, and the sixth and
Beventh diarge oiunltableness and inadeaua-
<^ of the same appliances, without an aver-
ment of the necessitr for sndi appliances by
negation of the use of other ai^Uances for
tile aocompUshmwt of the purpose for which
sand is used, it Is Insisted that these connta,
considered separately and singly, do not
make out causes of action. In eadi Instance
these counts say the injury resulted from the
defect Q>eclfled. Each sets out a cause of
action. The allegation gave the defendant
notice, with reasonable certainty, of the acts
of negligence charged against It and thus ef-
fects the object of pleading. Certainty to a
common Intent Is all the rules require. It Is
not necessary, in setting -forth causes of ac-
tion, to assert a single hypothesis of wrong-
ful action or omitted duty and then exclude
every other, as a Jury Is required to do In
reaching a verdict in a criminal case involv-
ing circumstantial evidence. The objection
to the fifth count la similar. Denying doty
on tiie part of a railroad operator to have
regular and dally inspections of Its track
made, itnder any and all drcumstaoces, coun-
sel say no cause of action Is alleged in this
count It says the track at the point of the
accident descends a long steep grade to a
sharp curve on the edge of a dangerous em-
bankment, and charges duty on the part of
the defendant to avoid injury to the plaintiff
by reason of defective construction or defec-
tive and unrepaired condition of the track on
said grade, and to employ proper and suita-
ble track Inspectors and to Inspect carefully
and regularly the track on the grade and at
the curve, and tiien avers nonp^ft)rmance of
this duty and consequent injury. There la
no snggesttOB of dnty to Inspect regularly ev-
017 foot or iocfb of the track of a long rail-
road. On the contrary, there is an averment
of duty to take precautions for safety at a
particularly dangerous ptrint on the track.
The rules, principles, and reasoning found In
the opinions in Halns t. Railway Co., 76 S. E.
843, recently decided and not yet oflldially re-
ported, Bralley v. Railroad. Co., 66 W. Va.
462, 66 S. E. 653, and TeiQi T. Salt Ga. 61 W.
Ya. 96, 41 S. IL 187, 57 L. R A. 410, fully
sustain the action of the court below In hold-
ing these critidsms and objections untenable
and Insufficient
[S] Most of the counts aver duty m the
part of the defendant to maintain a safe
place for work by the plalntlfF, and safe In-
strumentalities and appliances with which to
work, not mere duty to exercise reasonable
care to provide a reasonably safft place to
work and rea8<nuibly safe appliances with
whteh to woiiE, the measure of duty prescrlb*
ed by law, as shown in Whorley t. Lumber
Co, 70 W. Ta. 122, 78 a E. 263, and the
many cases there dted. This Inaccuracy of
statement in the declaration is relied upon
as ground of insnffidoicy. AU of the counts
here otwddered set fiivth causes of action.
In a substantial sense eadi of them is good.
Each apprises the defendant of an alleged
ground of liability. Bach may dalm a his^-
er duty on the part of tiie defendant to the
plalutiflF than the law Imposes by the use of
general terms, but this is a defect of form
rather than substance, and, under our prac-
tice as modified by statute, such defects are
remediable not by general demurrer, but by
application to the court for more specific
statements of the grounds of action. Qartin
V. Coal Co., 78 8. XL 67S, recentiy dedded and
hot yet reported; Jacotn v. Williams, 67 W.
Va. 877, 67 S. B. 1113.
[4] Failure to define in the instructions
given for the plalntifC the measure of the de*
fendant's duty in accordance with the conclu-
sions stated in Whorley v. Lumber Co. is a
ground of complaint There la a like omis-
sion in the Instructions given at the instance
of the defendant and those asked for by the
defendant and refused. The failure of the
attorneys for each of the parties to ask any
instruction on this subject seems to have
been either the result of oversight or convic-
tion on their part that the measure of duty
was so well understood by the Jury that there
was no occasion for instructions on that sub-
ject This omission may render some of the
instructions Incomplete, but the detect Is rath-
er a formal one and seems to have been
waived.
As the plalntur did not testify and there is
no evidence as to what particular vocations
or callings he had capacity for before the
acddent exception Is taken to that part of
inatmction No. 2, given for the plaintiff,
which authorizes the Jury in estimating dam-
ages to ascertain how far the injury is cal-
culated to disable him from engaging in
those pursuits and occupations, for which, in
the absence of such injury, he would have
been qualified. This objection is untenable.
In the absence of evidence as to his capac-
ity and fitness for particular vocations, the
Jury could base an estimate upon thdr com-
mon knowledge of the capacity of an ordlnup
ry man to follow a great many pursuits. The
car on which the idalntlfl was working at
the time of his Injury had formerly been
equipped with four sand boxes, two on each
end, enabling the motonnan to sand both
rails of the track at the same time; but
about two years before the accident, two of
these, one on each end. were removed, leaving
means of sanding only one rail at a time,
and one Issue In the caae was whether the
defendant had committed V^^C^ Jf^ff^U-
.DigiEtzedby VjOOyiC •
W.Taj
JAEOEB r CXTT AT. 00.
«1
gence in tUa attentioii of tiie car. Plaln-
tur> instTQctkm Na 8 embodied tbla act as
one of its elements, and anthorteed ttae Jury
to find negligence on tbe part of tlie defradr
ant, if tbey believed tlie car had formerly
been equipped with proper and adequate &9-
pllancea for sanding both talis, and the de-
fendant company had removed from It a part
of tbe said sanding appliances, and the re-
moral <tf that part rendered ttae remaining
sanding appliances inadequate, and tbe de-
fendant had failed or neglected to restore
or replace Oie parts ronoved. FialntUTs In-
•traction No. 4 embodied tbe same theory
of negligence In similar terms. Alleged im-
positicm of too Ugh a d^rree of duty upon
tlie defendant Is the baals of tte attack up-
on both of them, because each fails to sub-
mit to the Jnry whether, notwithstanding the
act complained of, the defendant had ezerda-
ed reasonable care and prudence for the
safety of Uie plalntlflt. The degree of care
and measure of the defendants doty eonstt
tnted a separate and distinct element In the
case, and could have beoi submitted to the
)nry In Independent Instructions properly for-
mulated for the purpose and full opportunity
was afforded the defendant to obtain them.
These instructions had tor tb^ purpose a
finding by tbe jury as to whether the appU-
ancee were defective and correctly submitted
tlut issue. Hence tbey are correct and un-
objectionable to the extent of thtfr subject-
matter.
[7] An Instruction need not cover all phas-
es of the case. If it correctly states the law
applicable to its subject-matter and is de-
fective only In the sense of Incompleteness, It
may properly be given. State v. Kelilsan,
56 W. Va. 600. 47 S. £. 166; State v. Prater,
62 W. Ta. 1S2, 43 S. B. 230. Both Instrac-
tiona were binding. It la true, but tbey pro-
pounded a question of liabilily on the theory
of inadequate appliances. Their purpose was
to submit to the jury whether tbe appliances
were defective. That was one issue in the
case. Whether tbe defendant had exercised
reasonable care for tbe safety of the plaintiff
was a separate and distinct .issne. although
closely related in its nature to tbe other. On
this, both of tbe parties were content to let
tbe case go to the Jury without instruction.
Presumptively, therefore, they were satisfied
tliat from the oral argument and otherwise
the Jury were sufficiently Informed as to the
degree of care required.
[IJ Another ground of complaint is the re-
fusal of the court to give defendant's Instruc-
tion No. 6, dealing with the removal of the
sand boxes. Its general purpose was to sub-
mit to the Jury tbe propriety, under all the
drenmstances, of tbe removal of the boxes,
but the terms In which ttiis. portion of it is
expressed are inartificial, Inapt, and mislead-
ing. It would have directed the Jury to In-
quire whether It was "the proper tbing" to
remove the double sand boxes on the sum-
mer cars, and whether these changes were
made accozdliig to ttie Judgment, and under
Hie Instructions, of tbe defendant's superin-
tendent Had tUs Instmctton been given, it
would have submitted no Inquiry as to wheth-
er the ear was roidered defective or unsuit-
able tor nse after ttae removal of the doubto
sand boxes. It would have required a finding
as to whether the r^oval of the double sand
boxes was "the proper thing," a very indef-
inite inquiry. We do not think tbe court
erred in refusing this Instruction.
The derailment and injury complained of
occurred on a very steep grade, ranging
from 4:65 feet in a distance of 100 feet to
11.74 feet, and at a sharp curve at which
tbe grade was nearly 7 feet in the 100. Tbe
fverage grade was 8.76 feet In every 100 feet
The road ran frtmi the dty of Wheeling up a
steep liill to a place of amusement called
Mozart Park. Between the sharp curve, at
which the derailment took places and the
park, there la at least one other curve on a
heavy grade. Over this road in the summer
there is very considerable traffic. On cer-
tain occaslona as many as 29 trips a day
were made over it by the single truck open
summer cars. When these cars were first
put on, tbey had two sand boxes on each end,
operated by tbe motorman. so as to sand
both rails at the same tlmfc They remain-
ed in this condition from 1003 or 1904 until
1907, when ttae boxes were changed. Two of
them were removed and placed on the winter
cars, leaving one box on each end of tlie
summer cars. This rendered It impossible
for the motorman to sand more than one
rail at a time. Before the occurrence of the
accidCTt here Involved there had been two
similar accidents at the same place, one by
car No. 36 while equipped with four sand
boxes, and another by a similar car carrying
only one sand box on each end. All the cars
were equipped with hand brakes and mag*
netic brakes, and also with an appliance
for reversing the current as a means of check-
ing ttae speed or stopi^ng them. Ttaere is
some confilct In tbe evidence as to whet^
tbe accident to the car in 1904, carrying the
four sand boxes, was due to incompetency
of the motorman. As to the cause of ttie
later accid^t to the car equipped witb only
two sand boxes, the testimony Is indefinite.
Tbe sand tubes were so far In advance of
the wheels and trucks that no sand fell on
tbe track while passing over a sharp curve.
Whether it was practicable, in view of tbe
brakes and other appliances in front of. the
wheels, to bring these tubes closer to ttaem,
is left In considerable doubt by the evidence.
No defect In tbe construction of tbe track
in tbe curve or elsewhere is shown, nor is
there proof of lade of sufildent inspection
of the track or car. Tbe car on which the
plalntltf was. injured had been inspected and
repaired Just before It started on the tr!c>
on which he was hurt One acddent occur-
red while the cars were ^^^''^'^^^^'^[(^
62
78 SOUTHBASTBRN RDPORTBR
(W.Vn.
Band boxes, and uioUier occurred when Qiey
were equipped with only two sand boxes.
On the oGcaj^on of the acddent involved
here, the tn^s were wet and slimy, on ac-
count of a beaT7 fog snch as the wltneKwe
say often occurred at that place. Ibe motor-
man lost control of the car while passing
through a curve on a ste^ gnide some hun-
dred ffeet above the curve at wUch the de-
railment occurred. In this upper curve the
sand boxes dropped no sand on tlie rails, be-
cause the tubes came ^wn too far in ad-
vance of the wheels. Both the motorman
and other witnesses testify that he used
the magnetic brake, and reversed the corroit
in his efforts to check ttie speed of the car,
and get it under controL The magnet^p
and hand brakes could not be used at the
same time. They were not Intended to be.
No defect In either brake Is proven. Some
of the witnesses, experienced motormen, but
employte of the defendant company, deny
that -an additional sand box on the front end
of the car would have given any better pro-
tection than the single sand box; but a civ-
il engineer who had formerly t>een super-
intendent of the road and had supervised its
construction and equipment and the present
superintendent were both of tiie opinion that
two sanded rails would iiave afforded great-
er protection than one. The former witness
expressed the opinion that the cars should
have had double sand boxes on them, but he
did this with considerable hesitancy and re-
luctance, saying he hardly knew how to an-
swer the question, because cars had been
operated over the track, both summer and
winter cars, with one sand box. Plaintiff
had worked for the defendant and run over
this steep grade as conductor for a consid-
erable period of time, apparently more than
a year. On the morning of the acddrat he
had made two round trips to the park. In
this state of tlie evidence, we are called up-
on to say whether there is sufficient evidence
of negligence to sustain the verdict, and Oils
involves a further inquiry as to whether
the employment waa obvtoQsly hasardous
and Qie plalntiir assumed the risk of Injury.
[I] In ttie relation between master and
servant, the prin^ple of waiver has wide
scope uid oporatlon. In the abstract the
mastw is under absolute duty to furnish the
aervant a reasonably safe place In which to
work and reasonably safe appliances with
which to work, but the servant, having
knowledge of the failure in these respects,
is deemed to have waived performance or
rather to liave assented to the conditions the
master has made. This principle Is stated
in Pulton V, Grosby-Beckley Co., 57 W. Va.
91, 94, 49 S. Bl 1012, 1013, as foUows: "As
the employs assumes the risk of all known
dangers, though attributable to failure of
legal duty in the abstract on the part of the
employer, the qoestlMi of negligence in any
given case depeoda upon the relation which
the master and servant, by th^r conduct and
agreement, have established between them-
selves with reference to the business in
which the servant is employed. This walvo:
on the part of the servant releases the mae-
ter from much of the burden which the law,
but tar it, would imprae." Tbia ooncluslon
resulted from an examination of many eases.
Its application here necessarily resulte in
reversal of the Judgment and tlie granting
of a new txlaL The conditions under which
the plaintiff was working at the time of the
accident were those under which he had
been working for several monOui at least
He knew the character of t^e road. Its aub-
jectlon to toggy and murfcey weather render-
ing the track sUppery, and the liability of
cars on such a road under snch condiUnis
to get beyond control, even when operated
by the most competent motormen. This dan-
ger waa not so great as might be snivosed,
for during the whole period <tf two years 1b
which cars equipped as the one on which be
was working had been used on the road but
a single aeddent had occurred. Within that
time from 19 to 29 trips a day had been
made over the road during the summer sea-
son, amounting In the aggregate to thou-
sands, and the cause of the single accident
within that period Is not shown to have
beea lack of additional aandlng ai^llances.
On the morning of the accident, under the
very same conditions obtaining at the time
of its occurrence, be had already made two
trips up and down that grade and without
accident On many former occasions be had
conducted cars of the company over the road
under similar conditions Mrithout mishap.
He may not have fully realised the danger
ot woAtng on that road, but tb6 evidence es*
tablishes no negligence, no want of reason-
able care, on the part of the defendant No
evldMice proved, or tended to prov^ any con-
nection with the former accident and the
lack of additional sanding appliances. With-
out them the defmdant operated Vfixa under
all conditions of weather for a peiiod of
two years without any actddent shown to
have been the sequence of lack of sand t>ox-
es. Nothing In this long experience indicated
necessity for more of them. On the con-
trary, the defendant's own experience tended
to prove lack of necessity therefor. The
plalntlfTs injury appears to have been very
great and his condition to be distressing,
but the rules of law cannot be varied or Ig-
nored as a means of relief from his mis-
fortune.
As the evidence is wholly insufficient to
sustain the verdict the judgment must be
reversed, a new trial granted, and the case
remanded.
Digitized by Google
lOKKBAL OOUNTT COURT r. TOWN 07 PIEDMONT
63
(n W. Ta. IN)
MnnntAXi county court t. town of
PIBa>MONT.
(Sn^«iM Ooort of Appeals of Wett Tirglntt.
April IS, 1813.)
(Syllahut by the Court J
1. HuniOIPAL COBFOSATIONS (| S7*>— HuRXO-
IPAX. PoWUtS— BXSBCISE.
The ezerciae of municipal iKiwen, by prop-
er construction, la confined to the territorial
limits of the mouiclpalitj, and are O.) aoch as
•re Ranted hr ezpreae words; (2) those fairl;
impued or inadent to those expressly cranted ;
and <3) those essential to the declared objects
and purposes of the corporation, not simply
courement, bat indispensable.
[Ed. Note^For other cases, see Municipal
GMjioratiotu, G«it Dig. || 144, 148; Dec. Die-
2. MumOIPAI. COBPOUTIONS (I 22d*)— CON-
TSA0T8— Budge ih Ahotheb Statk.
A town or city of this state, witliin these
mlea, has no power or authority to enter into
a omtract with the county court of the county
in which it is located to contribnte to the ex-
pense of bnildinf a bridge, without Its coipo-
rate limits, and which is located wholly within
another state.
[Erd. Note.— For other cases, see Honidpal
Cognations* Cent Dig. U 646-660; Dee. Kg.
8. MuKicnui, OoBPOBATioira (I 240*)— Void
COHTMAOra— LlABILITT Or OlTT.
Nor is snch a contract or promise of a
town or city to oontribnte to tlie expenses of
boilding such bridge liinding on principles of
the common law or on the ueory of its obliga-
tion to do Justice. Receiving no money or
property or ntle thereto from the eonnty which
in Jiutke it sfaoold restore, and its oontract be-
ing absolutely void, and not capable under any
Ewer of being ratified, it cannot be rendered
hie on its void promise.
[BU. Note.— For other cases, see Mnnidpal
O^^rationa, Cent Dig. H 607, 86S; Dec. Dig.
Error to CSrcolt Court, MlneftU County.
Action by the County Court (tf Mineral
County against the Town of Piedinont
Judgment for plaintiff, and aetmOMnt brinsi
error. Reversed and rendered.
Harry K. Diane, of Piedmont, and Frank
OL Reynolds, of Keyser, for plaintiff In error.
CbarleB N. Flnnell. of K^nr, for OeCBnOant
In error.
MILJ^B, I. In the court bdow, on facts
agreed, plaintiff obtained judgment against
defendant, fOr 1647.80. The cause of action
allied, and on which the Judgment is predi-
cated, was, that while plaintiff and the coun-
ty commisslonerB of Allegheny County, Mary-
land, bad under consideration the constmo-
tioD, by joint action, of a bridge across the
Potomac River, defendant, in consideration
that a foot way would be built on each side
of the proposed bridge promised and agreed
to pay or contribute the sura of Hve hundred
dollars towards the expense thereof; and that
at the time of entering into said agreement
defendant, by Its council, had laid a special
levy of ten centa on the hundred dollars, to
pay the same, and that said bridge had been
oonstnxcted as agreed, and paid for by plain-
tiff, and that defoidant, by Its said promise
had become bound to pay plaintiff the sum so
stipulated, and paid by plaintiff on ita ac-
count
The defense was and Is that the alleged
pnnnlae waa absolutely TOfd because ultra
Tires.
The agreed facts admit tbe contract or
promise, substantially as alleged; and also
that bridge and abutments are wholly within
the County of Allegheny, State of Maryland,
and that at Qib time the bridge was built
Asbfleld street ran to the bridge and was
connected with it, and Is the only approach
to the bridge from the Town of Piedmont
[1] A general proposition, well supported
by authority, is that the exercise of munici-
pal powers are, by proper construction, con-
fined to the territorial limits of the munici-
pality, and are (1) such as are granted by ex-
press words; (2) those fairly implied In or
incident to those expressly granted; and (3)
those essential to the declared objects and
purposes of the corporation, not simply con-
T^ent, but Indispensable; and that any fair
and reasonable doubt concerning the exist-
ence of the power should be resolved by the
courts In favor of the corporation. 1 Dillon,
Manic. Corp. (3d Ed.) 1 80; Id. (6th Ed.) {
237; Christie v. Maiden, 23 W. Va. 667;
Winchester v. Redmond, 03 Va. 711. 26 S. E.
1001, 67 Am. 8t R«p. 822; Cooley's Const
lim. I 312.
[2] Tbe primary question then Is, liod de-
fendant within either of these classes, power
to build or to contribute to tbe ei^pense of
building a bridge, which the agreed facts say
was located wholly outside its corporate lim-
its, and Indeed nlioUy within another state
and county? We are referred to no express
power, conferred by charter, or general law»
or as Incident thereto, nor can we clearly
and without doubt Imply snch power from
any of the powers granted, nor can we say
that snch power is essential to the accom*
pllshment of the declared object and purpos-
es of the municipality. One of the streets of
the town, it Is true, runs to the bridge, and
Is connected with It, and Is the only approach
thereto from tbe town; and that the bridge
Is highly convenient and benefldal to the citi-
zens of the town may be admitted. But can
It be said that there Is any legal obligation
on the town, to build or maintain or contri-
bute to the building or maintenance of such
a bridge? Certainly not And. mere conven-
ience, according to the authorities cited, and
some of the cases soon to be dted, Is with-
out the pale of municipal powers, not specif-
ically conferred.
The rules and principles of the authoritlea
cited were applied in Duncan v. Lynchburg
(Va.) 84 8. E. 064, 48 L. R. A. 331, holdlnt a
•Tor otber easw sM same tople and section NUMBER in Deo. Dig. A Am. Dig. Key-Mo. SerlM A B<
Digitized by
64
78 SOUTHEAJSTEBN BIBFOBTEB |(W.V«.
City not liable for a ttnlsance created by tbe
imllutlon of a stream, by Its employes, while
operating a rock quarry, outside tbe limits
ot the city; and In Becker v. La Crosse, 99 Wis.
414. 75 N. W. 84, 40 L. B. A. 829, 67 Am. 8L
Rep. 874, holding a city not liable for Injury
sustained by a traveller thereon, on the oppo-
site side of the river, which it spanned, and
in the state of Minnesota, although the bridge
had been built by it across the river by autbor-
Ity of legislative act The syllabus of that
case is: "A city cannot accept a grant tiom
another state to operate a toll road beyond
its limits and the limits of its own stat^ or
be lield liable for defects in sncb road if
era ted by it, wh^ it Is not authorized to do
ao, by the laws of its own state, although the
toll road Is made to connect with the city
toll bridge that the city has constmcted un-
der lawful autliorlty;" imd in Abendroth
Greenwlclw 20 Conn. 3S6, holding a city not
liable on a contract or promise to pay a cer-
tain amount toward the expense incurred in
building a bridge connecting it with a town
in another state, the undertaking being both
without consideration, and beyond its power;
and in Mayor of Albany v. Cunliff, 2 M. T.
165, holding a city not liable to one injured
by the falling of a bridge built by its officers
under a statute not constitutionally passed
for want of a two thirds vote.
Plaintiff, however, seeks to support Its
Judgment on principles of the common law,
and upon the alleged obligation of the de-
fendant to do Justice. It Is afQrm^ that at
common law, and Independently of statute, a
county can expend money for a bridge or
highway across a boundary line and beyond
It, if regarded necessary for the use and con-
venience of Its citizens. Citing Washer v.
Bullitt County, 110 TI. S. 659, 4 Sup. Ct 249,
28 L. Ed. 249. In this state, so tar as conn-
ties are concerned the subject of building
bridges is regulated by statute. Chapter 43,
Code 1906, Code Suppl. 1909; chapter 88,
Acts 1911. By these statutes, counties not
magisterial districts or municipalities there-
in, unless spedaly required or authorized by
statute, may be required to build and main-
tain bridges. Hedrick v. County Court, 77
8. E. SS9. Whether a county of this state
can be compelled on statutory or common
law grounds to build a bridge across a river
Into another state, Is a question not arising
and we need not and do not decide it But
eertainly Washer t. BolUtt County, cited for
the propOBltlon, has llttie, if any, appllcatloii
to a town or municipality within a county.
[3] But can the liability of defendant find
sum>ort in its obligation to do Justice? If tbe
towa had received money or property or title
thereto from plaintiff, which in Justice It
ought to restore; or if by virtue of some
other power not exercised at the time, Its
obligation could be ratified or confirmed, and
It had done any act amounting to such rati-
fication it might be rendered liable thereby.
Besides Marsh v. Board of Supervisors, 10
WaU. (tJ. 8.) 078, 19 Ll Bd. 1040, relied on, see,
also, Salt Lake City BoUlster, 118 U. 8.
256, 6 8Qp. Ot 1050, 30 Ij. Bd. 176; Uaher r.
Chicago, 38 UL 266. Parker t. Philadelphia,
82 Pa. 401, Chicago t. UcNlchols, 98 IlL
App. 447. Tbo first two cases illustrate as
well as any, perlumsi tbe application of the
first of Qtese prlnc^les, and Maher t. CUca-
go and Parker t. Philadelphia, the applica-
tion of the latter. But hen the town got
nothing, not even title to the hridga; that bfr^
longed to the two counties, by whose Joint
act the same was built Citizens were con-
venienced thereby, but the dty got nothing
by its promise In the shape of money or
tangible property, which It can or can be re-
quired to restore. Wherefore the authorities
cited do not apply. If it be true that it col-
lected the taxes levied to pay the sum con-
tracted for, the levy was clearly 111^1, and
If collected and not refunded, the money
would go Into the general fund, reducing the
taxes for subsequent years. In this case the
taxes were laid and collected to pay a con-
tract wholly void, and which the town had
no power under any circumstances, or by the
exercise of any power, to make, distinguish-
ing this case from Parker v. Philadelphia,
where the contract involved was r^rded
void because made without a previous appro-
priation' to pay the contract price, and the
mon^ paid In on special araessments against
property owners was regarded as belonging
to tbe contractor, and the city liable therefor.
Such Is not tbe case here. Nor is this such
a case as Is presented In People ex rel.
Murphy v. Kelly, 76 N. T. 475, involving the
building of the Brooklyn bridge, by Joint ac-
tion of New Xork City and the City of
Brooklyn, under special act of the legis-
lature.
Upon these principles we are of opinion
that the Judgment below Is erroneous and
should be reversed, and a Judgment entered
here for defendant on the facts i^xeed, and
we will so order.
Digitized by Google
POFK A BALLANOB Ti BIQBTXBr-PARBT f'UMBBB CO.
65
on H. C. MM)
FOPJO ft BAUiANOB t. BIOBTBB-PABItT
LUMBER CO.
(Smmne Gonrt ot North CacoliniL Hay T>
1913.)
Bnu AHD Notes ({ 164*)-^NEOonABix in-
STBUMXNTs— What Constitutes.
Under Revlsal IOCS, S 2151, providing that
mn instrument, to be negotiable, muft contain
u nnoonditiotul promise to pay a sum certain
in money, an instrument reciting that the maker
protnieed to pay $2,000, with interest, and that
Hie note was part of the price of timber con-
Te^ed to the maker by deed and was subject to
tile prorialonB thereof, is not negotiable, being
conditional in form, sections 2153 and 2154j
defining: an unconditional promise to pay and
specifying the facts that do not affect the nego-
tiability of an inatnunent, not curing its de>
feet, and omseqaently an indorsee takes the in-
strument sabject to all equitiea between the
parties.
[Gd. Note.— For other cases, eee Bills and
Notes, Cent Dig. S6 411-414. 417; Dec Dig. §
164.*]
Appeal from Superior Court, Harnett
County; Ferguson, Judge.
Action by G. F. Pope and J. H. Ballance,
trading as Pope ft Ballance, against the
Blghter-Parry Lumber Company, in which J.
F. SherroD Interrened. From a judgment
against Intervener, be appeals. Affirmed.
Sinclair ft Dye, of FayettevlUe, for appel-
lant. CUSord ft Townseud, of Duan, for ai>-
pellee&
CLABK, C. J. The appellant. J. F. Sher-
ron, was permitted to Intervene and assert
his title to the $2,000 note signed by K. U
Howard, payable January 1, 191L There Is
evidence that be received It before maturity
and for value. The note Is worded as fol-
lows: "12,000. Duun, N. O., January IB,
1909. On January 1, 1911, I promise to pay
to the Rlgbter-Parry Lumber Company, or
order, two thousand dollars, with Interest
from date at 6 per cent per annum; pay-
able at the First National Bank of Dunn, N.
C. This note is for part of the purchase
price of timber conveyed to the undersigned
by the said company by deed of even date
herewith; is secured by retention of the title
to said timber by said company, and subject
to the provisions of said deed. K. Ll
Howard."
The jury found that the defendant broke
bis contract with the plalntiCT who, under the
terms of the deed, was entitled to recover
damages therefor. It la admitted in the case
agreed that such finding was nnexc^tlon-
able. The court refused to charge that this
note was a negotiable Instrument, and there-
fore that James F. Sherron was holder In
doe course and held ttae same tree from all
eqaltles.
Bevlsal, 2151, spedfles the requirements vt
a n^oUable insttoment The second of
Uiese requirements Is that it "most contain
an unconditional promise or order to pay a
sum certain tn maney." -^nils nyta^ocntaloa
the following condition: "And siibject to the
provjaloiu .of said deed." The note tielng
therefore conditional In form ai^ dependfiut
In Us proTlsiona upon an outside paper re-
ferred to therein was nonnegoUable and
bto honor properly so held. There is noth-
ing in the j^Tislons ot Revlsal, 21SS <jx
2154, which cores this defect or renders the
note n^tlable^ and Kierron ta€lk It sohject
to all equities.
No error.
(Itt N. C. 208)
POPE ft BALLANCE v. RIGHTHR-PABBX
LUMBER CO.
(Supreme Oourt of North Carolina. BCay- 7, \
1913.J . — * . \
Appeal ahd Ebbob <| 695*>— Bboobd— Tbuc-
SCBIPT. .
Where two parties intervened in an action,
and the judgment, which was adverse to both,
presented only one question for review, only
one record is necessary to be sent up, although,
where both plaintiff and defendant appeal, each
must send up a transcript, and the appeals
must be docketed separately.
[Ed. Note.— For other casest see Appeal and
Error, Cent Dig. { 2623; Dee. Dig. { SOS.*]
AjMwal from Superior Courts Harnett
County; Ferguson, Judge.
Action tfy Or. F. Pope and J. H. Ballahce,
trading as Pope ft Ballance against the
Rlghter-Parry Lomber Company, in which
F. W. HcGnrdy Intervened^ From a judg-
ment denying him relief, Intervener appeals.
Affirmed.
Sinclair ft Dye, of Fayettevllle, for appel-
lant. Clifford ft lownsend, of Dunn, for ap-
pellees.
CI^KK, C. J. The appellant, F. W. Mc-
Curdy, presents the same point upon another
note in the same cause of Pope v. Lumber
Com above decided. The only difference Is
as to the amount ot the not^ whlfSi Is W
000.
We note that separate records were sent
up In these two an^ls. This was an un-
necessary expense, as the appeals are In the
same cause and present exactly the same
question, though, of course, both paxBee
should appeaL If not, the judgment is sus-
pended only as to the one which appeals
(RolUns r. Love. 97 N. a 210, 2 8. a IW);
yet It was not neeessaiy to and up ewa-
rate records.
It Is true that, where both "parties" ap-
peal, a transcript of the record most be sent
up by each appellant and the appeals must
be docketed separately as distinct cases.
This rule cannot be waived by eonsoit of
counsel, and, unless there are separate rec-
ords, the case will not be beard. Mrarisou
V. ComeUni^ 6& N^ a 846; Perry v. Adams,
96 N. C. 847. 2 B. B. 609; Jones v. Hoggard.
107 N. G. 340,. 12 S. -E. 286: Caudle t. Uor-
•For o^^cMMws same tople aii4 sseUon NUHBOa la Dtp. Dig. * Am. Dig. ^9r~^^>[^^^,^^j^^C^^;fl9^ [C
66
78 SODTHHASTIOBN rbporter
(N.a
ris, 158 V. 0. 594. 74 S. B. 08. But this ap-
plies where botb the plaiotlfl and the defend*
ant appeal, and therefore present dUferent
exceptions, or where the parties appealing,
though on the same side, present distinct
questions or are antagonistic to each other.
It does not apply to this case, where the
appellants are not antagonistic and present
exactly the same question. However, It has
worked no harm to send up two records be-
yond the unnecessary expense.
Upon the roling In Sberron's anieal in tliis
case, we And In HcCnrdy'e appeal aleo no
error.
OSS R o. W)
ATBRS et aL T. BAILETT et aL
(Supreme Oonrt of Mortii Oaroline. May 7,
I'm.)
1. Barkb and BANRino (I 56*)— AjOTIOR bt
STOCKHOLDEBS— MiSJOtNDBB OF PaBTXES.
There was no mlBjoiDder of parties in an
action by the Btodtholders of a bank, of which
defeodaots were officers, which was merced Into
another bank, to recover amounts which plain-
tiffs were compelled to pay under their guaranty,
in the merger contract, of notes transferred by
their bank to defendanti^ bank and negligently
accepted by defendants. In which guaranty de-
fendantB (ailed to join as agreed, aU of the par-
ties being necessary parties.
[Ed. Note.— For other cases, see Banks apd
Banking, Cent Dig. 11 9&-104; Dee. Dig. S
2. ACnOK (S 47*}— MiSJOINDKB.
An action for breech of an agreement be-
tween plaintiffB, ' stockholders of a bank, and
defendants, officers of the bank, by whidi the
latter agreed to guarantee with plaintiffs, notes
transferred to another bank, with which their
bank was merged, could be joined with another
cause of action gainst defendants for negligent-
ly accepting worthless notes while acong as
officers of tae bank.
[Ed. Note.— For other caw^ see Action. Gent
D%. II 46D, 470, 472-4897 Dee. Dig. I 4fl.*]
8. DisHissAL and Nonsuit (| 63*) — Mis-
JOINDEB— l^aOEDT.
If several causes of action were joined in
an action by several against several others
when the actions should tiave been brought sep-
arately, the remedy was to divide the actions,
and not to dismiss.
[Bd. Note.— For other cases, see Dismissal and
Nonauit. Cent Dig. M 107-110. 112-114, 118.
120-128 ; Dec Dig. I 63.*]
Appeal from Superior Court, Mitdidl Ooan-
ty; dine, luOge.
Action by James M. Ayers and others
against Isaac H. Bailey and others. From a
Judgment for . defendants, plalntltfti appesL
Reversed.
Black ft Wilson, of Bakusrille, and Hudg-
Ins ft Watson, of Marlon, tat appellants.
W. B. OonncUl and H. H. Yonnt, both of
Hickory, for appellees.
GLARE, a J. The complaint allies:
That the defendants were ttie officers of tlie
Bank of Mit<AeIl. and as such negotiated the
me^rer of said bank wltii the Mitchell Coun-
ty Bank, and that, as a part of the contract
ot merger and as a consideration and Induce-
ment thereto, they contracted with the latter
bank tliat the defoidanta and plalntUb, who
were all stockholders In said Bank of Mttdi-
ell, should guarantee all notes, bonds, and
Instruments which were transferred by It
to said Mltcbell County Bank. That the
plaintiffs, at the special request of the de-
fendants, as stockholders entered into wi^t-
ten agreement, together with one J. B. Boone,
to guarantee all such paper and to be liable
pro rata among themselves according to the
number or value ot the shares of stock hdd
by them in the Bank of MltcbelL That the
defendants owning the greater amount of
stock in said Bank of Mitchell procured these
plaintiffs to sign said agreement, upon an
agreement with these plaintiffs that these
defendants would Join In said agreement, and
would be responsible pro rata according to
the stock held by each of them, and would
sign said agreement But that after obtain-
ing the signatures of these plaintiffs to said
agreement, as above alleged, they failed and
refused to sign the same and fraudulently de-
livered the same to said Mitchell County
Bank without their signatures. It is further
alleged that these defendants, being the of-
ficers and chief stockholders In the Bank of
Mitchell, and in sole control of the same, took
for their own advantage, or by negligence in
the discharge of their duties, paper which
was not sufi3ciently secured and knowing that
fact transferred and assigned said uncollect-
ible paper to the Mitchell County Bank,
which has obtained judgment against these
plaintiffs by reason of Inability to collect
said paper, in the sum of $6,803.68, which
these plaintiffs have paid off pro rata (except
W. U Young who has not yet paid), and this
action is brought to recover of defend-
ants on above grounds the sums due the
plaintiffs by the defendants.
[1] The defendants demur because of al<
leged misjoinder of parties and ndajolnder
of causes of action. This contention, if sus-
tained would logically require that the plain-
tiffs, 8 In number, should each bring his
action against each of the 8 defendants, mak-
ing 24 actions. This view was ably present-
ed, but we cannot assent thereto. It is con-
trary to the nttre spirit ot our modem pro-
cedure (Rev. 4eWt vUch forbids mulUpUeltT
of actions^ and besides it would be almost
Impossible to adjust the i^hts ot tiie partlea,
unless they woe all l}etorft the court In one
actlim. In Pretafelda r. Insurance Co., 116
N. 0. 481, 21 S. K 802, there were several
Insurance policies In ditferoit c<Hnpanlea, the
policies having been taken out at different
times, but each oontalnii^ a provision that
tin loss should be prorated according to flie
amount in the several policies. This court
htid: "It is not only no misjoliuter, but es-
sentlaUj proper, that all the companies
should be made parties defendant If ea<^
•For ottMT cum M* sum tepl« and MOUoa NVHBEB In Deo. Dig. « Am. Dig. Kg^-)^^|^4(^
N.GJ
TOBKE FUBKITCBB (XX T. SOUTHEBN Bf. 00.
67
company tibonM be med sepaiatdy, not only
would tbe same propoBltlonB of law ariaob
and the nme erldehce be gone over tn fire
different actions at the expaue ot flre times
the amount of court coats, and mnefa needless
consumption of the time of the court, but as
the trial would be before five durttrent Juries
the loss might be ■■sonsod at flve different
amounts."
This case la stronger, for here there Is
only one contract or agreemoit, or at any
rate only one transaction, tlmt Is to be In-
vestlgated. Besides In this case there are 8
platntlffiB and 3 def^idanta, making a total
of 24 trials of one snbject-matter, wbteh
ought to be disposed at In one trial and with
all the parties in Interest on both sides rep-
resented. Tbe principle laid down In Preta-
Celder v. Insurance Co., has ottea been af-
firmed, among other cases In Cook t. Smith,
119 N. a 36S. 25 S. B. 958; Daniels T. Bax-
ter. 120 N. a 17. 26 S. E. 636; TCeeks v.
McPhall, 128 N. 0. 138, 38 S. E. 292 ; Fisher
r. Trust Co.. 188 N. G. 242. 50 S. B. 659. An-
other case very much in point is Smith v.
Pfttton, 131 N. C 396, 42 S. a 849, 92 Am.
St. Rep. 783, and there are rery many others.
In Morton v. Tel^raph Co.. 130 N. O. 299,
41 S. EL 484, r^ed upon by the defendants,
there were three different plaintiffs each su-
ing in a separate right and upon a dlffer^t
cause of action. In Cromartie t. Parker, 121
N. C. 204, 28 S. B. 297, also relied upon by
the defendants, the complaint set up separate
causes of action against several parties,
among whom there was no community of
interests.
[2] But here the basis of action is an al-
leged agreement between the plaintiffs and
defendants for a pro rata liability in guaran-
teeing certain paper of the bank which was
duly assigned, and apparently a further cause
of action against these defendants for mis-
management and negligence as officers of the
bank in accepting said worthless paper. Sol-
omon T. Bates. 118 N. G. 811. 24 S. E. 478,
54 Am. St Rep. 725; Caldwell t. Bates. U8
N. C. 326. 24 S. E. 481. These causes of ac-
tion could be properly Joined. Benton t. Col-
Una, 118 N. a 196, 24 8. B. 122, which holds
that a canse of action In tort can be joined
with one to enforce an equitable right, where
both arise out of transactions <»)nnected with
the same subject-matter, which is here lia-
bility for the worthless papers taken by the
defendants and guaranteed by the plaintlfte,
it Is allied, at the request of tbe defendants,
under the agreement set out See, also, Dan-
iels T. Baxter. 120 N. a 17, 26 S. E. 635.
There was not only no misjoinder of parties,
but they are all necessary parties.
in If there had be«i a misjoinder of caus-
es of action, the action should have been di-
vided and not dismissed. Wedcs r. McPhall,
128 N. a 1S8, 88 8. B. 292; Ber. 476.
Tbe demurrer should hare been orermled.
Kiould the court find that tbe demurrer was
Intopoaed In good faith, as It donbtiess was,
tb» def «idants are oiUtled to annrer ow
Bev. 606.
Berersed.
(US N. C. 1>8>
ZOBKB FDBNITUBB CO. t. SOIITHEBN
BT. ca
(Snprema Gout at North Osiollna. May 7»
1913.)
1. Cauataa (| SB*) — BBonLAnoHs— Tiou-
TION — iHTBBffTATE GOUlfSBCl — TKjUrSPOB-
TATION OF PrOPEBTY— ChaBGBB.
A Bbipper of an interstate shipment is lia-
bre to pay tbe freight fixed by printed and pub-
lished schedolea of tile initial carrier on file
with the Interstate Commerce Conunlsrion, not-
withstanding an; BtipnlatitHis in the but of
lading to tbe contrar;.
[Ed. Note.— For other cases, see Oarrlers,
Cent Dig. 8 d4 ; Dec. Dig. { 36.*]
2. CaBBIBBS (I 26*)— INTEBSTATS COKVBBOB—
TBA.NSP0BTATI01C OT PbOPEBTT— ChaBOBB.
An initial carrier of an interstate shipment
which fuiDisheB two email cars in Ilea of a
large car ordered by the shipper, is. by reason
of a rale of the Interstate Commerce Gommis*
sion, limited to the rate applicable to the lazger
car,
[Bd. Note.— For other cases, see Carriers,
Cent Dig. li 87-^; Dee. UgTi 26.*]
Appeal from Superior Court, Gabarms
County; Daniels. Jndge.
Action by the Yorke Furniture Company
against the Southern Railway Company.
From a judgment for plainttfl, defendant
appeals. Affirmed.
Hie jury rendered the following verdict:
"(1) Is the defendant Indebted to the plain-
tiif; If so. In what amount? Answer: Tes,
$46.35, with Intrnst from September 90,
1907."
L. a Caldwell, of StatesvlUe, for appellant
J. Lee Growell, of Concord, for appellee.
HOKE, J. The evidence on part of plain*
tiff tended to show that In January, 1907,
plaintiff company, desiring to ship an assort-
ment of fnmiture from Concord, N. C, to
Kansas City, Ma, applied to the agent of
defendant con^any for two 50-foot cats,
That these cars were adequate for the pur-
pose and on tbe route designated, and for
cars of that size the proper rate was 88
cents per 100 pounda That after much de-
lay the agent finally succeeded in obtaining
cars for the shipment, but having been un-
able to procure cars of the slse ordered,
supplied four 36-foot can ; this number be-
ing required tor tiie goods shipped owing to
the smaller sla& Tha^ fay reason of this
dumge in the slse of the car^ the regular
freight rat^ as diown hy the printed and
published schedules on llle with the Inter-
state Commerce Oommlsslon, ms ILIOU
per 100 pounds, making a difference of $46.35
*Far eOMT eaaw MB HuiM topi* aad Motion HUHBSB la DM. 2MS. A Am, Die. lUr
«8
78 80UTHEASTEBN REPOBTEB
on the entire shipment It was Bhown tar-
tber ttiat at the time of sblpiceat the agent
of defendant stated that be bad been un-
able to famish cars of the size ordered, but
that the company would protect the ship-
ment at the rate of 88 cents, and this was
the rate spedfled In the bill of lading; the
foil amount as per scheduled rate having
been paid by the plaintiff on arrival of
goods at Kansas City.
Cl] The action Is instituted against de-
fendant, the Initial carrier, for the amount
paid in excess of 88 cents, to wit, $40.35.
The position Insisted on by defendant that,
notwithstanding the spedficatlona of the bill
of lading, the plaintiff was properly charge-
able according to the printed and published
scfaednlea of the company on die with the
Interstate Commerce Commission is un-
doubtedly correct (Texas, etc., Ry, t. Mugg,
202 n. S. 242. 26 Sup. Ot 628, 50 L. Ed.
1011} ; but the charge of the court Is in full
recognition of this principle, and defendant
has been held responsible not so much by
reason of the stipulations of the bill of lad*
Ing but because of its failure to furnish the
cars of the capacity ordered and the proper
rate diargeable in cars of that size.
[2] Rule 339 of the Interstate Commerce
Commission, Issued March 0, 1912, supplied
us on argument by counsel, seems to be di-
rectly applicable to the case, and Is as fol-
lows: "Upon informal complaints and nu-
merous inquiries It is held that the act of
a carrier In furnishing two small cars in
lien of a larger car ordered by the shipper
under appropriate tariff authority la binding,
at the rate and minimum applicable to the
car ordered, upon all the carriers that are
parties at the point of origin ; the shipper is
entitled to all privileges in transit, to recon-
slgnment, and to switching at the same
charges as would be applicable under the
Joint tariff had the shipment been loaded
into one car of the capacity ordered; and
demurrage will likewise accrue on that basis.
If the Bhiiunent moves b^ond the point to
which the Joint rate applies, the connectlDg
. Une or lines an entitled to and shonld ool<
lect their transit, reconsignlng, switching,
and demurrage charges as provided in their
own tariffs. In all cases the Initial eaxrier
will be liable tot such addlttonal chaqies as
may be imposed on the shln^ by reason of
Its failure to furnish a car of the capacity
ordered. Cbrriers that are parties to the
Joint rate under which the shipment com-
SKBioes to move may share in SQCb additional
erpense so incurred by the inltlnl canler.'*
This rule embodied In the diarge of the conrt
announces and approves tlie posltlim upon
whldi plaintiff's recovery is predicated, and
<m the facts presented we are of opinion
that there has been no error in the disposi-
tion of the case.
No error.
*moUi«r--i
061 N. a BS1>
VIROINIA ft O. S. B. CO. T. BEABOABD
AIB LINE a GO.
(Supreme Oourt of North Carolina. April 2,
1913.)
1. BinmnT Douin (f 47*) — GiOBSxira
Tbacks or Othsb Eailboadb— Bxanr to
CBoas— Statutes.
PriT. Laws 1008, c. 233, 1 2, as amended by
Priv. Laws 1907, c. 209, conferred on plaintiff
tbe right to conitract, maintain, or operate a
railroad with one or more tracks from I* to a
Doint on tbe main' line of the Atlantic Coast
iAne Railroad, and also from an; point on Its
main or braocb lines to any point wiUiln the
state of North Carolina, with the right to con-
nect its tracks with any other railroad, and to
lay down and use tracks through any town or
city along its proposed lines with the consent
of tbe corporate authorities thereof By Priv.
Laws 1803, c. 233, | 10, plaintiff was also given
the right to cross at grade any other railroad
coQBtructed, at any point on Its road, and to
intersect or join Its railroad with an; other
railroad. on the groends of such other companies,
and to baild turnouts, sidings, switches, side
tracks, or an; other conveniences in furtherance
of its objects of conatmctlon, with all the rights
and privileges conferred on railroads by tiie laws
ot the state, and section 11, as amended, an-
thorixea condemnation proceedings in case par-
ties cannot agree. Revisal 1905, S 2567 (5) and
(6), (infers on every railroad the right to eour
stnict its road along, or np«i any railroad or
canal which the route of Its road soall intersect
cross, or unite its road with an; other railroad
previously constructed on the grounds of snch
other company with the necessary turnouts, sid-
ings, and switches and other eonventeneea In
furtherance of tiie objects of Its construction.
Held, that plaintiff railroad company had the
right to bund a spur -track across defendant's
existing line of railroad to reach the plant of a
cotton mill and lumber company to the end that
it might secare freight thereirona. though de-
fendant and another railroad served such plants,
and defendant was willing to ship plainti(rB car*
over its own tracks to such plants at a reason-
able rate.
[Ed. Note.— For other cases, see Eminent Do-
main, Cent Kg. SS 107-120 ; Dec Dig. i 47.*)
2. EuimtNT DoicAiN (1 47*)— CaosBure Othsb
Railroads— Puce.
Though one railroad under Its diarter and
under the general law has the right to condemn
a right of way across the tracks of another com-
pany, such right must be exercised with due re-
gard to the convenience of bodi parties, and
with as little Interference with the defendant's
use of Its own tracks and faciUtleB as can be (A-
tained without a great increase in the coat and
in its convenience to plaintiff.
[Ed. Note.— For other cases, see Eminent Do-
main, Cent Dig. SS 107-120; Dec. Dig. | 47.*]
Hoke, J., dissenting.
Appeal from Superior Court, Robeson
County; Peebles, Judge.
Proceedings by tbe Virginia & Carolina
Southern Railroad Company against the Sea-
board Air Line Railroad Company to con-
demn a right of way across defendant's
tracks. From a decree in favor of defend-
ant, plaintiff appeals. Reversed.
'Fbib f<rilowlng Is a plat of tbe property In
qumtlon :
I BMB* tapU sBd •■otion HimBaiR ta Dss. fUg. * Am. Us.
K.G)
VntOINIA * a B. B. 00. T. SRAAOABD AIR UHS B. 00.
419
70
78 SOOTHBASTBBM BBPOBTBR
(N.a
HcLean. Varaer ft McLean, of Lnmberton,
for appellant Jolm D. Shaw, of Rocking-
ham, and Uclntyre, Lawrence ft Proctor, of
Lnmberton, for appellee^
CLABE, C. J. This Is a proceeding by the
plaintiff to condemn a right of way across
the track of the defendant in order to ex-
tend its tracks to the Lnmberton Cotton
Mills and the Klngsdale Lumber Company
plants on the south side of the defendant's
track and to make connection with the Ra-
l^h & Charleston Railroad Company's track.
The plaintiff has a spur track at Lumber^
ton extending over some 600 yards to the
Dresden Cotton Mills on the north side of
defendant's track, and it wishes to extend it
farther to the two plants above named on the
south side of defendant's track and to make
connection on that side with another rail-
road as above stated. The petition was grant-
ed before the clerk and on appeal before
Cooke, Judge, an Injunction was refused and
the commissioners proceeded' to make the
condemnation, who assessed defendant's dam-
ages at $600. On the hearing before Peebles,
J., on exceptions filed, the Jury assessed the
damages which the defendant was entitled to
recover from the plaintiff at $300, but the
Judge reversed the order of the clerk and
rendered judgment against the plaintiff. The
defendant has itself a spur track to both
these plants and the Raleigh ft Charleston
Railroad has also a spur track to the Kings-
dale Lumber Company plant There is no
reason why the plaintiff la not entitled to the
same privileges unless under the general law,
or nnder its charter. It does not have the
same power In this respect which has been
granted to the other two railroads. Indeed,
the defendant's brief frankly says that, not-
withstanding the voluminous record, "only
one question la really presented," and that Is
whether the plaintiff has a right to build a
spar track, across the defendant's line, "to
reach a cotton mill and lumber company to
the end tliat It may secure the freights there-
from." The real contest is thus frankly pre-
sented, which is whether the plaintiff can
Interfere with the monopoly of the basin ess
from those plants.
The defendant strongly urges that the
plaintiff did not need this privily because
the defendant would do the shifting of plaln-
tlfTs cars over Its own tracks to those points
at so reasonable a rate that the plaintiff did
not need to build its own track for that pur-
pose. The plaintiff replied tliat the defend-
ant had been charging most exorbitantly for
sach service, and In view of this litigation it
had reduced Its rates, but that It was delay-
ing the plaintiff's cars, on one excuse or an-
other, so as to practically deprive it of the
privilege, and that if It was denied the right
to build its tracks that the defendant would
then again raise its charges as to all inter-
state cars, which was the bulk of the busi-
ness, and that no rellot coold be had. The
defendant of connw. denied any Intention to
do this. We cannot consider such argu-
ments. The only proposition before us is as
to whether the plaintiff has a right to imSlA
to those points, and, if so, whether It Is a
wise expenditure for It to build snch tracks
Is a matter for the consideration of the
plaintiff alone, and not for the courts. As a
matter of public policy, the state encourages
competition among common carriers so tliat
the public may have the resulting benefits.
Industrial Siding Case. 140 N. C. 239, 62 S.
B. 041, and R. R. Connection Case, 137 N. C.
1, 49 S. B. 101. which bold that a "railroad
is created to subserve primarily the public
good and convenience." But we put our de-
cision herein upon the wording of the stat-
ute in determining whether the power claim-
ed by the plaintiff i8 conferred by tba stat-
utes.
[1 ] There la no question as to the right ot
way, except across the defendant's track, for
the plaintiff has acquired the right of way
entire except at that point Neither is there
any question as to the consent of the city
authorities of East Lnmberton. for their or-
dinance granting the right of way throagh
said town, which lies on both sides of defend-
ant's track, was tendered, but was refused
by the Judge npon the ground that the sole
qnestion was whether the plaintiff had the
power, under the statute, to extend Its track
to the two plants in question, for, if it had,
the power to condemn across the defendant's
track was a necessary incident
Private Laws 1003, c. 233. | 2, as amended
by Pr. Laws 1907, c. 269, confers npon the
plaintiff the right to "construct maintain, or
operate a railroad with one or more tracks
from the town of Lnmberton to some point
on the main line of the Atlantic Coast Line"
and "also from any point on its main or
branch lines to any point wltiiln the state of
North Carolina." It Is also therein given tiie
power "to connect its tracks with any other
railroad and to lay down and use tracks
through any town or dty along Its proijosed
lines with the consent of the corporate au-
thorities thereof." The plaintiff also has the
power, under section 10, c. 233, Pr. Laws
1003, "to cross at grade, or over or under,
any other railroad constructed, or that may
hereafter be constructed at any point on Its
road and to intergect, ioin or unite it» line
of railroad with any other railroad upon
the grounds of sach other companies, at any
point on Its route and to build turnouts, sid-
ings, switches, side tracks or anv other oon-
venienoet in furtherance of Ut objectt of
construction, and may in making Intersection
or connection with any other railroad tiave
all the rights and privileges conferred upon
railroads by the laws of this stata" Sec-
tion 11. c 233, Laws 1903, as amended by
Private Laws 1907, c. 269, further provides:
"Whenever, for any cause, this company is
unable to agree with the owners of the lands,
or any rotirood o*of^^^{jif^iOi^^^
VIBOINIA A a S. R. OO. T. SEABOARD AIB LIKB B. 00.
or any town or dty oindiig may street or
public way over or near wblcb It proposes
to flztoicl Its road for the pnrebase of snch
lands for its depots, roadbeds. Quarries or
other pw^sea of the emnpony, tbe said com-
pany may file a petition beftne OiB elezfe of
sDperlor court," etc. The gmeral act—
B«T. I 2S67 Qi) and (6) — confWs <m every
railroad the poww "to constmct Its road
along, or upon any stream of watw, street,
Uffhway, tomplke^ rol^ad or canal which
tbe ronte of Its road shaU Ittterteet or tondL"
"Ta eroM, iittertect, fotn and wsito its rail'
road with any other railroad before con-
structed at any point on its route, and upon
the gronnds of such other company with the
necessary turnouts, *tdhiffi and iiottehes and
other eonvmteiwea in furtheranoe of the ob-
ject of it$ oonttruetion. And every company,
whose railroad Is or shall be hereaftw inter-
sected by any new railroad shall unite with
tbe owners of such new railroad In forming
such Intersections and connectione and grant
the fiftcilltles aforesaid, and If the two cor-
poratlons can not agree upon the amount of
compoisation to be made therefor, or the
points and manner of snch crossings and con-
nections, the same shall be ascertained and
determined by commissioners to be appointed
by the court as provided In this section In
reject to acquiring title to real estate."
It seems clear, therefore, that the plaintiff
had a right to extend Its line southward to
any distance or to any point it saw fit, and
In so doing to cross the track of the defeaid-
ant It also has the right both under the
general law and under its charter to extend
its track to the plant of the Lnmberton Cot-
ton Mills and to the KIngsdale Lumber Com-
pany plant and to make connection near by
with the Raleigh A Charleston Railroad Com-
pany. It has already acquired the rights
of way for that purpose and has tbe permis-
sion of the corporate authorities of East
Lumberton for that purpose. The right to
cross the track of tbe intervening line of tbe
defendant is also express conferred by ttte
statute and Is a well-settled proposition of
law. Railroad v. RaUroad, 83 N. C. 489;
Railroad v. Railroad. 104 N. C. 666^ 10 a
B. 669; Lumber Go. v. Hlnes, 127 M. a 182,
37 S. B. 152.
As the defendant Its^ has built tracks for
all three of these purposes, it Is clear that
the plaintiff has exactly the same r^hts and
power under the general law, and being
besides expressly conferred under the pro-
visions of its charter above set out The
case of Butler v. Tobacco Co., 152 N. C.
416, 68 S. B. 12, 136 Am. Bt Rep; 831. re-
lied upon by tbe defendant, is In no wise in
point In that case the railroad company
had Its track in the middle of the street. It
sought to lay down another and parallel
track in the same street "off Its right of
way," using for part of the way even the
sidewalk. This court held that the prop-
ertj ownars could not be deprived of the
use of the street, by an unauthorized 11-
cense the town authorities to the railroad
to bnild this side track "off Its right of
way" in order to facilitate the railroad tak-
ing freight from an Industrial plant. In this
case, there Is no attempt to appropriate
a public street for the use of a common car-
rier and for the benefit of an industrial
plant to the inconvenience of the public.
[2] The defendant urges that It will be a
great Inconvenience to it for tbe plaintiff
to condemn a right of way across Its track
at a point where it has a siding, and thus
Interfere with the use of that siding for
shifting and for placing box cars. The plain
tiff replies that the defendant has only re-
cently extended Its side track to that point
and for the porpose of creating this griev-
ance. However that may be, an examina-
tion of the map shows that less than 100
yards east of the point where the plaintiff
seeks to cross the defendant's track, the
defendant's side track ends and a public
road crosses the defendant's track at that
point There is no reason, so far as this
evidence shows, why the plaintiff cannot
extend its track on tbe north side of the
defendant's track before crossing and con-
demn a right of way just beyond tbe end
of defendant's side track near the point where
the public road now crosses. "While th«
plaintiff has a right, both nnder its charter
and the general law, to condemn a right of
way across the def^dsnt's track, this right
should be exercised with due r^rd to the
convenience of both parties and with as
little Interferrace with the defendant's use
of its tracks as can be obtained without a
great increase In tbe cost and In Its con-
venience to the plaintiff. We do not see
that a requirement that the plaintiff should
cross at the point herein suggested will add
at all to the length of the plaintiff's propos-
ed extension of its track nor to tbe cost
thereof. If It should, this matter can be
considered tbe Judge aud Jury In the as-
seesm^t of damages for musing at said
point His honor, In consideration of the
case, wh^ it goes back, will adjudge as to
tbe feaslbllitT of the suggested alteration
In fb» route of the proposed axtenslon of
plaintUFs tracks, calfli« in the Sid of s
Jury, If necessary.
We need not consider the numerons other
exceptions made In this eas^ for as his
honor held, aud the briefs for both parties
admit, there Is but a single point upon whl<3i
all other matters d^^ttnd, and that is the
one )^lcdi we have dlscassed as to the xigbt
conferred by statute upon the plaintiff to
extend Ite traxAM for the pnrpMes above
named.
The ruling of tbe court below must be set
aside, and the cause will be proceeded In as
Indicated In this acinUau
Reversed.
HOKb; J.. dlsseato. Digitized by Google
72
TO BOUTHKASTBBN BBFORTBR
CM R a no
To n SWAIlfS
(Snproiie Oonrt of North OuoUikt. May 7*
1913.)
Wills (5 97*)— Fobm of InOT&UMXHTB— Skpa-
UTE Sheets.
Two sheets of paper written by the same
person at the same time and read to the testator
aa his will, and bearing intrinsic evMence that
the; constitute one will, and present at the time
of execution, an properly probated as the will
of testator.
[Ed. Note.— For other cases, see Wills, Cent
IM«. H 2S2, 238 ; Z>BC Dig. | 97.*]
^peal from Superior Court, Alexander
County ; Daniels, Jndge.
Proceedings for tbe probate of the will
of H. Swalm, deceased. From a Jadgmeut
for the jmpounders, Uie caTeators appeaL
Affirmed. -
A paper writing purporting to be the last
will and testament of M. Swaim was offered
fOr probate before the clerk of the superior
court of Alexander county, and a caveat was
filed thereto. The paper writing consists of
one sheet of four pages of legal cap paper,
which pages are in the handwriting of J. h.
Gwaltoey, Esq., and one sheet of four pages,
one page of which sheet was written in the
handwriting of said Gwaltney, detached; the
two sheets never having been fastened to-
gether.
Mr. Gwaltney testified that the paper
writing was in his handwriting; that It was
signed in his presence, and in the presence
of Mr. Carson; they saw the testator sign
the paper. The paper writing was signed by
Mr. Swaim and Messrs. Gwaltney and Car-
on the last sheet on the first page there-
of as subscribing witnesses. Mr. Gwaltney
folded the paper, put It In an envelope, and.
his recollection is, wrote across the envelope,
"M. Swalm'a WUl," and then handed It to
Mr. Swalm. The signature of Hr. Bwalm Is
on the second or detached sheet
W. H. Carson testified that he was roister
of deeds In 1911 for Alexander county, and
Uto nam^ as appears upon the sheet of paper,
wag written by himself In Hr. Gwaltn^'a
ofDce in the presence d Mr. BwaUn; be sign-
ed the paper In tala iweaaice and Mr. Gwalt-
n^g. He signed the only Bheet that he baa
any ncoUectlon of seeSi^ ; It wag on the ta-
ble. He does not remembor ttiere being any
otliOT sheet there ; tt ml^t have been or it
mig^t not; does not remember ae^ng hut one
sheet, and knows nothing about It except the
Bbe^ he signed.
Hr. Gwaltney further testlfled that both
sheets were on Uie table at the time of the
signing by the testator and the witness, and
that he read both sheets to Mr. Swalm beton
be signed his name.
The paper begins;
**I, M. Swaim, of the county and state afore-
said, being of sound mind and disposing
memory, knowing the uncertainty of life and
the coialnty of death, do make, pnUish and
dedare this to be my last will and testament
In manner and form following, to wit:"
And the last five lines on the fourth page
of the first sheet are:
"Item 7. It Is my wlU that after the be-
quest to my wife has terminated, that all my
solvent credits money and effects of every de-
sa*lptlon (including the tract of land on"—
And the first page of the seomd sheet la
as follows:
"which Flnly Eerly now lives, containing 130
acres, more or less, and upon which he baa
be^ living since the death of my daughtw
Mag (after the death of the said Flnly Ker-
ly) shall be converted into money and so dis-
tributed among my children as to make them
share equal In my etCects.
"Item 8. I hereby constitute my tmsted
friend. James Watts, my lawful executor, to
execute this my last will and testament, and
every section and clause thereof according to
the true Intent and meaning of Uie same.
"In witness wbereot I have hereunto set
my hand and seal. In the presence of J.
Gwaltney and W. H. Oaraon, who, at my
request, and In my presence, eigneS. thdr
names as witnesses thereto. This July 1st,
1911. All Interlineatlona and erasures made
before signing.
"[Signed] H. Swatm. [SeaL]
"Witness:
•'J. I* Gmiltney.
H. Careon."
It was admitted tbat Hr. Swalm was of
sound mind, and tiiat there was no undue In-
fluence, the caveators resting their case up-
on the position that as there was no signa-
ture of the testator or of the viitnesses <m
the first sheet of paper, and as It was not at-
tached to the second, it was no part of the
wilL
There was a verdict in favor of the pro-
pounders, and the caveators ai^>ealed from
the Judgment rendered thereon.
F. A. Idnney, of Boone, J. H. Burke, of Tay^
lorsvllle, and L. a Caldwell, of StatesvUlSk
for appellants. J. Ia Gwaltney, of Taylors*
vllle, and W. A. SeU; of Hickory, tor app^
lees.
ALLEN, We have easily con^dered
tiie earnest and learned argument of oounsA
for the caveators^ and recc^mse the dangor
at permitting detadted papers to be estab-
lished as one will, but dUlcuIUes of adminis-
tration cannot justify the refusal to exerdso
Jurisdiction, and we find an unbroken line of
authority In England and America In snn>ort
of the doctrine as contended for by the pro-
pounder&
In Bond T. Seawall, 8 Bnr. 1774, Lord
Mansfield said: "If the first sheet was in
the room at the time when the latter sheet
was executed and attested, there would re*
*rat etlMT esMB sm same topta and ssotUn NVXBn in Dae. Dig. A Aou Dig. KiVi^
N.O)
FEAR80K T. HARRIS CLAT CO.
73
main no dooM of Its being a good -wlU and a
good attestation of tbe wbole wltt"— and In
Wlkors Appeal, 16 Fa. 281. 08 Am. Dec. 697.
in which the writing offered for probate con-
■iBted of different ptooea of paper, written
at dUforent times, the last of vUch was ^gn-
ed and witnessed, Oblef Jnstlca Gibson said:
"It is a Tudlmental principle that a wiU may
be made on distinct papas, as was held in
Earl of EsB^s Case, dted In Lee t. Llbb, 1
Show. 08. It la safflcimt that they are con-
neeted by their internal sense hj coherence
or adaptation of parts."
In 40 Cyc p. 1093. the aottior says: *^A
wUi need not be wrlttm entirely on one sheet
of paper, bnt may be wrlttffii on several
sheets, provided the sheets are so connected
together that they may be tdentlfled as parts
of the same wilL Oonnection by the meaning
and coheroice ttt tbe Babjecfc>matter Is snf-
flclent, as physical attachment by mechani-
cal, chemical, or other meana Is not required,
althoo^ It la snlRcluit when made"--and in
30 A. ft XL 680: "It Is s mdlmentary prlnd-
pte that a will may be made on distinct
papers. It Is soffideat that they are con-
nected by their Internal sense, by cfdwrenoe
or adaptation." In the case before ns erery
requirement of the law has been complied
with. The erldwce of Mr. Owaltney, whose
credibility is not challenged. estabUehes tbe
fftct that the two sheets were written at the
same time, that both were read to the tes-
tator as his will, and were present at the
time of the ezecntlon, and the papers them-
selves bear IntriOBlc evidence that, while sep-
arate, they were tadced t<^ther In tbe mind
of the testator. On the first page of the
flrst sheet, the testator says, "I, H. Swalm,
do make this my last will and testament"
The foorth page of that sheet concfades in
the middle of an Item of the will and of a
description of a tract of land, which Is con*
cinded on the first page of the second sheet,
and both sheets are In the handwriUng of
the same person.
We find no mm.
No error.
on N. C. 224)
PEARSON V. HARRIS CLAT CO.
fSnpreme Oonrt of North GaxoUaa. Blay 7,
1913.)
1. UAsm Airo Sbbvant 269*)— Aonoirs—
Aoinssion of Evidence.
In an employe's action for iajaries br
fallios acrosi a trestle cross-tie by tbe breakios
of '8 board on which he was standing, evidence
that tbe board bad been fixed shortly after the
aoddent, or a new one put In Its place, was
admlssIUe to show tfaat plaintiff was Injared as
^Inwd, whldi defendant denied.
[Ed. Note.— For other cases, see Master and
Servant, Cent Dig. I 912; Dec Dig. i 260.*]
2. Afpbax. and Bbbob (|{ 268, 719*)— AsaiaH-
xxhts of Ebbob— NBOKBsnr.
Appellant, in an eraployS'i injury action,
cannot claim that there was no evidence of neg-
Tar etlwr aaaw —
ligence, or that tbe Injury resulted from un-
avoidable accident, In absence of an exception
and assignmebt of error raising the question.
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. 8S 1596-1604, 10m, 2968-
2U82. 8490; Dec Dig. || 268, 719.*}
Appeal from Superior Court. Mltcbell
County; Cline, Judge
Action by George Pearson, by his next
friend, Frank Pearson, against the Harris
Clay Company, From a Judgment for plain-
tiff, defendant appeals. Afllrmed.
The plalntUf was employed by defendant
to carry dirt in a dump ear for tba purpoea
ot asslatlng in laying a railway. In order
to do bis work, ba was required to go voaa
a trestie wltb bis ear to dnnq> tba dlrt^ and
while engaged In doing so be sfe^iped upon
a plank, laid upon the ties on the outside
of tbe rail or oa the onter edge of tbe trea'
tie, wbicb gave way witb bim. and be Ml
across the tie and waa badly ruptured.
There was evidence that tbe plank was de-
fective. The plank was placed there for
him and his coservants to stand on when
doing tbelr work. Plaintiff tastifled tbafnbe
plank waa crass-grained and mpUt off," let-
ting him down on the cross-ties. There were
only two Issnes submitted to the Jury; one
as to negligence and the other as to dam-
ages. It waa not contended that plaintiff
bad been guilty of any contributory negll-
gencew Verdict and Jndgmrat for plalatUt,
and defendant appealed.
Cbas. E. Greene, of Bakersvllle, and Had-
glna & Watson, of Marlon, for appellant
John a McBee, of Bakersvllle, and Pless ft
Wlnbome, of Marlon, for appellee.
WALKER, J. (after stating the tacts as
above). [1] The defendant contended and In-
troduced evidence to show that plaintiff was
not injured In the manner stated by him.
but that he had been raptured before the
time of the alleged occurrence. The plaintiff
was permitted to testify, over defendant's ob-
jection, that when he returned to his work
after the injury "tbe plank had been either
pulled back and fixed, or a new <me put
there." The defendant objected to this evi-
dence, and argued here that it was Incom-
petent as tending to show negligence of de-
fendant under Lowe v. Elliott, 109 N. C.
581. 14 S. E. 61, but the court carefully In-
Btracted the Jury not to consider It. in that
view, and it was admitted only to show that
plaintiff had been hurt In the way described
by him, and for this purpose It was clearly
admissible. Dillon v. Raleigh, 124 N. C.
184, 32 S. B. 64& The very point Is dedded
In Tlse V. ThomasvlUe. 151 N. C. 281, 66 S.
B. 1007, where plaintiff was permitted to
show that a hole into which he had fallen,
as he had testified, had been filled up after
the occurrence, not to prove negligence, but
to contradict defendant's assertion that the
Digitized by VLiUTJVlL
74
78 SOnTHBASTElRM BSfORtOiS
(N.a
bole was not there at the time of the alleged
fall; It having been fllled np. Besides,
Charles Gilbert, the pUintUTs witness, testi-
fied that he had "imt the plank back and
nailed it," and there was no proof that the
defendant had done it, so as to Imply an ad-
mission of negligence on Its part. It was
sorely competent to prove by Charles Gil-
bert that he bad restored the plank and se-
curely fastened It since the occurrence. It
not only corroborated the plalntUF, who testl-
fled. In his own behalf; to the fact that the
plank had been put back In Us place and
nailed, but it tended to show that plaintifT
was Injured In the manner described by
him, contrary to the defendant's contention
that the place was in such a safe condUlon
that plaintUf could not taaTO tallm upon the
cross-tie, as he alleges. The rule laid down
In Love t. Elliott is a sound and whole-
some one, and should be strictly enforced;
but It was adopted to promote Justice, not
to defeat' it, and tliere is no room In this
case for its appllcathm. Defendants In n^-
Ugence cases will not be permitted to avail
themselves <tf the rale for Qie purpose of
preventing a fair and full disclosure of per-
tinent facts, not tending to establish neg-
l^enc&
[t] The only eneption of the deftodant,
upon which an assignment of orror Is based,
Is to this evidoica. Without any exception
and assl^unent of error, It wUl not be beard
to allege that there was no evidotce of negr-
llgenc^ or that the injury to the plaintifr
was the result of unavoidable accident
Jones V. High Point, 1S3 N. a 371« 68 S. B.
258, and cases dted.
We find no error in the raliuf to which
ezc^Hion was taken.
No error;
oa N. a ui)
MOSBR et aL r. CITY OF BURLINGTON.
(Sapreme Court of North Carolina. May 7,
1913.)
1. HUNICIPAI. COKFOBATIORS Q 786*)— ToKTS
— LUBIZJTT.
Though a municipal corporation Is not civ-
illy liable to indivicluals for failure to perform,
or neglect Id performiog, duties of a govera-
mental character unleu mode so by statute, it
cannot create or maintahk a Qoltance cauniME
damage to the property of a private owner
without being liable, since the damage is a
taking or appropriation of the property for
which compensatioD mast be made.
[Ed. Note.— For other caaea, see Municipal
Corporations, Cent Dig. | 1552; Dec Dig. {
736.»]
2. Mqnioifae. Cobpoutiohs a 827*)— Ezkr-
ci8e of oovkbhmentae. pow—s llabtl-
ITT,
A municipal corporation, empowered to
construct and maintain a sewerage system, may
not exercise ite power in socb a way as to cre-
ate a private nuisance without making com-
pensation for the injury Inflicted or being lia-
lile in damages therefor or to equitable restraint
in a proper case, and it is a nuIsaDCA to pol-
lute a stream by emptying sewage therein.
[SkL Note.— For other case^ see Monidpal
Corporations. Cent Dig. M 177S-1776; Dec
Dig. I 827.*1
8. MUMIOIPAL COBPOULTIOHS (S 8iB*)— BXD-
OISB OF GOVEBHiaUlUL POWTEB IJiWlTi-
IIT.
The damages occasioned by a dty so main-
taining a sewerage ^stem as to create a pri-
vate nuisance by polluting a stream are oon-
flned to the diminished pecuniary value of the
property Incident to the wrong, and evidence of
specific cases ol sicknesa in plaintifiTs fami^
may be considered only as tending to estebUw
the existence of the nuisance.
[Efd. Note.— For other cases, see Municipal
Corporations Gent Dig. H 179&'1802; Dec.
DlgH 845.*!
4. Municipal CoBPOBATiona (i 845*)— Exbb-
CISK or GOVBBNMBITTAL PoWKSS— UtABX]>
ITT— INSTBUCTIONS.
Where, in an action against a city for
damages for maintaining a nuimnce created by
ite sewerage system contaminating a stream,
the evidence was conflicting on the gueBtioos
of nuisance and damages, but there were facte
justifying the inference of the existence of an
indictable public nuisance and of negligence in
the operation of the sewerage plant, an in-
struction that a verdict for plaintiff and an
award of damages wonld operate to vest per-
petually in tiie city the right to operate and
maiotein the system in the manner In which
it was operated and maintained was erroneoos,
as a recovery of permanent damages for the en-
tite injury is allowed only on the theory that
the work is carefully conducted and properly
carried on, and, where there is a default
amonnting to actionable negligence, there is a
new cause of action, and a recovery for parma-
nent damages will not bar it
[Ed. Note.— For other cases, see Municipal
Corporations. Cent Dic> H 1796-1802; Dec
Dig. f 845.*]
Appeal from Superior Gourt, Alamance
Oounty; Frank Carter and H. W. Wbedbee^
Judges,
Action by A. H. Hoser and anoUier against
the City of Burlington. From a Judgmoit
for pUdnttffs, defendant appeals. Reversed,
and new trial ordered.
There was allegation with evidence on
part of plalntifb tending to show that they
were the owners of a tract of land In said
county, situate on LitUe Alamance cre^ ;
that the house occupied by plaintiff for a
residence was near the stream ; there was
also a mill on said creek, operated by vrater
power, and a stone dam had been erected
across the stream to enable plaintiff to util-
ize said power, the house referred to t>elng
near the pond, etc. ; that about one year
before action commenced, to wit, In 1909, de-
fendant had installed a sewerage system for
the city of Burlington, and to connection
therewith had constructed and was operating
a disposal plant with septic tank for treat-
ment of sewage before discharging same into
said creek, such plant and outlet Into the
waters of the stream being situate about one
and a half miles above plaintiff's property;
that, by reason of the existence of said plant
and Its methods of operation, a large amount
DTgHized by VjCJUV IC
N.d)
MOSER CITT OF BUKLINaTOK
76
of filth, excTemeBt, and sewage and other
offeiudTe aobstancee were daily dlsdiar^d
into the waters of said stream above the
boma of plaintiff, and. In ttme of freshet,
aame was brought down and much of it
lodged npon the lowlands along said stream
and upon lands of plaintiff, causing most
offensive smells, odors, etc, thereby creating
a nnlsance which rendered home of plaintiff
moat uncomfortable, threatening the health
of his family, and causing great and per-
manent damage, eta, to the property. A
xeoorery for such permanent damage was
son^t in the actl<«. The defendant, admit-
ting the erection and operation of tiie sew^r^
age plant and th^ intention to continue the
same, averred and offered evidence tmdlng
to diow that the plant in question yna a
modem and v^to-date plant, entirely ade-
quate for tba purpose; that it was properly
c^erated; and that no nnlsance had been
created by defeodants and no appreciable
damage done to plaintiff's properly.
On IsBoes submitted, the jury rendered the
fallowing verdict:
"What permanent damages are plaintiffs
entitled to recover of defendant m account
of the construction and operation of its said
sewerage system and disposal idantT An-
swer: $8,000."
Judgment on verdict for plaintiffs, and
defendant excepted and appealed.
E. S. W. Dameron and W. H. Carroll, both
of Burlington, and Parker <& Parker, of
Graham, for appellant Long ft Long, of
Graham, and A h. Brooks, of Oreensboro,
for app^Uees.
HOKH, J. [1] While the general rule pre-
vails in this state "tttat, unless a li^t of
action is conferred by statute, a municipal
corporation may not be held civilly liable
to individuals for failure to perform or neg-
lect In performii^ duties of a governmental
character," It is also well recognized that
neither a corporation or other governmental
agency Is allowed to create or maintain a
nuisance causing appreciable damage to the
property of a private owner, without being
liable for it As we have recenUy said in the
case of Hines v. Bocky Mount, 78 S. E. 510:
"To the extent of the damage done to such
property. It is regarded and dealt with as a
taking or 8ppropriati<m of the property, and
It is well understood that audi an Interfer-
ence with the lights of ownership may not be
made or authorized except on compensation
first made pursuant to the law of the land.**
This limitation on the more general principle
was dedar^ and upheld in a well-considered
opiidon by Associate Justice Bfannli^ in Ut-
ile V. Lenoir, iSl N. a 416, 66 S. B. 887, and
the position is m accord with rl^t reason
and the great weight of authority. Hlnes v.
Uocky Mount, supra, and cases cited; 8
Abbott on Mniddpal Corporation, % 961; 1
Lewis, Eminent Domain Ed.) I 66; Dil-
lon on HunicUtal Corporations, i 1017; Wood
on Nnisanoes, 1 427; Joyce on Nnlsaneea, 1
284.
[2] Quottog from Joyce^ an except approve
ed by the learned Judige in Little v. Lenoir,
the author says: *^oseh a municipality or
other body has power to construct and main-
tain a system oif sewers, and althongfh the
work is one of great public benefit and ne-
cessity, neverttideHa sodi public body is not
Justtfled in exerdsliv its power in such a
manner as to create hy a dispossl of Its
sewage a iwivate nnlsance without maklne
compensation for the injury inflicted or
being responsible in damages therefor, or li-
able to equitable restraint in a proper case;
nor can these public bodies exetdss th^
powers in such a manner as to create a
irablic nulsanoe, for the grant presumes a
lawful exercise of the power conferred, and
the authority to create a nuisance wlU not be
Inferred. It therefore constitutes a nuisance
to pollute and contaminate a stream br
emptying sevrage of a dty tfaerdn, rendering
it unwholesome, impure, and unfit for xae."
[S] On the question of defendant's liability,
the cause has been properly tried in the
ll^t of these principles, and. on the question
of damages, hla honor correcUy applied the
rule, as it obtains with us, that the damages
are confined to the diminished pecuniary
value of the property incident to the wrong
(Metz V. City of Aahevllle. ISO N. O. 748, 64
S. E. 881, 22 L. B. A [N. S.] 040 ; Williams
V. Greenville, 130 N. C. 03. 40 S. E. 077. 67
L. B. A. 207, 80 Am. St Bep. 860) ; the evi-
dence as to specific cases of sickness In plain-
tlfl^s family having been admitted and its
consideration allowed only as it tended to es-
tablish the existence of the nuisance and the
amount of damage done to the property.
[4] While the cause, however, has been In
the main carefully and correctly tried, we
think there must be a new hearing on the
issues by reason of the portion of his honor's
charge, duly excepted to, as follows: "No
matter what the result of this case, the city
would not acquire any right to discharge raw
or untreated sewage into the stream ; but if
the plaintiffs should prevail In this action
and have an award of damages, that would
operate to vest perpetually In the dty of
Burlington the rl^t to operate and maintain
this sewerage system and disposal phmt. In
the way and manner in which it Is now oper-.
ated and maintained."
Although the testimony on the part of
plaintiffs and defendant is In direct conflict
both as to the nuisance and the damage,
there are facts In evidence from which the
existence .of an indictable public nuisance
and of n^ligent methods In the operation of
the plant could well be inferred. From the
general language of this diarge, the Jury
might very well have condnded that the
force and effect of a verdict for idalntiffs
would establish and justify the pentinuanco
Digitized by VjOOglC
76
78 SOUTHDASTBRN BBPOBTBR-
(N.a
of both oondltlonB, and that the^r award «f
damages sbonld be estimated In view of this
result The right of a plaintiff to recover
permanent damages, for the entire Injury in
certain cases la well recognized here. Harp-
er r. Lenoir. 152 N. a 728, 68 S. O. 228;
Parker t. Railroad. 119 N. a 677, 25 S. H.
722; Ridley r. Railroad, 118 N. O. 996, 24
S. E. 730, S2 L. B. A. 708. But, when a work
of this character Is jnstifled and to be con-
tinued by reason of a recovery of permanent
damages incident to Its erection and main-
tenance, the principle Is allowed to prevail
on the theory that such a work Is carefully
conducted and properly carried on, and if
there is default In this respect, amounting
to actionable negligence, this would give rise
to a new cause of action and the recovery for
permanent damages would not be effective as
a protection. Duval v. Railroad, 77 S. B. 311
([wesait term). And. In view of all the facts
In evidence, we think the portion of the
charge referring to the verdict was not Buffl-
doitly restrictive as to Its effect on the right
of plfdntlfCs as individual litl^ntB. and that
tbo minds of the Jury were allowed too wide
a range in thtfr estimate of the amount of
damaga^ and to anch an extent that the
diarge ahonld be held for reversible error.
We are omflrmed in this view by the very
great difference, as shown In the record, be-
tween the amount allowed In the resent ver>
diet hnd the award of a former Jury on the
same issue and sobstaotially the same state
of facts, giving indication that the directions
excepted to very likely had controlling effect
to defendant's prejadlee.
W« are of oph^on that defendant la en-
titled to a new trial of the cauM^ and It la
so ordered.
New trial.
WALKER and ALLEN, J3^ concur In le-
snlt
(U2 N. G. un
KIGER T. UIPFEBT SCALES CO.
(Supreme Court of North Garollua. May 7,
1913.)
1. Mastee and Servant (SS 101, 102»>-Ik-
juBiEs TO Sbbvakt— Satk Plack Ann Ap-
FUARCES.
A master In bonod. In the exercise of rea-
sonable care, to provide a safe place for bii
employes to work and safe appliances with
which to do the work, and, if the machinery
and appliances are more or less complicated,
employers are bound to supply such as are
blown and approved and in general use.
[Ed. Note.— For other cases, see Master and
Servant, Cent. Dig. J| 135, 171, 174, 178-184,
192; Dec Dig. « lOl, m*J
2. Masteb AND Servant (iS 125, 129*>— iNjtr-
BIES TO SEBVANT-OnLIOATION OF- MASTER.
A master ia not an insurer of the safety
of his employis, but Is only booztd to zeroise
that degree of care that a man of ordinary
prudeace, charged with a similar duty, would
exercise under like conditions, and if proper
machinery and implements have been provided,
and a dMeet occurs or exists which results In
injnry to an employfi, he canaot recover in the
absence of proof ttutt tlie defect was the pnn-
imate cause of the Injury and that the employ-
er bad actual or eonstmctlve notiea of its ex-
istence.
[Ed. Note^For other cases, see Master and
Servant, Cent Dig. |S 24a-26i« 257-263; Dec.
Dig. K 126, 129.*1
a Masteb ard Sebtaitv ({ 293*)— InJuniKfl
TO Servant— iNSTBroTJONs.
Where there was evidence, in an action for
injuries to an employ^ by the alleged involunta-
ry operation of a machine, from which the Jury
could have found that such operation was caus-
ed by a defect of which defendant did not know
and bad no reasonable opportunity to learn, it
was error to charge that the proposition for the
jury was whether the machine was out of or-
der on account of its being in Improper condi-
tion and whether plaintiff, while attempting to
use it, was injured on account thereof, as soch
instruction might have misled the jury to be-
lieve that respouBibility would attach If the
machine was defective without more.
[Ed. Note.— For other cases, see Master and
Servant, Cent. Dig. U 1148-111(6, m8-1160;
Dec. Dig. S 293.*r
4. Neoligencb i% 121*)— Bu Ipaa. Loquhub
—Effect.
The doctrine res Ipsa loquitur Is only ef-
fective to carry the case to the jury on the is-
sue of negligeoce, and does not relieve the court
of the duty to charge the jury on the coustit-
nent features of the law of negligence, as ap-
plied to the facts in evidence.
[EM. Note. — For other cases, see Negligence,
Cent Dig. 5§ 217-220, 224-228, 271; Dec.
Dig. I 12l*r
Appeal from Superior Court, Forsyth
County ; Allen, Judge.
Action by Geoule Elger against the LUih
fert Scales Company to recover damages for
personal lojurles. Judgment for plaintiff
and defendant appeals. Reversed and re-
mended.
Manly, Hoidren & Womble and Watson,
Bnxton A Watson, all of Wlnston-Salem,
for appellant Benbow & Hall and Jones &
Patterson, all of Winston-Salem, for ap-
pellee.
HOKE, J. There was evidence to show
that on the 25th of April, 1910, plaintiff, an
employ^ of defendant company, had his
hand severely and permanently Injared while
engaged In operating an Adams Duplex Lump
Machine. Without going into a minute de-
scription, this is a machine used in the pro-
cess of manu&cturlng plug tobacco, by wlilch
the tobacco is made Into lumps preparatory
for Its subsequent pressure into the plugs.
It weighs about 2,300 pounds. Is 4 feet, 6
inches high in all, has a base of 22x36 inch-
es and 33 Inches from the floor, has a
surface like a table 22x42 inches. On this
surface are two cells or hoppers Into which
the tobacco is pnt by hand, and there are also
about two drop blocks or plungers, which are
raised and lowered alternately as the power
Is applied, fitting into the hoppers or cells
and supplying the pressure required to make
the tobacco into lumps; one blm^ belog down
■For etlwr easss see same topis sad seetloa NVIIBBat la Dee. Dig. A Mm. Zllg. Key-HOk BertaTft B«p>
Digitized by VjOO'
N.a)
KIGEB UIFFERT SCAUCS OO.
7T
when the other Is raised, etc. The pow Is
applied by a contrivance beneath the table
and la controUed br a lever havlns a handle
affixed to the side of the machine, and, when
the madilne Is in proper conditloii. the pow-
er will only omenta and the poritlon of the
Vlodk change when the operAtot lifts the
leTer fonr Inches and pnlls it two; unless
this is done the machine does not "repeat**
bat holds Its position and no Injnry could
resnlt The evidence of pleintlff tended to
■how that on the day of the injuryt and soon
after he commenced worUng the machine, it
had an uncertain movauent and the blocks
would change position without moving the
lever. That he called the ^tentlon of the
boss or foreman to this and was told that
the machine was all right, to go back to
work. ^That he went back and, in the at-
tempt to operate the madilne further and by
reason of each an eccentric moTement, his
hand was cao^t and crushed by one of the
blodu and held nntil the bolts could he re-
moved. The . evidence of defwdant tended
to show that the machine was a proper one
for the work and was In perfect condition.
That it worked true hotii before and after
tbe injury, and that from Its constrnctioii.
and in the condition it was th&i shown to
be, the power could not be aifflied nor tbe
position of the bIo<&8 changed exc^t mov-
ing tbe lever In the regular way. That plain-
tiff had made bo complaint wbaterer of any
eccentric or irregular movement of the ma-
chine, and that he was injured while en-
gaged In conversation with a girl at the
time and not properly attentive to the work
or the position of his hands.
On this evidence chiefly rdevant to the
question presented, the court charged the
Jury as follows: "That If you find by the
greater weight of the evidence, the burden
being upon tbe plaintiff to establish that
<tbe defendant put the plaintiff to work
on a machine wblch was out of order, and
by reason of Its being out of order, and by
reason of the failure of tbe defendant to
provide him with a machine In proper con-
dition, the plaintiff was Injured In the man-
ner contended for by him, then the plaintiff
was injured by the negligence of the defend-
ant in putting him to work at a machine that
was oat of order). If tbe plaintiff fails to
satisfy tbe jury by tbe greater weight of
the evidence that he was injured oii account
of a failure of the defendant to provide him
with a machine In proper condition for the
work which he was placed there to do, then
the Jury should answer the first Issue, 'No* ;
I say. If he falls to satisfy tbe jury by the
greater weight of the evidence. It Is a
clear proposition for you to determine ac-
cording to the weight of the evidence. Was
that machinery out of order, and, on account
of Its being in improper conation, was the
^alntU^ while attempting to take oat a
piuK ct tobacco, injured on account of the
dropping of tbe w^ght when It xnight not to
have dropped, and Its dropping on account of
defect about the machine?"
[1] It has been repeatedly hdd in tills
state that, In the exercise of reasonable care^
employers of labor are reanlred to provide
for th^r employ^ a saffe place to do th^
work and aiq;>liancea eaf^ and snitable to do
the work In which they are oigaged. And
as a feature of this obligation in Uie opera-
tion of mills and other plants, where tiie
machinery is more or lees complicated, such
employers are held to the duty of supplying
machinery and implements which are known,
approved, and in genratil use. Hlcka v.
Manolactarlng Co., 138 N. G. 325, 60 S. B.
703 ; Marks v. Cotton BflUs, 135 N. a 287.
47 3. E. 432; Lloyd v. Hanes, 126 N. C. 859,
35 S. m 611; WltseU v. Ballroad, 120 N. a
557, 27 S. Ei. 125.
[2] In the application of Qie more general
principle. It Is also well established here and
elsewhere that an employer is not an insurer
of the employes' safety. In the discharge of
tbe dutyt he is held only to that degree of
care that a man of ordinary t>radence should
exercise under like conditions and charged
with a similar duty; and it, when proper
machinery and implements have been pro-
vided, a defect occurs or exists which re-
sults In injury to an employ^. It la necessary
to show. In order to fix liability, that the
defect was a proximate cause of tbe injury
and that the employer bad actual or con-
structive notice of Its existence^ Mincey v.
Railroad (present term) 77 S. E. 673; Prlt-
chett V. Ballroad, 157 N. C. 88, 72 S. E. 828;
Blevins v. Cotton Mills, 150 N. C. 493, 64 S.
E. 428; Nelson v. Tobftcco Co., 144 N. a
418, 07 S. B. 127; Carnegie Steel Ca v.
Byers, 149 Fed. 667, 82 C. C. A. 116. 8 L.
R. A. (N. S.) 677. In Mincey's Case, As-
sociate Justice Walker for the court said:
•Tbe duty of the master to provide reason-
ably safe tools, machinery, and place to work
does not go to tbe extent of a guaranty of
safety to the employe, but does require that
reasonable care and caution be taken to se-
cure such safety.*' In Pritchett's Case, As-
sociate Justice Allen thus correctly states the
principle: "The burden was on the plain-
tiff to prove that the place where he was
at work was unsafe, and that the defendant
knew It to be so, or that it oould have dis-
covered It In the exercise of ordinary care."
And in Blevins v. Cotton Mills and Nelson v.
Tobacco Co., suprst it was held: "In an
action for damages sustained by an employ^
allied to have been caused by a defect in a
machine at which he was at work in the
course of his employment, it la neceaaary tor
him to show that his Injury was caused by
the defect, and that the employer had actual
notice thereof, or constructive notice, implied
by failure to exercise reasonable inspection
or caie, or from the loigth of time the de-
fecttve oimdltlon had previoody elated.*' ■
Digitized by LjOOglC
78
78 80UTHBASTBBN REPORTEE
[8] In tlift cSuTge of Idi honor In the
first Issue, and on the facts In erldence, we
do not fhlnk there has been a correct ap-
plieaUon of the principle. Both In the direct
charge and in the tHoOsg explanation the
Impression may very well have been made
?n the mind of the jar; that responsibility
would attach if the machine was defective
without more. Thus after saying that if
Injury occurred by reason of a failure to
provide plalntltr with a machine In proper
condition, the court proceeds : "It is a
clear proposition for you to determine ac-
cording to the weight of the evidence. Was
that machinery out of order, and on ac-
count of Its being In Improper condition was
the plaintiff, while attempting to take out
a plug of tobacco, Injured on account of the
dropping of the weight when it ought not
to have dropped, and Its dropping on account
of defect about the machine?" True, the
plaintiff testified that he notified the foreman
of this defect, bnt this was expressly denied
by defendant's witnesses; there was testi-
mony also tha( both before and after the
occurrence the machine was found to be in
good shape and worked properly, and, if
there was a defect causing the injury, there
were facta in evidence from which It could
be a permissible inference that the irr^tdar
or eccentric movement was from a defect
of which the employer did not know and
had no reasonable opportunity to learn.
[4] We are not Inadvertent to the doctrine
of res Ipsa loquitur, which may have been
present In this case, and which seems to
have been properly stated by his honor ; but,
"If the facts In evidence call for Its applica-
tion. Its effect is only to carry the case to
the jury on the Issue" (Ross v. Cotton Mills,
140 N. 0. 115, 52 S. B3. 121, 1 L. R. A, [N. S.]
298), and does not relieve of the requirement
that. In charging the Jury on the Issue, the
constituent features of tbe law of negligence,
as applicable to the facts in evidence, should
be correctly given.
We are of opinion that the defendant is
entitled to have his cause tried before an-
other Jury, and it la so ordered.
New tnaL
an N. C. 117}
MABBY T. BROWN.
(Supreme Oonrt of North Carolina. May 7^
1918.)
L WiLts Q 698*)—CONSTBucTioN— Power to
OONVET.
A devise tO' testator's wife of all his prop-
ert7 remaining after the payment of his debts
and funeral expenses, with power of disposing
of the same as the wife may deem best, follow-
ed by a direction that all property undisnosed
ot by the wife at her death shall be equally di-
vided among his children, gives to the wife a
power to appoint absolutely the fee, and the ex-
ercise of the power by a sale vests In the pur-
chaser the fee subject to tile payment of tiie
debts.
[E^d. Note.— For other cases, see Wills, Cent.
Dig. li 1655-1661 ; Dec Dig. | 693.*]
2. Wills H 683*)— Conbibdctioii— Powvb to
COHVBT.
Where testator directed his execnton to
pay his debts and funeral expenses, and gave
all his property to his wife with power to dis-
pose of the same as she might deem best, and
authorised Us execnton to sell any part of the
e^te to carry ont the purposes of the will, tbe
executors need not join the wife In a conveyance
by her ; the clause conferring power on the ex-
ecutors being limited to conveyances necessary
to pay debts and funeral expenses.
[Ed. Note.— For other cases, see Wills, Cent.
Dig. H 1655-1661 ; De& Dig. | 668.*]
3. Witxs (f 827*>— CONBimponON— iJABiurr
FOB Debts.
Every testamentary gift Is subject to the
payment of testator's dehts.
[Ed. Note.— For other cases, see Wills, Gent.
Dig. SS 2139, 2140; Dec Dig. | 827.*]
Appeal from Superior Court, Cabarrus
County ; Webb, Judge.
Action by 3, F. Mabry against Missouri
F. Brown. From a Judgment for defend-
ant, plalntlfl appeals. Affirmed.
This is a controversy without action, sub-
mitted by the parties upon an agreed state
of facts, as follows: B. A. Brown died in
the year 1907, leaving a will with these pro-
visions:
"1. My executors, hereinafter named, shall
give my body a decent burial, suitable to
the wishes of my friends and relatives, and
pay all funeral expenses, together with all
my Just debts, out of the first moneys which
may come Into their hands belonging to my
estate.
"2. I give, devise and bequeath to my be-
loved wife, Missouri, all of my property of
every description and kind, both real and
personal, with the power of disposing same
as she may deem best
"3. I hereby direct that all of my prop-
er^, both real and personal, undispcned of
by my beloved wife at her death, be divided
equally among my cUldreo, share and share
alike.
"4. I hereby authorise and emiwwer my
execntors, herrinafter named, to sdl or oth-
erwise dispose ot any part of my estate to
carry out the Intents and purposes of this
my last will and testament, and make a good
and sufficient conveyance for same.
"5. I hereby eonstltnte and appoint my be-
loved wife, BtOssonrl, and my two sons, Lewis
A. and J. Leonard Brown, my lawful ex-
ecutors, to all intents and purposes, to exe-
cute this my last win and testament, ac-
cording to the tme intent and meaning of
the same, and every part and clause there-
of, hereby revoking and declaring utterly
void all other wills and testaments by me
heretofore made."
Defendant sold a part of the land so de-
vised to her to the plaintiff, and tendered
a deed duly executed by herself Individually
•For other awM sm muxm toplo and MOtton NUMBER in Dec. Dig. 4 Am.
N.OJ
IfABRT T. BBOWN
79
and In ber capaclt7 as executrix, and by
Lewis A. and J. Leonard Brown as executors
of the will. The plaintiff declined to accept
this deed, alleging that It was Imperfect and
insufficient to convey a good title, as the
deed was not signed or executed by the
children of R. A. Brown, as Individuals,
who, It Is asserted by the plaintiff, took in
remainder under the will, and therefore
their Joinder In the deed, as parties there-
to, is necessary to pass the title. The court
held that this was not the case, but that
Missouri P. Brown took such an estate
under the will that she could by her own
deed convey a good and Indefeasible title in
the lot which she had sold to the plaintiff.
Judgment was entered accordingly, and plaln-
tiir appealed.
U T. Hartsell, of Concord, for appellant
Morrison H. Caldwell, of Concord, for ap-
pellee.
WALKER, 3. (after stating the facts as
above). It is provided by statute that, when
there Is a devise of real estate to any pei^
son, the same shall be construed to be In
fee simple, unless the devise shall in plain
and express words show, or it shall plainly
appear by the will or some part thereof,
that the testator intended to pass an estate
of less dignity. Revlsal, | 3138; Whitfield
V. Garris, 134 N. C. 27, 46 S. K. 904. It was
argued by her couns^ from this provision
that defendant acquired a fee simple ab-
solute by the terms of the will, and that
the limitation over to the testator's children,
being repugnant to the estate so devised, is
void. This court has stated tliat the pur-
pose of that statutory provision Is to estab-
lish a rule as between the heir and the
devisee in respect to the beneficial Interest
of the latter. Alexander v. Cunningham, 27
N. C. 430.
[1] But we can decide the case without
giving any opinion upon this Important
question; for, whether a fee simple absolute
IMssed to the defendant or not, It Is undoubt-
edly true that plaintiff acquired a good title
by the exercise of the express and unlimited
power of disposition and control. It seems
to us that the very question now presented
to us for decision was before the court In
Roberts V. Lewis, 153 U. S. 367. 14 Sup. Ct
945, 38 L. Ed. 747. In that case the devise
was to the testator's wife of all his estate,
real and personal, with power to dispose of
the same as to her shall seem most meet and
proper, so long as she remained his widow,
but upon the express condition that. If she
married again, all of the estate devised and
bequeathed to her, or whatever remained,
should go to his surviving children. The
court held, following and approving a de-
cision of the state court in a similar case
(LltUe V. Giles, 25 Neb. 321, 41 N. W. 192):
"That ttie intention of . the testator was to
enqtower lila wl^w to convey all of hla real
and personal estate, If she saw fit to do so,
and, as she had exercised this right and
power before her remarriage, the grantee un-
der her deeds acquired all the title of the
testator to such lands." The court further
said: "It is unnecessary to express a posi-
tive opinion upon the question whether under
this will the widow took an estate in fee;
for, if she took a less estate with power to
convey in fee, the result of the case, and
the answers to the questions certified, must
be the same as if she took an estate in fee
herself." The two cases are sufficiently alike
In their facts for the application of the
same principle to both. If the widow In
this case did not acquire a fee simple ab-
solute by the devise she at least got a fee
simple, which was defeasible only by her
failure to exercise the power, and, having
exercised the power by selling and conveying
to the plaintiff, the limitation over was
thereby defeated, and of no effect, as to the
lot conveyed. The subject la fully discussed
and with great clearness in 30 Am. & Ikig.
Enc. of Law (2d Ed.) pp. 786-739, and In
the notes a vast array of cases will be found.
It is there said tha^ wliera the quantity of
the estate is devised definitely and specifical-
ly, the role that a devise coupled with an
unlimited power of disposition and control
carried an abaolate interest in the property
has no appllcatl<»i, and only a life estate
coupled with a power of dlspMal passes.
This power. It has beoD adjudged, !• only co-
extensive with the estate which tlw devisee
takes under the wUL It la dear, bowerer,
that by appropriate expressions of Intent the
power will not refer merely to the life inter*
est of tbe first taker, but will give him a
life estate coupled witb a power to dtsposs
of the entire estate absolutely.
In Troy v. Troy, 60 N. a 624, wHexe it
appeared that proper^ was devised to testa-
tor's wife for life, with remainder to Us son,
coupled with an express power to sell all or
any part of the property In the exercise of ber
Judgment, the terms of the will showing a
clear intention on tbe part of the testator to
confer upon the wife a general power of dis-
position, this court held that It was a powe?
appurtenant to the life estate, and the estate
created by Its exercise took effect out of the
life estate as well as out of the remainder,
which was legally equivalent to saying that
the exercise of the [lower by the widow de-
feated the remainder, and passed tbe abso-
lute fee to the purchaser from her. If such
is the law with regard to an estate for life,
the same result must follow where there is
no restriction as to quantity of the wife's
estate, but she takes an estate of indefinite
duration, whether It be the beneficial inter-
est absolutely in fee or not, which we do not
decide. The case of Troy v. Troy was dted
with approval In Parks v. Robinson, 138 N.
G. 269, GO S. B. 649, and Herring v. Williams,
1A8N. ai,78&a.21& In the letter case
. Digitized by VjOOglC
86
78 SOUTHEASTERN BEPOBTEB
(N.a
this conrt, Justice Brown, Sftid that
where "there is a devlBe for life with laa-
gnage which expressly gives the devisee a
general power to dispose of both real and
peraonal proi>erty," or where "the devise
Is not limited to a life estate, bat the prop-
erty Is devised absolutely, with a provision
that what remains at the death of the dev-
isee shall go to certain designated per-
sons," the exercise of the power, express or
implied, will defeat the remainder, and vest
the fee In the appointee under the power or
purchaser, citing Troy v. Troy, supra. The
cases of Wright v. Westbrook, 121 N. 0. 155,
28 S. E. 298, Stroud v. Morrow, 62 N. C.
463, Uttle V. Bennett, 68 N. C. 150, GICTord
V. Choate, 100 Mass. 343, and Barford v.
Street, 19 Vesey, 134, are strong authorltlea
for the position that the exercise by Mrs.
Brown of the power conferred upon her by
the will defeats the limitation over to the
children and passes the fee to the purchaser.
In the first case cited the suit was for the
speclflc performance of a contract to convey,
and involved the ability of W. A. Wright
and his wife, the vendors, to convey a good
title to Westbrook, the vendee, the same
question we have here. But our case is
stronger than those In favor of the defend-
ant, for In some, if not all, of those cases a
life estate only was devised to the donee of
the power. The qnestlon In this case Is fully
considered In the recent case of Chewnlng v.
Mason, 158 N. G 678, 74 S. E. 867, 39 Ll R.
A. (N. S.) 805. See, also, Patrick t. More,
bead, 80 N. a 02, 39 Am. Rep. 684. l%e de-
vise In Batford v. Street, supra, was In
trust for a married womfin daring her life,
and after her decease to contey (and so
forth) according to her appointment, with a
limitation over, in case of her death In the
Hfefcime of the testator, or in default of ap-
pointment by Iwr. With reference to these
facts the Master of the Bolls (Sir Wm.
Grant) said: *'What do you contend to be
the nature and extent of her Interest? An
estate for life, with an nnqualifled power of
appointing ' the inheritance, comprehends
everything What Induced me at first to
doubt was the Indication of an Intention in
the codicil that the estate should remain tn
the trnstee for the Ufe of the plaintUf. with
powers to her, inconslstwt In a great degree
with the supposition of bee having, or being
able to acquire, the absotate interest But I
do not think I can by Inference firom thence
control the clear and exprns words by which
the power Is given to the devisee to dispose
of this estate In her lifetime by any deed
or deedSi writing or writings, or by her last
will and testament How can the court say
that it is only by will that she can appoint?
By her interest she can convey her life es-
tate. By this unlimited l>oWer she can b.^
point the inheritance. The whole equitable
fee Is thus subject to her present dlsposl-
don.' -The onuequeAce Is Hutt the brdstee
must convey the legal fee according to the
prayer of the bill." It will be observed that
the case goes beyond what is necessary for
us to decide, but it clearly and conclusively
determines the question now raised In favor
6t the sufficiency of defendant's deed to pass
the fee absolutely. The case of Smith v.
Bell. 6 Pet (U. 8.) 68, 8 L. Ed. 322, has no
bearing upon the point, and, besides. It has
been criticised and doubted In more recent
cases. GUFord v. Choate, supra; Parks v.
BobioBon, supra.
But looking at this will with the view of
ascertaining the intention of the testator
therefrom, It appears to us very clearly that
his wife was the chief object of bis bounty.
He evidently reposed the greatest trust and
confidence In her, and believed that she
would carry out his wishes with respect to
th^r children, and would be Influenced by
the same motives as he would have been If
living. He therefore gave her unlimited
power and control of his estate, subject to
the payment of his debts and funeral ex-
penses. We cannot conceive of any more ap-
propriate words to sprees the Idea of an
unrestricted power of disposition than those
he used hi his wlU. It was certainly int«id-
ed that she should have a beneficial interest,
and with reference to a power of appoint-
ment, where such an interest la given, Chief
Justice Pearson said In Ttoy v. Troy, supra:
"A power of this description is construed
more fsvoraUy ttian a naked power given
to a BtrangOT, oe a power aivendan^ be-
cause, as Its ewdse wlll be In derogatton
of the estate of the person to whom It is
given. It Is less apt to be resorted to Inju-
dtelonsly than one girai to a stranger, or
one which does not affect the estate of tlie
person to whom it is given.** Upon a con-
sideration of • the whole wtil, we conclude
that Mrs. Brown, if she did not acquire an
absolute estate in fee, was glrm a power to
appoint absolutely in fee^ and the exerdse of
the po wer will vest in the purchaser such an
estate. Troy r. Ttoy, supra; Alexandw v.
Cunningham, supra. What will be the re-
sult If Mrs. Brown dies without having ful-
ly exercised the power as to all of the prop-
erty we need not say, as that question is not
before us. Nor can we undertake to decide
matters relating to the title of other persons
who have bought from her, as they are not
-parties to this suit, and Mil not be bound
by our decision.
[2] Before taking leave of the case, wo
may remark, with propriety, that it is not
necessary for the executors to Join in the
deed. The will does not provide that tbey
shall unite with Mrs. Brown in making any
sale of the land or in exercising the power.
The fourth clause evidently refers to the
first, as it is the duty of the executors to
pay the' debts and funeral expenses, and. If
necessary, to sell the property or so much
Oiereof as may be'reqii^«d for that purpose.
Digitized by Google
B.a)
CLEVELAND A WILLIAMS t. BC1?UER
81
McDowell T. White, 68 N. a «S. We taave
■aid that Mn. Brown's power of flspoeltUm
Tinder the will Is sabject to the payment of
the debts of the testator, bq that the pur-
chasers from hsx will, of coarse talce sub-
ject to the IncnmbranQe.
[S] If they would have a dear title, they
must be sure that the ddits and other U-
abUltlee are paid, for a man is required to
be Just before he Is generous, and Us gifts,
by will or otherwise^ are made subject to
the payment of hla debts, and In thla ease
he has expressly directed that they must
first be paid. .
Affirmed.
<u s. c. ton
CLEVELAND ft WILLIAMS T. BUTLEB.
(Snpreme Court of South Carolina. April 80,
1013.)
1. COKTRAOTS (i 846*)— RBOOTXBT OR QUAIT-
Ttnc Mbbuxt— GonroxiOTT to Fuudxho.
A suit on u express contract does not ad-
mit of recovery on a (luaDtnm merait
[BM. Note.— For other cases, see Contracts,
Cent.DiK. || 1714. 1718^1761 -DecDig. |346.*i
2. WoBK AnD Labob (S 22*)— Coiotisaioirs
OV BBOKX&— PlXADINQS.
A complaint in an action by brokers for
commissions for affecting an exchaDse of real
estate wbich alleges an agreement by defendant
to pay SSOO for the serrices by the broker, and
that defendant aided by the broker exchanged
real estate, and as a reward for his services
the broker became entitled to ttie commission
of fSOO, and that the services rendered are rea-
sonably worth nteh sum, states a cause of a&
tion on a quantum meruit after, diaregardiiw
allegations as to the agreeDieDt to pay a spect
fied commission, and authorises a recovery on
a qaautom meruit
[Ed. Note— For other cases, sec Work_and
Labor. Cent. Dig. % 41 ; Dec Dig. | 22.*}
3. Pleadiro (I 406*)— Rnonw. on Plbad.^
INQB—OBJ MOTIONS— WaIVEB.
Defendant, who proceeded wltlHmt objec-
tion with the trial of issues raised by a com-
plaint stating a cause of action on quantum
meruit after striking out a cause of action on
an express contract: thereby waived the objec-
tion that the complaint stated a cause of ac-
tion <m an express' contract, so that there oould
be no recovery on a qoantum meruit
[Ed. Note.— For other cases, see Pleading,
Cent. Dig. if 13S6-1BS9, 1361-1365. 1367-
1374, 1386; Dec Dig. { 406.*]
4. BaoKras ^ 68*) — Coiciaesioirs — WHsit
Eabkko.
A brokw employed to procure an «rcbange
of real estate is entitled to his commission
where he Is the efficient or procuring cause of
the exchange, though the actual agreeuMnt
therefore is made without bis aid by the owner,
and a broker is deemed tbe iMmnirii^r cause
where bis intervention' Is the foundation on
which tbe negotlationB resulting In an exchange
are begun.
[Ed. Note.— For other cases, see Brokers,
Cent Dig. i 74 ; Dec Dig. { 53.*]
Appeal from Common Pleas Circuit Court
of GreenvlUe County; B. W. Memipliiger,
Judge.
"To be offlctolly reported."
Action by derelaiUl ft Williams against
P. S. Butler. From a jndgmuit for plain-
tiff, defendant appeals. Affirmed.
McCullongh, Martin A Blythe, of Green-
rtlle, for appellant J. B. Martin, of Qreen-
Tillcb for respondent
WOODS, J. The lOalntlfrB, real estate
brokers, recovered a judgment against the
defendant for services performed In effect-
ing for him an exchange of certain lots In the
suburbs of the city of Greenville known as
"DoDwood" for a peach farm In Georgia.
There are a number of exceptions, but tbe ap-
peal turns on two positions taken by defend-
ant's counsel: First, that the complaint
states a cause of action on an ^press con-
tract exclusively, and that tbe plaintiff hav-
ing, In the course of the trial, announced his
abandonment of that cause of action, he
could not recover on a quantum meruit;
second, that there was no testimony sup-
porting any cause of action either on an ex-
press contract or a quantum meruit
[1,2] The general rule is well established
that a suit on an express contract does not
admit of recovery on a quantum memit
King T. Western Union Tel^raph Company.
84 S. G. 73, 66 S. R 044. But tbe rule Is not
applicable to this case. After alleging the
agreement by defendant to pay $500 for the
services, and tbe performance of the services
by tbe plaintiff, the wmplalnt concluded:
"Defendant P. S. Butler, assisted and aided
by plaintiff as aforesaid, exchanged the
above-named 'Donwood' property with the
said parties for the Georgia lands and plaln-
' tiff In compliance with said contract and as
a reward for Its services became entitled to
its commission of Ave hundred <¥600) dollars.
That demand has been made upon tbe de-
fendant herein for tbe Ave hundred (fSOO)
dollars for Its services rendered as afore-
said, but the defendant has refused, and still
refuses, to pay said $500 or any amount
thereof, and the same is justly due and ow-
ing to plaintiff, the services rendered being
reasonably worth the commission agreed up-
on and claimed."
The drcumstancea oi tbe abandmunent of
the cause of action on the express contract
is shown by the following otract flrom the
record:
"Q. How long had you worked on this
deal? (Objected to by Mr. Blythe: This Is
a suit upon a spedflc contract, ailing that
the contract ma to do a certain thing for
a certain ' amount of money, and the qnes*
tlon is has the contract beat conqAied with.)
'*a>nrt: That wouldn't be relevant on the
contract You have to stand or fUl by one
or the othCT. If you want to stand on the
contract, you can't Introduce teetlmony as
to the value of'tbe woric. If you abandon
tbe contract, then you can Introduce that
testimony. We had the same case up at
^Tor etksr eases ss
Bsat topic and ssetlon NUHBIR la Dee. Dig. * Am. Dig. Ksy-N^ , %^*&(^^^ t C
82
78 SOUTHEASTERN BBPORTEB
(S.C.
Walballa last week about trying to get In on
both grounds.
"By Mr. Martin: May It please tbe court,
we wlU stand on the quantum meruit pro-
ceeding and abandon the contract If It la
the ruling of tbe court, we will sue on tbe
quantum meruit. Q. You can state that
now?
"By Mr. Blythe: I want to add another
objection on the ground that there is no evi-
dence that Mr. WlUlams has ever rendered
a serrioe in the sale or exdiange of tbe prop-
erty.
"The Court: That is for the jury to de-
termine, I should tblnk.
**A. Well, I started working tbe 1st of
NoTember, and the deal was closed up along
towards the 20tb of December."
Bzandnation of the complaint will show
that, if all tbe allegations as to tbe agree-
ment of the defendant to pay a commission
of fSOO be struck out, it would contain a
perfectly good statement of a cause of ac-
tion on the quantum meruit. Construing the
complaint liberally, as we must, it thus ap-
pears that when the plalntlfC abaDd(med and
thus, In effect, struck out all the allegations
as to the eziaress contract, he still had be-
fore tbe court a comi^lnt stating a cause of
actkn for the reasonable value of bis serv-
ices to tbe defendant
[3] But if we leave this reaomlng out of
view, and look at the. matter from another
standpoint, tbe unsoundness of ai^llant's
position will be apparent. When plaintiff's
counsel announced the abandonment of the
cause of action on. an express contract, the
defendant's counsel should have moved to
dismiss the complaint, as having left In It
no cause of action. Instead of doing that,
counsel made no objection to the trial of the
issue of quantum meruit, and no objection
to the testimony offered on that issue, until
be moved for a nonsuit at tbe close of plain-
tiff's testimony. That Issue was tendered
him in open court, and he accepted it by his
failure to object and by bis acquiescent
participation in the trial of that issue. This
course indicated a waiver of tbe objection
that tbe complaint stated no cause of action
on the quantum meruit.
The first position cannot be sustained,
therefore, for two reasons: First, because,
after tSb allegations of tbe complaint as to
tbe express contract had been b truck out by
tbe abandonment of that cause of action
without objection, there was left in tbe com*
plaint a good statement of a cause of action
on the quantom meruit; and, second, be-
cause, even If this bad not been so, tbe de-
fendant waived the point by proceeding
with the trial of the Issue of the quantum
meruit without objection.
[4] As to the second point, no analysis is
necessary to show that there was evidence
tending to establish the right of the plaintiff
to recover under the settled rule thus stated
by tbe court In Ooldsmitb v. Ooxe, 80 S. G.
341, 01 S. B. 650: "But the rule of reason,
which seems to be supported by practically
all the authorities on the subject, is that the
broker Is entitled to his commissions. If dur-
ing the continuance of his agency he la tbe
efficient or procuring cause of the sale,
though tbe actual agreement (or the sale Is
made by the owner without the aid of tbe
brok^ ; and the broker will be r^arded the
(wocaring cause if his Interventltm is tbe
foundation upon which the n^tiationa n-
suiting in the sale la begun." .
Affirmed.
GART, a J., and HYDBIOE, WATTS,
and FBABEBt 3J^ concur.
(m 8. cum
JAMES T. GRAHAM et aL (two caaea).
(Saiweme Court of South Carolina. April 25^
1913.)
1. SnxBiFFs AND Constables (1 08*)— Wm
Of Assistance— Execution.
A writ of assistance will not Justify an
officer in putting out of jrassession a person who
was nftither a party to the suit nor named In
the writ.
[Ed. Note.— For other cases, see Sheriffs and
Constables, Cent Dig. » 143-157 ; Dec Dig. I
2. SBxairra ano Conbtablbs Vl*h-ABvn
-— LlABILlTr OF OrFICEB.
An officer who abuses the process under
which he assumes to act by committing an act
not warranted thereby ceases to act under and
b; virtue of the process, and becomes a tres-
passer ab initio and liable as such.
[Ed. Note.— For other cases, see Sheriffs and
Constables, Gent Dig. H 137-1^; Dec Dig.
3. Shkbitfs Ann CoirsTABUES d 1X8*) —
Abuse— Liability or Officbb.
It was the duty of the sheriff In executing
a writ of asaistance in an action to foreclose a
mortgage given by a tenant in common to place
the purchaser in possession of every part of
the land jointly with tbe other tenants, but be
could not remove tbe other tenants holding un-
der a title independent of the mortgagor, and,
where he did so, he was liable as a trespasser.
[Ed. Note. — For other cases, see Sheriffs and
Constables, CenL Dig. SI 186-191; Dec. Dig. 1
113.*]
4. Pbocess (S 171*)- Acnoss fob Abuse of
PBOCaSS— iNBTBUCnONS.
In an action for ejecting tenants in com-
mon from land under a writ of assistance In
an action to foreclose a mortgage given by an-
other of the tenants, instructions that if a tres-
pass was committed in the name of another or
professedly in bis interest, and he subsequently
ratified it by elaiming a benefit thereunder, he
would be bound by the act to tbe same extent
as if he had expressly authorized it, and that if
an officer, In executing a writ ot assistance,
wrongfully seized the property of a stranger to
the writ, and the person at whose instance it
was issued after knowledge of tbe facts did not
disavow the ac^ but permitted the property
seized to remain under seizure for his benefit,
be was liable as a cotrespaBser with the o&cer,
were not erroneous as misleading tbe jury to
•For oUMr «w«s set ssms to^o msd aectloa NUMBBR In Dec Dig. ft Am. Dig. K«r-No. Series ft
Digitized by Vj
JAMES
ORAHAU
88
beUere Qiat the pnrdiaser was liable aa a tres-
passer, even if the BberiS f<^owed the diTecdon
of ttie writ, and merely placed him In possession
jointly with the other tenants.
[Ed. Note.— For other cases, see Process,
Gent. Dig. % 269; Dec Dig. 8 171.*]
e. PBOcras (S 170*)— ABum of Pbocb8»~P«b-
soNS Liable.
The purchaser at a foreclosure sals was
liable jointly with the sheriff for the wrongful
ejection of the mortgagor's cotenants under a
writ of assistance where be was present, claim-
ed aud received the exclusive possession of the
whole property as if he were the sole owner
thereof, his acts showing that he was actiim in
concert with the sheriff, and oonfirming, rati-
fying, and approving them.
[Ed* Mote.— For other cases, see Process,
Gent Diff. | 258; Dec. Dig. | m*]
Appeal from Common Pleas Circuit Court
of Florence County; J. W. De Vore, Judge.
Two actions by G. W. James and by A.
Sexton James both against George J. Graham
and another. From judgments for plaintiff
In each action, defendants appeal. Affirmed.
J. P. McNeill, of Florence, and Louis W.
Ollland, of. Klngstree, for appellants. W. F.
Oayton and J. W. Ragsdale, twth of Flor-
ence, for respondents.
WA^S, J. These two cases involve the
same lasnes, and were heard together.
Plalntlffs-respondeuts sought damages
against the defendants-appellants for wrong-
ful ejectment of respondents from th& estate
lands of S. C. James, In which tbey had an
interest, as tenants In common, under a writ
of assistance Issued In the case of J. C.
Lynch against Thomas James, a cotenant,
directing Geo. J. GnUiam, aa sheriff of Wil-
liamsburg coonty, to enter upon said prem-
ises and eject Thomas James and all persons
claiming under him in pcosesslon thereof.
It appears that after action for partition of
S. C. James estate lauds were boaght and lis
pendens duly filed therein. Thomas James
mortgaged the entire tract of land to J. C.
Lynch, who foreclosed his mortgage without
mailing the other heirs of S. C. James par-
ties to the foreclosure proceedings, and pur-
chased the lands at sheriff's sale under said
proceedings. Possession of the premises be-
ing refused, J. C. Lynch procured the wiiC of
assistance from the circuit court, and George
J. Graham, as sheriff of Wllliamsbnrg coun-
tjt forcibly dispossessed the respondent, the
aroellant J. 0» Lynch being present at the
time, and placed I^nch in possession, which
possession Lynch retained to the exclusion of
tbe respondent. After suit brought and issue
Joined by tbe parties respondents and appel-
lants, the case was tried before Judge De
Vore and a Jaty, and resulted In a reidlct
In favor of each of the respondents in the
sum of $600. After entry of Judgment, ap-
pellants appealed, and a^ rerersal of same
on fire exceptions.
The first and second exceptions impnte er-
ror on the part of his honor In his chaise
to the Jury, and they win be considered to-
gether.
The first exception alleges error in diall-
ing the jury aa follows: ** 'I charge yon gen-
tlemen, as a matter of law, if these parties
were in possession at the time the sheriff
and other defendant, J. C. Lynch, went there,
claiming it in their own right and In posses-
sion under their own right and claim and
not through Tom James, that the sheriff nor
the defendant Lyncb, neither of them, had
any authority imder this writ of a^lstance
to eject them.' Whereas, it is respectfully
submitted that he should have charged that
under the writ of assistance the sheriff should
have ejected from the premises any and all
I>ersons who In any wise interfered wltii
or hindered the placing of the defendant J.
G. Lynch in full and complete possossitm of
the premises."
Second exception : "Because his honor
erred, it Is respectfully submitted. In refosln^f
the defendant's third request to charge,
which Is as follows: 'Under the writ of
assistance the sheriff was directed to place
the defendant J. C. Lynch in possession, and
under this order of the court he was empow-
ei*ed to dispossess and eject, If necessary, any
other person who might be found in posses-
sion of the property or any pert thereof:*
Whereas, bis honor, it is respectfully submit-
ted, should have charged, as requested, as be-
ing within tbe proper Interpretation of the
law."
In the case of Ex parte Jenkins, 48 S. C.
332, 26 S. El 6S9, Chief Justice Mclver says:
"It seems to us clear, both upon principle
and authority, that there was error In the
order appealed from, in so far as It affected
the appellant Oeoi^e M. Hogg, because he
was not a party to either of the actions for
foreclosure, nor did he go Into possession
under either of the parties to such actions
while the same were pending. As was said
by Mr. Justice Field in delivering the opin-
ion of the Supreme Court of the Unit^
States In the case of Terrell t. Allison, 21
Wall, at page 291 [22 l: Ed. 634]: 'A writ of
assistance is undoubtedly an appropriate pro-
cess to Issue from a court of equity to place
a purcbaser of mortgaged premises under Its
decree in possession after he has received
tbe commissioner's or mastw's deed, ael
against parties who are bound by the decree,
and who refuse to surraider possession pur-
suant to its direction or other order of the
court The power to issue the- writ results
from tbe principle that the Jnrlsdlctiozi of
the court to enforce its decree is coexten-
sive with Its Jurisdiction to determine the
rights of the parties, and to subject to sale
tbe property mortgaged. « * • But,' the
learned Justice adds, 'the writ of assistance
can only Issue against parties bound by tbe
decree, which, is only saying that the execu-
tion cannot exceed the decree which It en-
DIl. Key.Np„^5g V^SP;\5^le
•ror otbw CUM MS sun* teple and teoUon NUHBBR in !>•& Dig. tt Am.
84
78 SODTHBASTERN BEPOBTEB
(S.O.
force*, and tiiat the owner of tbe property
mortgaged, which Is directed to be boI^ can
only be bound when he has had notice of the
proceeding for Its Bale^, If he acquired hl«
Interest prevlouB to thdr inetlttrtlon, ia too
obvlooa to restore either argumoit or au-
thority. It Is a rale as old as the law that
no man shall be oondemned in bis rights
of property, as well as In hla r^hta of per-
son, without his day In conrt—tbat Is, with-
out being duly cited to answw respecting
them, and being heard or haTing an opportu-
nity of being heard thereon.' "
In the same case it was held, under the
4Kise of Boynton t. Jeckway, 10 Paige (N. T.)
307: "That a t^iant of the mortgagor, who
went into fKissesslon prior to the couuuence-
m«it of the action for foreclosure and was
not a party thereto, out^t not to be ejected
on a writ of asBlstance. Hence the usual
practice Is to make such tenant a party to
the action fbr foreclosure, in order that the
purchaser may readily acquire possession."
[1] Now a writ of assistance will not Jos*
tify an office In putting out of possession
a person who was neither a party to the suit
nor named In tbe writ Brush t. Fowler, 36
lU. 63, 85 Am. Dec. 382.
£2] Action for trespass lies agalnrt an ofO-
cer for abuse of process, where he assumes
to act under a process, which does not au-
thorize the acts done. If an ofDcer armed
with a writ abuses it by the commission of
any act not warranted by the process, he
ceases to act under and by virtue of the pro-
cess, and thereby becomes a trespasser ab
Initio. Breck t. Blanchard, 20 N. H. 323, 61
Am. Dec. 222; Snydacker r. Brosse, SI lU.
357, 99 Am. Dec. 661.
[3] It is the duty of the dierift in execu-
tion of the writ to place the purchaser on
foreclosure of a mortgage of an estate in
common In possession of erery part and par-
cel of the land Jointly with tbe other tenants
in common, but in the aecntion of the writ
the sherllF cannot remove any part of the
tenants in common who hold nnder a title
Ind^ndent of him through whom the pur-
chaser claims. Freeman's Notes to Wilson
T. Polk, 61 Am. Dec. 156. Here In the case
under consideration we see that the responds
ents were not parties to the foreclosure suit
brought by Lynch against Thomas James,
and therefore not bound by the Judgment in
that action, and they do not claim under or
from Thomas James, but hold thdr title in-
dependent of Thomas James, and from an-
other soured and they never before these
proceedings had an opportunity to set np
their rights which they now claim.
These exceptions are overruled.
[41 The third and fourth exceptions will
be considered together. The third is: "Be-
cause his honor erred it is re^>ectfnlly sub-
mitted in dkarglng the Jnry plaintiff's sec-
ond request as follows : *Tou are instructed
as a matter of law that if an act of tres-
pass Is conunitted la the name of another
person or professedly la the latoest of
snch other person, and tb» latter , snbaequent-
ly ratifled the act by dalmlng any benefit
under It, he would be bound by the act to
the same extent as If he bad expressly au-
thorized it before It was done, the effect of
such cha^ belnug ^ther to derive the de-
fendant J, O. Lyndi of hla individual inter-
est In the premises whldi was admitted to be
three-sevenths thereof, and to subject him to
liability for the alleged trespass by reason
of claiming or accepting any benefits therein ;
also, that such charge being in ^ect an In-
struction to the Jury that the defendant J.
C. Lynch could not claim the benefits or en-
Joy the possession of any portion of the prop-
erty nnder bis legal rights as tenant in com-
mon with the plaintiffs without rendering
himself liable for punitive damages as a tres-
passer.' "
"(4) Because his honor erred It Is respect-
fully submitted In charging plalntUTs third
request as follows : If an officer in execntlng
a writ of assistance wrongfully seizes the
property of a stranger to the writ, and the
person at whose Instance the writ was is-
sued after knowledge of the facts does not
disavow the act of the officer, but permits
the property seized to remain under seizure
for bis benefit, he is liable as a cotrespasser
with the officer, whereas he should have re-
fused sudi request forreasonaasslgned under
the third exception, and also being in effect
an Instruction to the Jury that the sheriff
was not authorized to seize the property un-
der tbe writ, even though no ejectment was
made, thus misleading the Jury, and prej-
udicing them against the defendants' rights."
We do not think these exceptions can be
sustained. Tbe Jury could not have Infers
red from them that Lyndi could not have
been put In possession of the property, to
wit, the share lie had purchased, the prop-
erty of Thomas James, and enjoy tMt pos-
session as a cotenant with the otiier own-
ers of the property without rendering him-
self liable as a trespasser, if tbe sheriff had
followed the direction of the writ of assist-
ance which commanded him: "That yon
eject therefrom the said Thomas James de-
fendant herein and any person since the
commencement of this action who has been
In the possession of the said premises or any
part thereof under him and retains the same
or any part thereof as against tbe plain-
tiff J. 0. Lynch, and that you place the said
J. 0. Lynch or his assigns in full, peaceable,
and quiet iiossesslon of the premises without
delay and him the said J. O. Lynch In pos-
session thereof from time to time maintain,
keep, and defend or to be kept maintained
and defended according to the tenor and the
Intent of said Judgment"
This court held In Ex parte Quails, 71 S.
C. 93, 50 S. B. 648, that, where parties are
properly before the court by reason of being
parties to the suit originally or have become
partlea to the suit, they ace^^^^^^^^
8.0)
MAT T.
THOMAS
86
the julsdletion of th« eosrt oC equity In
ttiat ndt, and an cantrolled by tbe eQuitr
tbecelm ana tbe eowt aajs: "What la the
power of tbe court of eqiittr In neb caaeT
As la aald by Borer In bla book on Judicial
SiUes, In paragraph 280; Tbe eouitable po«^
era of a cbaneeiy court when once in posaea-
slon of tbe case, and Jurisdiction baa attacta-
«d by proper service, are Baffldently broad
and searching to reach all the equities and
UabUitlea of aU the partlea. and wiU aet-
tle, diesxMe of, and enforce the. whole in
one ault" In 17 Ency. of Law 0d Sd.) pu
1014, the authority saya: "Tbe purchaser at
a Judicial aale has a clear rl^t to the poa-
■essifm of tbe prop^ty sold aa agalnat all
tbe partlea to the pioceedinga in which tbe
Bale Is made, and this right tbe courts will
suEomarily enforce by writ of assistance or
In some appropriate manner. But where tbe
person in possession Is not a party to the
SQit nor a pendente lite purchaser, and holda
the property adversely, be cannot be depriv-
ed of possession In this summary way." As
la said by Mr. Borer in his work on Judicial
Sales at paragraph 162: "In Judicial salea
by courts of ordinary chancery Jurisdiction
the better course Is for the decree or order of
sale to include also an order to put the pur-
chaser in iwssession to save a resort to an
action at law for that purpose. But, wheth-
er there be such an order Inserted in the de-
cree or not, the court has full power to en-
force Its sale by putting the purchaser Into
possession of the premises against the pos-
session of the par^ to tbe suit or any one
holding under such party who comes Into
possession during the pendency of the suit,
and refuses to render up the premiaea to the
purchaser."
[6] The sberlif not only put Lynch into
possession of his share, but ousted all the
other tenants In common with him, and put
him In possession of the whole premises.
Lynch was present and claimed all, not that
which be was entitled to alone, but the
whole, and received the iMssesslon of the
whole and tbe benefit of the unlawful and
wrongful dispossession and exclusion of the
parties who were in possession of it, and not
parties to the suit between Lynch and Thom-
as James, and did not claim from Thomas
James, but from a separate and independent
source. There was a complete ouster of the
respondents and Lynch placed by tbe sher-
itf in exclusive possession of the whole proiK
«rty as if he were the sole owner thereof and
not as a cotenant along with them put in pos-
session of his part, and reapondents were
'orclbly ejected. Lynch's acts show that he
was acting in concert with the sheriff and
confirming, ratl^lng, and approving tbe
same, and the reaulta of tbe action Inured
to bla benefit
We aee no error on the part of his hon-
or as complained of, and these exceptions are
OTemled. We nodentand tbat en^tloa 5
ia not imed by the anptflanta.
Judgment afflimed.
OABT, a and WOODS. HXDBIOK.«nd
FSASBB. JJ^ concur.
W 8. a IBS)
B£AT et aL T. THOMAS et aL
(Supreme Court ot South Caroilna. Match 27.
1918.)
1. WiLza (S 1*}— Bight to Wiij>-Natdu or
filQHT.
The right to pass property by will Ib not a
natural or constitutional right,' but is solely
derived from the statute (Civ. Oode 1012. {
3563), providing tbat any person having nght
or title to any lauds, tenemeots, or hereotta-
meuts may dispose of them by will in writing
except aa therein prescribed, and hencei the
right being conferred by tbe Legislature, it baa
power to place such restrictiooa thereon as it
Bees fit.
[Ed. Note.— For other eases, aee Willa, Cent
Dig. $ 1; Dec. Dig. f I.*]
2. Life Estates ^ 25*)— Leasx— Bights of
REMAI NDBBMEIT.
av. Code 1812. 1 0496, provides that If any
person shall ruit or hire lands of a tenant fw
Ufe, and such tenant for life dies, tbe lessee
shall not be dispossessed until the crop of tbat
year ia finished, be or ibe securing the pay-
ment oi the rent when dneu HelS, thmt where
a tenant for Ufa haa rented the esUte, and dies*
the remaindermen are not entitled to possession
until the end of the year, bat are entitled to
compel the lessee to secure tbe rent for the un-
expired portion of such year.
[Bd. I>]ote.— For other cases, aee Ule Satates.
Cent. Dig. S 47; Dec DigrT25.*3
3. Lirs EJeTATKs (| 2*) — Lbasi vx l4n
TbNANT—StATUTBO— VALIDITY.
Civ. Code 1912, | 8496, providing that, if
a life tenant who has leased lands dies, the les-
see shall not be dispossessed until the crop of
the year is finished, be or she securing payment
of the rent when due, is constitutional, though
construed to render tbe remaindermen anbjeet
to the leaae for the remainder «t tlte year.
[Bd. Note.— For other caaea, see Z4fe Eatatai,
Dec; Dig. I 2.*]
Gary, a J., and Hydrick. J., dissenting.
Appeal from Common Pleas Circuit Court
of Union County ; Geo. W. Gage, Judge.
Suit by Jeannette HiU May and others
against Margaret S. Thomas and others.
Judgment for defendanta, and plaintiffs ap-
peal. Modified.
Tbe f ollowlns are tbe nuwtw'a r^KOt, de<
cree, and exceptions referred to In the ojfin-
Ion:
Master's Beport
'^bla ia the second report made in this
case; tbe first report being dated June 20,
1910, and being on file in the office of the
clerk of the court for this county, which re-
port determined among other special matters
under the order of reference the interests of
the various parties to this action. The sec-
ond and final reference herein I held on the
•For otber esMS mm sun* topis u4 oeotloa NUHBSR la Dofc Dla. « An. IHg. Kvt-ltp, BoMs
Digitized
86
78 SOirrHBASTDBN BEFOBIEB
(&a
24th day of Juiuurj, 1811, and this Is a re-
port thereon.
**Georga W. HUl held a life estate In the
lands described In the complaint herein, the
partition of wMch and the rents and profits
of which are at Issue In this case. The qnes-
tixm of partition, Interests of the partly, etc.,
has already been settled under my preTious
report, and the matter of accounting for
rents and profits was heard by me at the
abore-mentlODed refer^ce held <ai the 24th
day of January, 1911.
"George W. BUI died on the 2d day ot
May, 1909. Some years preTlous to his death
his daughter, Mrs. Margaret S. Thomas, and
others purcbased his life estate In certain
tracts of land Involved In this suit The sta-
tus of these parties other than Mrs. Thomas
win not be considered in this report, as they
were not made parties to this suit
"George O. Wood, a son-in-law of George
W. Hill, held from Afir. Hill a lease of other
lands in which Mr. Hill had not been divested
of his life estate up to the time of liis death.
This lease by its terms covered the year 1909,
and provided that Mrs. W. B. May, a daugh-
ter, and Reuben S. Thomas, a son-in-law of
Mr. HUl, should have each lands for use as
George G. Wood saw fit to let them have.
Under this arrangement there was assigned
to Mrs. May a seven-horse farm, which she
rented out with the exception of a one-horse
farm managed by her husband, W. B. M!ay;
and to Reuben S. Thomas a two-horse farm
which be rented out. Wood himself worked
on shares with his tenants a six-horse farm
and rented out 7%-horse farms, one of which
It seems that he personally managed.
"Just here It might be weU to state that It
appears from the testimony that In all these
transactions Geo. C. Wood was acting for his
wife, Mrs. Ruth HUl Wood, W. B. May for
his wife, Mrs. Jeannette HiU May, and Reu-
ben 8. Thomas for his children. Gi^ HIU
Thomas and Roland Farr Th<nnas. So here-
after in this report these representative par-
ties wlU be referred to In order to simplify
matters, and the court wUl understand that
they are referred to In such r^iresentatlve
capacity.
"I think that there can be no doubt that up
to the Ist of May, 1909, Mrs. Margaret S.
Thomas was protected In the holding of the
land nndw her charge by the life Interest
tlwrein of -George W. Hill, which interest she
had pnnduiBed. Again ^orge C. Wood, W.
B. BCay, and Reuben S. Thomas were protect-
ed for the same period under the lease of
George W. HUl to George G. Wood. So for
the first third of the year 1909 the question
Is easily disposed of. However, then arises
a compUcatlon as to the interest of the par-
ties In possession, wlio are remaindermen,
and others who are also remaindermen, as to
what shall be the basis of accounting as to
rents and profits by those In possession — the
parties In possession and other remainder-
men being tenants in common. The positions
<tf the parties to this salt are very mnch at
variance^ and I cannot accept in foil the ccn-
tmtlonB of any one ot them.
"It seems to be a w^-«ettled princ^e of
law In this state tliat where the tenant in
common is in possession of lands and his
holding is not tortious, and tliere is no
ouster— and in this case there is no evidttioe
of tortious holding or ouster— that tenant
in common is liable to account to his coten-
ants only for their pro rata share of the net
profits arising from his use and occupation
of the premises actnally utilized by him or
under his management He would be held
accountable for rental value only when his
use and occupation is tortious. This seems
to be the law as recognized in this state.
Jones T. Mass^, 14 S. O. 807; Cain v. Gain,
63 S. a 3S&, 81 S. EL 278, 68 Am. St Rep.
863.
"However, when one tenant in common
leases the premises to a stranger and coUecte
rents thereon, such tenant in common must
account to the other tenants in common for
the rents so collected. He becomes a trustee
to this extent for the benefit of all.
"It Is conceded by all interested, I believe,
that, where there are several tenants In com-
mon, each Is entitled to cultivate his pro
rata share of the lands owned Jointly Inde-
pendently of the others. In this case this
principle applies to the year 1910, where aU
the tenants in common had an opportunity of
proceeding on this plan at the beglnnlog of
the year; and It appears that the parties to
this suit did that for the year 1910, and
there Is no ground for contention as to the
rents and profits for that year. However,
for the year 1909 at the beginning Geo. W.
Hili, the life tenant, was alive; and at his
death in May after the year was considerably
advanced some of the remaindermen were in
possession and were cultivating the lands. It
was then too late for aU the remaindermen
to teke charge of their pro rata shares, and
the statutes of this state protecting a person
who had gone into possession under the Ufe
tenant would have prevented auch a pro-
cedure. So plainly there was no equal op-
portunity to aU the cotenants or remainder-
men In 1909, and in law and equity the same
principle cannot be applied to 1909 as to
19ia
"In the case at Issn^ Immediately upon
the death of George W. HtU, the title of the
lands in question vested In the remainder-
men, and they became tenants in common.
The parties in possession were protected for
one-third of the year — up to the 1st of May,
1909 — by the life estate of and the lease from
George W. HUL But trom that time on they
became accountable to aU the tenante in com-
mon upon the principles already set forth.
"To take them up in order:
"Mrs. Ma^ret S. Thomas must account
for 6,650 pounds of cotton *^^^^^[^^
8.0)
IfAT T. THOMAS
87
as rent from tenuti, ten ft dedncUon of
ooe-Uilrd on acconnt of her rlgbt to the life
estate iq> to the deaUi <a Geoiie W. HIU hy
reason of pnrduiae. She sboald be credited
with taxes paid as foUows: 1900^ f86; 1910^
97064.
"Geo a Wood held ISH-hOESS forms. Six
of these be cnltlTated btanself with laborers
on shares of cropa and on them made no
profit, and conaeqnently csnnot be held U-
able theretm to the other cotenants of his
wife. Serai and tme-half horse farms he
rented and collected rents thereon to the
extent of 7,000 pounds of cotton, for which
he must account, leas a deduction of one-
third on account of the lease from George W.
HUI which was good and valid for the first
third of the year. He should be credited
with taxes paid to the extent of $187.04;
funeral expenses of Geo. W. HUI, $80; on«-
half cost of drainage lands as required by
the county commissioners $12.50 ; also,
I think it proper to allow him $16.66 (two-
thirds of $25, the Talue of services as testi-
fied of managing a one-horse farm) for man-
agement of «ie of these 7%-horse fftnns which
be worked himself and on which he made the
rent
"W. B. May had a seven-horse farm, one
of which he worked himself and on which
he made the rent, and rented out the others
to six others. He collected 7,000 lees 338
pounds of cotton in rents for which he must
account, less a deduction of one-third on ac-
count of the lease from Geo. W. Hill to
George C. Wood. He should be credited with
one-half the cost of drainage required by the
county conunlssIoDers |12JS0. insurance paid
on buildings town taxes paid in Carlisle
$1JK>, and an allowance of $16.06 (two-thirds
of $25) for management of the farm he work-
ed and on which be made the rent
"Beuben 8. Thomas held a two-horse farm
from which he collected In rents 2,000 pounds
of cotton, for which he should account, less
one-third deduction under the lease from
Geo. W. HUI to Gea a Wood.
"The testimony Is uncontradicted that
1,000 pounds of lint cotton is the standard
rent for a one-horse farm In the community
wbere the lands in question are located, and
the parties renting out the lands testified
that they rented it for tbat standard teat
It la admitted tbat the cotton to be account-
ed for dmU be so done at the price of 12^
cents per pound. Of course, the amounts to
be accounted for by the various parties men-
tioned are to be paid into the general fund
for (Ustrfbntlon. and they are to be credited
with or to receive baA from the fund their
pro rata shares.
"I herewith transmit to the court the tes-
timony and exhibits Introduced at the refer-
ence held on the 24th day of January, 1911."
Decree.
'TThis is a contest betwixt the heirs at law
of the late Geo. W. Hill, deceased* about a
division between thsm of the rents off the
estate lands for the year 1909-1910. More
particularly, the contest Is betwixt the wid-
ow and children of his dead son, Roland, on
the one side, and three living daughters on
the other side. These daughters are Mrs.
Margaret 8. Thomas, Mrs. Wood, and Mrs.
May. All parties have «CQited to the nvort
of the wecial master, and the exertions
are too numerous to set out here. But there
are few issues of law, and inacttcally no
issues of fact
"The late George W. Hill held only an es-
tate for his own life In the lands In Issue.
He died May 2, 1909. He had theretofore
sold his life estate In a part of his lands to
Margaret S. Thomas et al., and he had there-
tofore leased bis life estate In the balance
of the land to Geo. C. Wood, the husband of
his daughter, Bnth, for the year 1909 for
$150.00. Thereupon Wood, pursuant to a
suggestion in the lease from Hill, assigned to
Mrs. May a seven-horse farm; and to Reu-
ben Thomas' children (the grandchildren of
Hill) a two-horse farm, and Wood reserved
for himself a six-horse farm and a 7^-hor8e
farm.
"The issue Is this: Are the tenants under
the life tenant liable to pay the remainder-
men a reasonable rent for the last eight
months of 1900, or simply a two-thirds of
what they bad contracted with Geo. W. HiU
to pay for the year? The master found for
the former view, and the defendants and
some of the plaintiffs contest that view ;
It is really contested by these children and
remaindermen who happened to be in pos-
session as tenants under Hill. It is a pure
accident that the undertenants happen to be
remaindermen; and they will be dealt with
as undertenants when It comes to their li-
ability to account for rent Had Hill leased
the land to a stranger for 1909 for $150,
then plainly under the statute Hill's estate
would have been entitled to collect from
that stranger as much as $100 of that sum
for rent Code of Law No. 2408.
"Before the statute, and by the law, when
the life tenant died amid the year, the rent
due to him was not enforceable at all if the
undertenant was ousted by the ronalndw-
men. The ground of that novel holding was
that the contract was entire and the rent
must be entire; It was not then believed that
a half a loaf was better than no loaf at alL
The act to mend that mischief embodied in
Mo. 2908-9 of the Code of Laws, came from
England and was written into our statutes;
and it provides that which the executor of the
life tenant may collect from the undertenant
for rent from the life tenant who had died
amid the year, and It provides nothing more.
These two sections, about one matter, make
no reference to any right or remedy of the
remaindermen tonching the rent to accrue
for that part of the yeftr after the death of
the life tenant — eight months in th^ case at
bar. Under that statu^^,iyge«Sffe(9®gle
S8
78 BOVTBEASTttBN BBPOBTBB
CS.O.
malndermoi conld collect no nut tcft dg^t
moDtlis of 1909. Bnt another statute was
enacted later, In 1789, and It bad reference
principally at the start to the blrlng ont of
Blares. The dead bones of slavery are im-
bedded all through onr law. The statute,
though impaired, rented lands along wltli
slares ; and It provides that an undertenant
who had leased lands for a life tenant, dead
amid the year, should not be deposed there*
from until the crop of that year had been
harvested ; and that the undertenant should
secure to the remainderman (1 Strob. Eiq. 5S)
the payment of the rent when due. The
statute did not declare that the life tenant,
acting for himself and the remaindermen,
might make a lease for a year at a fixed
rent, of which the executor of the life ten-
ant (dead amid the year) shonld hare so much
of that rent, and the ronalndermen should
have so much of that rent
"Indeed, It is doubtful U a life tenant
could he thus empowered to bargain away
the rights of the remaindermea When the
remaindermen came into their own, the un-
dertenant had one of the two courses open
to him ; he migbt make new terms with the
r«nalndermen tor the eight months yet to
lapse, or he might quit the premises; be
could not be dispossessed if he offered to
do the fbrmer, for that is the mandate of
the statute. As I read his report, the mas-
ter was particularly charged with the under-
tenuit according to ttte foregoing principles ;
and I am content to adopt his findings. Afid
In the year 1910 I see no reason to dissent
from the master.
*1t is therefore ordered that the report of
fb^ spedal master be confirmed."
Ezc^ons of Edith L. HIU et aL
*'Toa will please take nottoe tiut the de>
fendanta, Edith I^les Bill. Boland Glenn
Hill. HamUton HUl, and Coleman Lyles Hill,
except to and will move the Supreme Court
to modify the decree of bis honor, Geo. W.
Gage, in the above-entitled cause upon the
following grounds, excqitlons and assign-
ments of error, to wit:
"(1) That his honor, the presiding Judge,
erred in finding as a matter of fact that
the spedal master In his report of March
16, 1911, held that the partis to his action
yrho were In the occupation of the land here
involved for the year 1909 were Uable to
account to the remaindermen for two-thirds
of the rental value of the said laud for the
year 1009; whereas, his honor should have
found and held that the special master in
his said report erroneously held that the
parties who were in the use and occnpatton
of the said land for the year 1909 were liable
to account to the remaindermen as tenahts in
common for two-thirds of the rents and
profits received from said land during the
year 1909.
"(^ That Us haupTt the presiding. Jodgeh
erred in overruling the exoeptlou of the
defendants Edith Lyles Hill. Boland Glenn
Hill, Hamilton BiU, and Coleman Lyles HUl
to the said report of the special masto:,
which exceptions were as follows, to wit:
"(a) That the referee erred in finding as
a matter of tact that these defendants had
an equal opportunity with the other tenants
in common to nse and occupy their pro rata
part of the real estate involved tor the year
1910, and in holding as a matter of law
that the other cotenants were not liable to
account to those defendants for any part of
the rental value or rents and profits received
by them from the lands during the year
1910, whereas, he should have held that the
evidence eetabUahes that these defendants
did not have an equal opportunity to so use
and occupy thdr pro rata portion of the
said land, but were, in effect, ousted from
the use and occupation of said land during
the year 1910; that practically all of the
available lands were taken into possession
and rented ont to third parties by the other
cotenants, without the consent of these de-
fendants; and that thereby the said coten-
ants became I^ally liable, as trustees, to
account to these defendants for tbtit pro
rata part of the rents and ^fits so collected
and received.
"(b) That the special master erred in hold-
ing that the plaintiff Mrs. Rnth Hill Wood
by and through her husband, Geo. C. Wood,
was not liable to account for two-thirds of
the rental value of a slx-borse farm cul-
tivated 1^ the said Geo. 0. Wood, with la-
borers on shares of crop, durii^ the year
1909, in finding and holding tttat the said
Gea 0. Wood made no profit in Uie cnltlTa-
tion of the said farm, and in holding as a
matter of law that the alleged fact that he
made no profit wonld release him ttom any
liability to account for the rental value of
the ^td farm to the other cotenants of his
said vife; whereas, he should have held that
the said Geo. 0. Wood, for his wif^ Mrai
Bnth HUl Wood, one of the plainttflfs, was
in tta use and occupation of said farm, not
as a tenant in common, who was liable to
account 1^ and under the mle of rents and
profits, but as an ordinary tenant in the use
and occupation of real estate belonging to
third parties, for which he was accountable
for the rental value.
"(c) That the special master erred In hold-
ing that the plaintiffs Mrs. Jeannette Hill
May and Mrs. Ruth Hill Wood were entitled
to a credit of ¥18.66 each for the value of serv-
ices rendered by their husbands W. B. May
and Geo. G. Wood in managing two one-
horse farms during the year 1909.
"(d) That the special master erred In fall-
ing to hold as a matter of law that the par-
ties to this action who were in the use and
occupation of the land involved during the
year 1909, were liable to account to the re-
maindermen for ^w^d^j.^^f^tal
MAY T.
THOBiAS
89
Taloa «vf the premlaet m> used and occiyAed
b7 tbem during the same year, 1809.
"(e) That the said special master erred In
taUing te find as a matter of tact that the
(dalntur Mrs. Jeannette HIU Maj and the
defendant Mrs. Mai«aret 8. Thomas were in
the use and occupation of, and received the
rents and profits from, more than tbelr re-
spective pro rata shares at the land during
fbB year 1910, and that they should aceonnt
for and pay over to their cotenants any
amount In excess so ctdlected and reooATed."
Exceptions of Margaret S. Thomas.
"Ton will jtlease take notice that tiie de-
fendant Margaret & Thomas expects to and
will ai^eal from the decree of his honor,
Judge George W. Gage, made in this case,
and will more the Supreme Court to over^
rule and modify the said decree on the fol<
lowing exceptions and assignments of error,
to wit:
"(1) Because the circuit Judge erred in sus-
taining and affirming the report of the Bpe-
dal master In so tar as the special master
found and held that the defendant Margaret
S. Thomas was liable to account to her co-
tenants for two-thirds of the rents received
by her for the part of the Hill estate by her
during the year 1900. Margaret S. Thomas
had purchased her faUier's life estate in
about 600 acres of the 2,D00 acres owned by
him for life, and had been occupying and
using it for many years, and was so doing
when be died in May, Upon his death
she with her cotenants became the absolute
owners of the entire estate, Includtng the
tract occupied by her. It was error upon
the part of the master to charge her with
rents for the balance of the year, and the
circuit Judge committed error la sustaining
the master in so holding.
"(2) The circuit judge erred In treating
Maigaret S. Thomas as tenant of George W.
Hill dnrlng the part of the year 1909 until
his death in May and as the toiant of her
cotenants for the balance of the year after
his death. She was the undisputed owner
of the life estate In the land occulted by
her BO long as her father Uved, and she
was in no sense his tenant Sections 2408,
2409, and 2410 of the Code had no applica-
tion to her occupancy. These sections only
apply to tenants or persons holding a life
estate in cases where the life estate ends in
the midst of the crop year. And these sec-
tions only apply as between undertenants of
the holder of a life estate and the remainder-
men.
"&■) The circuit judge erred in holding
that Margaret S. Thomas, the sole holder
and owner of the life estate and cotenant In
the remainder, and in possession of no more
than her reasonable portion of the land, was
liable to account to the other cotenants to
make them equal wh«i it was not her fault
that they did not occupy their portion of the
land or collect their portion of rosts.
"(4) The circuit judge erred In orarlook-
tng and not duly considering the fact Oat
Margaret 8. Thomas did not occupy mora
than her reasonable share of the land In 1900,
and tlmti if the other cotenantp did not get
their full shar* of tha land or rents for the
year 1909, it not her faul^ but their
negligence or misfortnneb The master and
drcnlt Judge concur in holding that Mrs.
Margaret 8. Thomas was not liable to ac-
count for veatB for 1910, when she occupied
the same land she occupied in 1909.
"(5) The circuit Judge erred in practically
hol£Ui« Mrs. Margaret 8. fniomaa aoooonta-
ble for the negligence or misfortune of her
cotenants In not collecting .tiielr share of
the rents or occupying their 8har;e of the
land in 1900 by charging Mrs. Margaret S.
Thomas with rents collected by her In 1909
and not charging her tor 1910, when she oc-
cupied the same land and collected practical-
ly the same rents each year.
"(6) It is error of law to compel Mrs. Mar-
garet 8. Thomas to account for rents for
1909 when she went into possession as own-
er of the life estate at the beginning of the
year, and continued in possession as a co-
tenant after the death of her father of her
reasonable portion of the land."
Plaintiffs Appellants* Exceptions.
"Plalntifls appellants except to the decree
of his honor, Judge Gag^ herein, because his
honor erred therein:
"(1) In falling to pass upon and sustain
the exceptions of plaintiffs to the second re-
port of the special master, numbered, re-
spectively, 4, 6, 6. 7, 10, 12, and 15, which
are as follows:
" '<4) In not finding, holding, and report-
ing that Jeannette HIU May, Ruth Hill
Wood, Margaret S. Thomas, and the widow
(Edith Lyles Hill), and children of Roland Q.
HIU, deceased (as one unit), were entitled
to and owned one *^/ta* Interest in all the
land partitioned, and that Mrs. 8. Lou Craw-
ford (representing Sallle O. WUlard) and R.
S. Thomas, as guardian and guardian ad U-
tem of Roland Farr, and Guy HUl Thomas
were each entitled to ^Vsai part thereof.
" '(6) In not flndiog, holding, and reporting
that there were 34^ one-horse farms on aU
the land owned In common, and of this num-
ber the plaintiffs Jeannette H. May and Ruth
H. Wood were each entitled to 6% farms,
and In not reporting the total number of
farms on the land, and the number each co-
tenant was entitled to the use of as his or
her share.
" '(6) In not finding, holding, and report-
ing that three of the farms on the common
land were in the possession and control of
others than the cotenants for the year 1909,
to wit, two in the possession of J. Fid. Greg-
ory, and one In possession of Chamer Daw-
klns; as purchaser of the life estate of G. W.
HIU therehi, and of which the iMn^fta had ,
no poaseaslon » aoBtnd. pg-^j.^^ CoOglC
90
7S SOUTHBASTBBN BOPOBTIIB
*"(7) Id not finding, holding, and rei)ort-
bxg that the rents for the year 1909 on these
three farms was not paid; that the coten-
ants did not reside on the land (Edith Lyles
Hill and the children of Roland G. Hill and
Mrs. LoQ Crawford, representing Sallle 6.
Wlllard), allowed the same to go uncollected
and to be lost, and made no effort to collect
the same, and thereby lost the same as lost
through their n^lect, and failure to look
after their interests.*
" '(10) In not finding, holding, and report-
ing that none of the other cotenants made
any demand on the plaintiffs or B. 8. Thom-
as for security for the payment of the rent
provided for in the said lease, or for pos-
session of any part thereof, or for an agree-
ment to pay any other rent than agreed to be
paid by them in said lease for that year or
served any notice of any kind relating there-
to.'
"'(12) In falUng to find and report the
large loss accruing and falling upon Rnth H.
Wood and her husband from the operating
and carrying on of the farming operation on
the excess over his share of said land, to wit,
922(L88, and in not finding, holding, and re-
porting that they should be given credit
therefor in accounting,'
" '(15) In not bolding and reporting that
under the evidence and the facts of this
case there is nothing due to any of the coten-
ants by plaintiffs or R. S. Thomas; and in
not stating the accounts between the coten-
ants and filing the same with his report'
"These exceptions make the points, re-
spectively, that the master erred In not find-
ing and reporting the respective Interests of
the remaindermen, in the said land, to wit,
as spedfled in said exception, the number of
one-horse farms of tillable land on the entire
place (to wit, 34^), and that Jeannette Hill
May and Ruth Hill Wood were each enti-
tled to 6^ one-horse farms; and the num-
ber of farms (one horse) each remainder-
man was entitled to the use of; that three
one-horse farms of said land were not on the
land used by cotenant remaindermen, but
In the possession of strangers, over which
plaintiffs had no control; that the rents of
these three farms was not paid; that the
nonoccupying co tenants neglected to collect
the same and made no ^ort to collect the
same, and should be charged with the same
In an accounting; that none of the remain-
dermen make any demand on the remainder-
men in possession at the death of G. W.
Hill for any securlt;, for the rent, or
for possession of any part of the land held
by them, or for any new agreement as to
the rent of the same; that Ruth Hill Wood
through the agency of her husband lost the
$226.38 oD the land farmed by her on said
place for 1909.
"These were material matters in the case
without passing upon which no final deter-
mination or rights could be had, the evi-
dence was uncontradicted and undisputed to
sustain the facts alleged, and as the master
failed to pass upon them, and they were be-
fore the court on exceptions, the court should
have passed upon them and sustained the ex-
ceptions, and this court should do so.
"(2) In not stating the undisputed fact as
found by the special master, that W. B.
May and Geo. C. Wood in all matters re-
lating to this land were acting for and rep-
resented their wives, Jeannette HIU May anci
Ruth Hill Wood. The ma8ter*a r^rt shows
this finding and report
"(3) In misstating the issues between the
cotenants in possession of part of the com-
mon land for 1909, and the other remainder-
men, by omitting entirely to mention and
consider and pass upon the rights of those
in such possession as cotenants, because, he
says, it was an accidental thing.
"(4) In holding and stating that one of two
courses was open to the cotenants, holding
under the lease from the life tenant, when
the remaindermen came Into their own; be
(they?) could either make new terms with
the remaindermen, or he could quit the prem-
ises; he could not be dispossessed, if he did
the former; it being submitted that this is
an erroneous statement of the rights of any
tenants, much less a cotenant, undw section
2410, 1 Code Laws, in this: That he places
the whole duty of action on the tenant in
possession, and takes all duty of action and
all responsibility from the remaindermen,
thus wrongfully limiting the rights of the
tenant and extending tlie rights of the re-
maindermen.
"(5) In not passing upon and sustaining
plaintiffs' exceptions 2, 8, 8, and 9 to the
special master's report, which are as fol-
lows :
** *(2) In finding and reporting substantial-
ly that the occupying cotenants were for
that year (1909) tenants of all the cotenants,
and must account to the nonoccupying co-
tenants as such upon a basla of perfect
equality.
" '(3) In finding and reporting that the co-
tenants occupying or residing on the com-
mon land during the year 1909, after the
death of G. W. Hill, as tenants of all the
cotenants liable to account to the other co-
tenants for all the rents and profits received
by each, from the land he or she worked or
used, at the usual rents per horse farm for
that section, upon an exact basis of equality,
and without allowing the tenants residing
thereon credit for the full value of their
services in attending to and carrying out
the working of the lands used by him or her
for that year, including the liabilities attach-
ing hereto.'
"'(8) In not finding, holding, and report-
ing that Jeannette Hill May, Rnth H. Wood,
and their husbands, plaintiffs, and R. S.
Thomas, for his infant children, held the
lands for which they were severally possess-
ed of the common land for the year 1909, un-
der and by rtrtufj,§|z* 354SP0j«»^^»
MAT T. THOMAS
91
G. W. Hill, the life tenant of the land ; and
ttaat, as against tbe other ootenanta, they
were ^titled to hold the said lands for the
remainder of the year 1909, after the death
of the life tenant, at the rent qpedfled and
agreed to' be paid therein, and to account for
the two-thirds thereof, only to the other co-
tenants, and that In the absence of any de-
mand for secnrlty continuing to hold there-
under and nnder the terms thereof for the
payment of the said rent on them, by the
other cotenants, such right was waived, and
th^ acqniesced in the said holders under
the lease, continuing to hold thereunder and
under the lease.
" '(9) In not finding, holding, and report-
ing that by the terms of the said lease the
said plaintiffs and the said B. S. Thomas
were to pay as rent for the land occupied
by them the sum of ¥150 for the year 1909
and also to pay such further sum as was rea-
sonably sufficient to support the said Q. W.
Hill for that year — that is, to furnish them
with a support—and that two-thirds of such
amount would be and was the amount for
which they would be liable to account In this
action, subject to all proper credits.'
"These exceptions make the points that
the special master erred holding that the co-
tenants In possession of part of the land at
the death of the life tenant, under lease
from him, were liable to the remaindermen
as tenants, for the full usual rent of all the
land held by them (1,000 pounds lint per one-
horse farm) for the remainder of the year
(1909) ; and in not holding that they were
tenants under their said lease and could be
held only for two-thirds of the rent agreed
to be paid therein, f 160, and a support for
the life tenant
"(6) In not holding that under section 2110,
1 Code Xaws, the cotenants in possession are
only liable to hold to the remaindermen for
two-thirds of the rent agreed to be paid by
them in the lease from the life tenant, Geo.
W. HilL
"(7> In not passing upon and sustaining
plaintiffs* exceptions 1, 11, and 13 to the spe-
cial master's report which are as follows:
" *(D In finding and reporting that for the
year 1909 the principle that one ootenant
cannot be held accountable to his cotenants,
except for the excess of his or her share of
the common property worked or used by him
or her, did not apply to this case for the
year 1909, but that the cotenants in posses-
sion at the death of O. W. Hill must account
for all the rents and profits received by him
or her for that year to the other cotenants
upon an even and equal basis, whether he
or she worked more or less than her fair
share of the said land for that year.'
" '(11) In not finding, holding, and report-
ing that even If under any view plaintiffs
and R. S. Thomas under and by virtue of
their written lease and under the terms and
conditions thereof, and that all rights there-
imdar wera ftrcUed bj the death at 0. W.
Hill, the life tenant. In May, 1900, that then
the plaintiffs and R. 8. Thomas were In pos-
session of the laud as tenants in oommon,
and not as renters of the other cotenants,
and that as tenants in common so holding
they were and could be only liable to a<N
count for the rent and profits of snch part
of said laud as was used and rented by each
severally in excess of his or her share of all
the common land subject to all proper cred-
its and allowances.'
*"(13) In not holding and reporting that
as tenants in common in possession the plain-
tiffs M. S. Thomas and R. S, Thomas should
and could only be held to an account for the
rents and profits of tb» land used in excess
of their respectlTe sbaves, and not for the
rental value.*
"These exertions make the points that the
special master erred in Iwldlng that the gen-
eral rule of law that a cotenant In possession
can only be held for rents and profits of the
common land used by Mm in excess of his
proper share thereof does not apply to the
cotenants In possession of this land at the
death of Geo. W. Hill, the life tenant; and
in not holding that, if the lease was de-
stroyed by the death of the life tenant, the
said remaindermen were In possession as
cotenants, and should only be required to
account according to that rule.
"(8) In not holding that. If the lease under
which the remaindermen held at the time of
the d«ith of G. W. Hill, was destroyed or
rwdered invalid in any way or for any cause,
the remaindermen in possession of part of
the land for the year 1908 were in of tb^
new right, held as tenants in common, and as
such each ooald be held to account only for
rents and profits at and for whatever amount
of the land he or she used in excess of his
own i^per share; and for only two-thlrda
thereof, in tills case, being allowed all inrop*
er expenditures t<a the common good or
property.
"(9) In not posali^ upon and sostaining
plaintiff's fourteenth ezo^»tion to the special
master's r^rt, wbidi is as follows:
" *(14) not finding, holding, and report-
ing that as between plaintiff and B. 8.
Thomas, the parties holding under the Irase
.of O. W. Hill, they having all acquiesced
in the holding by them nnder the terms of
said lease, there could be no acconnting for
any excess of shares used by either, and that
In any event there should be an accounting
between them, only two-thirds of the agreed
rent to be paid under the said leasa'
"This exception makes the point that In
any event no accounting for rents and profits
can be held and had between the parties
holding and using the land for 1909 under the
lease, they accepting the benefits thereunder
by mutual agreement and standing t(^ther,
and making no such claim of right at any
time.
In Wt holding 6^J„t^^^^?B®g[i
92
78 80UTSBA.STBBN BBFORTEB
men and cotenants not In possession of any
of the lands moat account and be htid re-
sponsible for the rents of the J. Bd. Gregory
and Dawkins tracts for the year 1909, as lost
to them throngh their own negligence and
carelessness, In every phase of the case, and
in any form of accounting.
"(11) In sDstalning the qiedat master's re-
port"
J. Glough Wallace, of Union, for aniheUimtB.
J. L. Glenn and J. H. Manon, both of COiester,
and P. D. Barron, of Union, for respondents.
PRASEEt, J. This is an appeal from de-
cree of his honor, Judge Oage, confirming the
report at J. G. Hughes, Beq., special master,
made in the case, and for a proper under-
standing of the case the report of the master,
the decree of Judge Gage and exceptloas
thereto should be set out In the report of the
case. We think it unnecessary to take up the
exceptions seriatim, as we think the decree
In the main should be confirmed, but with
this modification: Those holdli^ under the
lease made by life tenant could only be held to
account for the rent provided to be paid In
said lease. Section 3^ 1 Code ct Lawa 1012
(Mev Code), provides: "If any person shall
rent or hire lands of a tenant toT life, and
such tenant for Ufe dies, the p»son blrlng
such land shall not be dlqitessessed until the
QTOjf of that year la flniriied, he or slie se-
curing the paymoit of the rent when due;**
In this case the remaindermen were bound by
the contract made by the life tenant Where
a life tenant makes a contract for the lease
of his Ufe estate for a valuable consideration,
then the remaindermen are bound by the
contract made by the life tuiant, and can
collect the rent only provided t<a In that con-
tract This is a remainder under a wUL
Section 3563 of the Code of 1912 reads as
follows: *'Any person having rli^t or title
to any lands, tenements, or heredltamwta,
whatsoever (persons of unsomid mind and In-
fants ^cepted), may dispose thereof ,by will,
In writing, at his or her own free will and
pleasure, except as hereinafter provided; but
all wills or testaments made of any lands,
tenements, or other hereditaments, by any
person within the age of twenty-one years,
idiot, or by any person de non sane memory,
shall not be taken to be good and effectual
in law."
[1] The power to make a will Is statutory.
The statute provides who may make a will
and who may not It says bow it shall be
executed, and how revoked. It provides that
certain dispositions of property shall be void.
It provided that a certain estate that had
theretofore been a life estate should there-
after be a fee simple The right to make a
will is not a natural right The natural
light to control property dies with the pos-
sesacr. It Is not a constitntional right It
Is not mentioned there. Though of violent
origin, the right Is a creature of statute, and
Qiay be abridged at any time 1^ the law-
making power.
[2] When this will was made, when it be-
came of force, and when these remainders
arose, this statute was In force. Therefore
the wlU and all rights imder It came into
existence subject to the statute. At the time
the rights vested they vested subject to the
statute. Remainders could be forbidden.
The same power that created a fee in all
of those lantte devised, in which the estate
was not inconsistent with a fee, could have
provided that in every event and in defiance
of the limitation the first taker should take
a fee and declare all remainders void. It
did not declare the remainder void, but it
said to the remainderman, "Tou cannot get
possession of agricultural lands until the end
of the year." ' If the statute had the right to
prevent the disposition altogether, it cer-
tainly bad the right to postpone the exercise
of the right of possession. The dlflBculty,
however. Is not In the postponement of the
possession without the consent of the re-
mainderman, but that the rent should be fix-
ed by the Ufe tenant nnd not by the "con-
sent" of the remaindermen. If the law can
withhold the land, it can also withhold a
mere incident Uke rent If the Ufb tenant
cannot make a Undtog contract for t&xt, nei-
ther can he make a contract that withholds
the land itself. It Is said that the tenant
must pay a reasonable sum for the use and
occupation. Who Is to say what is a reason-
able sum? Manifestly the courts must fix
the amount If the remainderman has a
constitutional right upon which he is enti-
tled to stand, then that constitutional right
is "consent" The court cannot mvEAy the
want of consent if the right of consent ex-
ists. As to public policy, on the one hand,
some life tenants may let their estates at
unreasonably small rents. On the other, the
Income to be derived from property held by
life tenants would be nothing if, upon the
death of the life tenant, the tenant, for a
year must make a new contract with an
unknown and unknowable remainderman,
whose demands are limited only by his con-
science and that may be elastic. Thus the
life tenant, the Immediate object of the tes-
tator's bounty, may be deprived of the en-
tire benefit of a valuable estate.
[3] The remainderman takes the estate
subject to the burden of a lease (that cannot
exceed a year), and the statute that imposes
the burden is in all respects fair and entire-
ly constitutional. After the life tenant dies,
the remainderman can require the tenant to
secure the payment of the rent when due.
In this case the tenants under the life ten-
ant are liable to pay the raualndermen two-
thirds of what they had contracted with
George W. Hill, the life tenant, to pay for
the year.
It la Om.iv&gBf^^^i^^f^^j^g^tia
MAT T. THOUAS
93
decree of tbe drcnit Judge be modified In ac-
cordance with tbe Tlewa Indicated herein.
Judgment modified.
WOODS and WAITS, JJ., concur.
GABY, O. J. I dissent, and concur In the
dissenting opinion of HTDRICE. J.
HYDRICK, J. (dissenting). I cannot as-
sent to the proposition that the remainder-
men are bound by tbe lease made by the life
tenant If they are so bound, It is only by
virtue of the statute, for It cannot be on ac-
count of any privity of contract or estate.
There la no doubt that the estate of a life
tenant terminates with his life. Necessarily
any grant or lease made by him must also
terminate upon his death. This being so, at
common law, upon his death, the remainder-
man was entitled to immediate possession.
This frequently resulted la great InconTenl*
ence and hardship where the life tenant died
after his undertenant had prepared for, or
perhaps had planted and had in course of
cottlvatlon* the crops of the year for remedy
of which In 1789 the Legislature enacted a
statute with regard to slaves and lands hired
or rented from life tenants, which, omitting
parts not pertinent to the preset Inquiry,
reads: "If any person shall die after the
let day of March, in any year, the slaves of
which he or she was possessed, whether held
for life or absolutely, and who were employ-
ed in making a crop, shall be continued on
the lands, which were In the occupation of
the deceased, nntil the crop Is finished, and
then be delivered to those who have the right
to them. * • • And if any person shaU
teat or hire lands or slaves of a tenant for
Ufe, and such tenant for life dies, the person
hiring such land or slaves shall not be dis-
possessed until the crop of that year Is fln-
nlshed, he or she securing the rent or hire
when doe." 6 Stat 111. The last sentence
of this statute, with tlie words making It
applicable to the hiring of slaves stricken
oat, now appears as section 3486, Civil Code
1912, and is the statute upon which the ap-
pellants base their contention that the re-
maindermen are bound by the contract made
by the life tenant. The effect of snch a con-
struction of the statute Is to enable the life
tenant hy leasing the property to practically
continue his estate therein througb the year
in which he dies. Such effect cannot be
given to the statute without making it nn-
constltntional, for, In that event, the remain-
derman Is deprived of his property without
his consent, and without due process of
law. It simply aUows one man to barter
away the rights of another without tils knowl-
edge or consent It is directly in conflict
with the principle decided In Oureton v.
Bailway, 68 S. a 371, 37 S. E. 814, and the
cases following it, which hold that a lUe
tenant can convey no greater Interest than
be has In tiie premises, and that to allow a
deed from the life tenant to a railway cor-
poration for a ngtit of way through the land
in which he has only a life estate to have
the effect of foredoslng the rights of the re-
maindermen to compensation for the right
of way would violate that provision of the
Oonstitutton which says "that private prop-
erty shall not be taken for private use, with-
out the consent of the owner, nor for pubUe
use, without Just compensatton being first
made therefor." Article 1, 1 17. -
Now, unquestionahly the remainderman is
the owner after tbe expiration of the life
estate, and It is inconceivable that the Legis-
lature would attempt to make contracts made
by the life tenant, without tbe knowledge or
consent of the remainderman, and perhaps
greatly against his interest, binding upon
him. Such l^lslatlon would violate the
fundamental principles of right, and there-
fore such a construction of the statute most
be avoided; for It is w^ settled that In
construing a statute that construction which
will render it unctHistitational must be avoid-
ed, it possible. This may be done in constm-
Ing this statute without violating any right
or rule of construction.
Another principle of construction that may
be invoked is that where a statute la In der*
ogation of commoo law and of common right
it must be strictly construed. The statute
in question clearly impairs the common-law
rights of remaindermen. Huff v. latlmer,
S3 S. C. 260, 11 S. B. 758. Olierefore, when
the statute says that the tenant shall not be
dispossessed, be securing the rent when due,
what rent is meant and to whom is It to
be secured? That question was answered in
Freeman v. Tompkins, 1 Strob. Eq. 63, 68,
where the court said: "When the act says
the hirer shall secure the payment of the
rent and hire, it means that he shall secure
to the remaindernuLD the proportion of it
which arises after the accrual of the remain-
der. The proportion arising In the terms of
tbe Ufe tenant is already secured to him by
the contract of hiring." But how does Tent
accrue to the remainderman? Certainly not
under the contract made by the Ufe tenant,
for to that the remainderman is neither party
nor privy. It accrues by virtue of an impUed
promise on the part of the undertenant
who remains in possession, under the protec-
tlou of the statute, and uses the remainder-
man's property to pay him a reasonaUe rent
therefor.
This case faUs pqnarely within the provi-
sions of section 3503, Civil Code 1812, which
was enacted before the section we are consid-
ering. It provides for the recovery by the
landlord of a "reasonable satisfaction" for
the use and occupation of lands, etc., where
the apvement Is not by deed. This ground
of recovery was enforced in Freeman v.
Tompkins, supra. In that case Mary Free-
man, the life tenant of certain slaves, died
in May, having possession of the sUves. Af-
ter her death, her tr«4|f^,^9)|y ^^i@Og
94
78 SOUTHBASTO^ BEPOBTBB
(W.Va.
them and retained them for aereral yeara.
The qneatton was whether, nnder the statute,
ta«r estate waa wtttled to the nae of the
alaTea for the pratloa of the year aftw her
death without compenaatton to the remain-
dermen. It wlU be obaerved that, under the
first amtence of the act above quoted, hex
rqneaentatiTes had the right to use the
slaves until the crop was flnlshed, and noth-
ing Is said about compensation.. The court
held, however, that her estate waa liable fbr
a reasonable hire. At page 69 of 1 Strob.
Dq^ the court said: "It Is plain that the
Legislature looked to the Injury which would
nsalt fn>m Intwrnpting the planting opera-
tions after that season when preparations
for the crop are usually In progress, and in-
toned to secure against the consequences of
a sudden change of the right of property by
the deaUi of the party, in faith of whose
title the crop waa set As a matter of conven*
loice It was provided that in all cases where
the crop was superintended by the executor
of the decedent it ehould constitute assets
In his handa But it by no means follows
that when It Is raised by means of slaves or
lands whldi, on the death of his testator,
become the property of a remainderman,
tiiese shall be used without compensatltm.
Certainly the act does not 'continue the ^
tate of the life tenant,' as it is expressed In
Leverett v. Leverett [2 McCord, Eq. 84] *to
the end of the year.* There can be no doubt
that, if it were necessary to vindicate the
title to the property (the land for Instance),
the suit must be brought In the name of the
remaindermen. The only object of the stat-
ute was to prevent great injury from the loss
of a crop planted, and to obviate the diffi-
culty of employing laborers after the begin-
ning of the planting season. This is an es-
sential benefit to the estate of the life tenant;
tliwoh that estate, into whose service tJie re-
mainderman's property is pressed, should be
compelled to pay an aquivalent for the serv-
Uxs rendered. [Italics added.] And it is no
greater hardship that the life tenant's estate
should pay for these services than a person
to whom he hires the property, which is ex-
pressly provided for in the statute." By
parity of reasoning neither the estete of the
life tenant nor his undertenant should be al-
lowed to have the use of the remainderman's
land without rendering a fair equivalent If
we hold that the remainderman Is bound by
the contract of the life tenant made upon
valuable consideration, it will freqnently
result in the loss of practically a whole year's
rent to the remainderman. Suppose the life
tenant should lease the premises in consider-
ation of his own maintenance and support
by the lessee? Now, that is a valuable con-
sideration. Tet, If the remainderman is
bound by it, he could not dispossess the under-
tenant upon the death of the life tenant, nor
could he collect auy rent for the use of bis
propoty for the balance of the year. Con-
siderations of blood and altgctlon may, and
frequently do, cause the life tenant to lease
ttie premises at a merely nominal mt, and
that Is practically the case here, fbr, as gath-
ered from the record, the consideration of
the lease was 9100 and the suivort of the Ufe
tenant, while the testimony shows that the
rental value of the property Is upwards
94,000. Surely the Legldatnre did not con-
tmplato or lipoid such consequences; and,
when read In 0ie ll^t of the then existing
law and the evils which it was Intended to
ronedy, the language of .tiie statute does not
warrant an interpretation which will lead to
any such result
One who goes into possession under a life
tenant Is charged with notice of his land-
lord's title, and that it Is liable to terminate
at any moment If it terminates In the
midst of the year, the statute saves him from
being dlsiKwsessed, and there is no hardship
In holding him responsible to the remainder-
man for a reasonable ruital aftur the death
of his landlord. The statute does not compel
him to retain the possession. He may quit
without liability to Uie remainderman. And
that, too, goes to show that the remainder-
man ought not to be bound by the contract
because the tenant Is not, and mutuality is
wanting. Usually his own interest would
impel the tenant to remain In possession;
but, If he does, it Is of his own free will,
and he should therefore be held thereby to
an implied promise to pay the remainderman
a reasonable rent The foregoing views are
supported by authority. Hoagland v. Crum,
113 lU. 865, 55 Am. Rep. 424; Guthmann v.
VaUery, 51 Neb. 824, 71 N. W. 734, 66 Am. St
R^. 475; WiUlama v. Castou, 1 Strob. 130.
OABT, 0. in eoucan.
OS W. Va. 288)
WILUAMSaN V. GLEN ALUM COAL CO.
et aL
(Supreme Court of Appeals of West Virginia.
April 15, ISIS.)
(SyUahus tv «Aa Court.)
1. rALSB IMPBISOIWENT d 7*) — WaEBAMT
CHARGina No Oftensb.
Where the act charged In a warrant issued
by a justice amounts to no criminal offense, ar-
rest and ImpriBonment under each warrant is
illegal, and uiose who actively direct and cause
the same are liable in the action for false im-
prisonment
[Ed. Note.— For other cases, see False Im-
rnsonment, Omt Dig. || iMo, 79; Dee. Dig.
7.*1
2. FaI^ IlCFBISOnilKNT (fS 4, 13*)— ILUQAL
Abbbst.
Illegal arrest and imprisonment, regardless
of malice or probable cause, will sustain the ac-
tion for false imprisonment
[Ed. Note.— For other caies, see False Im-
erUonmeDt Cent. Dig. {| 6, 7, 1^ 31, 58; Dec.
.ig. S8 4, 13.*]
Tor oUmt owes ■•• same tople sad moUob NUHBiBil 1» Deo. Dig. a Am. Dig. Ker-Hou Series
Digitized by Vjt/LJ^
W.Taj
WTT.T.TA-fccanw r. aLEIT ALUM GOAL CXX
96
S. Faux licpnsomoKirr Q SB*>~DninHOB—
BXOOBD OF ABBEST.
The record of the cam in which the arreat
and impriBonment occurred, oa appeal from the
iuetice, showing the procedure therein and the
diaminal thereot !• adndnlble as evidence
tuidinc to prore iUegality of the arreat and im-
priflomnent.
[Bd. Note.— For other caeee, k« False Im-
piiaonment, Cent Dig. | 100; Dec Dig. | 2S.*]
Error to Circuit Conrt, Mingo County.
Action by Simeon WilUamson against the
Olen Alnm Coal Company and others. Judg-
ment for plaintiff, and defendants bring er-
ror. Affirmed.
Sheppard, Ooodykoontz & Scherr, of Wil-
liamson, for plaintiffs in error. Marcnm &
Marcnm, of Huntington, for dafenflant in er-
ror.
ROBINSON. J. Defendants, a coal com-
pany and Its special police officer, caused and
procured the arrest and Imprisonment of
plaintiff. Averring that the arrest and im-
prisomnent were illegal, plaintiff sought
damages by this action. He bas Jodgment.
What we shall say in a general way will
sufficiently cotw the ptdnts of errw as-
The declaration plainly seta forth a case
of false anest and Imprlsonmoit The evi-
dence quite as plainly jwoves such a cas&
It folly warrants the wdict on which the
Judgment was entered. Nor do we iind «r-
ror In any ruling of the court during the
trial.
[1] That lOalntlfl committed no oftoise for
whldi he could lawfully be arrested and im-
prisoned Is clearly disclosed. He did noth-
ing but throw an advertising hand WU Into
a lot, at one of the residenoe pn^wrtieB of
the coal company. TMa nay have been a
technical dvll trespass, but it was no crim-
inal oCCenaa Tet he was arrested on Uie
Spot, tatai before a Justice at Uie ofBce of
the coal company, fined, and In defaolt of
paymaat sent to the county JalL He was re-
leaeed from the imprisonment by the writ of
habeas corpus. Whethar a warrant of any
kind odsted at the time of the hearing be-
fore the Justice appears from the facts and
etrcnmstaneas proved to have beoi an open
question for Jury determination. Defend-
ants' evidence tends to prove the existence
of a wariant. but there are drcnmstauces
tending otiierwlse. Conceding that there
was such a warrant as the one which de-
fendants relied on at the trial of tUs action,
we find that It furnishes no Justification for
the arrest and Imprisonment It Is wlioUy
irr^cnlar and void. It charges no criminal
offense. It vouches no Jurisdiction of the
Justice in ttie premises. It charges plain-
tiff with an act which Is no criminal offense
under the laws of this state. Its charge Is
tlut plaintiff "did commit a m<«dr by tret-
potttnff on real estate by tcatming bills on
the property of the Glen Alum Coal Com-
pany against the peace and dignity of the
state." Plainly no criminal offense is stated
hrae — ^no Jurisdiction of the Justice shown.
"It does not follow that, because plaintiff
was a tre^tasser In the eye of the law relat-
ing to a dvll action for damages against
him, he was guilty of a criminal offense"
Davis V. Railway Co., 61 W. Va. 260, 56 S. B.
401, 9 L. a. A. (N. S.) 993. So there was ab-
solutely no warrant of law backing the ar-
rest and Imprisonment of plaintiff. No won-
der that M was speedily released by the
writ of habeas corpus.
"The constituent elements of false Im-
prisonment are, first, the detention or re-
straint, and second, the unlawfulness of the
detention or restraint" 12 Amer. & Eng.
Enc. Lav, 733. Now, as against defendants,
both these elements convincingly appear.
That plaintiff was arrested and Imprisoned
at their active instigation and procurement
Is not contradicted ; that it was done illegal-
ly cannot be gainsaid from the record. "If
no crime is charged, or If the act charged
amounted to no crime for which arrest may
be lawfully made, the arrest Is illegal," 2
Amer. A Eng. Enc. Law, 900; Newell on
Blallcious Prosecution and False Imprison-
ment 67,v 89 : Coffin v. Varlla, 8 Tex. Civ. App.
417, 27 S. W. 956; State v. Leach, 7 Conn.
453, 18 Am. Dec. 113; Duckworth v. John-
ston, 7 Ala. 678; Moore v. Watts, 1 111.
(Breese) 42; Shergold v. Holloway, 2 Strange^
1002: 1 cutty on Pleading, 181.
Where the warrant is irregular and void,
or where it Is Irregular thou^ not void but
is afterwards quashed or set aside for irreg-
ularity, the prosecutor Is liable to the ac-
tion for ^Ise imprisonment 2 Tucker's Com-
mentaries, 71; Newell. 9a The so-called,
warrant in this case charged no offense and
was void on its fac& This alone made de>
f^dants, who actively instigated, directed,
and procured the arrest and Imprisomnent
of plaintiff nnda It liable in trespass. The
warrant was so grossly irr^lar as to be
promptly set aside on a bearing In habeas
corpus, and to call for a dismissal of the
charge on appeal tcom the Justice.
[1] This was not a case of malicious pros-
ecution. Malice or probable cause were not
necessarily pertinent to it The illegal ar-
rest and imprisonment repu^Oess of malice
or probable cause, will sustain the action.
Parsons v. Harper, 16 Orat (Va.) 64. The
Instructions relating to malice and probable
cause which were asked by defendants were
not fitting to the case as made by the plead*
ings and evidence, and were properly refus-
ed. Nor do we find error in the exclusion of
the two other Instructions asked by defend-
ants, and In the giving of the Instruction for
plalntUL
[S] The record of the case in which the
arrest and imprisonment occurred, on ap-
4«r elhsr cms ■•• m* taffln sad Hottea NUMBSK la Dm. Dig. * An. Dig. K«r-Na[]||tAi»<
96
78 SOUTHEASTBRN BBPOBTSB
(W.Va.
pea] from the joatlce, ihowlng tbe proeeflure
theralB and the dlrnnimwl thereof^ was ad-
missible aa evidence tending to prove Illegal-
ity of. the arrest and Imprisonment Par*
Btms T. Harper, supra.
An order affirming the Judgmoit wlU be
entered.
m w. va. my
POIXET T. OILLELAND.
(Supreme Court of Appeals of West Vlrclnia.
April Ifi, 1013.)
(8yUahu$ hy the Court.)
1. Febbieb <J 14*)— Estabushmbnt— Ihtob-
TKNTION.
Wfaere tbe proprietor of a ferry bat failed
to exercise bis francbise for tbe time prescribed
by section 1, chapter 44, Code 1906. and by
disuse and force of tbe statute the same has
been discontinoed, be has no r^bt thereafter
to intervese, as contestant, in a proceeding by
another to establish a ferry at or near the same
place.
[Ea. Note.— For other cases, see Ferries,
Cent Dig. H 2S-33; Dea Dig. | 14*]
2. Appeal awd Ebbob (| 1010*)— Finding—
Bbtablisdment of Febbt.
A case in which the evidence fully anp-
ports tbe Sndins and judgment below that there
was public need or necessity fOr tbe establisb-
ment of a ferry at the place designated In the
application.
[Ed, Note. — For other cases, see Appeal and
Error. Cent Dig. U 3979-8982, 4(^; Dea
Dig. i 1010.*]
3. Febbies ({ 20*) — Fbanchisb— Tbbhina-
TION.
Where a ferry franchise has by disuse been
lost or disconttnned by operation of section 1,
chapter 44, Code 1906, quo warranto, or pro-
ceeding under section 12 of said chapter is un-
necessary. The discontinuance baa become
complete and effectnal without Jndgmsnt of
onster.
, [Ed. Note.— For other cases, see Ferries,
Cent Dig. IS 60-66; Dec Dig. | 20.*]
4. Febbies (S 20*>— Fbanohibb— Tbbmihatiok
—Disuse.
Wbere the franchise granted authorizes the
proprietor to operate a steam ferry, the subse-
queot discontinuance of such ferry, and tbe in-
different use of a skiff ferry under circamstanc-
es showing bad faith, and a purpose to deprive
the public of tbe benefits of the ferry establish-
ed; will not preserve tbe right and save the fer-
ry established from the discontinuance imposed
by the statute.
[Ed. Note.— For other cases, see Ferries,
Cent Dig. B3 60-66; Dec Dig. | 20.*]
5. Febbies (S 14*>— Paocnninos to. Botab-
UBH-^INTEBTBNTION— GOLLATSaAL ATTACK
ON Fbanchibb.
Where the proprietor of sncb discontinued
ferry interrenes to oppose the establishment of
another ferry at or near tbe place of the old,
and the court, on his petition and answer. Is
called upon to determine whether be Is such
perwin with such right as entitles bim to op-
pose tbe establishment of such new ferry, its
judgment thereon denying bim that right does
not amount to a collateral attack upon his
right
[Ed. Note.— For other easss, see FerrlsiL Oeat
Dig. H 28-83; Dec Dig. 1X4.*]
Poffenbarger, P., dissenting.
Brror to drcvlt Oou^ Oblo Cmmty.
Petition b7 Albert PoUey Cor the ^Tllega
of establlalili^; a ferry, and Robert M. 011-
Idand Interrenes aa contestant. Judgmoit
for petitioner, and contestant twlngs error.
Affirmed.
McCamlc & Oarke, of Wheeling, for plain-
tiff In error. Jobn P. Arbena and Josepb
Handlan, botti of Wheeling, for defendant In
error.
MILLEB, J. The judgment of tbe circuit
court, pronounced February 4, 1010, end to
which the present writ of error applies, af-
firmed the judgment of the Board of Com-
missioners of Ohio County, of April 7, 1909,
whereby the right and privilege was granted
to Policy, the i>etltioner, to establish a steam
ferry across the Ohio River, at or near tbe
foot of Forty-third Street, In the City of
Wheeling, to continue tor tbe period of fifty
years from that date.
Gilleland, claiming to be the owner by
jrarchase In 1898, of a ferry right or fran-
chise at or near the same point, granted to
Richard Hutchinson, November 0, 1868, on
petition filed, was made defendant to con-
test the right of petitioner to establish a
new ferry at the place proposed.
Tbe record of the proceedings before the
Board of Commissioners Is volumlnooa.
Many points of error are presented In elab*
orate brle^ of counsel, most of which, as
we view the case, are immaterial and to
which we need give no consideration.
[1] The court below, affirming the judg-
ment of the Board of Commlsslonere, In a
written opinion filed and made part of the
record, found as a fact, that the contestant;
Gilleland, had abandoned his right and was
not such a person es had right to complain
of the Judgment of the Board of Commission-
ers.
The order of the Board of CSommlarionera,
of November 9, 1868, <m which leentestant'a
alleged right or franchise is based, la aa fol-
lows: "Monday. November 9tb. 1868. Or-
dered on tbe petition of Robert Hntcblson
that the order of this traard entered on th«
2^d day of February, 1868, allowing Dam^
DetweUer to establish a steam feny between
the Washington Mill and a point oppoilte on
the Ohio side be Tacated and annnlled, and
this board being satlafied of the necessity of
eetablldilng a ferry at that pUtoe^ It Is or-
dered that Blchard Hntchlaon be granted
leave to establish a steam ferry across the
Ohio river at or near the Washington Mill
and below Qie same any place within one
halt mile to a point on ttue vPOoOtB Me of
the river in Ohio.**
Section U chapter 44, Code 2906, relating
to ferriea, toll brldgei^ water conrses, and
miUSb provides: "1. Every ferry esUibtlshed
aod not discontinued beftwe this lAapter
takes effect may continue .to be kept; and
•roroUMT
esMs subs ttwls sad ssettoa NUUBBB tai>so. IHs. * An. ^"^^'I^^^^^y^^^^^dsus
W.VaJ
POLLSr T. QILIiELAND
97
the rates of ferriage at erery snch ferry
Rball be according to the laws tberato, w
far as the same are not altered 1^ or under
some provision of tbls chapter, or some act
of the I^slature hereafter passed. But if
any anch ferry, or any ferry that may be
hereafter established, be disused for two
years and six months, and any part of said
time be after this chapter takes effect, it
shall, by reason of such disuse, be Ipso fiicto
discontinued, without any Judicial or other
proceeding for that purpose.**
The last clause of tbls section, "without
any jndidal or other proceeding for that
purpose," was added by chapter 160, Acts
1882. Its evident purpose was to do away
with tlie necessity, after the time spedfled,
of Judicial ascertainment, by quo warranto
or other proceeding, that such ferry right or
franchise bad been discontinued or abandon-
ed. Disuse thereof for two years and six
months, as prescribed^ operates In law a
discontinuance or abandonmoit of such fran-
chise. Once there has been sndi disuse for
the period stipulated the discontinuance or
forfriture becomes complete, by operation of
law, and the right of the owner is gone, and
bis right to Interrene as contestant. In a sub-
sequent proceeding by another applicant for
a like franchise, la taken away; his ri^t
then Is no different from that of any other
citizen. Williamson t. Hays, 2B W. Va. 609.
But contestant In his answer alleges that
be Is still the owner of the Hutchinson ferry,
and that he has nerer ceased to operate the
same, himself or by lessees under him,
and that he has riilLt to interrene and op-
pose Oie establishment of the proposed fferry
by petitioner, and being sach owner, among
ofber defuses he affirms two propositions:
First, that as there Is a ferry about a half
mile above the proposed location, at Twenty-
fiftti Street, and one at Benwood, some two
m three miles below, the latter also owned
and operated by him, there Is no public need
or D«cesslty for the additional ferry at
Forty-third Street Second, that there Is
no showing of disuse or abandonment of hts
ferry, and tliat whetiier or not contestant
has by dlsnse discontinued or abaiulwed his
ferry, his right cannot be collaterally inquli^
ed Into, but (Hkly iqKm a direct proceeding,
as by quo warranto, or under section 12 of
said cbapter.
[1] On the flrst propoattlon the Board of
Ooonty Ocmmlssloners, and the ebcnlt court
on appeal, found as a fact, and we think on
competoit legal evidence, not including the
p^tlMW of dtlnna filed with the petition,
whltA were objected to, that there was pub-
lic need or necessity for a steam terry at
Forty-third Street Contestant was not op-
erating soch a terrj at that point ^Hia sfclfl
Ceny refexrad to had, u the eridence tends
to Aow, flor a time, beoi (^emted at a loss
to him, and tat most ot the time had yielded
him a mere nominal cental, and at the time
of the aivlicatkm was 1b fact yWdlng htm
78&SL-T
no rental whatever. It la unnecessary for
us to detail the evidence on which the find-
ing of the Board of County Commissioners
and the circuit court were based. It Is suffi-
cient to say that it fully supports the coa-
cluaiona reached, and we could not on well
established rules of pxactiesb rewse the
Judgment on tbls scota,
[t,4] The second pn^ositlon Is the cote
mainly relied on. As already Indicated we
do not think that where loss of the right has
bean Incurred, under section 1, quo warranto
or any proceeding under section 12 Is neoea-
sary. It wlU be observed that it is the dinse
of the £nncblaek and not the mental Inten-
tion to abandon, that works the discontin-
uance, or legal abandonment of the fwry.
The Hutchinson franchise, as the order
abow^ was to operate a steam ferry, and
the evidence shows that a steam feciy was
operated, with an appropriate wharf or land-
ing, and a bell for signaling, from about
the time of the gnmt by contestant's predeces-
sors up until July, 1898, wb^i be purchased
the same. Aftw Gilleland'a purdiase be
never opwated a steam ferry at that point
and the boat which Is said to have been con-
demned as unfit for use as a ferry was dis-
mantled, the engine and boiler removed, and
the boat and floats used in connection there-
with were permitted to float or drift away.
Thereafter only a skiff was operated at that
point, for the transfer of persons only, but
in the most indlCCerent manner, for most if
not all the time under leases to others, and
for three years preceding the application of
petitioner the skiff ferry was operated by
the witness Mrs. Hays, for two years under
contestant, for a nominal rental, but there-
after, and &om October 16, 1908, the end
of her second year, to Ai»il, 1909, the time
she gave her testimony, she had operated
the skiff in like mannw, re^^ardlees of Gille-
land, from whom she bad declined to ac-
cept a lease or contract The buslnees had
run down at that time, as she testifies, so
that it yielded only from forty to fifty cents
income per day, and this was the only evi-
dence of the exlstoee of any ferry at that
point at the time of petitloner'a application.
Ttae disuse of a steam ferry, the kind of a
ferry actually authorised, Is fully establish-
ed; and we think the evidence of intent to
abandon or disuse any kind of a ferry, except
as a mere sham, by operating in the Indiffer-
ent way shown a skiff ferry, and not In good
faith but to derive the public of the boie-
flts of the ferry orlgtaally established, is
fully shown.
If, thweforsk this wMa a prooeedlng by
quo warranto, or under section 12 of said
diapter, to declaza the ferry franchise of the
contestant at an end, we think the evidence
would satlaCy a Judgment vt oustw. Much
reliance la placed by amtestan^s eoonoel
on Douglass' Appeal, 118 Fa. 66, 12 AtL 884,
tor the proposition that dm niaUi^^mji^^|^^
98
78 SOUTHEASTERN REFOBTEB
(W.Va.
the skiff terry was, under tbe clrcnmstances,
a substantial compliance with the require-
meats of the statute^ and saved the ferry
from disnse, and dlscontintiance by operation
of law. That decialou was predicated npon
the fact that there was proof of no pnblic
demand for transportation, and no evidence
of bad faith to the atato or the pabUe. Here
the erldenoe la to the contrary. And as the
court below pertincsitly says, In Its opinion,
under our statute It la not left to the Jndg-
ment of the proprietor as to what kind of a
boat, or with what number of persons he
shall operate hla terrj. The court must
Its order granting the franchise m some sub-
sequent ord» preacrlbe the kind of boat to
be used.
[I] But Inasmuch as contestant denied dls-
continuance by dlanse. and set up In Us an-
swer an existing right to tbe Hutchinson
ferry, It la affirmed that the judgm»t bdow
Amounted to collateral attack on that fran-
chise, and that the court was btmnd to accept
without further Inquiry his claim of right
quoad this proceeding. But did the Judg-
ment and proceedings below amount to col-
lateral attadc? We think not On the in-
tervention of the petitioner, was the court
not bonnd to determine from tbe facts
whether he was such a person or stood In
snch relation to the subject matter of the
proceeding, as entitled him by such Interven-
tion to defeat the establishment of the pro-
posed ferry? We think It was. The effect
of the Judgment of the Board of Oounty
Commissioners and of the circuit court, was
not to declare a forfeiture or oust the con-
testant of any rights he had under the
Hutchinson franchise. Their effect was sim-
ply to hold that the contestant was not such
a person as had the right to oppose or de-
feat the grant to petitioner. This principle,
as we Interpret his opinion, was the one an-
nounced by Judge Tucker, In Trent t. Car-
tersTiUe Bridge Co., 11 Leigh, 621. That
was an injunction suit by the bridge com-
pany against Trent and others, to enjoin
them from operating a private ferry, to the
detriment and injury of the bridge company,
as alleged owner of an old ferry franchise.
The court below perpetuated the injunction.
Judge Tucker says: "I am clearly of opinion
that the decree should be reversed. Tbe ap-
pellees rest their complaint, and ask relief
in equity, npon two separate and distinct
rights and franchisee: 1. Upon their rights
as tenj owners; and 2. Upon their char-
tered rl^ts aa a bridge company. *Aa to
the first; It win not be necessary to rest my
opinion of tlielr pretensions, either upon the
ground of Jurisdiction, or upon the supposed
forfeiture of th^ finnchlse. That, it Is
admitted, can only be declared oa a quo war-
ranto, or some other sbnllar proceeding. But
whether the franchise be forfeited or not, it
baa bem ccmfessedly disused; and, oonsldov
Ing the qaestkm as enUrtiy distinct from
and without reference to the bridge, it ma$
be asked, whether the owner of a ferry, who
baa altogether abandoned the use of it, and
who has entirely cast off from himself tbe
duties Incident to hla privileges, can come
into a court of equity, with any ttUe to Its
countenance, aid or protection t His privi-
leges are given as compensation for the du-
ties and burdens imposed upon him; and
when he has utterly disused bis ferry, and
no longw performs 0ie consideration, what
claim can he have in equity to the enforce-
ment of exclusive rights? Nay more; u
from disuse of the ferry he can make no
profit from 1^ any violation of his franchise,
if it be injuria, at least Is not damnum. Will
a court of equity, then, which only interferes
upon the principle of preventing irreparable
mischief, interfere where the party sustains
no mischief at aU? It may, Indeed, weU be
doubted, whether even an action at taw could
be sustained by a ferry owner, who had
abandoned and put down hla own ferry."
Tbe inquiry in that case was as much col-
lateral as in this. The court- there determin-
ed adversely to the contentions of the peti-
tioners that they were the owners of a ferry
franchise, with right to prevent others from
operating a ferry on practically the same lo-
cation. That was not a direct proceeding to
forfeit the old right, but it was necessary in
that case as In this for the court to determine
the rlghta of the plaintiffs or contestant.
Contestant xwncededly had no monopoly or
exclusive franchise under the old Hutchinson
grant, and the principle enunciated In Wil-
liamson V. Hays, supra, and Ferry Co. v.
Bussell, 62 W. Ya. 356. 43 S. B. 107, Is, not
that a proprietor of a ferry franchise may be
admitted to oppose the establishment of an-
other ferry, simply to protect his pecuniary
Interests or right, but only to the ^tent that
that Interest Involves his ability to properly
and effldentiy perform his duties to the pub-
lic under his franchise. If he Is not per-
forming that duty and not exercising that
right in the Interest of the public, on what
theory or principle can he be admitted to op-
pose the grant of a tranchlae to another who
will serve the public? We know of no rule
or principle justifying such a position. We
think the Judgment below was right and
should be affirmed, and we will so ardsr,
POFFBNBABOBB, P. (dlsaendug). I mm
unable to agree with my Assodates as to the
result In this case and would reverse the
judgment In my opinion, tiie two basic proji-
ositione of the dedtfons are wrong, namely:
(1) That only a limited or qwdal ferry fran-
chise was held by Qilleland ; and (2) that he
had abandoned it for a period of two years
and so lost it by operation of law. I think
the grant of a right "to eatabllsb a eteam
ferry," by a court or trttinnal having power
to grant a ferry franchise and prescribe the
Und of boats or craft to be nsed In tha eater-
Digitized by VjOOQIC
UOORE T. MOOBE
99
else thereof, c<astltDteB racb a gnnt and
prescribes or requires the use of a steam
veesel In the exercise thereof at one and the
same time and In the same terms. The got-
eral terms of the order were adopted for mere
conTenienoe. I think the order carried the
right to transport passengers by skiff, when
the drcmnstancee required no heavier or
more powerful or expeditions craft, and re-
qolred the maintenance of a steam vessel for.
use when the circumstances donanded Its
use. The franc^ilse or privilege and the in-
strumentalities for Its exercise are natural-
ly different things and the statute treats
them so. I do not thlntc It contemplates the
grant of a special or limited right to ferry,
or a division of the prlvll^e among two or
more i>er8ons, a skiff ferry to one, a rope fer-
ry to another and a steam ferry to a third.
If this construction is right, there was no
abandonment for a period of two years, nor
perhaps any at alL I do not think the mo-
tive of operating the skiff In recent years Is
material. That travelers were transported
across the river with a skiff, In the exercise
of the ferry privilege and claim of title there-
to, effectually precludes the theory of aban-
donment, whatever the motive may have been.
To abandon within the meaning of the stat-
ute is to cease to use the franchise. Use of
it with some Improper motive is use neverthe-
less.
There was cause for revocation after no-
tice, as provided by the statute, but the coon-
ty court did not resort to that method of ex-
tinction of the old franchise, the only one pro-
vided by law, in the absenoe of abandonmmt
Cn W. Ta. 260)
MOORB V. UOORD.
(Supreme Goort of Appeals of West Virginia.
April 16, 1918.)
(Sifttatw If *k0 Oourt.)
1. OORTINUAIICX a e*>— aaOTTWDS^PECITIC
PKBFORHANCS.
Tbe bill, alleging, inter alia, purchase of
real es^te under a verbal contract with de-
f^dant, possesaiott, and improvementa by vir-
tue thereof, seek* specific performance of the :
contract averred. Defendanft demurrer there-
to being overrnled, on the last day of the term
next ensuing the inatitDtion of the suit, be by
answer, then filed, denied all material aver-
ments of the bill, and, for good cause abown by
affidavit, also filed, moved for a continuance,
which being denied, the court thereupon, and on
depositionB prevlonsly taken and filed by plain-
tift, granted the relief- sought. Tbe action of
the court tbereiui, under the circumstances,
fteU erroneous.
[Bd. Note.— For other cases, see Continuance,
Cent Dig. U 6-11. 16, 83; 86, 117; Dee. Dig.
i «.*]
(Additional ByUabu* hv Sditorial Btaff,)
2. Bpboifio PnroEHAHOB <H 42, 47*>— VXB-
BAI. COHTBAOn VOK Salc ot Laud— Fossbs-
nOR AND iHFBOVmfBim.
Courts usually scrutiniKe with care cases
wherein specific performance of the contract
for sale of realt? is sought, especially those in-
volving verbal contracts even when accompa-
nied by a i>art performance; and for posses-
sion or improvements to relieve from the rigidi-
ty thereby imposed and take the contract out
from under the statute of frauda, tbe possession
must be pursuant to and under' tbe contract of
purchase, and the improvements must be valu-
able and permanent
[Ed. Note.— For other cases, see Spedflc Per-
formance. Cent Dig, SI m. 129. 188, 182;
Dec Dig. H 42, 47. *1
Appeal from Circuit Court, Barbour County.
Bill by M. C. Moore against Emery 0.
Moore. From a decree for plaintiff, defoid-
ant appeals. Reversed and remanded.
Wm. T. George and Leroy V. Holsberry*
both of PhlUppi, for appellant Warren B.
Kittle, of PhlUppl, for appellea
LYNCH. J. The bill aUeges that, by vir-
tue of a verbal conbract for the purchase of
real estate plaintiff la entitled to a decree
requiring defendant spedflcally to perform
the same. It avera possession of the lands
under the contract, and Improvements thweon.
The record does not show the date of the
process to answer ; but it does show that It
was returned, duly executed, at May rules,
1910, and the bill filed and decree nisi there-
on at July rules, and defendant's appearance
noted thereat, but for what purpose is not
shown. The bill was set for hearing at Au-
gust rules. The plaintiff then promptly pro-
ceeded with the taking of depositions In
support of. the averments of the bill, which
were completed and filed In the clerk's office
August 31st Defendant by counsel appear-
ed and cross-examined the witnesses. The
first term of the court thereafter began Sep-
tember 27th, and ended October 6tb. Some
time during the term, the date not appearing,
defendant demurred to the blU. The court
did not rule thereon until the last day of the
term, and apparently after 10 o'clock at
night, because by the final and only decree in
the cause an affidavit was filed, indorsed:
"FUed October 6. 1910, at 10 o'clock p. m."
The court overruled the demurrer, whereup-
on defendant at once tendered his answer,
which the court permitted him to file, and by
which be denied the existence of the contract
averred, possession and Improvements there-
tmder, as well as other material averments
of the blU. He asserts that the [wssession
relied upon by plaintiff was aa tenant by suf-
ferance, and not under any contract of sale
or purchase, and that the improvements aver-
red in the bill were trifling, not exceeding $50
in value, and made out of timber taken from
the lands by defendant's permission. At the
same time, defendant moved the court for a
continuance of the cause, in order to afford
him opportunity to take proof in rebuttal of
that ofFered by plaintiff. In support of his
motion, defendant also tendered an affidavit,
which the court permitted him to file. This
motion the court denied, and refosed to con-
tinue the cause.
•Per other eases wm same topic and ssettoa NUUBBB la Dee. Mg. * Am. Dig. Kaj-Ho, Serlaa * Bf0*r iBtaw I
Digitized by VjOOV I
100
78 SOUTHEASTBBN BEPOBTBB
(W. Va.
Althongh connsel for both parties dlscoas
1q their brle& other questions arising on
the record* It not now deemed essential to
refer thereto or to discuss the same, except In
30 far as they relate to the sufficiency of the
bill on demurrer and to defendant's motion
for a continuance. The demurrer Is not en-
tirely without merit, althongh properly over-
ruled. There is therefore no error In the ac-
tlcm of the court thereon. But the conclusion
here reached la that the court erred In re-
fusing to grant defendastfs motton to oonttn-
ue the cause.
[2] Courts usually Bcmtlnlze with care cas-
es wherein specific performance of contracts
for the sale of real estate is sought and es-
pecially those Involving verbal contracts even
when accompanied by part performance — pos-
session and improvements. Gallagher v. Gal-
lagher, 31 W. Va. 9, 5 S. a 297; Miller t.
Lorentz, 39 W. Va. 160, 19 S. B. 391 ; McCul-
ly V. McLean, 48 W. Va. 625, 87 S. B. 659;
Knight V. Knight, 51 W. Va. 518, 41 S. B. 905 ;
BeU T. Whitesell, 64 W. Va. 1, 60 S. E. 879 ;
Pickens v. Stout, 67 W. Va. 422, 68 S. E. 354 ;
Plunkett V. Bryant, 101 Va. 814, 45 S. E. 742 ;
Martin v. Martin. 112 Va. 731, 72 S. E. 680.
Otherwise, such contracts are within the ex-
press terms of the statute of frauds. Pos-
session^ in order to relieve from the rigidity
thereby imposed, must be pursuant to and
under the contract of purchase. Gallagher v.
Gallagher, supra; Miller v. Lorentz, supra;
Woods v. Stevenson, 43 W. Va. 149. 27 S. E.
300 ; Land Co. v. Thomburg, 46 W. Va. 99,
33 S. E. 103. And the Improvements asserted
and relied on must at least be valuable and
permanent. Trifling Improvements or Inex-
pensive repairs vrill not avail. Gallagher t.
Gallagher, supra; Peery t. Dlllott, 101 Vo.
700, 44 S. E. 919.
[1] It cannot be said, under the circum-
stances detailed, that defendant purposely at-
tempted to delay the final determination of
the litigation. He could with propriety, and
perhaps did, rely upon the demurrer to the
bill. He did not know, and could not an-
ticipate, the court's ruling thereon. Imme-
diately thereafter his answer was filed. Of
course, the statute (section 63, c. 125, Code
1906) provides that "at any time before
final decree a defendant may file his answer,
but a cause shall not be sent to the rules or
continued because an answer Is filed In it,
unless good cause be shown by affidavit filed
with the papers therefor." The evident pur-
pose of the statute was and Is to speed all
litigated causes ; and this purpose can be im-
peded only for cause shown satisfying the
conscience of the court
In his affidavit the defendant says he was
advised by counsel, before the be^nnlng of
the term, that the local custom and practice
with respect to controTerted chancery caus-
es was to answer at the first term and pre-
pare for submission on the merits by the suc-
ceeding term, and that he relied on this In-
formation; also that If the cause is con-
tinned, he can, as he v«rily believes, produce
and obtain testimony, the effect of which
would In law entitle him to a favorable deci-
sion ; that he had no knowledge the cause
would be pressed for hearing at the first
term ; that his chief counsel was and contin-
ued absent from the state during the tak-
ing of plaintiff's depositions; and that he
jonly secured other counsd to appear and
cross-examine plaintiff's witnesses. He re-
lies on these facts In support of his motion.
In the case of Myers v. Trice, 86 Va. 8S5, 842.
11 S. B. 428, 430, it la said : "A continuance
may be granted not only for the absence of a
party or his couns^ from unavoidable cir-
eumstancea, but for honest mistake, or any-
thing amounting to a serious surprise ; and
if there is no suffldent reason to Induce the
belief that the alleged ground of the motion
is feigned a coatinaance should be granted,
rather than to seriously Imperil the Just dfr
termination of the cause by refusing It*
From the character of the case Itself, the pro-
ceedings therein heretofore detailed, and de-
fendant's affidavit not in any wise contro-
verted, the concladon seems fair and reason-
able that defendant was entitled to a con-
tinuance of the cause, and that It was error
In the circuit court to deny his motion, and
at the same time, in a final decree aa optoi
the merits, grant tbe rtfief inayed f ot In the
bin.
The decree of the circuit court is therefore
reversed, and the cause remanded, with leave
to the defendant to take and file his proof
pr^ratory to ft final submlaaion of tbt oanaa
on its merits.
CR w. Vs. in)
PAtJLI* T. PITTSBUBOH, W. & K. R. 00.
(Supreme Court of Appeals of West Virginia.
April 15, 1913.)
.(ByUabua ly tJte Court.}
1. CONTBACTS (§8 9, 108*)— VMDOB AHD PU»-
CHABKB (i 15*>— VAMDITT.
Ad oral agreement between vendor and ven-
dee, entered into at the time or ^rior to tlie
grant, though not expressed therem, whereby
tbe vendee agrees to pay, as farther considera-
tion therefor, the difference between the sum
stated in tbe grant and that thereafter paid by
tbe latter for other lots designated In the agtee-
ment the purchase of which tbe grantee then
bad in contemplation, and some of which he
did Bubseqaently pnrcbaae at an advanced
price, is not void for nncertaintyt want of con-
sideration, or as against puUle policy.
[Ed. Note.— For other cases, see Contracts,
Cent. Dig. §| 10-20, 498-603, 606, 507-511;
Dec. Dig. SS 9, 108;* Vendor and Parchaser,
Cent Dig. { 16; Dec. Dig. S 15.*]
2. Vendob ano Pubohaskb <J 312*)— Con-
tract—Conbtbdcti on— Action FOB Price.
It is not necessary that the vendor should
defer action to recover the difference in price
until the vendee has nurcbased all the lots des-
ignated, bat he may elect to rely on any one of
the purchases made prior thereto.
[Bd. Note.— For other cases, see Vendor and
Purchaser, Cent Dig. J 917 ; Dec. Dig. f 8i:i.*]
*9oT oUisr esMs sm sun* tople and section NUUBBR Is Dec. Die * Am. Dig. K^r-Ko. ^J^'^^j^"**
W.VaJ
PAUIX ▼. PZITSBUBaH, W. A K. B^CX).
101
I. TBNDOI AMD PmOHABEB ({ 814*)— AOTIOH
nw Price— DEOuaiLTXON.
A deciaratiDO which substaotially, tbough
not in technical terms, avers a promue by the
cmntee to pay the grantor, as further consid-
eration for the grant of land, the differoice be-
tween the sam actually paid therefor and that
thereaftw paid for other lots designated by
both, the purchase of which the grantee tben
bad in contemplation as necessary for his ass,
and some of which he did thereafter purchase
at an advanced price, is not defective on Be-
mnrrer for failure to allege a promise by de-
fendant
[Ed. Note— For other cases, see Vendor and
PDTchaMT, Cent TMg. H 82(M>2T; Deo. Dig.
I 814.*]
Brror to (arcnit Conrt, OtAo Oonnty.
Action by Lee 8. Fault against the Pltts-
tnn^, Wheeling ft Eentecky Railroad Com-
pany. From a Jndgmoit tor defeodant,
plain tier brlngB error. Herersed and re-
manded
Rnasell A Russell, of Wbeellnc for plain-
tiff in error. J. B. SonunerrtUe^ of WheeUng,
for defendant In error.
LTNGH, J. The plaintiff snes In aasump-
Bit to recover of defendant $6,000 damages
for breach of contract Succinctly stated,
the contract averred la that plaintiff, a mar-
ried woman, her husband Joining, conveyed
to defendant a lot in Wheeling, fbr f680
actually paid, with the further oral agree-
ment that in the event defendant purchased
any other of the lots described In the decla-
ratlou as contlgnous to or near the lot con-
veyed by her it would pay her as further
compensation the difference between $660
and the sum, whatever it mtf^t be, at which
defendant should purchase any one of the
other lots; the difference to be determined
by the price per front foot The breach al-
leged is that the defendant did purchase two
additional lots, one of Hazlett and another
of Driehorst, fpr which it paid Hazlett
$1,858.34 or $49.34 per front foot, and Drie-
horst $1,417.79 or $49.82 per front toot and
Its failiue to pay plaintiff anch additional
amii: Tb» lots are contained within what Is
denominated as the "strip,** which embraces
the lot tJie pnrdiafle of whldi defendant then
bad tn oontemplatlon as necessary for Its
use. An original and an amended declara-
tion were filed, to eacb of whlA the defisnd-
ant demurred, but assigned on the record no
grounds therefor. The court sostalned each
of the demurrers, and finally dismissed the
action with costs to daCmdant A writ of
error ensned.
In detondanrs telef, the Invalidi^ of the
oontraet averred la urged, tor the reason
that it is Totd tor uncertainty, want of con-
sideration, and as against public policy. It
la also aaserted ttiat the declaration is de-
feettre because of Its fsilnre to allege a bads
for tile determination of the amount claimed
thereby, and to aver a promise by defendant
to pay plaintiff the sum, recovery of which
Is sought
[1.2] The uncertainty urged is that the
prices of th« lots within the strip not yet
purchased by defendant are not ascertained,
because If purchased they may exceed those
paid Hazlett and Drlehont The contract
stated in the declaration arolies not to all,
but to any, of the lots that should be pur-
chased by defendant Having elected to
sue, as with proprle^ she might, for the
difference between the price paid her and
that paid either Hazlett or Driehorst she
thereby precluded herself from again suing
to recover any sum in exeeas of that now
claimed. She la bound by her election. Nor
Is this a matter or cause of which the de-
fovlant can reasonably complain. It innren
to its benefit
An agreement, though not In writing, made
by a grantee at the time of sale and conrey-
ance of land, to pay theretor a snm in addi-
tion to that expressed in the deed, is valid,
binding, and enforceable. Slcketaon r.
Saunders, 36 Me. 413, dted with ^roval
in Pierce v. Weymouth, 4ff He. 481. If a
contract designates a method whereby the
price can be definitely ascertained, even from
a contingency, it la not thereby rendered
uncertain. Where a contract for the sale
of a village lot provided that the price should
be the same as that paid for the first lots
which should be sold in th,e vldnlty, and lots
adjoining the one in question were sold be-
fore the commencement of the action, It was
held that the contract was thus rendered
certain. Cunningham t. Brown, 44 Wis. 72,'
78. If a purchaser of real estate agrees that
if he should not buDd thereon but resell It
he would pay the vendor the profits thereby
realized, the agreement Is not uncertain or
without consideration. Bourne v. Sherrill,
14S N. C. 381, 383, 65 S. 799, 118 Am. St
Rep. 809. The following authorltleB sustain
the validity of the agreement stated In the
declaration: Webner v. Bauer (C. G.) 160
Fed. 240; 1 ElUott on Contracts, 812, note
97; Michael v. Foil, 100 N. a 178, 6 S. Dl
264, 6 Am. St Rep. 677; OaldweU t. Sdwxd
Dtetrlct <a O) 65 Fed. 372; MUler T. Eendift
6B Iowa, 174, 7 N. W. 500; Lungerhausen t.
Crittenden, 103 Mich. ITS. 61N.W.270; Sea-
jcrave t. Olark, 177 Masa 93, 58 N. B. 288.
The authorities cited iKt defendant's counsel
(Borka Stam, 65 Mo. App^ 466; Oelston
Slgmnnd, 27 Ud. 834; Foster t. Bflnlng Oa.
68 Mich. 188, 86 N. W. 171; Pulliam t.
Schifflpt 100 Ala. 179. 19 South. 428; and
OnlTer v. Cnlver. 80 N. J. Law. 574) do not
announce legal propositions opposed to the
TiewB now asserted. In tact, tbey do- not
dlseosa the propositions now Involved.
Nor do the authorities relied upon by de-
fendant show the contract void aa against
pnbllc policy. The defendant Insists that
in effect the contract Is fraudulent because
aUMT eases cm ssms tsple sad ■eeUin NUMBKR in Dee. Dls- * Am. Die Key
102
T8 SODTHKASTEBN BOFOBTEB
the manifest purpose thereof was Its use as
an indncement to other lot owners to sell
and convey ttutt lots tor the price named In
pUntUTs deed. How plaintiff could reap
any boieflt or profit teem the Indncement on
others, If snccessfol. Is not obviously appar-
ent If her neighbors received the same
price, or prices at the same rate per front
foot, In what respect is her Interaat ad-
vanced? The anthorltles cited by defendant
hold that contracts actually fraudulent are
rold and nnenforceable. By what process of
reasonli^ Is that conclusion applicable to
tills case? It Is not admitted on demurrer,
nor does It arise upon the mere agreement of
parties tor an Increased ptie&
[3] The declaration Is not defective in ei-
ther respect asserted by defendant It does
deflnltdy aver a method by which the exact
sum demanded thereby la ascertainable, In
fact ascertained — the difference between the
sum paid plalntUT and the prices paid by de-
fendant for lots purchased by It within the
strip. The agreement, being valid, as evi-
dently it Is in view of (he anthorltles cited,
and the event on wblch it was contingent
having occurred, furnishes a basis from
which the jury may readily determine the
extoit of plaintiff's recovery.
The declaration also substantially avers a
promise by defendant to pay plaintiff the
additional compensation for her lot There
is, it is true, no express averment of a prom-
ise in the technical sense. But after stat-
ing in detail by clear and unambiguous terms
the contract for further compensation, de-
fendant's purchase of the Hazlett and Drle-
horst lots, and subsequently of other lots
within the "strip," the declaration avers
that thereby "It was provided that the said
defendant should pay to the said plaintiff
the sum of $660 as part of the consideration
for the property so to be conveyed as afore-
said, and also that the defeadant should pay
to the plaintiff any further amount which
might be necessary to make the price per
front foot the same as the defendant should
thereafter pay to the owners of any of the
other portions" within the "strip," and, fur-
ther, "that nnder and by virtue of the said
contract the said defendant became liable
to pay" the dlfferen(»; concluding with an
averment of the usual request by plaintiff
tlierefor and refusal by defendant The
contract Is stated throughout, not by way of
redtal, as in Mold ft Foundry Go. v. Steel
ft Iron Oo. e2 W. Ta. 288, 57 S. B. 828, bnt
as a positive agreement for farther ccnnpen-
satlon for plaintiff's property. This substan-
tially avers a prondse, sofilclent to comply
with the requirements of good pleading. To
hold otherwise would sacrifice sutntance to
dry, technical forms. In Wolf v. Spence,
89 W. Va. 4»1, 20 S. m 610. Cited, an action
to recover the value of certain machlneiy.
the infirmity in the declaration was its fail-
ure to «mc In cociffCfls terms an agreement
that the machinery would perform the work
for which it waa Intoided. In Wald Dlz-
on, 6S W. Ta. 191, 46 S. IL 918^ the dedara-
tion states no promise or agreonent by Dix-
on to r^mborse plaintiff for any of the work
for the value of whldb he son^t to recover
In the action. Bannlstor v. Goal ft Goke Co.,
63 W. Va. 502, 61 S. a 838. holds that a
declaration In assumpsit which avers that
defendant "agreed" to pay plaintiff a sum
certain for things done by him under con-
tract therefor, eufflctently alleges a promise.
And Stopper v. bfcGara, 66 W. Va. 403, 66
S. EI 608, holds that "generally, a count in
assumpsit, which shows that what is equiva-
lent to a promise .has taken place, Is good
without the use of the word promise"— citing
2 Enc. PI. ft Pr. 907; 1 Chit PL 801; Hogg's
PL & Forms, S 84.
For the reasons stated herein, the Judg-
ment of the circuit court Is vacated and an-
nulled, the' demurrer overruled, and the ac-
tion remanded for Issue and trliU.
(n W. Ta. W)
ROANB LUMBBE CO. v. LOVETT.
(Supreme Court of Appeals of West Tii^nla.
April 22, 1913.)
- (Byllahvs by the Court.)
1. Kaw Tbial (§ 40*)— GBOtTNDB— Ebbobs nr
iNSTBUCnONS.
A trial court may set aside a verdict for
errors in rulings upon instructions, though no
exceptions to such rulings were taken before
rendition of the verdict
[Ed. Note.— For other cases, see New Trial,
Cent Dig. SS 62-66; Dec. Dig. | 40.*]
2. Evidence <S 266*) — UmaiMmofm — Ad-
lasaiBXLiTt.
A declaration or utterance of a par^ to a
traQsactiou marking the time thereof and made
to a fltraoger to the transaction is admissible
in evidence to identify the time or fact, and,
if the testimony of the declarant reapectiag
the time or fact i> contradicted, to corrobo-
rate him; but such declaratioD Is not evidence
of the transaction itself or the date thereof.
[Ed. Note.— For other cases, see Evidence,
Cent Dig. JS 1051, 1052, 1054-1056, 1068-
1060; Dec Dig. S m*]
Error to drcnit Court Lewis County.
Action by the Roane Ijumber Company
against H. E. Lovett administrator. Jndg*
moit for plaintiff, and defendant brings er^
ror. Reversed, and Judgment for d^mdant
Williams, Scott ft tiontt, of Huntli^ton
and W. O. Bomett of Weston, tor plaintiff In
error. Brannon ft Bta there, of Weston, for
detoidant In error.
POFFDNBARO&R, P. Claiming the right
to recover f nmi J. T. Lovett $213.68 a« an
overpayment to him on account of purdiase
mon^ for lumber, or, In other words, for a
shortage In the lumber, t^ Boane Lumber
Company sued him before a Justice of the
peace and recovered a Judgmmt tot said
■For otiwr omm »— aaof toplo and seettoa NUMBBR in D«c Pig. * Am. Olg. i^'^*^.
w.vig
BOA»S LUMBER CO. T. LOTBTT
108
sum, from widA LoTett appealed: On the
trial Is the circuit court, thete was a verdict
for the defendant, which the court set aside.
lAt«r, after the death of LoTett and revlTal
against his administrator, the case was sub-
mitted to the court In lien of a jury, upon
the eTldence adduced upon the first trial,
which bad been made part of the record
for the purposes of an application for a writ
of error, by proper bills of exception, and
the court rendered a Judgment for the plain-
tiff. The administrator seeks rerersal there-
of and also of the order setting aside tlie
verdict, reinstatement of the rerSlct, and
Judgment thereon.
[1] The vital inquiry here Is whether the
trial court erred in setting aside the verdict
If It did, the order setting It aside will have
to be reversed, with reinstatement of the ver-
dict, and Judgment upon it for the defend-
ant win follow, together with reversal of the
judgment rendered tor the plaintiff. In sup-
port of the motion to set aside the verdict,
six grounds of error were assigned: Admis-
sion of improper evidence for the defendant,
rejection of proper evidence offered by the
plaintlfC, refusal to give proper instructions
asked for by the plaintiff, the giving of im-
proper instructions asked tor by tlie defend-
ant, insnfficiency of the evideace to sustain
the verdict, and violation of instructions of
the court in the rendition of the verdict
In the bill of exceptions, the court certified
the fftilure of the plaintiff to make any ob-
jection to the mllngs on Instructions or take
any exceptions thereto, until after the jury
bad rendered Its verdict If the court baaed
its action upon the mllngs respecting In-
structions, the failure to object or except
until after the verdict might not be material
upon the present inquiry, for a trial court
can no doubt set aside a verdict of its own
volition upon Its own motion, if it perceives
error in the Instructions whldi misled the
Jury. The province of the court goes beyond
action as umpire In a mere game or contest
between the parties litigant Its proper func-
tion Is to effectuate right and justice between
them within the limits of legal rules and
prindplea. Tbomp. Trials (2d Ed.) { 2711;
McGabe v. Lewis, 76 Mo. 301; Hensley v.
Davidson, 136 Iowa, 106, 112 N. W. 227, 14
Ann. Cas. 62; Weber v. Klrkendali, 44 Neb.
766; 63 N. W. 35; Railway Co. v. Donovan,
110 Mich. ITS, 68 N. W. 115; Bills v. Olns-
borg, 163 Mass. 143, 38 N. B. 800 ; Richmond
V. Wardlaw, 86 iMo. 313.
The court refused but one Instruction
asked for by the plaintiff, and that was ob-
vloosly bad. The bill of exceptions does not
show any instructions at all given for the
defendant If the plaintiff was prejudiced
by the giving of any erroneous instruction
against him so as to warrant the court in
setting aside the verdict, such instruction
should have been made a part of the record.
Five instructions given for the plaintiff seem
to bave sobmltted to the Jury fairly and fal-
ly its right to recover. Nothing perceived
In the rulings on instructions Justifies the
ruling on tb« motlcMi to set aside file rap-
diet
[2] ▲ supposed error in the admission of
evidence tor the defendant appears to have
been the ground upon which the court based
its action In respect to the result of the first
trial. This related to a minor and subsidiary
issue as to the time of the making of the
contract for the sale of the lumber; liovett
claiming it to have been made on Friday or
Saturday, November 13 or 14, 1905, notwltb-
standiog the receipt given by him was dated
on Monday. November 16, 1900. He claims
the voucher and rec^pt were prepared on Fri-
day or Saturday, and be began hauling the
lumber on Monday, bnt took the precaution to
obtain payment and sign the receipt on Mon-
day, before any lumber was actually delivered.
On the other bandtRln^rt, the officer of tbe
company through wbom the sale was made,
and one Moore, a purchasing agent, claim
the sale was actually made and tbe voucher
and receipt prepared on Monday. The main
Issue in the case was whether or not tbe
purchaser had tbe rlg^it, under the contract,
to relnspect and remeasure tbe lumber ; the
assertion of this claim being denied by the
defendant He bad bad the lumber inspected
and classified, for the purpose of a sale to
other parties, about two years before the
sale to plaintiff. Having the certificate of
that Inspection or a copy thereof, he claims
tbe measurements and classification of that
Instrument shown by these papers were used
in the negotiation of the sale to the plaintiff,
and adopted and made the basis of the con-
tract Plaintiff wholly denies this, and
Moore gave It as bis recollection that It was
tmderstood that the lumber was to be re-
graded. This conflict in the testimony in-
volved contradiction as to tbe time, places,
and circumstances of the negotiations. In
this connection the defendant was permitted
to testify to a declaration made to his daugh-
ter on Friday or Saturday that he had that
day made a sale of the lumber, and the
daughter was permitted to testify to the
like declaration and to fix the time by ref-
erence to tbe date of a confidential announce-
ment of tbe wedding of a friend, which she
was authorized to. make public on the fol-
lowing Tuesday evening. She was also per<
mitted to file a copy of the wedding an-
nouncement as a part of her deposition.
The obvious purpose of this testimony vras
to corroborate and sustain Lovett's testi-
mony as to the time and drcumstancea of
the consummation of the sale against the
contradictory testimony of Rlnehart and
Moore. The declaration was not offered for
thie purpose of proving tbe same to have been
made on Friday or Satorday; nor was It
competent evidence for that purpose. Nev-
ertheless, it had a natural tendency to cor-
roborate tbe statemoit of Lovett as to the
time of the sale. It ^,t,?ed^5f»(^taf(i)gle
101
78 SOQTHBASTIBIUf BBPOBTBB
dreimutuictt nstelnliis fht teattinoiiy of
I^vett agalAst tbe attack made apon It by
mu tesUffloiiy of plalntflTs witnesses. It did
this by Its tendency to prove hla credibility.
Bach evidence is not obnozlons to the hear-
say rule, nor excluded by It, becanse It Is
not testimonial evidence — ^not evidence ad-
duced for the purpose of proving the facts In
Issue. Wig. Bv. K ^0. 1791. In the for-
mer section the author says: "It often hap-
pens that a place or a time Is marked slg-
nlflcantly by an ntterance there or then oc-
curring, BO that the identification of It may
alone be made, or best be made, by permit-
ting the various witnesses to mention the ut-
terance as an identtfylng mark. The ut-
terance, not being used as an assertion to
prove any fact asserted therein, is not ob-
noxious to the hearsay rule, and may there-
fore be proved like any other Identifying
mark.** Declarations of this kind were ad-
mitted in Bex V. Hichardson, 2 Cox, Cr. 861;
Barrow v. State, 80 Ga. 194, S S. E. 64;
State V. Dnnn, 109 Iowa, 7B0, 80 N. TV. 1068;
Stewart v. Anderson, 111 Iowa, 829, 82 N.
W. 770; Barle v. Barle, 11 AUen (Mass.) 1;
Commonwealth v. Sqlllvan, 123 Mass. 221;
People V. Mead, 60 Mich. 229, 15 N. W. 95;
AguUno v. Ballroad Co., 21 R. I. 263, 43
Aa. 68; mil V. North, 34 Vt 616: Weeks v.
Lyndon. 64 Vt 640; State v. Young, 67 Vt
460, 32 Atl. 251; Wllklns v. Metcalf, 71 Vt
108, 41 Atl. 1035. The admlsslblUty of such
evidence for pui^)oses of Identification or
corroboration Is asserted In Railroad Co. v.
StlmpHon, 14 Pet 458, 10 L. Ed. 535; Thomp-
son V. Bank. Ill U. S. 529. 4 Sup. Ct 689, 28
I* Ed. 507 ; Card v. Foot 66 Conn. 369, 15 Atl.
371, 7 Am. St Kep. 311 ; Ross v. Bank, 1 Alkens
(Vt) 43, 15 Am. Dec. 664; Wetmore v. Mell,
1 Ohio St 26. 59 Am. Dec. 607; Craven v.
State, 49 Tex. Or. B. 78, 90 S. W. 311, 122
Am. St Bep. 799. The daughter's testimony
to this declaration, as well as the defend-
ant's, was admissible. Tbe witness also had
a clear and undoubted right to tet&c to tbe
marriage announcement and other dicum-
■tancea enatdlng her to fix the date of the
declaration. Neither this fact nor the dec-
laration itself were admlsatUe to prove that
a sale was made or the terms of the aale.
The sale, its terms and time, depended for
proof on oCber erideoc^ Imt the declaration
was admissible for conoboratlTe pnrpoaeB,
and the plaintiff had the ilipit to have the
court limit it to Kidi poiporc tty an inatmc-
tion to the Jury.
The verdict la not oontrary to the evidenoe
not to the Instructions of the court Tbe ev-
Idence adduced on the vital question whether
Lovett sold the lumber upon the inspection
made by Hill for the purpose of a sale to oth-
er parties which had not been consummated,
without any right tm the part of the pnr>
chaser to regrade it, under a dlfTerent set of
inspection rules, was oral and directly con-
ffletmg; It d^Tuded Qpon the oeiWtUtty of
the witneesea, and there were no controlling
facta admitted or clearly established by er-
ldenc& Under mcb. ctrcumstanees, a trial
court cannot properly set adde a verdict
Coahner v. Barrett 61 W. Va. 237, S6 8. B.
386; Fulton v. Crosby & Beekley Co., 67 W.
Va. 91, 49 S. B. 1012. Admitted facts seem
rather to sustain the testimony of Lovett
The lumber had been formerly Inspected and
a oertlflcate of in^>ection was given, showing
exactly the same number of feet and classifi-
cation as the voucher and receipt glvox by
Lovett to' the plaintlfr. On that basis the
lumber had been actually paid for and takMi
away several months before notice of short-
age or demand for r^aymeot on aceonnt
thereof.
Our conclusion Is to reverse the Judgment
for tbe plaintiff rendered on the 27th day of
May, 1910, and the Judgment of June 7,
1000, setting aside the verdict of the jury,
reinstate the verdict and render Judgment
for the defendant ta confwmlt; therewith.
LYNGB, J., absent
(ra W. Va. 828)
SHINN etaL v. O'OABA OOAL MINING CO.
(Supreme Court of Appealt of West Tlxj^nia.
April 22, 1918.)
(Byttaliu hp the CourtJ
1. Lm BsTATKs (i 28*)— Acnozr bt Lm
Tenart.
A life tenant has such interest as entitles
blm to sue for the forfeiture Imposed on an ad-
joining owner or tenant by section 7. chapter 79,
Code 1906, for mining for coal within five feet
from the division lines.
[Eld. Note.— For other cases, see lite Bstates,
Cent Dig. H 16* 21, 64-66; Deo. Dig. i 28.*]
2, LiTZ S^ATBS ({ 28*) ~ AOTIOH BT Lm
Tenant— JoiMDBE or BsuAinDBBiixH.
And sndi life tenant may Join with the
reversioners or remaindermen in such action,
and a declaration so joining them Is not bad on
demurrer for miajolnder of parties.
[Bd. Note.— For other cases, see Ufe Bstateo,
Cent DIr St 16, 21, e4r^; Dec. Dig. 8 28.«]
Brror to Circnlt Court, Harrison Onmty.
Action by fifary R. Shlnn and otbem
against tbe O'Oara Coal Mining Company.
Jndgmoit for defendant, and plalntUia iMrii^
error. Beversed and r^ered.
Davla & Davis and Osman B. Swarti, all
of COarkaburg, for plalntUb In error. John
Baasel, of Clarksburg, for defwidant in er-
MILLBBt J. The demorrer to the decla-
ration was sustained and there was a final
Judgment of nil capiat, to which tbe present
writ of error appliea.
PlalntlfCa, the life tenant and remainder^
men, joined In an action ot trespass on the
case to recovw of defraidant tbe penalty or
forfeiture imposed by section 7, chapter 78;
•For etkw eases MS same tople and iMtton NUlfBBR la Dee. Dig. * Am. Dig.
SEBON T. BLOOMER
105
Oo9» 1006. That Mctton pnyrldss: *Vo own-
er or tenant of any land eontalnlnc coal
Bban open or sink, or dig, excavate or work
In any ooal mine or shaft, on such land,
wltbln flTO feat of the Une dlTldlng aaid land
from that of another person or persona, with-
out file conamt, In wrltta^ of every person
IntMwated In, w havlnc title to, such adjoin-
ing lante In poesesalon, raverslon, or remaln-
der, or of the guardians of any euch persons
as may be Inftnta. It any poMRi diall vio-
late tids section, he shall fc»felt five hondred
dollars to any person Injured thereby who
may sue for the same."
[1] Two grounds of demnrrer have been
argued, and submitted, (1) that the life tm-
ant has no such interest as entitles her to
maintain the action; and. (2) that the life
tmant ai^ remaindwmen cannot join In
tatth acticm. A sufBdott answer to the first
pTQPosltton, It seems to as. Is that the act
enjoined cannot be done without the consent
In wtlttng Hi «Mry perton intere$ted fn, or
Xavinff title to snch adjoining lands in pot-
teuton, reveraton, or rei»a4nd«r, and that
the person trending shall forfeit five hundred
dollars to amy peraon liifured thereby who
may aue for the tame. Certainly the per-
Bona whom the statute assumes will be In-
Jnred by the forbidden act are those whose
conaoit In writing Is required as a condition
of doing tin thing otherwise prohibited.
These persons are ev^ one interested in,
m havtog title to, the land in possession, re-
verston, or remainder. Certainly a Ufe ten-
ant in possession Is within Uie idaln terms
and meaning of the statute, and one of those
whose eonsait is necessary, and who is en-
titled to sue. And we have decided that the
owner of a of coal without ownwshlp
of the aurfftoe Is also wltUn the terms of
the statutfc Oawthnq;* v. Fairmont Goal Co.,
68 W. Va. eOO, TO S. E. 606. mie language
of the law we think too plain for controver-
siy. Right and remedy are both given t9
«tatnto; neither depend on the mlea and
principles of the common law.
[2] But can the life tenant and remain-
dermen Join in the action? The court below
evidoitly concluded that they could not, on
inrindples of the common law. Suite for
mongful acte of a temporary Character Inr
terferlng with the benefldal use and enjoy-
ment of the property, and diminishing the
value of the possessory interest, can, in goh
eral. be maintained only by the tenant in
possession ; while on the other hand If the
injury be of a permanent nature causing
damage to the inheritance then the rever-
sioner alone can maintain the action. 1
Addlaon on Torts, 420, 480 ; 8 Bok Pract
«te; 2 Washburn «n Beal Prop^ section 161T.
But here nelthor the right nor remedy de-
pend upon the common law. BoOk are con-
fnred by stetnte, and the baiefldarles are
80 clear^ designated as to leave nothing tor
Inference or mmtroversy. Nor does the stat-
ute conferring rtgtxt and remedy neccsssTfly
imply any physleal invasion of the ben^lclal
use or enjoyment of the propMt^ by the tmr
ant in possession, ta actual damage to the
Inheritance, otl^ than a violation of statu-
tory rights, as a condition {wecedent to the
right of action. The injury contemplated
and giving right of action is the injury done
the parties by a violation of the statute^
Mapel V. John. 42 W. Va. 80, 24 H. E. 008,
82 L. B. A. 800, 67 Am. 8t Bep. 830. This
right of action Is not the ordinary qui tarn
action given by some statutes, but one con-
pled wiUt an Interest In the land or proper^
alfected, and not affecting the puMlc in gen-
eral. And while it does not otherwise neo
essarlly imply actual Injury done, the rl^t
is given as a protection to the estates and
intereste in land and to those persons de-
scribed who have been or may be actually
Injured by a violation of the statute, and to
no one else. We need not say whether less
than the whole nnmber Interested can sue for
the forfeit, but a fair construction of the
statute, we think, admits of but one recov-
ery, and as all have right, all may, if they so
elect, as they have in this case. Join in the
action, and there Is no misjoinder.
These views lead to a reversal of the Judg-
ment below and we will enter here such Judg-
ment as we think the court below should have
entered, overruling the demurrer and ruling
defendant to plead to IssnSb
XfTNOH, J., absent
(n w. Vft. su>
SEHON V. BLOOMBB et sL
(Supreme Conrt of Appeals of West Ylrirtnla.
April 22, 1933.)
(SvlMu» by the Oenrt.)
1. HnsBARn Ann Win (| 113*) — ScpAaATE
Bsuis OF Win-CoircinaxNT Rbmaindeb.
A contingent remainder, created by will
probated before the act establishing separate
estates of married women took effect, and vest-
ing thereafter in a woman who was married
before tlie act was paBsed, and so continued
until the vesting of the estate, ia ber separate
property.
[Ed. Note.— For other cases, see Husband
and Wife. Cent Dig. § 894 ; Dec Dig. S liB.*]
2, Taxation (J 609») — BsoBicFTioif nou
Tax Salb— Limitations.
Otae who claims the right to redeem land
from a tax sale, as the grantee of a married
woman and her husband, of land not her sep-
arate estate, is barred of his right at the end
of one year after it accrued to. him.
[Ed. Note.— For other cases, see Taxation,
Gent Dig. « U02-1406; Dee. Dig. | 699.*]
Appeal from Circuit Court,, Balel^
County.
Bill by. Edmond i^ehpn against George C.
Koomer and others. Decree .for defendants,
and plaintiff appeals. Affirmed.
Dig. K«-Mo.ij^^^4R^|^@g[
•For atlwr eassa SM same tople andsaetloa Ntn^BHBIaDM. Dig. ikAm.
106
78 SODTHEASTIDBN BBFOBTBB
CW.va.
(^mpbell, Brown A Daris, of HaDtJjigton,
and John EL Blake, of Madison, for appel*
lanb Mcdj^ery ft ^tteraon and McGinnls
Jb Hatdwr, aU of Becktejr, for appellees.
WILUAMS, 3. Suit hr Kdmond Sehon
against Oeo^ O. Bloomer and a nnmb^ of
otber defendants to redeem land In Balelgh
conntj from a tax sale and coDTeyance. The
cause was beard upon the 4)111, answers, and
general ^plications, and upon an agreed
statemmt of facts; and on July 11, 1911,
plalntUTa bill was dismissed, and he has ap-
pealed.
The deed to Bloomer, the tax purchaser,
bears date the 24th of AprU, 1870. The in-
terest sought to be redeemed Is the one-
seventh of one-third, or the one twenty-flrst,
undivided interest In the land which was
sold. PlalntlCT claims said Interest by deed
from Hannah Augusta Bowen and Thomas
BoweQ, her husband, bearing date the 26th
day of September, 1895. Mrs. Bowen Is the
daughter of Robtnson Stuart, and married
Thomas Bowen in 1866, and ever since then
has been living with her husband in the state
of Virginia.
Plaintiff contends that, at the time the
land was conveyed to him, his grantor had a
right to redeem, because she was under disa-
bility of marriage, and by virtue of section
30, c. 31, Code 1906, could redeem within one
year after the removal of her disability. As
her grantee, he claims that the right to re-
deem passed to him, and continues so long
as his grantor is under disability. It is es-
sential to determine, first, whether the estate
of Mrs. Bowen was her common-law or her
separate estate, because there Is no saving
in favor of married women In respect to re-
deeming their separate estates. If the land
was her separate estate, her right of redem[>-
tlon expired one year after the tax sale.
Mrs. Bowen Is one of seven children of
Robinson Stuart, Sr. She acquired title un-
der the will of her grandmother, Elisabeth
Stuart, made In 1859. The clause of the will
creating the estate in question reads as fol-
lows: '^nd. I will to Henry Stuart and
Thomas Bradford In trust for my son Bobln-
son Stuarts wife and his family, the tract of
land on which uiy said son now resides, also
the tract of land called the Henning place
and when Robinson cease to have a family,
to his heirs forever. One third of my Ral-
el^ lands aod the lands 4m the Nicholas
Road to be held In tmat by said trustee for
the same purpoee and to go in the same
way,"
[1] The land on which RoMnson Stuart
lived was Id Greenbrier county, but flie land
in question, the "Balelgh lands," Is made
subject to the same trust and Umltation. It
Is clear that the will Its^ does not create
a separate estate In the remainder. IHd the
married women's act, which took efl'ect
AprU 1. 1868, operate to make It Mrs. Bow-
en's B^nrato estate? The answer to this
question deprads upon ttie Ume when title
vested in b». If It vested before the statute
took effect, then the statute did not opemte
to convwt It into a separate estatew Wyatt
V. Smith, 25 W. Ta. 818; Central Land Go.
V. I^dley. 82W. Va.l84,88.]IL61.8I«.B.
A. 826, 25 Am. 8t Bep. 797: Pickens r.
Kniseley, 86 Va. 79d^ 15 8. D. 987; and
lAldley v. Oentral Land Go, SO W. Va. fiOS. 4
S. E. 705. The wOl created a freehold estate
In trust for Robinson Stuart's wife and bis
fftmlly. The purposes of the trust vt&n com'
pleted In 1876, wbea Boblnson Stuart CMoed
tohaveafamlly; his wlfbhaTing died in 1864.
But be was then living, and the llmltetKm to
"bis heirs" did not vest, If the word "heirs'-
was used by the testetrix In Ite technical
sense, because of the legal maxim, "Nemo
est hieres viventis."
In 1876 Robinson Stuart broDght a suit in
the circuit court of Greenbrier county against
the trustees and his seven children to have the
will construed. The circuit conrt held, In ef-
fect, that the chUdren of Robinson Stuart
took a vested estate in remainder upon the
death of the testatrix, and condrmed a parti-
tion of the lands amongst them. But, on ap-
peal to this court, the decree was reversed
and the partition annulled. The mandate
and opinion of this court in that case, we
think, determine that the remainder limited
to the heirs of Robinson Stuart was conting-
ent upon bis deatb. See Stuart v. Stuart, IS
W. Va. 675. Robinson Stuart was living when
that case was decided, and it does not ap-
pear that he Is not still allva The remain-
der was contingent, because his heirs were
not ascertainable until his death. The court
construed the words "his heirs" to mean,
not children or heirs apparent, but technical
heirs, those on whom the law casts the de-
scent of bis property at bis death. In discuss-
ing this point, at page 689 of 18 W. Va. of
the opinion. Judge Green uses the following
language: "It Is contended that this means
*to bis heirs apparent*; that is. to his then
children. But. after a careful consideration
of the question and of the whole will, I am
forced to give to the words Ills heirs forever*
the usual technical meaning of such words.
And to conclude that the meaning of the tes-
tatrix Is that on his deatb the property shall
go to such persons and In such proportions
as real, estete owned by him would descend
to such parsons, as at the death of William
B. Stuart, Sr., answer the descriptton of his
heirs."
It is Is true tiw learned Judge also says,
beginning at bottom of page 691 of 18 W.
Va., ttut the children of Robtnson Btnart
mre entitled to occupy the land In jdnt ten-
ancy between the time (tf the en^ng of the
trust, which was when be ceased to have a
family, tn 1876, and his death. Butbeseems
to have put that right nptm the ground of ,
their having inbwlted trom^r^helr mother
Digitized by VjOOglC
WISEMAN
107
the share which ibe took In fee under the
will, and not because of any estate which
the vrlll bad vested In them at that time. In
concluding bis opinion, at page 602 of 18
W. Va^ he says that at the death of William
R. Stuart, 8r^ the estate of. the children In
the lands will terminate, and, quoting hla
language: "In lieu of it will arise a sprlsg-
inc devise In favor of all persons, who would
be bein of irailam B. Stoort at his death.
Including these chlldroi, and, If any of them
be dead, their descendants, but including
also any other children of William B. Stuart,
Sr., whom be may bare living at his death."
Robinson Stuart Is the same as William R.
Stuart. His dath was a condition preced-
ent to the vesting of the remainder, and not
a condition snbseauent. divesting a vested
estate. Not having a vested estate In the
land at the time tlie statute creating sepa-
rate estates In married women took effect,
tbat statute operated to make It Urs. Bowen's
separate estate, whenever title thereto vest-
ed in ber. If Indeed It has yet vested ; a dr-
comstance depending i^n the death of Rob*,
lustm Stuart, a &ct not In evidence. And,
b^ng ber separate estate, tlie statute takes
away her right to redeem after one year
from the tax sale.
[2] But, if we should be vrrong in the fore-
going view of the case, there Is another
reason why, we think, plaintiff cannot now
redeem. Supposing It was Mrs. Bowen's com-
mon-law estate, and that she was under dis-
ability of marriage, which has continued un-
til now, still it is not she who Is seeking to
redeem. It Is her grantee who acquired her
right by deed from her in 1895, 14 years
before he brought this suit Can he claim
the benefit, for so long a time, of the saving
in her favor? We think not The saving
is a personal right and is Intended only for
those persons who are under disability and
named In the statute. The moment Mrs.
Bowen parted with her right In the proper-
ty, the disability was, in effect removed, and
all saving because thereof came to an end.
It was then the duty of her grantee, the
plaintiff, to act before one year from the
time of his conveyance expired. It Is true
the statute (section 30, c. 31) permits the
heir or assignee of one under disability to
redeem, but such right is given for one
year only "after the removal of such dlsa-
:>1IIty"; and the passing of title, whether by
grant or Inheritance, operates to remove the
disability. The right of property in the dis-
abled party, to protect which the saving was
made, has passed, and therefore there is do
reason for withholding the operation of the
statute of limitation. A grantor under dis-
ability can no more confer the personal right
given on account of disability, than she can
confer the disablUtr its^ It is purely a
personal, not a property, rlgb^ and there-
fore not transmissible;
We have f oond but' three dedlsions by any
of the eonrta of the conntry <m Uila qiUB-
ticm, two by the Supreme Court ct Iowa,
end one by the Supreme Gourt of Missis-*
slppl. Those cases construe statutes of the
respective states, both of which are like our
own. In respect to the suspension of limita-
tion upon right to redeem land from tax sale
by one under disability. They are directly
In point, but in direct conflict with each
other. The Supreme Cktnrt of UisEdsslppl,
the dedslott being rendered one Judge
only. In McNamara v. Balrd, 72 Bllas. 88^ 16
South. 384, holds that: "Tbe time for re-
demption accruing to the heir of an in&nt
begins to run from the time when the infant
would have attained his majority had he
lived." But the Supreme Court of Iowa
takes the opposite view. In two apparently
unanimous decisions rendered by a court
composed of five Judges, one in 1878 and the
other In 1892; after Uie personnel ot the
court bad wholly changed, that court held
that: "An action by the heir of a minor to
redeem from tax sale must be commenced
within one year after the death of the mi-
nor." Gibbs V. Sawyar, 48 Iowa, 448, and
McGee V. Bailey, 86 Iowa, 518, 58 N. W. 809.
In the latter case the heir wtio sought to re-
deem was himself an infant
Our conclusion Is that the right to re-
deem land from a tax sale, reserved by the
statute to a married woman In respect to
her common-law estate, passes to ber gran-
tee, but must be exercised by him within
one year after he has rec^ved his deed.
Decree is affirmed.
WISEMAN V. OBISUP ct aL
(Supreme Court of Appeals of West Virginia.
April 22, 1818.)
fByXlabvt by fha Court.}
1. Deeds ({ 97*)— Constbuction — Disoaip-
TION.
Of two descriptions of land in a deed, one
of which is capable of complete and exact ap-
plication to a subject-matter and tbe other opt
the former is accepted as correct and tbe latter
rejected as erroneous, unless something in the
deed, read to tbe light of tbe situation and dr-
cumstances of the parties, discloaes intent in-
consistent with such coQstmction.
[Ed. Note.— For otber cases, see Deeds, Cent
Dig. H 267-273, 434-447; Dec. Dig. f 97.»]
2. ReFOBUATION or iNSTBtrUZNTB <S 6*)-^
Deeds of Mabbud Wouen.
In tbe absence of statutory enlargement of
tbe common-law powers of married women, re-
specting dispositions of their real estate, equi-
ty will not reform the deed of a married wo-
man 80 as to make tt include land it should
have embraced, but by reason of mistake, did
not.
[Bd. Note.— For other cases, see Reformation
of Instruments, Cent Dig. S| 5-19 ; Dec. Dig. §
6.*]
& Husband and Wifb (i 187*)— Bxfobiu-
TioN OF iNSTBuifENTS— Deeds bt Mabbied
Women— Vaudixt.
Notwithstanding the married woman stat-
■ntes of this state, the contractual powers of
O
•VW other OMM SM nm taplo and iflstloB NUUBBR In Dm. Dlf . * Am. JHs. Kqr.tei^MrtMi A
108
78 SOirrHBASTKBN BBFOBTBB
married womea respectinfr eouTeraaee of their
real estate are limited In the exerctee thereof to
V particular and exclasife mode and quoad such
estate they hare not the contractual powers of
femes sole, wherefore equity will not correct a
mistake lo the deed of a hasbaod aud wife, con-
veying only land of the former, so as to make it
include lands of the tatter, in the absence of a
written contract for the sale of her land, ex-
ecuted In the manner prescribed by the statute.
Note^For other tssfls. see Husband and
We^ Cent Dig. i| 722. 728; Dee. Dif. |
Aiveal from drcnlt Court, Roane County.
Bill by Henry A. Wiseman i^nst Cyrus
A. Grisllp and othus. From a decree for
plaintiff, defendants appeaL Reversed, and
Ull dismissed.
Walter Pendleton, of OrantsviUe, and Xhos.
P. Byan, of Spencer, for appellants. J. M.
Harper and Geo. F. Cunningham, both of
Spencer, for appellee.
POFFENBARGER, P. The bill flled. In
this cause, for reformation of a deed, so as
to make It Include 50 acres of land, alleged
to have been Included In the contract of sale,
but admittedly not included In the deed,
proceeds upon two alternative theories: Eq-
uitable title in the male defendant, by reason
of his alleged purchase of the additional land
claimed, or title in the female defendant, a
married woman, and a contract of sale there-
of on her par^ with Intent to Include it in
the deed and a rl£^t of reformation against
her M as to obtain the benefit of the alleged
contract. The former ttieory rests upon the
contention that the Judicial sale at which
C A. Crlallp became purchaser Included two
tracts of land, one of 200 aem and another
of SO acres* under a deslgnatlou of one tract
of 200 acres; there having been a previous
sale of 16 acres cot of tlw 200 acres, and
one of 86 acres, not shown to have come out
of the 200-acre tract or the SO-acre tracts but
snj^Ktsed to have been taken out (tf one fa
the other of them. The qnestloa thns pre-
sented is title oonstmctlon €ft the decree of
sale under which C A. Gri^ purchased,
viewed in the light of the decree confirming
It and such other portions of the record of
the suit as are available; practically all of
the papers having been lost or destroyed,
posrtbly destroyed by Are. The 60-acre tract
and the 200-acre tract were conveyed to
Lemael Grisllp on Decunber 2, 186S, the for-
mer by Abner Suttle and. wtfft and the lat-
tec by BU Perkins and wlf& They were ad-
joining tracts and seem to have been parts
of a larger tract of 400 acres. They are
known, respectively, as the Suttle tract and
the Perkins tract On April 13, 1880, Lemuel
UrisUp conveyed to his son, John L. Crialip,
two tracts of land, containing, respectively,
Ld acres and 36 acres. Admittedly the l6-acre
parcel was a portion of the 200-acre Perkins
tract; but U does not aniear from what land
the 86 acres was taken.
On ttie 22d day of October, 1880, Lemuel
Crlsllp executed to B. F. Armstrong, trustee,
a deed of trust, conveying to him by metes
and bounds the Perfclna tract of 200 acres in
trust to secure a debt to V. 8. Armstrong
and W. W. Biley, execntore of the will at
L. C Stewart, deceased. This deed of trust
did not include the Suttle 50-acre tract On
the 10th day of October, 1883, Lemuel Cria-
lip executed a deed by which he conveyed
to his daughter, Margaret J. CrisUp, certain
lands, describing them as follows: "Being the
same land conveyed by Ell Perkins and wife,
recorded in Book No. 2, page 540, and Abner
Snttle and wife in Book No. 2, page S39, to
said Lemuel Crialip, party of the first part
except ttie land conveyed to John L. CrisUp
by the said party of the first part heretofore
containing about 16 acres to the place of
beginning. " The original deed is not pro-
duced, and it is said it cannot be found. The
description is taken from an attested copy
from the deed book In which it was recorded.
As originally recorded, the deed, although
professing to convey the two tracts of 200
acres and 50 acres, purported to convey only
200 acres, and, by an erasure and alteration
made in the deed book, it purports, as re-
corded now, to convey 250 acres. When, how,
and by whom this alteration was made is
not shown. There Is no proof of the allega-
tiou that It was done by 0. A. Crisllp, and he
denies all knowledge of It The alteration
may be a mere correction of an error In re-
cording the deed. However, the deed un-
donbtedly conveyed to Margaret J. Crlsllp the
Perkins 200^cre tract and the Suttle 60-
acre tract whether they were described as
containing In the a^egate 200 acres or 250
acres. In 1885 Heed and Peebles, Judgment
creditors of Lemuel Orlslip, Instituted a suit
In equity against him, hla codebtor, J. B.
Ward, and othets, to subject the land of the
said Crlsli^ including that conveyed to Mar-
garet J. Crlslli^ to the payment of the Judg-
ment
The cause was referred to a commissioner,
who reported that the deed of trust held by
Armstrong and lUley constituted "the first
Uen on tiie tract of 200 acres of land men-
tioned in the deed of Lemurt Crisllp toB. F.
Armstrong, trustee, bearing date the 22d day
of October, 1880;" and which was "filed as
ICxhiblt No. 6 in" the "cause, and also being
the tract of 200 acres of land mentioned in
the deed of Lemuel Crlsllp to Mar^ret J.
Crlsllp, bearing date on the lOUi day of Oc-
tober. 188S, and being Exhibit No. 1 flled
with the v»pen of" the "caus^' ; that plaln-
tilEs' Judgmrait was the second lien In priori-
ty on the 200 acres of land and the first lien
on a tract of 20 acres mentioned in the deed
from Lemuel CrisUp to M. J. CrIsUp, bearing
date January 1, 1886. He further reported
a debt due to J. A. a. Yandalev secured by a
deed of trust, as constltntlng' a first lien on
O
•Vor etlm easM ■•• same and section HUHBBB m X>«s..Dlg. * Am. DISi K^f^ndBM^
WISEMAN
T. CRISUP
109
a traet of 118 acres of land and a debt due
to A. L. Vandale, secured by a deed of trust,
as a second Uen on said 118 acres, and tbe
plalntUTs Judgmoit as th« third Uen on
tbat tract. H« fuctber found and reported
tbat the consideration of the couTeyance to
Mai^^aret J. CrlsUp of Octobw 10. 1883, was
her Bssomptlon of the debts and UablUttee
of the firm of CrlsUp and Vandale, and all
debts and mortgages and llabilltiea of the
said Lemuel Crlslip. This report was con-
firmed and a decree of aale. condltioDed on
nonpayment of the debts by Lemuel Crlslip or
some one for blm, was entered In the follow-
ing terms: 'Tb&t J. Q. Schilling and Geo. F.
Connlngham, who are hereby appointed spe-
cial commissioners for that purpose either of
whom may act, shall s^ the tract of about
20 acres of land mentloDed In Exhibit Na 2
of the papers of this cause and the tract of
200 acres of land mentioned In Exhibit Na 1
of the papers ta thls.cansc^ and Qie tract of
118 acres mentlmied In Exhibtta Noa 6and 7
of tlie papers In this cavseL * • • such
sale to be made In the following order: The
tract of about 20 acres of land to be flist of-
fered and Bo^ and If that does not bring
oiongh to pay off and dladiai^ amounts de-
creed the plaintiff, principal. Interest, and
costs, then the traet of 200 acres of land
shall be next offered for sale and sold, and
If said traet of land shall not bring enough
to pHy off and discharge and satla^ the
amount decreed to B. 8. Armstrong and W.
W. Biley, executors, etc., and aUo, together
with the proceeds of sale of the 204cre tract,
pay off and discharge the amount decreed to
the plalntifb, then the tract ia 118 acres
Shan be next ottaeA and sold.** At the sale
onder ttils decree a A. CrlsUp became the
pnrcbaser of the 20O4cre tract of land at
the price of 91,700 and the 20«cre tract at
the ptiee of $^ For some reason the 118-
acre tract seems not to have been sold, and
there Is no reference In any of the decrees
to th^ 60-acre tract eo nomine.
Crlslip, the purchaser of the 200-Bcre tract,
took no deed for It He subsequently sold
and conveyed to Wiseman, and Geo. F. Cun-
ningham, one of the commlsBlonera who made
the sale, Joined Id the deed to Wiseman,
though J. G. ScbllUng alone had been direct-
ed to execute the deed on payment of the
purchase money. The deed conveys only the
Perkins tract ^Hseman claims CrlsUp sold
him both as containing atMut 200 acres, and
has sued for reformation of the deed. The
court below, granting the prayer of his bill,
reformed the deed so as to make it include
the Suttle tract
[1] Assuming the deed from Lemuel Crls-
Up to Margaret J. CrisUp, dated October 10,
1883, to have been at first correctly recorded
and to have described the land thereby con-
Teyed as containing 200 acres, as and for the
aggr^te residue of the Perkins 200-acre
tract and the Suttle 60-acr« tract, as con-
tended by counsel for the aK>eIlee, we have
thus far some foundation In the record for
the view that the circuit court nuiy have In-
tended by its decree a sale of such residue
of such 200 acres, or, to be more accurate,
we have some evidMice of Intent to decree
su<± a sale The deed from Lemuel Crlslip
to Margaret J. CrlsUp is not, however, the
Instrument by which title was itassed to Cy-
rus A Orisllpb The muniments of title im-
mediately Involved are the decree under
which he purchased and the confirmed sale
thereunder. The decree describes the tract
of land ordered to t>e Bold as the tract on
whtdi Armstrong and lUIey, executors, had
their deed of trust, and tbat was locontrover-
tlbly the Perkins 200-acre tract only. The
land ordered to be sold is further described
as being the 200 acres of land mentioned in
the deed from Lemuel CrlsUp to Margaret
J. CrisUp, filed in the papers In the cause
as Exhibit No. 1. That deed may be read as
havlne described two 200-acre tracts; the
Perkins tract conveyed to Lemuel CrlsUp
and by him subsequently conveyed to Mar-
garet J. CrisUp being one, and the aggregate
residue of the two tracts conveyed by Lemuel
CrlsUp to Margaret J. CrisUp described in
that deed as containing 200 acres. If the
land decreed to be sold was the 200 acres
described in the deed from I^mu^ CrisUp to
Margaret J. CrisUp by reference to the deed
to Lemuel CrisUp for the Perkins tract, then
the decree correctly recited, found, and adr
Judicated that the Armstrong and BUey deed
of trust was a Uen thereon, but if the 200
acres referred to in the decree was 200 acres
composed of the residues of the Perkins tract
and the Suttle tract, defined as one, the
Armstrong and Riley deed of trust was not
a Uen on the whole thereof, and the recitals
of the decree, its finding and adjudication,
were wrong. Moreover, the Reed and Pee-
bles judgment would have beea the first
Uen on the Suttle tract instead of the sec-
ond. If, on the other hand, the 200-acre
tract mentioned in the decree and ordered
to be sold is regarded as the Perkins tract
only, the decree is consistent In aU respects,
for the Armstrong and RUey deed of trust
was the first U«n oa that tract, the Reed
and Peebles Judgment was the second lien
thereon, and it bad been conveyed to Mar-
garet J. CrisUp by Lemuel CrisUp by the
deed of October 10, 1883. Thus we have two
descriptions, one of which corresiKmds ex-
actly with a subject-matter and the other of
which does not In such cases the rule of
law Is plain. The description answering or
capable of full and comi^ete appUcatlon to
the subject-matter and therefore apparently
correct must be accepted and the erroneous
one rejected. "If there Is any land wherein
some of the demonstratlODS are tme and
some false, only those lands Shall pass where-
in the demonstrations are true, or. In other
words, ^where the grantor In a deed owns .
lands which comply wlth[jdH, j^n^g^®!^ [e
110
78 SOUTHKASTEBN REPORTER
(W.Va.
of tbe description, the deed passes title to
tbose lands only, altbongh It may appear
that the grantor intended other premises to
pass also, which were incladed within only
a part of the description.'' 4 A. ft E. Bnc. L.
789. Barboar et al. v. Tomi&ins, 68 W. Va.
588. 62 S. E. 713. 8 L. R. A. (N. S.) 71S.
"The description the most certain Is to be
adopted where two descriptions In a deed do
not agree." Devlin on Deeds, | lOlSd. To
the same effect see 13 Cyc. 630.
That in the conveyance by Lemuel Crislip
to Margaret J. Crislip the latter assumed
the payment of the Indebtedness of tbe for-
mer and the firm of which be was a member,
as consideration, la a circumstance relied
upon as conflicting witb the conclusion here
announced. It Is, however, somewhat remote
and clearly inconclusive. The decree deals
with one 200-acre tract of land, treating it
as the tract mentioned In the deed from
Lemuel Crislip to B. F. Armstrong, trustee,
and also as Oie tract of 200 acres in tbe
deed from Lemuel Crislip to Margaret J.
Crislip. There is but one 200-acre tract of
land which answers the description, and that
la the Perkins tract It is also tbe only tract
whidi corresponds with other recitals and
adjndlcatlong found In tbe decree. There la
no description by metes and bounds nor
otherwise than by reference to documents,
and this description so clearly defines the
land sold as tbe Perkins 200-acre tract that
mere extraneous evidence and circumstances
cannot be permitted to overthrow It. The
decree had not enforcement of payment of
the consideration for its primary object The
purpose of the suit was the enforcement of
Hens independent of the agreement to pay
debts, and that agreement did not in any
way affect the validity or relation ot the
liens.
[2, 3] The tlUe to the 50-acre tract of land
being thus found to be in Margaret J. Cris-
lip, a married woman, the remaining In-
quiry is whether or not reformation of the
deed can be had as to her. She Joined her
husband. 0. A. Crislip, in the deed to Wise-
man conveying the Perkins tract That deed
conv^ed none of her land. It conv^ed only
a tract of land, the equitable title to which
was in her husband, G. A. Crislip. She en-
tered into no written contract of any kind
Or character for the conveyance of any ot
her land, onless the deed of the husband in
which she Joined can be considered as sadi
contract All that is relied upon In this
connection is an alleged verbal contract of
sala A married woman cannot bind herself
to convey her land in that way. Simpson v.
Belcher, 61 W. Va. 157, 56 S. B. 211 ; Amick
V. ElUs, 63 W. Va. 421, 44 S. E. 257; Rose-
oour V. Rosenour, 47 W. Va. 554, 35 S. E.
918; Moore r. Llgon, 30 W. Va. 146, 3 S. B.
S72. Nor if It is deemed to have been in-
tended to convey her land, bnt not to have
done so because of a mistake, can reforma-
tion thereof be had against her, anleM the
recent married woman's statute has altered
her status In this respect "Although the
courts have entertained different views as
to whether or not a suit to reform will Ue
as against a married woman, it is now
pretty well settled that, In the absence of
power conferred by statute putting a mar-
ried woman on an equal with femes sole as
respects property or caparity to contract,
a mistake in a written Instrument wilt not
be reformed as against them." 34 Cyc. 959.
This text is sustained by Martin v. Hargar-
dine, 46 lU. 322; HutcUngs v. Huggins, 50
111. 20; Building Ass'n v. Scanlan, 144 Ind.
11, 42 N. E. 1008; Shroyer v. NickeU, 55
Mo. 264; Bank v. Schmidt, 6 Mont 609, 13
Pac. 382; Carr v. WlUtams, 10 Ohio, 305, 86
Am. Dec. 87; Purcell r. Qoshom, 17 Ohio,
105, 49 Am. Dec. 448 ; Petesch v. Hambacb.
48 Wis. 443, 4 N. W. 565; Conrad v.
Schwamb, 53 Wis. 872, 10 N. W. 395 ; O'Mal-
ley V. Ruddy, 79 wis. 147. 48 N. W. U6, 24
Am. St Rep. 702. See 42 Ceat, Dig. S 114.
The married woman's statute in this state
has not changed a married woman's status
in respect to capacity to convey her real es-
tate. Some of the dedslona already cited
were rendered after the passage of that act
She cannot convey except In the manner
prescribed by statute ; nor can she bind her-
self to convey, except by a contract execnted
and acknowledged In tbe statutory form pre-
scribed for bar acknowledgment of deeds.
By an express provision of section 3 of
chapter 66 of the Code, amending diapter
109 of the. Acts of 1891 and chapter 3 of
the Acts of 1893, her power of disposal over
her real estate is thus limited. Nothing In
said chapter, as amended by the recent acts
here referred to, manifests any intent to &a.-
large her powers respecting her real estate.
She may make contracts binding her ratate,
but the provision relating to her power ot
disposal of her separate real estate Is the
same as it was In the act of 1866. The
present statute makes a Judgment at law
against her a lien on her land, and thus
varies and extends remedies against her, but
this does not put her on an equal foot-
ing with femes sole as to her lands. Former-
ly It was necessary to proceed In equity to
charge her separate estate with her debt,
but she could contract debts for which her
separate estate was liable to be so charged.
Radford v. CarwUe, 13 W. Va. 572. Such
variation and extension of the remedy does
not enlarge her contractual powers. This sec-
tion of the statute must be read In connec-
tion with the provision of section 3 to which
reference has been made and In subordina-
tion thereto.
This conclusiou harmonizes with vievra ex-
pressed and principles stated in Kellar v.
James, 63 W. Va. 139, 142, 59 S. E. 939, 940
(14 L. R. A. [N. S.] 1003), a case Involving
Uie construction In general of the married
woman's statute. In that ^«ase we said:
••The Ubwal rule i9|it^994^ni^f@CMide-
W.Va.)
TOIiLEY T.PBA&IB
111
qtdres tbat a. statute be lo enforoed ts to
carry Into effect the will of the Legialature
as expressed In the terms thereot and give,
not BtlntedlT or niggardly, bnt tnOy and
genarondy, all the statute purports to give.
Tills stops fiur abott of carrying tfae statute
to purposes and object entirely beyond those
mmtioned in it One object of these stat-
utes Is'to enable a married wtnoan to have
the absolute, free, end unrestrained control
of bar property and power to make contracts
respecting It and to vindicate ber property
and contract rights by action in the conrts
of the state as if she were a feme sole. For
the accompllahment of these purposes, the
statute should be liberally construed. She
Is subjected, by this same law, to the re-
ciprocal right extended to others to sue her
In the courts as if she were a feme sole.
And, for the eflMtuatlon of this purpose, the
statutes should be liberally construed. So in
respect to all the other rights and liabilities
expressly given and Imposed by this law.
The evils intended to be suppressed aiid tfae
punmses and objects to be promoted are an
maiti(aied in the statutes, and the rule of
liberal construction requires no more than
tbat fbey shall be so interpreted and ap-
plied as to soppreas tlie named evils and
effectuate the spedfled purposes and ob-
jects. It does not authorize the court to
add other supposed evils, purposes, and ob-
jects."
As the tittle to the land In controversy is
beld by Mrs. GrlsUp, a marrlsd woman, liv-
ing with her husband, against whom refor-
mation of the deed ao as to Include it can-
not be decreed, the decree complained of
■ mnst be reversed, and the bill dismissed,
trlth costs.
WILUAHS, J. I concur In the declsl<m
for the reason that the description at the
land In the deed embraces no part of the
wife*s land. There having been no previous
written cmtract of sale by tfae wife, ttiere
is no evidence tbat it was faer Intention to
cmvey any part of her land. An oral con-
tract by a married woman for the sale of
her land is void.
But I do not agree to the limited purpose
and effect whldt Uie oirinlon seems to give
to section 8, c. 66, Code 1906. That stotute
empowers a married woman to contract re-
specting her land, and to convey the same,
but prescribes the manner of faer dcdng so.
The limitation is upon tfae form or. manner
only of executing ttie contract, not upon its
effect and tfae rlgfats of tfae contracting par-
ties, wfaen propwly executed. Zt must be
in writing and be ^gned by the husband, un-
less she Is llviiv separate and apart from
faim. But, if it Is executed In tfae manner
prescribed, it is as binding upon tfae con-
tracting parties, and Is subject to the same
remedies for reformation and spedflc per-
formance, at the suit of either contracting
party, as tf It had been made by a man or a
feme sole. Because the statute says she may
contract (tfaat is, she msy make an execu-
tory, or an executed, contract) "In the man-
ner and vltb the Uke dteet m if she vers
munarried." Her owtract, executed in the
manner presctibed, confen tfae same rlgfata
and Is susceptible to the same remedies as
like contracts executed by unmarried women,
else it would not have "like dlect." Of
course, if the requirement of tiie statute
re8i»ecting fonnallty of execution, has not
been compiled with, the courts would have
no power to supply snch ondssioo, because
to do so would be to make a contract But
If a married woman, faer fausband joining,
baa executed a contract for tfae sale of her
land, and sfae tfaereafter follows it np by ex-
ecuting a deed In wfaicfa faer fausband jtdns,
and the deed happens not to conform to tfae
contract, or if she has executed such a con-
tract, and thereafter refuses to comply with
It by executing a proper deed* there is cer-
tainly no reason, satisfactory to my mind,
why equity should not correct tfae deed in
the one instance, and eompd its execution,
in the otfaer, Just as in otfaer cases. Any
other view of the statute would encofarage
the commission of wrongs by shielding tfae
^udulent and erroneous deeds of married
women and by converting their contracts
into options. The Leglslatnre colainly had
no intention that the statute should have
such an effect
The great welgfat of autfaoritles from otfaer
states, construing dmilar statutes, tfae terms
of some of which are less eomprefaoialve
tfaan oura respecting the contractual rl^ta
of married women concemii^ tfadr sei«-
rate estate In lands, supporte this view.
See the fbUowii^: Lewis v. Ferrla (N. J.
Cai.) 60 Atl. 680; Stevens v. Holman, 112
Cal 84S, 44 Fa& 670, S3 Am. St Rep. 216;
Herring v. Fltts, 43 Fla. 64. 30 South. 804, 90
Am. St Rep. 108 ; Hamar v. Ifedsker. 60 Ind.
413; Snell v. SneU. 123 III 406, 14 N. B.
684, 6 Am. St Rep. 626 (but tfae Illinois stat-
ute is broader tfaan oura); Gardner t.
Moore, 76 Ala. 884, 61 Am. Rep^ 464 ; 26 A.
&B.B.L.0&; 34Gyc.96a
{72 W. V«. JZl)
TOLLEY et al. v. PEASE et aL
(Snpieme Court <rf Appeals of West TIrglnls.
April 22, 1013.)
fSvUabm hv t\e Court.)
1. BOUNDABIES (i 43*) — ESTABLXSHUirT —
JU DOMENT— DlSCLAIHXB.
Where In ejectment the Issae is the location
of the tme dlvlsioo line between the parties,
and defendant enters a disclaimer of all beyond
a fixed line designated on the map of tb« offi-
cial aurreyor, upon a rerdict aimpl^p.for defend-
ant the court may properly enter judgment es-
tabliehing as the true divieion the line beyond
which defendant disclaimed.
[Ed. Note.— For other cases, see Bouodaries,
Cent Dig. t 208; Dec Dig. | 43.*]
laMMiBStapto and awtlon N0MBBR la DM. Dll. * Am. Dig. KiT'
78 SOTTTHIfiASTBRN BBFOBTEB
Z BoVirDABm a 41*) — BRABUBHHBin ~
Fmxowirs Godbseb aud DiBuncn.
Thoash In ejectment parol evidenoe U
■ometimea admisflible to prove marked treea
wUcb are not in the coarses or termini of linea
to be the trae lines intended, yet where the deed
idainly calls for tbe lines by courses and dis-
tances, and dlstinctlj for stakes, not marked
trees, as the termini thereof, and there is no
anch approximation thereto in the coarses or
the lenMhs of the lines soaght to be established
br marked trees as to warrant any presnmption
that they are boundaries of the land, the jury
may pro[»erly be instructed to disregard the
mariEed trees and to follow the conrses and dis-
tances called for in the deed.
[Bd. Note.— For other cases, see Boondariea,
Cent Dig. H 205-207; Dec Dtg. S 41*]
Error to Circuit Court, Raleigh County.
Action by C. W. ToUey and others against
Willlani Pease and others. Judgment for
defendant^ and plalntUb bring error. Af-
firmed. ■
3. B. Snmmerfleld, of Beckley, and B. O.
Fblegar, of Pueblo, Colo., for ptalntlfts In
error. McCreery ft Patterson, of Beckley,
for defendants In error,
BOBIMSON, J. Tbe action Is ejectment
PlalntUfs tailed, and bring error.
The Issue at the trial was reduced to a
narrow one, defendants having disclaimed
all b^ond a line M. to E. on the official sur-
T^or's map. So the Issue was whether that
line was the true division line between the
parties, or whether It was another tine par-
allel thereto as claimed by plaintiffs.
[1] According to the deed on wblcb plaln-
tifb relied this division line was not gov-
emai in Its location by natural landmarks or
monuments directly on it, but must be located
Boldly by Tarloiis courses and distances call-
ing for Btakes, and running from natural ob-
jects in distant parts fbe snm^ of plain-
tiff tract, except that one end of tbe line
Aould ocmfbrm to the line of an adjoinder.
PlalntilPi, taovever, son^t to bave certain
marked trees recognised as controlling the
boundarleB, tlioagb tbe deed called for no
such moouxnenta, but only for stakes, in re-
latlui to the Ones which plaintiffs claimed
should be located by marked trees. In order
to reach tbe marked treea several courses
and distances set forth In the deed most be
materially changed, thereto giving plaintiflh
a much more extended boundary of land
than a awrey according to usual meOiods
and rules would give tbm.
The testimony of the official surveyor, as
wcU as that of two othw surveyora who lo-
cated the line by survey, establishes that the
Bne M. to B. Is the boundary line of plaln-
tlffs* land according to proper survey from
Uie calls of plaintltta' deed. As to this there
is Indeed no contradiction.
Tbe Jury found a verdict simply for de-
foidants, but In view of the disclaimer, that
verdict virtually said that the line M. to
was the true division line. The indgment
entered on the verdict, recognizing that Unv
as the true one between the parties is not
erroneous, as plalntlfb Insist, because the
verdict did not designate the line directly.
As we have said, In the light of the disclaim-
er entered of record tbe effect of the finding
of the Jury was to establisb that line.
[2] An instruction told the Jury that plain-
tiffs were bound by the calls In the deed on
which they relied and that in arriving at the
true b<Hindary line between plaintiffs and
defendants .the Jury must be governed by
the calls in Ute deed, and that the plaintiffs
could not cl^nsethe calls In tbe deed to
show that those aitte meant something other
than what was set fo«h in the deed, but in
running the calls and ukies the rules for the
proper surveying of the laild must be adhered
to. Plaintiffs say that thls'^structlon took
from tbe Jury all consideraOttn of marked
trees by whidi plaintiffs wouli? locate tbe
calls mentioned in the deed. Tb^ maintain
that marked trees may so Inflnencie the loca-
tion of Unes caUed for in a deed as In a
sense to change them from wtaat IsVct forth
ther^n. That this la sometimes tru^ can not
be denied. Under evidnce properly V tending
to eonnect maAed trees with the sur^
wUch tbe deed was nude, the ii
would be erroneous. **Wbai
tlons the course and distance of a Ui
out any other description thereof,
dence Is admissible to prove markc
not In the course or termination of
to be tbe true line intended." Baker
right, 1 Hen. ft M. (Va.) 177. "To puJ
proper descriptions of our land boif
would render men's titles very pi
only from variatloiu of the compass,
old surveys were often Inaccurate;
takes often made, in copying their dc
Into the patents; leaving out lines, antj
north for south, and east for west;
copying those deecriptlons Into ei
conveyances: Whereas, the markec!
on the land remain Invariable, ac
which neighbors hold their dlstli^ let lands.
On this ground, our Juries have i|Miniformly,
and wisely, never suffered such 1I> hes, when
proved, to be departed from, bec'e^use they
do not agree exactly with desci^b^ptlons in
conveyances." Herbert v. Wise. 3 1
240. **In an action of ejectment
idence la admissible to prove th^
for course and distance in a dc
taktfi, and do not designate tfaej
ary of the land intended to bJ
Elliott T. Horton, 28 Grat (Va.J
Virginia casee have given muc
marked lines, correeponding In al „
may be wltii the date of the de^A and in the
main agredng with courses af^^d distances,
found on tiie ground, tiiough V^-kW" trees,
not to be found or ascertained «: by erldence.
are cnUed for In the Instrument" . ot though
TlOill (Va.)
, parol ev-
S7it the calls
are mis-
true bound-
Ij couveyed.'*
3^ 7tJa "The
w^ht to
ge as near as
•INir ethw «uw w« toj^ aed ■mUsB'NDKBBR la DsSL Die. * Am.r Dlg„ K^l|f{^
LAMBERT T. SHELFEB
Inconsistent witb points In a plat rtferred to,
espedally If comporting with natural objects
menUoned." 2 Enc Dig. Va. & W. Va. 685.
But In this case there Is another phase to
the subject Th« testinMiny bj which plain-
tiffs would In a sense change the lines call-
ed for In the deed does not ctHne op to the
standard of legal weight sufBdent to give it
snch effect The deed distinctly calls for
stakes, not marked trees as controlling the
location of the lines. Of course after the
lapse of so many years from the date of the
deed the stakes cannot be found if Indeed
they ever were placed on the ground. Plain-
tiffs have no rl^t to go to marked trees by
the terms of the deed, for the deed does not
call for such objects on the disputed Une
and the lines leading to it In each direction
from known and designated starting points.
Indeed the call tor stakes supports a pre-
Bumption that marked trees have nothing to
do with the surrey. But under principles
which we have quoted, plaintiffs might show
by pertinent parol testimony that marked
trees bore relation to the lines of the sur-
Tey from which the deed was madsw Tet In
OTder to do so, other reasonable principles
would hare to be obserred. "The mere dr-
cnmstanoe that Itaws and comers are known
to bare been run or marked, or are found
marked near where the courses and dis-
tances mentioned In the deed run, is not oon-
cluslTe that they are the lines and corners
of the land referred to In the deed. And
when tbwe Is no such approziniation in the
courses or leagth of the linear or the marks
on the comers, to the description in the
deed, as to warrant Qie presumption tliat
tb^ are the boundaries of tlie land to which
the deed relates, such marked lines should
be disregarded." Weston Blinlng, etc. Go.
T. Goal Go.. 8 W. Ya. 406. Nov, plaintUfs'
claims are grossly inconsistent as to many
lines with what a surrey from the can* of
the deed nnauestifmably prorai. Three sor*
reyors agree that a proper surrey according
to the deed locates the disputed line as M.
to B. There la no ertdoioe to the contrary.
Then can tids well prored location of the
line from the calls of the deed be affected
by testimony in relation to other comers
and narked treee whleh do not approximate
tbe surr^ made from the deed? As to
ptaintUZs' clainis, there Is no such approxl-
matl<ni In the courses, the lengths of the
lines, or the marks on the trees, to the de-
scription in the deed as to warrant any pre-
sumption tiiat they are boundaries of the
land to whlfdk the deed relates. Since there
is no. such approximation, the marked lines
cannot in law be regarded. ■ Plaintiffs* evi-
dence, in riew of what the deed calls for, is
by no means sufficient to raise a . presump-
tion that the lines and comers which plaln-
tUEs claiZB. hare •anything to .do with the
land described In the deed. A Tecdlct bfund
on that erldence could not rightly stand.
True, one of the plaintiifB testifled that he
was present at the surrey before 0» deed
was made and that the surveyor ran to the
trees which plalntlfFs claim as comers. But
he does not know that the calls then mn
went into the deed. It is clear from the
deed and the survey made therefrom that
such survey as this plaintifr says he saw
made was not used for the description In the
deed. "lines and comers may be marked
with the purpose to adopt them In a contem<
plated deed; but afterwards the marked
lines and comers may be abandoned, and
mere courses and distances from certain ob-
jects or points may be substituted." West-
em Mining Co. r. Coal Co., supra. Plainly
all that which plaintlfts rely on to throw the
lines where a surrey does not take th^ is
not of the legal character to change any call
of the deed. The facts proved by plalntUts
afford no legally recognized presnmption that
the line most be located other than where
the deed locates It The evidence relied on
by ptalntifrs does not bring the case within
any principle whereby a call of the deed
may be controlled by marked trees or made
to conform thereto. The instruction, there-
fore, was not erroneous as applied to Oils
case. Under the legal Import of the evi-
dence, it was a proper direction to the Jury,
In riew of the conclusion which we hare
reached as to the insufficiency of the testi-
mony on which plaintiffs sought to rely, to
change the plainly stated calls of the deed,
it would seem that other questions raised by
the assignments of error become Immaterial
and demand no discussion. The Jadgmmt
will be affirmed.
0» Qa. 7»)
LAMBERT V. SHBLTBR.
(Supreme Court of Oeorgia. April 18, 1918.)
(avUahtu bp tk« Oowrt.)
InaxmorroH (| 86*) — Tbupam — Tnus on
PoasnsnoH.
The plaintiff, who songbt injanctlve relief
asainat certain alleged acta of treapass, failing
upon the hearing ci the case to show either title
or possession In himself, was not entitled to an
injnnctiai, and the granting ol the same was
error.
[Ed. Not«.~For other cases, see Injnnctlott,
Cent Dig. i 77; Dec Dig. { 86.*]
Error from Superior Court, Baralson
County.
Suit by B. A. Shelfer against W. T. Lam-
bert Judgment for plalntlffi, and defendant
brings error. Rerersed.
H. J. McBride, of Tallapoosa, for plaintiff
In error. Jas. BeaU and B. W. Adamson,
both of CarroUton, for defendant in error.
BECK, J. Shelfer brought his equitable
petitkn against Lambtft, seeking an injunc-
tlott against th^e Utter to reatxaln him. from
atter oaa« RM aus to»le and ssoUea MUMBBB la DSB. Dig. * JUB. Dig. Kv-10iJI«tl» *
788JB.-«
114 78 SOUTHBASTBRN BEPOBTEB
entering vjpoa and cutting timber upon a
designated lot of land. The petitloD set up
title and posseeslon in the plalntUf. The
court below upon the interlocutory hearing
found that neither the plalntUt nor the de-
foidant had title, but granted an Injunction
restraialng both parties from treapasaing on
the land or committing any waste whaterer
on the same, until further order.
Under the ruling in the case of Downing
T. Anderson, 126 6a. 873, 55 S. £. 1S4, and
other cases there cited, we are of the opinion
that the court below erred in granting the
Injunction sought by the plaintlfT against the
defendant The plaintiff failed to show ei-
tlier title or possession. While be testified
In broad and general terms that he had en-
tered into possession at a date prior to the
allied acts of .tre«paai on the part of the
defendant* and. bad put his agoit In posses-
sion, and that the latter bad continned in
possession from that date, the undisputed
erldoice In the case shows that the only acts
upon the part of the plaintiff and his alleged
agent, Indicating possession, were the clear-
ing of a small part of the land wheremi a
house might be erected, the placing tbere of
a Yery small ouantU; of building timber,
and the posting of certain notices warning
the public not to trespass on the land. No
part of the land was inclosed by the pl^tlCE
or placed under eultlratlon, nor was any
building erected on the land In wbldi one
might dveU. In the case of Downing t.
Anderson, supra. It was hdd that the plaln-
tUb failed to show prior possession, although
they made an affidarlt in wbit^ they assert-
ed, upon Information and belief, that th^
agent had erected houses on c«taln number-
ed lota, and that he was In actual possession
of tiiese lots; the real truth of the mattor
dearly appearing to be, from the evidence
of perscms acquainted wltJi the teets, that at
some time betweoi the date of the plaintiffs'
purchase and the flUng of thOr petition their
ag»t caused to be erected a house on two
tt the lots and a small one-room shanty on
auother of the lots^ that one at Uie bouses
had been occupied stnne time before the
granting of the restraining order, but that
the shanty had never been occupied at ail;
and in tba decision it was said: "The erec-
tion of the shanty on one of the lots In con-
troversy did not have the legal effect of plac-
ing the plalntllb in actual possession of that
lot, since a 'mertt entry, unaccompanied by an
actual occnpuicy, Is no possession at all,* and
Uie building of the shan^ indicated merely
a purjwse to occupy. Flannery v. Hli^tower,
07 Qa. 6M [26 a. B. 871]. So far as the other
lot (Ka 4) is concerned, there seems never
to have been even an actual entry upon it
the plaintiffs or their agent A plat of
the lot to whidi they assert ownership, un-
da the deeds introduced in evldmce. shows
Uiat they are Joined together, though neither
of the lots OD which the alleged trespass oo-
(Oa.
curred Immediately adjoins lot No. 124, on
which the house actually occupied was erect-
ed. At most, the plaintiffB can claim to be
only In constructive possession of the lots
upon which the timber is being felled. John-
son V. Simerly. 90 Ga. 612 [16 S. E. OSl].
Hub evidence demanded a finding that the
plalutlfb have never been In actual posses-
ion of either of these lots." In the Instant
case tt is equally clear that the plalnUfl had
never been. In possession of the land in con-
troversy. And whether the defendant Lam-
bert is a wrongdoer relatively to the true
owner of this land, Shelfer, who bad neither
tiOe nor possession, £alled to show any right
to an injunction restraining the defendant
from committing the alleged trespasses.
Judgment reversed. All the Jnatlces wa-
cur.
(in Ga. BOO
JAMES V. JAMES.
(Supreme Coart of Georgia. April 18, 191&)
(Syllabua by the Oouri.)
TUCPOBABT AUIIONT.
Under the evidence there was no abase of
discretion In granting temporary alimony.
Error from Superior Oonrt, Jenkins Coun-
ty; B. T. Bawllngs, Judge.
Action by Sadie James against J. P. James.
From an order granting temporary alimony,
defendant brings error. Affirmed.
Wm. Woodrum, of Milien, for plaintiff In
error. Dixon & Dixon, of Mllleo, for def aid-
ant in error.
LUMPKIN, J. Judgment affirmed. AU
tiie JnstlceB concur.
an Oa. 741)
WILSON V. DUFFBT.
(Supreme Court of Oeo^ia. April 18, 19iaj
1. Bkvuw oh Apfkal.
The only error of law alleged Is that the
court committed error in Instructiug the Jory
as set forth in tba excerpt from the charge.
Tills instruction was not error for any reason
assigned.
2. SUFFIOXEIfCT or BVXDBKCB.
The verdict was supported by the evidoics,
and the court did not err in refusinc a new
trial
Error from Superior Court, Hwry Omnty;
B. T. Daniel, Judge.
Action between O. B. Wilson and Lem Duf-
fey. From the Judgment 'Vnisim brings er-
ror. Affirmed.
B. IL Smltta and Brown & Brown, all of
McDonougb, for plaintiff In error. E. J. Bea-
gan and J. F. Wall, both of McDonough, tot
defendant In wror.
HILL, J. Judgment afBrmed. All the Jus-
tices concur.
Digitized by Google
DBWBSBBT t. STATE
115
a« Ga. U)
GURBT T. JACKSON NAT. BANK.
(Supreme Gonrt of GeoigU. Majr 18, 1918.)
REmw OZT APFSUk
Tbe majority of the court are of tiie i^in-
ion that there was aufficient evidence to mpport
tiie verdict rendered In tiiia caae.
Beck and Atkinecm. JJ^ dinentinc.
Qrror from Saperlor Court; BnttB County ;
B. T. Daniel, Judge.
Action between Annie El. Carry and the
Jacbson National Bank. From the Judgment,
Curry brings error. Affirmed.
G. L. Redmon, of Jackson, and O. H. Duke,
of FloTllla, for plaintiff in error. H. H.
Fiedler, of JackwHi, for defendant in error.
BEOK, J. Judgment affirmed.
BECK and ATKINSON, JJ.. dluent The
oUiw JoBtieee concur.
(U» 6a. Tn>
MOTE T. PAUL.
(Supreme Court of Georgia. April 18» lOlS.)
(Bi/Uabua Itf Oovrt.)
Dub Pbocbbb or Law.
TUb case la controlled by the dedslon In
Fortune t. Bnuwell, 77 S. £l 81S.
Knot tnm Superior Court, Bandolpb Coun-
ty; W. a WorviU. Judge.
Action between A. J. Hoye and W. B. PaUi.
From the Judgmoit, Moye brings error. Be-
Tersed.
M. C. Edwards, of Dawson, and B. I*
Moye, of CuthlKrt, for plaintiff in error. Jas.
W. Harris, of Cnthbert, for dtfendant In
error.
LUMPKIN, J. Judgmmt reversed. All
the Jnsticea concur.
CMO Ga, U)
EDWABDS v. WTSONG & MILES CO. et aL
(Supreme Court of Georgia. May 13, 1913.)
(StUohua by tht OonrtJ
iNTBBLOOUTOBt INJUNCTION.
Under the pleadingB and evidence, the re-
fusal to grant an interlocntory injanction was
not error.
E^or from Superior Court, Haralson Coun-
ty; Price Edwards. Judge.
Action by J. S. Edwards, trustee, against
tbe Wysong ft Miles Company and others.
From an order refusing an Interlocutory in-
junction, plaintiff brings errw. Affirmed.
Lloyd Thomas, of Tallapoosa, Walter Mat-
thews, of Bncbanan. and Jas. Beall, of Car^
rollton, for plaintiff In error. H. J. McBride,
of Tallapoosa, for dettodants In -error.
LUMPKIN, J. Jndgment affirmed. AH the
Jnsticea concur:
(189 Ga SID
albxandbb t. state.
(Supreme Court of Georgia. April 18, 1918.>
(BvOrnhM »v ike Oomrt.}
L VOLUHTABT MaHSUUGBTU.
Under the evidence, there was no error in
omitting to charge on the subject of volnntafy
manslaughter.
2. SutnciKNcr or Evidbncb.
The evidence supported tiie nrdlet, and
diere was no error In overruling the motion for
a new trial.
Error from Superior Ooort, Pike County ;
R. T. Daniel, Judge.
Clarence Alexander was convicted of mur-
der, and brings error. Affirmed.
J. J. Flynt, of Griffin, and H. O. Farr, of
BamesviUe, for plaintiff in error. E. M..
Owen, Sol. Gen., of Zebulon, J. W. Wise, of
FayettevlUe, and T. & Ftider, Atty. Oen., for
the State.
LUMPKIN, J. Judgment affirmed. An the
Jnstlcefl concur. ,
a«aa.u>
TATUM & GABY et aL v. WELSH et al.
(Supreme (>>nrt of Georgia. May 18, 1918.)
(SyUahut hv the OowrU)
iNTEBLOOUrrOBT INJUNCTIONS.
Under the pleadings and evidence, the court
did not err in granting an Interlocutory Injunc- ,
tion.
Error from Superior Conrt, Polk County;
JPrice Edwards, Judge.
Action 1^ l^tum ft Gary and others against
C. N. Welsh and others. From an ord» re-
fusing an Interlocntoiy Injunction, plaintiffs
bring error. Affirmed.
Lipscomb A Willlngham and Nathan Har-
ris, all of Elome, and B. E. Tatum, of Chat-
tanooga, Tenn., for plaintiffs in error. Jno.
K. Darls, W. K. Fielder, and Bunn ft Tra-
wick, ail of Cedartown, for defendants in
error.
ATKINSON, J. Jndgment affirmed. Ail
tbe Justices concur.
(UO Ga. 14J
DEWBEBBT T. STATE.
(Supreme Court of Georgia. May 13, 1918J
(Byllahiu by ike Court.)
Review on Appeal.
There ma no complaint that any error of
law was committed upon the trial. Tbe evi-
dence warranted the verdict, and the court did
not err in refusing a new trial.
Error from Superior Court, Fulton (boun-
ty; W. E. Thomas, Judge.
Oscar Dewlwrry was convicted of crime,
and brings error. Affirmed.
Calhoun ft Connelly, of Atlanta, for plain-
tiff in error. Bngb M. Dorsey, SoL Gen., and
W. J. Laney. both of Atlanta, and T. S. Fol-
der, Atty. QeiLt for tbe State.
FISH, C. J. .Judgment affirmed*. All the
Justices ooncnr. Digitized by VjOOQIC
116:
TB SOUTHEASTEON BBPOBTBB
<UI Ctau 7m
PHILLIPS T. ATKINSON.
(Saprtne Ooart of Georgia. April 18, 1813.)
L EZBOtTTOBS AHD ADUNiaTBATOBS (I 195*)—
Allowanok »ob Sdppobt— Two Bktb or
OHILDBBIf.
Where property of a decedent is let apart
aa a year's rapport for the widow aod her minor
child bj the decedent, and separate property is
set apart for the support of a minor child of
the decedent by a former marriaKe, the estates
in the property bo set apart are separate. Civ.
Code 1910, S 4040.
[Ed. Note.— Por other caaea, see Executors
and Admiturtraton, Cent Die I T24; Dec Dig.
1 195.*]
2. EXBCUTOBS AKD ADHIKISTBATDBB « 195*)—
ALI.OWANCX TDK SUPPOai— TWO SbTB OT
Ohildbkit. , ^
Id such a cue, If the minor child of the
widow dies, the property set apart to the widow
and such child Tests in the widow alone for her
support (Miller v. Ennia, 107 Ga. 663, M 8. E.
302); and »n equitable action will not lie
against the widow, at th« instance of the de-
odent's child by the first marriage, for recovery
of a distinct interest in the property set apart
to the widow and her child, and mesne profits.
[Ed. Note.>-For other cases, see Executors
and AdminUtraton, Gent Dig. 1 724; Dee. Dig.
«195.*J
Error from Snperlor Court, Bntta Comity;
R. T. Daniel, Judge.
Equitable action by Monroe Phillips, as
gaardlan, against Lottie C. Atkinson. Judg-
ment for defendants and plaintlfl brings er^
ror. Affirmed.
Monroe PhiUlpa. u guardian of EUaabeth
Atldnson, a minor, Instltnted an equitable
acOon against Mrs. Lottie O. Atkinson for
the i^irpose of bavlng title to nndlTided In-
terests In certain real estate and personal
property decreed to be in tbe ward, for an
accounting as to rents, eta, for a Judgment
for tbe amount to which tbe ward ml^t be
equitably entitled, and general relief.
The petition alleged, In substance that T.
P. Atktaison died Intestate, leaving property
conslBtlng of nn^rlded Interesfis In described
real estate and personal propoty. The sole
beirs at law were the defendant^ Mrs. Lot-
tie. C. Atklnstm, a posthumous child, Tommle
Atkinson, and petitioner's ward, EUxabetb
Atkinsoni a child of a former manlage. The
widow became admlnlstratrlg of the estate,
and made appllcatUm to the court of ordi-
nary for a year's support. The wtuHe of the
estate waa set apart for sucdi purpose. In
setting it apart $000 in money and half of
the kitchen furniture were set apart for tbe
plalntUPs ward, while the rest of tbe es-
tate was set apart for Qm defmdant and the
child, Tommle Atkinson. The latttt died
after the property was so set apart, leaving
no debts other than for fanoal expenses,
physician's bills, or tbe like, and wlthont
h^B at law, except hw mother and peti-
tioner's ward. The defendant assumed ex-
clusive possession and ownership of all o£
tbe property set apart to her for the use
of herself and her child, Tommle, and . ap-
propriated the rents, issue^ and profits
thereof to her own use, denying that the
plalntifTs ward had any interest therein. No
attack was made on the Judgment setting
apart tbe year's support, but Its validity
was conceded, and the pUdntUTs action was
predicated on the rights alleged to exist
thereunder. Tbe action was dismissed on
general demurrer, and tbe plaintiff excepted.
A. Y. Clement, of Montlcello, for plalntUC
In error. H. M. Fletcher, of Jackson, for de-
fendant in error.
ATKINSON, J. Judgment afBrmed. AU
tbe Justices concur.
(139 Qa. no
CIQNTRAL OF GEORGIA RT. CO. T.
BABTLETT.
(Supreme Coart of Georgia. April 18, 191S.)
(BjfUahua If thm Court.)
Appeal asd Ebbob (i 977*)— Barixw- Dra^
CBETION OF COUBT.
There being no complaint of any error of
law committed on the trial, and the evidence
being sufficient to support the. verdict, tbe dis-
cretion of the jndge in refusing a new trial will
not be distnrbed.
[Ed. Nofeb— For other cases, see Appeal and
Error, Cent Dig. H 8860-8S65; Dec. Dig. f
977.*J
Errw from Superior Court, Carroll Coun-
ty; B. W. Freeman, Judge.
Action by T. B. Bartlett, by next friend,
against the Central of Georgia Hallway Cotnr
pany. Jndgm«it for plalntUt, and defOodant
brings error. Affirmed.
Hall & Cleveland, of Grlffln, J. E. Hall, of
Macon, and R. D. Jackson, of Carrollton,
for plaintiff In error. Q. W. Merrell and S.
Holdemess, both of Carrollton, for defmd-
ant in error.
ATKINSON, J. Judgment afflrme^ All
the Justices concur.
(m Ga. nt)
STUDDABD v. HAWKINS. -
HAWKINS V. earuDDABD.
(Supreme Court of Geoi^ia. April 18, 1918.)
fSvUahut by the Court J
1. Appui. and Ekbob (§ 1105*)— lAw or zhb
Case— Pbevious Dbcision.
Questions of law decided by the Supreme
Coart in a csHe must, upon anotoer hearing, lie
treated as settled as to that case. Bat If the
judgment of this court is one of reversal, and
upon another trial tbe &cts are materially dif-
ferent from tiiose on which the dedaioo was
based, the former rallng wlU not be conclusive
of the case.
[Ed. Note.— For other cases,^ see Appeal and
g-ror^^Cent Dig. Sf 4661-^; Dec Dig. i
'-^ ' — ~j 1 ^.^ —
GftJ.
117
X APPKAL ASFD filBOl d 11%*)— GoimLAOTB
aSOS*)— SmDKNOB (I 4^*V-L4W or THX
&BK— FouoB Dsomon— Pabol Etidknoi
— Waiteb.
But TuIingB to the effect that a certeiA con-
tnet tor the puTchaae of land, which waa te-
quired by law to be ia writing, and which haa
seen conatrued by thla court to provide for pay-
ment "preBently, could not be altered by a
xnrol contract, and that parol erideDce waa not-
admiaaible lo show a nUd agfeoneat ehangiivs
asch written contract, do not prevent the party
against whom auch ralings were made from
pleading by amendment that within the time for
making payment for the land vndec tiie contract,
under the former dadaltm of tbia court, the
Tcndee offered to do ao, and the Tendor by parol
waived the making of payment at that time and
induced the purchaser to delay ineh payment or
a formal tender until a latw day, that the por-
cbaaer acted on the faith of aoot conduct, and
that the vendor waa eatopped from taking ad-
vantage of the delay ao caused, and fnun declar-
ing that the original contract was not binding
becaoae of fallare on the part of the purchaser
to comidy therewith.
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. |« 4661-4666 : Dec. Dig. {
1195 ;• Conttacta. Cent Dig. H 1U98. 138&,
1400, 1463.1460467-1475; Dec; Dig.l 305;*
ivvidence. Cent Dig. IS 20S2-2065; Dec Dig. i
445. •)
8. SPECDIO PntrOBHANOK (il 9*, 191*) —
Right or AonoN— Dxtkhsbs.
The petition, as amended, was not subject
to demurrer on the grounda that it set out no
cause of action, and that it sought to change a
written contract for the sale of land by parol
agreement
[Ed. Note.— For other caaea, see e^edfle Pari
formaoce, Cent Dig. H 246-24S, 200^ 286, Sllr-
817 ; Dec: Dig. i| 93, lOl.*]
4. Specific Pkbfobiuhck Q 116%*)—^*^-
TXON— AltKNDlCBNT.
There was no error In aDowbig Oe amand*
ment to the plaintiff's petition la vhldi vaiw
and estoppel were set up.
[Ed. Note.— For other cases, see SpedGc Per-
formance, Cent Dig. I 376; Dec Dig. S
116%.-]
Error from Superior Court, Morgan Ootm-
<y; J. B. Park, Judge.
Action by J. F. Staddard against C M.
Hawkins. Judgment for defeddant, and
plalntlCT brings error, and defendant fDes
cross-bill. Reversed on tile nutin UDt and
affirmed on the croas-bllL
Stnddard ffled his egultable petition against
Hawkins, seeking to obtain a decree for spe-
dflc performance of a contract and tor otber
telleL The memorandum of the contrttct
was as follows: •
"RuUedge, Ga., April IB, 1906.
"BecelTed of John F. Stnddard twenty-five
dollars, closing purchase of the Hanlelter
plac^ containing 187.6 acres one tract and
we 4 aoree more or less, at $16.00 per acre.
*'a iL X Hawktns.
mark
"Contract made and signed in presence of
F. W. Oxford, N. P. A Ex. Oft. J. P."
The case has been tvrlce before the Su-
preme Court, and will be found reported In
132 Oa. 266, 63 S. a 862, ISl Att. St Rep.
190,- and 186 Oa. 727, 71 8. B. 1112; oa each
OCcartMk the judgmeat being rerersed. Whei!'
the caae again came on for trial, counsd for
ttie plaliitUf offered the following amend-
ment to the petition. "And now cornea the
petlUonw, and strikes all amendments of
paragraph 6 of the petition, heretc^re al-
lowed, and In amaidment of said paragraph
lUIeges: On the afternoon said contract of
sale was made, and presently thereafter,
plaintiff, being ready and able to pay the
balance of the purchase money therein men-
tioned, 1b parol offered to the defendant to
go to his bank nearly, whwe the money wbb
deposited, and pay the same. The d^end-
ant did not repudiate hla obligation under
said contract, but did waive the time of pay-
ment,, and the essentiality of the time there-
of, and In parol ' appointed a later date on
which he would receive said payment But
for said waiver and appc^tment of a later
day petitioner would then and there have
tendered to defendant the balance of said
purchase moneiy. Relying on said waiver
and appointment he waited until the ap-
pointed day and then formally tendered, aa
set out In paragraph 6, the gum there.stated.
Defendant had in the meanwhile recetved by
petitioner's consent the rents on said land
for 1905, which occurred since said sale and
which belonged to ^ petitioner, a sum of $2S0,
and the amount tendered was more than the
full balance of purchase mone^ with interest
thereon from the time it was due under aald
contract To induce petitioner to delay for-
mal tender as aforesaid, and then to Insist
that the delay forfeited petitioner's contract,
would be for defendant to commit a fraud
upon petitioner and his rights under said
contract ; and defendant Is e6t0]n>ed to ques-
tion the ttmellnesB of said tender.** This
amendment was allowed over objection, but
subject to donurrer. Defendant then demur-
red to the petltlou aa amended, on the ground
that It set out no cause at action, and did
not allege facts suffldent to authorise a re*
covery. He spedaUy demurred to the amend-
ment, on the ground that It sought to add to
or vai7 the written contract set out in the
original petition. The presiding Judge sna-
talned the demurrer to the petlthm as amraid-
ed, "as It set forth no cause of action, upon
the ded^on of the Supreme Court In this
case." The plaintiff excqited to the sustain-
ing of the demurrer; and the defendant ffled
a croes-blU of exceptions, assigning error on
the allowance of the amendment
Samuel H. Sibley, of Union Point, for
plaintiff In error. F. C. Foster. E. H. George,
and K. S. Anderson, all of Madlaon, for de-
fendant in error.
LUMPKIN, J. (after stating the facts as
above). This case la an old aajualntance.
It is before us for the third time. It am^ear-
ed for the first tine in 132 Oa. 266, 63 S. B.
882, 181 Am. St RepL 180, and for t^secoud
«ror otasr omm m* same toplo aad seeUoii NUMBBR la D«h Dtg. ft Am. Dig. K«r-Ho.^iai^^SlRke]
lis
time In 136 Oa. 727. 71 a B. 1112. Wben it
wu returned to the niparlor conrt the lost
time, the plaintiff amended by withdrawing
certain previous amendments to the petition
and filing another. The preeidlng Judge al-
lowed this amendment over objection, and
then dlsmlBsed the petition as amended on
demnirer, on the gromid that it set oat do
cause of action, under the former mlings of
this conrt
[1] L Points decided by tike Supreme Court
in a case mast npon another hearing be
treated as settled. WUlln^am t. Sterling
Oycle Works, US Ga. S93, 89 8. E. 814.
If, however, a rerersal is granted by this
court, and upon another trial the facts are
materially different from those on which
the first decision was based, the former rul-
ing cannot control the case, as it would not
be applicable to new and different facts. Al-
len T. Schwelgert, 118 Ga. 68, 88 S. EL 897.
In HcWUUams t. Walthall, 77 Ga. 7, it was
bdd that a final Judgment, affirmed by this
emrtt condndes the parties, not only as to
facts formerly pleaded, but also as to those
which were then known or might have been
known by the use of proper diligence. But
this does not support the contention that a
mliiv that a certain parol evidence was not
admissible to vary a wrttten contract Is a
condusiTe adjudication tiiat a jAea of waiver
or estoppel cannot be filed, though it may in-
volve some of the same Cacts.
[2] 2, 8. The case reported in 182 Ga. was
brought up on a bill of exceptions complain-
ing (tf the overruling of a motion for a new
triaL An effort was made to review rulings
of the presiding Judge in overruling a de-
murrra to the petition and In allowing an
amendment But it was held that such rul-
ings could not be made grounds of a mo-
tion for a new trial, and that grounds com-
plaining of them could not be considered.
So that no decision was made by this court
as to whether the petttton and the amend-
ments made thereto were demurrable. It
was held that the legal import of the writ-
ten contract for the sale of tbe land, as
to which specific performance was sought
was that tbe balance of the purchase money
should be paid "presently," and that evidence
of a prior and contemporaneous parol agree-
ment that such balance was to be paid at a
subsequent definite time was not admissible
to vary the legal Import of the writing that
such payment was to be made "presently."
It was also held that with such a written
contract "a mere parol agreement between
the parties to the writing, made subsequently
to Its execution and delivery, fixing a sub-
sequent time for the balance to be paid, was
not admissible to illustrate the time within
which the balance was to t>e paid," and that
ft contract which must, under the statute
of frauds, be in writing, and which accord-
ingly is put in writing and duly executed,
cannot be subsequently modified by a parol
(Ga.
agreement Still further it was hdd that
mere nonaction does not constitute such per-
formance of a contract as will take a parol
contract out ^ the statute of frauds. From
this synopsis It will be seen that no ruling
was made on the sufficiency of the allega-
tlons, nor any reference made to waiver or
estoppd. The case turned on the constmctloa
of the written contract and the admis^bll-
Ity of evidence to vary it by a parol agree-
ment or contract The trial Judge admitted
evidence that after the paper was signed,
the parties agreed that the time of payment
of the balance of the purchase money was
to be the first of the following December.
In ao ruling he stated that he admitted the
evidence "as Illustrating whether or not the
tender made in December was made in a
reasonable time." Under the construction
placed by this court on the written contract
this was held to be error, and to this the
statement as to "lUiutratlng" the time of
payment referred. Presumably no ruling was
invoked on the subjects of waiver and es-
toppeL Certainly this court made non&
Whok the case was here the second time,
tbe expression employed in the former de-
cision that tbe written contract provided
for payment "presently** was considered and
b^ not to mean **within a reasonaUe time,"
but immediately, now, at once. Bnt In both
decisions care was tiUun not to state that
the word "presently" or its ornonyms should
be given a reasonable and substantial caa-
struction, in view of the thing to be done,
and not be omisidmd as eqnivalait to In-
stanter. On the second trial an amendment
to the petition was allowed over objection
on the ground that "It sought by parol to
add to OT vary the tmns of the written con-
tract** Brror was assigned on soeh ruling.
Chief Justice Fl^ so stated in tbe opinion,
and held that as it did not appear that the
transaction set forth was in parol, the court
below did not err, adding, "This tm the the-
ory that the amendment sought to set out
a written agreement between the parties,
extending the time for the payment of the
balance on the purchase money." While some
of the allegations in the former amendment
were quite similar to those In the one now
before u3, it la evident that the amendment
then considered was treated by counsel and
the court as pleading a contract fixing a
new time of payment; and no ruling was
made on any question of waiver or of es-
toppel. The Judgment was reversed on tbe
evidence.
On the last trial the plaintiff offered an
amendment striking all previous amend-
meats to the fifth paragraph of the petition,
and setting up that presently after the con-
tract was made he offered to pay the bal-
ance of the purchase money, but the defend*
ant waived the time of payment and appoint-
ed a later day theretbr ; that In reliance on
such waiver, tbe
78 SOUTHEASTERN KBPOBTBR
Om.)
PBATEE T. BABOS
119
make tender of ttae moneyt bat delayed do-
lus so until tbe time whi(^ tbe defendant
appointed; tbat for tbe defendant to In-
duce the plaintiff to delay matelng a formal
tender until tbat time, and then Insist that
the delay forfeited the plaintiff's rights un-
der the contract would work a fraud on
blm; and that the defendant was estopped
to question the timeliness of the tender.
This plea does not set out or rely on any
contract, written or in parol, as binding on
the parties to vary the terms of the written
Instrument, but a delay In making payment
or tender, Induced by the vendor, whpse
conduct o[»erated as a waiver or estoppel
A new contract fixing a new date for per-
formance and a waiver of performance at
the time fixed in the original contract, or an
estoppel which prevents the setting up of
noncompliance within the time fixed, are
not the same thing. In the case of a new
contract or the modification of an existing
one both parties are bound by the terms of
ttae new contract, and have a right to in-
sist on the new date fixed therdn for per-
formance. In the case of a waiver the orig-
inal contract remains; the purchase money
Is doe; the seller merely waives strict en-
forcemoit as to time, so as to prevent blm
tnaa declaring a fort^tnre on account of a
past failure. Generally be may still de-
mand and require compliance with the con-
tract upon reasonable notice. In tbe case
of an estoppel In pals, by reason of his con-
duct or ads, be will not be allowed to claim
that there baa beoi a fiiilnre in compliance
br the otber party, ao as to relieve him.
WaiTBT and estoppel are oftoi almUar; but;
while the words are frequently used as
eqidTalent terms, they are not identicaL
Wbete the law requiree a contract to be in
writing, under tbe dedHone of tbla court it
cannot be modified by a binding parol con-
tract Bnt strict pOTformanoe as to time
may be waived by parol, at least if made be-
fore default, and relied on by the other par-
ty. 9 Cyc eOS; 36 Cyc. 099; 89 Cyc 1341.
1849. lattO; 40 Qyc 264 et «eg. And this
is true wbetber tbe payment le to be made
"Iffesently" or at a fixed date in tbe future.
When time Is of the essrace of the con-
tract if, after the time for performance is
passed, by consent one of the parties com-
piles with its terms, an equitable proceeding
for spedflc performance will He. Moody v.
Griffin, 60 Ga. 4S9. And, though time for
payment of tbe purchase money may be of
tbe essence of the contract, it has been held
tiiat it may be waived by conduct of tbe
payee, such as suing for the purchase money,
Instead of treating tbe contract as at an
end. Jordan v. Rhodes, 24 Oa. 478; Stew-
art V. Ellis, 130 Ga. 685 (3), 61 S. B. 597. It
Is unnecessary In tbe present case to decide
whether, after breach of a contract In which
time Is of its essence, an agreemmt to waive
tbe breach, not supported by a consideration
(In the broad sense of Civil Code, I 4242),
and not acted upon by the party committing
tbe breach, where no change of situation has
resulted, and where neither estoppel nor ttae
doctrine of election of remedies Is Involved,
will be binding. See In ttais connection Ala-
bama Construction Co. v. Continental Car &
Equipment Co., 13 Ga. 86Q (8), 870. 62 S. B.
160; Hardwood Lumber Oo. v. Adams &
Steinbrugge, 134 Ga. 821. 826, 68 S. B. 725,
32 L. B. A. (N. S.) 192 ; Cook v. Crocker, 68
Oa. 66; Morgan v. Perkins, 94 Ga. 353, 21
S. B. 674, where there was a parol exten-
sion of time for cutting timber, and the tim-
ber was la t&ct cut ; 40 Cyc. 263 et seq., and
(Stations.
In tills case it was alleged that, before the
time for payment or tender under tbe contract
bad passed, tbe vendor Induced tbe purchas-
er to delay making payment, and tbat in re-
liance upon this the latter made no tender.
While tbe vendor continued to cause the pur*
chaser to delay, be could not also take advan-
tage of sudi delay. A party to a contract can-
not cause a breach or delay in compliance by
tbe other, and then set up the breach or de-
lay BO caused as freeing blm from tbe con-
tract ^rtford Fire Ins. Co. v. Amos, 98 Ga.
638, 25 S. E. 575; Am. Ins. Co. v. McVlckers,
135 Ga. 119. 68 S. B. 1026; Small Co. v.
Liberty Mills, 137 Oa. 565 (1, b), 73 S. B.
846; Underwood v. Farmers* Joint-Stock Ins.
Co., 67 N. T. 601 ; Insurance Co. v. Eggles-
ton, 96 IT. 8. 572, 24 L. Ed. 641; 39 Oyc
1340, supra ; 16 Cyc. 805. Tbe case is now
before us on the sustaining of a demorrer to
the petition as amended. What the evldfflice
may have shown on former triato cannot be
Invoked on the consideration of this demur-
rer. The allegations of tbe petition must be
assumed to be tme tot tlie purpose of the
present hearing. We have endeavored to
show that tb6 former rulings of this court do
not conclude tbe question now made. From
what baa been aaid it follows tbat tbe pre-
siding judge erred in sustaining the demur-
rer.
[4] 4. It also follows tbat there was no er-
ror In allowing tbe amendment, over oblao*
Uon, on ttae ground tbat It sought to add to
or vary the terms of the written contract
sued on.
Judgment reversed on the main biU of ex-
ceptions, and affirmed on the cross-blU. All
the Jmtloes concur. .
(U» Oa. sou
PRATBR et al v. BAROB et at
(Supreme Court of Georgia. April 18, 1918.)
(Syllobut hy ihe Court.)
X. Appeal and Ebbob (| 458*)— RErcsAi. ov
Intbblocutobt InjuNCTioN— Revibw — Su-
persedeas.
When a judgment refuring an Interiocotory
injunction li brought to the Soprraie Court for
•Tor otbw CMN MS him topta ind Mettoa NUICBBB to Dm. XHg. A Am. Dig. Kay-KOifildMl *
78 BOUlBEAflTXBN BMSeQBTESi
(Qa.
ttrievr, the trial joAgt b atttitoriiad to nrnnt m
■npenedeaa apoa Bach terms a* may by mm
deemed Deeemiy to preserve the nghta of the
parties until the Jadgment of the Supreme Coart
cu be had. CIt. Code mO; | BOQIL It Is left,
howerw, In the Bound legu diseretloa of the
Judge to grant or refnae it West T. Shackel*
ford, 138 Qa. 168, 74 S. EX 1079.
J a) The judge did not abuse bla discrettoQ In
tasing to grant a sapersedeas In this eaatw
[Ed. Note^For other casaa. see Appeal and
BhTor. Oent XMg. H 222^^24; Dea Dig. i
3. EzcLUBioir or BvimMOB.
There was no error in rejecting tlw evidence
wfat^ the court excluded.
8. iMTKBX^tlTOUT iNJITIICTXOir.
Under the pleadings and evidence there
was no abase of dlecretion In refusing to grant
the Interlocutory Injunction as prared.
Error from Superior Court, Fulton Coun-
, tf! X T. Pendteton, Judge.
Action by V. A. Prater and others against
3. 3. Barge and othexsL From an order re-
filing an IntO'locutory Injunctiim, plaintllfii
bring error. Affirmed.
Phil W. Davis, of Boston, Mass., and J. EL
James, of Atlanta, for plaintiffs In error. I*.
Z. RoBaer and P. H. Brewster, both of Atlasi-
ta, for defendant! In enw.
ATKINSOK, J. JodgnMOt affirmed. AU
tbe Justices concur.
08» Oil 7K)
OBBSS r. BOBBBTS.
(Bupreme Oonrt of Georgia. April iB^ 191S.)
(BtUa^ H Ike Court.;
L TBESPAS8 (I 80*)— BtXDUTOI — BaHKOA-
noH.
Where an owner of land conveys green tim-
ber suitable for sawmill purposes, and bis ven-
dee contracts with one to manufacture it into
lumber, and in the contract refers to the con-
veyance from his vendor for description' of the
timber conveyed, and the contractor cuts and
removes dead timber from the land, In an ac-
tion by tbe owner of the land against hts ven-
dee for tiie trespass of tbe contractor tiiere can
be no recovery unless it be shown that tbe v^'
dee authorised or ratified the trecpaae at
contractor.
(a) The evidence wa* inanffldent .to conneet
the Tendee with the treepasa of the contractor.
[Ed. Note.— For oOier cases, see Trespan,
Oent. Dig. f 69; Dee. Dig. I Sa*]
2. Btxdkncb a SIT*) — DsouuTiom or
Thied Paxtt.
Testimony of the contracts to the effect
that he cut ul the timber, and the testinumr
<^ another as to his declaratlona, made dnm
fervet opus, that he claimed the right to cut
the dead timber, would be competent if the de-
fendant's connection with the trespass bo
shown; ottierwlae the testimony would be ir-
reUnrant
[Ed. Note.— For other eases, see Bvidenosk
Gent Dig; H U74-1192; Dee. Dig. | 317.*]
Error from Superior Court, Berrien Coun-
ty; W. B. Thomas, Judge.
Action bj' U. T. GresB against Stephen
Robnt;^ From the Judgment; Oress brings
OTor. Reveraedi
Knight, ChABtain ft Oasklng^ of NashvUlflh
tor plaintUT In emw. Hnkbicks ft Christian,
of Nashville, for defoidant In error.
BTANS, P. 3, Stephen Bobwts conveyed
to Morgan T. Orees "all and aingnlar the
timber suitable for sawmill purposea grow-
ing" on certain land. Gress filed a petition
against Boberts to enjoin him from cutting
and removing the timber embraced In bla
conveyance, and Roberts by way of cross-pe-
tltloQ alleged tbat Gress was cutting and re-
moving the dead timber on the land, which
was not included in his lease. On e»!eptlon
to the grant of an interlocutory Injonction,
the timber lease from Boberta to Gress was
construed to conv^ to the vendee only tbe
green timber whl^ at the date of the lease
was suitable tor sawmlU mirpoeeK Boberts
T. Oress, 184Oa.2n,6rS.B.802L In his
croesiwtitton Bobttts claimed damages of
Gress for a trespass, wUdi was alleged to
ctmsdst In cutting and removing the dead
timber from Uke land ; and <a the issue thus
made a verdict waa retamed In thvor of
Roberts. The court nefnsed a new trial, and
the movant excepted.
[1] 1. The dead tlmbor was est by Garter
and Lewis, and the controlling point In tbe
case is the liability of Oress for their tree-
pass. It appears from the record that tbe
timber lease fron Roberts to Oress was dat-
ed October 18, U08, and 10 years were al-
lowed by it tor the cntUBg and resMval of
the timber. Aftwwards Oress oontiacted In
writing with Garter and Lewis **to cut aU
timber suitable for sawmill purposes into
lumber for the benefit of tSuo said party itf
the first part on the fdllowing described leas-
ee, to wit: Lease Crom Stephen Boberts to
Morgan T. Gress, dated Oct 18, 1902, to
Umber" on the locus In quo, and lease from
another person to timber on ewtaln land
lotm and also timber on other laud lota not
indnded in tbe aforementioned leasesL It
was further ^orlded that Garter and Lewis
wen to mann&ctnre the timber Into lamber,
and ship the lumber to Otess upon qwctfled
terms. There was no evidence tending to
show Oress* connection with the trespass
of Carter and Lewis beyond bis contractual
relation with th^n. A fair construction of
the contract of Oress with Garter and Lewis
is that he contracted with them to manu-
facture Into lumba certain timber owned by
him. In deeerlbing the tlmbor on the Roberto
land he eipressly rtferred to timber suita-
ble for sawmill purposes as embraced In Us
lease from Boberts. His contract with -Gar-
ter and Lewis authoriaed thou to cut from
the Roberta land only such timber as was
conveyed by Bob«to to Oress. If th^ cat
timber not embraced in the contract, they
had no aotberity under .the contract tor their
act. ^ey were independent contractors, and
Orees is not responsible for their trespass,
unless he adopted or ratified it Parker v.
*yer eoier esses esesam tetU sad wmUm MPMBBR la Pee. Pl«. * Am. Dig. gffQTjfeg^^^QiQgfei
BEUCHLlBa T. OBOB0IA KT. A POWER Oa
121
Waycroos & Florida B. Oo^ 81 Ga. 887. S 8.
B. STL It was not shown tbat any lumber
manafactured from dead trees was received
from Carter and Lewis by Gress, or, If any
was received that Oress knew' or had no-
tice that the same was manofactnred from
timber cut on the Boberts laud. There waa a
total lack of evidence to show that Gress
erer knew of or ratified the trespass of Gar-
ter and Lewis, and the Terdict Is wlthont
evidence to support it
[2] 2. The testimony ot Carter to the ef-
fect that bis firm cut all the timber suitable
for sawmill purposes, and the tratlmony of
Roberts that Carter declared, while engaged
In cutting the, dead timber, that he bad a
lease to It and was going to cut it, would
hare been admissible if the evidence had con-
nected Gress with the trespass; but, In the
abeence of such proof, the testimony waa Ir-
relevant
Judgment revosed. All the Jnstlees oon-
enr.
(U» Oil TM)
BSUOHT^ait T. QEOBOIA BT. A POWER
CO.
<8npnBt Ooort of Georgia. April 17. 101&)
(ByUabua by <k« Court.}
X. BuiHBNT Domain ({ 52«)— CoKDKicRATion
FOB PowEB OolCFAffixs — PaoTBCTnon or
lllXXe AND Factobwb.
Id ezteuding the power companies geosrat-
ing dectricity for public use the rigbt to eon-
demD rights of way or other eaBenwnts on the
luids of others, in order to run lines of wire,
maintain dama, etc. tbe statute (Civ. Cods
1910, it 524^-6242) declares that such power
•f condemnation shall not be used to interfere
with any mill or factory actually in operatioo.
The protection accorded to mills and factories
extHMS to apparteoBiices necessary to their op-
nation, but not to propnty from Which tbe
crude material is taken for supplying such mill
or factory.
r!Bd. Note.— For other casea. see Eminent Do-
main, Gent. Dig. SI 121-lBO; Dec. Dig. | S2.*]
2. DSRIAL or lNTBBI.0CUT0aT INJUNOTION
SUSTAIHXD.
There waa no abuse of dlacretlon in refus-
ing an interlocutory InjunctloD.
Error from Superior Court, Fidton Ooun-
ty ; W. D. Bills, Judge.
Action by G. H. Beuchler against the
Georgia Batlway ft Power Company. Judg-
ment for defendant, and plalndK' brings er-
ror. Affirmed.
Atkinson ft Born and Sndtb ft Hastings,
all of Atlanta, for plalntUT in error. H. H.
Dean, of Gainesville, and King, Spalding ft
TTndorwood, of Atlanta, for defendant Sn er-
ror.
BTANS, P. J. me platBtlff in error Is tbe
owner-of a lot of land containing a granite
deposit The granite Is quarried and Is
crushed into stone of snuUl slse and Into
sand by a rock cmsber located on the prem-
ises and near tba, quarry. The emsbear Is
a machine capable of crushing about 120 tons
of rock per day, and is unsheltered by any
house or other structure. It Is operated by
a portable steam engine of 20 horse power,
which is Inclosed in a very crude shed. The
defendant in error Is a corporatloa operating
a t^ant for generating electricity, and pro-
poses to condemn the right to stretch Its
wires over the premises, by virtue of the
Civil Code, il 6240-5242,
The plaintiff in error seeks to enjdn such
condemnation, on tbe ground that the main-
tenance of wises heavily charged with elec-
tric current over his premises will interfere
with the operation of Us rock crusher. On
an interlocutory hearing tbe court refused
an injunction.
[1] The statute (avU Code, if G240-G242)
confers on a corporation owning or control*
ling a water power in this state, or a loca-
tion for a steam plant end operating a [dant
for generating electri^ty by water or steam
power, to be used for lighting towns or. cities
or supplying motive power to railroads or
street car lines, or sttK>lylng Ugbt, beatr or
power to the puhUc^ tbe rl^t to condemn
rights of way or other eaaemmts upon tbe
lands of others. In order to run lines of wire,
maintain dams, flow-back water, or for oOkx
uses necessary to these purposes; but it is
declared that tbe power of condemnation
"ataall not be used to Interfere with any mill
or factory in actual operatloa" Tbe pUtin-
tUTs contention Is that tbe quarry Is Ind-
dmtal to and part of bis nmUng business;
tbat In blasting pieces of stone may be
thrown against tbe wires, causing tbran to
break and foil, to tbe Injary of the persons
working in tbe quarry ; and tiierefore tbat
tbe stringing of wires Iwavlly charged with
electricity wlU Interfere vrltb bis mlU or
factory. On the other hand, tbe condemnor
contends that Uie wires are te be strung
overhead at snch distance from the ground,
and more than 100 feet from the quarry ;
that the operatlw of ttie qnar^ will not be
interfered with; that the only chance of
breaking the wires would be from the care-
less mining of the stone; that the quanting
of stone to obtain crude material is not ac-
cessorial to or a part of its milling or manu-
facture into an article of conmierdal use;
and tbat a rock crusher of the character de-
scribed is not sndi a mill <» factory as is
contemplated by the statute. The testi-
mony of both sides revolved around tbe p<^t
of possible Injury to persona ragagsd at
work in the quarry. The exact location of
the crusher relatively to tbe proposed course
of tbe wires is made to appear only by
photographs; and as tbe testimony does not
disclose tmtt tiie operation of the crusher.
Independently of tbe quarry, will be affected
by the stringing of tbe wires tbe legal ques-
tions ixesented are whether this rock crusb-
*ror otaer eases sea same topio and saetfen NT7MBBR In Deo. Dl|^ ft Am. Dig. Kay
122
78 SOUTHBASTBBN BBPOBTBB
(Oa.
er Is SDch a mill or factory as 1b contemplat-
ed by the statute^ and whetba the quarry la
a part of the mill.
[2] We do not deem It necesBBry to decide
whether the "mill or factory" iWerred to in
the statute was Intended to apply to such a
combination of crade Btmcture and [wrtable
machinwy as the record discloses this rock
crusher to be. However that may be, dearly
it was not the legislative intent, in exempt-
ing mills and factories from the operation of
the statute, that such exemption should ex-
tmai to the protection of the quarry from
ffhlch the rock is obtained, which la taken
to a rock crasher to be crushed into smaller
pieces. The operation of a flouring mill has
no connection with the cnltlTation of the
wheat used in milling the flour. A yam or
cloth factory is a thing apart from fields giv-
en over to the cultivation of the cotton which
Is manufactured Into the yarn or cloth. A
quarry is a work for the excavation of stone
or mineral ; the conversion of such stone or
mineral by milling into a commercial, article
is no part of the business of quarrying, nor
vice versa. The statute is designed to pro-
tect a mill or factory which is In actual op-
eration. This protection extends to all ap-
purtenances necessary to the operation of a
mill or factory, such as the maintenance of
a dam in a case where water is the propel-
ling power, and similar adjuncts. But it
does not extend to an exena>tlon from con-
demnation of property from which the crude
material Is taken to supply a mill or factory,
and to be converted into a commercial arti-
cle. We th«*efore think that under the evi-
dence the court did not abuse his discretion
in refusing an injunction.
Judgment affirmed. All the Jnstlcea oon-
cnr.
(U» Oa. ?«)
DUNN et al. v. BTANS et aL
(Supreme Court of Geoi^a. April 18^ 1013.)
fSvltahtu by the Court.)
1.' DXBUS (f 68*)— TAUniTX— OOMFKTBNOT TO
Execute.
In an action to set aside an alleged deed,
on the ground tiiat the grantor at the time of
executing the inatmment was without sufficient
mental capacity to make a deed, and on the
further groond that the grantor waa induced to
execute the instrument by fraud and undue In-
fluence, it was not error, while iDstructing the
juiy on the subject of mental capacity to make
a deed, for the court to charge: ja) "I cliarge
you that it does not require a high degree of
mental power to make a deed. One who has
sufficient mental ability to comprehend what he
or she is doing, and to understand the nature
of the act, and the conseqeocee of the act, has
the capacity to make a deed." (b) "If you
believe Mrs. Patillo had mental capacity suffi-
cient to comprehend what she was doing, and
to understand the nature of her act, and the
consequences of her act, then, gentlemen, X
charge yon to find that she was a sane person,
nnd was capable of makio? the deed, and on
that issue find ajrainst the plaintiffs." De Nieff
V. Howell. 138 Ga. 248, 75 S. E. 202. Other
portions of ttw diaig^ awxeeptsd to. dealt
with the subject of fraud and undue inflnatcfc
[Ed. Note.— For other casM, see Daed^ Gent.
Dig. H 140-1S6; Dee. Dig. | 6&*]
Z Deeds (i 17*) — CORainxKATiOH — Bvwn-
CIENOY— jGlFT.
The deed was executed by a mother in
favor of her daughter, and contained no recital
as to coBrideratlon other than: "TUs Is a deed
of gift" Under such circumstances It was not
error to charge: "I charge yon, gentlemen of
the jnry, that you cannot set amde this deed
for want of consideration; for a deed of gift
from the mother to the dao^ter would be based
upon a good consideration, and the deed would
be good, whether there was any money considera-
tion or not, provided yon believe that she bad
the capadty to make the slleged deed, and that
It was her free and voluntary act"
[Ed. Note.— For other cases, see Deed^ C9ent
Dig. SS 26-37 ; Dec. Dig. { 17.*]
S. New Tbiaz. (| 128*) — Motion — Scrm-
OIENCT.
A ground of a motion for new trial, com-
plaining of a ruling of the judge in admitting
testimony in evidence, is insufficient which fails
to set forth the objection urged thereto, and
to show that it was made at the time the evi-
dence was offered. Hill v. Gbaatain, 138 Ga.
750, 75 S. E. 1130. Belative to some of the
testimony set forth in the eighth amended
ground of the motion for new trial, there was
a statement that it was objected to at the time
it was offered, on the ground that it stated tlie
substance of conversations and transactions
with deceased persons ; but so much of the evi-
dence as was BO objected to was not of the
character complained of. Relative to the re-
mainder of the testimony set forth in the eighth
amended ground, and all of the testimony set
forth in tbe seventh and ninth grounds, there
was no statement as to what ground of objec-
tion was urged to it
(Ed. Note.— For other cases, see New Trial,
Gent Dig. H 257-262; Dec. Dig. f 12a*]
4. Veedict Sustained.
The evidence was sufficient to support the
verdict and the discretion of the trial judge in
refujdng a new tirial will not be disturbed.
Error from Snpertor Court, Heiuy Gonnty ;
B, T. Daniel, Judge;
Action between BCis. A. EL Daim and others
and Bfrs. M. B. Elrans and others. From an
adverse Judgment, the parties first named
bring error. Affirmed.
Napier, Wright & Gox, of Atlanta, and
Brown & Brown, of McEkinough, for plain-
tifCB in error. B. H. Smith, and E. J. Bea-
gan, both of McDonongh, for defendants In
error.
ATKINSON. J. Judgment affirmed. All
the Justices concur.
a» Ga. nO)
BAMHONTREB v. HAMMONTREB.
(Supreme Court of Georgia. April 18, 1818.)
fSylWtut hy th9 Court.)
1. DiTOBCB ({ 268*)— AUUOnT— BNFOBCBUBnT
— GsOUIfOS FOB ConTINUAHCI — ABSENT
Witness.
On the hearing of a rule to attach a hus-
band for nonpaymmt of alimony previously
awarded to his wife, to which the respondent
tiled an answer, alleging infidelity on the part
of hie wife, and praying a revocation of the
•For otbsr oaass set satas taplo and seetlon NUHBBB In Dec. Dig. * Am. Dig. K(»(««i 8«ri«s»4tkp'^M«aii
VAUGHN T. WBIOHT
123
order awardbig alimony, then was no error la
OTermling a motion for a continnance becaiue
of the BMence of a witness, living in a county
other, than that where the hearing was bad,
who, It is claimed, would testify that while the
hnsband and wife were Uving together alie
sought to hare an operation parformra vpon bar
to produce an abortion.
[Bd. NotB^Var other Gase& aee Dtrorce.
Cent. Dig. H 754, 76B; Dec. Dig. | 268.*]
2. NoiTPATUEiffT or AUHoirr.
Under the evidence there was BO mtw la
nuddng the rale abaolnt&
Error from Superior Courts Plck«ns Ooxm-
ty; W. A. Horrla, Judge.
Action by llatUe Hammontrce against
Caleb HamnHmtrea Jndgmait for plaintiff;
and defmdant brings error. Affirmed.
F. G. Tate, of Atlanta, Jno. B. Wood, of
Jasper, and Cbas. H. Grlffln, of Marietta,
for plaintiff in error. Isaac Qrant, ot Jas-
per, for defendant In error.
LUMPSIN, J. Judgment affirmed. All
fba Jiutlcee Cfmcnr.
OB Ga. 7S1)
SHERMAN T. LANB.
(Supreme Oonrt of Georgia. ApiU 18, 1918.)
(Sj/Uahu* ly the Court.)
1. WlTinsSIS (S 141*)— GOVFXTEITCT— TRAHS-
Aonona with Dkckubd— EnpLort.
In a suit brought against an adminiitrator
upon an open account, to recover tbe value of
lumber alleged to have been contracted for by
the administrator's Intestate with the plaintiff,
and to have been delivered, but not fully paid
for, it is error to allow an employ4 of tbe plain-
tiff, who witoeased tbe contract of purchase and
sale of the lumber, to testify for tbe survivinz
party as to the contract Oiv. Code 1910, |
6668» subd. 6.
Pld. Note.— For other eases, see Wi
Cent Dig. H 676-679; DecTDig. % 14l.*l
2. Appkai. avd Ebbob (S 1051*)— Habklbu
BBBOft— Adujssion or Evidence.
But whei^ in snch a case^ the ori^nal
books of acconnt of the plaintiff are admitted
in evidence, after proper foundation laid In ac-
cordance with Civ. Code 1910, { 5769, and no
evidence is offered by the defendant, a verdict
for the pl^ntiff for the amount shown by each
booka to be due is demanded, and the illegal
admisdon of otbor testimony la harmless sr-
ror. See Bailey v. Baroelly, 28 Ga. 682.
[Bd. Note.— For other cases, see Appeal and
Enor, Cent Dig. || 4161-1170; Dec Dig. i
1061.^1
3. Dbnul or New Tbiai. Sustaimkd.
The otiier grounds of the motion for a new
trial are without merit
Error from Superior Oonrt, Early Oonnty ;
W. O. Worrlll, Judge.
Snlt by J. P. Lane against Walter Sher-
man, administrator. Judgment for plaintiff,
and deCmdant brings error. Affirmed.
Rambo A Wright, of Blakely, for plaintiff
In error. B. H. Sheffield, of Blakdy, for
d^endant In ernv.
HILL, J. Judgment affirmed.
Justices concor.
AU tHe
(UB 0«. IDS)
BARROW T. BARROW.
(Supreme Contt of Georgia. April 18, 1918.)
{8yUah»9 hp the Court.)
DZVOBOX (I 285*)— AUXOHT— AlTXlW— iKBUr-
noiBnr Reoobd,
Where a hill of exceptions complains of a
judgment allowing temporary alimony and coun-
sel fees, and it appears therefrom that tbe evi-
dence submitted upon the bearing consisted
only of affidavits made by named persona, some
in behalf of tbe petitioner and some for the re-
spondent, and such evidence is neither incor-
porated u tbe bill nor referred to therein and
attached thereto as an exhibit properly autben-
ticated, and no brief of the evidence has been
approved and filed, so as to become a part of
tbe record, but such documentary evidence is
merely specified by the excepting party as a
part of tiio record to be sent up to this court
by the clerk at the trial court, tbe judgment
will be affirmed, as without such evidence tiiis
court cannot determine the question whether
the judge erred in rendering tbe judgment com-
plained of ; and such affidavita, not being a part
of tbe record in tbe caa^ cannot be specified
and sent to this court as such. Silvey v.
Brown, 137 Ga. 104, 72 S. E. 907.
[Ed._Note.— For oflier cases, see Dtroroe,
Gent Dig. | 768; Dea Dig. { 28S.*]
Error trotn Snperior Oonrt, Tattnall Cotm-
t7: W. W. Sheppard. Judge.
Action by Mrs. Lee Barrow against L, L.
Barrow fbr divorce. From a judgment al-
lowing temporary alimony and counsel fees,
defendant brings error. Affirmed.
Anderson & Girardeau, of Ctaxton, and H.
H. Elders, of ReldaviUe, for plaintiff in error.
Way « Burkhalter, of ReldsviUe, for dstwid-
ant in error.
HILL, J. Judgment affirmed,
tloes concur.
All tbe Jus-
(181 Ok. 7W)
VAUGHN v: WRIGHT,
(Supreme Court of Georgia. April 18, 1918J
fByUtthu$ fty f W Courts
1. RKPLETin (S 61*)— Bail Tboveb— PETinour
— Alleoatior or Dehakd— Xecebsitt.
Where a petition in an action of trover al-
leges tbat the defendant is in possession of the
Eropertv sued for. and it does not appear that
e lawfully acqnired the possession, it is not
necessary to all^e that the plaintiff before the
suit was brought demanded possession of the
defendant and that he refused to comply.
[Ed. Note.— For other cases, see Replevin,
Cent Dig. S 223 ; Dec. Dig. { 61.*]
2. Refiavin (H li 4*)— Bah. Tboveb— Pbop-
bbtt Subject— tax Receipts— Natubb or
AcnoiT.
Trover may be maintained for tbe wrong-
ful conversion of every species of personal prop-
erty which Is the subject of private ownership,
and which belongs to tbe plaintiff and is of
some value to him, though it may have no com-
mercial value. Aocordi^ly trover lies for the
recovery of tax receipts alleged to be of value
to plaintiff.
[Ed. Note.— For other cases, see Replevin,
Cent Dig. H 1, 4-19, 21-26; Dec Dig. f| 1.
4.*]
•Por othsr eases sss ssm* topic and ssotloB NUMBfeR in Dso. Dig. ft An. Dig. K«y-No. Swiss ft B^^^^j^^
Digitized by
124
78 SOUTBBASXKBN RBPObTBR
(Qa.
Brror from Superior Court, Monro* Conn-
t7* B. T. Daniel, Judge.
Actton hj Nettle Tanghn against I^ank
Wright Jndgmait for defendant and ^aln-
tUt brings error. Reversed.
B. L. WllllamB, Jr., of Macon, for plain-
tiff in error. WilllDgham & Wllllngfaam, of
Forsyth, for defendant in error.
FISH, a J. On August 7. 1911, Nettle
Vanghn brought trover and ball against
Frank Wright The substance of the peti-
tion, 80 far as now material, was as follows:
Dtfendant is In possession of three tax re-
ceipts giren hy Hill, as tax collector of Mon-
roe county, to Lloyd, and transferred by
him to i^alntiff. The ■ "receipts were givw
for money paid as taxes on Monroe county,
Georgia, property." On« was for $21.97 for
taxes for 1901;, another was for $17.80 for
taxes for 1902; and the other for $83.20 for
taxes for 1908. Plaintiff "claims titie to
aforesaid property." Defendant refuses to
deliver the receipts to plaintiff, or to pay her
the value thereof. The,rectiptB "are worth
their face value; that is, the amounts for
whidi they were given, plus the Interest at
8 per cent that has accumulated since they
were given to the present time, that Is, $72.97
and $61 interest" The petition was de-
murred to on several grounds. The demurrer
was sustained, and the plaintlfiC excepted.
Counsel for the defendant concede in their
brief that the demurrer raised only two ma-
terial questions, viz.: (1) Did the petition al-
I^PB a demand for the property, made on the
defendant before the institution of the ac-
tltmT (2) Was the sabject-matter of the salt
sQch lUngs of value as trover li'oiild lie for
their recovery?
[1] 1. Od the trial of an actlw of trover
it Is not necessary to prove any conversion of
the property, where the defendant is In pos-
session when the action Is brought Civil
Code, I 4483. The purpo^ of proving a de-
mand by the plaintiff, and a refusal by the
defendant, to deliver the property for the
recovery of wbl<dL trover Is brougbt. Is to
■how a conversion. Grant t. MUler, 107 Ga.
804, 83 S. B. 671. And where It appears that
the defendant was in possession of the prop-
txty at the time the action was Instltated,
and It does not appear that he lawfully ob-
tained the possession, it Is not necessary to
prove a demand and refusal prior to the
anlt ; It has been hdd to be otherwise, how-
ever, if the defendant was lawfully In posses-
sion of the propoty, and no actual conver*
slon was proved. Loveless v. Fowler, 79 Ga.
134 4 S. B. 108, 11 Am. St Rep. 407; Bas-
ton V. Babon, 116 Ga. 878^ 41 S. B. 668. The
petition In liie case at bar alleged the de-
fradant to be In the possession of the prop-
erty, and It did not aiq;>ear Uiat be lawfully
obtained the possession. It follows, tliere-
fore, that It was not necessary to allege
that» before the rait was brought, the plaln-
tUf had donanded flw pn^erty ef flie de-
fendant, and Cbat be had refused to dtilver tt.
[2] 2. Were the tax receipts for whldi the
action was brought mtih things of valne as
could be recovered in trover? Trover may be
maintained for the wrongful conversion of
any species of personal property which Is the
subject of private ownsrshipk where the
person Institatlng the suit is the owner of
satib inopertar and entitled to flie possesion
thereof. Graham w. SmiOi, 100 Qa. 484, 2B
S.lB.22(t,4OUB.A.808.e2Aili.8t Bep.
323; 28 Am. ft Eng. Eae. Iaw. S47. In Lonff
V. BCcIntosh, 120 Ga. 660, 60 B. D. 779, 18 U
B. A. (N. &) 1048, 12 Ann. Gas. 268, it was
held: '^Trover may be maintained by tli»
maker of a pwnissory note against the
payee, after the same Is fully paid, if tl»
paye^ having the note in his possession, re-
fuses to' deliver it to the maker upon demand,
or If, after paym^t the payee disposes of
the nobb." In the opinion it was said: '^he
contention that trover will not lie for a
promissory note after payment Is based on
the idea that it is no longer of valufc This,
we think, is not sound in principle. • • •
After maturity, or even after payment it Is
still Valuable as evidence. If suit should t>e
brought upon It the production of it by the
payee or transferee would make a prima
fade case, If It were not canceled. On the
other band, its possession by the maker
would be valuable evidence to show payment
So that a note, even after payment has a
value as evidence. It is property and valu-
able to the owner, although it may not have
a market value. In Moody v. State, 127 Ga.
821, 66 S. B. 993, a written notice which was
fastened to a telegraph pole and whldi
warned trespassers against hunting or fish-
ing on land was held to be property which
might be the subject of malicious mischief.
Suppose, Instead of a promissory note, upon
payment of the debt the debtor should re-
ceive a receipt and this should be stolen or
wrongfully converted, would there be any
doubt of its value as evidence, and tliat the
ownee might recover it In an action of tro-
ver? In Fullam v. Cammlngs, 16 Vt 607, it
was held that where a debtor had made cop-
ies of the creditor's accounts against him,
and the creditor had got possession of such
coi^es and refused to redeliver tbem, the
debtor might bring an action of trover there-
for." It was further said: "But, where it
[the note] has been paid, its amount will
furnish no measure of damages. In that
evedfthe damages recoverable would be
those actually resulting from the conversion;
and, if a money verdict was asked and
no special damages shown, probably the
damages recoverable would be nominal."
There are a number of cases wherein it has
been held that articles of no commercial val-
ue ma^ be recovered In trover. Among such
cases are the following: Earle v. Holdemens,
6 Bam. & Cress. 462, whereln-a batch ef let-
Digitized by VjOOglC
Gil)
BUKBOW V. S0T7THEEN BY. 00.
125
ten was reaammd In trover; so Ih Glendon
T. Dinneford, 6 O. & P. 18, a TW^rery In
troTer for nominal dam^es was allowed tar
tbe conversion by the dtfendant of certain
letters written to the lOalntiff by a yonng
lady to whom he was paying hla addressesi
and also two boohs costalninc his answers
to vaxb letters .**aDd other obserratloin."
Again In OUver r. Oliver, U OL a (Ni &)
ISO, it was hdd that the receiver of a
letter has a soffldent property tn tbe paper
upon which It la written to entitle hhn to
maintain detinue for it against the sender,
Into whose hands it has eome as a bailee.
The Supreme Court of the- United States, In
Teal V. Felton, 12 How. 284, IS X4. Bd. MO,
held that where a postmaster refoaed to de>
Uver a newspaper upon whldi there ms an
"Inltlalt" unless the person to whom it was
addressed would pay letter postage, tbe post-
master was liable in an action of trover. . In
Drake r. Auerbaeh. BT tflnn. 606. 3S N. W.
86T, It appears that pending a oontroverav
between the plaintiff and deffendants over
thecoet of oonstmctlng a building by plaintiff
for defendants, they reqoeated that he fur-
nish to them ttls vouchers, wbldb he could
not do, as they had been destit^ed by' fire.
Be procured, however, duplicate or copy
vouchers, which he delivered to them, to-
gether with a general statement of expendi-
tures, and an affidavit of Its correctness by
his bookke^er. Upon refusal of the de-
fendants to return all of these documents to
the plaintiff. It was held that he was entitled
to recover the same In an action of claim and
delivery, which is a modification of tbe com-
mon-law action of replevin. In the opinion
It was said : "These papers have no market
value; and the customary rule in replevin
cannot be adopted when measuring their
worth. Thej have a peculiar value to plain-
tiff, governed largely by his needs and the
purposes for which they may be utilized. In
such cases, as In actions for conversion of
property of like character, much must be left
to the sound discretion of tbe jury, and It
Is not error to allow the owner to recover
their value to him, even If they are of trifling
value to others." The court dted tbe case
of Bradley v. Oamelle, 7 Minn. 331 (Gil. 200),
wherein it was held: "Where the owner of
Sioux half-breed script is wrongfully de-
prived of the same, he may recover the value
of the same to him, although tbe script being
unassignable is valueless in the hands of
third persons, and notwithstanding dupli-
cates might be obtained from the land ofllce
at Washington on proof of loss of originals.
A wrongdoer will not be permitted to assert
such a defense." Our statutory action of
trover lies where detinue, r^evln, or trover
lay at common law. Delaney v. Slwehan, 138
Oa. 518. 75 S. B. 632.
We have no hesitancy In holding, both
upon principle and authority, that under the
allegations of the petition In the case at bar
the plaintiff was entitled to recover the tax
receipts for wbleh tbe action was brought
While we do not perceive how such receipts
have any face value, or why they should be
worth the amounts irtUdi they Indicate were
paid as taxes, the ftict that th^ may be over^
valued in the petition does not necessarily
indicate that th^ are of no value to the
^aintlff, even though the? may have no
commercial value. According to the petition^
the receipts were ttw property of the idaln-
tut They were of some value to her. They
were In possession of the defradant when
the suit was brought She desired to obtain
possession of them. Defendant refused to
deliver them to her, and in oar opinion she
was undoubtedly entlUed to recover them.
Accordingly the court erred In sustaining the
demurrer to the petition and in dismissing
the case.
Judgmoit nveraed. All the Jnstlcea eon-
ear.
(IN Oe. Ml)
WOOTBN St sL V. WAU>BSP et al.
(Supreme Oourt of Oeorgla. April IS; IMS.)
fSvUabut by the Oourt.)
Amu. AND BiaOB <| 1010*>— JUDQHKIT—
fiTvTDnrox.
The case was tried, by consent, before the
judge without a jury. No error ol law Ib com-
plained of. The evidence Is conflicting, and
sufficient to support tbe judgment rendered.
[Ed. Note.— For other cases, see Apnea] and
Brror, Cent Dig. H 8970-8862, 4024 ; Dep. Dig.
U010.»]
E!rror from Superior Court, Fulton County ;
J> T. Pendleton, Judge.
Action between W. J. Wooten and others
and M. H. Waldrep and others. From an
adverse judgment, the parties first named
bring error. Affirmed.
McMillan d; Eh-wln, of ClarkeavUle, for
plaintiffs In error. I. H. Sutton, of Clarkes*
vUl^ and A. B. Wilson and A. s. Bamsaor,
both of Atlanta, for defendants in error.
DYAMS, P. J. Jodgment afllTWiea.
the Jostioes concur.
AU
(1» Oa. m>
BUBBOW V. SOUTH£IEtN B7. CO. et al.
(Sopreme Court of Georgia. April 18, 1018.)
favUo^ hp tk€ OouHJ
1. Sk&kches aivd Seizukeb d 8*)— AonoK^
RlOHT OF BECOVEBT.
On the trial of an action for an alleged
unlawful search of tbe plalntifTB dwelling, il>
legal arrest, folse ImpriBOnment, and assault and
batteiTi after instructing the jury to the ef-
fect that, If the plaintiff did not consent that
his' houae be searched, and both tbe defendants
participated In the sesreli, there being no con-
tention that they had a sewcb wmxraat, th« jury
would be authorized to find for the plaintiff
such a anm as would compensate him for an
•Ite ednr.MWM ••• aaaie ttyle asd MatloB NUliBIR ta Dm. Dig. 4 Am. Dig. Kigr-]
126
78 SOUTHEASTERN BEPOBTEB
(Ga.
nnlawfnl Kardi, it wu nrenible error (or the
Judge to add to such isBtnictioD the following:
*1%at ia, provided you find that the imprisou-
ment was false." Plaintiff'i right to recover for
an nnlawfal search was not dependent npon a
•obseQueot false imprisoament
[Ed. Note.— For other easei. see Searchea
and Setznres, Cent. Dig. 16; Dec Dig. | a*}
2. Criuinai. Law (§ 207*)— pRELunnABT Ek-
AKINATION— JdBISDICTTON— COUUITICBIIT.
The court did not err, on the trial of an
action of the character referred to in the pre-
ceding note, in instructiDg the jury to the effect
tiiat, while a magistrate of one connty of this
state may lawfully issue a warrant against a
person charged with committing a crime in an-
other conn^ thereof, he has no authority in
such a case to hold a court of inquiry to de-
termine whether or not the accused shall be
committed; this eatbority being vested only in
a magistrate of the county wherein tiie crime
is charged to have been peqietrated. Pen. Code
1910, si 909, 919, 920.
[Ed. Note.— For other cases, see Criminal
Law, Cent Die. it 414. 418. 440. 472-475;
Dec; Dig. | 20?.»1 " • •
Z. iKBTBUOnONS.
Nor were the other Instructions complained
of erroneona for any reason assigned.
4 Appeai, and Ebbob <} 1078*)— Bsnr-Ae-
SIOHICXNT OF Ebbob— ABANDONlfBNT.
The assignment of error upon the refusal to
strike a designated part of the answer of the
defendant corporation, not being referred to in
tbe brief for plaintiff tn error, Is considered as
abandoned.
[Ed. Not&— For other caaaa, see -Appeal and
Error, Cent Dig. U 426&-^; Dec. Dig. 1
1078.<1
Error from Superior Court, Paulding Coun-
ty ; Price Edwards, Jndg&
Action by Will Burrow against the Sonth-
em Railway Company and others. Judg-
ment for defendants, and plaintUT brings er-
ror. Reversed.
A. L. Bartlett, of Dallas, for plalntlfT In
error. Maddox, McCamy i& Shumate, of Dal-
ton, and A. J. Camp and C. D. McGregor,
both of Dallas, for defendants In error.
FISH, a J. Judgment reversed. All the
JaBdoeB concur.
0» 6a. 8X4)
PBESLBZ T. JONES & OOLESBT.
(Sivanie Oonit of Georgia. April 18. 1018.)
fBylUtbvt ly the Court.)
Exceptions, Bill or Q 68*)— Sebvics— Sur-
nCIBNOT.
Where there was indorsed on the bill of ex-
ceptions an entry, signed by counsel for the
plaintiff in error, statins: "I hereby certify
tliat I have served J. M. Moon, attorney for
defendant in error, with a copy of the bill of
exceptions and certificate of court, by mailing
him a copy of the same at CarteravUle. Geor-
gia, on the 29th day of November, 1912"— and
no oUier service, or acknowledgment or waiver
of service, appears, the writ of error will be
dismissed on motion.
[Ed. Note.-^For other cases, see S!»WDtion&
BUI of. Cent Dig. || 100-^; Dec IMg. {
68.*)
EIrror ttom Superior Court, Gordon Coun-
t;; A. W. Flte, Judg&
Action between W. U Pcesl^ and Jones ft
Oglesby. From the judgment. Pireslej brings
error. Dismissed.
J. If. Lanft €t Oalhonn. Cor pUntUf in er-
ror. J. U. Uoon, ct OartersTilleb for diAnd-
ant in error.
LUMPKIN, J. Where a nagant has oib-
talned a Judgment In the trial court, and St
Is sought to reverse sudi Judgment, the stat-
ute requires service on tb» opposite partj
or his attorney to be made In the manner
ther^ pointed out GItU Code, f 6160; It
is important that tbe adverse party or his
counsel should be served, so that th^ may
know of tbe exception taken to the Judgment
and the effort to reverse it If service of
bills of exceptions generally vrere'- permitted
to be made by mailing a copy to counsel, it
would doubtless frequently happen that cases
would be heard In this court wltiiont any
knowledge on the part of the litigant or
counsel interested In sustaining the Jodg-
ment. The Legislature have not thought It
desirable to risk to the uncertainties of the
mall the serving of bills of exceptions upon
parties In this state; nor Is there any pro-
vision for traversing such an entry and the
hearing of evidence by this court as to wheth-
er a paper so mailed was received. In only
one case have they provided that mailing a
notice shall be sufldent service of a bill of
exceptions to authorize this coort to take
Jurisdiction. Such a provision Is made In
case of a nonresident of the state, who Is
not represented by coun&el, so that he may be
served with a copy of the bill of exceptions.
Civil Code, I 6161. In that event the clerk,
upon request of counsel suing out the bill of
exceptions (not the attorney himself). Is re-
quired to give notice to the nonresldait de-
fendant by mailing a letter addressed to him
at his post office. This was not allowed as
being the most desirable method of service,
but as matter of necessl^, where It could not
otherwise be perfected; and It is declared
that tbe Judgment made shall bind the de-
fendant so far as his assets In this state are
concerned. No such necessity existed In the
case under consideration, and the service was
not made In the manner which the statute
requires. Albrltton v. Tygar^ 77 S. B. 28l
Writ of wror dismissed. AU the Justices
concur.
(ia» OS. 781 )
TEUPPO T. W. J. BELL ft GO.
(Sivrwie Court of Georgia. April 18^ 1S18.)
(ayUahna ty the Court.)
1. PBINCIPAL and AoEHT (} 159*)— IdABILITT
or Agent- ToBTioua Acp-Convebsion.
Tbe substance of the material allegations
of a petition brought by Bell & Co. against
Trippe was as follows: Sheffield delivered to
the defendant, who as weigher had charge of
a public warebouse for the storage of cotton, a
•for other cases see sasu tople and sseUoa NVHBBK la Os& Dig. A Am. Dig. Ksy-Ho,
Digitized by
ORAT T. COLLINS
127
certalB iMlt of cotton, deicrfbed hr wekht and
a momber marked tbenoo. and reodved nom de-
fendant a warelioase receipt (or the eame, which
next day he transferred in writing to the plain-
tiff, who has since retained Its poesesaion. 8nb-
■egnen^ the defendant, without legal anthority,
deliTered the cotton to one Singletary, knowing
that the latter did not own It, bat that Sheffield
or his aBBignee did. On account of these facts
the cotton had been lost to the plaintiff, and
ba bad bean damaged thereby to the amoant <rf
Its Taloe, whidi was set forth. HHd, that a
motion made at the trial to dismiss the petition
upon the ground that it did not set forth a
eaose of action was properlr OTcmUed, as the
alleged conduct of the defendant amounted to a
conversion fliptrot Holmes, 1 Ga. 381), and
he was liable for hia tortious act, though done
in the capacity of agent (Cir. Code lUlO. | 3ttl»).
[Kd. Note.— For other cases, see Principal
and Afent. Gent. Dig. H 099^; Dee. Dig. i
2. Tbui. (S 234*)— iKsranonoNS.
A charge was not erroneous, on the ground
^t "under the pleadings and the evidence [it]
did not state correctly the law goTeming the
case," wherein the judge apedfically set forth
the allegations of the petition as above sum-
marized, and Instructed the jury that, If under
the evidence th^ believed UMse allegationa to
be tme, then they would be avtlioriaed to find
in &ivor of the plain UifL
[Ed. Note.— For other cbms, see Trial. Cent
lAg. IS BS'irSBS, Bee; Dec. ^Mr I 2S4>]
S. Yerdict Sustained.
The evidence anthoriced the verdict, and the
eoort did not err in r^nainf a new tziaL
bror from Snperior Oonrt, Duly Ctonnty:
W. CL WoTTlll, Judge.
Action by W. J. Bell A Oo. against W. H.
Tripp& Judgment for plalntifl^ and defend-
ant brlngB error. Affirmed.
Bambo & Wright, of Blakely, for plaintiff
in error. B. H. Sheffield, of Blakely, for de-
f aidant in error.
FISH, C J. Jndgment afflimed. All tbe
JnaUcea concur.
an Oa. 778)
GRAT T. COLLINS et aL
<Snptenie Conrt of Georgia. April 18, 1913.)
fSylUtbuM hy the Court.)
1. FaAUDTnLENT GONVETANCZB (H 278, 808*)—
Cancblution or Instbdkbrts — Hdsband
AND Win— BnBDKH 0* PBOOF — OtTBSTIOIC
roa JuBT— SufTiciENor or Evidence.
The evidence examined, and held to have
made issues that should have been submitted to
a jnry.
(a) Where a transaction between a husband
and wife ia attacked for fraud by the creditors
ot ttM bnaband, tiie onus la on tibe husband and
wife to show that the transaction was fair.
[Ed. Note.— For other caeea, bm _Fnu^ulent
Conv^ances, Cent Dig. || 801, 802, 92S-940;
Dec. Dig. fS 278, 308.^
2. PUADINO (| 259*)— ANBWn— AUXNDUENT.
Mattera wnlcb are defensive to the plain-
tiCa action may be aTerred in amendment to
the answer, even though anch mattera may be
insufficient to afford the affirmative equitable
relief therein prayed.
[Ed. Note.— For other casea, see Pleading,
Cait.DtK.i|78S-792; Dec DTg. f 2B9.»3^
S. FaauDUUMT OoHnrrAiroM (| 286*) — Ad-
losBiBiuTr or Bvnwnci — Hubbard and
Wife.
Where a wife executes to her husband a
deed to her land under the belief that she ia
giving a security deed to another to {uroenre
money for her own benefit, and this deed is not
recorded until after credit is extended to the
husband, in the absence of evidence that the
credit was extended on tlie husband's ostensible
ownership of the land, it ia competent for the
wife to show that the deed to her fauaband was
procured by Imposition.
[Ed. Note.— For other cases, see Fraudulent
Error ttom Superior Oour^ Early County;
W. O. Worrill, Judge.
Action by A. H. Gray, trustee, against BL
S. CoUina and otbera. Judgment for defend-
ants, and plalntltr brings error. Iteversed.
Bambo & Wright and a L. Glessner, all of
Blakely, for plaintiff In error. Pope & Ben-
net, of Albany, and B. B. Colli oa and W. G.
Park, both ttf Blakely, for deCendanti In v
ror.
EVANS, P. J. The trustee in bankruptcy
of the estate of B. S. GolllnB brought a peti-
tlon against the bankmpt, his wife, Mrs.
Emma T. Oolllns, and his son B. B. CoUlns,
praying for the cancellatloD of certain deeds,
and a decree that the title to the land there*
in described la in tile bankrupt as against
his creditors, wboee debts were in existence
at the time tbeoouTeyance from the bankrupt
to his son was executed, to wit, Octob^ 14,
1908. On the trial it appeared that Mrs. Em-
ma T. GolllnB waa the owner of a tract of land
which she conveyed on November SO, 1901,
to her huslmnd by warranty deed upon an al-
leged consideration of fSOa This deed was
not recorded until October 14, 1904. Inter-
mediate between the execntton and record of
the deed E. S. Collins purchased certain cot-
ton-gin madiinery from the Llddell Con^any,
giving bis notes therefor, red ting that they
were given for the pnnfliflBe of the niachln-
ery, with reserratloii of title in the vendor
until the ftall paymnt of the purduae i^rlce.
Suit was brought on these notes on June 28,
IOCS, and judgment waa obtained on October
0, 1900. On December 20, 1006^ E. & 0(^8
conveyed the land warranty deed to his
wife^ reciting a consldwatlfm of lore and af-
fection; and this deed was recorded on Jan-
nary 17, 1907. Mrs. CoUlns on December 26,
1900, conveyed the land, by warranty deed,
reciting a consideration of love and affection,
to her son B. R. Collins, who on the same
day amveyed the land to Us ftitber, E. S.
Cojlini^ by deed reciting a consideration of
love and affection. Both of these deeds were
recorded on December 28, 1906. On October
14, 1006, E. S. Collins conveyed the land to
B. B. Collins, who on the same day conveyed
It to Emma T. Collins; both deeds reciting
a oHidderatloa of love and affecti(m, and
•For oUHT asses see ssms topU sad sastlon HUHBBB la Deo. Dig. 4 Am. Dls. Key-N«)fglrt!lR{4)
128
78 80UXEBASTEBN RBPOBTBB
(Oa.
both bdnc teooMeS Deeonlier 14, 1008. X..
S. OoUlns ma adjudged a bankrupt on his
T<dTintar7 petition 'in Decembo', 1900, and
has not been discharged. The plaintiff 1b bis
duly aiKNilnted trostee.
- [1] Mrs. Emma T. Collins testified by In-
terrogatories and rabeequoitly by deposition.
In ber first testimony abe said she went Into
possession of tbe land soon after sbe pnrcbas-
ed 1^ tbat her bnsband looked aftn It for
ber, and that sbe became Indebted to the
Bank of Blakely tbrooi^ D. W. James. Sbe
had no recollection of having «cecnted any
papers to James, ,bat signed a paper to the
Bank of Blake^. She did not recall making
a deed to her bnsband in 180L; ber husband
never paid or promised to pay to her any
money for the land, nor did she expect blm
to pay for the laud. She knew her husband
bought the gin ontflt ftom the Uddeil C!om-
pany, and at that time he owned no land, but
he did own some personal property of small
value. She did not execute a deed to her
son ; that ia, she did not know that she did.
She signed some papers without looking orer
them. HaTlDg confldeaice lu her husband, she
signed some paper at his request, thinking
It was a mortgage. Her husband represented
that the purpose of signing the .papers which
sbe executed was to get money with which to
pay D. W. James, and she signed the paper
without reading It It was not until after
tbe Institution of the present salt that she
knew that she had made a deed to her son,
and that he, In tnm, had conveyed tbe land
to her hustwnd. It was not her purpose to
make a deed of gift to her son, so that he
could make a similar deed to her hnsband,
and. If such deeds be construed to be gifts,
she desired to revoke them. In the signing
of these deeds she had absolute confidence
in her husband, was under his Influence In
matters of this kind, and signed the deeds
because he told her to sign them. In ber
deposition she testified that since her testi-
mony was taken by interrogatories she had
been Informed toy her hnsband that she did
execute the deed of November 30, 1901 ; but
she deposed that no consideration passed
from him to ber. Her husband always man-
aged her property; she has from time to
time executed mortgagee at bis request to
meet expenses inenrred for her when he
operated her farm; she had absolute con-
fidenee In him, and implicitly relied on his
Judgment; honor, and Int^rlty to make the
necessary financial arrangements for her
flunnlng operations; at bis instance and re-
qnert she dgned the deed of Kovember 8C^
1901, bdlevlng at Oie time; because be "re-
qnestetf* <r^resented1) to her that tt was a
mortgage to borrow money for' the purpose
ot paying expesises and operating her fanu
for the year 1902 as well as to pay her past-
due obligations; die did not execute the
deed 8o as to permit him to onbark in busi-
ness and secure credit txma third persona;
after bis retirement from business in 1887,
be looked after her farm, and did not operate
any bustnesB of his own until he began the
ginning bosinesB in 100«; be has never ob-
tained any credit on her land with ber con-
sent or knowledge; she was not advised or
Informed of the execution of the deed from
him to beraelf in 1906, and baa never seen
It, and first heard of Its since this
snlt was brought
B. B. Collins teatifled: He Is an attorney
at law, and had charge at the transsctton to
secure a loan firom the Soatbem Mortgage
Company. He represented the company in
connection with another attorney ip. the mat-
ter of securing loans. There was a pastdue
Indebtedness of his mother to the Bank of
Blakely. In the negotiation of the loan it
was necessary for her to sign the papers be-
fwe an officer with a seal, which would ne-
cessitate her coming to Blakely at different
times. He conferred with his assodate, who
was a more experienced attorney, and he
suggested the course which was pursued,
viz., to have his mother make a deed to- him,
and he. In turn, make a deed to his father,
who would negotiate the loan in bis own
name, and, after the loan was negotiated, his
father could reconvey the land to him, and
be to his mother, and thereby revest her
with the title without Impairing her title to
tbe land. This suggestloa was acted on ; and
this Is the reason for the execution of the
deeds made In 1906 and 1008. The witness
knew nothing of the deed dated In 1901 untU
the deed of his father reconveylng the lend to
her was made. Tbe main purpose of the
whole transaction was to get the loan for his
mother without the necessity of lier being In-
convenienced In making trips to sign the dif-
ferent papers before an oflicer with a seal;
he did not intentionally perpetrate a fraud
on his mother in procuring the deeds, but,
if he mlsr^resented matters to her. it was
because he was under the wrong Impression
by reason of bis associate counsel's advising
him at the time how to fix up the papers,
and if he said anything further at all than
what his associate counsel had advised he
did misrepresent It to her. He made no
willful or fraudulent misrepresentation, but
acted lu good faith. The deeds are In bis
father's handwriting; his father was ad-
vised of the plan suggested by his associate
counsel, who was representing the Llddell
Company at the time; and the witness told
the drcumstanees to- his moth^. He ex-
plained to bis associate counsel that it would
be a serious disadvantage to his mother to
come to Blakely to sign the various papers
pertaining to the negotiation of tbe loan, and
his associate counsel aaid, "Well secure the
loan in your fatiier's name; have the title
put into him. I think when he comes In I
can tlx tbe deed." He told his associate
counsel that his mother had already convey-
ed the laud to bis father, whoy^eeQedi
' Digitized by
BROOKS V. WIN££JES
129
la DO good," and advlaed the recoDTeyazice of
the land to his mother and the othor eoavey-
ance referred to.
B. a. Collins testified that he never repre-
aented to the Llddell Company or any one
else that he owned the land. About the time
that bis wife executed the deed of 1901 he
ttOH her that she would have to give the land
aa security for a loan from the Bank of
Blahdy, but vhax she signed the deed he
did not tell her whethor It was a deed or
miwtgag^ though she tboui^t It was a mort-
gage. He undertook to secure a loan from
Mr. Weathers, and turned the deed over to
him,, who bad it put on record.
On this eridenoe a verdict was directed for
the defendanta
1. We think the court should have submit-
ted the issnes to the jury. Attbettmethedebt
of the LlddeU Company was oontracted by
B. S. CoIUna, the paper tftle to the land was
In Mm. On December 20, 1906, he recon-
Teyed the land to his wife, who six days lat-
er cooreyed ft to ber son, who on the same
day conveyed it to Uie bankrupt About two
years thereaft», and while the suit of the
Uddell Company was pending against tilm,
E. s. Collins conveyed the land to bis son,
who, in turn, conveyed It to hla mother. The
defendants in their testimony undertook to
explain these transactions. It Is not con-
tended that any of these deeds were execut-
ed upon a valuable consideration. 'The deed
of 1901 was alleged to have been procured
by Imposition, and the deeds of later date
are alleged to have been executed so aa to
save Mrs. Collins the iuconvenloice of mak-
ing various trips in the negotiation of a loan
on the land, which was procured by her hus-
band for her benefit At the time of the ex-
ecution of the first deed her husband was
possessed of but little property, and was be-
ing sued by the LlddeU Company when the
later deeds were executed. The Insolvency
of the defendant E. S. Collins at the time of
these later conveyances was fairly Inferable
from the evidence. The deeds purport on
their faces to be gifts from the grantor to
the grantee. It was for the Jury to say
whether these deeds were made for the pur-
pose of delaying or defeating the bankrupt's
creditors, or as contended by the defendants.
Blackburn v. Lee, 137 Ga. 265, 73 S- £. 1.
The parties to the transactions are hu^and,
wlf^ and son. A wife may give property to
her husband. She may also contract with
him; but, when a transaction between hus-
band and wife Is attacked for fraud by the
creditors of tither, the onus is on the hus-
band and wife to show that the transaction
was fair. Civil Code, | 8011. Transactions
between husband and wife and near rela-
tives, to the prejudice of creditors, are to be
tiosely scanned and thedr bona fides clearly
established. Booher v. WorrlU, 67 Ga. 235;
Smith V. Wellborn, 75 Ga. 790. It was there-
fore erroneous for tlie court to direct a ver-
dict
[2] 2. Mrs. Collins was allowed to amend
her plea by alleging the drcunastances at-
tending the execution of the various deeds
as testified to by her, and praying for their
cancellation. It was urged that no sufficieut
cause for the cancelation of the deeds was
averred. Even if it be admitted that the
matters pleaded were Insufficient for the af-
Ihrmattve relief prayed by her, still th^
were relevant as explaining the various
transactions relied on by the plalntlfl as con-
stltnUng fraudulent transfers of the debtor's
property.
[3] 3. With respect to the deed from Mrs.
Collins to her husband executed In 1901,
which was not recorded until after the debt
to the credltmr was created, in the absoice
of testtmony authorizing an inference that
credit was extended on the faith of the hus-
band's ostensible ownership, it was compe-
tent to show that it was without considera-
tion, and executed under circumstances neg-
atlvlng any lntentl<»i to put the title In the
husband. If the creditor did not extend
credit to the husband on the faith of his os-
tensible ownership of the land, he cannot ob-
ject to the assertion of the wife's bquI^ in
the land.
Judgment reversed. All the Justices con-
cur.
(181 0«. 781)
BROOKS V. WIKKLES.
(Supreme Court of Georgia. April 1^ 1018.)
(BvUalui ly the Court.)
1. Gqvbrants (S 102*)— Action oh Wabbantt
—Right of Recovkbt.
Id an action on a general warranty of title
to land against the claims of aU persons, an
evictioD or equivalent distorbancfl oy an out-
standing paramount titte must be shown, to en-
title the plaintiC to reoovw. Darley v. Mallary,
136 Ga. 345, 71 S. E. 471.
[Ed. Notft— For other cases, see Covenants,
Gent Dig. H 157-168; DecJ^ f 102.*]
2. Covenants (S 88*)— Action on Wabbantt
-tRioht or Bbcovibt— Notice.
If in such a case the plaintiff relfea upon
ouster in consequence of legal proceedlnga, it
must appear that the warrantor had notice
thereof and an opportunity to defend. Civil
Code 1910, { 4197. See Clements v. Collins, 50
Ga. 124; Haines v. Fort, 93 Ga. 24 (3), 18 S.
E. 994.
[Ed. Note.— For other eases, see Covenants,
Cent Dig. SS 07, 98; Dee. Dig. 1 Sa*]
8. CovTHANTs (S 89*)— Execution (| 190*>-
Claiic of TniBD FEasoNs — Pasties — Ao-
noN OR Wabbantt.
The defendant in execution is not a party
to a statutory claim case, where the only issue
made ts the ordinary one between the plalntilt
in execution and toe claimant Anderson r.
Wilson, 45 Ga. 27: Central Bank t. Georzii>
Grocery Co., 120 Ga. 883, 884. 48 S. E. 325.
Not being a part; himself, he cannot voncb ttiii
warrantor in such a case, so as to give bim aju-
opportunity to defend his title, and concludfl
•Fw otiwr cases «m smm topi« sad seotloa NUMBER la Dm. DIs. * Am. Dig. K«r-Me. Series
78S.EL-6 DigHized
130
78 SOUTHEASTBRN REPOBTBB
(Ga.
bim hy a verdict and ^idgment fbat tiw pwouetj
Is not subject to the execution.
[Bd. Note.— For other cases, see GoTenanta,
Gent Ttig. I 99; Dec. Dig. I 89;* E^ecntion,
Cent Dig. fSGS; Dec Dig. { 190.«],
4 BlKCDTION (i 275*)— lavT— Validitt.
Where an ordinary execution against two
or more defendants is levied npon land, and the
entry of levy does not show whose property
the land was levied on, the levy is Insufficient,
and, unless amended, a sale made thereunder
will not divest the title of the real owner of the
land. Cooper v. Yearwood, 119 Ga. 44, 4S S.
E. 716.
[Sd. Note.— For other cases, see E^ecntlon,
Cent. Dig. 11 10, 148, 840^ 791-796; Dec. Dig.
I 275.*]
6. GovinANTSjl 122*)— Bbbaoh or Warbantt
—Right of RIeoovsbt.
Accordingly, on the trial of an action for
alleged breach of a general warranty of title to
land, the refusal to grant a nonsuit was error,
where the only evident in b^alf of the plain-
tiff, the warrantee, showed Uie following facts,
via.: An execution in favor of the officers of
court and against the warrantee and another
was levied npon the land purchased by the war-
rantee from his warrantor with a covenant of
geoeial warranty, the levy, however, not stat-
ing as whose property the land was levied on:
a atatntoiy daim was filed thereto by a third
person; the warrantor was aubpcenaed by the
warrantee as a witness for the plaintiffs in
execution and, on the trial of the usual issue
in the claim case, testified in their behalf; and
a verdict was rendered finding the property not
subject, and a judgment in accordance there-
with was entered.
(a) It is not necessary to decide In this case
whether the facta that a warrantor is subpoenaed
by his warraotee in a case to which the latter
is a party, and appears and testifies therein, con-
stitute, withont more, suflScient notice to vouch
the warrantor, so as to require him to defend
his title.
[Ed. Note.~-For other cases, see Covenants,
Cent. Dig. S 224 ; Dec. Dig. S 122.*]
Error from Superior Court, Haralson Comi-
ty ; Price Edwards, Judge.
Action by S. J. Winkles against H. L.
Brooka. A nonsuit was refused, and defend-
ant brings error. Reversed.
Oriffltb ft BCattbewa, of Buchanan, for
ididntlfr In error. 3. 8. Bdwarda and W. F.
Boblnstm, both of Bndtanan, tta defendant
In error.
FISH, G. J. Jadgment rerened. All tbe
Justices concur.
(U9 729)
HONBOS et at r. E8TES.
(Snpreme Conrt of Georgia. April 18^ 1918.)
(SyUcliu by tA« Court.)
Watbbs and Wates C0UB8BS (S 179*>— Mux
PdRPOSIB-'AOXION lOB DaKAOBS— INSTBUO-
noif.
In a suit by one millowner against a lower
millowner on the same stream to recover dam-
ages alleged to have been sustained in conse-
auence of the raising of the height of a dam by
be lower millowner so as to back the water in
the stream to a height that interfered with the
operation of the plaintiffs mill, the conrt erred
In charging the jury that, "if at any time this
water was off the wheel [of the plaintlflTs mill],
•Forotbar
the defendants wonld have no right to put it
back on her, althongb previous to this bme it
may have been on her; that Is tbe rule that
will govern you in that respect;" there being
evidence from which the jury would have been
authorized to find that for more than 20 years
the dam of the lower millowner had been erect-
ed and maintained at such a height as to back
the water np to its present level before the
erection of the upper mill, and that if Aere
had been a subsidence of the waters In the
millpond, so that the flowage backward did not
affect the wheel of the opper millowner, anch
subsidence was in consequence of leakage ; that
the raising of the water bad been caosed, not
by raising the height of the lower dam, but by
the repairing thereof ; that the lowering of the
level of the water had been temporary, caused
by use of the water or leakage, and not Cor
sncfa a length of time as would cause a loss of
the easement by abandonment or forfeiture by
noQuser under tite provisions d tba OivU Oode
1910. i 3644.
W;Bd.>Noto.— For other cases, see Waters and
ator Couraes, Gent Dig. J| 244-250, 256-
259, 263, 2W ; Dec Dig. f 179.*]
Error from Superior Court, Haralson Coun-
ty: Price Edwards, Judge.
Action by Millie Bstes against Mrs. H.
C. Monroe and others. Judgment for plain-
tiff, and defendants bring error. Reversed.
J. S. Edwards and Griffith & Matthews, all
of Buchanan, and H. J. McBride, of Talla-
poosa, for plaintiffs in error. Jas. Beall and
B. F. BoyUn, both of Carrollton, for defend-
ant in error.
BECK, J. This was a suit to recover
damages alleged to have been caused by the
act of a lower millowner In baddng water by
raising the height of a dam, so as to cause
it to interfere with a wheel which famished
the power by which the plaintiff's mill was
operated. The defendants answered, in sub-
stance, that the dam had not been raised
beyond the height at which It had fonnaly
been built and maintained for a long period
before the erection of the idalntlfPs mill;
that, while leakage in Uie lower dam had
been stopped to a certain extent, Qie repairs
did not raise the wat^ to tbe hdgbt of the
original dam. And It was also contended by
the defendants, as shown by the evidence,
that, If there had been a snbsldraioe of Qie
water as raised 1^ tba original dam. It was
caused by leakage ; and it was insisted that
by r^alrlng tbe old dam tliey had not raised
tbe water 1^ semal in^es as high as Uuy
had a right to raise It, when the capadtr of
the original dam is taken into consideration.
There was evidence which would have au-
thorized the jury to find that title dam of the
lower millowner as OTiginally built was ot
mdh a height that it would have raised tlie
water in the stream npon which the miUs of
both the plaintiff and the defoidanta were
located as to <nuse tbe waters to rise to a
height of as great or greater than ttiat to
which they were raised after the repairs of
the lower dam, which are complained of lu
the plalntifTs petition. While there is a
I MS SUB* t^ sad Motion HUHBBR In Deo. Dig. a Am. Dig. ^f^ti^§t{ '%^'^*S^A^tl9^4f<^*"
TOLBERT T. STATB
131
conflict of evidence upon this lasae, the Jury
would have been authorized by the evidence
to And with the defendants as to this con-
tention. And there was also eWdence tend-
ing to show that the dam of the lower owner
bad been malntidned for more than 20 years
prior to the erection of the mill of the plain-
tiff. That being true, the court erred In
charging the Jury that, *if at any time this
water was otT the wheel [of the plalntitTs
mill] the defendants woold have no right to
pat it back on her, although previous to this
time, It may have been on her; that Is the
rnle which will govern you In that respect"
If the defendants had maintained the lower
dam for a period of 20 years at a certain
h^gbt and with a certain capacity, and bad
raised the water In the stream up to the
capacity of the dam, they would have ac^
qnived a inreacriptlve right to back the water
in the stream to the foil capa<dt7 of the
dam thus maintained. Baker t. HcOulre, 58
Oa. 24S; 40 Cyc 676. The propoaltltni of
law stated in the ercerpt quoted is essential-
ly erroneous, In that It was the duty of the
Jury In following these instmctions to And
for the plalntlfrr even thou^ they bdloTed
from the evidence that the lower dam had
been maintained for the pxescriptiye period
at such a height as to give it a capacity to
back water upon the wheel of the plaintiff's
mill, if at any time, on account of leakage
and a want of repairs, the dam of the lowef
ownw had failed to raise the water to the
full hdght of the dam and to the extent of
Its capadlt7, and thweby lowered the water
In the stream so that the flowage of It
backward would not interfere with the mill
of the plaintiff ; whereas the true doctrine is
that if, because of not keeping a dam in re-
pair and because of a consequent leakage,
the capacity of the dam and the height to
which it can 'raise water is decreased, the
owner of such a dam has a right to repair It
and stop the leakage so as to cause it to
raise the water to the level of the top of the
dam, provided, of course, he has previously,
by prescription or otherwise, acquired the
right to erect the dam to Its original height
and to maintain the water at its present
level, and has not lost this easement by
abandonment or nonuser for a snfflclent time
to show abandonment This is distinctly rul-
ed in the case of Baker v. McOulre, supra;
and the principle which we have stated is
discussed in that case and in other caaes
dted in 9 MIchle (Ga. Dig.) S46. Another
part of the court's charge, in substance em-
bodying the same principle as that contained
in the excerpt discussed above, Is, of course,
subject to the same crltldsm.
EiZcept as Indicated In the foregoing, the
other assignments of error are without merit,
and no discussion of them is required.
Judgment leveraed. All the Justices con-
cur.
(11 Cta. App. <8S>
TOLBBBT T. STATE. (No. 4,777J
(Court of Appeals of Geor^a. May 6^ WIS.)
(Svllaput by t\e Court.}
1. Basubds (f 42*) — FnocuDZNas — Wab-
BANT.
A warrant Issued by a justice of the peace,
direction that the putative father of a bastard
child be brought before him, is not invalid be-
cause it fails to direct that the alleged father
be brought before the magistrate issuing the
warrant, or some other jaktice of the peace.
Penal Code 1910, { 1331.
[Kd. Note.— For other cases, see Bastards,
Cent Dig. H 111-113 ; Dec. Dig. | 42.*)
2. Bastabos (S 82*) — Pbocbedinos — Obdbb
FOB S]X:UBITT— SUBSEqUENT OBOEfi.
Where, upon the trial of such a warrant
the magistrate adjudges that the person brought
before him Is the father, be may be required to
give security in terms of the law for the main-
tenance and education of the child until it ar-
rives at the age of 14 years, and also the ex-
penses of lying-in with such child, boarding,
Dursing, and maintenance while the mother Is
confined by reason thereof. Penal Code 1910,
fl332. It is DO objection to an order requir-
ng soch security to be given tAat tiie order
merely directed the bond to be given In terms
of the law without naming the sum or reciting
that it should be made payable to the ordinair
of the county. An order of a magistrate, which
recites that the accused was required to give a
bastardy bond, that he failed and refused to do
so, and that be was recc^fnised in a given sum
to the superior court, is a valid order. McGal-
man v. State, 121 Ga. 491, 49 S. E. 609.
[Ed. Note.— For other cases, see Bastards,
Cent. Dig. {| 201, 205; Dec. Dig. S 82.*1
8. BASTAsns (I 24*)— PnooEBDiNOB — Itamm
— Pbobbcutios fob Seduction.
The only issue involved in the trial of a
bastardy case being whether the accused is the
father of the bastard child, and whether he fail-
ed and refused to comply with a valid order re-
quiring him to give security in terms of the law,
it is immateiiu that the mother of the child
may have caused a warrant to be sued out,
charging the accused with seduction, and aban-
doned a prosecution under soch warrant Even
an acquittal under an Indictment charging se-
dnction would be no defense in a bastardy case.
McCalman v. State, supra.
[Ed. Note.— For other cases, see Bastards,
Cent Dig. SI 46-47; Dea DlfTS 24.*]
4. Bastabds (I f^*>— Abqument or Counsel
— Omission in Statbmeni.
While the failure of the defendant in a
criminal case to make to the court and jury a
statement in his own behalf is not a matter
which counsel for the state has the right to
comment upon in his argument to the jury, yet
where the defendant does make a statonent, and
therein falls to deny a material fact brought out
in the testimony for the state, such an omission
of the accused to make denial is a legitimate
subject-matter of comment before the jury. The
accused has the right to rest his case upon the
evidence, and the tact that he does so cannot be
argued to his disadvantage; but, if he under-
takes to make a statement at all, counsel have
a right to comment not only upon the state-
ment as made, but upon any omission of tbo
accused to deny a material fact brought against
bim In the testimony.
[Ed. Note.— For other cases, see Bastards,
Cent Dig. 11 178^ 181-1S4, 187; De& Dig. i
'For oUmt bsssb sis ssnw tople and section NUHBJBB la Dee. Olg. * Am. Dig. Ksy-Mo. BeriM ft
Digitized by
182
78 80UTHBABTBBN BBFOBTBR
(Go.
B. Baotabm d 7S*>— Itaw Tbiax.— Obounds.
The conduct of the court in reprimandinsT
counsel for the accoeed for iodulging in con-
versation which the court deemed an interfer-
ence with an orderly trial was not cause for a
new trial, there being nothing in the action of
the court whldi teraed to piejudka ths ac-
cused.
[Bd. Note.— For other cases, see Bsstardi,
Cent Dig. H 189, 180; Dec. Dig. S 73.*]
6. Bastabds ft TO*) — Appeal — Geodnd for
Bbteb8ai>— Refusai. of Six:ond Statkuxnt.
The refusal of the court to permit a de-
fendant in a criminal cue to make a second
statement will in no case require a rerersal ot
the jndgment OTerruling a motion for new trial,
unless the record discloses that if permitted to
make the additional statement he would have
stated something material to his defense.
[Ed. Note.-^For other cases, see Bastards,
Cent Dig. H 178, 181-18^187; Dec; Dig. 1
e8.»]
7. BASTAUWjn 87*}— COiminTAKCB— GBOUKDS
—Absent witness.
It is not error to refuse to continue a
case in order to procure the teatimoo; of a wit-
ness who resides bejond the jurisdiction of the
court
[Ed. Note.— For other cases, see Bastards,
Gent Die H 170, 180; Dee. Dig. { 67.*]
8. BaSTAKDB (I S5*)— EIVIDBirOB— RXLETANCT.
In the tnal of a iiastard; case, evidence
that the fether of the woman has a sufficient
amount of property to support his family is
irrelevant
[Ed. Note. — For other cases, see Bastards,
Cent Dig. I 163; Dec. Dig. i 65;* Seduction,
Cent Dig. I 76.]
8. Attobney and Client (5 86*)— Statement
OF CouNSEi/— Binding E^tfect on Accused.
In the investigation of a bastardy warrant
before a Justioe of the peace, a statement made
by counsel for the aocused, in his presence, that
the accused would refuse to give the bastardy
bond, is to be treated as a statement of the
accused himself, unless he then and there re-
pudiates ths attorney's authority to make the
statement
[Ed. Note.— For other eases, see Attorney
and GUnt Cent Dig, f| 16^^; Dig. 1
«8.*]
10. BASTABoa (i 65*) — Evidencs— Bklevanot.
In the trial of a bastardy case, evidence
1b irrelevant that more than one warrant direct-
ing tiiat the accused be brought before him was
Issued by the committing magistrate.
[Ed. Note.— For other casee, see Bastards,
Cent Dig. I 153 ; Dec. Dig. J 65 ;• Seduction,
Cent Dig. I 76.]
XX. Bastabds (I 68*)— Evidence— Admissibil-
nr.
In the trial of such a case, testimony that
the woman had previously given birth to an-
other bastard child Is inadmissible.
[Ed. Note. — For other cases, see Bastards,
Cent Dig. ii 161-164; Dec Dig. { 59.*]
12. Bastabds (| 66*) — Pbobecution — Suffi-
ciBNOT of Evidence.
In view of the fact that there was posi-
tive evidence that the accused was the father of
the bastard child, and that he refused to com-
ply with s valid order of the justice of the peace
requiring him to give a bastardy bond, there is
no merit In the contention that the verdict was
without evidence to support it.
[Ed. Note. — For other cases, see Bastards,
Cent Dig. H 164, 176-177; Dec. Dig. | 65.*]
ttrtoT from Superior Covrt, Donglas Conn*
; Price Edwards, Judge.
Sam Tolbert was convicted In a bastardy
case and be brings error. Affirmed.
J. S. Jamea, of Atlanta, for plalntiS in
error. 3. B. Hatcb^n, SoL G«n., of Doas-
lasTllle, and E. S. Griffith, of Buchanan, tor
the State.
POTTLBi, J. Judgment affirmed.
(u Oa. App. ees)
BINION T. CENTRAL OF GEORGIA BY.
CO. (No. 4,660.)
(Court of Appeals of Georgia. May 6, 1913.)
(Svllahut &ir tke Oomrt,)
Raiuoads (I 356*)— Tbial <| 1^*)— Isjubt
TO Pebson on Tback— NOKSDXr— Switoh-
tabd Doctbine."
Applying the principle of the decision of
the Supreme Coort in Wright t. Southern Rail-
way Co.. 139 Ga. 448, 77 8. H. 884, to tbo
facts in the present recwd, U was error to
grant a nonsuit
[Ed. Note. — For other eases, see Railroads,
Cent Dig. H 1220^1227, 1236; Dec. Dir. |
855;* TriiO, Cent Dig. H 8S2, 888. 838-841,
365; Dee. pig. 1 18».n
Error from City Ooart of SaTannab; Davla
Freeman, Judge.
Action by James Blnion against the Cen-
tral of Georgia Railway Company. Jndg-
ment for defendant, and tfalntift brlnsB
ror. Reversed.
Osborne ft Lawrence, of Savannah, lor
plalntUt In error. H. W. Johnson, of Savan-
nah, for defendant In error.
POTTLE, J. The plalntUTs son, a boy
of tendw years, wbb killed by one of the lo-
comotive engines of the defendant at a point
on one. of the defendant's main line tracks.
In order to reach the main line, the boy bad
crossed several traAs adjacott to the main
line, which were constantly being nsed by
the company for switch and storage purpos-
es. The main line tra<ft was also used for
switching. There was a path on each side
of the main line and In the middle of the
track, and this path was used coiratantly
by people going acrosii to the shops. The
traveling pubUc also used it as a footway.
The boy was killed In the n^bttime at a
point on the main line near the location of
a side track whidi extended from the main
line to the proper^ of a mannfactnrlng com-
pany. A nonsuit was ordered npon tike ap-
plication of what has come to be known as
"the switchyard doctrine." This doctrine Is
that there can be no Implied license to the
public to use the track of a railroad company
within the limits of Ito swltohyard. The
doctrine has been held by this court not to
apply to a ease where there Is only one
track, which is the main track of the com-
pany, although this track may be partly
within the yard limits, and occasionally nsed
In connection with the switchyard. See Wil-
•Fnr otlter eases see same sad sMitlMNVMBBU in Dec. Dig.* Am. Dig. :^^;^^l^;^%rf<9i|^ig]|l^«s
J. H. HICKS ft SOX T. 8. a. HOZLBT A 00.
llams T. SoQthern By. Co., 11 Ga. App. 805,
75 S. E. 672. In the present case the main
llne'aiwn which the boy was killed was In
close proximity to a number of other tracks
which were used for switching and storage
purposes. But there was evidence from
whl(^ the Jury could find that the point
where the hoy was killed was not within
the limits of a switchyard property. There
was also evidence from which the Jury could
find tliat the public had an Implied license
to use the main line track ae a footway at
the point where the boy was killed. The
decision of the Supreme Court in the case of
Wright V. Southern By. Co.. 139 Qs. 448,
77 S. fi. 384, seems to as to l>e In principle
controlling. In reference to the place where
tlie plalntUTa daughter in that case was kill-
ed, the Supreme Court said: "At the time
of the fatal injury, the deceased was walk-
ing upon one of the main Une tracks of the
defendant; bat within its ■witching yard
limits, where the evidence tended to show
that many persons were accnstomed to walk
cacb day longitudinally along the track to
and from their work, without objection from
tbe employes of the defendant." The com-
pany retted on the same defraise as the de-
fendant does In file present caie, to wit tbat
the deceased had no express license to be
within its switehyard limits, tbat there could
be no inqtfled Ucease to be there, ai^ that
therefore he must be regarded as a trespass-
er. After stating that there was evidence
to show tiiat pedestrians In considerable
numbers were accustomed to walk along and
upon the tracks of the defendant within
its switchyard limits, the Supreme Court
ivopoanded the following as tbe controlling
question: "Can it be said as a matter of law.
irtiere both the . plaintiff and the defendant
were negligent, Qiat the defendant owed no
dnty to pedestrians within its described
swltdilng yaid limits, otliM than not to Injure
them wantonly after discovering them in a
perilous position? Or was the defendant
company in soeb circumstances bound to
anticipate ttiat pedestrians were likely to
be on the track, and charged with the dnty
of exercising ordinary care to prevent their
injury?" The court answered the question
by holding that it was for the determination
by the jury whether the company's employes
were under a dnty to look out for the der
ceased, and whether they used ordinary care
to prevent injury to her.
While it may be conceded tbat the facts
In tbe present record do not make as strong
a case for the plaintiff, when considered by
the Jury, as did the facts In the case above
referred to, still the rule is that if there is
any evidence which would, upon tbe applica-
tion of legal principles, entitle the plaintiff
to recover, tiie case is one for the determlna-
tlou by a Jury, and cannot be disposed of by^
a nonsuit The place where tbe plRlntlfTs
son was killed was hasardous In., the ex-
treme; and it was necessary for him to cross
several dangerous tracks before be got upon
the main line where he was killed. He had
no right to go under or over the wire fence
which was strung along the road, and he
had no right to cross the intervening tracks.
If he had been killed while at a place where
he had no right to be, his status would have
been that of a trespasser. But if he had an
Implied license to be upon the main line track,
and to walk down the path by the side of or
between the tracks, the fact that he may
have been a treepasser in reaching the point
where he impliedly, had a right to be would
not defeat his right to recover. It was Im-
material how he got there. The important
question Is, Did he have a right to be there?
Tbe evident purpose of the Supreme Court In
the case dted above was to limit the switch-
yard doctrine to switchyards proper, and
to tracks which were constantly being used
as switch tracks. They doubtless did not
intend to hold, nor do we, that a person
could have an Implied license to use a
track In a switdiysird proper, which was be-
ing constantly used for switdi purposes
morely because It was occasionally used as
a main line. Under the ruling of the Su-
preme Court, when applied to the facts In
the present case, the plaintiff la entitled to
have the Jury determine the following ques-
tion: Did his son have an Implied license
to be at the place where he was killed; and.
If so, was his death due to a lack of ordinary
care on the part of the defendant's servants?
If the plalntUTs son was killed within the
limits of a switchyard proper, and on a
track whldti was being constantly used for
switching purposes, there can be no reoovoy.
If, on tbe other haiod, tbe place of the homi-
cide was not wieUn flie limits of a switcb*
yard proper, and was at a place irtiere the
PlalntUTs son had an Implied Invitation to
be, and If the proximate cause-of his death
was the n^llgence of the company's servants
la falling to anticipate his presence and be
on thB lookout for him, the plaintiff wlU be
entitled to recover.
Judgment reversed.
03 Oa. ^p. 681)
J. H. HIGES & SON T. S. G. HOZIiBi: ft
OO. (No. 4,680.)
(Court of Appeals of Geoi^la. May 8, IftLB.)
fByllaiut iy the Oovrt.)
1. Landlobd and Tenant (5 223*)— Ben^t—
Building Dbstbotkd bt Fiee — Action —
Set-Ofp.
Where, in a contract of lease, there Is no
stipulation relieving the lessee from the pay-
ment of rent In ^e event a building on the
rented premiBea is destroyed by 6re, the lessee
cannot set off against tbe rent the value of a
building TPhicb he voluntarily erected on tbe
rented premises to take the place of the one
destroyed by fire. A transferee of the least?
•Fw aUMTflMMM MOW t«pla and Notion NOHBBR la DWi Ois.* An. Dig. Kcv-NiM'«iM A'ltw'^i&Ul^l^^
184
78 SOUTHBAKTSBN BBFOBTBB
(Oft.
■taiub» u to tUs matter upon tin Moie footlDS
u the orifiiul IcMee. Gliifl Code 1910. f 8711.
[Ed. Note^For odm tmmea, see Landlord and
Tenant, Gent Dlfr IS 1^^; Dec Dif. f
228.*]
2. Etideito a 178*HSaooNnA>r Btzdiucb—
LCABE.
There bdaf erldenoe that, the original lease
bad been delfTcred to tbe defaidants, and that
at a previoas trial of the case one of the de-
fendants had testified Uiat the lease had been
destroyed, it was not erroneouB to admit sec-
ondary endence of the contents of the lease.
[Ed. Kote. — For other cases, see Evidence^
Gent Dig. i 414; Dec Die i 17&*]
8. I«UfDU«D AND Tehaht ({ 231*)— Etidihok
— IMPBO VEmifTS.
It was not prejudicial to admit testimony
that the plaintifb, who were the original lessees,
had, aftw the exeeatton of the lease, made im-
piovements on the rented premises; this te»-
timony being offered to ezplain why the defend-
ants, who were the transferees of the lease,
had agreed to pay Uie plaintiff a sum in addi-
tion to the amoont of rental atipalated in the
leaac Nor was it prejudldal error to charge
the jnry apon this subject
[Ed. Note.~For other cases, see landlord and
Tenant, Gent Dig. H 92&-8S4: Dee. Dig. |
281.*]
4. Appkai, Airo Bkbob (| 780*>— AsaiQ mcnrrB
or IBbbob—Suiyioixnot.
An assignment of error upon a charge aa a
whole, on the ground that It was argumentatlTe
and unduly atreesed the contentions of one of
the parties, presenta no qaestioa for decision.
The trial was free fnnn prejadidal error, and
tbe evidence anthoriced the verdict
[Ed. Note.— For other cases, aee Appeal and
Error, Cent Dig. H 8018-8^6; Dec Dig. S
7aa*/
Error from Superior Court, Cobb Count?;
N. A. Morris, Judge.
Action by S. G. Mozley & Co. against J. H.
Hicks & Son. Judgment for plalntitft, and
defendants bring error. Affirmed.
Grlfiln A JoIuisod, of Marietta, for plaln-
ttOs In error, Hob1«7 ft Moss, of Marietta,
for defendants In error.
POTTLE, J. Jndgmoit afflrmed.
(U Oa. App. 6H)
OGLESBY et aL t. STATE. <No. 4,763.)
(Ooort of Appeals of Georffia.* Hay 0, 1918.)
r^ryUobiM »v the OonrtJ
1. Riot (| 1*)— Eleuehts or Orrairas— Con-
OXBT OF Action.
Two persons were convicted of riot The
evidence ^r the state shows that the accused
went to the home of their father; and, while
one of them was engaged in a controversy with
thdr mother, the father approached and direct-
ed that the controversy cease. Thereupon the
other son, who was standing by, directed his
brother to run for his gitti, saying that he had
his own gun, and at the same time indulging
in violent profane, and abusive language, ac-
companied by threats to kill their father, and
telling his brother that when he got the gun
they would shoot their father. The son to
whom the direction was given went awav and
shortly returned with hla gun, and while the
other son was still present used toward his fa-
ther violent profane, abusive, end Areatndnc
language, whfieh was heard two or three hun-
dred yards away. Held, that a common Intent
and concert of action were sufficiently shown,
and that the conviction of both «f tiie accused
was avtboriMd. Penal Code 191^ I 860;
Green t. State, 109 Ga. 686. 86 S. El 97:
Grier T. State, 11 Ga. App. 767, 76 & B. 7D.
[Ed. Note.— For other cases, sea Riot Cent
Dig. m-6; Dec Dig. S
For other defluitions, see Words and Elirases,
voL 7, pp. 6240-6242.]
2. Gbihinu Law (Cf 790, 800*)— Apfbai^
Habuuss Easoa— iNBTKDonoNa.
No material arror of law was craimitted.
The trial Judge bavlng once rejected teatimour
that one of the accused whipped bis wife, ana,
when the evidence was again offered, niBving
stated in the hearing of the Jury that be would
Inatmet them to disregard i^ bis failure there-
after to expressly give such aa instruction Is
not cause for a new trial. The evidence other
than the prisoner's statement demanded the
conviction, and the charge on the subject of
riot was sufficient in the absence of request
for more specific instructions. Nor was it re-
versible error that the trial judge charged the
Jury to ascertain whether the inmates of the
bouse were put in fear by the conduct of the
apciued, wfthoot explaining what degree of fter
the law requites.
[Ed. Note.— For other eases, see CMminal
Law, Cent Dig. K 1693/3508-1810, 1812;
Dec Dig. H 736, 800.*]
Error from Ctty Court of MlUen; Tho& U
Hill. Judge.
Cbarles Oglesby and another were convict-
ed of riot, and they bring error. Affirmed.
G. a Dekle, of MUlen. for plainUflTB in a-
TOT. W. Woodnun, SaL, of MlUen, for tbe
State.
MTTLB, 3, Judgment affirmed.
(U Oa, App. 697)
SMITH T. STATE. (Na 4,680.)
(Oonrt ci Appeals of Georgia. May 6» 19U.)
(SpUalnu by tkt OowrtJ
1. ABSAm.T ARD BaTTEBT (| 97*>— SHOOTINa
— Vebdiot— Validitt.
A verdict finding one gnil^ of "the unlaw-
ful shooting at another" Is not a nullity, but is
to be construed as a conviction of tbe statntorr
offense described In section 115 4^ the Penu
Code of lOia
[Ed. Note. — For other cases, see Assault and
Battery, Gent Dig. { 151 ; Dec Dig. { 07.*]
2. CRiuinAL Law (S| 1162, 11661^. 1169,
1171*)— APPEAL— HaBMLESS EBBOB.
The admission of testimony in reference to
the absence of the accused at a previous term
of the court and of the indictment which had
been returned at that court and subsequently
aol prossed, and tbe argument of counsel for
the state in replying to the objections of the
accused to the evidence, and the statements of
the trial judge in ruling upon the objections,
were not of such preju£cial nature as to re-
quire a new triaL
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. H 754. 3085. 3088, 8114-8123,
3126, 3127. 3130. 3m-3143 ; Dec. Dig. ti
1162, 1166%, 1169, 1171.»]
>ror other eases see same toitio and ssoUoa N171IBBR la Dee. Dig. * Ass. Dig. W^r§NseMvHk«IM»V^^jAMs
SMITH T. STATE
135
8. GBziaifAi:. Law <| 1160*)— SHoonno— Mo-
non roB N>w Tbiai.
A special ground of A motiOQ for a new
trial, wmch is disapproved bgr the trial Judge,
cannot be considered.
[Bd. Note.— For other eaeei. see Oiminal
IMW, Gent Dig. { 8064; Dee. Dig. | U6a*]
4. AseAUI.T AND Battbbt (| ^*>—Shootiito—
SUFFICISHOT OF EVIDENCE.
The evidence anthorized tiie verdict.
[Ed. Note. — For other cases, see Assaalt and
Battery, Cent Dig. H 137-189; Dec. Dig. i
Error tiom Superior Conrt, Effingham
County ; K. J. Hawkins, Judge.
J. H. Smitb was convicted of tmlawfnlly
shooting at another, and be brings error.
Affirmed.
H. B, Strangcti of Statesboro, and J. B.
Bmltht of Eden, for plalntltr In ernw. N. J.
Nomnn, SoL Gen., and P. W. Meldrim, both
of Savannali. for the State.
POTTLE, J. The accused was indicted for
assanlt with Intoit to murder one Dewttt,
and the Jury returned a vwdtct In the follow-
ing language: "We, the July, find the de-
fiendant guilty of the anlawfnl shooting at
another." A motion for new trial was over-
ruled, and the accused excepted.
[1] 1. It is argued In tile brief of oounad
tor the pleintlft In error that the verdict Is a
nullity, and amounts to an acquittal. Cono-
sel seeks to raise this question under the
gaaenX aselgnment In the moUim for new
trial, that the verdict la contrary to law.
The point might well be disposed of by Oie
observation It cannot be raised In this way.
It should have been reached by a moUoa to
arrest the judgment of conviction, or, at
least, by a direct attack, 4m this ground,
upon the verdict in the motion for new trial.
But, aside fnnn this, the poiat Is without
merit Any person Is guilty of unlawful
shooting at another when he shoots not In
his own dtfense or under circumstances of
jnstlflcatlon. Penal Oode, { 116. Verdicts
are to have a reasonable Intendment, and.
rince It Is unlawful to shoot at another when
It Is not done In self-defense or under other
drcnmstances ot justiflcation, a verdict of
guilty of "unlawful f^hooting at another" will
be construed to mean guilty of shooting at
another not in self-defense or under circum-
stances of Justification. Indeed, counsel for
plalntlfF In error so construed the verdict,
because in his bill of exceptions It is recited
that the jury returned "a verdict of guilty
of shooting another not In his own defense."
[2] 2. The accused was a practicing attor-
ney and judge of the dty court of the county
in which he was tried. He was arrested on
August 30, 1910, under a warrant which had
been Issued the day before, and gave bond
for his appearance before the justice of the
peace for a preliminary hearing. No commit-
ment trial was ever bad, and at the October
term, 1910, of Effingham superior court, the
accused w^s Indicted fbr assanlt with Intent
to murder. He gave bond on October 15.
IftLO. At the next term another true bill
charging the same offense was found, and at
the Aprn term, 1911, the accused was tried,
and a nolle prosequi entered upon the first
Indictment, upon the statement of the solici-
tor general that he had understood some
objection would be offered to that indictment,
and for that reason the second true biU had
been found. Over objection of counsel for
the accused, the court permitted the intro-
duction in evidence of the first indictment,
and also allowed testimony that the accused
had absented himself from court at the Oc-
tober term, 1910, that a search had been
made for him at his ho^ue, and he could not
be found, and that he had been seen driving
in a buggy through the swamp of the Ogee-
chee river in Bryan county. The accused re-
turned after the adjournment of the court,
and gave bond for his appearance at the
April term. When the evidence before men-
tioned was offered, one of the counsel for the
state, in replying to the objections of counsel
for the accused, stated In substance that the
evidence was relevant because the accused
was a member of the bar, and It was usual
for members of the bar to be in attendance
on the court, that the sheriff had searched
for him and had not found him, and that he
had been seen while court was in session driv-
ing through the river swamp In an adjoining
county. The court remarked, "That Is on
the idea of flight"
The accused claimed that he had no busi-
ness of any consequence In court, and had
gone fishing; that he had given no boi^ for
his appearance at the October term of eonrt,
and, in fact, bad not been indicted ; that he
did not wish to be tried at that term, be-
cause he was apprehoulve that he could not
get a fair trial ; that be knew another judge
would predde at the ApcU term, and he iwe-
ferred to go to trial before that ju^e. The
language used by state's counsel in reply-
ing to the objections of the accused was not
so prejudicial as to require a new tnal,
neither will the statement of the trial judge
have this effect Evidently the judge's state-
ment was in the nature of an Inquiry to
counsel as to whether or not the evidence
offered was to show fiight Ordinarily re-
marks of counsel In replying to objections
of the adversary and statements made by the
court In ruling upon such objections vpUI not
be cause for a new trial. If the argument
of counsel upon such objections are likely
to be such as to unfairly prejudice the ac-
cused, the trial judge will, generally In the
Interest of fairness, send the jury out AU
these things, however, are matters in his dis-
cretion. They come within what has been
aptly termed the "police power" of the court ;
and the action of the judge will not be con-
trolled except In the case of flagrant abuse.
•For other «mm m* sum toplo ud Mettn NVMSas la Dao. Dls. A Am. Die K«r-M«J«N4Mift
1A6
78 SOnTHBASTBBN BBFOBTBB
The accused, not having beoi Indicted, waa
under no legal obUgatton to attend tbe Octo-
ber term of conrt His absauie on^t not to
bare been counted againat blnit unless tbere
had been some proof that he was attempting
to evade a trlaL That he bad such an In-
tent cannot be assumed merely from his ab-
sence, when DO Indictment had been retnmed
against him, and he had as much right as
any other citizen to be absent from tbe court.
In view of the fact that a warrant bad been
issued for his arrest, and that he knew the
grand Jury wonld likely consider the accusa-
tion against him, together with the fact that
he was a member of the bar usually In attend-
ance upon the court, his absence would just-
ly give rise to tbe suspicion that he was at
least not anxious to face bis accusers and
stand a trial at the October term of court
Indeed he himself says In his statement in
explanation of his absence that be preferred
to be tried at the succeeding ' term of the
court, which be knew would be presided over
by a Judge other than the one presiding at
the October term. When the fact of the ac-
cused's absence Is considered in the tight of
the explanation offered by him and In con-
nection with the fact that he had never been
Indicted, we hardly think there was enough
to Justt^ an inference of flight Flight gen-
erally carries with it the suggestion of an
attempt to evade some of the court's process-
es. Tbe accused had already been arrested
under the warrant had given bond for his
ai^arance before tbe committing magistrate,
and bad never been given a prellmtnary
hearing. He contd not be said to be a fugi-
tive from Justice merely because he went into
an adjoining coun^ while tbe court was in
session. In view, however, of tbe evidence
In the caae^ we do not think the admission
of tbe testimony on the theory of flight was
so harmful as to demand the granting of a
new trlaL Tbn guilt of tbe aecuied was
clearly estebUahed. And It wUl not be as-
sumed that Uu Jury mre Influenced to con-
vict him by tile testimony in reference to
his absence from court to which the indict-
ment was retnmed. If the case were a doae
£SM, the admlsalon of this evidencfs mlfl^t be
ground tot a new tzlaL Bat the verdict of
guilty of the statutory ofltense of shooting at
another was as favorable to the accused as
he could have rightly anticipated unAer the
evidence. The reviewing court will order a
new trial only for errors which are prejudi-
cial In their nature.
[S] 8. In the sixth ground of the motion an
attack is sou^t to be made on the indict-
ment because of the manner In which the
grand Jury was drawn, but the oonrt declines
to certify tbis ground, "for the reason that
tbe points therein were not made upon the
trial of the case, and tbe facts of which the
court knows nothing about" The trial was
had before Judge Hawkins, and the. matter.
r^tered to In Ow sixth ground of the motion
is In reference to tbe conduct of Judge Shep-
pard. In view of the Judge's refusal to ap-
prove this ground, it cannot be considered.
We may say, however, in passing that we
know of no reason why tbe Judge cannot
call a special term of court for the purpose
of drawing a Jury. Section 4876 of the Civil
Code provides that tbe Judges of the superior
courts are authorized to hold special terms
for the trial of criminal cases or the disposi-
tion of civil cases at discretion, and to com-
pel the attendance of Jurors of the previous
term or to draw new Jurors. Tbe language
of the statute Is broad, and it seems to us
that tbe court may transact any business
during a spedal term It could transact at a
regular term.
[4] 4. There is no merit in the assignment
that the verdict la without evidence to sup-
port It According to tbe testimony of the
prosecutor, he was unarmed, and was shot
twice by the accused— once from the rear
when he was going from the accused. Ac-
cording to the evidence which the Jury had
the right to accept, the shooting was without
legal. Justlflcatlon. There were conflicts in
the evidence, but the verdict settled these
against the accused. The Jury so far accept-
ed hts version of the transaction as to re-
duce the offense to a felony of leas degree
than the one for which he was indicted and
tbe trial Judge imposed a misdemeanor pun-
ishment Tbe trial judge has approved the
verdict; and, no errors of law having been
committed, this court cannot Interfertk
Judgment affirmed.
(U Qtu App. CM)
SPIEBS T. HTJBBABD. (No. 4,714.)
(Court of Appeals of Georgia. May 6,
(SvUabu* tkt Oovrt,)
1. Sales (fi 478")— Biohst or Action.
Where a senos of promissory notes is given
for tbe purchase price of persoual property,
maturing at different dates, in each of which
it is stipulated that title to the prcHwrty is
reserved in the vendor until the note is p^iL
the vendor, on default in payment of any A
the notes, may elect to rescind, the sale and
ene in trover for the property or its value.
This is true even though utere be no stipula-
tion therein giving the vendor tiie option, upon
default in the payment of any of the notes, to
declare the whole debt due.
[Ed. Note.— For other cases, see Sales, Gent
^.^^H 1418-14S2, 14S4r-143S; Dec. big. |
2. Tbovbb aro CoNVBBSion (H 4, 22*>— "Gon-
Any use of the property of another, with-
out hia consent and incoDaistent with his right
of poBsesaioD, is a conversion. And Biich an
appropriation of the property is none the less
a conversion becaase the user, after tailing pos-
session of the property and oonvertinK it to
his own use, informs the owner that he will
deliver It to him on demand. Delivery of the
property on demand would not cure the uniaw-
•Vor other cuts ms sane tople sad aeetton HUMBBR m Dso. Dig. * Aa. Dig.
Ga.)
SFXXBS V. HUBBABD
137
fal convenion, bat wooM go simply in ndtiiffa-
tioti of damages.
I£d. Note.— For other cum, we Trarer and
Conversion, Cent Dig. » 25^, 102-182, 187-
169; Dec Dig. H 4» ^*
For other d^nitions, tee Words and Phraaea,
ToL 2, pp. 1662-1670: vol 8, p. 701&]
& Taona ahd GoNvaaninr 0 80*)— Brt-
OBNOa— ADMIS8IBIXJTT.
There was no error in the admis^n of
evidence or in the charge of the coart The
iodgment overruling the motion for new trial
is reTffireed aolel; becanae, ander the pleadings
and the evidence, the defendant wm entitled to
recover of the plaintifC damages for the unlaw-
fnl converBion.
(Ed, Note.— For oAer eases, see Trover and
Conversion, Gent IMg. SI 229-281; Dee. Dig.
f 39.«]
Error from City Court at WbetUm ; G«o.
GL Grogan, Judge.
Action by M. J. Hubbard against &. H.
Spiers. Judgment for plaintiff, and defend-
ant brings error. Bevosed.
W. D. Tntt, of Saberton, for plaintiff In
error. A. C. Wbeeler, of Gainesville, and
Ward & Payne, of Elberton* for defeqdant In
error.
FOXTEJI, J. Hobbard sold to Spiers a
mimber of articles of machinery, conqirlslDg
a part pf a laundry outfit, and took from
Splera a aetles of promissory notes for the
purchase price, maturisg at different dates,
in ^eh of wbldi It waa atlpnlated tbat title
to the property sold was retained in the j&i-
dor nntn payment of the note. There was no
pro^slon therein giving the atiler the right
to declaze the whole debt due upon default
in paymoit of a part of the purduuse price.
The notes w«e for 8150 each. Spiers paid
$100 on the first note, and, after tiie maturity
of the second note and default in the pay-
ment thereof, Hubbard brought trover for
the property. It appears that Spiers had
purchased from another person other articles
necessary to be used in the operation of the
laundry. Hubbard replevied the property in
the trover case and took poasesslon of the
property, including that wlileh Spiers bad
purchased from another person. The Jury
found for the plaintiff, who elected to take
the property and Its hire, accounting to the
defendant for the sum which had been paid
on the purdiase price.
[1] 1. The first question which arises is
whethOT the plaintiff cou^ maintain trover
at alL The general rule lis that where prop-
erty sold and a series of notes taken for
the purchase price, and title reserved In the
vendor, he may rescind and recover the prop-
erty in trover upon default In the payment
of any part of the purchase price. Scott v.
Glover, 7 Ga. App. 182, 66 S. E. 380; Ga.
Supply Oo. V. Coffee, 8 Ga. App. S02. 69 S. E.
1083 ; Harden v. Lang, 110 Ga. 392, 36 S. E.
100; Faxson v. Butterick Pub. Co., 136 Ga.
774, 71 S. E. 1105. Of course, where trover
1b brought, the defendant may plead any
set-olf or recoivuient growing out of the con-
tract of purchase by reason of a failure of
consideration, defects in the property, or
breach of the contract by plaintiff. Rogers
ft Thornton v. Otto Gas Engine Wks., 7 Ga.
App. 687, 67 S. B. 700. It is insisted that
trover will not lie in cases like the present,
unless the right to declare the whole debt
due in case of default is stipulated in the
contraot.
It ia pointed out that In the case of Scott
T. Glover, supra, the notes contained such a
stipulation. In the case of Paxson v. Butter-
ick Pnb. Co., supra, the contract stipulated
tbat the fiiilnre of either party to perform
would release the other party. It Is to be
noted, however, that the declsionB In those
two cases were not put upon the ground that
the contract contained the stipulations just
referred to, but were distinctly based upon
the general rule that the vendor may rescind
a conditional sale and recover the property
in trover as soon as any part of the purchase
price becomes due and remains unpaid. In
the case last referred to the rule was broadly
stated that the "failure to make payments
for articles delivered under a contract dur-
ing a series of years, to be delivered in in-
stallments and paid for monthly, entitles the
vendor to rescind the contract" The mere
incorporation Into the contract of the stipu-
lation tbat failure by one party to perform
would release the other was simply a state-
ment of a legal right which eltber party
would have had without reference to the con-
tract That was not a trover case, but the
right to rescission was involved and the
principle is the same. The fact of the Inrar-
po ration into a contract of sale, where the
purchase money is to be paid In Installmeuts,
of a stipulation that. If any part of ttie pur-
chase money is not paid at maturity, the
vendor may declare the whole debt due la
simply to permit the vendor, at* his option^
to proceed for the collection of Uie wtlre
amount of tbe purchase money. If he does
this, he treats the contract as valid and sub-
sisting and elects to enforce it But ntdther
the presoice in the contract of such a st^^
lation nor the failure to incorporate it there>
in affects the 1^1 right of tlie raidor to
rescind the contract of sale for nonpayment
of a portion of the purchase price and recov-
er tbe property or Its value, accounting to
the purdiasei- for the portion of the purdiase
mon^ which has been paid. The contract of
sale requires the purchaser to pay the vendor
a certain sum of money at stipulated times.
By falling to make these payments according
to ttie terms of the contract tiie purchaser Is
gniltr of a breach of the contract, and the
vendor has a right to act v^n this bi^di of
contract and rescind the entire contract of
sale
[2] 2, The defendqnt pleaded by way of
coupment that tbe plaintiff had taken posses-
sion of some of his property aud converted
tople and Motion HUHBBR In Dm. Dlg^*aia; iHg. Kv«ttDlgffHMbfl£@»ld^lC
*Fer ettier Msss ■aaw
188
78 SOUTHEASTERN BBPOBTBB
It to his own 118^ md prayed to recorer of
tbe plalnOff tbe value of tbe property tbna
converted. No point la made by demurrer or
ottaerwlee on Qie rl^t of the defoidant to
file the eroBS-actlon. Under the act of 1008
(GItU Code^ f 448^ where tnvrer Is bnni^t
In a case like the present, Che defendant may
plead as set-off any demand or claim he may
have against the ^alntlff, or may recoup any
damages that he has sustained by reason <a
any failure of conslderatton or any breach of
the contract by the plaintiff whereby the de-
fendant has t>een In any way Injured or
damaged. And this may be done whether tbe
plaintiff dects to take the property or dam-
ages. Rogers & Thornton t. Otto Gas En-
glne Wka., 7 Qa. App. 587, 67 S. B. 700. The
act of 1903 (page 84) seems to be broad enough
to authorise the defense made in the present
case. Bn^ since this question is not raised
by the record, no express rulli^ is made on
tt Treating the crosMctlon as properly fil-
ed, the question Is whether or not there Is
sufficient evidence of the conversion by ttie
plaintiff to authorise a recovery by the de-
fendant On tills point one of the witnesses
for the plaintiff testified : "The property that
Mr. ^ers is claiming has always been ready
for lilm down there. We did not claim it at
all. We did not take possesEdon of It; be
knew that. Ur. Spien' property Is In this
laundry building. We used It We used his
property ; he never claimed or made any de-
mand for it The property be Is claiming is
there at the laundry. He owns the collar
and cuff machine ; gas plant belongs to blm.
We nsed the collar and cuff machine; used
the gaa machine; we used the dry room he
had thera • • ♦ We used the soap of Mr.
Spiers that was there ; we used the tub ; we
used the collar and cuff machine^ He had
the laundry so connected that we could not
use our laundry without using his property.
I notified Mr. Spiers that he could come and
get his stuff at any time he wanted it I
did not make any arrangements with Mr.
White or any one else to run the laundry at
any time." The plaintiff testified that he
did not claim any of the property except that
which he sold to the defendant but that he
used some of the defendant's property by
permission of one Bailey, to whom the de-
fendant had given a mortgage.
Any dominion over proper^ in exclusion
or defiance of the owner's right is a conver-
sion. Llptrot V. Holmes, 1 Ga. 381, 391. "If
the act was unlawful, if it was in derogation
of the right of property In the owner, If
there was an appropriation of the property of
the defendant to their own use, it was a con-
version, irrespective of any intent to injure
him. Even dominion over property, without
use, is conversion. User of property, with-
out consent of the owner is conversion."
Macon & Western R. Co. v. Holt 8 Oa. 107,
166. "Any use or disposition of a chattel,
without the consent of the owner and in-
consistent with his right, is a converslott."
Thaip T. Anderson, 81 Ga. 28S. See, also,
Bnshin T. Tharpe, 88 Ga. 778. 15 S. E. 880.
When a conversion has once takok place, It
cannot be cured. Even the redelivery of the
property will not cure it Damages for the
conversion are still recoverable and the re-
turn of the property goes merely in mUiga-
tlon of damages. Jordan v. Thornton, 7 Ga.
517, 528. See. also. Farkas v. Pow^ 86
Ga. 800b IS a B. 200. 12 L. B. A. 387. where,
after the return of the liorse to the ownor.
trover was maintained upon the theory that
the defendant had been guilty of a convert
slon by riding the horse to a point beyond
that to whlfdi he was authorised to go un-
6er the contract ot hlreu
Tested by these decisions the pi^fawf was
very clearly guilty <rf a conversion of the
defendant's property. If one takes and uses
property of another without the owner's con-
sent it is none the less a conversion because
he may have asserted at the time that he
did not intend to deprive the owner of the
use and possession of his property. Conver-
sion is tested not so much by wlut a man
says as by what he does. And if one takes
another's property without his consent and
uses it In a manner inconsistent with the
owner's complete right of possession, he Is
guilty, at least of a technical conversion,
although he may tell tbe owner that he can
obtain his property on demand. And demand
and refusal need not be shown, being merely
a circumstance to prove the conversion, and
being essential only where the possession in
tbe first instance was obtained lawfully and
with the owner's consent There was noth-
ing In the evidence In the present case to
show tliat the defendant consented for his
property to be used by the plaintiff. The
plaintiff does claim that It was necessary
for Iilm to use the defendant's, property in
order to obtain the benefit of his own. But
this is Inconsistent with his statement to the
defendant that he might have his proper^ at
any time that be called for it If It could
be segregated upon demand of the defend-
ant this could have been done as well before
as after the conversion. It Is doubtless true
that if one should so commingle his own
property with that of another whlcb he
wrongfully holds as that it cannot be sepa-
rated, the person whose property is thus
wrongfully withheld would not be guilty of a
conversion by taking possession of the whole
of the property; but this is not the case
here. Under the evidence, the plaintiff was
guilty of a conversion In taking and using
the defendant's property, and the defendant
was entitled to a verdict for the damages he
thus sustained.
[3] 3. There was no error In the admission
Id evidence of certain liens upon the proper-
ty of the defendant which it was claimed the
plaintiff had wrongfully converted to his
use. If the defendant should elect to take
a money verdict against the plaintiff, and
these claims are ^ftl^.a^^
ICdLENDON ▼. STATB
139
apon the yroperty, the tfalntlff wooM hare
a liglit to have the damagn reduced 1^ the
amount due on theee Uoqi. The defendant
liulatB Otat there wen no ideadinge to an-
thorlxe ench a. reduction to be made. On an-
other tHal, however, the plaintiff can offier
an appropriate amendment to meet this ob-
jection ; and. If the evidence ahonld be Bob-
stantlaUy the same aa dlacLoeed by the pree-
ettt record, the plalntltt would be entitled to
recover bis property or Its value and the
defendant would be entitled to recover from
the plaintiff such of bis property or Its
▼alne as he may be able to show that the
plaintiff has converted to his own use. If
the defendant dects to take a money ver-
dict, the plaintiff would have a right to re-
duce the amount of damages In the amount
of whatever valid and subsisting liens there
may be outstanding against the defendant's
property. There will be no difficulty in mold-
ing such a verdict and Judgment as will do
Justice between the parties.
Judgment reversed.
02 Qm. App. 881)
McLBNDON v. STATB. (No. 4,707.)
^Joort of Am»eals of Georgia. May 6» iSHS.)
fSvUttliu Itg t\« Court.)
OwiBuoniro Juanca m 8*>— EbiKunra or
OvmrsB.
The gist of the offense defined in the first
part of section Sll of the Penal Code ISIO is
anowiogly obetructiog an officer attempting to
necnte a lawful proceaa One cannot be con-
victed of this offense tmless it be shown that
he knew the official character of the person at-
tempting to make the arrest, and also knew that
the officer was endeavoring to ezecnte a lawful
process.
[Ed. Note.— For other cases, see Obstructing
Justice, Cent Dig. H 3-12; Dec Dig. | 3.»]
Error from Saperior Court, Laurens Coun-
ty; K. J. Hawkliu, Judge.
Wade McLendon was convicted of obstruct-
ing an officer, and he brings orror. Be-
versed.
T. E. Hlghtower and H. P. Howard, both
of Dublin, for plaintiff In error. EL U
Stephens, SoL Go., of Wr^tavUle, tot the
State.
POTTLE], J. Hie accused was convicted
of a violation of section 811 of the Penal
Code, and complains that the verdict Is with-
out evidence to support it It aiq?«urs that
one Walker was charged with the unlawful
shooting of another. The sheriff was re-
quested to place Walker under arrest He
had no warrant charging the offense of
shoottnff at another, but he did have la his
possession a boicb warrant for Walker,
which had never been executed. The officer
went to the scene of the shooting, and while
he was there a buggy drove up with the top
up and all inclosed. This excited the offi-
cer's suspicion, and be called to the occu-
pants to stop. It appears that Walker and
the accused and another person jointly in-
dicted with him were in the buggy. When
the Bherlfl called to than to stop, Walker
struck with a whip Uie mule attached to tb»
buggy, and it dashed off, catching the AerUE
betweem the wheels of the buggy. fHiereupon
Walker threw a doubl»4arrel shotgun in the
sheriff's facet Aud MaXjeaaaa tried to push
the pfllcer out ct the buggy. All tbls Ume
the mule was being rapidly driven away.
In the aeoffle the sheriff bad one of his ribs
broken, and was otherwise Injured. The
mule, was Anally stopped, and Walker waa
arrested. The sheriff did not Inform any of
the occupants of the buggy that he had a
warrant for Walker's arrest, nor that he
was the sheriff of the county. He teaUfled,
however, that the accused knew he was sher-
iff, and had known him ever since he had
been sheriff, some two or three years. As
soon as the buggy was stopped, the accused
Jumped out called the sheriff by name, and
stated that be did not know It was he; that
be did not mean to hurt him; and that if he
bad known It was the sheriff, be would not
have made any resistance. Of course, if the '
accused did not know that the sheriff was
an officer of the law baring the authority to
make the arrest he could not be convicted.
Jones V. State, 114 Ga. 78. S9 S. E. 861:
Franklin v. Amerson, 118 Ga. 860, 46 S. E.
688.
The question arising under the evidence Is
whether the attempted arrest of Walker
waa legal, and the accused knowingly ob-
structed the officer in the execution of a
legal process. It Is undisputed that the offi-
cer had a valid warrant for Walker's ar-
rest that Walker was charged with the of-
fense of shooting at another, and that at
the time the arrest was made he was attempt-
ing to escape. There is, however, no evi-
dence that the accused knew that the officer
had a warrant or knew that Walker was
accused of a crime. The gist of the offense
defined In section 311 of the Penal Code Is
knowli^ly obstructing an officer In spring
or attempting to s^e or execute a legal
process or order. It Is not enongh that the
accused should know that the person ab-
traiptiLng to main the arrest is an arresting
officer. It must also appear that he knew
that the officer was attempting to execute a
lawful process or order. If he does not
know that the officer has In his possession
such a process, nor that the officer la at-
tempting to execute such a process, he can-
not be convicted. . If the accused had known
that Walker was charged with a crimes and
that be vras attempting to escape, and that
the ofBcer was endeavoring to arrest him,
the accused would be guilty, If the officer in
fact had a lawful warrant whether the ac-
cused knew it or not But the evldeuce in
the present record Is wholly Insuffident to
•n»r othar ohot ms sum twle sad Matton NtJHBBB In Dm. Die a An. Dig. KsT'
140
78 SOITTHEASTE&M REPOBTBB
(ChL
abow that the accused kndw that Walker
was charged with a crlme^ and that the of-
ficer was attempting to execute a warrant
for his arrest - It Is even doubtful, under
the erldence, whether the accused was ap-
prised of the official character of the person
who was attempting to make the arrest The
evidence was not sufficient to authorize the
convlctton, and the court acred In lefuslDg
to grant a new trial.
Jodgmoit rerersed.
(U Qa. Aptk 890)
BASTBBUNO v. STATE. (No. 4.780.)
(Coon of Appeals of GeoiglB. May 6, 1913.)
(Syllabtu hy tAe Court.)
1. Cbiuinal Law (8 593*)— C3ohtindancb—
GBOUNDS— DiSCEBTION.
Where a motion for continnance was based
upon two grounds— first, the absence of one at-
torney wbo represented the accused; and, sec-
ond, the physical Inability of the other attorney
of the accused, who was preMDt in court— and
it appeared that the accused employed the ab-
sent attorney to represent him after notice, to
himself or his attorney present in court, that
the absent attorney had a leave of absence from
'that term of the court before he employed bim
to represent him, and that the attorney who
was sick and {^resent in court waa employed by
the accused with knowledge of bis physical in-
disposition, the discretion of the trial judge In
overruling the motion to continue will not be
disturbed.
[Ed. Note. — For other cases, see Criminal
Law, Gent Dig. { 1320; Dec. Dig. S 593.«]
2. Cbiuinal Law (| 878*)— Peksoks Jointly
Indicted— Vkbdict.
An indictment containing four counts
charged two persons with a violation of the
general prohibition law, which went into effect
on January 1, 1907, and the jury found one of
the defendants guilty on the first and fourth
counts of the indictment Held, that the jury,
according to the evidence, might legally convict
one or both of ihe accused as to some of the
counts, and acquit one or both as to the other
counts. Tooke T. State, 4 6a. App. ^5, 61
S. E. 917. andcit
[Ed. Mote.— For other cases, see Criminal
Law, (Tent Dig. H 2098-2101; Dee. Dig. 8
878.*]
8. Cbihinal Law ({ 877*)— PXBSOirs Jointly
In DICTED— VES DICT.
Where two persons are jointly indicted for
an offense which does not require in its com-
mission the joint act of both, but may be sepa-
rately committed by either, a verdict finding
one of the defendants guil^, if supported by
the evidence, would be authorlEed.
[Ed. Note. — For other cases, see Criminal
I*w. Cent Dig. il 2096, 2M7; Dec. Dig. 1
877.*]
4. CaiMiNAL Law (J 945*)— New Telil-
Gboundb.
The alleged newly discovered evidence Is
not of such a character as would probably pro-
duce a different result on a second trial, and
therefore there was no abuse of discretion in
refusing to grant anotb^ trial OS that ground.
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. i| 2324-^32772336; Dec Dig.
1945.*]
5. VEBDicr Sustained.
The evidence supports the verdict, and no
error of law appears.
Error from Superior Court, Tattnall Coun-
ty; W. W. Sheppard, Jodge.
Boy GasteTllng «u cmvlcted of Tlolatbig
the prohibltloa law, end lis brinci oror.
Affirmed.
See^ also, 11 Ga. App. 1S4. 74 8. K 888.
H. 19. Elders, of Beidsville, and Hlnes A
Jordan, of Atlanta, for plalntlfl In error.
N. J. Norman, Sol. Gen., and Edwin A. Goboi,
both of Savannah, for the State.
HILI4 C J. Judgment affirmed
(12 Ga. App. 661)
WOOD V. STATE. (No. 4388.)
(Court 9t Appeals of Georgia. May 6, 101&)
(Syltabut the Court.}
1. Holidays (| 5*)— Time (S 10*)- Pbesenta-
tion or Petition vob Cebtiorabi— Compu-
tation or Time.
In the absence of a le^slatlve enactment
declaring any of the holidays enumerated in
Civ. Code 1910. S 4284, to be dies non jurid-
icus, there is nouiing to invalidate or prevent
the holding of courts or the exercise of other
judicial functions on July 4th; and consequent'
ly. in computing the 30 days within which a
petition for certiorari must be presented for
sanction, the 4th of July must be included, il
that date, though a holiday for hu^nesa purpos-
es, is in fact one of the calendar days embrac-
ed in the statutory period within which the
certiorari is by law required to be presented.
[Ed. Note.— For other casee. see Holidays,
Cent Dig. 81 2-^! Dec Dig. | 5;* Time, Cent
Dig. IS 34-^ ; Dec. Dig. S 10.*]
2. Holidays ft 5*)— Time <8 10*)— Computa-
tion—Noif judicial Days.
If in any case the last day allowed by law
for the performance of an act is both a holi-
day and the Sabbath day, the following Mon>
day can be included, and the requisite act will
be performed In time, if doiie upon Monday.
But this is for the reason that such Sunday is
by Ciril Code 1910, S 4, par. 8, expressly ex-
cluded from the count By express statute*
each of the legal holidays mentioned In section
4284 of the Civil Code has been made dies non
juridicuB in cases of appeals from justices'
courts. The same provision is applicable to
the notice specified in section 6393, and also to
the acceptance or payment of papers which
may fall due on Sunday, within the terms ot
section 4285. But a holiday cannot become dies
non juridicus by implication.
[Ed. Note. — For other cases, see Holidays*
Cent Dig. §J 2-5; Dec Dig. § 6;* Time. Cent
Dig. SS 34-4^; Dec Dig. S 10.*]
3. Time 10*>— Appeal and Bbbob— Pbes-
entation of Petition fob Oebtiobabi —
Computation of Timk.
Applying the foreaoinjg rulings to the facte
of the present case, tbe judge of the superior
court did not err in refusing, on July 6th, to
sanction a petition for certiorari, broug&t to
review a judgment rendered on June 4, 1912.
since more than 30 days had elapsed between
the rendition of the judgment in the lower court
and the time when tbe petition for certiorari
was presented. The fact that the thirtieth day
was July 4th. and a holiday, does not have the
effect of excluding that day from the count
since the holiday is not by uw dies non jurid-
icua
[Ed. Note.- For other cases, see Time, Cent
Dig. SI 34-62; Dec Dig. 8 10.*]
•For other cases sw saoi* topic aad aeotloa NUUBSUt In Dee. DUc * Am.
liOWTHEK Cmr OF WAYCBOSS
Vaat teom Snperloc Coort, .Fulton Goipi-
ty; 3. T. Bmdleton, Judge.
Iletcher Wood was convicted of crime.
From refusal of the superior court to sanc-
tion a petition for certiorari, he bringa er-
ror, AfBrmed.
Soott & Davla, of Atlanta, for plaintiff in
error. Uugli M. Dorsey* Sol. Gen., and IjOW-
xy Arnold, SoL, boUi of Atlanta, for tfia
State.
BUSSELLb 3' Jodgmoit affirmed.
(11 Qa. ApiK 65»)
MOON T. WBI6HT. (No. 4,628.)
(C(HiTt of Appeals of Georgia. Mar ^ 1918.)
(Bvll«but hv th» Court.)
1. Saln ({ 479*)— Conditional Salk— Rnc-
EDiBs or Sblleb^Tbovbb—Dbfxnses.
Where one bays live stock on credit, and
takes possessioii under a conditional bill of
sale, which provides that, should any of the
stock die, the purchaser shall "stand the loss,"
it is no defense to an action of trover, broogbt
after the failure to pay the purchase money at
matority, that some of the stock died before
and some after the suit was brought Espe-
cially is this true where bond was given in the
trover case for the forthcoming of all the
property, as provided in Civ. Code 1910, { 61S1,
and it was not showa that the death of the
live stock was doe to the act of God, and was
in no wise tlie result of the conduct or negli-
gence of either the defendant or his secarities.
Carr v. Houston Guano Co., 105 Ga. 268, 31
S. E. ITS.
[Ed. Note.— For other cases, see Sales, Cent
Die. 11 1418-14S2, 1484r-l^; DeorDig. i
4ra.*i
2. &LLK8 d 479*)— Conditional Sales— Rem-
XDiBS or Selleb—Tbovsb— Defense— Judo-
lONT ON PUBOUASE-MONET NOTES.
it is no bar to an action of trover, brought
to recover property held by the defendant under
a conditional bill of sale, that the plaiutlS bad
Jireviously sued the purchase- money notes to
odgment If a money judgment is taken in
the trover suit and satisQed, it will operate as
' a satisfaction pro tanto of the judi^ment on
notes for a larger sum. The principle is
the same as that in the case of a note and
mortgage, upon either or both of which the
creditor may sne to collect his debt Hon^m-
ery v. F^ucM, 12S Ga. 43, 63 S. B. 767.
[Ed. Note.— For other cases, see Sales, Cent
Dig. H 1418-1432. 1434r-1438; Dec Dig. I
479.*]
8. BaNEBUFTCT (i 421*) — DlBCHASOK — Btr-
ncT.
In a bail trover case, neither the defend-
ant nor his security can set up as a defense the
discharge of the defendant in bankruptcy pend-
ing the action. Birmingham Fertilizer Co. v.
Cox. 10 Ga. App. 699, 73 S. E. 109a This
rule prevails, without reference to the source
from which the plaintiff derives his title, and
applies in any case in which trover will lie.
[Ed. Note.— For other cases, see Bankruptcy,
Cent DigJI 772-774, 776, 777, 77&-781, 783-
780, 788-790; Dec Dig. S 421.^]
4. JUDOHENT (8 14S*)— DEFAULr— HsraSAL TO
Open— Gbounds.
Failure to offer to plead a merltorioos de-
fense is a sufficient reason to refuse to open,
at the trial term, an entry of dahult GIv.
Code 1910, } 6656.
[£d. Note.— For other cases, see Judgment,
Cent Dig. S8 271, 292-296; Dec Dig. | 145. •]
5. Appeal and Ebbob (| 1043*)— Habmlebb
EbEOB— OONTI N UANCB.
Under the pleadings, the only issue in-
volved was as to the value of the property. It
was no abuse of discretion to refuse a continu-
ance for the purpoK of obtaining the testimony
of one of the securities on the bond, on the
question of value, where it appeared that the
defendant had otner wltnetaea who would tes-
tify to tb« same value as would the absent wit*
ness.
[Ed. Note.— ^For other cases, see Appeal and
Error, Cent Dig. 88 4116-4121; Dec Dig. 3
1043.*]
6. Evidence (8 674*) — Opinion Bvidbnoe —
Value— BnEOT.
Positive evidence as to the value of live
stock in possession of a defendant in a trover
case cannot be met by testimony of a witness
that he had been acquainted wiOi all the live
stock the defendant had owned for a period
of years, and none of it was worth as much as
a named sum.
[Ed. Note.— For other cases, see Evidence,
Cent Dig. 8 2400; Dec Dig. 1 674.*)
7. BviDENCB a 489*) — Opinion Btidsnob—
Value.
Value being a matter of opinion. It is
competent for a witness to testify that he saw
the property in controversy in the fall of the
year, and he thought It was then worth a fdr-
en sum ; tke question at issue being die value
in the early part of the year following.
[Ed. Note.— For other cases, see Evidence,
Cent Dig. 8 2274; Dec Dig. 8 489.*]
8. Appeal and Ebbob Q 1066*) — Hasuubm
Ebbob— iNsTBUcnoH. .
There was no Issue in die case in referenca
to conversion, and the Instmctlon apoa this
subject, if erroneous, is not caose for a new
trial.
[Ed. Note.— For other cases, see Appeal and
Error. Cent Dig. 8 4220; Dec Dig. ( 1006L*]
9. Vebdict Sustained.
The evidence warranted the verdict
Error from Superior Court, Greene Coun-
ty ; B. F. Walker, .Tudge.
Action by Lilllas Wright, executrix, against
G. W. Moon, Jr. Judgm^t for plainttfl^ and
defendant brings error. Affirmed.
F. B. Sbli^ and Jos. P. Brown, both of
Greensboro, for plalntUC In error. Lewis,
Davison & Lewis, of Greensboro, for def«id-
ant in error.
POTTLE, J. Judgment afflrmed.
(U Oa. App. 717)
LOWTHEB V. CITY OF WATCEOSB.
(Nc 4,5^!.)
(Court of Api>eals of Geoigia. May 6, 1913.)
(SyUttbu* bv the Court.)
1. Cbiminal Law (8 719*)— ABGtncrar of
OODNBEL— BVIDBNCB.
One view of the evidence in behaU of Oie
prosecution suggested an inference which au-
thorized the argument of the city attorney to
which objection was offered, and the court did
not err in overrating the objection. Further*
more, for manifest reasons, a greater latitude in
Dig. Ke,.I^|^^^-t^©g(e
*Fm etbar eases see same topic and asctloa NUUBBB la Dec Dig. * Am.
142
78 SOUTHBASTERN BEPOBTBB
aisnment upon Ou eTldencc !■ allowable In a
trial befon a judge than before a jury.
[Ed. Note.— For other cases, see Criminal
I«w, Gent Dig. 1 1660; Vec Dig. 1 719.*]
2: iRTTOZICATINa lilQUOBS (S 17*)— OONBTTnj-
TIOnALITT or OSDINANCB.
Kven if the act of the General Assembly
approred Angiut 17, 1909 (Acts of 1909, p.
1466), creating a new charter for the city of
Waycross, is anconstitatioaal, the ordinance
vbicb is attacked would be valid, remaining of
full force and effect under the previous munici-
pal charter of the city of Waycross. Upon this
the decision Is controlled by the raling of this
court in Young t. Oity of Waycross, 11 Ga, App.
846, 76 S. E. 648, decided December 10, 1912.
[Ed. Note.— For other cases, see Intoxicating
LiQuors, Cent. Dig. IS 21-23 ; Dec. Dig. § 17.*J
Error from Superior Court, Ware County;
T. A. Parker, Judge.
W. B. Lowther was convicted of violating
the city ordinance and from a refusal of the
superior court to sanctioD c^tlorari be
brings error. Affirmed-
John S. Walfew, of Waycnna, far plain-
tiff in ernnr. C I*. Bedding and J. L. Craw-
ley, botb of Wayonss^ for defendant In er-
ror.
RUSSELI^ J. [2] In the legal mrinciplee
Involved this case differs In one respect on-
ly from that of Young v. City of Waycross,
11 Ga. App. 846^ 76 S. B. 64& As in the
Young Case, the plaintiff in errw attacks
the validity of the ordinance of the ci^ of
Waycross passed July 27, 1900, by the tecma
of which it was made nnlawfal tor any per-
son to keep fbr Illegal sale^ barter or ex-
change within the corporate limits of the
said dty any tIdous, sptritnous, malt, or In-
tozlGating liquors. The plaintiff in error
was tried by the mayor of the dty of Way-
cross, adjudged gnilt^r and sentenced to pay
a fine of $100, and to work on the chain
gang of the city tor 90 days. Counsel for
the plaintiff In error in his brief practically
abandona the contention that the conviction
is not sufficiently supported by the evidence,
but urges that the certiorari should have
heea sanctioned because of improper remarks
Af counsel, and because of the invalidity of
the ordinance under which the accused was
adjudged guilty.
[1] It appears from the record tliat the
attorney for the cM?, In the course of his
argument, used the following language :
"Will Lowther is not guilty of selling this
liquor hlmselJ^ but his undertaking to shield
some one higher, and, not having told who it
was, he himself is guilty." This argument
was objected to on tbe ground that there
was no evidence to support It — ^no evidence
of any other person being connected with
the sale of the whisky, and upon the ground
that counsel was expressing his individual
opinion as a fact. In our opinion all these
objections were properly overruled.
The case of Moore v. State, 10 Ga. App.
800, 74 S. B. 315, which is cited In support
of the contention that the argument was im-
proper, dealt with a statement which was
clearly prejudicial to tbe accused ; and,
while the ruling there made Is adhered to,
this court in deciding the Moore Case did not
overlook the cardinal principle that injury
must concur with error in order to warrant
a new trial upon review. In the present
case a not improbable result attaching to a
logical conclusion from the remarks made
by tbe city attorney mi^t have be«i an ac-
quittal.
Granting the contention that there is noth-
ing in the evidence to show that tbe accused
was undertaking to shield some one higher,
as the defendant was accused of keeping In-
toxicating liquor for sale, proof of a sale
(for which the munldpality could not pun-
ish him) is merely indirect evidence, and in
the present case tbe only evidence from
which a "keeping for sale" can be Inferred ;
and when the city, through Its attorney, ad-
mitted that the accused was not guilty of
selling the liquor, but was merely undertak-
ing to shield some one else, the admission
could well have been taken as an admission
that the dty bad failed to make out Its case,
and the objectionable language, so far from
being prejudicial to the accused, would have
been benefldal to him if greater Importance
had been attached to it by the mayor. It
was a non seqnltur that the defendant was
guilty because he had not named the person
"higher up" whom the dty attorney sus-
pected of bdng the real seller.
Judgment affirmed.
(U Ga. App. 68S>
REGISTBB et aL v. STATE. (No. 4.788.)
(Court of Appeals of Georgia. May 6, 1918.)
(SyUalut by the Court.)
Cbihikal Law <{{ 874, 951*)— Monoir ron
New Tbiad—Timk foe Filiko— Vebdict.
The accused having procured a decision that
the verdict which was read by the foreman in
open court, but which the tr^ judge dedined
to receive, was a valid verdict and a final ter-
mination of the case, and the effect of tbis de-
cision being that a motion for a new trial could
have been filed to set aside this verdict, notwith-
standing it had not been received and recorded
on the minutes, the trial judge properly refused
to entertain a motion for a new trial more than
a year after the rendition of tbe verdict, and
also properly overruled a demand that tbe jury
be polled, and rightly refused to discharge
the accused. The demand to poll came too late,
and the question as to tbe r^bt of the accused
to be discharged has already been adjudicated
against them by the Court of Appeals.
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. S| 2085-2088, 2349-2368 ; Dec.
Dig. SS 874, 951.*]
£hTor from Superior Court, Colquitt Coun-
ty; W. E- Thomas, Judge.
B. L. Register and others were convicted of
involuntary manslaughter, and they bring
error. Affirmed.
See, also, 76 8. B. 649.
•For otbMr csMS Me same topto and sscUon NUllBBR la Dec. Die * An.
3a.)
BROOKS
T. STATE
143
W. A. Gorlngton, Jat. Humphreys, and
B. Ll Bryan, all of Mooltri^ and Claude
Payton, of Sylvester, for plaintiffs In error.
J. A. Wilkes. SoL Gen., U L. Moore, and
Shlpp & Kline, all of Uooltrle, for the State.
POTTLE, X A verdict of volnntaiT man-
slaughter was returned against the ac-
cused, and this verdict was set aside on the
ground that a verdict of Involuntary man-
slaughter, which the court had previously
declined to receive, was a legal verdict and
a final termination of the case. Register v.
State, 10 Ga. App. 623, 74 S. Q 429. Sub-
sequently the accused were arraigned under
the indictment and filed pleas setting up
tliat the effect of the refusal of the court
to receive the verdict of involuntary man-
slaughter was to declare a mistrial, and
operated to acquit the accused, and that,
If this were not true, the verdict finding
the accused guilty of involuntary manslaugh-
ter was a valid verdict and a final termina-
tion of the case, and they could not be again
arraigned nnder the indictment. The accused
excepted to the Judgment striking both of
these pleas. This court held that the verdict
of involuntary manslaughter was a valid
Terdlct and a final termination of the case,
and that the accused could not again be tried
under the indictment for any offense. The
trial judge was directed to have the verdict
of Involuntary manslaughter recorded upon
the minutes of the court, and to Impose sen-
tence in the manner prescribed by law. It
was contended in that case by counsel for
the accused that they never had an opportu-
nity to file a motion for a new trial for the
purpose of setting aside the verdict of In-
voluntary manslaughter, for that verdict
had never been received by the court and
filed, and no exception to it could be taken.
In reply to this contention this court said:
"Tile effect of the decision of the Court of
App^is was that publication of the verdict
1^ tlte foreman of the Jury was sufficient to
glre it legal efficacy. There was therefore
no reason why the accused could not have
filed a motion for a new trial and asked that
that verdict be set aside. And, furthermore,
Qiey cannot now assert that that verdict
was not a final determination of the case,
when, on their own motion, they procured
a decision from the Court of Appeals that it
was." 76 S. JEl 652. When the case was
again called In the trial court, in order that
the direction of this court to Impose s«itence
might be compiled with, the accused made a
demand that the Jury be polled, moved that
they be discharged; and also tendered a mo-
tlfm for a new trial, which the court refused
to entertain. To all of these adverse rulings
tbey acc^ted.
The accused procured from this court a
decision that the verdict of involuntary man-
slanghter was a valid verdict and a final
termination of the ease. It was held that
the oral pronouncemmt (tf the verdict by the
foreman of the jury was a saffldmt publica-
tion of It, and that It was not necewary. In
ordor to give It vallditTi that It be filed and
recorded on the minnteB of the court We
are sattafled with the eorrectneas of this de-
cision, and it la too late now to challenge its
sonndneas. The accused could have filed a
motion to set aside tfala vwdlct at any time
within the time required hy law after its
publication. They were not deprived of this
right by the failure of the court to receive
the verdict and to allow it to be recorded
on the minutea. Tbey have asserted all the
while that this verdict was legal and valid
and a final termination of the case. They
had a right to bave the verdict for voluntary
manslaughter eet aalde, and tbe^ had a right
to have sentence imposed upon the flrat ver-
dict They also bad a rl^t to file a motion
for new trial to set aside the first verdict
Having allowed the statutory period to
elapse without availing themadves of this
ri^t, they cannot now be heard to assert
that the verdict should be set aside for er^
rors made duriiu; the progress of the trteL
They are In ladlies, becauae of tb^r own
failure to file a motion in time, and not Iw-
caiise of anything done by the trial court
which prevented them from so doing. The
trial Judge properly refused to entertain the
motion for a new MaL The demand to poll
the Jury, having been made long after the
Jury had been discharged, came too late. If
the court In the first instance had declined
to give the accused an opportunity to poU
the Jury, a motion for a new trial, complain-
ing of this tellnre, should have been tendered
in due time. The question of the right of
the accused to bo discharged has already
been adjudicated against them by this court
and need not be further diacnseed.
Judgment affirmed.
(U Go. App. taxi
BROOKS V. STATE. (No. 4,834.)
(Court of Appeals of Geori^a. May 6, 1918.)
(ByUalut hy the Court.)
1. Criminal Law (§ 508*)— Bvidencb or Ao-
COMPLICE— MlSDBMSANOB CaBmL
The rule of law that the uncontroverted
evidence of an accomplice is not legally suffi-
cient to convict does not apply to misdemeanor
cases. Nevertheless the fact that the prlocipal
witness against the accused in a misdemeanor
case la an accomplice is a fact that the Jury can
properly take Into consideration In weighiDg
the credibility of bis evidence. In the present
case, however, the poBitive and direct testimony
of the accomplice is abundantly corroborated by
many strong circumstances connecting the ac-
cused with the commtsnoD of the offense, which
would have been sufficient of themselves to au-
thorise a conviction, even without tbt evidence
of the accomplice.
[Ed. Note.— For other eases, see Oriminal
I^w. Gent Dig. H 100&-1128; Dec Dig. |
508.*]
*FOr oUisr cases m* Mune topU and Mctloa NUHBSB in Dm. Dig. A Am. Dl|. Key-N^ ^ ^^^^^^^j*^ [(^
la
78 SOtTFHBASTBBN REPOBTES
2. OftnaifAX. La.w (| 1172*)— Appeal aitd Eb-
SOB— HaBULESS miBOB— iHffrBnCTIOH.
Hie iiwtrtictloQfl of the court to tbe jar;
nlatiiic to tbe impeacfanent of a witness b;
evidence of bU geaeral bad ebaracter, while,
atiictl; speaking, not pertinent to any of the
evidence on tbe sobject of bad chaiacter, in the
present case could not have been harmful to
the accused, since sudi ehatge conld have ap-
plied only to the evidence of the accomplice,
who was a material witness for the state.
[E^. Note.— For other cases, see Criminal
Law, Cent Dig. « 3128, 31M-5157, 816ft-Sl(J3,
8169; Dec. Dig. { 1172.»]
S. Cbiuinal Law (! 781*) — iNOTBConoR —
ClBCUUSTANTIAL BVIDBNCK.
The evidence establishing the guilt of the
accused was both direct and circumstantial, and
there was no error in the failure of the trial
judge to charge as to tbe effect and weight of
dieumstantlel evidence.
[Ed. Note.— For other eases, see CMmlnal
Law, Cent. Dig. H 1889-18681^22. 1860; Dee.
Dig. I 784.*}
4. CONVICTION Sustained.
No error of law appears, end the evidence,
both direct and drcnmsUntial, strongly and
elearlj shows that the verdict oi guu^ was
properly returned.
Error from City Court ot Oolumboa; O. T.
ngner, Judge.
Z. A. Brooks was convicted of a misde-
meanor, and he brings error. Affirmed.
Wynn & Woblwender and T. T. Miller,
all of Columbus, fw plaintiff in error.. T. H.
Fort, SoL, of Columbna, for the State,
HIU^ a J. Judgment affirmed.
ai Oa. App. 693)
TAYLOR v. TOWN OF OUEGA. (No. 4,828.)
(Court of Appeals of Georgia. May 8^ 1913.)
CfiryUobiM by tA« Ovmrk)
OinavAL Lav (B 1091*)— Apfxae^Beivbal
or Cbbtiobabi— Bill or ExcEPnoNa.
In order for this court to review a refusal
of a judge of tbe superior court to sanction a
petition for certioran, the petition must be in-
corporated in the bill of exceptions, or be
venfied as a part thereof by the trial judge.
An unsanctioned petition cannot be specified as
a part of the record. Central Ry. Co. v. White-
head, 105 Ga. 492, 80 S. B. 814, and citations;
Evans v. Bloodwortb, 106 Ga. 835, 31 S. E.
778 ; Anthony v. State, 112 Ga. 751, 38 S. E.
79; Wood v. Tattnall, 115 Ga. 1000, 42 S. E.
403 ; Lenney v. Finley. IIS Ga. 719, 45 S. E.
593; Tompkins t. Newnan, 120 Ga. 173. 47
S. E. 557 ; ClaAe v. Deair4 Ga. App. SIW, 01
S. R 295.
[Ed. Note.— For other cases, see Criminal
Law, Cent. Dig. Si2803. 2815. 2816. 2818, 2819,
2823 282^ 2^8-2833, 2843, 2931-2933, 2943;
Dec. Dig. I 1091.* J
Error from Superior Court, Tift County ;
W. IB. Thomas, Judge.
Carl TaylOT was convicted of vlolatUic an
ordinance of the Town of Omega. From re-
fusal of the superior court to Banctlon cer-
tiorari, be brings error. Writ of error dU-
misaed.
C. O. Hall, of Tifton, for plalntier in error.
J. A. Wilkes, Sol. Gen., of Moultrie, and Rob-
ley D. Smith, of Tifton. for defendant In ot-
ror.
BUSSBLI^ J. Writ of error dismissed.
(u 0*. App. an)
PYLES T. STATE. (No. 4.689.)
(Court ^ Appeals of (Georgia. May 9, 1913.)
(8i/Uahv» hv the Court.)
1. CanasAL Law f§ 828*) — iNsiBDonoN —
AXIBL
An instruction in a criminal case that,
where the defense of alibi is relied on, tbe bur-
den is on tbe accused to establish this defease
"to your satlsfactioQ," is not erroneous, when,
in inmiedlate connection therewith, toe Jury
are instructed to consider the testimony in ref-
erence to the special defense along with all of
the evidence in the case, and that, in order to
convict, the Jury must be satisfied of guilt be-
yond a reasonable doubt, after considering all
of the evidence and the prisoner's statement
The omission of tbe word "reasonable" before
satisfaction is not reversible error. See Ledford
V. State, 75 Ga. 856; Harris v. State, 120 Ga.
167, 47 S. E. 520. In Harrison v. SUte, 88 Ga.
130, 0 S. El 5^ the Sunrethe Court has laid
down the rule touching alibi which it would be
well for the trial judges to follow ; but tbe
charge in tbe present case is not erroneous, when
tested by that deciMon. Nor is the instruction
here oomplalaed of subject to the objeetionB
rinted out in Raysor v. SUte. 132 GilS»7, 63
E. 786w
[Eld. Note.— For other cases, see Criminal
Lew, Cent Dig. SS 1992-1995^ 8158; Dee. Dig.
I 82^*]
2. Vbbdict Subtaxnkd.
The evidence folly authorised tiw verffict
Error from City Court of Polk County;
F. A. Irwin, Judge.
Will Pyles was convicted of crime, and he
brings etror. Affirmed.
Bunn & Trawlck, of Oedartown, for plain-
tiff in error. J. A. Wright, SoL, and E. S.
Ault; both of Gedartown, for the Stat&
POITTLB, J. Judgment affirmed.
•Tor etlier eases see same topte and ssetloa NCHBXR In Dso. Dig. 4 Am. Dig. Ksy-No. Ssrles * Rw'r Indsies
Digitized by
Google
EDWARDS ▼. PSIGB
145
(let H. 0. 24S)
EDWABDS T. PBICB.
iSopreme Conit of North Caxollita. Vmj 18,
1918.)
1. Afpeai. and Bbbob (I 1078*) — ASSIQN-
HBNTS or Ebbor— Statements zv Bbibt—
BUX.K.
AsBignments of error Dot stated in appe]-
tant'B brief, with the authorities relied on and
citatioBs of material statutes, as required by
Supreme Court role 34 (43 S. B. t), are aban-
doned.
fBd. Note.— For other cum, m« Appeal and
Error, Cent Dig. U 4256-4201; Dec. Dig. |
107&']
2. WiTNEsaES (I 8B7*)— Impeachment— OoAB-
aoteb or Witness—Scope of Evidence.
A party introducing a character witness
may not go farther than to Inquire ai to the
general cliaracter of the party impeached; but
the vitnesB can qnalify his own testimony by
stating that he does not know the gener^
character, hot only the character in certain
localities or for certain qualities.
PBd. Note.— For other cases, see Vntnessea,
Cent. Dig. || 1167, 1158; Dec. Dig. | 867.*}
8. Appeal and Ebbob (I 1048*)— Habmlbbs
Bbbob— Admission of Imteachino Tbsti-
KONT.
Where a character witness' means of
knowiiiK tha character of the defendant was
confined to certain localities, and to his repu-
tation there as a horse trader, any error in
admitting his answer that he knew only his
general reputation as a horse trader in those
tocalitieB, which was bad, was harmless where
the defendant had testlfled in the case, where
there was much evidence as to character, both
for and against him, and where he had the
right to cross-examine the witness.
[Ed. Note.— For other cases, see Appeal and
Error. Gent Dig. fiS 4140HUL4S. 415:^ 4158-
4160; . Dec. Dig. ( 104&*]
4. WrrifBSSBS {{ 344*)— Impkachkent^-Chab-
actbb-^Pabticui^b Acts.
Evidence as to whether defendant had
the general reputation of having seduced an
innocent and virtuous woman was Inadmissible
as character e^d«ice.
[Ed. Note.— For other cases, see Witnesses,
Cent Dig. H 1120, 1125; Dec. Dig. f 344.*]
0. Witnesses (8 886*)— Impeachment— Bxam-
xhation of Pabty— pASTicnLAB Acts.
A party who himself testifies may be ask-
ed questions as to particular acts impeaching
his character.
rEd. Note.— For other cases, see Witnesses.
Cent Dig. i 1112; Dec. Dig. | 8S6.*1
6l Witnesses (| 868*) — iMnuosomrr
CBOSS-EiXAMINATlON OF IMPBACBIHO WIT-
NESS—PABTICtJL AS Acts..
On cross-examination of an im peaching
witnesB, a par^ may ask as to the general
character of the party attacked for particular
vices or virtues, but it is not permisrible ei-
ther to show distinct acts of a collateral na-
ture or a general reputation for having com-
mitted such specific acts.
[Ed. Note.— For othet esses, see Witnesses
Cent Dig. H 1158> 1160; Dec Dig. | 8S8w*]
Aiveal from Superior Court. AUeghaay
County; Allen, Judge.
Action by W. S. Edwards against Thomas
3. Price. Judgment for plaintUt, and de-
fendant appeals. Reversed, and new trial
directed.
T. -C Bowie, of Jefferson, for ajqpellajit
B. A. Donghton, of Sparta, for app^le&
GLAfiK, a J. Thl> Is an action to recoT-
er damages in a horse trade, alleging breach
of warranty and deceit
[1] The first and aeoond assignments of
errw are abandoned by not being stated in
the appellants brief. Bole 84 (43 S. E. v).
We find no error In tbe oOier esBlgnments of
error, except the fourth aasignment of er-
ror, and the fifth, seventh, eighth, and ninth,
which present the same proposition.
[2, 3] The tenth assignment of error is
that the witness, when asked as to the gen-
eral reputation of tbe defendant, answered
that be knew only hla general reputation as
a horse tzadw aronnd J^erson and down
in Wilkes county, hot he did not know hla
reputation in his own commanlty. nor any-
where except as a horse trader, which was
bad In the localities named. It Is not com-
petent for the party introducing the char-
acter witness to ask further than as to the
general <&aracter of the party Impeached.
But the witness can qualify his own testi-
mony by stating that he does not know the
general diaracter, but only in certain lo-
calities, or for certain qualities. The wit-
ness' means of knovrlng the character of the
defendant were confined. It seems, to those
localities, and to that one business which
seems to have been the occupation of the
deftadant In those localities. Tbe defend-
ant had testlfled in the case. We do not
see that the defendant has sustained any In-
jury In regard to the admission of this evi-
dence. He had the right to cross-examine
and there was much other evidence as to
character, both for and against him.
14, •] The fourth exception was: "Did not
the defendant have the general reputation
of having seduced Miss Blevlns, an Innocent
and virtuous woman!" It was error to ad-
mit this question. As was also the admis-
sion of the same question and answer as to
other witnesses as set out by assignments of
error 6. 7, 8, and 9. The rule as to this mat-
ter has been fully settled by many decisions
In this court It is this: The party himself
when he goes upon the witness stand can
be asked questions as to particular acts Im-
peaching his character, but as to other wit-
nesses It is only competent to ask the wit-
ness If he "knoTTO the general character of
the party.** If he answers, "No," he must be
stood aside. If he answers, "Tea," then the
witness can of his own accord qualify his
testimony as to what extent the character
of the party attacked Is good or bad.
[6) The other side on cross-examination
can ask as to the general character of the
party for particular vices or virtues. But
It is not permissible either to show distinct
acts of a collateral nature, nor a general
reputation for having Committed such spe-
dflc act UcKelvey, Ev. SS 123-125; 1 Gr.
•ror oUier eaees bm same to^o and MoUoa tlUHBBa la Dao. Dig. A Am. Dig. K«y-M£ii8«i9flsi *
78 S.B.^
146
78 SOUTHBASTBBN BBPUBXBB
(N.a
Dr. I Mlb. To permit ttds wonM protract
Mall to an Indeflnlte extent tgr permitting
tbo InTeatlgatlon of nnmerons Inddenta* If
not Indeed the vAole life of the party* and
woold distract the attention <tf the jury from
Che real pi^ts at LBsne In the case, and turn
tbo trial into an InTCetlgatlon of the char^
acter of the party. It is Important to con-
fine the mle strictly as abore stated both to
omcentrate the attention of the Jury npon
the matters in issue and to avoid vnneces-
sary length of trials.
The oonrt is reluctant to give a new trial
npon a matter of this kind. Bat ajalde from
the necessity, for the reasons already given,
for restricting inquiries, it is also extremely
probable that questUms of this kind wonld
prejudice the defendant not merely as to
tb» weight to be given to his testimony, but
also uvon the merits of the case. The prop-
ortion as we have laid it down. Is clearly
stated In State t. Bullard, 100 N. O. 487, 0
S. BL 191, and In many cases there cited;
Maroom t. Adams, 122 N. C 222, 29 S. B.
SS8; State t. Halrston, 121 N. U S79, 28 8.
E. 4S2. The same rule was reiterated and
again clearly stated by Alien, J., in State
Holly, IQB N. a 492, 71 8. B. 400, giving the
reasons requiring the malntmance of the
well-settled rul^ and dUng nummus cases
with the reasons for Ite maintenance.
We most direct a new trial for this.
Error,
(m N. C, SIT)
ASBUBT et aL T. TOWN OF ALBEBffABLB.
(Snioeme Court of North Carotioa. May 18,
1918.)
1. Watebs ahd Wateb ConBsxa 182*}—
MuNiciFAi. Watxb Supply — Mandatobt
Statute.
The Battle Act (Fob. Laws 1911, c. 8Q
enabling towns to constmct and maintaio wa-
terworks, but requiring them, before construct-
ing a public system, to acqntre by purchase or
condemnatiOD any system of like ^aracter al-
ready constructed by any private or quasi pub-
lic corporation, then in active operation and
serving the public, is mandatory and not direc-
tory in its terms, leaving no discretion to the
municipal authorities, and is also in derogation
of the usual and common rights of municipali-
tiea, In the exercise of a sound discretion, to
construct and purchase, as well as maintain,
their pnbUc udlitiea.
[Ed. Note.— -For other eases, see Waters and
Water Courses, Gent Dig. I 207; Dse, Dig. f
182.*]
2. STATUTBa (i 289*) — CoNBTBDcnoN — Stat-
utes IN Dbbogation or Goumoh BIOBT&
Statutes in derogation of common rights
or otCeriog special privileges are to be oonstmed
liberally in favor of the pobllc and strictly
against those specially favored.
[Ed. Note.— For other cases, see Statutes,
Cent Dig. I 320; Dec. DlgTs^a*]
3. Statutes (| 235*)— CoNSTBuoxion— Marda-
TOBT STATim.
A statute mandatory In its termi must be
strictly construed.
[BcL Note.— For other cases, see Statutes,
Gent Dig. I 816; Dec. Dig. f 23S.*]
4. Statutes Q 188*>— Cowstbuction— Wobds
or Definite and Weix-Known Serbe.
Words M definite and well-known sense In
the law are to be eipoanded In the same sense
when used In tiie statntSk
[Ed. Note.— For other cases, see Statutes,
Cent Dig. ii 266, 267, 276; De& Dig. | 188*]
6. 81ATUTBS a 190*)— CoRsntuonoR — JuDz-
oiAL AuTHoarrr and Dutt— Ahbiguitt.
There can be no construction of a statute
where there Is no ambiguity, and. If the language
used is clear and admits of bat one meaning, it
should be taken to mean what the Legislature
has plainly expressed; and any departure by
the courts from the language so used would be
an unjustifiable assumption of legislative power.
[Ed. Note.— For other esses, see Statutes,
Cent Dig. IS 260, 209; Dec/Dig. % 190.*]
6. Watebs and Waivb Coubsbs (f 183*)—
Municipal Wateb SitfpIiT — Statutes —
"Pbivate Corporatior" — "Quasi Pubuo
CORPOBATION" — "UOMPANT" — "COKPOBA-
tion"— "Pabthebship."
The Battle Act (Pub. Lawa 1911. & 86),
enabling towns to construct and maintain water-
works, but requiring them before constructing
any public system to acquire by purchase or
condemnation any system of like cnaracter al-
ready constructed by any "private corporation"
or "quasi public corporation," waa not intended
to embrace works constructed by a single in*
dividual or a "partnership," which Is a con-
tract between private individuals for the pur-
pose of trade or gain; the word "corporation"
does not include a "partnership" or unincorpo-
rated asBociatioD of indiTidaaliL while the word
"company" has no such technical and I^al mean-
ing as the word "corporation," but la a generic
and comprehensive word which may Indade in-
dividuals, partnership^ and corporations.
[Ed. Note.— For otlier cases, see Waters snd
Water Courses, Gent Dig. H 277, 278; Dee.
Dig. I 183.*
For other definitions, see Words and Phrases,
vol._2, ||j. 1347-1350, 1«^1621 ; voL &, pp.
7619, 7620; vol tt, pp. 6191-5202: voL 8. pp.
7746, 7747 ; voL 6, pp. 5571, 5572 : toL 8^ p.
7763; VOL 7, p. 5M6; voL 8, p. 7777.]
7. Watebs ard Watbe Coubsbs (i 188*^
Municipal Wateb Supplt-Statutss— Ac-
quisition or Pbivate Stbteu — "IH AoxzTS
Operation Sebvxnq the Pusua"
The Battle Act (Pub. Lawa 1011, a 86),
enabling towns to construct and maintain water-
works, requires them, before constructing any
Sublic system, to acquire by purchase or con-
emnation any system of like character con-
structed by any private or quasi public cor-
poration, then in active operation, serving tbe
public. In an action by the owner of a pnvate
system of waterworks to enjoin a town from
constructing a municipal waterworks until It
had acquired his system, It appeared that the
average daily capacity of his plant was only
15,000 gallons; that during the dry season it
furoished water only from 6 a. m. to from 12 to
2 p. m. ; that be had only 185 cnstomers In the
town; that there were 240 other families un-
supplied ; that he had only one tank of 1,000-
gallon capacity, and furnished no more than
one-third of the business houses and no water
for fire purposes; that the pipes of the system
were so small as to be useless for fire protection
and worthless in tbe construction of a new
plant ; and that as a part of the proposed sys-
tem of waterworks it would be 01 no value to
the town. Held, in view of tbe feet that the
town was about to install a plant with a 100,-
000-gallon tank and a capacity of three-fourths
of a million gallons a day, that the plaintifb'
•Fn oOur gssmi wm asm* topic and section NUMBBB In Deo. Dig. 4 Am. Dig. Kar-No^ BscW~» BM>|»bB«a
Digitized by VjOOQ IC
N.O)
ASBUBT T. TOWN OF ALBEMABIA
147
system was Dot "In active operation Kninf tiie
public," sad titat the act did not raqnire the
purchane of such a plant aa that owned by the
plaintiff.
[Ed. Note.— For other cases, see Waters and
Water Counes, GesL Dig. H 277, 278; Dec.
Dig. i 183.*] n .
8. Municipal Cobporatiohs (I 823»>— Mn-
mcxPAL Watbb Supply — Acquismon or
FuTATE System— Injunoxion—ADHUSiBii.-
IFT OF Evidence.
In an action by the owner of a private wa-
ter eyatem to enjoin defendant town from con-
stmcting a public water system without acquire
ing plaintiffs' system, as required by Pub. Laws
1811, c. 86, evidence that no part of the system
belonging to the plaintiff conld have been used
by the town as a part of Its proposed system,
and that as a part of such aystem it would have
no valn^ was admlMibleL
lEA, Note.— For otSm easee, see Municipal
Corg>rations, Coit. Difr H S^-SM; Dee. Dig.
9. Municipal Cobpobations d 861*)— Pubuo
Utilities — Conbhtutionai. PBovxsxONa —
"Necessary Expenses."
Under the oonatitutional prorldona ncog-
nising municipal corporations and giving the
Legislature power to create them, and confer-
ring upon them the right to provide for their
necessary expense, waterworks, sewerage, and
other pwiUc utilities are "necessary expenses."
[Ed. Note.— For other cases, see Municipal
Corporations, Cent. Dig. Si 1819-1823; Dec.
Dlgri 861.*
For other definitions, see Words and Phrases,
S, pp. 47U^ 471&]
10. Municipal CoBPOBATioNa (S 70*)— Legis-
lative Co NTBOL— Municipal Wateb Sup-
ply — AcMjuisiTioN or Pbivatx Systxm —
CONBniUTXORALXYY OF STATUTS.
The Battie Act (Pub. Lews 1911. c. 86V
enabling towns to construct and maintain public
water systems, but requiring tbem, before con-
struction of any public system, to acquire by
purchase or condemnation any system cuf like
character already constracted hy any private or
quasi public corporation then in active operation
and serving the public, is unconstitutional as
an invasion of the principle of local self-govern-
ment which requires that the control of such
utilities be left to the sound discretion of the
municipal authorities.
[Ed. Note.— For other cases, see Municipal
Colorations, Cent Dig. {f 170-174 ; Dec. Dig.
11. Municipal Corpokations S7*) — Na-
TUBK AND Status as Gobporation»— Pdbuc
AMD Private Chabactbb.
Mnnicipal corporations possess a double
character, one governmental, legislative, or pub-
lic, in whidi character it exercises political
powers on behalf of the state, and the other pri-
vate, in which character its powers are confer-
red primarily for the benefit of the corporation.
[Ed. Note.— For other cases, see Municipal
Colorations, Cent Dig. H 1^ 148; Dea IHg.
12. Municipal Corporations (S 64*)— Legis-
lative Control — Oovernuental Mattkbs.
In matters governmental, a municipal cor-
^ration is under the absolute control of the Leg-
islature; but, as to its private or proprietary
functions, the Legislature is under the same oon-
stitatiooal restraints that are placed iipon it
with respect to private corporations.
[Ed. Note.— For other cases, siee Municipal
C^orations, Cent Dig. S8 1&6> 1&7 ; Dec ^g.
18. MtrmozPAi. GoBPOBAnoNs (% 67*)— Got-
EBNMINTAL OB COBPOBATli POWEBS— FBOVID-
ING Public Utilitieb.
Local conveniences and public utilities, like
water and light, are not provided by municipal
corporations in their govemmental capacity, but
in the quasi private capacity Id which they act
for the Denefit of citizens alone.
[Ed. Note.— For other cases, see Municipal
Corporations, Cent Dig. SS 144. 148; Dec. Dig.
I 57.*]
14. MuiriOIFAL GOBPOBATIOffB (I 70*)— liBQIS-
LATITE Co NTBOL — PUBLIC IHPBOVKHXNTS
Not Govbbhubntai. in Chabaoikb.
A town cannot be compelled by tiie Legis-
lature to undertake public improvements not
governmental in character.
[Ed. Note.— For other cases, see Municipal
Corporations, Cent Dig. iS 170-174; Dec, Dig.
Hoke and Allen, JJ., dissenting.
Appeal from Superior Gonrt, Btanly
County; Cooke, Jndge.
Action for an injunction by E. M. Asbnry
and others against the Town of Albemarle.
Jndgmeat for plaintiffs, and defendant ap-
peals. Kerersed, motlcai to nonsuit allowed,
and action dlBmlBsed.
Civil action brought to restrain defend-
ants from proceeding with the constniction
of mnulclpal waterworks In Hie town of
Albemarle. Motion to nonsnit was overruled.
Certain Issues were submitted to a Jury, and
under the Instructions of the court found
for plaintiffs. The court rendered judgment
that the defendant commissioners "be, and
each of them, peremptorily commanded and
directed to proceed forthwith to acquire the
waterworks system or plant of the plaintiffs
described in the complaint in the maimer
provided by chapter 86, Public Laws of
1911," etc. The defendant appealed.
R. Lu Smith, of Albemarle, and Manly;
Hendren & Womble, of Wlnston-Salem, for
appellant J. R. Price and R. L. Brown,
both of Albemarle, and BorweU ft Cansler,
of Charlotte, for appelleeB.
BBOWN. J. Chapter 86, Public Laws 1911,
among other things providra that: "When-
ever any incorporated town or dty which
under this or by special act has been or may
be authorised from the sale of bonds or
otherwise to bnlld, operate, and maintain a
public • * • waterworbis * • • there
shall bare been constmcted in said town or
city by any private or qnaal-iniblic corpora-
tion • • • waterworks • • • then in
active operation and serving tiie pnblic,
which construction or operation was antbor-
Ized by said town or city • * • then, be-
fore constmctlng any proposed system of
waterworks • • • beretofore or hereaft-
er authorized by law, along or apon the
streets occupied by such private or quasi-
public corporation, the town or city vrithlu
which such utilities are located and owned,
pn^KMing to bnild any pnblic system of like
Dig. K«r-N«j§t)tie«
*For other oassssMsamaCople and seotlon NUHBBR la Dsc. Dig. ft Am.
14B
78 SOUTHBIASTBEN BEPOBTOR
(N.a
character, shall, before nndertakiny to do so,
flnt Aoqnlre, elttier by parchaae or con-
demnation, die property of sncih system al-
ready lald« operated, and maintained by such
private or aaasft'pnbllc corporation." Then
follows the machinery pointed ont in said
act for the acqnlremmt by condenmation of
the property aforesaid.
The defendants contend among other de-
fenses:
CO That nvm all the erldence the plain-
tUSte' plant iB not a "system of waterworks"
constmcted by a "private or qnast-pnbllc
conwratlon" in "active operation and serving
the pnbllc," and therefore the plalntiflEs do
xiot come within the act
(2) That the act is miconstltutlonaL
[1] We are of opinion that the allegations
4>f the complaint, as well as the evidence in
Bopport thereof, fail entirely to bring the
plaintiffs within the terms of the act of 1811,
commonly known as the Battle Act.
The evidence shows that the waterworks
plant which the plaintiffs are endeavoring
to compel the town to take over was not
constructed or owned by a privnte or quasi
public corporation, but was constructed and
is owned by a partnership, and that, at the
time of the plalntlDb' demand under the act,
ibis private plant was not "in active opera-
ftion serviog the public," witliln the sense
.and meaning of the law.
[3] Tills statute is mandatory and not di-
rectory in its terms. No discretion is left
to the municipal authorltieB. Again, the
statute is in derogation of the usual and
4X>mmon rights of all munldpaUties to con-
struct or purchase, as well as to manage,
their public utilities in the exercise of a
■Bound discretion by the municipal author-
ities to manage them for the public good.
[3] Statutes in derogation of common
jlghts or conferring special privll^ies are to
be construed liberally in favor of the public
and strictly against those specially favored.
Also, where the requirements of a statute
are mandatory in terms. It must be strictly
construed. 36 Cya 1173.
[4] Another rule applicable to the construc-
tion of statutes is that, when they make use
.of words of definite and well-known sense
in the law, they are to be received and ex-
pounded In the same sense In the statute.
Adams v. Turrentlne, 30 N. O. 149. In that
.case Chief Justice Buffln says: **Indeed,
this rule la not confined to the construction
of statutes, but extends to the interiffetation
.of private instruments. There are exc^
tiona to It, where it Is seen that a word is
used in a sense different from its proper one
In instruments made by a person inops con-
stlli. But that is a condition in which the
Xjeglslature cannot tie supposed; and there-
fore; although the intention of the Legis-
lature, as collected from the whole act, la to
prevail, a tedbnlcal term, having a settled
.legal sttue, cannot be received in any otbw
sense; unless at the last It be perfocOy i^n
on the act itself - wliat that other sense is.
This principle whldi Is be well one of com-
mon sense as of common law seems to be
dedslve of the i^esent question.'*
[I] It is well settled that the province of
construction lies wholly within the domain
of ambiguity, and that, it tibe language used
is clear and admits of but one meaning, the
Legislature should be taken to mean what
it has plainly expressed. Hamilton v. Rath-
bone, ITS U. S. 421« 20 Sup. Ct 156, 44 L.
Ed. 219; 26 A. ft n Bnc 69a Aa Mr. Justice
Story says in Gardner v. Collins, 2 Pet 93,
7 U Bd. 847: "What the legislative intention
was can be derived only from the words
they have used; and we cannot speculate be*
yond the reasonable import of liiose words.
The spirit of the act must be extracted from
the words of the act, and not from con-
jectures aliunde.*' Where the words used
are plain and have a well-known meaning,
"any departure by ttie courts from the lan-
guage used would be an unjustifiable assump-
tion of legislative power." Foley v. People
Breese (111.) 57; 26 A. & E. Euc 698. .
[I] The words "private corporation" and
"quasi public corporation" are technical terms
of well-known significance in the law, and
so much so that it Is unnecessary to define
them. In the use of such terms we have,
no right to say that the Legislature Intended
also to embrace a single individual or a
partnership. The latter la a contract be-
tween private individuals for the purpose of
trade or gain. Their relation to the public
is very different from that of a corporation.
The Bfiand Case, 146 N. a 136, 69 S. B.
866, is not a precedent In that case we held
that the word "companies," as used in the
statute, was plainly intended to embrace "ail
corporations, companies, or persons" engaged
as common carriers in transportation of
freight The word "company" lias no su<^
technical and legal meaning as the word
"corporation." The authorities generally
hold that "company" Is a generic and com-
prehensive word and may include individu-
als, partnerships, and corporations. 8 Oyc;
899. But we are cited to no anthoilty which
holds that the word "corporation" may in-
clude a partnership or an unincorporated
association of individuals. It Is said that
this construction will work a great hardship
on plaintiffs. That id not our fault Ita lex
Bcrlpta est If the Legislature Intended to
Include an individual or partnersMp, It
should liave so declared by appropriate and
unambiguous language.
17] It la not probable that the General As-
sembly intended to compel mttnidpaUties to
purchase such private waterworks as the
entire evidence in this case diows plalnttflb*
plant to he. Aa a sample, we copy from the
evidence of plaintiffis* witness Finger, who
had charge of the plalnttifB* plant since 1006 r
"The averago dally capacity <^the plant la
Digitized by LjOOg IC
ROD
ABBXJXY ▼. TOWN OF ALBXUAXUt
149
16,000 gallo&B. We hare been pmngliif tbla
amonnt for the lut two or tbree months.
It bas abont tbe same capacity In tba win-
tar time. Oar costomers use aboot as nrach
■gain water in the snmmtf as tbey do in the
wintor. During the dry season this aammer
we have fnndabed water from 6 o'dodc In
tbe nMwnlng to from 12 to 2 In the afternoon.
When we torn it on, there Is tnm 8,000 to
6,000 gallons In tlie tank whidi ts dzawn oat
almost inunedlately by tbft cnstomen and put
in buckets and tubs."
Plaintiffs have 185 customers in the town
and there are 240 other fiunilics unsupplied.
The plant has one tank of 1,000-Ballon ca-
pacity only on a 40-foot tower. It famishes
not more than, a third of the business houses
and no supply at all for Are purposes. Its
pipes are so small as to be useless tor fire
protection and are worthless in the construc-
tion of a new plant
The evidence shows that the town Is now
Installing a large and modern plant with a
100,000-gaHon tank on top of a 112-foot tower.
There will be, when completed, fire miles of
distributing [Ape ranging from ten Inches to
six Inches in diameter, and that the capacity
will be 750,000 gallons per day. The defend-
ants offered to prove by the dvll engineer
that no p&rt of the property or system of
waterworks belonging to the plaintiff could
be or could have been used or ntlUzed by
tbe defendant as a part of Its proposed
system of waterworks, and tliat as a part of
its proposed system of waterworks it would
have no value to the town.
[I] While this evidence was imvropetly ex*
eluded by the court, it is manifest from all
the admitted evidence that the plaistlflte*
plant could not be of the slightest value in
constructing the new one. To purchase It
would be to take the money of the taxpayers
and devote it to a private use exclusively
and to give something for nothing, a result
not contemplated by the statute.
[I, II] Tbe learned counsel In this and the
similar case of Shnte v. Monroe have chal-
lenged in their briefs the constitutionaUty of
the act as being an Invasion of the rights
of municipal corporations under the organic
law.
We next come to conidder the power of the
I..^A8latnre to deprive a municipal corpora-
tion of the right, through its governing body,
to exercise Its discretion in the purchase of
a waterworks or sewerage planL It must
be admitted that the act of 1011 attempts to
do so, and places the munidpallty entirely
in the power of a compulsory arbitration
without ev^ a right of review or appeal to
the courts. If this be a valid exercise of
legislative aathorlty. then the right to ex-
ercise its own discretion in a purely local
matter is taken from the munldpality and
the money of the taxpayers may be donated
to a private concera. By tiie action of a
majontx the arbitnitoni the dty mar b«
compelled to purchase aomaOiIng irtildi, ac-
cordli^ to tbe Judgment of its own author-
ities, is of no sort of value or use to tt
Our Gimstitation recognizes raonlcipa! eor-
poratLona and gives the Legislature power to
create them, and also confers upon them the
right to proTldft for thatr necessary expenses.
We have held that waterworks, sewerage,
and some otber public attllties are necessary
expenses. We do not think the Leglslatnre
can dictate to a mtmldpal corporation the
manner In which it may aoqulra its watu^
works any more than it can dictate the Und
of mglne to be used in pumping tbe water.
The principle of local self-govenimeat re-
quires that this of necessity must be left to
the sound dlacretlon of the municipal au-
thorities.
[11] "Municipal corporations possess a dou-
ble character; the one governmental, legis-
lative, or public ; the other, in a senses pro-
prietary or private. * * • In its govern-
mental or public character the corporation Is
made by the state one of Its Instnunents,
or the local depositary of certain limited
and prescribed political powers, to be ex-
ercised for tbe public good on behalf of the
state rather than tot Itself. • • • But
In Its proprietary or private character tbe
theory is that the powers are supposed not
lo be conferred, primarily or chiefly, from
conslderatioas connected with the govern-
ment of tbe state at large, but for the pri-
vate advantage of tbe compact community
which is Incorporated as a distinct legal per^
sonallty or corporate individual; and as
to such powers, and to property acquired
thereunder, ftnd contracts made with refers
ence thereto, the corporation is to be regard-
ed quoad hoc as a private corporation, or at
least not public in the sense that the power
of the Legislature over it or the righto nv*
resented by It are omnipotent"
[12] In matters purely governmental In
character, it is conceded that the municipal-
ity is under the absolute control of the le^^
Islatlve power ; but, as to Its private or pro-
prietory functions, the Legislature is under
tbe same constitutional restralnto that are
placed upon it In respect of private corpora-
tloQS. The Detroit Park Case. 28 Mich, 228,
15 Am. Rep. 208 et seq; Bailey t. New
York, 3 Hill {N. T.) 531, 38 Am. Dec. 660;
Philadelphia v. Fox, 64 Pa. 180; Small v.
Danville, 61 Me. 302; Western College T.
Cleveland, 12 Ohio St 876; DiUon's Munici-
pal Corporations (4th Ed.) voL 1, pp. 90 to
101, Inclusive, and especially pages 107, 108,
and pages 111 to 123, lndusiv&
"It may be admitted that corporations,
• • • such as • • • dtlee, may in
many respects be subject to legislative con-
troL But it will hardly be contended that
even in respect to such corporations, the
I^slatlve power Is so transcendent that it
may, at ite will, take away tbe private prop-
erty of the corporation or change, tbe uses .
Digitized by VjOOglC
160
78 SOUTHBASTBBN BBFOBTBB
of Its private fundi acanired under the pnb-
Uc fftlth." Dartnurath CoUege Case. 4 Wbeat
S18, 684, 095. 4 L. Ed. 629; Gooley'B Cons.
Ltm. (6tb Ed.) pp. 284, 28S. and 290; Hewl-
Bon T. New Haven, 87 Oonn. 476, 9 Am. B^.
S42.
The case of People t. Hurlbnrt, 24 Mich.
44, 9 Am. Rep^ 103, 1b In point In a learned
and forcible oi4nlon Judge Cooler says:
**Ttae doctrine that within any g^eral grant
of legislative power by the Constitation there
can be found aathorlty thus to take from
the people the manag^ent of tbeir local
concerns, and the choice, directly or indi-
rectly, of thdr local officers, if practically
asserted, would be somewhat startling to
onr people." Again: "Hie officers in ques-
tion involve the custody • • • and con-
trol of the • • ♦ sewers, waterworks,
and public bolldlngs of the city, and the du-
ties are purely local. The state at large
may have an Indirect interest In an Intelli-
gent, honest, upright, and prompt discharge
of them; but this la on commercial and
neighborhood grounds rather than political,
and It is not much greater or more direct
than if the state line excluded the dty. Con-
ceding to the state the authority to shape
the municipal organizations at Its will. It
would not follow tbat a similar power of
control might be exercised by the stete as
regards the property which tiie corporation
has acquired, or the rights in the nature
of property which have been conferred upon
It." See, also, the opinion of Chief Justice
Breeee in People v. Mayor of Chicago, 61
111. 17, 2 Am. Bep, 278; People v. Batchel-
lor, 53 N. Y. 128, 13 Am. Rep. 480; 1 DU-
lon, Mun. Corp. 72.
[13] It Is well settled that local conven-
iences and public utilitieB, Uke water and
Ughts, are not provided by, municipal cor-
poratlons in their political or governmental
capacity, but in tbat quasi private capacity
in which th^ act for the benefit of their
citizens exclusively, l Dillon, Mun. Corp. p.
99; San Frandsco Gas Co. v. San Francis-
co, 9 Cal. 463; Detroit v. Corey, 9 Mich.
166, 80 Am. Dec. 78. The same doctrine is
held by this court Fisher v. New Bern,
140 N. C. 606, 63 S. E. 342, 5 li. B. A. (N.
S.) 642, 111 Am. St Bep. 867; Terrell t.
Washington, 168 K 0. 288, 78 3. E. 888.
[14] A town cannot be compelled by the
Legislature to undertake public improve-
ments not governmental in character. This
Is well settled. 1 Abbott, Bftm. Corp. 134.
If the Legislature cannot compel a mnnie-
tpallty to establish waterworks, how can it
contn^ the exerdse of Its discretion by the
munldpallty when it undertakes to install
them? The exercise of such a power would
be destructive of the most cherished princi-
ples of local self-goTemment We are dted
to a Tery strong and learned opinion directly
in point Helena Con. Water Go. r. Steele,
20 Mont 1, 48 Paa 882, 87 L. B. A. 412.
The Legialatnni of Montana passed a atat>
ute similar to the Battle Act The Suprone
Court of Montana held that the statute
placed a restriction iq;>on tbe munidpallty
and made mandatory the Incurring of 1d-
debtednees for the purpose of acquiring the
plant if it decided to maintain and oiwrate
ite own works. The court. In additkm to
other objections, dediared the statate to be
an infringement of the rli^t of local s^-
govemment Inherently vested in all munici-
pal corporations in a matter relating purely
to Ite property rights and private affairs,
as distinguished from the righte and duties
as an agency of tbe Btet& In referring to
the moral obligation to purchase an'estebliah-
ed plant, the court said: "It is contended
that the moral obligation of the dty to as-
sume this compulsory indebtedness is suf-
ficient to support the law and relieve it of
its unconstitutionality, if it be in conflict
with the Constitoticni. But we are unable
to see what moral obligation the city is
under, or has ever assumed, tbat will bring
the matter under the rule contended for by
counsel of respondent The dty never agreed
to continue for all time to buy water from
the plaintiff. If expressly reserved tbe right
to do otherwise. Plaintiff's plant may not
be capable of furnishing an ample supply of
wholesome water for the Inhabitante of the
city either now or as the dty may expand
or increase in population in the future. The
plant and system may be practically worth-
less. The dty may be able to secure tbe
water system and supply for half what plain-
tiff's plant would cost Is there any such
moral obligation on the part of the dty dis-
closed In this case as would justify this
court In compelling it to assume tbe indebted-
ness necessary for it to assume in order to
purchase plaintiff's plant tax the people for
money to meet such Indebtedness, In total
disregard of all these possible and probable
evente? Shall it be said. In obedience to this
law, tbat tbe dty authorities, tbe legal rep-
resentetlves of the Inhabitante of tbe dty,
have no discretion In the premises, but must
obey, notwltbstending disaster and oppres-
sive taxation and ruin may come upon tbe
people as a consequence? We tblnk the two
provisos of tbe law under discussion are in
violation of the clauses of the Constitution
quoted and referred to above, as well as the
spirit of our governmental system, which rec-
ognizes 'that the people of every hamlet town,
and dty of the state are entitled to the
beneflte of local self-government' Tbe law
la not supported by any moral obligation, but
Is rather a Tlolation of the law, the Constitu-
tion, as well as tbe prlndple of moral oblI<
gatlon invoked the reqiondent It vio-
lates the. general rule of the law that tbo
consent of parties to a contract Is necessary
to ite validity, wheUier the parties be natural
or artifidal persons. We are at a loss to
find any theory of law, equltzrwJiu'tiC4^
Digitized by VjOOglc
SHT7TE SEWIEBAOB CO. T. OETT OF MOKBOS
15}
on which we can coosclentloasly to stain the
constltutlonalltr ihe statute in Question."
TblB ease Is cited bj the federal Supreme
Court In an action between the same parties,
coming op upon the appeal of the water-
works company from a decree of the Circuit
Court of Appeals of the Ninth Olrcnlt, where
it was sought to restrain the city of Helena
from acquiring a system of Its own, except
by purchasing an existing system. . Helena
Water Works Co. t. Helena, 195 U. S. B8&,
3&S, 26 Sup. Gt 40, 49 U Ed. 245.
We are of opinion .that the statute under
consideration is void In so far as it attempts
to control the exercise of discretion by the
defendant in the management of Its purely
priTate and property rights.
The motion to ntmsult is allowed and the
action dlmlssed.
Reversed.
HOKE and ALLEN, N., dissenttng.
SHUTS SBWBRAOSI GO. T. OITX OF
MONBOE.
(Saprnna Oonrt of North Oanlina. Hay 13,
1918.)
1. MnNJCiPAi. OoRFosATions (I 708*)— Pub-
lic WOHKS— SEWBBS— "POBLIO StSTBM"—
••CONSTEUCTED OB OWRKD BT ErEHBB A
Private ob Quasi Public CoBPOBA-noN."
Under the Battle Act (Pnb. Laws 1911. &
88) enabling towns to maintain sewerage sys-
tems, but providing that before conatmcting
any public system they should acquire either
by purcbaae or condemnation the proper^ of
any system of like character coostnicted by
any private or qnasi pobllc corporation tb«u in
acdve operation and serving the public, a sew-
erage plant constructed by^ a firm of Individu-
als, not .incorporated until after construction
by the city had been begun, was not within
the term "constructed or owned by either a
private or quasi public corporation," and Its
plant coQBtructed for the limited purpose of
supplying iu own buildings, thongh incidental-
ly serving 6 or 10 per cent of the inhabitants,
was not a "public system," so as to require Its
purchase or condemnation by the city.
[Ed. Note.— For other cases, see Manicipal
Corporations. Cent Dig. | 1S19; Dec Dig. {
70a*]
2. MumOIPAL OOBFOBATIONeJl 70*)— Leois-
UTXTE CoifTBoL— Public woBKs-^Kwra-
AOB ST^rKlt— COIfBTITUTIOSAL AHD SXATIT-
TORT pROvisiona
The Battle Act (Pnb. Laws 1911, c 86),
cnabUng towns to construct and maintain sew-
erage systsms, but requiring them, before con-
Btrocting any pobUc system, to acquire by par-
chase or condemnation any like system con-
structed by any private or quasi public corpo-
ration then in active operation and serving the
public, is unconstitational as an Invasion of the
principle of lo^l self-government, which re-
quires Uiat snch private matters be left to the
discretion of municipal authorities.
[Ed. Note. — For otiier cases, see Huni<4pal
Corporations, Gent Dls> H 170-174; Da& Dig.
f 7a*]
Hoke and Allen. JX, dlsasnting.
Appeal from Superior Court, Union Conn-
tyi Peebles, Judge.
Action for ln]uttctl«i by the Shuto Sewer-
age Company against the City of Monroe-
Judgment for plaintiff, and defendant ap-
peals. Error, and Judgment reversed, and
Injunction dissolved.
Adams, Armfleld & Adams and Redwine &
Sikes, all of Monroe, for appellant Wll-
Uams, Love & McNeeley, of Monroe, and Til*
lett tt Oatbrie, of Charlotte, tor AmOlw.
BEOWN, X t1] The affidavits In the rec
ord show diat the plaintiff's plant was not
"constructed or owned by rither a private
or a quasi public corporation," as It must
have been In order for plaintiff to come im-
der the provisions of the act of 1911. It was
constructed by J. Shute & Sons, a firm of In-
dividuals. The Shate Sewerage Company
had not been Incorporated at the time the
dty made Its contract for a sewerage eys-
tem, but it belonged to J. Shute as an Indl-
vidoaL The Shute Sewerage Company was
not incorporated until the city's contractor
had been at work for four months and had
actually constructed one-seventh of the pro-
posed system of the dty. The corporation
was formed vety shortly before the bringing
of this actkm and evidently for tbat purpose.
The affidavits establiah In thia caae that
the Shste sewer Is not a public system. It
has never purported to be one serving the
pnbUe, but a reading of the ordinances which
attempted to give Shute authority to put
the idpes in the streets shows that It was for
a limited purpose; tlds purpose being to sup-
ply buUdlngs that the firm of J. Shnte ft
Sons owned. Tba fact that Shute Incidental-
ly supplied some others with sewerage who
desired tt does not make it a public s^tem
serving the public. The affidavits show that
Shute's sewerage does not serve ovor 5 or 10
per cent €t the inhabitants of Monroe, and
that it was not constructed with a view to
serving the public generally.
[2) The affidavits of the civil engineer show
that Shute's line of sewerage vill not articu-
late with the city's aystem and is of no possi-
ble value to it Assuming that the plalntifl
is a private or quasi public corporation, with-
in the meaning of the Act of 1911, c. 8B^ and
as such had constructed this sewerage line,
the defendant could iu>t be compelled to pur-
chase it, and [tay for it vrlth tba money of
the taxpayers If it is of no practical value
to the municipality. The case Is governed by
our decision in Aabury r. Town of Albe-
marle, 78 S. E. 146. at this term.
The Judgment of the superior court Is re-
versed, and the Injunction dissolved.
B^ror.
HOKE and ALLEN, JJ.. dissent
•FW otbsr CUM MS Mune topis and seotloa NtJlCBBB 1b Dso. XHg. 4 Am. Dig. Key-No^ Sariss * Rtp'r Xndant
1 ■ Digitized by Google
n SOUTHIDASTIDBN BBPORTBB
(N.a
|US K. C. HK}
TRUSTEES or CATAWBA COMiEGB t.
FETTZER.
(Sapreme Court of North Carolina. Ifay 18,
1913.)
VKNUX (S 77*)— CffANGB— Waitbe.
Under Reviaal 1905. i 425, prorfding that,
If the coDBty designated In the snmrnona and
complaint be not the proper coanty, the trial
may, notwithstaDding, be held there nnleBS the
defendant before the time for answering expires
demands in writing that it be held in the proper
conn^, a motion to remove mast be made in
apt time, and, although defendant might have
answered at any time during the term, his time
to answer expired whenever he filed a formal
answer to the merits, and sach answer was a
waiver of his prlvilega of. remoraL
[Bd. Note.— Tor other cases, sea Venne, Cent
IXg. H S», 134v 1S6; DeeTms. I 77.*}
Appeal from Saperlor Oonrt, Oatawba
Oonnt? ; Daniels, Judge.
Action by the Trustees of Catawba Col-
lege against Mr& Zeta M. Fetzer, executrix
of the estate of P. B. Fetzer, deceased.
From the denial of a motion to remove the
cause for trial in Cabarrus county, defend-
ant appeal^ Afflrmed.
The action was Instituted in Catawba
coanty, retomable to February term, 1913,
commatclug February Sd. Verified com-
plaint was duly filed Deconber 11, 1912;
verified answer to merits filed Febmary 6,
1913; formal replication filed February 8,
19ia Defendant is executrix of the obligor
of the note, duly qualified and acting as such
In the county of Cabarrus, and later In the
term, to wit, on February 10, having obtain-
ed leave to withdraw her answer, made a
motion in writing to remove the cause for
trial in nld «»mty of C^bamis.'
L. T. H&rtsdl, of Concord, for appellant
Qeo. McOorkle and R. B. Moose, both of New-
ton, and W. A. Belt of Hickory, for appel-
lee,
HOKB, 7. Our statute (Bevlsal, | 425)
provides that *if the connty designated for
that purpose In the summons and complaint
be not the proper county, the action may,
notwithstandliv, he tried ther^n, unless the
defendant, before the time for answering ex-
pires, demand in writing that the trial be
held In the proper county." Construing the
section, our court holds that, *^n or&er for
a litigant to avail himself of the right, con-
ferred by the statute, the motion to remove
must be formally made and in apt time,"
and further that, although a defendant
might have answered at any time during
the term, his time to answer has expired
within the meaning of the law whenever he
has filed a formal answer to the merits.
County Board v. State Board, 106 N. 0. 82,
10 S. E. 1002 ; McMinn v. Hamilton, 77 N. G.
300. If it be conceded that a right of re-
tnoTEl exists lu the present case, the de-
fendant,'having filed f<»n»l answer, must
be taken to have waived his privilege of re-
moval.
The authorities are decisive against the
d^endant's posilion and the Ju^ment of the
superior court denying ths motion is af-
firmed.
Affirmed.
(162 ft. c. acT)
AMERICAN TRUST CO. v. NICHOLSON.
(Supreme Court of North Carolina. May IS,
1913.)
1. TBU8T8 (1 19BH*)— Sau of Ttobt Pbop-
■BTT.
Where land was granted in trust to per-
sons lu being for their life, remainder to Ukeir
children, the descendants of any ctiUdren who
may die, leaving issue, to tabe per sttrpes, a
court of chancery may. where it has before it
all the remaindermrai then in being and the oth-
er parties to the trust, direct a sale of the
trust property for reinvestment.
[Ed. Note.— For other cases, see Trusts,
Cent. Dig. S8 246, 248; Dec Dig. 1 193%,*]
2. Pbbpktuitiks (I 6*) — TAUniTT — Bb-
8TRAINT8 ON AXIBNATION.
Where land was sranted In trust to one
for life, remainder to nis children, a provision
that no partition should be made until the
youngest chUd should arrive at tixe age of 21
years is invalid as a restraint upon ahenation,
if it be considered as preventing the sale of
the trust property for reinvestment; hence
the property may be sold for reinvestment in-
stead of distribution.
[Ed. Note.— For other cases, see Perpetuities,
Cent. Dig. SS 4Ht7, 49-63, 56; Dec. Dig. S ft.*!
Appeal from Superior Court, Me<^(9iburg
Coun^; Webb, Judge.
Controversy between the Am^lcan Trust
Company and W. D. Ni<Aiolson submitted
without action. From a judgment for plaln-
tlfir, defendant excepted .and appeals. Af-
firmed.
This is a oontrorersy submitted without
action for the purpose of determining the
validity of the title to real estate contracted
to be purchased from the plaintitr 1^ the d»>
fendant It is admitted that the tlUe was
good In Andrew J. Dotger and wife, and that
if the proceeding in the superior court of
Mecklenburg county, wherein an order of
sale was made by Lyon, Judge, at January
term, 1912, appointing the plaintiff a commis-
sioner to sell the land described in the com-
plaint, and the enbBequrat order in regard to
the particular sale in controversy were ob-
tained, is valid, then the title offered defttid-
ant by the plaintiff is good and Indefeasible.
On April 20, 189^ A. J. Dotger, who was
then the owner of the lands in controversy,
and his wife executed the following paper
writing, which was duly probated and reglsh
tered:
"Whereas, I, Andrew J. Dotger, of the
aforesaid county and state, am the owner In
fee simple of a certain tract of land lying
and being In the county ot Mecklenburg,
state of North Carolina, near the dty of
Charlotte, contelning about 89 acres, and
•ForotbsroasoBSMMunetoplo snA seeUon NUHBBR la Den. Dig. * Am.
N.O)
AMEBIOAII TRXTBT OO. HIOHOLSOl?
153
described In a deed nude to me ICtaX- Ax^
ledge and vlftv wlilch la dnlf leglitned In
the i^oe of the regUtar of deeds for aald
county of MedSentmrg, In Book 104, pace
122. and In a deed made to me by J. H.
and W. B. Wearn, wWch deed la also duly
Festered In tbe office of said reglater of
deeds. In Book 110, page 806; to vrtddi two
deeds reference Is made for a more perfect
description of tbe said tract of land. And
whereas, because of my love and affection
for my brother. Henry C Dotger and his
wife. Bertha M., and their children, I desire
that th^ shall hare Hie nae and betteflt ctf
the said tract of Isnd. Now, In oonstdwatton
of my lore and affectlw for them, and of
ten dollars to me In hand paid, I, Andrew J.
Dotger, do coTcnast with the said Hairy C.
Dotger and his wife Bortha M. and tbeir
children as followa:
That the said Henry 0. Dotgw and
Us wife, Bertha M., and the aorrlTor of
than, may occnt^ and nae the said iHanta-
tlon as a home so long as they, or the mu-
Tlror of than, may elect to live upon the
Bald place and use and occupy it as a home
for tbemselTes and thMr children, and that
while th^, or tbe snrrlvor of them, may use
and occQi^ the said plantation as aforesaid,
they shall have and hold the same free and
clear from any demand for rent on the part
of myself, my heirs or assigns ; they or the
sarrlvor of them paying, when due, all tax-
es and assessments which may be levied
against the said plantation.
"(2) Upon the death of Henry a Dotger
and his wlf^ Bertha I coramnt and
agree that the title to tbe said plantation
shall vest in fee simple in tbe children of the
said Henry G. Dotger and bis wife, .Bertha
H. Dotger. that may then be living, and in
the children of any one of their children who
may then have died .leaving Issue, sacb
grandchildren. If any there be, to take per
stirpes and not per capita; provided, how-
ever, that no partition of said land nor any
sale thereof shall be made by any of tbe is-
sue of tbe said Henry C. Dotger and his
wife. Bertha M. Dotger, untU tbe youngest
<^)d shall arrive at tbe age ot twenty-one
years, that date being fixed as the time when
partition Is to be made.
"(3) Upon my death, if that should occur
before the demise of my said brother and bis
wife, I covenant and agree that the title to
tbe said land shall vest in the executor of my
will to be held by bim upon tbe same trusts
and conditions as I hold tbe said land under
this instrument.
"(4) And in tbe event of the death of my
executor before tbe death of my brother and
his wife, then the title to tbe said land
shall vest in my heirs at law, to be held by
them upon tbe trusts and conditions herein
set out
"(jO If my said brother and his wife shall
dact not to nse and occupy the said planta-
Uoo as a heme, and shall signify soch elec-
tion by removing from It or shall attempt to
incmober it or to assl^ or mortgage any
ri^t whlcb thv acoolrei hereunder, then
and In that event the posHselon and control
of ttw said plantation ahaU be resorved by
me or by my successor or snooeesors here-
ander, and I or th^ shall «^ect the rents
and ^flts there<4 and having 0r8t paid all
taxes and aasessmoitB due therecm, and all
ffiqMnsBS Incurred in the administration of
this trust, shall apply the balance of sndi
rents to the snjvort and maintenance of the
said family, u the trosteea may see fit to
do, and upon die death of both the said Hen-
ry a Dotger and bis wife. Bertha M. I>ot-
gw, tbe possession and control of Uie said
plantathm shall Immediately pass over to the
desfendants of the said Henry a Dotger and
hla wlfflh Bertha M. Dotger, as above i»o-
vlded, who shall then become^ by the opera-
tion of this instrument, invested with the
fee-slnuds title of the sal^ Und, aubject only
to the limitation aforesaid. And Clara L.
Dotger, wife of the aalA Andrew J. Dotger,
JMns her husband in tlie execution of Osla
deed in tokm of her renunciation of all
ri^t of 6ower in the land above described.
"In witness whereof the said Andrew J. '
Dotger and wife, Clara h. Dotger, have here-
to set their hands and seals, this 20th day
of April, 1899.
"Andrew J. Dotger. [Seal.]
"Clara L. Dotger. tSeal.]"
On November 16, 1911, an action was com-
menced in tbe superior court of Mecklenburg
county for a sale of said lauds or parts
thereof subject to confirmation by tbe court,
and to reinvest tbe proceeds of sale.
Henry O. Dotger and wife, all their chil-
dren, Freda L. Burch, Anna D. Kirby, Ber-
tha C McLaughlin, F. W. Dotger, and Doro-
thy F. Dotger, all their grandchildren, Flor^
ence E. Burch and Caroline Elrby, the Fi-
delity Trust Company, executor of A. J.
Dotger, deceased, Annie C. New, Dora War-
ner, BUzabetb Wolt Claire Richards, and
Herbert U Richards, who with the plalntlfifs
are all tbe heirs of A. J. Dotger. were par-
ties to said action, and tbe [daintiffs al-
leged, among other things, In their com-
plaint: "That the plaintiffs, Henry a Dot-
ger and vrife, Bertha M. Dotger, have, since
the execution of said deed, occupied and used
tbe lands therein described as a home, and
have in every respect compiled with all the
terms and conditions of said deed. That at
tbe time said deed was executed the lands
therein described were of small value and
were suitable only for agricultural purposes.
That tbe dty of Charlotte has grow* and ex-
tended In area until the greater part of said
lands are now situated within said dty and
all of said lands have become very desira-
ble for residential purposes. That said Lands
have so increased in value that they are now
worth the sum of 1100,000^ and axe^ssessed
Digitized by vjOOglC
164
78 SODTHEASTBIBN BBPOBTBB
0.C.
tor taxatloa st the nun of $2(^000, vAldi as-
sessment will likely be increased at tlte next
appraisal of property tat tazatt<m. Hist
said lands are lUely to be snbjected at any
Ume to assessment fbr purposes of inibllc Im-
proT^mt Tha^ <m account of Oie hi^
taxes levied a^liot said laoda and the as-
sessments to which they may at any time be
subjected, the said lands hare not only ceas-
ed to be profitable for farming and truck-
ing purposes, but have actually become bnr-
densome to plalntU&u That the Interest of
all parties concerned would be materially en-
hanced If said lands or parts thereof wwe
sold and the proceeds revested in other es-
tate of a profitbearing character or In the
Improvement of other real estate or euch
part of said lauds as may not be sold ; such
newly acquired or Improved real estate to be
held upon the same condngenclea and In like
manner as was the property entered to be
sold."
Answers were filed, guardians ad litem ap-
pointed, and at tbe bearing the following
judgment was rendered therein at January
term, 1912: "Tbls cause coming on to be
heard, and being heard upon the pleadings
filed in the cause, and It appearing to the
court from the pleadings, the affidavits of
John F. Orr, Paul Chatham, and N. W. Wal-
lace, and other evidence Introduced, that the
interest of all parties concerned would be
materially enhanced if the lands described in
the complaint herein filed, or parts hereof
were sold and the proceeds reinvested in
other real estate of a profit-bearing diaracter
or la the improvement of other real estate
01 audi part of said lands as may not be
sold; and it further api>earlng that the
American Trust Company, a corporation, hav-
ing Its principal office and place of business
at Charlotte, N. 0., Is a suitable entl^ to
to act as conunissloner for the purpose of
making sale of said lands and reinvestmoit
of the proceeds derived from such sale: It
Is therefore, upon motion of Morrison & Mc-
Lain, attorneys for plaintiffs, ordered and
adjudged that the American Trust Company
be and It is h^eby appointed a commissioner
clothed with fall power and authority to sell
said lands, or any parts or parcels there-
of, snbject to confirmation by the court, at
either public or private sale, and reinvest
the proceeds under order of court, after first
paying tbe costs of this proceeding to be tax-
ed by the derk, in other real estate of a prof-
it-bearing character or In the Improvement of
811 ch other real estate or snch parts of said
lands as may not be sold; snch newly ac-
quired Improved real estate to be held up-
on tbe same contlngendes and In Hke manner
aa the prv^iarty ordered to be sold. And
this cause la retained for the further orders
of the court O. O. Lyon, Judge Presiding.**
In October, iSlS, tiw oommlssloner ap-
pcrfnted in said judgment reported to tbe
court tliat the def^dant Nicholson had ot-
fdred 16,000 for 1-87 acres of said land upon
the terms mt out in the npatt, and at Oc-
tober term. 1912, ct said court said offw was
accepted, and the commissioner was directed
to execute a deed to the pnrduser, upim aom.-
pllance wtUi Uu terms of the offer.
The commissioner offered to execute a deed
in accordance with said last judgment, and
the defendant refused to pay the purchase
money, alleging that the title was defective,
and thereupon tbe following judgment was
rendmd: *^I> cause coming on to be heard,
the iflalnttfl being represented by its attor-
neys of record, Morrison & McLain, and tbe
defmdant his attorneys of record, Stewart &
McBa^ and b^ng heard: It is orderad and
adjud^ that the title tendered to tbe de-
Cmdant by tbe id^Qfl is good and inde-
feasible, and that the plalnttff la oitttled to
judgment against the deCndant for the
amount of the purchase money upon the ex-
ecution to the Pendant of the deed refMred
to in the case submitted to the court Jas^
U Webb, Judge Presiding."
The defendant excepted and appealed.
Stewart & HcRa^ of Charlotte, for ap-
pellant Morrison & ICcLaln, of Charlotte,
for appellee.
ALLEN, J. [1] Tbe power of the court to
order a sale of the land In controversy, with
the parties before It, considered lnde|)eiident
of the provision in the declaration of trust
'*that no partition of said land nor any sale
thereof shall be made by any of the issue of
the said Henry C. Dotger and his wtte,
Bertha M. Dotger, until the youngest child
shall arrive at the age of twenty-one years,
that date being fixed as tbe time when par-
tition is to be made." is settled In Springs
V. Scott, 132 N. C. B63, 44 S. B. 116, where
Justice Connor, in an elaborate and learned
opinion, after reviewing the authorities, says:
"Upon a careful examination of the cases In
our own reports and those of other states,
we are of tbe opinion: <1) That, without re-
gard to the act of 1903, the court has the
power to order the sale of real estate limited
to a tenant for life, with remainder to chil-
dren or issue, upon failure thereof, over to
persons, all or some of whom are not in esse,
when one of the class being first In remain-
der after the expiration of the Ufe estate is
in esse and a party to the proceeding to r4>-
resent the class, and that upon decree paA-
ed, and sale and title made pursuant thereto
the purchaser acquires a perfect title as
against all persons in esse or in posse.
That, when the estate is vested In a trust^
to preserve contingmt remainders and llnfl-
tatlons, the court may, upon petition of the
Ufe tenant and the trnstee, with sudi of tpe
remaindermen as may be in esse, proceed j to
order the sale and bind aU pusons ellha-Jln
esse cr in possa" I
[2] Nor do we think the i»ovlsion quom
prevente the exerrfse of this power. If fr4t^
Digitized by VjOOQI^
AMBBICAN TRUST 00. T. inOHOLSON
155
ed as ft restraint on alienation, It is void.
Dick T. Pltdiford. 21 N. a 480; Mebane v.
Mebane, 39 N. C. 131, 44 Am. Dec. 102; Pace
T. Pace, 73 N. G. 119 ; Latimer t. WaddeU, 119
N. C. 870, 26 S. B. 122. 3 I* K. A. (N. S.) 668;
Wool V. Fleetwood, 136 N. O. 465. 48 S. E.
786. 67 L. R. A. 444; Christmas v. Winston,
162 N. C. 4S, 67 a B. S8, 27 L. B. A. (N. S.)
1084.
In Wool T. Fleetwood, sapra, where the
mbject Is fully dlscuBsed br Jnatlce Walker,
it is bdd, citing Dick v. Pltchford, that a
condition agalnat alienation annexed to a
life estate Is void, and in Christmas r. Win-
ston, supra, citing Latimer v. Waddell, that
such a condition, whether annexed to a life
estate or a fe^ Is not made valid because
limited to a certain period of time.
The otber condition as to partition has
not been violated, as no actual partition has
been had, and the sale is not for the purpose
of dividing the proceeds which are directed
to be held for relnv^ment It Is not neces-
sary for us to decide the question In the
view we have taken of the case, but there Is
also high authority for the position that coi^
ditlons like those before us annexed to es-
tates, limiting the powers of trustees or
cestui que trust, If valid, do not prevent the
court of equity from ordering a sale of prop-
erty contrary to snch condition, upon facts
like those alleged in the complaint Curtlss
T. Brown, 29 m. 230; Weld v. Weld, 23 B, I.
311, 50 AU. 490; Johns v. Johns, 172 IlL 472,
SO N. E. 337 ; ConkUng r. Washington Unl,
2 Md. Ch. S04; Stanley v. Colt, 72 U. S. (5
WalL) 169, 18 L. Ed. 602; Jones v. Haber-
sham, 107 U. B. 183, 2 Sup. Ot 336, 27 L.
Ed. 401 ; Gavin v. Curtln, 171 lU. 648. 49 N.
E. 623, 40 L. R. A. 776.
In the first of these cases (Curtlss v.
Brown) the court says: "This question of
jurisdiction does not depend upon the neces-
sities of this case, but, if it is possible that
sncb a case might have existed as would
authorize the court to break In upon the pro-
Tlaloiis of this trnst deed and ord^ a dls-
poirition of the ppoipertj not In accordance
with its terms, thm the power to do so is
established. The case ndght exist where the
IiEQpwt7 was nnprodncttve, as in this case,
but where the oestni que. tnut was absolute-
ly perishing from want, or forced to the poor-
boose, or vdiere the tmatee could not possi-
bl7 raise the means to pay the taxes upon
the property and thns save it trom a public
sale and a total loss. Can it be said that
the bai^dary of an estate which would
bring In the market $100,000 should perish
in the street bom want or be sent to the
poorhouae for support, or that the estate
should be totally loat, beeanse there is no
power in the courts to rdlere against the
proTlsions of the loBtrument creating this
trust? XbdgeQCiea often arise not contem-
Idated by the party creating the trust, and
whidi, had th«y been anticipated, would nn-
doubtedly have been provided for, where
the aid of the court of chancery must be in-
voked to grant r^ef Imperatively required;
and In snch cases the court must, as far as
may be, occupy the place of the party creat-
ing the trust and do with the fund what he
would have dictated bad he anticipated the
emergency. In Harvey v. Harvey, 2 P.
Wms., the court said It 'would do what In
common presumption the father, If living,
would, nay, ought, to have done, which was
to provide necessaries for his children.* It
Is true that courts should be exceedinjdy
cautious when Interfering with or changing
In any way the settiements of trust estates,
and especially in seeing that such estates are
not squandered and lost Trust estates are
peculiarly under the charge of and within
the Jurisdiction of the court of chancery.
The most familiar instances In which, the
court interferes and sets aside some of the
express terms of the deed creating the trust
is in the removal of the trustee for miscon-
duct and the appointment of another in bis
stead. But this is as mu<A a violation of
the terms of the settlement as is a decree to
sell the estate, and reinvest it or to apply
the proceeds to the i^esarvatlon of the estate,
or the relief of the cestui que trust from
pinching want From very necessity a power
must exist somewhere In the community to
grant relief In such cases of absolute neces-
sity, and, under our system of Jurisprudence,
that power is vested in the court of dian*
eery. This power Is liable to be abused or
imprndentiy ^erdsed, no doubt, and so may
every power vested In the courts or other
branches of the government The liability
to the abuse or misuse of power can never
prove its nonexistence, else all powers of
government would be at once annihilated."
And in the last (Gavin v.Curtitt): "We think
it is well settled that a court of eqni^, if it
has Jurisdiction In a given causey cannot be
deemed lacking in power to order tlie sale
of real estate, which la the subject of a trust,
on the ground alone that the limitations of
the instmment creating the trust eq^ressly
deny tiie powo: of allenatlou. It is true the
exercise of that power can only be Justified
by smne exigency which makes Che action of
the court, In a sense, Indlspoisable to the
preservation of the intaests of the parties
In tlie subject-matter of the trust, or, possi-
bly, in case <a some other neceasity of the
most urgent Character. The Jurisdiction and
power of a court of diancery in this respect
weretlie subject of discussion inthlsconrttn
Curtlss V. Brown, 29 111. 2(a, Vorls v. Sloan,
68 m. 688. and Hale t. Hale^ 146 la 227
[33N. Illi668,20Ii.B.A. 247]; and the con^
elusion reached in eadi at such cases Is in
harmony with the view hwelnb^re express-
ed that courta in eqnity hare full power to
entertabi bUIa and grant relitf in snch cases
as that at bar."
We are fbanton of <q?lnlon, upetra^eare^i _
Digitized by VjOOy IC
166
78 aOVTBEASTBBJSI BBFOBXBB
ttil TeTlew of the whole record, that the
plaintiff can conver a good Utle to the de-
fendant, and that there la no error;
Affirmed.
Off N. C. SIS)
rANDBRBn^ T. BOBERTS et aL
(Supreme Gonrt of North Carolina. Uay 18,
1»13.)
1. Pastitioit (1 79*)— BxnBKa»-RKFOBiv-Ex-
OBFTIORS.
A party objecting to the decision of a ref-
eree in partitioD ia limited to the errora pcSnt-
ed ont by Ua exception.
[Ed. Note^FoT other eaaes. lee RirtMon,
Cent Die H 224^ 32»; Dec. Dig. | 79.*]
2. Pabtuxoit (S 79*)->PK00BBDinas— Jobt
Tbial.
The question whether land sought to be
partitioned is indivisible so that a sale is nec-
essary when nised by exceptions to the re-
port of a referee is not an issue of fact triable
by the jury but is a mere question of fact
which may be determined either by the derk or
on appeal by the court without a jury.
[Ed. Note^For other cases, see Partition,
Cent Dig. U 224, 220; Dec. Dig. | 78.*]
Appeal from Superior Ooart, McDowell
Coonty; Lyon, Judge.
Suit for partition by George W. VauderUlt
against Franeea S. A. Roberts end others.
From a decree of sale by referee, defend-
ants appeal to the superior coort, where a
Jury trial was directed, and plaintiff excepts
and ann^liL Beversed.
Petition for partition of a cwtaln tract of
land of SO acr» In Henderson county, remoT-
ed to and tried in McDowell county because
of the diaqualiflcation of the derk of ttie
fenner county. The cleric referred the cause
to a referee, who heard the cause, reported
the evidence, and found as a fact tliat pam-
tlon cannot be made without aerioua injustice
to the various and numerous owners, and
that the interest of all parties will be greatly
promoted by a sale of the entire tract for
partition.
There are a la^e number of defendants,
all of whom consent to a sale, except the
heirs of W. T. Johnson, whose names are set
out in their Joint answer on pages 12 and 13
of the records These defendants duly except-
ed to the order of reference. They also ex-
cepted to the report of the referee and de-
manded a Jury trial in these words; "That
the question of whether the said land can be
actually divided or not be submitted to a
Jury."
Lyon, Judge, granted defendants' motion
and directed that the cause be tried by a Jury
upon the issues raised by the pleadingSL
Plaintiff excepts and appeals.
Haifclns ft Tan Winkle and 3. O. Merdp
men, all of Ashevllle, and Pleas ft Wlnbome,
of Uarton, tor appeUant lOdiaei Sdimck,
of HeDdersonvUle^ for appAUees, htfra of W.
T. Johnson.
BROWN, J. (after stating tiie facts a»
above). It is needless to consider the ques-
tion as to whether the Joint answer of the
heirs of W. T. Johnson raises an Issoe of
fact, except as to whether the land Is sus-
ceptible of actoal partition without serious
injury to the many owners. The answer cer-
tainly raises no Issue of title.
[1] These defendants hi their exceptions to
the referee's report have pointed out with
particularity the only matter upon whicb
they demand a Jury trial, via., as to whetbw
the lapd can be actually divided. Having
spedfled their Issue in their exception to the
referee's report, they are necessarily limited
to that Driller Co. v. Worth, U8 N. G 74«,
24 S. E. 617.
[2] These defendants are not entitled to
have that matter passed on by a Jury be-
cause that is not an issue, but only a ques-
tion of fact to be determined first by the
clerk and on appeal by the Judge. The derk
heard the canse and found the facts fully
and ordered a sale. Ihese dtfendants ap-
pealed to the Judge. The Judge held, as a
matter of law, "that the answer of these de-
fendants raises Issues of fact whldi should
be tried by a Jury. In this he erred. No Is.
sues of title or fact are raised eccept as to
the feasibility of dividing the 00-acre tract
of land among a large number of owners.
This is only a qnwtiim of tect
In Ledbetter t. Pbmer, 120 N. a 465, 27
8. El 123, it is held: 'TThe only controverted
fact arising on the pleadings was as to the
adviaabillty of a sale for partition or an ao>
tual division. This was not an issue of fact,
but a question of ftct for the decision of the
Clerk in the first instance, subject to review
by the Judge on appeaL" Tayloe r. Carrow,
ISe N. a 8, 72'S. B. 76, and cases dted.
Hie order ct Judge I^yon Is set' aside and
the cause ronanded, to be proceeded with In
accordance with this opinion. The coats of
this appeal will be taxed against the heirs
of W. T. Johnson, whose names are set out
In their answer.
Reversed.
(US N. a <K)
STATE V. TONET.
(Supreme Coort of North Carolina. May 13,
1913.)
1. HusBAnn awd Wot (| 302*)— "Abandon-
ment^—What CONSTITDTBS.
To constitnte the offense of abandonment
denounced by Revisal 1006, | S355. providing
that if any husband shall willfully abandon
his wife without providing adequate support,
he shall be guilty of a misdemeanor, both aban-
donment and nonsnoport are essential, and
mere proof of abandonment will not support
the oonvictitm.
[Ed. Note.— For other cases, see Husband
and Wife, Cent Dig. S 1100; Dec. Dig. { 302.*
For other definitions, see Words and Phrases,
vol. 1, pp. 4-18; vol 8, p. TO59.1
•For otbar eases see ssme tople and seotltm NUHBBR In Deo. Dig. a Am.
STATE T. TONXT
167
2. Ht7SBAin> ARD Win (| Abahdoit-
mnT— What CoiranruTBs.
Mere. BtatementB by aecuBed that, while he
was in another state, he cared do more for hia
wife than any other respectable woman, and
that he did not propose to Urc witli an anra<
TatioK womaOt will not in ItseU constitnte the
offense of abandonment denounced by Baviaal,
1905, { 3355; the element «t nonaapport beinf
absent
[Ed. Not&— For other cases, see Hnsband
and Wife. Cent Dig. S 1102; Dec. Dig. 1 804.*]
8. Gbimiival Lav 07*)— Omirsw— Jusn-
DicnoN.
The courts of Nortii Carolina cannot take
cognisance of the offense of wife abandonment,
where it was wholly consummated in a foreign
■Utc
[flld. Note.— For other caaea, aee Oriminal
lAw. Cent Dig. H 177-189. 191; De& Dig. |
97.*J
Appeal from Snpeitor Oonrt, Buthnfotd
Connty; Ada ma, Judge.
F. L. Toney was convicted of wife aban-'
donment, and he appeals. Beversed, and re-
manded for new trlaL
Inttctment tor abandonment and nonsap-
port under Bevlaal, | 8356.
The proaecntrlx and the defendant were
married in January, 1912, and kept bouse
for three months, when the defendant told
Us wift that he was going away <m a visit
of a few days. He left with his tnmk, and
remained away abont a numth. His wife
went to bet father's home, and lived with
him onttl she returned to her husband, who
was thea at Bla^burg, S. C Defendant
wrote to his wife about two wedcs after he
left, and sent her' some money. He sent
for her, and she went to him In South Caro-
lina, and they Uved at Drayton, 8. fbr
two weeks. She then left him, and returned
to her fitther's homa She was not drlTW
away by her husband, but left of her own
accord. He told her, U she wished to go,
be would not object, but left It to her. When
she left, he bought ber a ticket, gave her |1(^
and accompanied her mi her Journey as far
as Ghesney, S. 0., where she kissed talm and
they parted, oniey have been living apart
ever since. He told ber while they lived In
South Oarollna that he did not care any more
tor her than he did tot any other respectable
woman. He paid for hex board and Noth-
ing while tbey were at Drayton, and whoi
he left Caroleen, In this state, she received
123.60, and he sent her, b^ore he left the
state for Drayton, 8. C, $22£0. The war-
rant was Issued June 16, 1912. Defendant
offered to Uve with her, but she refused to
do 80. The court left the case to the jury
upon tiie question whether there had been
an abandonment in this state and a failure
to ^ovlde adequate support Defendant was
convicted, and appealed.
Qulno, Hamrick & McRorie, of Shelby,
for appellant Attorney General BIckett and
T. H. Calvert, of Raleigh, for the State.
WALKER, J. (after stating the facts as
above). [1,2] We have examined tbe record
In this case very carefully, and have failed to
find any evidence that defendant failed to
provide his wife with adequate sni^rt, even
If the evidence Is sufBclent to show an aban-
donment The crime denounced by the stat-
ute consists of two elements: First aban-
donment; second, failure to provide ade-
quate sui^rt If either Is wanting, there is
no criminal offense. This is clear, but it is
also so decided in State v. May, 132 N. C. 1020,
43 B. SL 819. Tbe failure to establish this
essential Ingredient of the crime is fatal
to the prosecution. It does not a[^)ear what
was an adequate support for the wif^ and,
for all that does appear, she received from
her husband all that was required to meet
her expenses. There was evld«ice In the
case that he supplied all of her wants and
treated ber kin(Uy while they lived In South
Oarollna, and when she prepared to leave
him, stating that she did not care to come
ba<^ he said to her that, if she stayed there
with him, "he would do his best for ber."
He proved a good character by the state's
witness, and there was no testimony tending
to disparage him. except the bare circum-
stances of the case. A witness testified that
after she bad left him and returned to her
tether's home and refused to come back and
live with him, and after he was Indicted, he
heard defendant say that "he did not pro-
pose to live with an aggravatii^ woman."
This was not a very nice, but a very rude
and Indelicate speech. It was morally rep-
rehensible, and the same may be said of his
offensive remark to his wife in South Caro-
lina. He Is not though, Indicted for mere
rudeness of speech or nnseendy conduct, but
for a vlolatiott of the criminal law, and
what he thus sbid has do direct or material
bearing up<m the legal qoestioii Involved.
All things considered, we conciude that the
state failed In its proof as to Inadequacy
of support, If not as to the abandonment
It may seriously be doubted if the facts
as now presented bring this case within
the Intmt and meaning of the statute; Wlt^
ty V. Barham, 147 N. C 479. 81 S. B. 372.
[3] But we may taj more confidently that
defendant Is not criminally liable In this
ptate for any marital delinquency in South
Carolina. If any offense was committed in
ttat states he can be made to answer only
|n her courts. Whether be can be success*
fully prosecuted tbete Is not a part of our
inquiry. We are concerned only with the
enforcement of our own laws, and therefore
merely decide that there was no evidence
of the charge In the Indictment that defend-
ant did not provide his wife with an ade-
quate support This point Is sufficiently
raised by the exceptions.
New triat
•Per elbar eases see atom tople and, seetton NUHBBB la Dec Dig. 4 Am. ZHg. Kn Ssrlss A a«*rj[ad!
Digitized by vliOC
168
78 SOUTHBASTEBN BHPOBTDB
(N.a
on N. a »n
GABPENTEB T. GABOUNA, a A O. RT.
(Snpreme Court of North GaroUna. Mty IS,
1918.)
1. Appeal and E^bob (8 999*)— Question of
Pacts— CoNCLTisivENEse or vBbdict.
A verdict on an issue of fact is conclaaive.
[Ed. Note.— For other cases, see Appeal and
Error. Cent Dig, H 8912^-^1. 8923, 8924;
Dec IMg. i 999.*]
2. Watebs and Watkb Coubsbb (8 179*)-
PoNDiNQ—EviDKNCK— Facts FoBEiaN to Is-
BUE.
In an action against a railroad for dam-
ages for wrongfally ponding water on idaintlEF's
land, evidence that certain lands on the river
some distance above and below that oC plaintiff
and of the same character had been turned out
before the construction of the roadbed, and ite
oultivatltm no longer attempted, was properly
exduded as introdaciiig Issaes foreign to the
inqairy.
[Ed. Note.— For other cases, see Waters and
Water Courses, Cent D1g.il 244-2S0, 2Q6-2&9,
268, 264 ; Dec Dig. 1 179.*I
Appeal from .Superior Oonrt, Bntberford
Connty; Adanw, Judge.
Actum by Jacob Carpenter acalnst the Caro-
Una, Cllnchfleld & Ohio Hallway. Judgment
for plainUfr, and defmdaut appeals. Af-
flnned.
Quiim, Hamrlcfc A McRorle, ot Bnther-
fordtOD, and J. J. McLaughlin, of Marlon,
for appellant. McBrayer & McBrayer and
S. Gallert, all of Butherfordton, for appellee.
HOKE, J. [1] There was aUegation with
evidence on part of plaintiff tending to show
that the defendant company in constructing
its roadbed along French Broad river. Just
below plaintiff's lands, had filled up the orig-
inal bed of the stream, thereby diverting
the water into an artificial channel. Inade-
quate for the fiow of the stream, causing the
waters of same to ptmd badt upon and sob
and injure plaintiff's lands, to his great dam-
age, etc
There was evidence on the part of defend-
ant In denial of this view, but the issue Is
almost exclusively one of fact; and, the
jury having accepted plalntlfTs version of
the matter, an actionable wrong baa bem
clearly established.
[2] It was chiefly urged for error that the
court sustained an aceptlon to questions
proposed by d^endant to two or more of
the witnesses, and to the effect that certain
lands on the river some distance below and
above that of plaintiff and of same character
had been turned out before the construction
of the railroad, and Its cultivation no longer
attempted. There are so many reasons which
might have led to this course on the part of
the owners of these other tracts Uiat the
proposed questions in our opinion were prop-
erly excluded as tending to introduce Issues
entirely foreign to the inquiry, and more
likely to distract than to aid the jury in
their deliberations. Chaffin v. Manufactur-
ing Co.. 18S N. a 10% 47 & B. 2ae; Warren
r. Makely. 85 N. C 12.
After careful examination of ttie record,
we find no reason tor disturbing the resolta
of the trial, and the judgment in plalntUTs
favor Is afltrmed.
Affirmed.
062 N. O. MS)
MOORB V. JOHNSON et aL
(Supreme Court of North Carolina. May 13,
1918.)
1. EjECTMnVT (S 1S*)—Glajms Thbouoh Coh-
MON SOUBOB— RnOISTBATIOlT OF TiTLB.
Where both parties to an acti<ni to recover
land claim from a common source of title, the
right of recovery depends upon priority of reg-
istration of the deeds of the respective parties,
and not upon color of title and adverse posses
sion thereunder.
[EU. Note.— For other cases, see Eyeetment,
Ceat Dig. H B0~92; "DvoT&g, | 16.*]
2. Adverse Possbssioit (| 82*>— Colob of Ti-
tle—nnBEGiSTEBBD EteBD.
An unregistered deed does not constitute
color of title since the enactment of Acts 1889,
c. 147 (Revisal 1905, | 980), providing that no
conveyance shall be valid as against creditors
or purchasers for value but ttmn the re^stra-
tion thereof.
[Ed. Note.— For other cases, see Adverse Pos-
session. Cent Dig. 8| 468-471; Dec Dig. {
82.*]
3. BTBCTHBirT n lb*)— ConcoN Soitbck.
Though plaintiff in an action to recover
land introduced in evidence a grant from the
state to P., who conveyed to C, and defendant
introduced a grant from the state Jo F.. who
also conveyed to Cl, the parties claimed throngh
C. as a common source of Utie.
[Ed. Note.— For other cases, see EjectraWt,
Cent Dig. H 69-62; Dec Dig. S 16*]
4. HUBBAHD AHD Wxis (H 198, 104*>-O(nr-
TBTAHCKS.
A deed a married woman without tiie
Joinder of her huriiand and acknowledgment of
both and her privy examination was void as to
her.
[Ed. Note.— For other cases, see Husband and
Wife, Cent Dig. 88 716-718, 726, 940; Dec
Dig. 88 193, 194;* Aclmowledgment, Cent Dig.
if 1^
6. Vbndob Airo FuBCBAraa (§ 228*)— Bboi»*
TBATiON— Effect of Notiob.
Notice, however complete and formal, will
not supply the place of the registration of a
deed.
[Ed. Note.— For other cases, see Tendor and
^rchaser. Cent I>ig. H 496-601;- Dec Dig. |
228. ]
Appeal from Superior Court, ^nikes Ooim-
ty; I/yon, Judge.
Action by P. H. Moore against Mary John-
son and others. From a judgment for de-
fendants, plaintiff appeals. Affirmed.
This la an action for the recovery of 2S
ssxa fit land. The defendants are Mary
Johnson and her dilldren, Thomas Johnson
and Walter Johnson. If Mary Johnson can
successfully defend the action, plaintiff can-
not recover against her codefendants, her.
children, as they are in possession under her.
*fot otbsr esses
■•• same tople and sectloa HUHBsa la Des. Dig. 4 Am. Dig. ^V-|U^ fy't^'^3(9'^f^*'
N.O)
MOORE T. JOHNSON
1S9
PlaintUr claimed flfle m follows:
0} Onnt from Qie state to Blchard Par-
ker for 60 acres of land, dated July 29, 1843.
(2) Deed fktnn Sichaid Parker to ^nillam
IMder, June 1, ISSO, and from WUUam Ted-
der to James CaZtoway. April 16, 1844, the
will of James Galloway, December 30, 1878,
appoiiitliig Oeo^ H. Brown bis execator,
with power to sell his lands, In his dlacre'
tlon, to pay his debts, and make tttie to the
same, and deed of Oeorge H. Brown, execu-
tor ct James Galloway, to Wllaon Moor^
AprU 8, 1880, reslBteied March 16, 190D, and
deed from Wilson Moon to jdalntUT, P. H.
MOore, Jannaiy 12, 1001, registered Decern-
ber 2, 1007.
There was some evidence that all these
deeds and the will cover the land In dlspnte,
and evidence to the contrary. There was al-
■o eridenee of poeseasion by plaintiff of the
land for abont 24 years before this suit was
twootfit.
Defendant denied the plaintiff's title and
maserted title In herself as f<mows:
(1) Grant of the state to James Fletcher,
dated AprU 17, 1780.
Deed from James Calloway to Jesse
Anderson, dated October 19, 1863, and reg-
istered February 20, 1906.
^ D«ith of Jesse Anderson, leaving fonr
children, (1) James Ander8<m, to whom Gal*
loway conveyed; (2) Mary Anderson, who
married John Johnson In 1880, he being still
alive; 0) John Anderson, who died 2S years
ago Intestate and without having married;
and (4) Braben Anderson, who conveyed bis
one-third interest In his father's land to
plaintiff, P. H. Moore, March 14, 1891.
Deed from P. H. Moore and wife to
James Anderaou, dated October 6, 1900, and
registered September 27, 1912.
<5) James Anderson and his sister, Mrs.
Mary Johnson, the defendant, partitioned
their lands and executed deeds accordingly,
James Anderson conveying to Mary John-
son her one-half share in severalty by deed
dated January 6, 1007, and registered Mardi
6, 1909.
(6) There was some evidence that the grant
and deeds In defendant's chain of title cov-
ered the locna in quo.
The court In its charge made the case turn,
first, upon the question whether the defend-
ant's deeds <»>vered the land in dispute, In-
stmcting the jury, if they did, to answer the
issue as to ownership in favor of defendants,
and still to answer In that way if they found
that plaintiff's deeds did not cover the land,
the burden being upon plalntUF to show that
fact, but he farther instructed them to an-
swer the Issue for the plaintiff If they found
that his deeds covered the land and the de-
foidant's did not The court then proceeded
to instruct the ]ury as follows: "Both par-
ties claim under James Calloway. They -ad-
mit that at one time Jamea Galloway owned
the 150-acre tract and the 80-acre tract, and
ttiat he made a deed to the defendants or to
those under irtiom the defendants claim, and
that his execntw made a deed to Wilson
Moore, under whom the plaintiff claims.
Now, the deed of James Galloway to Jesse
Anderson under whom the defendant, Mary
Johnson, fdalms, was made In 1863, and was
registered In 1906. The deed from George
Brown to Wilson Moore, under whom the
plaintiff claims, was made in 1880 and reg-
istered March 16, 1009, abont three years
after the deed to Jesse Anderson was reg-
istered. So there Is no question in this case
of adverse possession. The plaintiff, P. H.
Moore, has not introduced any deed under
which he has held possesilon of the land for
seven years. While his deed is seven years
old. It only counts as odor ctf title i^ainst
iSaxy J<An8on from the date of its r^lstra-
tltm, and tiiat was In 1900, and not seven
yean befnre the suit was brought (which
was March 8, 1908). In passing upon the
Issoes in this case yon win not cimsider the
quitclaim deed of Jamea Anderson either aa
against him or any one else. fHie whole
question turns on whether or not the James
Fletcher grant and deeds to the defendants
from James Gallowvy on down cover the
land in dispnt& If th^ do, the plaintiff is
not oititled to recover, but if the detaiAuifs
deeds do not cover the land in dlq^nte, and
if the deed from James Galloway to Jesse
Anderson did not cover the land In dispute,
the plaintiff would be oitltled to recover,
provided you find from the evidence and by
the greater weight ot tbe- evldenee that the
Blchard Parker grant and the deeds intro-
duced by the idalntlff do cow the land in
dispute."
The Jury returned a verdict for the de*
fendani and plaintiff a]n;)ealed, having as-
signed as error each instrnctlon of the court,
as above stated, and also the refusal of the
court to 8^ve this instruction requested by
him in fy}t time: "If the Jury find from the
evidence that the plaintiff and those under
whom he clalnu have bem In the open, peace-
able, and notorious possession of the land in
controversy, htdding the same adversely to
the defendants for seven years prior to the
commencement of this action under color of
title, such possession would ripen title in
plaintiff, and the Jury should answer the
first Issu^ 'Yes.' "
W, W, Barber, of Wilkesboro, for appel-
lant. H. A. Caranor and Hackett ft Gilreath.
all of Wilkesboro, for appellees.
WALKBB, J. (after stating the facts as
above). [1] We do not see why the charge
of the court was not correct under the rule,
now well eatabUahed by the decisions of this
court, that where the parties to the action
claim from a common source of title, in this
case Jamee Calloway, the true title and right
to recover depends, not upon color of title
and adverse possesion under It; Jiot must .
Digitized by VjOOglC
160
78 80UTHBASTEBN BOFORTEB
(N.a
be detemdned tj reference to the date of
registration of the deeds of the reepectiye
parties.
[2] It was bdd In AosUn Btaten, 126
N. a 783, 86 8. B. 838, that In socb a case
**an imreglstered deed dora not now consti-
tute color of title," since the passage of Acts
188Sk e. 14? (Bevlsal of 1905. | 980). This
view of the law was adopted In Jannejr v.
Bobbins, 141 N. a 400, 63 S. SL 883. the
court following the decisions In Anstltt t.
Statoa, supra, Lindsay t. Beaman, 126 N. O.
189, 88 S. B. 811, Collins t. Davis, 132 N.
a 106,' 43 S. B. 679, and Laton t. Orowell,
136 N. a 380, 48 S. E. 767. Justice Hoke In
Janner t. Bobblna, referring to what had
been decided In Austin r. Staten, and its
legal effect upon titles as a constmctlDn of
the Acts of 1886. c 147 {Bevlsal, 1 980),
said: "The plaintiff In Austin t. Staten
claimed under a deed to himself from H. W.
Statei and two otiiers, dated Mkreb 31,
1896, registered the same day. The defend-
ant claimed undar a deed to himself from
the same parties, dated December 31, 1887,
registered May 81, 1897. It wiU be noted
that there both parties claimed from the
same grantor, and the plaintiff's deed,
though doted nine years or more later than
the defendant's, had been registered more
than a year prior to the defendant's deed.
There were questions of fraud involred In
the case In no way material to the point
now considered. By the express provisions
of the r^istration act the plaintiff on the
record and face of the papers had the su-
perior right because his deed bad been first
registered. Defendant then took the posi-
tion that, though his deed by virtue of
the Teglstration act was avoided as against
plaintiff, yet the same was good as color of
tltie, and proposed to maintain his title by
showing occupation imder bia unregistered
deed for seven years. The court held that
to sUow this would be 'In effect to destroy
chapter 147, Laws 1885, and this we cannot
do." It will be observed that the facts thus
recited as those in Austin v. Staten are sub-
stantially tbe same as those we have before
us in this record. The court, both in Janney
V. Bobbins and Collins v. Davla, expresses a
very serious doubt as to whether the Legis-
lature Intended to effect such a radical
change by the act of 1885 in the law of
color of title, as formerly declared, but tills
doubt was finally settted in OoUlns v. Davis,
supra, by the use of this language: "We
therefore hold that where one makes a deed
(or land for a valuable consideration and the
grantee tails to register % but enters Into
poasenlon tberrander and remains thereon
for more than seven years, such deed does
not constitute color of title and bar the en-
try of a grantee in a subsequent deed for a
valuable consideration who has duly regis-
tered his deed. * • • Bxcept ht cases
coming within this rule, the rights acquired
by adverse possessloB tor esron years un-
der color <rf Utle are snot disturbed or af-
fected by the act of JS8S. To tbls vxbeat we
affirm the law as laid down in Austin t.
Staten, supra. It la in harmony with the
legislative irarpose and policy Incorporated
into our laws by the act of 1885. Tbe act
Intended to make secure and give notice of
the condition of titles and thereby prevent
the evils existing under the law prior there-
to, and mnat be construed with reterems to
this evU and in furtherance of the remedy,**
which was afterwards apim>Ted In Janney
V. BobUns, supra. The court did say In both
of these cases that the doctrine of color ot
title is not modified except to tiie ext&at
stated; that Is. where the parties claim
firom the same source of title and in casM
coming strictly within the principle, and
that when tbey do not so claim, bnt derive
their alleged right from Independent sources,
the doctrine of color of title, with respect
to an unregistered deed, still exists.
[3] Tbe plaintiff argues, though, In his
brief, that the parties in this case do not
claim from a common source, and he seems
to think that because the plaintiff introduced
one grant from the state to Blchard Parker
for the 80 acres, and defendant a grant to
James Fletcher for the 160 acres, both of
which covered the disputed land, they claim-
ed by Independent titles. But not so, for the
true titie aftmvards was acquired, or Is
presumed to have been acquired, by James
Calloway, who thereby became. If we may so
speak by analogy to a descent, tbe proposi*
tus of both parties, as they both introduced
mesne conveyances to thnnselves from him
and those under whom they claimed. The
grants are of no importan<^ as there was
no evidence of any better titie than that
presumed to have been held by Calloway,
with which plaintiff connected himself. It
was upon the Idea that, by the introduction
of the grants, it was shown that the par-
ties claimed under different titles, and not
from a common source, that plaintiff request-
ed the Instruction which was refused, and
properly so, and his exceptions to the charge
are all based upon the same erroneous view
of the law. This is not a question of the
lappage of two grants, tbou^ they may ac-
tually Interfere with or overlap each other.
The true title, so far as appears, came final-
ly Into James Oallowtfy, and we start with
him, and are not required to consider the
Parker or Fletcher grants. It may be added
that neither of the parties is connected by
mesne conveyances or otherwise with the
Fletcher grant. The rulings of the court
were all correct, unless it be that the plaln-
tUTs deed was color of title, and we have
held that it was not The case was tried
upon the theory that the pivotal question in-
vf^ved was whether the plaintiff's deed, not
having been registered until the year 1909,
was color of tUic^ the defmdan^s havtog
Digitized by VjOOglC
N.C)
161
been registered before tbat year and before
tbe brii^ng of this suit, and upon tbla the-
ory we decide it There Is no merit In the
other question.
[4] A quitclaim deed from James Ander-
son to Wilson Moore, who conreyed to the
plaintiff, can play no part in the case, as it
appears that at the time it was made Ander-
son liad parted with his title, and the Join-
der in the deed of Mary Johnson, alone or
without her husband, was void as to her, she
being a married woman and the joinder of
her husband, with acknowledgment of both
and her pilvy examination, being necessary
to give efficacy to the deed. But plaintiffs
counsel admits that this, the second, excep-
tion becomes Immaterial and the ruling un-
prejudidal In view of our holding as to the
other assignment of error. The act of 1885
was intended, of course, to protect only bona
Ode pnrchasers for valoe and without notice,
but there la no queBtion of that sort in this
case.
[I] No notice, however full and format,
will supply the place of registration. Robin-
son T. Wlllonghby, 70 N. C- 358; Blevlns v.
Barker, 75 N. 0. 436 ; Qulnnerly r. Qulnner-
ly, 114 N. O. 145, 19 S. E. 99, and cases cit-
ed. Both parties appear to hare acted In
good faith in buying the land, and to have
given value therefor, and the plalntlfF loses
unfortnnately by his neglect to have his
deed duly restored. There was no request
for Instructions, except as indicated. The
only prayer raises the same question prac-
tically as the exception to the charge. We
have considered the questions discussed in
the brief of appellant, covered by his asslgu-
moits of error, and have dIscoTered no w-
ror In the tilaL
No error.
(Ui N. a US)
inSEQfHBIMnR. T. AI/EXAMDEB et aL
(Snprsme Court of North Carolina. May 12,
iwa.)
1. GOBPORATIONS {| 197*)— CaPTFAL BTOOK—
RssoLimoN FOBFEinna Unpaid Shabbs—
EBXOPPEE, AOAIHSr SXOOKEOLDIB.
Plaintiff with another obtained an option
on valuable proper^ and, with the defeudants,
ondertook to ot^anise a corporation^ and was
allowed 33 shares for his interest in the op-
tioa and for Bervices to be rendered, and also
paid $1,400 cash for 14 shares issued to him.
After the original organisation fasd failed, the
stockholders at a meeting at which plaintiff
was present, without his protest, psjEwed a res*
olntion reciting the facts and releasing its
stockholders from all liability bej^ond the
amount judd in cash for which certificates of
stock had been issued, and provided that
the' stock issued to plaintiff, In consideration
of the option and his services, be surren-
dered. Plaintiff refused to surrender the 33
shares, and at a subsequent meeting at which
he was allowed to vote only 14 shsiei, it was
voted to Issue new stock, which measure would
have failed had plaintiff been allowed to vote
the entire 38 shares. S^d, in his action to en-
join the isBuance of new stock, that as he lud
been present when ' the resolatlon was pAspod
without protest, be was ctmduded by. the reso-
lution, and was entitled to vote only "on 14
shares.
[Ed. Notc^or other
Cent. Dig. || 747, 749-763, 764; Dec Dig. |
197.*]
2. CoBFOBATions (| 57*)— BT'Laws and Bss*
oLUTioNs— -Emci AS COIfTBAOr.
As between a corporation and Its stock-
holders end tlie stockholders themselves a by-
law or resolution may be considered as a con-
tract
[Ed. Note.— For other cases, see Corporations,
Cent Dig. H 167-159; Dec. Dig. { 67.*]
S. COBPOBATIONB (| 110*)— RESOLUTXOir BT
STOdtROLDBRS— CORBIDEBATIOIT.
Where plaintiff hsd received 33 shares of
stock for a valuable option turned over by him,
and for services to be rendered, and others had
subscribed for stock on condition that it might
be paid for In. services, a resolution, passed at
a meeting at which plaintiff was present with*
out protest, releasing subscribers from liability
except as to stock paid for in cash, and requir-
ing plaintiff to surrender the SS sharfls and re-
ceive the shares for which be bad paid cash,
was supported by the consent of the other
stockholders, b^ the surrender of the claim for
plalntiS's services, and by relief froui his eon-
tingent liability to creditors.
[Ed. Note.— For other cases, see Contoratlons,
Cent Dig. i 461; Dec. Dig. { lia«)
4. SPKCinO PZBFOBUANCE (§ 70*)^01fTBAOTa
BwrOBCBABU— COBPOBATIO WB' STOCK OB SB^
OUBITIX8.
While contracts for the sale or transfer of
government securities or shares of stock on the
market and readily otainable, will not, as a
general rale, be specifically enforced. It is otSer-
wise when the agreement for transfer concerns
stock of a different character, and contains
terms giving the contract special significance
and presenting a case where the award of ordi-
nary damages in case of breach would be inad-
equate.
[Ed. Note.— Fpr other esses, see Specific Per-
formance, Cent Dig. | 203 ; Dec. Dig. | 70.*]
5. COBPOBATIONS (8 94*)— CAPITAL STOOE—
"Cebtificatb op Stock.**
A certificate for shares of stock Is not ths
stock itself, but constitutes only prima fads
evidence of the ownership of a number <tf
shares.
[Ed. Note.— For other cases. See CorporationB,
Cent Dig. I 485; Dec. Dig. I 94.*
For oth.er d^ltions, see Words andrPhnUNS,
vol. 2, pp. 1082-IMiiM
6. COBPOBATIOKS (| 67*)— RBOCQnOH OF OAT-
iTAL Stock— Statutes.
Under Revisal 1006, 8 1164. making a no-
tioe of the reduction of cspital stock necessary
to afford stockholders protection against credi-
tors, a reduction without notice, u otherwise
valid, is enforceable by the corporation ^inst
its members.
[Ed. Note.— For other cases, see Corporations,
Cent Dig. H 181-183, 449; Dec. Dig. | 67.*]
Appeal from Superior Oourt, MeAlenburg
County; Webb, Judge.
Action by J. J. Misenhelmer against B. B.
Alexuider, Jr., and others. A restraining or-
der obtained by plaintiff was dissolved, and
plaintiff appeals. Affirmed.
Civil action to enjoin the issuance of 800
shares of stock, 400 of same being preferred,
and 400 common, stock at par value, $100
•Vnr oOi w ttses m asms topu and section NUHBB& In Ose. Dig. A ikm. Dig. Key-No. Swlta A
78&aL-U
1«2
78 SOUTHEASTERN BBFOBTBB
p(.0
per alutre, In a corporation known as the
Equitable Bealty Ck>mpany, Involving also a
diange of name and amendment to cliarter
of tba company ; heard on return to restrain-
ing ordw befbre bis honor, J. L. Webb, Judge
at GhambeTB, on Janoary 28, 1918. On the
hearing It was made to appear that idalntur,
holding certificate for 88 shares of stock in
■aid company, was present at the meeting
when the issoe was determined upon and
proposed to vote his 83 shara against the
measure. He waa allowed to vote 14 shares,
and prevented from voting the entire 38
shares, defendant Insisting that this was the
extent of his right It was admitted that
the question depended on whether the facts
in evidence established the right of plaintiff
to vote these 83 shares or raised serious
question aa to such right. The court entered
Judgment dlssolvtaig the restraining order,
and plaintiff excepted and appealed.
O. A. Shnford, of Ashevllle, and G. A.
Duckworth and Stewart A McRae, all of
Oharlottei for appellant Burw^ ft Oansler,
of Charlotte, tor appellees.
HOKE, J. 11] The evidence tended to
rihow that on or about April 15, 1912, plain-
tiff and one W- M. Paul liad acquired and
heM an option on a valuable lot In the city
«f Charlotte, known as the "Mansion House
hot," at the stipnlated price of $80,000, and
as a consideration had deposited their notes
for 8S00 eadi. That deairiiv to avail them-
selves of their option, the holders, with oth-
ers, chiefly the defendants, proposed to form
a corporation and erect a sky ecrapor cm sndi
lo^ to cost not less than $4,000,000, the un-
dertaking to be entered upon when a bona
fide stock subscription of $100,000 should
have been obtained. In pursuance of this
purpose, idalntiff and Ms associate, W. M.
Paul, and defendants subscribed to as much
as 260 shares of said stock at par value of
$100 per share. That much of the stock sub-
scribed for was on condition that the amount
considered requisite, to wit, the $100,000,
should be first subscribed, and several of
them on condition that they should be al-
lowed to pay for their subscription in service
of value to the company. That the option
being about to expire, the corporation hav-
ing been first formed, the company took over
the option, and bought and took a deed for
the property, paying therefor $20,000 in cash
and securing the remainder of the contract
price, $00,000, by notes to the vendee and
deed of trust on the property to secure the
same; the notes of plaintiff and Paul having
been assumed by the company and liquidated
in the deaL In maiHiig the cash payment of
$20,000^ the amount <tf $10,000 waa raised on
the note of the company, indorsed by plaintiff
and defendants, and the eeccmd $10,000 was
secured by second mortgage on the property.
Iv taking over the option at $0,000 the same
was paid for by Issuing 33 shares, the shares
in controversy, to plaintiff, and 17 shares to
plaintiff's associate, W. M. Paul, and there
was evidence tending to show that in addi-
tion to the option t3ie plaintiff and W. kf.
Paul were to give their services to the com-
pany In the ^ort to obtain the amount of
stock subscription considered necesary to
render the undertaking a feasible jwoject
The evldaice further tended to show that
the parties fidled to obtain tlie amount of
subscription deEdred and deemed requisite tax
the purpose contemplated, and the subscrib-
ers, having some concern as to their possi-
ble liability to creditors by reason of their
subscription, and desiring to settle the
amount and question of such liability, as-
sembled in corporate meeting and passed
resolutions as follows:
"At a called meeting of the stockholders of
the Equitable Bealty Company held in the
office of Paul Chatham on the 25th day of
November, 1012, the following sto^holders
being personally present, 8. B. Alexander,
Jr., E. T. Garsed, Paul Chatham, O. C. Hook,
C. A. Mlsenbelmer, and J. J. Mlsenheimer.
and the following represented by proxy, W.
H. rniompson, the followli^t resolutions w€xe
unamlmously adopted:
"Whereas, at and before the organization
of this company the following parties agreed
to subscribe for the stock therein in the
amounts set opiMwite their respective names,
filed with the secretary of this company, to
wit:
Paul Chatham BO shares
C. A. MIsenheimer 10 shares
S. B. Alexander, Jr. 20 shares
E. T. Oarsed 20 shares
Chas. C. Hook 20 shares
W. O. Rogers 20 shares
Walter M. Paul 20 shares
J. J. MiBenfaeimer «... 26 shares
Robt E. Milligan 10 shares
T. C. ThompaoD Bros., approximately 35 shares
W. B, Ebert 6 shares
— the original Incorporators, to wit, W. F.
Harding, W, O. Gardner, and F. H. Chamber-
lain, having theretofore each subscribed for
ten shares; and whereas, the said S. B.
Alexander, Jr., B. T. Garsed, Chas. C. Hook.
W. B. Bt^ers. T. C. Thompson Bros, sub-
scribed for the number of shares of said
stock in said company set opposite thdr re-
spective names as above, upon the condition
that the same should be paid for in services
to be rendered the corporation in the con-
struction of a fourteen-story building to be
located at the comer of Church and West
Trade streets in the city of Charlotte, and
the said Walter M. Paul and J. J. MIsenheim-
er subscribed for the shares of stock in said
company set opposite their respective names
as above, cm condition that the same should
be paid tor in services rendered and to be
rendered the said corporation, and in consid-
eration of the asstgnmeut of an option, which
the said Paul and Misenhebner had iWon
Digitized by V^OOg IC
N.O)
MI8ENHEIMEB
T. ALEXANDEB
163
the lot of land above referred to ; and where-
as, the other stockholders above mentioned
subscribed for stock set opposite their re-
Bpectlve names, on condition that the com-
pany would proceed forthwith to the erec-
tion of aald boildlngs njmn said lot, all of
which conditions were by matnal mistake of
the parties left ont of the paper wrltlDg
signed by them, and whereas, since the or-
ganization of said company the following
turtles have paid In npon aald stock subscrip-
tions the following amoonts, to wit:
I>r. O. A. Misenbdmer $1,400 00
J. 3. Misenheimer 1,400 00
Paol Chatham 1,400 00
BL T. Garsed 1,400 00
T. C TbompsoQ Broa 1,400 00
Hook and Rogers 1,400 00
a B. Alexander 1.400 00
W. U. Paul 1^ 00
— ^foT which certificates of stock have been
Issued them respectively; and whereas, it
has been decided by the stockholders and of-
ficers of said corporation that It is not ex-
pedient at this time to proceed with the
erection of said building upon the lot afore-
said, In view of the fact that a sufficient
amount of stock has not been subscribed to
enable the company to proceed therewith,
thereby rendering It unnecessary that the
parties above named should render the serv-
ices with which they were to pay for their
respective stock subscribed and that those
who made cash subscriptions should pay the
same luto the treasury of the company:
"Therefore, be it resolved unanimously that
each of the stockholders and atock subscrib-
ers to this corporation be and Is hraeby re-
leased from any and alt liabilities on his re-
spective stock subscription to said corpora-
tion, beyond the amount which he has paid
In In cash and for which stock certificates
have bem issued, it being recognized by this
oompany that It Is unable to tnlAU the con-
ditions itpfHi which aald stock sobscrlptions
wen madfc
^It Is farther reaolTed, that the certificates
of stock issued to the saU Walter If. Paul
and J. J. MIsenheimerfor the orlglna] amonnt
of tb^ subscriptions be for a like reason
snrroidered and that new oertiflcates be Is-
sued to each of them for the amount of cash
paid in by them reflectively as above set
forth. There bebig no furtho' business the
meeting adjourned.
"Paul Chatham, Chairman.
"Chas. 0. Hook, Secretary."
The evidence of defendant was to the ef-
iect that plaintiff was present at the meet-
ing and voted fbr these resolutions, and of
plaintiff Is that he was presoit and did not
vote or make protest against them. In pur-
suance of the same certificates of atock were
Issued to the different subscribers other than
plaintiff; W. M. Paul the associate of
plaintiff as original holder of the option, sor-
Toiderlng bis IT ahares, the number Issued
to him by the company at the time the op-
tion was taken over. The plaintiff, who has
received a check for fl7.01, the difference
between the par value of the 14 shares to
which he was entitled by the terms of the
resolution and the cash paid in by him, to
wit, $1,417.01, but has not received and has
declined to take the 14 shares, or to surren-
der the 33 shares of original issue.
Thirty thousand dollars of the Indebted-
ness for the purchase money being about to
mature, the company having no available
means to meet the demand, it was formally
proposed to amend the charter, make the la-
sue of stock at present In 4iieation» to wit,
400 shares preferred and 400 conuuon stock,
as a means of relieving the company and
raising the money required to pay the daim.
It is assumed, and seems to be agreed vpim
as determinative, that at the corporate meet-
ing when thla was decided i^n. the measure
was properly carried If plaintiff had the
right to vote only 14 ahares of stock, and
that It would faU If he had the xli^t as
claimed by him to vote the entire 88 shares,
It may be well to note that the resolutions
referred to, after radtiing that plaintiff and
W. M. Paul had made thdr sabscrlpttons on
conditioiis that same slunUd be paid fior in
survioes rendered, and to be rendered, and
on assignment of the option, contains provi-
sion:
"Thtfefore^ be It resolved that eadb of the
stockholders and stock subscribers to this
corporation be and Is herein released from
any and all liabilities on his respective stock
Bubsctlptlon to said corporation, beyond the
amonnt whldi he has paid in In cash and for
whldi stock certificates have been issued, it
being recognized by thla company that it Is
unable to fulfill the conditions up(m whldi
said stock snbacilptlons were made.
"It Is further resolved, that the CerUfl-
cates of stock Issued to the said Walter M.
Paul and J. J. Mlwenhefaner fbr the original
amount of th^ snbscrUitlons be for a Uks
reason surrendered and that new certifloites
be Inued to eadi of them for the amount of
cash paid in by them raepecttvely as above
set forth."
On these, the facts chiefly relevant, we
concur In the ruling of his honor below, that
plaintiff's right to vote should be restricted
to the 14 shares and that he Is concluded by
the force and effect of the corporate resolu-
tions above set out, and the acts done pur-
suant thereto, as to any rt^t to vote the
shares in excess of that amount. It Is well
understood that a stockholder in a private
corporation is bound by a corporate resolu-
tion regularly passed in accordance with Ita
charter and by-laws (Clark on Corporations,
p. 460) ; and, although attended with some
irregularities a member who is present when
a measure la formally passed and votes for
the same or falls to make protest, is oi^
narlly concluded (1 Cotdc on Corporations
Digitized by GoOglC
164
T8 SOUTHEIASTEBN REPOBTEB
(N.O.
[6th Ed.] 1 89. p. 780; CaUahan t. Ditch Oom-
paD7, 87 Colo. 831, 86 Fac 123; Wood t.
Water Worke [C G.] 44 Fed. 146, 12 L. B. A.
168). It l8 urged for plaintiff, as we mid^
■tand hla position, that Ub option was a
valuable ilght wtalcb be baa passed to the
company, and tliat tbis transaction abonld
be regarded as an executory agreemoit to
surrender 88 abarea In achange for the 14,
and that as to bim, tbe resolution providing
for sndi exchange Is nnenf<»oeable from a
total lack of oraudderation.
in It l8 not lnfre<piently tme that, as
betweok tbe corporation and Its stockboldos
and tbe stodctaolders tbemselvea, a by-law
or resolution of the company may be con-
iddered as a contract New England Trust
Oo. T. Abbott Bx., 162 Mass. 148, 38 N. E.
482, 27 U B. A. 271; 10 Cyc 85L
[1] But assuming, as plalntifl contends,
Oat tbls la a case calling for the appllca-
tlon of the principle, the further premise of
defendant cannot be maintained tlMt on the
facts in evidence Oiere la a total lack of
eonsideratton. In a case of tbls kind the
consent tit one stockholder may wdl be re-
garded as a consideration tor tbe consent of
tbe others, and the i>oalti9n la emphasized In
this Instance 1^ the fact that W. i/L Paul,
Om associate of plaintiff, as origfual holder
of tbe option, and who received 17 shares of
stock as part of tbe BO Issued, has surren-
dered these shares pursuant to the resolu-
tion and received or has the right to the
number equivalent to the actual cash paid In
by him. about $1,200, thus giving tbe com-
pany and plaintiff as one of its members the
pecuniary value of the difference. And the
surrender of this claim on plaintiff's serv-
ices, recited In the resolutions as part of the
consideration for the 50 shares, and the re-
lief against tiie contingent liability of plain-
tiff to creditors existent when stock has
been issued in payment for property, may
also be referred to In support of the resolu-
tion; the same being one of tbe requisite
steps in affording plaintiff protection from
such a demand.
[4] ^peaking further to plaintiff's position
that this resolution, providing for the sur-
render of the 33 shares and the issue of tiie
14 in lieu thereof, should be treated as a
contract or agreement: While contracts for
the sale or transfer of government securities
or shares of stock on the market and read-
ily obtainable will not, as a general rule, be
spedflcally enforced, it is otherwise when
tbe agreement, as In this Instance, concerns
stock of a different character, and there are
terms giving tbe contract special significance
and presenting a case where the award of
ordinary damages In case of breach would
be Inadequate. The distinction adverted to
la v^ well stated in Cook on Corporations,
I 888, as follows: "An entirely different rule
prevails as regards contracts for the sale of
stock of private corporattona. If the stock
contracted to be sold la easily obtained In
tbe market, and there a.n no particular rea-
sons why the vendee should have the par-
ticular Btodc contracted for, he la left to Mb
action for damages. Bat i^iete the vahie of
the- stock Is not easily ascertainable, or th«
stock la not to be obtained readily elaeirtiere,
or there Is some particular and reaaonaU*
cause for tbe vendee's requiring tbe stodc
contracted to be delivered, a oonrt of equity
will decree a spedflc performance and com-
pel the vendor to deliver tiie stock.** It ia
not required, however, in this case, that de-
fendants should have recourse directly to
this principle in ttie doctrine of spedflc per-
formance or the remedy ordinarily avallabl«
In sudb caaes.
[6] The G^flcato tat 83 abares held hr
plaintiff la not the atock itaelt, but consti-
tutes cmly prima fade evidence of the own-
ership of that numba of sbarea. Cook oa
Corporations <6th Sd.) | 13; Clark on Cor-
porations, p. 260. And aa between the par^
ties this resoluUon of November 25th approv-
ed, ot certainly acquiesced In plaintiff*
had tbe force and effect of annulling the 88
shares of atock held {dalntlff, or reducing
the same to 14, and the company was
within its rights In denying tbe right of
plaintiff to vote the larger number.
[I] It Is farther insisted for plaintiff that
the reduction contended for la not valid be-
cause of the failure of the company and the
parties to comply with the statutory require-
ments contained In Bevlsal, | 1164, and par-
tlcnlarly aa to tbe publication of the prop-
er notices, but It will appear ftom a perusal
of the section that this providon aa to notice
Is only necessary to afford the stockholders
of a owporation protection against creditors.
As between the parties, the reductl<Hi, If
otherwise lawful and vaUd and pursnant to
resolutions properly passed, will bind the
members, and may be oiforced as in this in-
stance by corporate action.
There Is no error, and the jndgm»t dla-
solving tbe restralnbig order Is affirmed.
Affirmed.
The CHIEF JUSTIOB not sitting. ■
(US N. C. 2U)
HARTIS V. OHARLOTTB ELECTRIC BY.
CO.
(Supreme Court of North Can^lna. May 13,
1913J
Depositions (J 100*) — Actiows in whicb
DErosiTioNB Mat be Used.
Where, pending an action for personal in-
juries, plaintifE died from tb« injunies, and bet
administrator brought an action (or ber wrong-
ful death, her deposition as to tlie cause of tlie
injuriea regularly taken and filed in the first
action with opportaaity to the defendant to
cros»-examiDe was admissible fn evidence in the
second action, Botwltbstanding the technkal
^iBsimilarity of parties and causes of action.
•Tor otbw easw ■•• sain* taplt aad mcUob NGMBBB In Dm. Dig. * An. Dig. I^^-l^o.
HABTIS ▼. OHABIiOTTE EDEOTAIO BT. OO.
165
tine* Ita adminibllit; wai not dependent npon
•net Identit; of parties and caoMs of action,
bat rather upon identity of the question onder
investigation and upon the opportunity of tbe
party against whom it waa offered to cross-
examine, especially where the complaint in the
fimt action donanded $10X)00, thus slving de-
fendant notice of tbe importance of the action.
[Ed. Note.— For other cases, see Depositions,
Cent. Dig. K 297, 298; Dec. Dig. { KW.*]
Blown and Walker, JJ., dlsientbig.
Appeal from Snperlor Oonrt, IfacUentmrff
Oonnty; Weitb, Judge.
Action by J. M. HartlB, administrator of
UaEgle J. HartlB. against tbe Cbarlotte Elec-
tric Hallway Company. From a judgment
of nonanlt, plalntltf appeals. New trial or^
dered.
It ia alleged that Hasgle 3. Hartls was in-
jured by tbe negligence of tbe defendant on
Hay 24, 1910, and soon tbereafter the said
Maggie J. Hartls and her husband commenc-
ed an action against tbe defendant to recov-
er damages for tbe injury. During the pen-
dency of that action the deposition of tbe
said Haggle J. Hartls was r^larly taken
and filed, and thereafter the said Maggie J.
Hartls died. This action was then commenc-
ed by J. M Hartls. as administrator of his
wlfe^ to recover damages for her wrongful
death, caused, as the plaintiff contends, by
tlie Ix^nrles of May 24, lOlO. Upon tbe trial
of tbe action the plaintiff offered as evidence
tbe deposition taken in the former action,
wbicta was ezcliided, and the plaintiff except-
ed. The deposition. If admisslUe, oontains
material errldflnce on tbe issne of n^ligence,
and the record shows that the defendant had
the opportonity to cross-examine, althotigh It
did not do so. The plaintiff, baidng no other
evidence of Diligence, submitted to a Judg-
ment at niHiBnH and appealed.
E. R. Preston and Nelll B. Graham, both
of Cauulotte, for appellant. Bnrwell ft Can^
iBt, of Charlotte for appellee^
ALLEN, J. The question presented by
this appeal has not been heretofore decided
by this court
If we adopt the rale prevailing in some Ju-
risdictions, that there must be an exact iden-
tity of parties or of their privies and of
causes of action before a deposition taken in
one action is admissible in anotlier, we must
sustain the ruling of his honor, because we
bave recently held in Broadnax t. Broadnax,
76 S. B. 216, that damages for wrongful
death are not in the usual acceptation of
the term a part of the personal estate of the
deceased, and in Hood v. Am. Telephone ft
Telegraph Co., 77 8. B. 1094, at this term,
that the administrator or executor does not
sue because of succession to the rights of the
deceased, but by virtue of his designation in
tbe statutei and tbe deductions from these
authorities are that the causes of action are
not Identical, and that the administrator In
actions of this character Is not in prlrlty
with the intestate. This rule finds support
in Miller t. cmiispie, 54 W. Va. 462, 46 8. K
461, Railroad t. Gumby. 99 Fed. 197, 39 C. Gi
A. 466, 6 A. & E. PI. & Pr. 679, and Is ex-
pressly adopted in Murphy v. Railroad, 81
Hun (N. T.) 368, in wMch a deposition was
excluded under facts in all material respects
like those before us. These authorltiea in
our opinion sacrifice substance to form, and
exclude material evidence which has been
subjected to the tests of truth and In favor
of a party who has bad an <9portnnll7 to
cross-examine.
The witness in this case was sworn at the
time of taking the deposition by a competent
officer; she testified as to tbe one fiict upon
which both actions depend, the cause of her
injury; the plaintUfia in both actions were
endeavoring to establish' the same fact, tbe
negligence of the defendant; the same party
is a defendant, and it had the opportunity to
cross-examine ; and the plaintiff in the pres-
ent action is the administrator of the plain-
tiff in the former. Prof: Wlgmore says in
reference to Identity of issues. In volume 2, |
1887 (1) : "It is sufficient If tbe issue was the
same, or substantially so with reference to
the likelihood of adequate cross-examination,
because tbe opponent has thos already bad
the full bmeflt of the security intended by
tbe law^— and as to parties, in section 1388 :
"It ongfat, tb«i, to be snffidoit to inquire
whether the former testimony wu, given
upon audi an issue that the party opponent
in that case Itad tiw same interest and mo-
tive in his cross-era minati<m that the pres-
ent opponent has : and the determination of
this ought to be left entirely to the trial
Judge." And be adds, while discussing the
admissibility of a deposltltti takoi In another
action: **It Is caioagh to suggest that the
rttnatlon la one that calls for common sense
and liberality In the application of the nde,
and not a narrow and pedantic lUiberallty."
Mr. Greenleaf (vol. 1, | 168) says; "TbB
chief reasons for the exclusion of hearsay
evidence are Hie want of the sanction of an
oath and of any opportunity to cross-exam-
ine Che witness. But wliere the testtmony
was given undw oath, in a Judicial proceed-
ing, in which the adverse Ut^nt "was a
party and where he had the power to croas-
exandne, and was l^lly called upon to do
so, the great and ordinary test of truth being
no longer wanting, tbe testimony so given Is
admitted after the decease of tbe witness In
any subseqnent suit between tbe same par-
ties"—and In section 668: "We have eeen
that tn regard to tbe admissibility of ci for-
mer Judgment in evidence it is generally nec-
essary that there be a perfect mutuality be-
tween the parties; neither being concluded,
unless both are alike bound. But with re-
spect to depositions, though this rule is ad-
miUed in its general prlndples, yet it Is ap-
U Dm. Dls. * Am. Dig. Ksr-Ndi^lirbi* i%
*rar other omm Maw toplo and Netfam NUHBKR
166
78 SOUTHEASTERN BBPOBTBB
(N.G.
piled with more latltade of discretion ; and
complete mutuality or Identity of all the
parties Is not required. It is generally deem-
ed sufficient If tbe matters In issne were the
same In both cases, and the party against
whom the deposition is offered had fall pow-
er to cross-examine the witness." In Tiffany
on Death by Wrongful Act, 1 192, the author
says: "It has been held that in an action
under the statute it is admissible to prove
the testimony of a deceased witness in a salt
by the Intestate for the personal Injury which
abated on his death upon the ground that
the causes of action were the same, and that
theadmisBibilit7 of such evldmce turns rather
vpon the right to croas-examine than upon
the precise nominal identity of the parties."
This rule, approved by the text-writers
from which we have quoted, that the admla-
siblllty of the deposition la not dependent
upon exact Identity of parties and causes of
action, bnt rather upon identity of the ques-
tion being investigated and npon the oppor-
tunity of the party asaitut whom the iepoH-
tUm U offered to oro»»-ewamtne, lias been
adopted in Dawson v. Smith's Will, 3 Houst
(Del.) 340; Wade v. King, 19 IlL 308; W&t-
son V. St Paul R. R.. 76 Minn. 362, 79 N.
W. 308; Audricus, Adm'r, r. Coal Co., 121
Ey. 731, 90 S. W. 233 ; Railroad v. aengst,
36 Tex. Civ. App. 219, 81 S. W. 832, and it
has been held In three cases — Railroad v.
Yenable, 67 Ga. 699, Railroad v. Stoat, 53
Ind. 158, and Walkerton v. Erdman, 23 Can.
Sup. Ol 85!^-4bat a dcsnaitlon taken tn an
action to recover damages for persona] In-
jories la admissible In evidence In a subse-
quent action against the same defendant to
recover damages for wrongful death, whi^
is the case at bar. In the Georgia case the
mother had sued for personal Injuries to her^
self by the railroad company, and in that
case her interrogatories were taken. Snbse-
qoently she died, and her child, by next
friend, sued for her homicide and reooveied.
Objection was made to the introduction of
her testimony on the former trial, but It was
admitted, and the court nld: 'The admla-
slUltty of the intrarogatoiiea turns on fiie
qneetloo whether the acUcn was substantially
en the same Issue and substantially between
the same parties. Substantially we think
that the Lssne was the same. The injuries
for which she had sued caused her death and
fl» that result of tluMe Injuries Uie child sued.
* • * It Is tnw that the child eonld not
have sued had not her mother died; and In
the mother's case the Uteial cause of actUm
% the injury dme bet not resulting In death,
and in the diiid's the literal cause of action
Is the homicide; but the substantial cause
in both cases is the one cause of both actions,
the wrong done by the railroad company, and
that was the issue. The Interrogatories were
introduced, too, only In respect to the injury
and the manner in which it was done and
how it occurred, and this was the real thing
In issue in both cases. Was the company
negligent or diligent? Was the mother?
These were the main, substantial questions
at issue." In the Indiana case It was said
that: "On tiie trial of an action brought by
an administrator to recover damages for the
death of his Intestate, caused by the wrong-
ful act of the defendant, evidence is admis-
sible to prove what was the testimony of
witnesses, since deceased, on the trial of an
action brought by said Intestate, and abated
by his death, for damages for injuries caus-
ed by said wrongful act" — and in tlie case
from Canada: "Though the cause of action
given by Lord Campbell's Act for the benefit
of the widow and children of a person whose
death results from injuries received through
negligence Is different from ttiat which the
deceased liad in his lifetime, yet the material
issues are substantially the same in both ac-
tions, and the widow and children are In ef-
fect claiming through the deceased. There-
fore, where an action is commenced by a per-
son so Injured in which his evidence Is taken
de bene esse and the defoidant has a right to
cross-examine, such evidence Is admissible
in a subsequent action taken after his death
under the act"
This rule confined to facts like those before
us commends itself to our Judgment as based
upon reason and authority, and it Is Just; as
it deprives the defendant of no right and per-
mits a trial of the issue between the plaintiff
and the defendant upon its merits. The
cross-examination In the two cases would be
practically the same, as the two facts to be
investigated In each would be negligence^
and the extent of the injuries, unless It would
be broader and more extended in the first,
due. to the fact that In an action fbr personal
Injury, recovery may be had for expenses,
pain, loss of time, impaired capacity to make
a llvlnK Ac, wbUe In an action Car wrtrngful
death the Inquiry as to damages Is confined
to the lOngle quertlon of the presmt value of
not earnings, based on life expectancy.
The sum demanded In the first $10,000, the
same being demanded In the second, was snC-
tdeat to put the defendant uptm noUoe of
the Importance of the action.
We are of opinion the depoelttoii was oom-
peten^ and a new trial Is ordered.
New triaL
BBOWV, J. (disamting. I am (tf opinion
that the depositioQ Is incompetent evidence
In tills case fbr these reastnu: (1) Tba par-
ties to the two actlmis were dlffmmt
The causes of action were different &)
There was no privity of Interest between the
parties to the first and second action. (4)
The cause of action for wrongful death of
t^lntllTs Intestate did not exist when dep-
osition was taken In first actUm. (B> That
deposition was never opened or ordered to be
admitted in evidence In the first action.
N.O)
8TATB T. HEMPHILL
1«T
Han (N. T.) S58. which waa an admfulBtra-
tor's action for Injuries causing death, the
court in ruling out similar testlmonj said:
"^The deposition of the deceased taken in an
action prosecuted by him in his Ufbtlme
was not competent evidence In this action.
That action terminated with the death of the
plaintiff therein and all interlocutory pro*
ceedings went down with It, and axe not sav-
ed by section 881 of the Code of GItU Pro-
cednra. While the plaintiff la the personal
repreeentatlTe of the deceased, the action is
proeecnted for the b^eflt of those who do
not claim under him, but is an original cause
of action that did not exist In the lifetime
of the deceased." In the caae of Metr<^li-
tan Street Railway Oo. t. Qumby, 99 Fed.
192, 89 a C. A. 45G, It was held by the (flr-
cult Court of Aiq;>eala for the Second Circuit
that testimony in an action by an infiut
claiming damages for his pain and suffering
from an Injury la not admissible (the witness
having died In the meantime) in a subse-
quent action against the same defendant by
the infant's mother, claiming damages for
loss of his snrices; tha« being no privity
between the plalntlCte. The o^nlon in that
case was very able and exhaustive, citing
and distinguishing many authorities relied
on in favor of the admission of the testi-
mony, and quoting from many others, hold-
ing contra, and Is therefore lnstructlv& To
same effect are Kelson v. Harrington, 72
Wla 591, 40 N. W. 228, lli. R. A. 719, 7 Am.
St. Rep. 900; Miller v. GlUIspie, 54 W. Ya.
462, 46 S. E. 4&1:. 6 A. & E. PI. & Prac 679.
In the case of Oliver r. Louisville ft M. R.
Ca (Ky.) 32 S. W. 769, it waa h^d that, In
an action by husband and wife for personal
Injuries to the wife, depositions taken In a
former action by the husband against the
same defendant for loss of services of the
wife caused by the same accident were in-
admisatble, though they related wholly to the
character of the injury and the manner in
whldi it was received; the court saying:
"And, although the depositlonB referred to
T^te wholly to the character of the injury
received by her (the wife) and the manner In
which It was done, and are therefore perti-
nent to the question of 1^1 liability, as
well as measure of damages. In eadi action,
still the personal Injury, If the result of the
deffeodant's negligence, constituted two Sa-
tinet causes of axUxm, tor one of wUdi he
(die hndnnd) could al<»ie aue and for the
other of which she (the wife) might have
sued alone in caae of bis refnaal to loin
with her. And, while reason tor the rule
mentioned does not exist to the same extent
as If there had been different occur renoes or
tiansactlons, we can very well see bow dis-
regard (tf it by the court might have taken
defiendant surprise and deprived it (tf the
advantage of developing on croes-exainlnn-
Uon admissions and confessions of the wife
it was not permitted to show in other suits.
Moreover, defendant could not be legally de-
prived of an opportunity afforded him by
enforcement of the rule to again cross-ex-
amine the witnesses." I admit there are au-
thorities cited in the majority opinion that
held the deposition admissible, bat I am of
the opinion that the conclusion reached by
the courts whose opinions X have cited are
more logical and convincing and better ac-
cord with our own dedslons as to the char-
acter of this action. Hood v. Telei^one ft
Telegraph Co.. 77 8. B. 1094, this term;
Broadnax v. Broadnax, 180 N. a 482, 76 S.
B. 216; HaU v. Railroad, 146 N. O. 846, 09
8. ID. 879; Id., 149 N. a 108, 62 S. B. 899.
It further appears that the deposition
was never passed on, opened, or admitted in
evidence in the first action. That being so.
the deposition never became legal evidence
In the first action, and the court therefore
had no power or authori^ to permit it to he
opened for the first time upon notice gtvas
by the plaintiff in the ivesent action.
WALKER, concurs In this oj^nion.
(usH. am)
STATE T. HEMPHILL.
(Supreme Court of North Carolina. May 18,
1918.)
1. ASSAUXT AND BaTISBT d 48*)— OvnNSB^
IQ1.EHBNTB or Criminaz. Asaatn^— Ihtint to
Imjtjeb— "Assault.*'
A touching of the person of aootber. how-
ever dight the force may be. If done In sd angry
or hostile way. will constitute an assault and
battery ; but " there la no intent to injure, and
it was BO understood by the other ^rty and
there was in fact no Injuzj, there was do as-
saolL
[Bd. Notfc— For other cases, see Assaolt and
Battery, Cent Dig. | 68; Dec Dig. | 4&«
For otbat definitions, see Words and Fhiaass,
vol. 1, pp. 582-638; VoL 8, p. 7682.]
2. Assault and Battebt (| 49*)>-OinnsBi
_ Pbesuuption or Intent.
The Intent to Injore by an assaolt may
Be inferred from the act; and, when the act
itself is unlawfol, the intent is iounaterial or
will be presumed.
[Ed. Note.— For other cases, see Assanlt and
Battery, Cent Dig. f 69 ; Dee. Dig. | 4A.»i
8. Assault and Battbbt ({ 06*)— OimiSM
—Question fob Jubt— Intent.
On evidence In a criminal prosecutloa for
assault by taking hold of the prosecuUng wit-
ness, held, that the question whether it waa
done with intent to Injure or against her con-
sent was for the Jury.
[Ed. Note.— For other cases, see Assault and
Battery, Cent Dig. | 141; Dec Dig. { 95.*]
Appeal fnun Superior Oonrt, Burke (3oiuit7;
I^on, Judge.
Fred Hemphill was convicted of asaaul\
and he appeals. New trial.
The defendant was indicted for an assault
on Gleo Moore. In view of the Judge's chaxige
to the Jury, It la necessary to state only the
defendant's testimony, which was as foUovra:
*Pos oihT BMis — sams topic and — etton MPMBBE In Dee. Pig, ft Am.
168
78 SOTTTHBASTBBN BEPOKTBB
-At the time of tbe alleged WHaolt I uw
the pEoeecntrlz, Cleo Moore, down In the
woods near a Bpriag with two white men.
I took hold of ber to carry her to her grand-
mother. She Jerked loose from me, and I
went and told her grandmother where she
was, and what she was doing. Her grand-
mother cried. I never did strike her with
anything. I only took hold ot her to carry
her to her grandmother, and, when she broke
looaa, I did nothing more than to go and tell
ha granildmotlier." The coort charged the
Jury that, If they heUered tbe defendant's
own testimony, they sfaonld find tbe defend-
ant guilty, to which the defendant excepted,
and from tbe Judgment, npon the verdict of
gnllty, he appealed. The sentence was 12
DKStba on the roads.
B. L. HofFman and Avery & Brvln, all of
Morganton, for appellant Attorney General
Blckett and T. H. CalVert, of Balelgh. for
the State.
WALKER, I. It may be that the defend-
ant should have been convicted upon the tes-
timony of tbe state, but this was not sah-
mltted to the Jnry. The Instruction of the
court confined the Jury to a consideration of
the defendant's evidence. We do not think
that this evidence was susceptible of only
one construction, or was so conclusively
against the defendant as to warrant a direc-
tion to return a verdict of guilty, if the Jury
believed it. Tbe Jury might well have found
from the drcumstancee surrounding the par-
ties at tbe time. If left nntrammeled by this
peremptory instruction, that tbe prosecutrix
was about to be led astray and defendant
intervened, at the request of her grand-
mother, her natural guardian and protector,
for tlM Innocent and laudable purpose of
leading her away from the danger which
threatened her, and that he placed his band
apon her, not with the Intent of committing
an assault upon ber, and not In anger, but In
kindness, for tbe purpose of protecting het.
[1,2] It may be true that every touching
of the persdn of another, however slight or
trifling tbe force may be, If done In an angry,
rude, or hostile manner, will constitute an
aasBidt and battery, bnt not so If there was
no intention to hurt or injure, and it was so
understood by tiie other party, and there was
In fftct no Injury. Whether It was done in
anger or against the consent of tbe prosecu-
trix was a question for tbe Jnry. These must
be an Intent to injure (B Cyc. 1024; State v.
Beavls. 118 a 679, 18 S. B. SS8V though
this Intent may be inferred by the Jury from
the act ; and, when liie act Itself la nnlaw-
fnl, tbe Intent is immaterial or win be pre-
sumed. 1 McLain's Cr. Law, || 239, 240,
wbere the snbjsct Is folly discossed. dais's
Or. lAW (2d Bd.) p. 224, f { 81. 83 et seq. and
notes. Judge Gaston said in State v. Davis,
28 N. a 126^ 8B Am. Dec. 736, that: "An as-
sanlt is an Into^onal attenqit by vidlfliios
to do an injury to tbe persoi ot another.
It must be Intentional — for, If it can be col-
lected, notwithstanding appearances to the
amtniry that there is not a preeent purpoae
to do an injury, there Is no assault" And
again: "Tbe Intentton u well as tbe act
nuAss an assault"
[S] If we are restricted to the defendant
testimony, It would appear, or at least there
Is reason for saying, that be did not Intend
to Injure the prosecutrix,, or to do any vIih
lence to her iktsod, or to restrain her of bee
liberty against bar will. The Jury may reason-
ably conclude that his object was one of per-
suasion rather than coercion. He saw ber
plight, perhaps had been informed of It by
her graodmotber, and wished to relieve her
of its evil conseQuences. if, so, it was an
act of kindness and mercy to her, rather
than one of hostility. If he laid hto hand
npon her gently for the purpose of inducing
her to return to her b<»ne, and quit the com-
pany or association of designing men, and
did not seize her with anger or rudeness,
it surely would not be an assault In law.
This might have been fairly deduced from his
testimony. When slie refused to go with
him, be did not persist even In his effort to
persuade her, nor did he oCTer her any vio-
lence or utter any threat He simply desist
ed, returned to the house, told ber grand-
mother what had occurred, and she cried,
presumably because she knew that the safety
of her child was imperiled. This made no
more than a case for the Jury upon the quei^
tlon whether there bad been an aasanlt
New trial.
(H 8. 0. W)
KEELS V. ATLANTIC COAST LINE R. CO.
et aL
(Supreme Court of South Carolina. April 21,
1918. On Behearing, May 14, 1913.)
1. Appxal and SteBOB (I 1078*)— Waivee 0»
Ebbob.
Ezceptlona which are not argued will be
deemed abandoned.
[Eld. Note. — For other cases, see Appeal aod
Error. Cent Dig. H 4266-4261; Dec. Dig. 1
1078.*]
2. Mabtkr and Sbbvant ($ 286*)— Aonomfr—
JcBT Question— Nbqmgence.
Evidence In an action for the death of a
fHM;tion foreman by hia hand car being struck
by a freight train held to make it a jnry quea-
tion whether the company was negligent
[Ed. Note. — For other cases, see Master and
Servant. Cent Dig. It 1001, lOOtt, 1006, 1010-
1015, 1017-1033, 1086-lOi^ 1044. lOM-lOSOl
Dea Dig. S 286.*]
8. Mabtxb and Sibvant (| 243*)— Sxbvaht's
DUTT— OBBDIENCB of RUI.B8.
An employ^ ia only boand to obey the
reasonable rulea promulgated by the company.
[Ed. Note.— For other caeea, eee Master aod
Servant, Cent Dig. §{ 882, 759-775; Dec. Dig.
{ 248.*]
•far otiisr isms m* how tepU sad Motion NUHBKR la IWo. Dig. ft Am. Dig. VM^i
&C.)
KEELS T. ATLANnO COAST X«INE B. 00.
169
CONTBIBUTOBT NKOUOBIfOB— DiBOBIDIBTfOI
or Rvi^.
An ^mplo76'8 failure to obey a rale of the
company must be the proximate caaie of his
Injones, hi order to make each fallnre bar a
recoveiy.
[Bd. Note^Vor other caaes, aee Maater and
Servant, Cent. Diff. || 79S-S0O; Dec. Dig. I
247.*]
6. Tsui. (| 252*>— iNSTRDcnoKS— Contobm-
ITT TO EhriDBNCB.
Where there waa no evIdeDce In a aectton
foranan'a action for injoriea by colltrion. of bis
hand car with a freight train that the road-
master had condemned the bTal^e on the hand
car or inspected it. as repaired by rule of the
company, bnt it waa shown that employfis
were forbidden to discard tools as worthless,
except on inspection liy the roadmaster.
the conrt properly refused to charge a rule of
the company requiring employes to uiBi>ect ma-
diinery which uiey were expected to use.
[Bd. Note.— For other eases, see Trial. Cent
Dii H 696-612; Dec Dig. 1 2521^
8. Tnui. ({ 261*)— Iimnnonoss— Isaxm.
Xn an action for injuries to a section fore-
man by hie hand car being struck from behind
by a freight train because of alleged defective
brakes on die liand car. defendant requested a
diarge of the company s rule that band cars
shoiud not be used after dark except by au-
thority of the roadmaster, or In foggy weather
where objects ene-balf mile distant could not
be distinctly seen, and mnst not be run around
CDires withoat a flagman in advance, and also
a charge with reference to another rule which
required the placing of signals behind where a
train waa stopped or was delayed. Beld, that
both ndes ware Intpidicable to the caM» ao
that the eharges were properly refused.
FEd. Note.— For other caaes, aee Trial, Cent
DlgTll 687-^: Dec. Dig. | 251.*]
T. BfAam and Sebtant (f 146*)— Ihjxtbxeb
— iNSTRUCnONfl — AFPXJGABILITr — *'0B-
STBUOnOH."
A seetlMi gang's lever ear which was In
moti«i on the track was not an "obstruction"
witbin the meaning of a rule requiring stop
signals to be displayed in both directions npon
obstnurting the track.
[Ed. Note.— For other caaes, see Master and
Servant. Cent Dig. { 288; Dec Dig. i 146.*
For other definltloas, see Worda and Fhraaea,
ToL 6, pp. 4880-4894.T
8. Appeal and Bbbob (J 1062*)— Habklssb
EbBOB— WXTHDBAWina I88UBS.
Defendants, in an action against a rail-
road company for pereoaal injuries to a serv-
ant cannot comidain that plaintiff withdrew the
issue of iHmitive damages from the jury, where
there was do evidence tending to support auch
damages.
[Ed. Note. — For other cases, aee Appeal and
Error. Cent Dig. H 4212-4218; Dec. Dig. |
1062.*]
9. NBGUaBHOB (I 100*)— CONTBIBUTOBT NSQ-
LIGENCB— WlUUCXN^a.
Willfulness by defendant will prevent plaln-
tifTs ctmtribntory negligence from being a de-
fense.
[Ed. Note.— For other cases, see Negligence,
Cent Dig. i 85; Dec. Dig. I 100.*]
Appeal from Common Pleas Circuit Court
of ^arnwell County; R. E Cokes, Judge.
Action by A. M. EeelB against the At-
lantic Coast Line Railroad Company and
othera From a judgment for plaiutiff, de-
teudant named appeals. AfflrmeO, /. ,
•For etbsr essss sse same te^ sad seotlon NCHBSB In Dae. Dig. * Am. Dig. Key-Nbi'gMti iti/OttM^^
P. A. Wlllcox, of Florence, S. 6. Mayfield,
of Denmark. S. C, Harley ft Beet of Barn-
well, and L. W. McLemore, of Sumter, tor
appellant R. C. Holman, Bates & Slmms,
and J. O. Patterson, all of Barnwell, I* E.
Sturki^ of Orangeburg, and Best ft Oon-
nlngham, of Oolamlda, for respondent
FRA8ER, 3. This Is an action for per-
sonal Injuries. The plaintiff was a section
master. The complaint alleges that the
plaintur was returning from his work on de-
fendanf a tra<^ and In ttte discharge of bis
duties had to pass tbrongb a loi^, deep cut
and curve, and, wbm tbe plalntiff and bis
colaborNs had passed ttarom^ the said cut
and curve for a distance of several hundred
yards, the plaintiff discovered the approach
oif an extra freight trato, running at a rapid,
careless, negligent, and reckless rate of
speed, and thereupon the plaintiff ordered
one of the aectlon bands to immediately ap-
ply the brakes In order to stop the car, so
that they could alight in safety, and remove
the said car from the track, in order to save
tbe property of the defendant company and
other persons from bodily harm. But the
brakes on said lever car failed to work and
stop the car, end that thereupon tbe plain-
tiff realizing that said brakes would not
work and that said car could not be stopped,
and further perceiving that be was confront-
ed with Immediate peril and danger from
a rapidly approaching freight engine and
train, and In order to aave himself from
great bodily harm, attempted to get off of
said lever car, and as a result tbo^of be
waa struck and run over by tbe same and
Injured.
The negligence alleged was: (a) Passing
through the cut and curre without giving
any signals of any sort (b) Refusing to
slacken the speed of the train a^ter tbey
saw tbe peril of tbe plaintiff, (c) Famish-
ing the plaintiff wltb a defective car, in that
tbe brake was defective (d) In failing to
furnish a safe place to work. In that the
brake was defective^ The complaint al-
lied negligence, carelessnessi recklessness,
and willfulness, and joined the engineer and
roadmaster as codefendants with the rail-
road company. Tbe defendants put in a gen-
eral denial, and pleaded contributory negli-
gence. In that: (a) Plaintiff faUed to in-
Bpect bis lever car. (b) Plaintiff faUed to
keep a proper lookout for bis own protec-
tion, (c) Plaintiff was himself running at
an exce^dve rate of speed. The defendants
moved for a direction of a verdict in favor
of def^dants on tbe grounds: (1) Tt^it there
was no .evidence of negligence on the part Qf
the defendants. (2) That there was no evl-
{Jence of willfulness. (3) That the eridence
shelved contributory pegllgence. ■ (4). That
plaintiff's owp n^Ugei^ce was the proximate
cause of his own injuiy. The motion was
refused, and the jury rendered a verdict for
170
78 BOUTHXtASTBBN BBJPORTBIE
the plalntlfl. From tbe Judgment entered
upon this verdict tbe defendant appealed.
[1] niere are 17 exceptions in the case,
and we will adopt appellant's groaplng, bat
the first S, being entirely omitted txom tbe
argoment, are deemed abandoned.
Hie fourth aceptioD is as follows: "Uis
honor erred. It Is respectfully submitted, In
OTermllng appellant's motion for direction
of verdict made at the close of all the evi-
dence; whereas, he should have granted the
motion, and directed tbe verdict for the rea-
sons and upon the grounds urged In support
tbereot as follows: (First) Because there Is
no evidence of negligence proximately caus-
ing or contributing to the plalntUTs accident
or injury. (Second) Because there is no evi-
dence of willfulness or Its equivalent proxi-
mately causing or contributing to plalntlfTs
accident and Injury. (Third) Because plain-
tiff's accident and injury were contributed
to by his own negligence as tbe proximate
cause thereof. (Fourth) Because plalntUTs
accident and injury were due to his own
negligence aa the proximate cause thereof."
This exception cannot be sustained.
[2] There was evidence: That about the
time in the afternoon when the accident oc-
curred sectlonmasters and their helpers
might be expected to be on the track re-
turning from th^r labors. That the band
cars used by them moved much slower than
the trains, and the train might overtake
them. That there was a blow post near the
curve. That the extra train was ruunlng
very fast That no signals were given by
the train crew of their approach. That, If
the engineer had seen the lever car after it
(the train) came round tbe curve, there was
still time to stop before Injury was done.
That no effort was made to slacken the speed
of the train. That those on tbe lever car
were In a position of great danger, and that
their danger was easily apparent to the
engineer. There was evidence- that neither
the en^eer nor the conductor saw anything
of tbe lever car or its occupants until they
saw tbe section bands by the side of the
road as they were passing them. There was
evidence that the cut and curve was a dan-
gerous place. If the Jury believed that the
respondent waa on his way, In the discbarge
of his duties, to put up the lever car, and that
the extra train ran upon him suddenly with-
out any warning, and that a warning ought
to have been given and would have been giv-
en by a reasonably prudent man, that tbe
respondent with bis car and laborers was
In such a position that those in charge of
tbe extra train must have seen him If they
were looking ahead at all, then the Jury
could have inferred that there was such an
utter disregard of the safety of themselves
and others as would warrant a finding, not
only of negligence, but of wlllfuln»s.
Appellants coupled exception 17 with ex-
c^tlcm 4. Sewteen la also overmled.
The appellant groups ezc^tlonfl 10, 11, 12,
US, and 16. Tbeaa wfU have to be oonaidared
separately.
[3,4] Exception 10: "EOs honor erredl, it
is respectfully submitted. In refusing to
charge appellant's sixteenth requeot as fol-
lows : 'I charge you that It was the doty of
this plaintiff to become conversant with and
ob^ the rales and special Instructions of the
defendant Atlantic Coast line Railroad Com-
pany, and If yon find taun the testimony
that he &Ued to do so, or In not carrying
out the rules of tbe company he was Injured,
your verdict should be for tbe defendants.*
The error being that tbe request contained
a sound proposition of law applicable to the
case and bis honor's refusal so to charge
was prejudicial to appellant" This excep-
tion cannot be sustained for two reascHis.
The duty is to obey reasonable rules (see
Bussey v. Railway, 78 8. C. 358, 68 S. EL
1015), and the failure to obey the rule must
be the proximate cause of the Injury. The
request as made is not the law. The charge
would have been misleading here. The duty
to send a flagman before the car could have
had nothing to do In law or In fact with an
Injury that came from behind. Tbls excep-
tion is overruled.
[6] Exception 15: "His honor erred. It is
respectfully submitted, in refusing to charge
appellant's fifteenth request, as follows: *I
charge you rule 707, as follows: "filmployte
of every grade are warned to see for them-
selves, before using them, that the machin-
ery or tools which they are expected to use
are in proper condition for tbe service re-
quired; and If not to put th^ in proper
condition, or to see that they are so put, be-
fore using them. The company does not
wish, nor expect. Its employes to incur any
risks whatever from which, by exercise oT
their own Judgment and by personal care^
they can protect themselves, but enjoins them
to take time In all cases to do their duty in
safety, whether they may, at the time, be act-
ing under orders of their superiors or other-
wise." I charge you that under this rule. It
was the duty of the plaintiff to use reasona-
ble care to have the lever car In his cbai^
in safe condition, either by repairing It l^m-
self, if there was any defect In It or by
bringing the defect If any, to the attention
of his superior, If there was such superior, to
whom he could make such report' The er-
ror being that the request contained a sound
proportion of law applicable to the case,
and his honor's refusal so to charge was
prejudicial to appellant" This exception
cannot be sustained. It Is true that rule 707
required the respondent to inspect his ma-
chinery before using it but rule 1001 requir-
ed the roadmasters to inspect tools of each
section monthly, and condemn such as are
unfit for use, and provide further that no
tools should be thrown aside as worthless
until oondtfnned by than. TbsxB la no evt-
Digitized by VjOOglC
KBBXA T. ATLANTIC
COAST LINE B. 00.
171
dence tbat the roadmaster had condemned
tUs brake nor Inspected It for a year. HU
bOBor could not, therefore, cbaxge the jury
that It was the absolute dntr ot the sectton-
maater to repair tbe brake, which mUht
bare included throwing It aside. Further,
appellant In his argument said the rule la
plain, and needs no construction. This Is
tmck All that was required was an ap-
plication of the facts to tbe rale, and this
was Ute proiince of tbe Jury, and not of the
Judge. The Judge construes the rule, fbe
jury applies the facts. To so charge would
Deeeesarlly be a charge on the facts.
[I] Bzoeptton 12: "His lumor erred. It Is
respectfully submitted. In refusing to charge
appeUanfs fourteenth request, as follows:
'I cbaxge yon rule 1088 which is as foUows:
"Band or push cars must not be used except
in comiiany^ bustness; and never after dark
escQpt by ivedal authority of tbe roadmas-
ter. Meltber wlU tbey be allowed on tnck
in doudy or tooff weather when objects
one-half mile distant cannot be distinctly
seen. They must not be run around corves
without a fla^nan w^ In advance and most
not be attached to trains In motion." I cour
stme this rule to mean that It was tbe duly
of this plain till to not only have a flagman
wdl In advance of bis hand car or lever car
when runnljv around curve or curves, but al-
so that under rule 90 It ms incumbent upon
him to leave the vtoper fdgnals behind him, aa
required In rule 90, so as to notl^ an engi-
neer or operator of a train that he with his
crew were on a hand car In front.* The er-
ror being ttiat tbe request contained a sound
proposition of law applicable to the case, and
his honor's refusal so to diarge was pre]n>
dleial to appellant" This ezcflSitiQU cannot
be sustained. Role 1038 has nothing to do
with this case. The absence of a flagman In
front of the car had nothing to do with the
injury caused by being run down from the
other way. Bule 90 Is In refermce to a train
that stops or Is delayed on the track, and
has nothing to do with this case.
Bxceptlon 10: "His honor erred, it Is re-
spectfully submitted, In refusing to charge
appellant's twelfth request, as foUows: *I
charge yon mle 1021, as follows: "They
must never obstruct the track in any way
whatever, without first conspicuously (see
rule 09) displaying stop signals at least 900
yards in both directions." I also charge you
mle 90, as follows: "When a train stops or
is delayed, under drctimstances in which It
may be overtaken by another train, the flag-
man must go back immediately with stop sig-
nals a Bufflcient distance to insure full pro-
tection. When recalled he may return to his
train, flrst placing two torpedoes on the rail,
and planting a lighted fusee on the track,
when the conditions require It The front of
a train must be protected In the same way,
when necessary, by the fireman." I con-
strue the above fuTes to mean that it was the
duty of the plaintur to gtre tbe proper ^
nals 60 as to noUi^ and put on notice all
trains that were behind blm or bis section car
by putting two torpedoes on the rail or plant-
ing a lighted fusee <m tbe track.' The wror
being that the request embodied a sound
propc^tton of law applicable to the case, and
his honor's refusal to grant the request was
prejudicial to appellant"
Bxceptlon U : "His honor erred It Is re-
spectfully submitted In refusing to cbai^
appellant's tiiirteenth request as follows: 'I
charge yon rule 1022, as follows: "Special
trains or engineB may pass over the road at
any time without previous notice, and they
will always be prepared for them. AnytUng
that Interferes with tbe safe passage d
trains la an obstmctlon." I diarge you rule
1028, as follows: "Th^ an permitted to ue
the tracks when making repairs to within
fifteen minutes (rf Qm time of passen^
trains, and to witbin ten minutes of tbe time
of frd^t trains, hut invariably under pro-
tection of stop signals." I also charge you
rule 1024, as follows: ^During heavy rains
and storms they must take every precautlott
to prevent aeddent Suflldent force must be
placed on duty watching or repairing dam-
age. Where safety of trains is involved ad-
ditional force may be emph^ed to put ttie
track In safe condition. Men must be asslga-
ed to watdiing along those sections of teaek
which seem likely to be washed out; they
must be supplied with proper flags, lamps
and torpedoes for stopidng trains, and must
be Instracted bow to use thou.'* I consbne
the above-mentioned rules to mean it was
the duty of tbe section foreman to look out
for both special and regular trains and coi-
g^nes, and to have property protected himself
and section hands against them, as required in
rule 99. I also construe the above-mentioned
rules to mean that a band or lever car in
charge of a section foreman to be an obstruc-
tion, as stated In said rule&' Tbe error be-
ing tliat tbe request contained a sound prop-
osition of law a]K>llcable to the case and his
honor's refusal made so to charge the Jury
was prejudl<dal to appellant"
If appellant's constraction of these rules
is correct the necesdty to restrict, the neces-
sity for obedience to rules — to reasonable
rules — is apparent
[7] The appellants ask the court to hold
that a lever car on the tra<& is an obatrao-
tlon, and that wboi the track is obstruct-
ed, there must be signals dUvInyed 000 yards
In both directions. Now this lever car was
Act standing on the track but In motion.
This would require moving signals 900 yards
in front and 900 yards behind a lever car
every morning and every evening. A lever
car Is not as much of an obstruction as a
train. A standing lever car is an obstrao
tion within tbe meanii^ of the rule, but a
moving lever car Js not
StKcepti<m. 6: "His hoim erred. It la re-
Digitized by Google
172:
' 78 SO'UTHBASTJB»N RSSPOBTBB
spectftilly mbnlltted. In allowing plalnti/Ts
attorney^ onr app^ant^ oldectloiif to wlth-
dtftv, or attenipt to wlttadrav, flrom tbe con-
ddOTaUoii of- Uw Jury ttie canse of acUon for
punltiTe damages, because snch motion was
not made notU the condnsion of tbe case,
wbm plaintiur bad bad the benefit of the
cause of action at all times dnrii^ the trial,
and had exerdaed the privilege of presenting
in the arguments of two of his counsd before
the Jury the right of the Jury to Inflict upon
appellant a rerdict tor punlUve damages."
Sxceptlon 9: *'Hl8 honor erred, and, it is
respectfully submitted, abused his discretion,
in allowing ptelntilTs attom^s, over appel-
lants objection, to withdraw, or attempt to
withdraw, from the consideration of the jnry
the cause of action for punitive damages, be-
cause siudi motton was not made until the
omcluslon of the case when plaintiff had
had tbe benefit of the cause of action at all
times during the trial, and had exercised the
privilege of presenting in the argument of
two of his counsel before the Jnry the right
of ttie Jury to inflict upon appelant a verdict
for punitive damages."
[I] These ezcQiitions cannot be sustained.
If there wore evld»ce upcm whidi punitive
damages could be based, it would be dlffav
ent, but there was no such evidence, and the
appeUants cannot com^ain that plaintiffs
have remitted a part of .their demand.
[1] The plaintiff did not vrlthdraw the al-
legations of reeklessneaa and willfulness, but
only stated that they withdrew a claim for
punitive damages. Willfulness Is still In
qnasOmi In order to ofEset the defense of
contributory ne^lgeoca
The Judgment of this court Is that the
Judgment anwaled from Is affirmed.
GARY, a X, and HTDiUGK and WATTS,
JJ., concur. WOOI^ J., eoncnn In the re-
sult
On Rehearing.
PER CUBIAM. Having car^FuUy con-
sidered the within petition, this court Is not
convinced that it has overlooked any fact
or disregarded any proposition of law involv-
ed In this caa&
It is thertfore ordered that the petition Is
refused, and the order heretofore granted
staying the remittitur is revoked.
(189 Oa. 7H)
HABPBB V. JBFFEBS.
(So^eme Court of Georgia. April 18, lOia)
(Syllalut &v the Court.)
I. AKBBfiT (S 48*)— Bail Taovn—GBOVRDS
rOB DlSCHABQB.
Where in a trover ca«e the plaintiff laed
out bail procen and the defendant was imprU-
oned thereunder, on the hearing of on applica-
tion for dlacbarge, under Civ. Code IdiO, |
6164, the applicant coold set up, as a reason
tat granting the dtaeharge, that there was no
inffieient description of Ihe property in the
affidavit to obtain bail
[Ed. Note. — I!or other cases, see Arrest, Qent.
Dig. SS 112-114 ; Dec Dig. | 48.*]
2. Abbest ({ 28*)— Bail XaovEB-AmDAViT
— StJFFICIENCT,
Id a trover suit to recover tDonev. a dfr-
seription thereof contained ia an affidavit to
require bail as being "pOO.10, tbe same $700
being in the denomination of $20 and $10 gold
certificates, and die 70 cents being in diver,
tbe same being the property of Georgia Jeffers,
end of the value of $700.70," was insufficient.
[Ed. Note.— For other cases, see Arrest, Gmt.
Dig. SS 56-03, 72: I>«c Dig. S 28.*]
3. Replevih d 8*)— Bail Tboveb— Basis or
Action.
tinder the evidence, it was error to refose
to discharge the defendant from impnsonment.
[Ed. Not&— For other casei^ see B^plevln,
Cent Dig. 11 69-82; Dec. Dig. { 9.*]
Error from Superior Court, Baldwin Coun-
ty; Jas. B. Parle, Judge.
Action by Georgia Jeffers against Rebecca
Harper. Judgment for plaintiff, and defend-
ant brings error. Reversed.
Georgia Jeffers Instituted an action of
trover against Rebecca Harper, seeking to re-
cover certain money. The plaintiff also flled
an affidavit for the purpose of reanlrlng ball.
In the affidavit the money was described as
foUows: "$700.70, the same $700 being In the
denomination of $20 and $10 gold certificates,
and the 70 cents being In silver; the same
being the property of petitioner, Georgia Jef-
fers, and of the value of $700.70." The de-
fendant was arrested and imprisoned. In
accordant^ with tne statute she filed a peti-
tion, addressed to the Judge of the supoior
court where tbe action was pending, allying
that she was able nedtber to give bond and
security nor to produce the pnq^ty; and
that she had never beui in possession or con-
trol of such property, and was not so at the
time when the bail xwoceedtnga were com*
menced. The preiddli^ Jodge Issued a rule
nlat requiring the plaintiff in the action to
show cause why the prayer of the petition
for discharge abonld not be granted. On the
hearing the applicant for discharge filed what
was termed a demurr«> to the affidavit made
for the purpose at requiring ball, on the
grounds that It did not set out a sufficient
reason for requiring ball; that the property
was not suffidoitly described therein; and
that bail trover would not Ue upon the facts
ther^ allied. She prayed to be discharged
and that the afQdavit be dismissed. This
was overruled.
The applicant introduced evidoice tending
to show tbe following facts: She never had
In her possession, custody, or control $700.70,
the $700 being In the denominations of $20
and $10 gold certificates, and 70 cents being
In silv^, the property of Georgia Jeffers, as
described In the affidavit ; and she could not
produce it. She bad never seen It, She was
unable to give bond in order to secure her
release from imprisonment She endeavored
•ror aUMT sssss ass wms toplo and aeetiai HUHBBB la Dae. Dig. ft An. Dig. K«|^ffi^l«rt)|>
HARPBR T. JEFFEBS
17?
to get aecarittes to go on bw bontl, but failed
to do 80. She was tbe wife of Clifford Hai^
I>er, now deceased. He did not live with her.
The? lived together at intervals. He <Ued on
September 17, 1912, In Brunswick- He left
about $730 deposited in a bank In tliat place.
8be hais not the money in her possession. It
Is in the hands of her lawyers. "I did not
any money, but a check. I had to sign a
paper for It I did not see any money. It
was a check tor 9730. My lawyers have that
money. They have it with my permission.
• • • I did not get any $700.70 as de-
scribed In that affidavit for bail. My law-
yers did not either. We have never seen or
had the money. He got a check for $780. I
had to Aga for it"
The plaintiff in the action of trover Intro-
duced an official of a bank in MUledgeviUe,
who testified: "Georgia Jeffers formerly had
money on deiKwlt in the bank. She Instruct-
ed the witness to deliver her money td Clif-
ford Harper, who was her grandson. Tbe
witness delivered it acowdlngly, paying to
Harper $700.70: the $700 b^ in gold ter-
ti Oca tee of tbe denomlnattona of $10 and $2a
Mrs. Jeffers said Uiat she was sick and wish-
ed to give tb6 money to her gnuid(diUdien.
Harper carried her book to tbe bank In orOw
to obtain payment"
Georgia S^en, the platntlff, testified as
follows: "Ollfford Harper was her gcand<
«on. She was sick, and sent fbr the officer of
the bank, and directed him to deliver to
Harper aU of her money. Harpo- went to
tbe bank and drew It out He kept It in his
trunk and did not deliver It to her. She
new asked him for it until after be went to
Brunswick, when she wrote to him to said
faer part of it He bad some mon^ in his
trunk other than that which she gave him,
but it was not mudL He kept the nwn^ in
his trunk nntll he mot to Bnmswltft, whoi
be took U with him. Sbe did not gfn blm
permlssloo to do so."
Tbe presiding Judge denied the appUeatlon
Cor discharge, and the applicant excepted.
Sibley & Sibley, of MllledgevUle, for plain-
tiff in error. Hines & Vinson and D. S. San-
ford, all of MlUedgevUle, for defendant la
wror.
LUMPKIN, J. (after stating the facts as
above), [f] L The first question wUGh aris-
m Is whether, after an affidavit has been fil-
ed In a tiover case fbr the purpose of re-
quiring bell, and tbe d^endant baa been ar-
veeted and tmpcteoned and has applied to be
OsCha^ed onder section 6154 of the Civil
Code, upon the bearing of such application
flie applicant can attack the affidavit as
containing no safBciettt description of the
pri^rty to be seized, or for tbe forthcom-
ing of wUch tbe defendant Is required to
give bond. A ball proceeding Is not an es-
•oitlal part of a tl-over case. Tbe plaintiff
it not compelled to require bail of tbe de>
f^idant, but has the privilege of making tbe
affidavit provided by the statute for that
purpose. , Such a proceeding constitutes a
species of ancillary proceeding in connection
with the action of trover.
The GlvU Code, 1 6154, provides for an
application to obtain a release from im-
prisonment under ball process, without giv-
ing security, when the defendant Is neither
able to give the security required by law nor
to produce tbe property. Under the old law,
if the defendant could not give security, be
was compelled to remain in JaiL The hard-
ship of Imprisonment until the case should
be tried was the mischief. The act of 1870
(Acts 1878-79, p. 144), from which the Code
section above cited was codified, furnished
the remedy. It did not seek to affect the
power, to proceed with the trover suit to a
determination of the rights of the plaintiff
upon the question of the trial of proi>erty,
but to furnish a method by which a defend-
ant should not be held unjustly in imprison-
ment until tbe trlaL Upon such a hearing
tbe main question of fact Is as t<> the Ina-
bility of the defendant to give security or
produce the pr(H>erty. This has been refer-
red to as the issue, in several decisions of
tills court But none of them dealt with tbe
question of whether tbe imprisonment should
be eondnued if , on tbe face of the affidavit
made by the plaintiff, It appeared that there
was no sufficient ground for requiring ball,
tbe production of the proper^, or imprison-
ment of the def^dant The statute states
that the defendant In applying for a release^
shall state in Jiis petition that he is ntfflm
able to give the security required by law nor
to produce tbe jwoperty. "and can fumleh
aatiafactory reasons for its ncmprodncUon,
and traverse the facts stated In tbe plain-
tiff's affidavit for ball." If the affidavit for
bail describes no property . suffletently to be
seized by the officer, or produced by the de-
foidaut, of for tbe production of whidn se-
curity could be propeily required, was It tbe
Intentifm of the statute that the ■'ft*fH1fl'*t
must produce undescrlbed property or re>
main in jail until the final hearing of the
trover snltT Would not such an affidavit
as failed to snp^ a sufficient deacriptkm
of the inoperty to fomlab a baets for im-
prtwonment of. the defendant ebov a '^ntie*
factoxy reason for Ito noivroduetlai,'' wltb-
In the meaning ec the statute?
In this case, when the bearing came on
upon tbe questltm of discharging the dd!»id-
ant from Imprisonment, the trover suit as a
whole, was not op for conslderatlont but the
ball proceedings and tbe question of contin-
uing the imprisonmait of tiie defoidftnt woe
before the Court We see no reason why the
court could not thNi determine the question
of tbe Bufflci^cy of the affidavit as a ground
for furtb^ imprisonment Whether the air
tack upon it, which seems to partake of the
nature of both a detnurra and a notion, waa
Digitized byVjOOS
174
78 80UTHBASTIDBN REPORTER
accurately framed Is not very material. The
point waa raised* and the presiding Judge
passed upon it on its merits by orarrulliiK
the demurrer and motion.
[2J 2. Harlng held that the point of lack
ot sufficiency of description contained In the
affidavit filed for the purpose of requiring
ball could not be raised on the hearing of
the petition for discharge, the next Question
Is whether the description was sufficient to
authorize Imprisonment until ball should be
given. In McElhannon v. Farmers* Alliance
Warehouse, etc., Co., 95 Qa. 670, 22 8. E.
686, It was held that a description of money
sought to be recovered In an action of tro-
ver as being "¥3,600 lawful money of the
United States" was insufficient, and the pe-
tition was demurrable. It was said that:
"The test of the sufficiency of such a dec-
laration is and should be, is the description
of the chattels sued for so definite and dis-
tinct as to enable the court to seize them for
restitution to the owner?" When the case
was again before this court, an amendment
had been made so as to add to the descrip-
tion the words, "lawful money of the Unit-
ed States consisting of 100 silver certificates
of 96 each, 100 national bank notes, known
as national currency, each for $10, and 76
treasury notes of the United States, each
for the sum of $20." It was held that this
was good as against a demurrer. In the
opinion Ohlef Justice Simmons said: "The
description Is sufficient to Identify the prop-
ert? if found In the defendant's possession.
Each particular class of bills or notes Is de-
scribed; the denominations of each class
are given, and the number of MUs or notes
of each denomination. If this descr^tlon Is
not suffldent, it would be a rare case In
wtdch numey coald be recovered In an action
of trover, for few people who handle money
remember the particular bank which Issued
It or the number of each particular bill or
note; Indeed, few persons ever look at the
name of the bank or the number of the bill
or note; and In these busy days of com-
merce few persons keep their money in bags,
so that it can be Identified in that manner.
If the sheriff, upon attempting to make a
selanre of the property described in the writ,
should find In the defendant's possesion 100
titlver certificates of fS each, 160 national
bank notes of $10 each, and 76 treasury
notes of $20 each, lawful money of the
United States, he would be Justified in tak-
ing possession of the same.'* Farmers' Al-
liance Warehonse, etc, Ga v. &ficElhannon,
9S Qa. 894, 25 S. E. 6S8. It was menttoned.
as an additional reason why the demurrer
ahoold be overmled. that the defen&nt bad
glTen bond for the forthcoming ot the prop>
erty, thus admitting ttie possession of mon-
ey answering the description. But this ad-
ditional reason was criticised In Cooke t.
Bryant, 103 Ga. ^27, 780-731, 80 S. E. 43S.
Beside the criticism there made, it ml^t be
Inquired: On demurrer to the snffldeDcy of
the auctions , of a petition, how does the
fact of the giving or not giving of a bond
appear, unless alleged in the petition?
In McLennan v. Livingston, 108 Ga. 842,
S3 S. R 974. the petition in an action of
trover described the property as "$270 In
lawful money of the United States. • • ♦
Also $30 in lawful currency of the United
States, the same being two $10 bills and two
$6 bills." It was held that the description
was insufficient, and that a demurrer to the
petition was properly sustained. This was
clearly correct as to the description of the
"$270 in lawful money of the United States.**
As to the description of a part of the money
as "$30 in lawful currency of the United
States, the same being two $10 bills and
two $5 bills," it was said that "this de-
scription Is not nearly so distinct as that
In the case in 08 Ga." It is not so clear
that the description last quoted differs
greatly from that in the 98 Ga. But they
were held to be dtstlnguiahable. Reference
was again made to the fact that In the case
In 98 Ga. a bond had been given for the
forthcoming of the property as a reason for
overruling a demurrer to the declaration.
But we have already se^ that ttils addi-
tional reason for overruling the demurrer
had previously been discredited.
But the description In the affidavit now
before us does not measure up to that held
to be sufficient in 98 Ga. It gives the amount
of $700 In bills of the denominations of $20
and $10, but does not say how many there
were of each or either. How many of each
could the sheriff seize under this general
description? It Is too vague to furnish a
basis for bail process.
[3] 3. The action to recovor personallr*
which la commonly called trover In this state,
is not applicable to recovering a sum of mon-
ey which may be due and unpaid. Xta pur-
pose is to recover specific property or for Its
conversion by the defendant Bail process
is permitted in order that security may be
had for the forthcoming of the property, or.
In default thereof, that the specific property
may be seized, or. If the property cannot be
seized, the defendant may be Imprisoned,
cavil Code, S 5152. The statutory right on
the trial to elect to take a verdict for the
property or Its value does not change the na-
ture of an action of trover so as to make it
the equivalent of an action of assumpsit.
"An action of trover for the recovery of
money must be based on a legal obligation
upon the part of the defendant to d^vM
Ea>eclflc money to the plaintiff." Cooke v.
Bryant, supra.
The evidence in the present case showed,
in brlet as follows: Harper, the husband of
the def^dant, obtained from a bank tn
Baldwin county, under authority from Geor-
gia Jeflers, $700 In gold certificates ot the
denominations of $20 and $10, and 70 centa
in silver. This occurred In the^sprlng ot the
year. At the tlm«),^^ b|4CE^<^L^i
Ga.)
BABPSa T. TEBBT-
175
the KrandmothflT of Harpa-, was sick, and
he kQpt the money in his tmnk, iriiere be
also had aome money (tf bis own, thongfh not
much. Some time later (the date does not
appear) be went to Brunswick, In Olynn
county, where he died on Septonber 17th
thereafttf. He left $780 on deposit In a
bank In Uuit place. His widow, the defend-
ant, and her attorney went to Brunswick,
where she had to "sign a paper" for the
money, and recdred a check for $730. Her
attorney had charge of the proceeds with
her consent at the time of the hearing. She
nerer received or had the bills of the char-
acter menUoned in the affidavit The de-
posit of Harper was not Identified with the
money received by him in the spring, and
what she received from the Brunswick bank
was not the spedflc money which Harper
had previously received from the other bank.
This did not authorize the continued Im-
prisonment of the defendant under bail pro-
cess, and she should tiave been discharged.
Judgment reversed. All the Jnstioea oonr
cur.
(U» Oft. 7S8)
HARPER T. TERRY, Jailer.
(Snpieme Court of Georgia. AprU iS, 1918.)
(BvU»hit9 bv tU Court.)
1. Apfbax. Airo Bbkob H 488*)— Bail ¥bo-
TEB— SDFBESBnSAa— EFFBCT.
Where a defendant in ball-trover proceed-
ing* iB apprdeaded and confioed in jail, and
makea application for discbarge, alleging that
on account of her poverty she Is unable to give
the bond or security reqaired by law, and is
unable to produce the property, that the prop-
erty is not in her custody or control, and that
she at no time had possesutm or control of the
vw^ny, and tlie Judge hearing such applica-
tion for diachaifn refoses it and remands the
applicant to custody, the effect of a supersedeas
upon the suing out of a bill of exceptions to
have this jadgiaent reviewed is not to release
the applicant from custody, bnt tite case is
left in statu quo. The applicant, being al-
ready In cnstodia legis. Is properly remanded
until the determination of the questions raised
In the bfU of exceptions by the reviewing court
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. | 2276; Dec Dig. | 488.*]
2. Habkab Oobfus a 33*)— OsoiTKns— Bail
Thoveb.
The court did not err In refusing to dis-
cbarge the petitiooer in the habeas corpus pro-
ceedings. She was not detained in jail under
**a mere semblance of law." The order of
court under which she was restrained of her
liberty was one granted by a judge of the su-
perior court after bearing the application,
made by the party herself, for discharge from
custody under bail process. Whether that or*
der refusing the disdiarge on that bearing was
erroneous or not will be determined upon a re-
view of that Judgment; that question having
been brought up for determination by the re-
viewing court But it is not a void judgment
It is a binding adjudication until reversed or
•et aside.
[Bd. Note.— For other cases, see Habeas Cor-
pus, Cent Dig. 11 18. 81; Deo. Dig. f 8&*]
Error flrom Snperlor Oonrt, Baldwin Coun-
ty ; Jas. B. Park, Judge.
Application for writ of habeas corpus by
Rebecca Harper against S. L. Terry, Jailer.
Application denied, and applicant brln^ er-
ror. Affirmed.
Sibley & Sibley, of Milledgevllle, for plaln-
tlfr In error. D. S. Sanford and Hlnes ft
Vinson, all of UUledgerllle, for defendant In
error.
BECK, J. Rebecca Harper filed her appli-
cation for a writ of habeas corpus against
S. li. Terry, Jailer of Baldwin county, al-
leging that she was Illegally restrained of her
liberty and held In the JaiL This applica-
tion, coming on to be heard on the 17th
day of December, 1912. before the Judge of
the superior court, was refused, and the ap-
plicant was remanded. To this Judgment
she excepted.
It appeared on the trial of the caw that
the applicant had been taken into custody of
the sherlflt in certain ball-trover proceedings
Institnted against the 8m>Ucanft by Georgia
Jeffers. Afterward Rebecca Harper made
application for dischaige, alleging that she
was neither able to give bond and the ae-
cority required by law nor to prodnee the
property, and denying that she had In her
possession, custody, or control the property
to recoTtf which the bail-trover lurooeedlnge
had been Institnted. Upon the bearing of
this api^cation, she waa remanded to ttn
custody of the Jailer. Tto thia Judgment ahe
sued out a UU of exceptions to hare the
Judgment reviewed in the Supreme Court,
and filed two affidavita, om stating tiiat ahe
had bera advised by her oonnsel that die
had good cause for writ of error, and that
she waa unable^ because of her poverty, to
pay the coats or give the bond or security tor
the eventual condemnation money, the other
stating that ahe was unable to pay the coats
in the case. On the hearing of the babeaa
corpus case appeared the following, In ad-
dition to Qie facts redted In the £or^;olng
statement: In 1912 the applicant waa ap-
pointed temporary administratrix of the es-
tate of her deceased husband, Clifford Har-
per, by the court of ordinary of Baldwin
county. As ench she collected, on Novem-
ber 4, 1912, ¥730 from the National Bank of
Brunswick, Ga., and in the following month
she secured possession of a trunk and other
personal effects belonging to the deceased.
She has not produced the money sued for
In the ball-trover proceeding, and has given
no bond to secure its production.
[I] 1. It is contended by couns^ for plain-
tiff In error, In the first place, that the de-
tention of plaintiff in error in the Jail was
Illegal, because upon the hearing of the ap-
plication for discharge from custody in the
bail-trover case the filing of the paupff af-
fidavits referred to in the statement of facb*
•Par oiksr eases so* saaw teple and saeUon NUHBBB in Dsd. Dig. * Am. ZHg. Ker-N£i||igrM*;
78 SOUTHBASTEBN SEPORTEB
operated as a snperaedeas, and consequently
that the applicant for discharge, the plaln-
tlir In error here, shonld-have be^n released
from custody until the hearing and deter-
mination In the reviewing court of the bill
of exceptions sued out to the order of the
Judge refusing the application for discbarge
from custody under the ball-trover proceed-
ings. But we are of the opinion (conceding
that, the bill of exceptions having been sued
out, Uie filing of the affidavits referred to
operated as a supersedeas without any ex-
press order from tbe court granting a super-
sedeas) that the effect of such a supersedeas
was to leave the case and the applicant for
discharge In statu quo. The applicant was
already in custody of tbe law ; the Judgment
refusing her discharge had no other effect
tlian to leave her where she was at the time
of the filing of the application. A super-
sedeas would not have the effect of (hanging
the status and releasing the party held In
custody.
[2] 2. The ruling made In the second head-
note does not require elaboration. See, In
tblfl connection, the case of Barper v. Jeffers,
78 a 172.
Judgment affirmed. All the Jwtioes oon-
a«l Oik 14)
BBOWN V. PINSON.
(gopreme Court of Georgia. May 18, 1913.)
(8vUmbu9 By <k« Court.)
Appeal ard Bbbob ^ 10(K}*)— Vsediot^Bvz*
'DBNCE.
There being evidence to aothorlze the ver-
dict, and the same having been approved by the
tilal jad^ It will not be disturbed here.
.[Ed. Note.— For other cases, see Appeal and
Efrror, Cent Dig. |8 S860-»876^ SMS-mO; Dea
Dii i 1008.«) ■
' Entor from Superior Court, Worth Coun-
ty; Frank Park, 3u6s6.
Action betwe«i ^mil«m Brown and G. M.
Plnson. From an adverse Judgment^ Brown
brings error. Affirmed.
.Julian B. Williamson and J. H. lipton.
both of Sylvester, for plaintiff In error.
Pope & Bennet of Albany, for defendant In
error.
BOOK, J. Judgment affirmed.
Justices concur.
AU the
(U» Oa. 7TS>
PEUBLOB T. HART et aL
(Supreme Court of Georgia. April 18, 1913.)
(Syllahut "by the Court.}
X. Ejectment (81 9, 88*)— Paoor or Titlb—
' Appointment or Executob.
In an action of ejecttneni in the common-
law form. wfaeM a demise is laid in a:n executor,
the appointment and qualification of -the execu-
tor ia a necesiBaty part of the plaiDtiSTs title.
Tbe usual way <h proving them is by the in-
tfodnetton tn evidence tA flia leasor'B fatten
testamentary.
(a) Where the same person Is both executor
and testamentary trustee under a vilL but the
title to the property devised la placed in him as
trustee, in a suit to recover realty ao left, »
demise in tbe name (tf the executor Is not
available.
[Ed. Note.— For other cases, see EJ^tment,
gnt. Dig. S8 16-29, 238-245 ; Dec Dig. S8 »►
2. Ejectment ({ 9*>— Title ot Plaiwtot—
Joint deuui.
In order to recover on a j<dnt demise, it
is necessary to ahow title and a right of entry
in each and all of tbe persons named as lessors
in that count
[Ed. Note.— Ft>r other cases, see Ejectment^
Gent Dig. K 16^; Dec Dig. i 9.*]
3. Apfeai. Ain> EsROB (I UXiO*)— AcnoN bt
Exbcutos — Pboop— wnx — AmoBsioir xn
Evidence.
At common law an executor suing In eject-
ment was required to make a profert <a tbe will,
but that rule is abrogated by statutsw Neverthe*
less, where one of the ^ntllPs lesson Is an
executor, the will wonul not ba so irrelevant
that its reception In evidence vould require a
new tiiaL
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. M lOesTlOQ®, 4lB»--fil57,
4166; Dec. Dig. 1 10BO:»]
4. EjECrUKNT (8 90*)— BVIOSNOB— EzBUPun-
OATIOW OP BaNKBUPTOT.
The exemplification of bankruptcy was ad-
missible as bearing on ^ lasne made as to. tlw.
execution and dellvety of a deed by the bank-
rupt anterior to tbe adj^dleatlon.
EEA. Moteu— For other eases, see BJectmenU
Gent Dig. || 264-277; Dec. Dig. I 90.*I
Error from Superior Oourt, Terrell Coun-
ty; W. a WorriU, Judge;
Action b7 Mis. M. A. Hart and others
against Charles Denblw. Judgment Cor
plaintUEs, and defendant brti^ oror. Be-
versed.
H. A. Wilkinson, of Dawson, for platntUC
In error. M. O. EUwarda, of Dawson, for
defendants In errop.
EVANS, P. J. The action was ejectment
in the -common-law form. The demises were
laid, one In tbe name of M. A. Hart, execu-
trix of T. J. Hart, and the other In the name
of Mrs. M. A. Hart, Tom Hart, and Ed Hart,
heirs at law of T. J. Hart The defendant
pleaded not guilty, and that he is the owner
of the premises in dispute by virtue of a
deed from T. J. Hart, dated November 8,
1S75, and continuous possession thereunder
from the date of its execution to the filing
of the suit The Jury returned a general
verdict for the "plaintiffs." The court re-
fused to grant a new trial, and the defend-
ant excepted.
[1] 1. An insuperable obstacle to uphold-
ing tbe verdict Is that neither of the plain-
tiff's lessors was shown to have a right of
recovery. An executoc may maintain an
action of ejectment, but. In order to recover,
he must exhibit in evidence his letters tes-
tamentary. The province of the letters Is
to prove the appointmeut In order to show
BOBSON ft EYA2n T. J. B. HALE « SONS
177
Ills authority to have possession of the land.
Lamar v. Sheffield, 66 Ga. TIO. Where ma
sues as ezecntor 'to recover on a chose In
action belonging to his testator, upon fellare
of the defendant to file a plea In abatement,
the plalntlfT is not required to prove hie ap-
pointment as executor ; but the rule Is other-
wise If the letters testamentary constitute
a part of the plalntlfTs title to the property
sued for. Hazlehurst v. Morrison, 48 Ga.
397. Letters testamentary on the estate of
T. J. Hart were a part of the lessor's title
In the demise laid In the uame of the execu-
trix, and there could be no legal recovery on
that demise without proof of the same. The
reception in evidence of the will naming Mrs.
Hart as executrix will not suffice to dispense
with proof of her appointment and quall-
flcation as executrix, as wills may be pro-,
bated by others than the nominated execu-
tor, and a nominated execator may offer a
will for probate and yet refuse to qualify.
Nor could a recovery be supported under
t3iis demise on the ground that Mrs. Hart
is also named as testamentary trustee^
Where the same person is both executor
and testamentary trustee under a will, but
the title to real property therein devised is
placed in him as trustee, In a suit to recover
Bucfa realty a demise in the name of the ex-
ecutor is not ftTaUable. Sdiley t. Brown.
TO Ga. 64.
[I] 2. Nor could there be a recovery on
the demise of the heirs at law of T. J. Hart
Tbe plaintiffs tjfCeteA In evidence the will of
T. J. Hart, in which the specific property
was devised to Mrs. Hart in trust for her
sons Thomas J. Hart, Jr., and Edwin Harris
Hart T. J. Hart having dispoeed of the
premises in dilute by will, his heirs could
not take the estate by Inheritance. Tbe de-
vise is not to the widow and children as
tenants In common, but to the widow as
trustee for the children. She would only
take the naked legal title, during the minori-
ty of the children, and the evidence discloses
that at least one of them was aui Juris upon
the Institution of the action. As to ^ti^ the
trust was executed. So that, even If the
words "heirs at law" annexed to the names
of the lessors In the second demise be treat-
ed as surplusage, there can be no recovery
under the familiar rule In ejectment that,
In order to recover upon a Joint demise, It
Is necessary to show title and a right of en-
try in each and all of the persona named as
lessors In that count Powell on Actions
for Land, % 27, and cases dted.
tl] 3. The will of T. J. Hart was received
In evidence over objection. At common law
an executor suing in ejectment was required
to make profert of the will, but that rule has
been abrogated by statute in this state.
Lamar v. Gardner. 113 Ga. 781, 88 S. B. 498.
Nevertheless, where one of the plaintiff's
lessors Is an executor, the will would not be
altogether Irrelevant, and Its reception in
evidence would not be ground for new triaL
[4] 4. The court excluded from evidence
certified copies of the proceedings in bank-
ruptcy of Thomas J. Hart The petition In
bankruptcy was flied on November 26, 1875,
and the adjudication also was made on that
date. Included in the Inventory of property
claimed as exempt Is "one house and lot in
the city of Dawson." The evidence does not
disclose whether the locns In quo was that
house and lot If that Is the same house
and lot In dispute, this proceeding would be
relevant In connection with the plaintiffs'
evidence attacking the execution and deliv-
ery of the deed produced in evidence by the
defendant from Thomas J. Hart purporting
to have been executed a few days prior there-
to. On the other hand. If the prranlses in
dispute were not scheduled In bankruptcy,
the bankruptcy exemplification would be
admissible as bearing on the execution and
delivery of the deed. In either view the evi-
dence was relevant
As the case will be sent back for another
trial, we forbear discussion of the facts.
Judgment reversed. All the Justices
concur.
019 a*. TM)
ROBSON ft EVANS v. J. R. HALH ft SONS.
(Supreme Court of Georgia. April 18, IfilS.)
1. Salbb ({ 62*)— CorrnuCTv-CoRsranOTiorr.
A contract to purchase a certain quantity
of oats, to be delivered in spedfled amounts
each month daring five montos, Is an entire
contract of purchase, though the deUrcrlw are
to be made at separate times.
[Ed. Note.— For other cases, see Sales, Oant
Dig. SS 171-lTO : Dec. Dig. S 62.*1
2. CONTBAOTB (S 318*)— BBXAOB OF COimUOT
— Attucpt TO Rescind.
If a purchaser under such a contract, after
receiving two sblpments of the grain, without
lawfal cause notified tbe seller that he would
not receive the balance of tbe srain undelivered,
be could not thereby rescind the contract with-
out the consent of the seller, but such a repudi-
ation (rf it eonstltntad a loeaeh.
[Bd. Mbtt.— Vor otiwr eaaes, aee Gootraets,
Cent Dig. I 1279; Deck Dlgri Aia*]
S. Saus <{ 840*)— Bbbaoh bt Btttkb— Rnt-
Eons.
By Civ. Code 1910. { 4131, it Is declared
that upon the breach of an execnto^ contract
oif sale -by a purchaser the seller ordinarily has
a chdee of any one of three remedies: He may
retain tbe goods, and sue for the diSereoce be-
tween the contract price and the market price
at the time and place for delivery ; or he may
sell tbe property, acting for ttiat purpose as
agent for tbe purchaser, and recover the differ-
ence between the contract price and the price
on resale ; or he may store or retain the prop-
erty for the nnrchaser and sue tbe latter for
the entire prfce.
[Ed. Note.— For other cases, see Bales, Gtant
Dig. II 827-TM2: Dec Dig. t 840.*]
4. YBBDIOT SVBTAINza
The evidence disclosed a clear repudiation
bf the contract by the purchaser, with no legal
reason therefor. The verdict was Jfully war-,
•Vte etbsr ea^ iM BSBM topic and SMUab NUIiraata Dsa. iMc^ a Ai^ Dl»
78S.Bi.-12
178
78 SOUTHEASTERN REPOBTER
(Ga.
ranted, and nose of the fToandi of tlw motion
for a new trial (ombli mffident reason to
eaoie a rereraal.
(SMiUonal BvtUb^ ftf BdttorM BUff.)
5. Sales <| 884*)— Bbbach bt Butsb— Reu-
XDEEB— ReSALK— RKABORABLE TIUE.
Where a buyer refuses to receive goods and
the seller electa the remedy of a resale, the re-
sale must ordinarily be made in a reasonable
Ume ; and what is a reasonable time is a ques-
tion of fact for the Jurj.
[Ed. Note^For other catts, see Sales, Cent
DiK. S Dee. Dig. |^4>]
Error from Superior Ooart, Baldvin Ooim-
tji IML B. Park, Judge.
Action bj J. R. Hale & Sons against Rob-
Bon * Evans. Judgment for plalntUb, and
defendants bring error. Affirmed.
Robson ft Brans made with Hale & Sons
tbft following contract:
"Nashville, Tenn., Dec/8/09.
"Robson ft Brans. HlUedgeTille, Ga.
"We are pleased to conflrm sale to 7ou to-
day by wire through He88r& R. T. Blrdsey
ft Co., as follows:
B00-160# sax wb. oats at 54%, last at Jan..
1910.
800-160# sax #8 Wb. oats at 6S)4. lut of
Feb., 1010.
80&-160# sax wb. oats at 05%, Ust of
March, 18ia
800-160# wb. oatB at 08%, last of April,
1910.
e00-160# sax #8 wh. oats at 07%, Hay.
1010;
**NaBbTiIle official weights and grades flnaL
Sbipments subject to draft dtawn with ex-
(diange and ooUectlon charges ; payable on
arrival of car; shipment as follows: Jan.
Feb. March, April, and May, 1010. Subject
to freight dia^ea. Price and terms accepted.
"Yam txxHj, J. B. Hale ft Sons,
Ter D. W. W
"Robson ft Brans,
"Per B. a BobauL"
Hale ft Sons bront^t suit against Bobson
A Etous for a breach of Oils contract, allege
Ins. among othor tblnga^ as follom: The
oata agreed to be d^rered the last of Jan*
nary and those to be delivered the last of
February were delivered accordingly. On
April eth, before the deUverr of any of the
remaining oats, or the famishing of ship-
ping orders on request, Robson ft Brans ad-
vised the plaintiffs that they would not ac-
cept any fnrthtf shipment, and Instructed
the plalntlfb to cancti the contract The
plalnttfflB immediately adrlaed Robeon ft
Brans that they were on willing to cancel the
contract, except upon condition that Bobson
ft Btrana would pay them two cents per
bushel for the remaining 0,000 bushels. The
plaintiffs continued to bold such 6,000 bush-
els of oats at thdr place of business. In
Nashrllle^ Tenn., awaiting shipping orders.
After Bobson ft Brans had been repeatedly
Informed that the plalntifFs would not cancel
•Tor etlnr eases
the contract except upon the twms above
stated, and rqwateffly requeated to give ship-
ping Instructions, so that the plaintUEs might
forward the oats in accordance with the con-
tract, they failed and refused to do so.
The plalntlflti held the oata until June IStti.
and then sold thm at the market price at
that time. Deducting the price which th^
bron^t from the aggregate contract price,
with the coat of saddng and storage added,
there vras a baluice of 9067.46. The sale
was made after frequent efforts to dlssoade
Robstm ft Etvans from r^wdlating tbB con-
tract, and afta giving them written notice
of the Intention to sell and htdd than liable
for the difference between the cmtract price
and the price which the oats ml^t bring in
the Nashrille market.
The defendants admitted the making of
the cmtract, and that they r^sed to glr«
shipping Instructiou^ and on April 6tii noti-
fied the plalntiffB that th^ would not accept
the oats, which were to be deUrered In
March, April, and May. They also pleaded
that at the time of such notice oata for
March, April, and May delivery were worth
more than the contract price, and that the
plaintiffs, after receipt of the notice, held
the oats until June 18th, during wbldi pe-
riod the market price of oats dedlned. The
defendants Insisted that the delay was un-
reasonable, and that they were not liable for
damages resulting from the fall In the mar-
ket price.
The Jury found tat favor of tiie plaintiffs
¥607.46, wUh Interest from June 18th. The
defwdants moved for a new trial, rrtildt
was refused, and they excepted.
Hlnes ft Vinson, of Mllledgevllle, for plain-
tiffs in error. Allen ft Pottle, of MiUedge-
vlll^ for defoidanta In error.
LUMPKIN, J. (after stating the facts aa
above). [1,4] 1. The contract to purchase
the oata was entire, althon^ they were to be
delivered In different lota montb^ at a stat-
ed price per bushti fbr each lot
[2] The buyers could not receive some <tf
the oats and resdnd tba contract aa to the
balance, without the consent of the aeUers.
A refusal to acc^t more oats after the firat
two shlpmenta vras a repudiation of the con-
tract, not a rescission of it When the buy-
ers, without lawful cause, notified the sellers
that th^ would not receive the remainder
of tile oats und^vwed, this was a breadi of
the omtract Haiderson levator Oo. t.
North Georgia HlUhig Co.. 126 GhL 279; 00 S.
E 50. Under tbe prerlons rulings of this
court the sellers could not thereafter de-
liver other quantities of oata to a common
carrier for transportation to the buyers,
txMt thla as the eqnlralent of delivery to
the buyers, and sue for the purchase price
of the oats as delivered. Oklahoma ^egar
Ca V. Carter ft Ford, 116 Oa. 140, 42 S. B.
I Bune topio sad seeUoa NUHBBR Id Dee. Olg. A Am. IHg. Kj^-j^^^^^^^j ^^g([<^as
THOBNTOK T. HITCHOOOK
179
378, 60 L. R. A. 122, 94 Am. St Bep. 112 ;
RounsaTllle t. Leonard iitg. Co., 127 Qa.
736. 66 S. a 1030.
[3] The sellers could treat the contract aa
breached, and pursue any of the remedies
stated In the CItII Code, | 4131. One of these
was to sell the property as the agents of the
tmyer, after notice and In a reasonable time,
and recover the dlfTerCTce between tiie con-
tract price and the price on resale.
[I] It will be observed that, under the con-
tract, the sellers were not required to de-
liver the oats except In monthly shipments;
and therefore they were not obliged to buy
oats for each delivery until the time for It,
If they did not have the oats on hand. It
would seem that the buyers ought not to
be better off by reason of breaking the con-
tract than by complying with IL It may be,
however, that the sellers should take this
Into consideration In electing which remedy
they will pursue, and not elect to treat the
notice as an entire breach and resell the
whole, If they have not the property on hand
for resalfc Where a buyer refuses to receive
goods and the miiae elects the remedy of a re-
sale, the general rule Is that the resale must
be In a reasonable time ; and what Is a rea-
Bcmable time la a question of fact for the
Jury. N. Georgia Milling Co. v. Henderson
Elevator Co.. 130 Ga. 113. 116, 60 S. E. 258,
24 U R. A. (N. S.) 235. In Balnbrldge OU
Go. V. Crawford Oil Mill, 138 Ga. 741, 76 S.
EV, 41, the seller refnsed to deliver goods de-
liverable In Installments. The bpyer re-
fused to treat the contract as at an end, and
demanded that deliveries be made at the
times specified ; and, on failure of the seller
to comply therewith, the buyer sued for the
difference between the contract price and
the market price at the time specified for
each delivery. See, also, Ford v. Lawson,
133 Ga. 237 (5, 6). 238, 66 S. E. 444.
If it be assumed, under the facts of this
case, that the sale of the entire lot of oats
should have been made ta a reasonable time
after the notice of refusal to receive the bal-
ance was given to the plaintiffs on April 6th,
nevertheless, the facts of the case are to be
considered In determining the question of
reasonableness. Here the evidence as to the
contract, the conduct of the parties, the re-
peated letters and tel^rams of the sellers,
urging the buyers to give instructions and
offering to release them on certain terms,
but not otherwise, and the failure or delay
on the part of the buyers In answering, was
suffident to authorize the Jury to find that
the delay In selling until June 13th was not
unreasonable. Mendel v. Miller, 126 Ga.
834, 66 S. B. 88, 7 U R. A. (N. S.) 1184.
The verdict was bight; and none of the
rulings complained of, If they bad even ap-
inrent merit when considered alone, were
such as to furnish ground for reversal.
Judgment afflrmedu All the Justices con-
car.
098 Ob. 74»>
THORNTON t. HITCHCOCK.
(Supreme Court of Georgia. April 18, IMS.)
(BvUmhua by <Ae OourU)
1. BOUHDABIBB ({ 62*)— RETUBn OF PBOOSS-
SIONBBB— AKBROMBNT.
Where a motioD is made to dismiss the
return of processioners because of incomplete-
ness and ooncompliance with tlie statute, it is
competent to allow the processlonen (they be-
ing in office at the time) to amend their re-
turn; and if the deficiencies pointed out in
the motion are cured by^ the amendment, it is
proper to deny the motion. Such amendment
may be made alter a protest is filed by the
processiooers' return, and during the trial of
the issue formed thereon.
[Ed. Note. — ^For other cases, sea Boundaries,
g>nt. Dig. H 268-260, 262, 288; Dec: Dig. |
2. BouNDjuiiKS ({ e^*) — RxTtraiT of Paoon-
BIONEE»— YaUOITT— CUESICAI. MlSTAKK.
Where an application is made to certain
persons aa proeessioners to have the land of
tbe applicant processioned, a variance in the
iuitialfl of one of the proeessioners as stated
in the spplication from that as stated in the
return, where no point as to the identic of
the person is raised, ^ InsnflMent to tamll-
date the return.
[Ed. Note.-— For other cases, see Boundaries,
gent Dig. iS 253-260, 262, 263; Dec Dig. I
3. YEBDIOT SCffTAIKCD.
The evidence was suflhdent to support tiie
vemUct:
Error from Superior Court, Putnam Coun-
ty; J. B. I^rk, Judge.
Application by R. L Hitchcock to the pro-
eessioners of land to have his land proces-
sioned, and especially the line between bis
land and that of G. M. Thornton. Thornton
protested, and the proceeding was trans-
ferred to tbe superior court From tbe ver-
dict, the Protestant brtngs error. Affirmed.
Boy D. Stabbs and W. T. DavidKm, both
ct Eatooton, An- plaintiff In error. W. F.
Jaddui and S. T. Wlngfleld, both of Eaton-
toa, fm defgidant in error.
EVANS, P. J. R. li. Hitchcock made ap-
plication to tbe proeessioners of land for
tbe 81401 (Klnderhook) district of Putnam
county to have his land processioned, and
especially the line betwem his land and that
of G. M. Thornton. Upon that application
the land was surveyed, and the proeessioners
made the following return: "Georgia, Put-
nam County. June 1, 1009. We. the under-
signed, proeessioners of Klnderhook Dlst..
Putnam county, Ga., have had Farrar Hue
and Noah Lawrence line run, and find cor-
ner on Farrar line near the place recognized
by all parties interested ; and we have decid-
ed to malie tbe line that divided R. L.
Hitchcock and 6. M. Thornton on the Farrar
line run In a straight line to the district
line where It crosses the big road between
314th and Seoth Dlsts." Thornton tiled a
protest, and the whole proceedings were duly.
•rot etlMr flSMS ass same tople and smiUob MUHBBB 1p Dto. Dig. * Am. Die. Kvr-iiJi^lmA ^
sji^ere duly
78 SOUTHBASTBIW BIBPOBTER
trftnsmlttod to tbe superior court of Putnam
comity. On tbe cftU of the caw fOr trial
the proteatsDt moved to dismiss the retnrn
of the pioces^oners, w the ground that It
showed on Its face that an arbitrary dividing
line had been made between tbe lands of B.p-
pllcant and protestant, and had not been
marked ont or traced as provided by the
statute, and that the retunt failed to show
that any application had been made to the
proces^oners to aathorlze their action. At
the Instance of applicant the court allowed
the processioners, who were la office, to amend
their return by attaching thereto the origi-
nal application made to them by the appU-
<ant to procession his land, which was In
terms of the statute; and also to further
amend their return as follows: "To Hon.
John S. Reld, Ordinary of Said County:
The undersigned, proceesioners for the 314th
Dlst, Q. M., said county, h&viug been applied
to by R. L. Hitchcock to trace and mark
anew the line dividing his lauds from the
lands of O. M. Thornton, adjoining each
•other In said district, did appoint tbe
day of May, 1909, at 10 o'clo<^ a. m., as the
day of tracing and marking said line pursuant
to tbe provisions of section 3244 et seq. of
tbe Civil Code of 1896, and, after having giv-
en tea days' written notice to said Thornton,
the owner of said adjoining lands to said
Hitchcock, did on the day of May,
1900, as required by statute, together with
Che county surveyor, survey said lands and
proceed to run and mark said lines between
the lands of said nafned parties, as is set
«ut In our original return to said ordinary.
Attached to the original return filed by us
with the ordinary is a plat made by H. R.
f^nkerton, county surveyor of said county,
which Is hereby made a part of said return,
and which properly represents the service
made and the lines nm and marked anew hy
ma and said sorv^or. This 2l8t March, 1010.
J. F. Freeman, W. T. McDad^ and J. T.
Bessean, Processioners."
[1] 1. It may be stated as a general mle
that a return which Is Incorrect or erroneous
as to tbe facts may always be amoided, so as
to.ecmform to the truth, on application to the
court for that purpose by the officers who
made the return. 18 Enc. PL ft Pr. 96a If
a return be so defective as not to amount to
official action. It la not amepodable; but
when it la merely incorrect or erroneous, It
may be aminided tbe officer who made It,
so as to make it comi^ with the facts exist-
ing at Oie ttme oC the retam. Dtsmln^ t.
De Lang, lB0Oa.ei8,«18.SL 475»mAm.
at Kw> 1^ The return made by tbe ivo-
■cessloners was not too defective for amend-
ment It appeared therefrom that the line
between tbe applicant and the mrotestant
began at a fixed comer and extoided la a
straight line to another fixed comer. In de-
flalng tho dotlfls of processlonars relatiTe to
the marteing anew of Unes, the statute de-
clarfs that 'V tbe oernen am est^bURbed,
and the linee luA marked, a straight Une^ as
required by tbe plat, shall be mn." (KvU
Code 189S, I 8240. The original retnm die-
closes that the procesrtontfs had established
such straight line between the parties, but
tailed to state that It was the line which they
found and whldi they marked anew. Tbe
other defect In file retnm pointed out in the
motion was a failure to attach tbe an>Ilca-
tion to procession tbe land, or to recite that
they had given the statutory notice to tbe
adjacent landowner. This was a mere mat-
ter of form, and was curable by amendment.
It is contended that It is too late for the
processioners to amend their return after the
same had tieen filed in court and a protest
died thereto. There can be no sound ob-
jection to the amendment of an official return
by the officer who made It, after It has been
filed. In many cases this practice Is regulat-
ed by statute, as, for Instance^ an amendment
of a levy, the officer who made it, is al-
lowable even after the sale occurred, and
during the progress of an ejectment suit, in
which the deed by the sh^iff, based upon
^ch sale, Is one of the munlmmts of title
relied upon In tbe case. Civil Code 1910^
a 6115, 5116 ; Dorminey v. De Lang, supra.
But a statute is not necessary to authorize
sncb amendment; and in the absence of reg-
ulatory legislation It Is generally a matter
resting in the sound ^scretlon of the court,
Wlilch Is exercised with great liberality. 18
Enc. Pi. A Pr. 064. Amendments to the re-
ports of commissioners to lay ont highways
are allowable after the reports are filed, so
as to show conformity with the statute.
87 Cyc. 112. If the officer Is not in office,
he cannot amend an incomplete or defective
return without some order of court giving
direction In the matter. Beutell v. Oliver,
89 Ga. 246, 16 S. E. 307. In this case It does
not apprar but that the officers ammdlng tbe
return were In office when the amendment
was allowed.
Tbe case of Rawls t. Nowell, 133 Qa. 874,
67 S. B. 187, does not confilct with this ml-
ing. In that case the applicant proposed to
amoid the plat made by the snrv^r, by
adding a description of the land, and tbe
court heOd that such amendmrat by tbe ap-
plicant was not pnmissible. It will be noted
that the proposal to amend was by the ap*
pllcant; and not by allowing tiie officer to
amend bis return. It follows that the court
properly allowed the amendment, and over-
ruled the motion to dismiss for defects in
the return of the procesdonm which were
cured by it
[2] 2. The aivUcatlon to procession tbe
land was made to "W. T. McDade, J. F.
Freranan, and John Bessean, Sr., procession-
ers of land for Uio 8l4tb (mnderbook) dle-
txlct of said county.'* Tho retnm was signed
by "J. F. Freeman, W. D. UcDade, and J. T.
miXKB T. STATB
181
Out tbe Tuluutt tn tte'lnlOtl of onft of tb«
jgrocooaloneni creates mxh a vailanoe be-
tween tbe names (tf the penoiui ts whom
application was made and tboae who acted
as piocesBlonen as to Israltdate the whole
proceeding. There are two replies to this
etmtentloii: nw application was made to the
proceesloneni of tbe Klnderhook district, and
Qie offldals made their return as such pro-
eescdoners. niere Is no point made as to
tbe Idoitity of the person, and, beridesi this
point Is not cood vndw a - snaral asslgQ-
ment that the Terdlct Is contrary to OTldraice.
' [1] S. Tbe evidence was snffldent to an-
tborlze the verdict, which has the appro ml
•S the trial Judge, and no reas<m apiwata
why the same should be set aside.
Jadgment afBrmed. All tbe Justloes con-
cnr.
(Its Oa. 816)
FUBB T. BANK OF FAIBMOUNT.
(Supreme Conrt (rf Georgia. April 18, 19U.)
(Sytlalut by th« Cowi.)
1. -PB0CESS (S 164*)— AjtBKDlCENI^FOBEOLO-
soRE or Honuea.
Where a sheriff lerred a rale nisi to fore-
dose a mortgage on realty In proper time, but
inadTertently dated bis retom so as to make it
appear that the serrice was made in the future,
and at a time subsequent to the term at which
the rale absolute was granted, and the rule
absolute recites service of the rule nial ac-
cording to law, such return Is thereafter amend-
able by the sheriif, who is to office, without or-
der of court, ao as to make the return show
the true date of the seirice. MaoleyT. Mo-
Keozie, 128 Ga. 348. 57 S. B. 705; Thornton
T. Hitchcock, 78 S. B. 17».
[Ed. Note.— For other casee, see Proceis,
Gent. IMg. IS 176, 289-24St Dea Dig. | 164.*]
2. UOBTOAGU (I 484*)— FOBKOLOStmi-JDDO-
Wbere a petition was flled to foredose a
mortgage on realty, addressed to the superior
court of Murray count;, and a rule nisi was
issued thereon, bearing the caption of "Mur-
ray Goontr." and was duly -served, and at ^
return term a rale absolute was granted by
the court, and duly entered upon the minutes
of the superior court of Marray coonty, such
iudgmeut absolute is not loTalld because at the
lead of the paper on which it is written, and
before the statement of the case, appear the
words, ''Georgia, Bartow County."
[Ed. Note. — For other cases, see Mortgages,
GenL Dig. H 1441-1445; Dec Dig. { 494.*!
8. MOBTOAGKS (S 486*)— FOBECLOSCBB— JUDQ-
MXNT— pARrmtBSHzp Propbbtt.
In tbe foredosnre of a mortgage on realty
to secure the debt of the morti^gor and also
that of a partnership of which he is a mem-
ber, it is proper to enter up a special judg-
ment against the mortgagor, to be made out
<tf tbe mortgaged pn^rty, for the full amount
«f the seoired debts.
[Ed. Note^For other ease% see Ifortgsges,
CHit. Dig. II 1404-1411, WTO; Dec iBgnl
486.*]
4. MOBTQAOES (I 413*) — FOBKCLOSOEB — IN-
JtrNCTXOR — QBonzTDB- Pabtnebshif Pbop-
BBTT.
It no ground to enjofai the orderly prog-
ress of a mortgage fi. fa^ at the instance of .
the mortgagor, that some of tbe land which
is included In the mortgage was not bis indi-
vidual property, but that of a partnership of
which be was a member.
[Ed. Note.— For other cases, see Mortgages,
Cent. Dig. SI 1187-1201; Dec Dig. | 413.*]
e. Costs (S 260*)— Appbal fob Dbut— Dau-
AOES.
A motion to award damages on the groond
that the ease was brought to this court for de-
lay only most he denied; the judgment to
which exception is taken being the refusal of
an interlocutory injunction} and not a money
judgment Pittsburg-Bartow Mining & Mfg.
Co. y. Washington Trust Co., 137 Ga. 232, 73
S. E. 367.
[Ed. Note.— For other cases, see Costs, Cent
Dig. 18 083-096, 1002, 1003; Dec. Dig. 8 260.*]
Error from Superior Court, Murray Coun-
ty; A. W. Fite, Judge.
Action by the Bank of Falrmount against
L. O. Furr. Judgment for plaintiff, and de-
fendant brings error. Affirmed.
W. E. Mann, of Dalton, for plaintiff in er-
ror. Wm. T. Townaend and Neel & Neei, all
of OartersvUl^ for defendant In error.
EVANS, p. J.
Justices concur.
Judgment affirmed. All Uie
(W Oa. no
MILLEa r. STATBL
(Supreme Court of Oeergia. April 17. 1018.)
(Byllabiu (g ike Omtrf.)
t Cbikxnai. Law <| 942*)— ArPSAZ^BErus-
AL ow Nsw TaiAL.
Newly discovered evldeoice^ wtMi Is Im*
peaching and eomnlattve In dmractor, is not
generally caose for a new trial In this case
there was no abuse of discretion In refusing to
grant a new trial because of newly discovered
evidence.
[Ed. Note.— For other cases, see Criminal
Law. Gent Dig. H 2316. 2381,11882 ; I>ee. Dig^
I 942.*]
2. Jubt (8 110*)— Objbotioii n Jubob—
Waives.
Where a Juror Is kin both to the prosecu-
tor and tbe defendant within the prohibited de*
grees of relationship, and this fact is known to
the defendant and be makes no objection antil
after conviction, he will be presumed to have
waived the incompetency of the juror.
[Ed. Note.— For other cases, see Jury, Cent
Dig. H 602-013, &15-628; De& Dig. | 3ia*]
8. JuBT (8 90*)— iMaouFinncT or Jubob—
BELATION6HXP.
The fact that a sister of a Juror married
tbe brother of the prosecutor's wife establishes
no relationship between the prosecutor and tbe
juror, and the latter is not inconpetent to earn
as a juror on the trial of one charged with the
murder of the prosecutor's child.
gSd. Note.— For other cases, see Jury, Oe&t.
. SI 41^18, 422; Dec. Dig. | 90.*]
4. HoinciDx (SI 297, 809*>— InSTBUUTioir—
EVICENOB TO SUPPOBT.
It is not error to fall to instruct the jury
on tbe law of justifiable homicide and of vol-
untary manslaughter, wbere the evidence does
not authorise It
[DcL Note.— For other cases, see Bomldde,
Beclt J., dissenting.
«nir ouwr cases see sanie topte aae swtthm NUMBBR U Dae. XHg. « Am. Us. Ker-Ho.
182
TO SOUTHHASTBBN bepobtbr
(Oa.
Brror from Superior Ooarl; Hwrd Ooonty ;
R. W. Freeman, Judge.
Lou Ifiller was convicted mnrder In the
Hcond degree^ and brings error. AtOrmed.
S. HoldemesB and W. Smith, both of Car-
roIltoD, W. O. Wright, of Newnan, and A.
J. Andrews, of La Orange, for plaintiff la er-
ror. J. R. Terrell, SoL Gen., of GreenTlUe,
Frank S. Loftln. of Franfclln. H. A. Hall, of
Newnan, and T. B. F«lder, Atty. Gen^ for the
State.
BILh, J. John Daniel and Loa Miller
woe Jointly Indicted for the crime of mur-
der. Daniel was never tried, having fled
from the state and died withont b^ng aiv
rested. UlUer was pnt upon trial as a prin*
dpal in the second degree, convicted* and
sentenced to life imprisonment in the pen^
tentlazT. He made a motion for a new trial*
wUcb was overrnled, and be «xcfipted. The
evidence for the state tended to show that
a few lurars prevloas to the bomidde Daniel
and the prosecutor, D. BL (Do^ Bell, had a
dlfflenltr In the presence of the defendant,
who was in the bnggr with Danld, and who
bad without legal provocation shot at Bell,
and B^l, later arming himself, returned the
flre, after Daniel had again fired first at
Bell Daniel and the defendant retired from
the Boaoe of the first enconnt^, and tb» d«>
fendant procured a Winchester rifle from a
nd^bor, and soon thereafter Danl^, with
a WInchestw rifle, in company with the de-
fendant* wait to Bell's home, where his fam-
ily wtLB, and a genml fusillade occurred,
Daniel shooting from behind a stump* and,
according to ^ewltnesses, firing first at Bell,
who was on or near his front porch when
the shooting bsgan, and who later retrwted
to a storehouse near ills dweUini^ from where
he and his brothers' friends returned the
flre with shotguns and a parlor rifle. Dur-
ing this shooting the defendant was stand*
Ing near Daniel and saying, "ShootI Shootr
In tils statement Uie d^6ndant denied this
uid said that what he did say was, "Don't
shootr* A Winchester rifle ball entered the
dwelling house of Bell from the direction
Daniel was standing and killed an infant
child of Doc Bell in one <^ the rooms. Aft-
er the shooting both Daniel and the defend-
ant left the acoM of the homldde togsth-
er and fled from ttie state.
1. The first, second, third, and fourth spe*
dal grounds ot Uie ammded motion ash for
a new trial because of newly discovered evl-
denoe. Most of tliis evidence tends to im-
peach the state's witness UcBrayer, who tes-
dfled on the trial that, as he passed the
scene of the difficulty, the defendant was
standing near Daniel, who did the shooting,
and said to the lattar, "ShootI" The afflda-
vits of these newly discovered witnesses tend
to show that McBrayer prior to giving his
testimony said to the affiants that he under-
stood the defendant^ Lou Millar, to say to
John Daniel, ''Shootr* but ho oonld not be
positive that be might have said. "Don't
shootr that bis mule was frii^tened and he
was watching his mule instead oi Miller. In
a counter affidavit McBrayer doUes the lu-
gnage attributed to him by ail the alleged
newly discovered witnesses and says that
what be did say to these witnesses was the
same as bis testimony given on the trial of
the case, which was that he heard the de-
fendant. I/ou Miller* say to John Dani^
"Shootr* and that he did not hear him say,
"Don't shootP* Two othtt newly discovered
witnesses gave affidavits to the effect that on
the aftranoon at the hinalctds th^ saw John
Daniel, who had on Itls shonldor a Tnudiester
rifle at the tlm& X>aniel gave afilanta the
first Information they had (tf the difficult at
Bell's. The Judge did not abuse his dlscre*
tlon In refusing a new trial upon the ground
of this newly discovered evidence.
[1] This evidence was Impeaching and cn-
mulative in its character, and **it Is well set-
tled that aUeged newly discovered evidence
of this charactw is not generally cause for
a new trial, erea where it li uncontradict-
ed ; and it Is perfectly clear that, where It Is
contradicted by evidence introduced by the
state on the hearing of the motion, thera Is
no abuse of discretion In refusing to grant
a new trial upon the ground of the ezistenoe
of such evidence and its dlaoovwy since the
rendition of the verdict" Washington
State, 124 Oa. 423, 431, 62 S. B. 910. 914;
Bnrge v. State, 138 Ga. 481, 66 S. E. 24S ;
Wimms V. State, 136 Oa. 669. 70 S. D. 264.
[2] 2. The flfth ground of the motion as-
aigus error because Joe Bagwell, a Juror
who was Impaneled and sworn, and yrbo <ISA
try the defendant, was related to D. SL
(Doc) Bell and to the deceased; the latter
being the Infant daughter of the prosecutor.
It Is insisted that the Juror is a second cous-
in by marriage to the prosecutor and a third
cousin to the deceased and is therefbro with-
in the prohibited degrees of relationship.
The affidavit to support this ground tends to
show that "Bagwell married a Barber, ^tdcb
said Miss Barber was a daughter of Bud
(L. E.) Barber; said Bud Barbs' married a
Miss Mathls; and said Miss Mathls was a
first cousin to John Bell; Doc Bell, the
prosecutor in said case. Is a son of John
Bell." From this affidavit it appears that
Bagwell, the Juror, is ttie husband pf the
third cousin of the prosecutor. In other
words, the Juror married Uie prosecutor's
third cousin. This would bring the Juror
within the prohibited degree, and as a gen-
eral rule would disqualify him and would be
cause for a new trial, if he served on the
Jury which convicted the defendant, without
knowledge on the part of the defendant or
his counsel of the relationship at the time
of his acceptance and service as a trial Juror.
But the state Introduced on the hearing of
the motion for a new trial a counter affidavit
of I* U Barber, who testified
who testified ^t^lM
Digitized by VjOUV I
"ttie father of Lola Bagwell, the wife of
Joe Bagwell; tluit deponent married Emma
Matliews; that Matilda Mathews was the
daughter of Mrs. Brown; that Mrs. Brown
was the deter of John Cheek and also the
Blstra of Mrs. Lube Bell, who was the grand-
mother of Lon MIU^ and D. BL Bell, the
prosecntor; that Lon Miller [the defendant]
always called deponent 'cousin Bud' and call-
ed my wife con^; that said Miller has
Tlslted deponent's family; that Mrs. Lake
Bell was the grandmother of said Lon Miller
and said D. El Bell." It appears, therefore,
that the defendant and Uie prosecutor had
a common ancestor in Mrs. Luke Bell, Uie
grandmother, and consequently are first cous-
ins. We think the evidence soffidently ln>
dlcatee, if It does not absolutely show, that
the defendant knew of the relationship ex-
isting between the Juror and the prosecntor.
He did know of the relationship between the
juror and himself; and It is inconceivable
that he did not know the relationship exist-
ing between all three. He lived in the neigh-
borhood, was a first cousin of the prosecutor
(as testified by the latter), and he called the
juror's £ather-tn-law "cousin Bud." The
prosecutor testified that the defendant ^'was
nearly double a first cousin to me; he was
a first consin, then he was a second cousin."
If the juror was related to the prosecutor
within the prohibited degree, he was also as
nearly related to the defendant within the
imhlUted degree. This relationship must
have been known to the defendant, because
he always addressed the juror's father-lu-
law as "courin Bud" and his wife as cousin.
It Is well settled that, where a juror Is
known to be incompetent, such incompetency
is presumed to be waived unless objection Is
made. Georgia B. Co. v. Oole, 73 Ga. TIB
<2b) ; LampUn t. State, 87 Ga. ffie (7), 18 K.
El 623; Hadden t. Tbxmpatm, 118 Ga. 207
<2). 44 8. D. 1001.
[3] 3. The sixth ground of the motion as-
signs error t>ecau8e of the alleged relation-
ship of one of the Jurors, Jim Boggus, to
Mrs. D. Eb BeXl, the wife of the prosecutor,
and mother of the child killed, within the
prohibited degrees. The affidavit of Lu B.
Jones Introduced by the defendant at the
hearing of the motion tends to show that
Boggus, the juror, is a brother-in-law of
Jim Jones In that the latter married a sister
of Boggus, and Jones is a brother of Mra
D. B. Bell, the wife of the prosecntor, and
the mother of the diild killed. In other
words, the juror is a brother-in-law of Jim
Jones, who is also a brother-in-law of the
prosecutor. Doc BelL Neither is there any
relationship between the juror and the moth-
er of the cSAia by reason of the fact that
she was the sister of Jones who married
the Juror's sister. Tbis does not dlsquaUfy
the Juror. It comes within the ruling made
in the case of Bums v. State, 89 Ga. 627.
15 S. B. 74S. It was there held that: "Mar-
riage relates the husband to the wife's Un-
T. STATE 183
dred, but does not relate any of his kin-
dred to hers. Consequently a man whose
broths had married the prisoner's sister
was not for that reason incompetent as a
Juror to try the prisoner for an offense."
And see City of Dalton v. Humphries, 139
Ga. 5S6, 77 S. E 790.
[4] 4. Error is assigned on the failure of
the court to charge the law of justifiable
homicide or of voluntary manalaught^, as
applied to John Daniel, the alleged principal
in the first degree. It is Insisted that Inas-
much as the state contended that John
Daniel was the actual perpetrator of the
crime, and that the defendant Miller was
present aiding and abetting the same to be'
done, the failure of the court to charge the
law of justifiable homicide and make such
loBtructlone applicable to John Daniel was
error and prejudicial to the defendant for
the reason that the burden was on the state,
under the law, to show that the principal
was guilty of murder b^ore the state could
ask a conviction of the movant, who was the
alleged principal in the second degree; and,
before the Jury could convict him, they must
believe, beyond a reasonable doubt, that
Daniel was guilty of murder. Under the
evidence in this case, we do not think that
either the law of justifiable homicide or that
of voluntary manslaughter is applicable.
The evidence for the state tended to show
that, after the first difficult between John
Daniel and the prosecutor, the latter went
to his b^nne; and that Daniel and the de*
fendant went away together. The defendant
procured a Winchester rifle from a neighbor
for the purpose, he said, of IdlUng a hawk,
and in a very short time he and Daniel ap-
peared at the home of the prosecutor; Daniel
having a Winchester rifle. Soon after lend*
Ing the rifle the neighbor said to J. D.
O'Keefe, a witness for the state, that, "when
that old rifle began to crack, he said he
knew that was his gun then." The evidence
tended to show that Daniel commenced to
Are at the prosecutor from behind a stump
while the latter was endeavoring to get him
to leave, and continued to shoot at least 10
times, twice after the mother had brought
the dead baby out on the porch In her arms
and told Daniel that he had killed her. One
of the bullets from the Winchester rifle went
through a portion of the house and killed
the infant child of the prosecutor while ly*
ing in its bed. While the shooting was in
progress a minister of the gospel was driv-
ing along the public road opposite to where '
the shooting was and saw a man there hold-
ing a horse and understood the man to say
to another man also standing there, "Shoot!"
and the man Immediately shot Other wit-
nesses identifled the man holding the horse
as the defendant, Lou Miller, and the man
at the stump with the rifle as John DanleL
Mrs. Efiie Johnson and Nonle Bell were
pleading with John Daniel not to go back to
Doc BeU'a. Daniel wan3 gi^^]^^)^[e
78 S0UTHBA8TEBN REPORTER
and said he was golog to kill idm. Before
Daniel mid tMs of Bell« HUler said. "Jobn
ean*t take everything." It seems clear from
Ow evid«ice that John Daniel went to the
honae of the prosecator for the purpose of
killing him, and that the defendant was
Qiere aiding and abetting him. Had Daniel
killed the prosecator, we think there is no
question that he wonld have been gnllty of
murder, and the defendant, who aided and
abetted the act, would have been none the
less guilty. And if, under snch circumstanc-
es, the shot or shots fired by Daniel at the
prosecator missed him, but hit his child and
killed her, both Danld and Ulller would be
guilty of murder. 1 Bishop, Grim. Law (8th
Ed.) I 328; 1 Wharton's Crlm. Law (11th
Ed.) p. 690; 21 Cyc. 694. We can see no ele-
ment of Justifiable homicide In this case;
but, on the contrary, the evidence makes oat
a case of murder. WlUiams v. State, 130
Oa. 400, 403 (2), 00 B. E. 1063; Bowden T.
State, 126 Oa. 678 (3), OS B. E. 409.
The court did not err, therefore, in failing
to charge on the subject of Justifiable homi-
cide. He had correctly instructed the Jury
as to the law of murder, malice, burdoi of
proof, and of principals In the first and sec-
ond degree. He instructed the jury that,
before the defendant could be convicted of
murder, they "must find from the evidence,
b^ond a reasonable doubt, that John Daniel
was' guilty of the crime of murder; • ♦ •
that John Daniel willfully and with malice
aforethought, while endeavoring to kill and
murder Doe Bell, killed SalUe Maud Bell."
And also: "Before you would be authorized
to convict Lou M1116r, it must be shown to
you, beyond a reasonable doubt, t£at John
Daniel was guilty of murder In kUllng Sal-
Ue Maud Bell. It must be shown that he
killed her, and that in killing her be was
gnllty of murder, under the evidence of this
case. If that has not been shown, why you
should acquit the defendant Lou Miller."
This charge was as favorable to the defend-
ant as he was entitled to, under the evi-
dence. The court Instructed the jury that
there could be no conviction unless Daniel
was gnllty of murder. And there could be
no murder if the homicide was justifiable.
Nor was the failure to charge on the sub-
ject of voluntary manslaughter error. This
was a case of murder or nothing. Tolblrt v.
State. 119 Oa. 970, 47 a El 544. There was
no sndi "hot blood." as contended by able
counsel, as to authorize a charge on the law
of voluntary manslaughter. After the first
difficulty Daniel had deliberately armed
himself with a deadly repeating rifle procur*
ed through his companion. Miller, and had
gone to the home of the prosecutor for the
expressed puri>ose of killing him. There
might be a question of voluntary manslaugh-
ter in this case if the drcumBtances of the
first transaction were such that, had death
resulted to Doc Bell as a result of that
quarrel. It would have been voluntary man-
slanghter. See TnUlams State, US Oa.
302, 54 fi. B. 108. But let us see how the
evidence stands as to that. Boy Johnson^
who was in the buggy vrlth Bell at the time
of the first difficulty, and who was offered
as a witness by the defendant, testified that
Daniel said to the prosecutor that Hope Bell,
a brother of the iwosecutor, had wvedced his
mother's home running away and marry-
ing hOT daughter, and he was going to kill
Hope. Doe Bell then told Danld that "soma*
bo^ else could pull trlggwa," *^an John
(Daniel) didn't say anythliv to Doc. Be
then shot at Doc wUJMut saying a word.
Doc was In tbo baggr wltflL me what JtAm
Daniel shot at him. We were 20 steps from
John DanleL** Thoe was nothing In this
first transactloD to anttaorin a charge on the
law of Tolnntaiy manslangUer had death r^
suited. It Is tme that In 0» first transac-
tion the pKNKcntor had flred one shot at
Dani^ bat it was only after Daniel had flred
the third shot at him. In order to reduce
the offense from murder to manslaughter,
there must be soma assault by the person
killed upon the person kUUsg or othor equiv-
alent drcnmstanoes. Bay t. State, 16 Ga.
223 (5). There was no assault made by Doc
Bell in this transaction on John Daniel. Tb»
cases dted by the plalntUE In error show an
assault by the deceased opon the person kill-
ing. But, if there was no voluntary man-
slaughter in the first transaction bad death
resulted, there is certainly none in the sec-
ond, under the evidence, if I>anl^ had kill-
ed Bell during the first quarrel, he would
have been guilty of murder. He made the
first assault, and Bell only flred later when
Daniel had fired the third shot at him. Dan-
iel made no retreat, for none was necessary,
and, without any apparent reason or Justifi-
cation, pulled bis pistol and commenced to
fire at BelL Had death resulted to Bell, can
there be a question that he would have been
guU^ of murder? This case does not, there-
fore, fall within the nillng made In the Wil-
liams case, supra, and the court properly
failed to Instruct tlie Jnry on the law of man-
slaughter, ome verdict is suKwrted by tho
evidence.
Judgment affirmed. AH the Justices cent-
cur, except
BEOS, J. (dissenting). It appears from
the evidence of a witness Introduced by the
state that Daniel, who was Indicted as a co-
principal with the defendant, without provo-
cation except words, shot at one Doc Bell with
a pistol. Bell, being unarmed, left at once and
went to his brother's house, procured a gun,
and returned to the place at which his as-
sailant, Daniel, had remained. As Bell was
ai^roaehlng with a deadly weapon In his
hands, Daniel fired again. Under these facts,
the jury would have been authorized to find
that, after the first assault had been complet-
ed, Bell left the place, went a short dlstence
front there, annad S^,^'^^?,©^^^
WnOT ft BOBINBON T. TTNEB.
185
r^oTned to irhtm Dudd bad rentalned, witb
IntmHflii to engage In deadlgr conflict with
bim ; and fnrtlw tbat Daniel remained and
awaited BeU's return and fired upon Bell as
lie anffoadied, and that Bell, avaiUng Um-
seU of the i>reparation which he had made
when he rait to hla brother's boose after
the combat, answered the fire, and that this
comUtnted mntnal combat between the par-
tlea; and that the iXOing of either by the
Dtbar under these circumstances would have
beoa a felonious killing of the grade of toI-
vntaiy manslaughter. If we are right In
this, ttien It waa a question for the jury to
decide as to whether or not there had been
Bufflclent cooling time between the time of
nratnal combat and the time of the fatal
shooting, and consequently as to whether, in
firing the shot that resulted In the death of
the decedent, the principal in the first de-
gree acted und^ the passion aroused by the
mutual combat, or acted in malice or a spirit
of rerenge. In the one case be would have
been gtdlty of murder ; in the other, of vol-
untary manslanghter. But whether it was
murder or v^mitary manslaughter was a
question for the Jury to decide^ And If they
had found that the principal In the first de-
gree waa guilty of voluntary manslaughter,
then It became a question for them to decide
whether Miller, alleged to be the principal ia
the second degree, was also guilty of tbat of •
tense.
ThuB the quesUon as to whether the de-
fendant was guilty of the offense of volun-
tary manslaughter was one for determina-
tion by the jury, and the court should have
given them ai^ropriate Instructions relative
to that grade of homicide; and failure to
gjve such Instructions was error whldi
Aould be oorrected by the grant of a new
trial.
(in Qm. 785)
WTNN & ROBINSON v. TTNER.
(Supreme Court of Geoigia. April 18, 1913.)
(SiftMmt by tk^ Vwirt.)
1. Chattel Mostgaoes (| 0*>— OoNomoirAi.
Sale— What CoHsnnms.
Where a seller of personal property on
credit took from the buyer an instrument
promisinK to pay the purchase price amounting
to fl75, and provldins ^at ue title to the
property should remain in the seller until the
■mount was fully paid, such Instrument creat-
ed a reservation ox title as security. It was
not a mortgage, and could not be foreclosed by
the summary statutory method applicable to
mortgages on personalty.
[Ed. Note.— For other cases, see CBiattel
Mortgages, Cent Dig. H 23-11; Dec. Dig. {
6;« Sales, Gent Dig. I 1332.]
2. Sales (I 479*) — Conditiovaz. Bum — •
Operation ahd ErracT.
Where sellers of personal property took
from the buyer a written instrument, piomls-
Ing to pay the unpaid purchase money, and
agreeing that the title to the property should
renmln In the sellers aotll payment In full,
and in the instrument was inserted an agree-
ment by the buyer diat, upon default In pay*
ment, the sellers might, 'Mn addition to any
other remedies provided by law for the en*
forcement ctf the eolltetlon hereof, at thrir op*
tion ^ect to treat the instrument as a mort-
gage upon the property, title to which is retain-
ed by the said [Bellersj by the terms hereof, and
upon the execution of a bill of sale to the mab-
er or makers hereof to such property, and the
filing and recording of such bill of sate in the
office of tbe clerk oi the superior court, * * *
shall give the right to the said [sellers] to pro-
ceed to foreclose this Instmment ss a mortage
upon the property, togathur with the other
property herein mortgaged, in the same man-
ner aa mortgages on personalty are foreclosed
under the laws of this state," the parties could
not by such an agreement make the instrument
one both retaining title and not retaining title;
nor could they by such agreement make a sum-
mary ' statutory proceeding applicable by law to
one character of instruments appUrable by
agreement to another.
(Ed. Note.— For other cases, see Sales. Cent.
Dig. H 1418-1432. 148^:1488; DeoDig. |
479.«]
(AMittonal SpO^but &y Bditoriai Staff.)
3. Chattel Mobiqaqu (I 6*) — "Biix or
Sale to Ssocu a Debt"— 'XtenDmonAi.
Sale."
The distinctive difference between a "chat-
tel mortgage" and a "bill of sale to secure a
debt," OP the "retention of title'' by a seller t«
secure tbe purdiase money, is that a "chatty
mortgage," under Civ. Code 1010, % 3206, i$
only security for a debt and passes no title; a
"bill of sale to secure a d^t, with an obliga-
tion to reconv^ on payment, passes tltie to
tbe buyer, under Glv. Code 1910. % 3306, nntu
the debt secured shall be fully paid ; and a
"conditional sale." with retention of title as
security, leaves the title, under Civ. Code 19i<^
f 3S1S, in the sellw ontil the purchsse money
is paid.
[Ed. Note.— For other cases, see Chattel
Mortgages, Cent EHg. || 23-41; Dec Big. %
6;* Sales, Cent Dig. fi 1382:
For other definitioDs, see Words and I^rases,
vol. 1, pp. 800-801; VOL 2. pp. 1098-1106.
1408-1410.]
Error from Superior Court, Chattahoochee
County ; S. P. Gilbert, Judga
Action by Wynn ft Boblnson against J. O.
Tyner. Judgment for dtfendaat, and plaln-
tiS brings error. Affirmed.
J. 0. Tyner executed Uie fbllowing Instru-
ment: "Georgia, Muscogee County, Golum-
bus, Oa. March 2, 1910. 176.00. By tbe
first day of October, ISU^ next, I inomlse
to pay Wynn & Robtneon, or order, one hun-
dred and seventy-flve doUara, for value re-
ceived, as purchase money, for one brown
mare mule, wtdte nose^ smoofli mouth. In
the sale of which tben la no warranty of any
kind. The title to which aforedesaribed prop-
erty shall be and ranaln, In Uie said Wynn
ft Robinson, until this oMlgatim Is fidly
paid off, uid dlsebarged. It 18 agreed, how^
ever, tbat If said propoty, or any part tbare-
of. is lost by death, destruictlon, or otherwise,
such loss shall fall on the maken of this
obligation and not on tbe aald Wynn ft Bob*
Inson. thieir heirs or assigns ; but I agree to
pay this obligation notwithstanding. To fur-
ther secure the payment of this obligation I
*Fn oUter esses see same topie aad section NUHBBB In Dee. Dig. * Am. Dig. Ker
186
78 BOUTHSABTBStN BEPOBTBB
hereby mortgage, eeU and conrey to ttie said
Wynn & Robinson their heirs and assigns, the
ftdlowlng described profmrty, to wit: Fifty
acres of land (60), more or leas, known a» the
northeast part of land lot No. 203 In the 10th
district of originally Muscogee county, now
Ohattahoodtee connty, Georgia, said SO acres
bounded as foUows: West by branch, south
by brandt to line running north which Joins
land of J. Bf. Green, and bounded on north
by abOTe-descrlbed lands, bdng and lying In
Obattahoochee connty near Box Springs,
Georgia. Which property so mortgaged I
represent to be owned by me, and free and
dear of all liens or lucombrances of> every
kind and description whatever. If this ob-
ligation is not inromptly paid at maturity, I
agree that the said Wynn & Boblnson may,
In addition to any other remedies provided
by law for the enforcement of the oollectlon
hereot at their option elect to treat this in-
strument as a mortgage upon the property ti-
tle to which is retained by the aald Wynn
& Boblnson by the terms hereof, and upon
the execution of a bill of sale to the maker
or makers hereof to such property, and the
filing and recording of snch bill of sale In the
office of the clerk of the sapertor court of
the county of the residence of such maker or
makers, or any one of them, shall give the
right to the said Wynn A Robinson to pro-
ceed to foreclose this Instrument as a mort-
gage upon said property, together with the
other property herein mortgaged, in the same
manner as mortgages npon personal property
are foreclosed under the laws of this state,
and the maker or makers hereof hereby ratify
and confirm the sale of all or any part of said
property sold under such foreclosure, and
agree to pay all the costs and expenses of
such foreclosure and the sale of the property
thereunder. Including the cost of recording
such bill of sale. This obligation shall bear
Interest from date at the rate of eight per
cent per annum ; and In the event the same
ia placed in the hands of an attorney for col-
lection after maturity, I agree to pay tejt
per cent upon the amount due as attorney's
fees. As against the payment of this note,
the makers waive all right to claim the ben-
efit of any homestead or exemption of per-
sonalty provided for under the Constltntlon
and laws of the state of Georgia, or any
other state. In witness whereof I have here-
unto set my bond and seal, this 2 day of
March, 1910." This was signed by Tyner
and attested by two wltneaaea, one of whom
was a notary public.
On November 16, 1810, Wynn ft Boblnson
executed and filed an instrument In which
thoy recited the one above set out and stated
that Tyner made default in payment, and
that for the purpose of foreclosing on the
pn^mrty sold, in accordance with the terms
of the note, they conveyed to him the title
to the mule In otiet to levy thereon under
such foredosore. Thereupon an attorney tax
Wynn & BoUnson made aflUhvit that Tynet
was Indebted to them In the sum of flTS
principal and $88.06 Interest together with
fl7J!0 attorney's fees, "for the purchase of
a certain brown mare mnle^ white nose^
smooth mouQi; and afllant makes this afll-
davlt so that a mortgage fl. ta. may Iflsoe
and be levied upon said mule." The derfe
of the saperlor court Issued an execution,
and It was levied npon the mnlft It is bi-
ferabl^ from the record that an affidavit of
Illegality was filed, as the case was returned
to the superior court When It came on tor
trial, the defendant demurred to the affidavit
of foreclosure and the proceedings thetenn-
der, on the ground that the contract was not
a mortgage, but was a contract of retentkm
of title to secure the purchase price ct the
property, and was not subject to summary
foreclosure as a mortgage on personalty.
The demurrer was sustained, and the plain-
tiffs excepted.
0. C. Mlnter, of Cusseta, and Wynn &
Wohlwender, of Columbus^ for plaintiff in
error. W. B. Short; of Buena Tiata, for de-
fMidant In error.
liUMPKIN, J. <after stating the facts as
above). [1] 1. By the Civil Code, | 3306,
it is declared that a bill of sale to secure
a debt with an obligation given to the debtor
to rectmvey the property upon payment being
made, shall pass title to the "vendee" until
the secured debt shall be paid, and shall
be construed by the courts to be an absolute
conveyance, with the right to have a recon-
veyance upon payment of the secured debt
and not a mortgage. By section 3318 a method
Is provided whereby one who sells and de-
livers personal property may retain the title
as security until the purchase price shall be
paid. By section 3298 it to declared that "the
owner of any bill of sale to personal prop-
erty to secure a debt where the principal
sum does not exceed one hundred dollars,
may foreclose the some in the manner as
mortgages on personal property are now fore-
closed, under the laws of thto state." By sec-
tion 6037 a general provision Is made by whidi
a holder of title to secure a d^t may reduce
the debt to Judgment file and have recorded
a conveyance to the debtor, and levy on the
property. In Berry v. Boblnson ft Overton,
122 Ga. S7S, 60 S. B. 978, It was held that
where one purchased personal property and
gave therefor a promissory not^ In which
It was agreed that the title should remain
In the seller until the purdiose money should
be paid, snch an Instrum^t was not a "bill
of sale" made by the purchaser to the seller,
and could not be foreclosed In the summary
manner provided by section 3298. The prom-
ise to pay involved in the present case was
for more than $100 principal, and moreover,
the paper was not a bill of sale made by
the owner of the iiroperty to aecnre a debt
but an agreement the puxchaso: ftur the
Digitized by VjOOglC
WTNN A ROBINSON T. TTNEB
187
seller to retain title until the porchaae maaay
wu paid. It la oorered tbe decUdim
deed.
Tbe argument tbat the tnatmmoit la a
mortgage la wlQioat merit Cases like tliat
of Frost T. Allen, 57 Ga. 828, where tbe own-
er et pnverty execnted to a creditor an
tnstmment to secure a d^t, and the ques-
tion was whether nnder its peculiar language
it conTeyed title or was a mere mortgage,
are not applicable to an insteument like this.
As to thena, see, also, Smith v. De Yautfbn,
82 Oa. 075, 9 S. E. 425, and Pitts t. Haler.
115 Oa. 281. 41 8. O: 67a
[2] 2. It Is argued tbat the purchaser
agreed. If the obligation should not be
promptly paid at maturity, that tbe sellers
mlgbt, "In addition to any other remedies
provided by law for tlie enforc^uent of the
collection hereof, at th^r option elect to
treat this instrument as a mortgage upon the
property title to which Is retained by the
said [sellers] by the terms hereof, and upon
the execution of a bill of sale to the maker
or makers hereof to audi property, and the
filing and recording of auch bill of aale in
tbe office of the clerk of tbe superior court,
* * * shall give the right to the said
(sellers] to proceed to foreclose this Instru-
ment as a mortgage upon the property, to-
gether with the other property herein mort-
gaged, in the same manner as mortgages on
peraonalty are foreclosed under the laws of
this state." In Smith t. De Vaughn, supra,
the instrument under consideration aeema
to hare Included Ut the Indebtedness secured
not only the purchase money of the mule
descEibed, hut also $80 of a prior indebt-
edness. In It Uie purchaser promised to
pay the sum named, and added: '*! here-
by mortgage and convey unto the said payees
Ms heirs, and assigns, the following described
property [descrUiing the mule], for wUiSi
this note la given in part Said mule to
rramln tba moputy of [the sdlw] until paid
for.** We are aware that Mr. Jnstloe Sim-
mons In dlscosalnff the peculiar language
of tUs instrument, after holding tbat It was
a conatlonal bill ot sale, and not a mortgage,
said: **It Smith [the purchaser] had paid
tlie purdiase money of the mulc^ he wonld
have aeqidred tlUe thereto, and it Is pos-
slble that the Instrument might have been
foredosed as a mortgage for the $80; and
this may have been the reason that the paper
was written both in the form of a mort-
gage and a bill of sale." But this mere sug-
gesUoB of a possibility^ and one whiiA was
not directly Involved (tbe action b^g
bron^t to lecovor possession of tbe property
1^ tiie acaien). Is vary far from a ruling that
a sdler can retain title and also in the same
Instrument have a mortgage created In his
favor on the same property, as being that
of the purchaser, to secure the purchase
money.
[I) The distinctive difCuaaoe betweoa a
mortage and a bill of sale to secure a debt
or tbe retention of title by a sdler to secure
the irardiase mon^, is tliat "a mortgage in
this state is only security for a debt, and
passes no title" (avil Code. | 8206) ; a bill
of sale to secure a debt, with an obligation
to reoottv^ on payment "shall pass the
title of said property to the vendee till the
debt or debts which said conv^ance was
made to secure shall be fully paid" (OlvU
Cod^ i 3306); and a conditional sal^ with
retratlon of title as security, leaves the title
in the seller until the purctiase money is
paid (CivU Code, | 8318). Just how the same
instrument can convey title and not eonv«y
title at the same tlme^ oc retain title and
not retain title, but be a mere lien, as to .
the same property and for the same debt,
is not plain. It wonld seem to be an effort
to reoondle the irreconcilable. B^tlvely
to dower, year's support, and the right of
ot^er creditors to levy th^ common-law eze-
cntiona^ there is a widie difference between
tbe status ol a mortgage and a oonv^ance
of title as security, or a retention of title
for that purpose. To permit a creditor to
word his contract so as to call It one or the
othtf at his pleasure, and substantially to
get tbe benefits of each, frightening off other
creditors by means of the declaration tbat
the title is In him, and yet reserving the
right of summary foreclosure of the Instru-
ment as a mortgage would be to allow a
variable and uncertain form of legal instru-
ment How shall a paper be classified whidi
declares that it conveys title or does not con<
vey title, aa the creditor may at any time
thereafter choose to declare? If it be pos-
idble to frame an instrument so that it may
be a mortgage or a reservation of UUe at
the option of the creditor, the instrument
before us does not even do that It seeks
to hold all the benefits of a reservation of
tltl^ and yet to declare that a summary rem-
edy may be applied to that situation when
the statute has not so declared. A convey-
ance or reconveyance and levy after Judg-
ment Is provided in casea where title is held
as security, omitting the provision for fore-
closure of a bill of sale to secure a debt
under $100. A summary foreclosure by af-
fidavit is provided for cases where no title
is h^d by the creditor, but a mere lien Is
given. There are cases In which a party has
an election of remedies, such as where a
transaction partakes both of the nature of
a tort and a contract, and where the party
may sue for the tort or waive the tort and
sue on the contract; where tbe principal
may ratify or repudiate the unauthorized act
of his agrat; where one has the option to
declare a contract terminated because of a
breach of a condition subsequent, or to in-
sist upon its performance; and other In-
stances which might be mentioned. But this
is different from a contract authorizing one
of the parties to apply a summary statutory
remedy, authorized by ^g-^^jdj^J^tf^Ie
188
78 SOO TUEA8TBRN BBFOBTBR
of dreanutanee^ to tihe enforcement of Ids
tlglits nnder a different set of titreamBtances.
The law declares wlien the statntory method
of fOredosare by affidavit may be employed.
Parties cannot by agreement make such a
proceeding applicable to a different class
of cases. It Is evident that an agreement
attempting to give a party the right to re-
cover land by possessory warrant, or to re-
cover personalty by an action of ejectment,
or by a warrant to dispossess a tenant, would
not be vaUd or confer upon the courts the
right to proceed in accordance with the
agreement, Instead of In accordance with the
statutes on those subjects. In the instant
case It was agreed that upon filing and re-
■ cording a bill of sale the sellers of the mule
should have the right "to foreclose this In-
stmment as a mortgage upon said property,
together with the other property herein mort-
gaged, In the same manner as mortgages up-
on personal property are foreclosed under
the laws of this state." "The other property
herein mortgaged" was real estate. It would
hardly be cont^ded that by such an agree-
ment the parties could authorize the fore-
closure upon land In the summary manner
authorized by the statute for forecloslnK
mortgages upon personalty. No more can
they by agreement authorize the same sum-
mary method of foreclosure of a mortgage
upon personalty to be used in a case where
a seller retains title as security, to which
such a foreclosure has been held this court
not to aK>ly, and for which provision has
been expressly made by another statute.
The presl^Jig judge correctly sustained
the demurrer and dismissed the summary
effort to foreclose the Instrument
Judgment affirmed. All the Jostlceti oon-
CUE.
a« oa. u)
OtAWSON V. STATE.
(Supreme Court of Geoi^ Uay 18, 1913.)
(StUo^ H the a^urt.)
OsmiNAi. Li.w (S 10^)— Appkaz. AifD Baaom
~-Bizx or ExcEpnoNB.
A bill of exceptioDB assigning error upon a
iudgment overruling a motion for a new trisi
In a criminal case most be -tendered to the
judge within 20 days from the lendition of the
judgment Pen. Code 1910. | 1102; Qlv. Code
1910. I 6153.
(a) Accordingly, where it appears from b bill
of exceptions hi a criminal case that the plain-
tUf in error was convicted on October 30, 1912,
Uid on the next day daring the term of court
filed & motion for a new trial, and on the same
date a rule nisi was granted, calling upon the
solicitor general to show cause, at chambers,
on November 18, 1912, why a new trial should
not be granted, and on November 22, 1912, the
motion by consent of counsel for both sides was
beard and a new trial was refused on the last-
named date, and on March 28, 1913, a bill of
exceptions was presented to the judge, com-
plaining of the jadgment refusing a new trial,
and the judge certified the UU of exceptions on
the date It was presented, the Supreme Court
has no jnrisdicBon to entertain die writ of er-
ror. See Harris v. Stat^ 117 Ga. 18. 43 S.
E. 419 : Crawford v. Ooodwin. 128 Ga. 184,
67 S. E. 240; Sistronk t. ICangom, 138 Ga.
222. 75 S. B. 7.
<b) In a case of the character above stated,
jurisdiction Is not conferred upon the Supreme
Court to entertain the Mil of exceptions by an
averment therein to the effect that the delay in
tendering it was caused by the refusal of conu-
sel, who represented plaintiff In error on the
trial, to proceed farther with th» case, and the
inability of plaintiff in error to procure other
counsel to present the bill of exceptions within
20 days from the decision refusing a new tnaL
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. i$ 2808, 2829, 2834r-2S61,
2919; Dee. Dig. % 1092.*]
Error from Superior Ctourt, Jones Coun-
ty; J. B. Park, Juc^
3. H. GlawBon was convicted of crime, and
he brings error. DlsmiaBed.
Jno. B. Cooper, of Macon, for plaintiff In
error. Jos. B. Pottle, SoL Gen., of Mllledge-
vlUe, and T. & Felder, Atty. Gen., for the
State.
PISH, C. J. Writ of error dlsmlaaed. AU
the Justices concur.
(lit Oa. aoi)
tACHEB T. UANLBST.
(Sapreme Court of Georgia. April 18, 1A1&>
fSj/Uabiu hv ih9 Oourt.)
DiaMtSBAL AWD NmrBtrTT (S 80*)— Iwvoluw-
TABT DieaasBAi. or Pktition— Emer oir
Cboss-Bill.
Prior to the uniform procedure act of
1887 (Civ. Code 1910, fiS 5514, 6538) the Invol-
untary dismissal of an equitable petition for
want of equity carried with It the defendant's
cros»-biU which only prayed for legal relief
(Johnamsen v. Tarver, 74 Ga. 402) ; but if the
cross-bill alleged facts germane to the plain-
tiff's petition, entitling the defendant to Inde-
pendent and tfstinct equitable .relief, the dis-
missal of the petition did not interfere with
the defendant's right to a hearing and trial on
the matters set up in the cross-petition. Ryan
V. Fulghum, 96 Ga. 234, 22 S. B. 940. Since
the enactment of 1887, which provides that io
suits in the superior court founded on a legal
or equitable cause of action, for a legal or eq-
uitable remedy, or both, relief of an eq-
uitable or legal nature may be had in die same
actioD, the dismissal of the plaintiff's petition
on demurrer as being without equity will not
have the effect of dismissing a cross-Dill of the
defendant, allea^ng additional matters germane
to the original petition, and praying affirma-
tive relief although the relief prayed is not
equitable in character, and la eognuable in a
court of law.
[Ed. Note.— Ste other cases, see DiBmlssa]
and Nonsuit, Cent. Dig. H 178-181; Dee. Dig.
i 80.*3
Brror from SnpMlor Omift; De Ealb Conn-
t7; Ei- & Boan, Judgew
Action by W. D. HatOey agslnat lAdwlg
Ladia. Judgment fbr plalnUf^ and defend*
ant brings error. Bereraed.
Hooper Alexander, of Atlanta, for plaintiff
In error. Green, Tilson & McKlnney, of At*
lanta, for defendant in error.
•roretbsri
I same tepts snA ssotm HUMBBB la Deo. Dig. * Am. Dig.
X«AOHEB MAMZiSt
189
BTANS, P. T. W. D. Hanley broi^t rait
agftlnat Ludwlg Lacher. alleging tbat the de-
fendant was In the occnpancr of a Cum b»-
longing to the plaintiff by virtue of a written
contract which was attached to the petition.
The plaintiff alleged that the contract had
been breached in divers and sandry particn-
lars, and prayed for the appointment of a
receiver for so mticb of the- farm as was
Hctoally occupied by the defendant, and for
an inJunctloQ against the defendant's Inter-
fering with the plaintiff in the management
and control of so much of the farm as was
not occupied by the defendant, and from in
any manner interfering with the property
on the farm, and that the plaintiff recover
poBsesslon of so much of the farm as the de-
fendant occupied. To this petition the de-
fendant filed his demurrer, and also an an-
swer and cross-action, wherein he alleged
Oiat the plaintiff had violated the contract in
the various particulars alleged, to the dam-
age of the defendant In a certain sum, for
which be prayed judgment The court sus-
tained the demurrer on the ground that "the
petition states no cause to warrant the relief
prayed," and dismissed the same without
prejudice to the defendant's rights under his
cross-action. Thereafter the court passed the
'following order: "The defendant In the
above-stated case having filed a general de-
umrrer to plaintUTs petition and pressed said
demurrer, which demurrer was sustained by
the court this date, and plaintifTs petition
dismissed, it is ordered by the court that the
order sustaining plaintiff's case carried with
It the defendant's cross-petition in the case
against the plaintiff, under the case of John-
amsen v. Tarver, Cashln ft Co., 74 Ga. 402."
Exception Is taken to this order, upon the
ground that the diamisaal of the petition on
demurrer did not have the effect to dismiss
the cross-petition, which prayed afflrmatlve
relief.
The questloD made la: What la the effact
of an Involuntary diamisaal of the petltton
prayioff eqtdtaUe relief npcrn tbe croaa-petl-
tlon of the d^endant praying afflrmatlve re-
lief not of an eqnltablo natare? We .will
oonslder the questlrai, first,, from the vlev-
p^nt of tlie English diancery practice ; and,
secondly, as such practice has been modified
by onr practice and procedure atatntea. A,
eros»Ull tmplles a un by a defendant
against the plaintiff in the same suit, or
against other defmdants In the same aol^ or
both, tooehi&c tSie matters In Questten In the
original snl^ and Is anxlUary to <» depmd-
ent nptm the original suit 2 Dan. Ch. Fr.
1548. Because oif tbia dqwndency was in-
volved the general rule that an Involnntarr
dlwnlsMl at the original bill carried with It
the CTDSS-blll. 5 Etae. PL ft Pr. 602; bows
T. atr of Chicago, 11 Wall. 108. 20 Li Ed. 65 ;
Din T. Shahan, 25 Ala. 703, 60 Am. Dec. S40.
The statement that the dross-bill shares the
tate o( the original bSl wbea the la^er la
disinlaBed Is too eomprebenslve and general
to be strictly accurate. In Story's Bq. PI.
I 899, note. It la said : "A distinction should
be drawn between cross-bills which seek af-
firmative relief as to other nuitters than
those brought in suit by the Mil, yet prop-
erly connected therewith, and cross-bills
which are filed simply as a means of def^tse ;
since there are rules applicable to the one
class which do not apply to the other. Thus
a dismissal of the original bill carries the
cross-bill with it when the latter seeks relief
by way of defense ; but It is otherwise, and
relief may still be given upon the cross-bill,
where afllrmatlve relief is sou^t thereby as
to collateral matters properly presented in
connection with the matters alleged In the
bilL" And where the croes-bill sets up ad-
dltiooal fiicts germane to the subject-matter
of the ori^^nal bill, and prays for afflrmatlve
relief against the complainants in the origi-
nal bill on the case thus made, the dismissal of
the original bill does not dispose of the cross-
Mil, but It will be retained for disposition on
its merits as an original bOL Fletdiw's Bq.
PL ft Pr. f 91&
In those Jurisdictions where there is a
aration of forums for the administration of
law and equity the rule is firmly established
that, If the orlglnal bill is dismissed for want
of equity, a cross-bill, praying afflrmatlve re-
lief which may be obtained in a court of law.
will not be retained for giving purely legal
rellet The reason Is manifest Courts of
equity will not grant relief where the remedy
at law is adequate. When the original bill
has been adjudicated to be wlthont equity,
and the cross-bill standing alone preeoits no
ground for equitable relief, It must fall be-
cause of an adequate legal remedy. This Is
what was decided in Johnamsen v. Tarver,
74 Ga. 402. In that case the complainant filed
a petition to cancel a contract of sale of a
stock of mer<^ndl8e, containing a stipula-
tion for m<mthly payments, praying also tor
an accounting uid the remedy of Injunction.
The defendant cross-bill prayed Judgment
for the Inatallmenta, which were In arrears.
When the original suit was dismissed at the
Instanoe of tb» d^rakdant as being wlthont
equity, tho cross-bUI of the defendant, which
<m1y Boui^t a Judgment oa a mon^ demand,
was tudd to be wlttumt equity— defendant
having an adequate ronedy at law. It is to
be reman bered that this decision was render-
ed priw to the uniform procedure act of
1887, which permits both legal and equitable
inlnel^lea to be applied In Uie same action
and administered In the same court having
Jurlsdlctlim over cassa In law and In equity.
The case of Ryan v. Pnlgbnm, 90 Ga. 284,
22 s. B. 040, is supposed by counsel to be In
conflict wldi ttie Johnamsen Case Just notic-
ed. We think that an analysis of the Syan
Case will demonstrate that there la no colli-
sion of principle between it and the former
case. In the Byan Case the plaintiff ilougbt I ^
■ " Digitized byVjOuyltC
190
78 SOUTHEASTERN BEPOBTEB
(Ga.
an Injunction against a solvent defendant to
prerent an apprehended treses on land.
It Is true tbat he prayed for cancellation of
the defendant's claim of title, bat his allega-
tions were so Indefinite and InconcloBlTe that
the coart refused to consider them to be a
satotantlal part of bis petition. The defend-
ant in addition to filing a denmrrer and an-
swer to the petition filed a cross-petition
Itrayli^ afflrmatlTe equitable relief with re-
q;iect to the same land inrolred In the wig-
Inal petition; and the court held: "Ina»-
much as the defendant's answer. In the na-
ture of a cross-bill, alleged &cts entitling
him to ind^wodent and distinct equitable re-
lief; taie dlflmlBMl of the plaintiff's petition
did not interfere with Om defendant's rlt^t
to a hearing and trial on the matters set up
In his answer, and, this being so, It was er-
ror to dlamiss the same:" The dedslon in
that ease conies vdtfaln the principle that
where a cross-bill which sets up additional
facts germane to the subject-matter of the
original bill, entttllng ttie defendant to equi-
table relief against the con^alnant, the cross-
bill will not taU with taie original Mil, for
the reason that standing alone it Is ^wd as
an original bill praying afflnnatlTe equitable
rellet Thus it wlU be seen that in the first
case the cross-petition prayed Mily for Judg-
mmt on a money demand, for remedy of
which the courts of law afforded adequate
relief; whereas in the second case the cross-
petition contained auctions germane to the
original petition, which presented a complete
case for the eqnitaUe relief which was pray-
ed. Another distinction Is that which will
be presently noticed, viz., that between the
prcmouncemrat of the two decisions the
uniform procedure act of 18S7 was enacted.
In 1887 it was enacted: "All snits In the
superior courts for legal or equitable relief,
or both, shall be by petition to the court,
signed by the plaintiff or his counsd, plain-
ly, fully, and distinctly setting forth his
charge, ground of complaint and demand,
and the names of the persons against whom
process Is prayed." And: "In suits in the
snperlor court, founded on a legal or equita-
ble cause of action, for a legal or equitable
remedy or both, the petition shall be address-
ed to the court and ^11 set forth the cause
of action, legal or equitable or both, and
the claim for 1^1 or equitable relief or
remedy or both, plainly, fully, and distinct-
ly." OItU Code, H 5638, 5514. Since that
enactment equitable and legal relief may be
given in the same action in the superior
courts ; and there Is now no reaaoQ for giv-
ing effect to the old equity rule that a cross-
bill will not be retained after the original
bill Is dismissed, unless It prays affirmative
equitable relief. By virtue of the statute.
If the cross-petition sets up matters germane
to the allegations of the original petition, and
prays affirmative relief, the Involuntary dis-
missal of the plaintiirs petition will not car-
ry with It the cross-petition, notwithstanding
the relief therein prayed for may be cogni-
zable at law. The conclusion which we have
reached, when applied to the assignment of
error, requires a reversal of the Ju<^;ment
Judgment reversed. All the Justices con-
cur,.
(U» Oiu Tftf)
DATIS V. FIBST NAT. BANE OV
BI*AKBLT.
(Snpreme Court <rf Georgia. April. 17, 1918 )
fSynahiu hy the Court.)
L JuDouBKT (i 90*)— AuTHOBiTT— Consent
TO Judgment— Setting Aside.
Where a suit was brought to cancel a deed,
to have the land described la it decreed to be-
long to the plaintiff, to have an accounting, to
recover double the usurious interest alleged to
have been paid to the grantee, a national bank,
and to obtain other equitable relief. If the plain-
tiff authorized her attomeya to enter into a
consent decree fixing the amount required to be
paid by her to the defendant in dischaige of all
liabilities against her and 0ke property at $6,-
000, and expressly instmctsd them that the
would not consent to a compromise or settle-
ment of the case except upon such terms, to
which the attorney agreed, which instructions
were known to the adverse party through its
leading attorney, and if, nevertheless, the de-
fendant's leading attorney pnrsuaded the plain-
tiff's counsel to disregard such Instruction, and
induced them to consent to a decree fixing such
liability at $16,000. declaring the debt to be
hers and not that of her husband, as she alleg-
ed it was. and directing that in default of pay-
ment by ber the land should be sold as provid-
ed therein, a consent decree so entered could
be set aside by the client upon proper inoeeed-
ings therefor duly commenced.
fEd. Note.— For other cases, see JudcmeBt,
Cent Dig. H 148, 149; Dec Dig. 1 90.«T
2. JuDQHENT a 90*) — Vacation — Subbb-
QUKrrr Pbocbedinos,
If the consent decree involved In the pres-
ent case should be set aside, the former case
should be reinstated upon the docket for trial,
and the parties should have the rights of pros-
ecution and defense In reference thereto which
they would have bad before the consent decree
was entered, together with any additional ris^t
which may be germane to the litigation.
[Ed. Note.— For other casu, see Judgment
Cent Dig. H 148, 149; Da&Dlg. 1 9a*I
8. JUDQUBNT (k 90*)— AoraOK TO SET AOIDB—
Petition— DsiruEBBB.
In view of the character of the litigation
in which the consent decree was entered, the
fact that the allegations of the original peU-
tlon largely covered the same ground as tnose
now sought to be alleged, outside of the at-
tack made upon the consent decree, and .of the
vague and contradictory character of many of
such ^legations in the present petition, other
than those attacking such decree^ direction Is
given that all of the all^ations and prayers be
stricken from the petition, except those attack-
ing the consent decree In the former case. The
striking of them on demurrer was error.
[Ed. Note. — For other cases, see Judgment
Cent Dig. K 148, 149; Dec. Dig. { 90.*]
Error from Superior Court, Early County:
W. a WorrUl. Judge.
*For otbsr cues ssme topic snd seetloa NUUBBB in Dee. Dig. A Am. Dig. Key-Ktk 8wlw JfcRn'r Indexes
Digitized by VjOOQTL.
DAVIS T. FIRST NAT. BANK
191
Action by U. 01 Darla against the First
National Bank of Blakdy. Jodgment for
0^!endant; and plalntUt brings error. Re-
Tereed, with directions.
Thoe. EL Wataon and J. B. Bumslde, both
of Thomson, for plaintiff in enor. Little &
Fow^ of Atlanta, tor detoidant In error.
LUMPKIN. J. Mrs. M. O. Darls filed her
petition against the First National Bank of
Blakeir seeking to have a consent decree
which had been prerlonsly rendered set aside
and to obtain other relief. Two amendments
were made thereto. General and special de-
murrers were filed and were sustained* and
the plalntifl excepted.
[1] 1. An important aueatlon arises as to
the authority of an attorney to bind his dlent
by a compromise resnltlng in a consent de-
cree, in direct opposition to the instructions
of his client, and with the knowledge of the
leading counsel of the adverse side of such
violation of Instmctions. On behalf of the
defeidant, reliance la placed upon Civil Code.
I 4065, which reads as follows: "They [attor-
neyal have authority to bind their clients in
any action or proceeding, by any agreement
In relation to the cause, made in writing, and
In slgDlng Judgments, raterlng appeals, and
by an entry of such matters, when permis-
sible, on the dockets of the courts ; but they
cannot take affidavits required of their
clients, unless specially permitted by law.**
This section has been In each Oode since the
first, which is generally called the Code of
1863, because Its o[>eration was suiqwnded
from the time when It first contemplated that
It should take effect -(January 1, 1862) until
January 1, 1863. In the first Code it appear-
ed as section 382. It did not originate from
a legislatlTe mactment, but was a codifica-
tion of the rule previously existing and aris-
ing from the decisions of courts. In anch a
case It has been held that the dedsions will
be looked to In construing the section thus
codified. Bush & Hattaway v. McCarty, 127
Oa. 308, 310, 66 S. B. 430, 9 Ann. Gas. 240 ;
Calhoun r. Llttie, 106 Oa. 336 (3), 32 8. E. 86,
43 B. A. 630, 71 Am. St Rep. 254 ; Ocean
Steamship Co. v. Way, 90 Oa. 747, 17 8. B.
57, 20 L. B. A. m. TUa aectlon did not con-
fer upon attorneys any new authority, but
stated in a terse form the pre-existing gener-
al rale derived from the sources to which
the codlflers were authorized to look. To
take snch a general rule and slavishly adhere
to Its letter, without looking to Its spirit and
meaning, would be substantially to violate
the role In endeavoring to adhere to It. It
Is a weU-estabUshed maxim, "Qui hcaret In
Utera haeret In eortlce" (UberaUy translated
by Bron^uun, "He who considers merely the
letter of an Instrument goes but skin deep
Into Its meaning"). Let ns then look to the
dertvatlm of this role and to tiie dedstons of
this and oOier conrts In regard to It
In England, after some conflicting dlacue-
Btra, It seems now wen settled, by flie latn*
decisions, that en attornay. by virtue of hte
general retainer, has power to cmnpromlse a
suit provided he does not vit^to the Instruc-
tions of his cllenf In ao doing ; and that such
a compromise will bind his client, even if he
does violate ln8tmcti(ms, unless the violation
Is known to the adverse party. A distinction
has been drawn between matters directly
Involved In the litigation and matters col-
lateral thereta 8 Am. ft Eng. Enc. Law (2d
Ed.) 862; PrestwiCh v. Foley, 18 C B. (N.
S.) 806. In America there la some conflict of
authority, but the greater number of deci-
sions hold that an attorney has no power to
compromise a cSalm, action, or judgment of
his client Glark t. BandaU. 9 Wis. 135, 76
Am. Dea 2S2, and note 201, 262; Levy,
Simon ft Ca v. Brown, 06 Mlas. 88, 88 ; Whip-
ple V. Whitman. 18 B. I. 612, 48 Am. "Bbep. 42.
Where the latter rule prevails. It has been
said that the foot that a compromise made
by an attorney in excess of his authority has
been consummated by a consent judgment
entered In pursuance of it does not render
the compromise thus consummated binding
on the client, although it will make the
court less inclined to disturb It, and will ren-
der prompt action and a reasonable show of
merit on the part of the client necessary to
secure its annulment 3 Am. ft Eng. Enc.
Law (2d Ed.) 362. On the other hand, It has
been held that: "In an action by a client to
set aside a Judgment against him, rendered
without his authority upon a compromise ot
his claim by his attorney at law, his right
of recovery in the action in whic^ such judg-
ment was rendered wiU not be inquired into;
but the judgmrat should be set aside, the suit
be again placed upon the docket, and the
case proceed in the same manner as if such
judgment had never been rendered." Smith'ji
Heirs V. Dixon, 3 Mete. (Ky.) 438. See, also,
Dalton V. West End Street By. Co., 169
Mass. 221, 84 N. O. 261, 38 Am. St Rep. 410.
It Is unnecessary to discuss the limitations
upon this rule, such as a failure to make
the application within a reasonable ttme^ the
question whether the parties can be put In
statu quo, etc.
Under the English rule the authority of an
attorney In regard to the Utigatton was anal-
oglsed to that of a general agent But,
where that rule bad been adopted. It has gen-
^lly been declared that an attorney at law
cannot make a compromise of a lltigatitm
and consent to a judgment or decree to carry
it into effect, against the express Instmctioos
of his client, when such instructions are
known to the other party. Thus, in Wharton
on Agency, after the author had advocated
the English rnle, he says (section 094): "If
the opposite party knows that the attorney
Is without authority or acts In disobedience
to hlB <dlent, the compromise will not be en-
forced to the Injury of the cHent" Bellvean
T. Amoskeag Mfg. Oo., 68 N. H. 22Sp40 Aa i
Digitized by VjOOglC
192
78 SOUTHEASXEBN ElEFORTBB
(Ga.
734, 44 li. R. A. 167, 73 Am. St Bep. 577;
Weeks on Attorneys, | 228; Brady t. Car-
ran, 21 G. L. 314; Strauss t. Francis, U B.
I. Q. 379.
Not long before oar first Code was adopted,
tbe question of the authority of counsel was
the subject of mach dlscusBlon In England.
In 1854 Samuel Swlnfen died, leaving a wilL
Its validity was contested. Sir F. Theslger,
afterward LmA Ghelmsford, appeared for
the legatee, who was also the executrix of
the wilL He entured Into a written memoran-
dnm of oompromlse, by tme of the terms of
wbidi the estates were to be conveyed by the
{dalntiff to the defendant* and the defend-
ant waa to secure to the plaintiff an annuity
hex life. It was agreed that either par^
could make this agreement a rale of court
A Juror was tberenpon withdrawn, and the
compromise was made a rule of the court
of common pleas. Mts. Swlnfen Inglsted
that the arrangemrait had been made not
only wlthoia her sanction bat directly In
<qnK>^tlon to her wishes, and she declined to
perform It A rale nisi was obtaliud against
her to show cause why she should not be
attached for contempt for disobedience of
the rule. The three Judges of the couunon
pleas were of the (^inhm that she was bound
Uie consent ot her counsel; but they
thought that there was not sufficient evt
denoe of a demand for performance and a
refusal on the part of Mrs. Swlnfoi to Justi-
fy an attachment Swinfdn v. Swlnfen, 18
a a (O. 80 486, decided in 1856. An-
other aiqpllcatlon for attadiment was made.
Growder, J., delivered an opinion, declar-
ing that Mrs. Swlnfen was not bound by
the compromise. Creswell, J., who, on the
former hearing, had declared that the client
was bound, now stated that, "As the validity
of that agreement must be discussed before
another trlbnnal, we are anxious tiiat the
question should be as little prejudiced as
possible anything that passes In this
court" bat personally expressed his sympa-
thy for the dlstlngnlshed advocate who bad
been attached. Swlnfen v. Swlnfen, l c. B.
(N. S.) 364, decided In 1857. After the re-
fusal of the attachment, Swlnfen filed his
sui^lemental bill, praying that Mrs. Swlnfen
be decreed to specifically perform the agree-
ment for a compromise, or, In the alternative,
that another Issue devlsavlt vel non be
directed. The Master of the Bolls held that
there should be a new trial, and that the
prayer for specific performance should be
denied. He said: "Upon what principle,
then, can It be said that an attorney has an
Implied authority to compromise the subject-
matter of a suit which be Is employed to con-
duct? How far does It reach? Does such
Implied authority extend so far as to enable
him to sell the 8ubJec^matter of the suit?
Yet In point of fact s compromise la noth-
ing more than a sale between the parties,
upon certain, terms. • • • There may
be cases in which questions of very consider-
able nicety may arise, as to whether a par-
ticular matter consented to is or is not
proiKrly one relating to the conduct and
management of the cause. If it be, then I
do not doubt that it Is within the scope of
the implied authority of the solicitor In the
conduct and management of the cause; but.
If It be not then 1 think that it Is not wltb-
In the scope of his authority." Swlnfen v.
Swlnfen, 24 Bevan, 549 (1857). On appeal,
the general question as to the power of
counsel to bind their clients by compromising
cases in litigation was not determined, but
it was held that "under the circnmstanceB
of this case^" the agreement was not one
which a court of equity vonld enforce.
Swlnfen T. Swlnfen. 2 De G. & J. 381 (U08).
After this Mrs. Swinfeil brougM an action
against her counsel, who had ttien become
Lord Chelmsford, to recover the costs and
expenses to whitib she had been subjected In
the llOgatlon arldng out of the compromise.
On the hearing in the Court of Exchequer,
the Barons presiding were all of tlie opinion
that, under the f&cts of the case, the defend-
ant was not liable; but they were not agreed
as to all the points Involved. Swlnfen
Chelmsford, 0 Hurt ft Nor. 880 a860). In so
far as the decision iuTolved a dllTerence be-
tween the authority of a barrister and that
of an attorney in tlie management of a cahse^
sach distinction la of little or no Importance
In this country. It will appear from the
history of the Swlnfen litigation that the
client was finally held not to be bound to
comply with the compromise which had been
made and agreed upon.by her counsel against
her instruction, and made a rule or order of
court; but, under the facts of the case,
counsel was held not to be liable for the costs
and expenses which bad accrued to the client
In the litigation arising oat of the com-
promise.
In 1S59 the case of Fray v. Voules, 1 B. &
B. 837, was decided. An attorney of the
name of Voules, against the directions of his
client compromised her case, and a con-
sent order was taken therein. She sued him
for damages; and It was held that: "An
attorney retained to conduct a cause, and
having express directions from the client not
to enter into a compromise, has no power,
under such retainer, to enter Into any com-
promise, even though It be reasonable and
bona fide and for the benefit of the client
and, if he do so, Is liable to an action for
damages, though the damage actually sus-
tained be nomlnaL"
These cases have been somewhat fuUy set
out because shortly thereafter our first Code
was framed and adopted, and they throw
light upon the existing state of the decisiooa
In England at that time. Three sections of
the original Code are relevant to the subject
under consideration. Section 382 has already
been quoted in full. Ijt ref«^ to the an-
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DAVIS T. rXBST KAT. BANK
198
tboxtty of attornera to bind tbelr clients In
anj action or proceeding, by any agreement
In relation to the cause made In writing, etc:
SecttoD 883 declared that: "Wlthont special
antborlty attorneys cannot receive anything
in discharge of a client's claim bat the full
amount in cash." Secticoi 885 referred to
reUevlng a party from the results of the con-
dnct of an attorn^ who assomed to repre-
sent each party wlthont authority.
Let ns now review the dedsioos of this
court bearing on the sabject of compromises
of lltigaUoQ by attorneys, and their power
to bind their clients thereto by consenting to
jadgments or decrees. It may be stated tbat
the Code and the dedElons generally fc^ow
the English rule, at. least in part; and that
the decisions hold that, if an attorney at law
consents to the talcing of a compromise de-
cree In a case in which he Is employed, it Is
binding upon his client. In the absence of
fraud or of violation of express directions
given by his client and known to the adverse
party or his attorney. But the writer has
found no decision of this court in which It
has been h^d Uiat if an attorney consented
to a compromise Judgmoit in direct violation
of his client's ln8tnictl<m, and t^le was
known to the adverse par^, the Judgment
could not be eet aside. Nor has he found any
decision of this conrt holding that a com-
promise of a litigation by an attorney would
bind his client, In the absence of authority
from the latter, except where a consent ver-
dict, Jndgment, or decree was taken.
In Lyon v. Williams, 42 Oa. 168. it was
held that a confession of Judgment by coun-
sel, without any special authorization to that
effect, was sufficient to bind his client
In Piston V. Byck, 60 Gb. 24S, it was held
that, without special authority, an attorney
conld bind his client by an agreement for the
dissolution of a garnishment and the d^alt-
Ing of the fund to await the event of the
suit. In tbe opinion of McOay, J., occurs
this significant statement: "It Is no answer
to say that Mr. Hardin [the attorney for the
complaining party] acted tanwisely, or even
corruptly, in making this agreement, unless
Byck [the other party] was a party to or
had knowledge of iiie cormptioD.'' - The In-
timation Is that, if the other party had been
affected with knowledge, it would have made
a difference.
In Glover Moore, 80 Oa. 189, it was held
tbat a married woman, who intrusted the
defense of a snit at law to counsel chosen
bf hraself, was bound by his acts to the
extent that any other suitor would be; and
that If her plea wwe withdrawn by - her
counsel on terms executed by the other side,
and Judgment were rendered against her
without any frand on the part of her ad-
versary or his counsel, such Judgment would
be binding on her. No question of the mak-
ing of a compromise by counsel against the
express direction of his client was InroWed.
78 8.B.— 18
In WlUiams t. Simmons, 78 Ga. 649, 7 S.
E. 133, it was again ruled that a decree ren-
dered by consent of counsel for a married
woman, without fraud, would bind her, as
It would bind other litigants. In the opin-
ion there are some ezpresslona to the ef-
fect tbat It was no answer to a solemn Judg-
ment of a court, rendered by consent of
counsel, for the client to come in and say
that the counsel misrepresented the client's
Interesto or wishes; and that. If the client
were Injured thereby, she would have an ac-
tion against the attorn^. But such ex-
pressions mvet be taken in connection with
tbe question under consideration. It ap-
pears distinctly that no gueetlon of any Urn-
Itatlon on the authority of the counsel who
agreed to the decree was involved, and no
Imowledge by tlie other party of any such
limitation, though there vras knowledge of
an absence of express authority, which, un-
der former rnlings, was unnecessary. This
appears from the 'Statement of what the
CDtirt canstmed the allegation of an amend-
ed answer under consideration to mean. It
was said (79 Ga. 658, 7 S. B. 136): "9fae does
not Intimate that he was not retained as
counsel for tiiese causes in lier behalf, or
that his powers were more limited than the
general powers which appertain to the posi-
tion of counsel. Moreover, she does not al-
lege any frand on the part of her counsel
or any collusion with him."
In Lewis T. Gunn, 63 Oa. S4% and Pei"
kerson v. Reams, 84 Ga. 298, 10 S. S. 624.
and otlier similar cases, no question of the
vlolatiou of an express direction not to com*
prom^e, known to the advene party or hlf
counsel, was involved.
The question of the power of an attorney
to bind bis client by a consent Judgment, Id
E^lto of a direction by tbe client not to
compromise, was before this court In Rogers
V. Brand, 133 Oa. 769, 66 S. E. 1095. The
Justices at that time constituting the court
were evenly divided in opinion; Ohi^ Jus-
tice Fish, Presiding Justice Evans, and the
writer being of the opinion that the client
In that case should not be held bound, but
the Judgment should be set aside, while Jus-
tices Beck, Atkinson, and Holden were of
the contrary opinion.- The Judgment accord-
ingly was affirmed by operation of law. In
Rogers v. Pettlgrew, 138 Ga. 628, 75 S. B.
631, the attorney for the plaintiff in the case
last dted, who had made the compromise,
sought to foreclose his. lien tor fees on cer-
tain land which was awarded to his. client
by the consent decree. It was held that an
attorney who compromises his client against
the latter*8 express direction is not entitled
to any compensation. In the opinion Pre-
siding Justice Evans cited Fray t. Youles
(sub nomiue Fray r. Vowles) 1 L. ft L., su-
pra, and said: "A Utis^nt has the right to
Insist tbat bis case be adjudicated accord-
ing to the established rules of lav and pro-
Digitized by Google
194
78 SOUTHEASTEBN REPORTER
(Ga.
cedare; When he Inatmcts his attorney not
to compromise his case, the attorney Is
bound by such Instructions, and is not at
liberty to violate them, even though the at-
torney honestly belierrai a ompromlse set-
tlement wonld be to the best Interest of his
client" This Judgment was concurred In
by all the Justices, except Atkinson, J. Be-
tween the dates of the two decisions, Hol-
den, J., had resigned and Hill, J., had been
appointed In his stead. It cannot be readily
understood how it can be held that a litigant
has a right to insist that his case be litigat-
ed and not compromised, and that, when he
Instructs his attorney not to compromise the
case, the latter Is bound by such Instruc-
tions, and is not at liberty to violate them;
and yet how It can at the same time be held
that, If this want of authority on the part
of the attorney Is known to the other party
or his attorney, such party can nevertheless
bind the client by obtaining the agreement
of an attorney without authority, who Is
known to be committing a breach of duty In
making such agreement A general agent
can ordinarily bind his principal, within the
scope of his agency, by an agreement with a
person Who is not aware of any limitation
on tils authority, but the principal has the
power to limit fals authority by instruc-
tions; and, if such limitation is known to
the person contracting with the agent, there
is no rule of law which will hold the prin-
cipal bound by snch wrongful contract If a
compromise so made by an attorney has tak-
en the form of a consent Judgment or de-
cree, this can be set aside on proper pro-
ceedings duly instituted by the client
Section 4955 of the Civil Code does not
mean that, when a client employs an attor-
ney to bring or defend a suit, It ceases to
be the client's litigation; that he has no
power to say whether he will litigate or
compromise bis snlt; and that the attorney
becomes the owner or absolute master of the
litigation, so as to be able to sell or give
away his client's property rights by con-
tract, in spite of his client This Is a very
different thing from the management of the
litigation and agreements connected there-
with, such as agreeing to a reference of the
case to an auditor or a submission of it to
arbitration, to allow copies of papers to be
used In evidence, to waive notice, and the
like. Neither does the statutory Uen which
an attorney has upon a suit which ordinari-
ly prevents his client from settling or dis-
missing the case so as to defeat him of his
fee, have the efCect to entirely oast the client
from the case.
It was contended that fraud, in order to
set aside a Jud^eot, must be txauA on the
part of the adverse party or bis attorney;
and expressions of this sort have been used
In some of the decisions. But they were
cases where the magistrate forgot to notify
a Ut^puit ot a time when a case would be
h^rd, as be had agreed to do, or where the
fraud alleged was that of some third party.
In none of them was a violation of duty
by an attorney, with knowledge of the Ad-
verse party, involved. If one knowingly ob-
tains from an attorney at law or agent, by
agreement, a surrender of the property rights
claimed by his client or principal. In spite
of instructions to the contrary, what name
shall be given to the conduct of the party
Inducing the agent or attorney to violate
his duty? In Holker v. Parker, 7 Cranch,
436. 3 L. Ed. 396, the ruling actually made
was that an attorney at law, merely as such,
has no right, strictly speaking, to make a
compromise for his client In the opinion
Chief Justice Marshall makes this pointed
statement: "Though It may assume tlie
form of an award or of a Judgment at law,
the Injured party. If bis own condnct has
been perfectly blameless, ought to be re-
lieved against it This opinion is the more
reasonable because it is scarcely possible
that In such a case the opposite party can
be ignorant of the unfair advantage be Is
gaining. His conduct can seldom f^ to be
tainted with some disingenuous practice; or.
If it has not, he knows that he is acceptins
a surrender of the rights of another from
a man who is not authorized to make it"
If an attorney, under his general implied
powers, has authority to compromise a case
with one who is not aware of any egress
limitation on such authority, still this lan-
guage Is applicable if the adverse party
knows of the violation of instructions by
the attorney in making the compromise.
[2] In the case before us It appears that
a suit was brought by a married woman for
the purpose of setting aside a deed and hav-
ing the property described decreed to belong
to the plalntlft, and also to have an account-
ing, to recover against the grantee, a nation-
al bank, doable the amount of certain usuri-
ous Interest alleged to have been paid, un-
der section 5198 of the Revised Statutes ot
the United States (U. S. Comp. St 1901, p.
3493), and for other equitable relief. By
amendm^t the action was shaped so as to
be one to recover such double interest only.
It was held by this court tiiat a demonw to
the petition as amended was properly over-
rule'd. First National Bank of Blakely v.
Davis, 135 Oa. 687, 70 S. E. 246, 86 U B. A.
(N. S.) 134. When the case was xrtnmed to
the snperlor court a compromise was agreed
upon by counsel for both sides. The amend-
ments which had been made to the petition
were withdrawn, so that the petition stood
as originally filed. A consent decree was
agreed upon by counsel for both parties and
signed by the court The plaintiff In the
former action then brought the present equi-
table petition and alleged that her attorneys
at law, who conducted the former suit, with-
out her knowledge or consent, and in viola-
tion of her special instructions, settled the
case by a consent decree whldi was entered ;
that ber attome^B were exmeesly Instractsd
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DAVIS v. FIRST NAT. BAKK
195
that they might consent to a settlement and
decree whereby the plaintiff would bind her-
self to pay the bank the stim of $6,000 In
full settlement of all its demands against
h^; that this was known to the bank, bnt
throQgb Its attorneys, and in collnsl(m with
the plaintiff's attorneys, it deliberately per-
petrated a fraud upon the plaintiff by con-
senting to a decree which contained a Judg-
ment for $1S,000. against her in favor of the
bank ; and that she was informed by her at-
torneys tliat the consent decree had been
taken in accordance with her Instructions.
By one of the amendments it was alleged
that instructions of the character above stat-
ed were communicated to one of her attor-
neys, named, through her husband, on the
morning of the day on which the consent
decree was entered ; that snch attorney com-
municated them to another of her attorneys
who was present; that a third attorney of
hers was not present and took no part lu the
management of the case ; that she spedflcal-
ly instructed her attorneys that she would
not consent to a compromise or settlement
of the case except on such terms, "and ber
said attorneys agreed that they would settle
!n no other way"; and that, through her
husband, she had on several occasions Just
prior to the term of court fully apprised the
leading counsel for the bank of the terms on
which she would be willing to settle; but
that such attorney ^udulently persuaded
her counsel to disregard her instructions,
and induced them to consent to a decree
which was rendered, whereby she was re-
quired to pay fl6,000 to the bank Instead of
$5,000. A copy of the decree was attached-
It declared that the debt was that of the
plaintiff, and not of her husband, and that
the title to the land was in the bank. It
fixed the amount of the indebtedness at $15,-
000, which was not to be enforced against
her personally, but against the land, and
provided. In regard to a restoration of title
to the plaintiff upon payment of that amount
In partial payments of $6,000 each, the pass-
ing of a certain part of tlie property to ber
upon payment of the first installment, for al-
lowing her to sell parts of the property at
prices satisfactory to the bank, and credit
the price on the debt for making sale in case
of nonpayment of deferred payments, etc.
On demurrer, the allegations of the plaln-
tUTs petition on this subject must be treat-
ed as true. Of course we do not mean to ex-
press any opinion as to whether they can
be sustained by evidence, or are in fact true,
but we are dealing with the case on demur-
rer ; and, in so far as the eqidtable i>etitlon
sought to set aside the consent decree and
to reinstate the parties in the situation
which they occupied at the time of its ren-
dition, it was not demarrable. The fact that
the deAmdant had certain other attorneys
than the leading attorney, who was charged
with knowledge of the instructlona gLrcn by
the plalntifr to her counsel, would not affect
the ruling above made.
It was contended that the plaintiff should
be held to be boimd by the agreement of her
attorneys, and that she should be remitted
to a suit against them for damages, if she
were Injured by their conduct. We have
seen that the decisions have not held that the
client was compelled to elect such a remedy,
if there was a violation of instructions as
to compromising, which was known to the
adverse part?. Unfortunately the members
of the bar are not always opulent and are
sometimes even insolvent Daniel Webster
is said to liave tersely described the career
of a lawyer by the words "work hard, live
well, and die poor." I«adlng and honored
members of the profession not Infrequently
accumulate more learning than lucre. If
it should be laid down as an absolute rule
that a lawyer could in all cases bind his cli-
ent by a compromise put Into the form of a
consent decree or Judgment, regardless of
instructions to the .contrary, and r^rdless
of knowledge thereof on the part of the ad-
verse party, It will readily be seen that oc-
casions might arise where a client's entire
property involved in litigation might be
agreed away. In spite of his protest, and he
might be remitted to a salt by which noth-
ing could be realized.
It was argued that the plaintiff had in
the former case elected the remedy of suing
the bank for double the usurious interest
claimed to have been paid to it, and that she
was bound by that election. But when the
amendments to the former petition were
withdrawn, and it was restored to its orig-
inal condition, the election would seem to
have been abrogated. Nor are we prepared
to hold summarily, on demurrer in this case,
whether or not the consent decree gave to
the plaintiff all, or more than all, that she
could have recovered under the former suit,
with Its numerous allegations and prayers.
If the consent decree, should be set aside,
neither party should be cut off merely by
reason of such decree from prosecntliv €x
defending the litigation.
[3] 3. The present petition contains a good
many allegations rather loosely and vaguely
pleaded; somd of them asserting that the
deed which the plaintiff made to the bank
was void tor usury, others that she made
the deed In payment of a debt infected with
usury, in which case It would not be void.
Harris v. Hull, 70 Ga. 831 (3). Other allega-
tions indicated that the debt which the deed
was made to pay was tliat of the plaintiff's
husband, but still others were inconsistent
with that theory. One paragraph of an
amendment asserts that "she has made suf-
ficient payments to the First National Bank
of Blakely to entirely Uqnidate her own debt
to said bank, and the deed to her land now
held by said bank is a conveyance of her
propo^ to pay bar busband'a debts; and
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78 S0UTH£1ASTERN REPORTER
(Ga.
^erefore said oonTeyances are null and
void." It was then alleged that the hank
was not an Innocent purchaser, "but took
Buch deeds to her land with full knowledge
of the fact that they were made to pay her
hasband's debts." This again is Inconsist-
ent with other allegations of the petition,
end some of those contained In the former
petition, which was attached thereto, as an
exhibit. Besides, it Is uncertain as to when
Oie payments were made; and this was at-
tacked by demnrrer.
If the decree stands of ft>rce, none of the
relief sought can be bad. If it should be
set aside, the original suit endeavored to in-
clude the substantia] grounds of complaint
sought to be set up in the present case, ex-
cept certain allegations In regard to pay-
ments ut>on the decree and in regard to
rents, issues, and profits. In view of this
fact, and of the character of the allegations
of the plalntifTs petition, and of the fact
that nearly all of them were attacked by
special demurrers, we think that the proper
disposition to make of the case is to direct
that all the allegations and prayers be
stricken from the petition, except those In
reference to the bringing of the former ac-
tion, Its termination in the consent decree,
and the attack made upon such decree ; that
such striking shall not be an adjudication
that the plaintiff has no cause of action or
right of recovery In respect to these mat-
ters; but that the present case stands as
one to set aside the consent decree, and re-
instate the former case as it was before such
decree was rendered; and we direct that
this be done accordingly.
Judgment reversed^ with direction. All
the JuBtlceB ooncnr.
ATKINSON, J. I concur In the Judgment,
under the allegations made in the petition
as amended, but not In all of the reasoning
by whl(^ the result Is reached*
CU OtL. App. 66S)
TAYLOR T. AMERICAN NAT. BANK.
(No. 4,656.)
(Court of Appeals of Georgia. May 6^ IdlS.)
(SyUcbiu by the Oomt.)
1. Bills and Nona (S 843*)— Boha Fids
HOLDSB— Defenses.
Knowledge by the purchaser of a negotia-
ble iDBtrument that it was eiven for capital
stock in an Insolvent corporation, and that un-
der a plan of reorganisaaon of the corporation
common stock was given as a bonus to sub-
Bcribers of preferred stock, will not defeat the
collection of the note, if it was otherwise ac-
quired in good f^th and for value before matu-
rity.
IBH. Note.— For other cases, see Bills and
Notes, Cent Dig. » 853-865. 864, 865; Dec
DigTl 843.*]
2. RiTiEW OR Appeal.
All other material (juestions in the case
are controlled 'adversely to the plaintiff in er-
ror by the decisions of this court In Stubbs
Fourth National Bank, 12 Qa. App. — ^ 77 8.
E. 88^ and Brooks t. FUqrd. 12 Ga. App. — h
77 sTb. 877.
Error from City Court of Macon; Robt
Hodges, Judge.
Action by the American National Bank
against Dden Taylor, Jr. Judgment for plain-
tiff, and defendant bilngs «ma. Affirmed.
W. D. McNeil, of Macoui for plaintiff In
error. Hardeman, Jonee, Park & Johnston,
of Maoon, for defendant In error.
POTTLS^ X Judgment affirmed.
(11 Oa, App. 687)
SELLERS T. STATXL (No. 4,788.)
(Court of Appeals of Cfeorgla. Uay 8. 1918.)
(apllabiu Iv OourU)
1. Cbiuinal Law (8 400*)— Secondabt En-
DENCB— A DHIBSIBILrrY.
On tiM trial of a criminal case, where ths
existence and eontents of a writing are material,
and the writing Is shown to be In the possession
of the accused, parol evidence of the contents
of the wntlDg la admissible on ths theory that
the writing is inaccenible^ because the accvaed
cannot be compelled to give testimony against
himself by being required by the court to pro-
duce the writing in question. Kinsey r. State,
12 Ga. App. — .77 S. D. 30&; Fanner t. SUte^
100 Ga. 41, 23 a. D. 2&
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig: H 979-^ 1^08-1210; Dee.
Dig. J 400.*]
2. Cbiuiital Law (» 762, 798H*}— IkstbUO-
TioN— Evidence— Verdict.
An indictment contained two counts. The
first charged the accused with forgery, the 8pe>
cific act of forgery being that the accused wrote
on the back of the check the name of the payee
(the check beii^ made payable to the said payee
or bis order) ; and the second count charged
that, after bo forging the name of the payee
on ^e back of the check as an indorsement, the
accused then and there uttered and published
the check as true, with the forgM name of the
payee thereon, on the bank, with the fraadnlent
intent charged in the indictment The undis-
puted evidence for the state was given by the
teller of the bank, to whom the check was
presented, both as to the actual act of forgery
and the act of uttering and ^bllsbing the forged
instrument as true. The trial judge, pertinently
to this question, charged the jury to the effect
that the evidence did not separate the two
counts, and if the jury found the accused guilty
of one count they would necessarily find him
guilty of the other, and that if they fouiid the
accused guilty, under the rules of law which
had been given them in charge, the form of the
verdict woold be, "We, the jury, find the defend*
ant guilty." Held, that this instruction was
not an expression of opinion on the evidence, or
the weight of the evidence ; nor was it errone-
ous as to the form of the verdict, beeanae the
evidence demanded a finding that the accused
was guilty on both counts of the indictment
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. « 1731, 1750, 1754, 1758,
1759, 1760; Dec. Dig. {§ 762, 798%.*]
3. Cbiminal Law (8 1165*)— Habmless
BOB— I NaTBUGTTONs— Evidence.
Any error in . the charge, or failure to
charge, or in the admission of evidence, was
immaterial. In view of the fact that the ac-
cused introduced no evidence, and made no state-
•For oUmt aasss sea uuna tiQle sad seotloa NUICBBR In Dee. Dig. 4 Am. Dig. K«y-Kob Bmm-i^^^Jftnm
Digitized by VjOOQIC
Oa.) BOUTBEBN EXPBESS
ment to die jury, the erldaicc for ttw state folly
demanded hia coBvIction on both counts of tlie
indictmeot.
[Ed. Note.— For other cases, see Criminal
Law. Cent Dig. SiS06S. 806Mw8> 8069; Dec.
Dig. 1 116B.*]
Error from Snperior Court; AppUng Gonn-
C. B. Conyers, Judge
Hilton Sellers was convleted of forgery,
and he brings error. Affirmed.
W. W. Bennett, of Bazley, for plaintiff in
error. J. H. Thomas, SoL GoUt of Jeaop, for
the State.
HTTJi^ C J. Judgment affirmed.
(IS Qa. App. «7) •
SOUTBEBN SXPBESS CO. v. FANT
FISH CO. (No. 4,015.)
(Oonrt of Apptals of Oeoigin. Fch. 4, 1018.
BehMudng Denied March 1, 1S180
(Syllahua by the Court.) .
1. GUBISRS (H 72, 188*)— CONBIONEB— PBI-
SUKFTION OF OWBKHSHIP — SHIPPIKO IH-
BTBUcnoHB— ICinO SeBVICI— OMIS8I0K.
(a) Tbt consignee of goods delivered to ■
earner for transportation may be prcaamcd to
be tiM owner of the goods, and, in the absence
of either actual or constructive notice that he
is not the owner, the carrier la authorized to
follow the coQidgnee's ahiiving inatructioni.
(b) A carrier instructed by the ostensible
owner of the stiipinent to omit a tervlce or the
performance of a duty usaally incident to the
contract of carriage cannot demand of him com-
peBsatlon for- the performance of the service or
duty, unless it be a service or duty required by
law. One cannot collect for aervlces rendered
to another orer the letter's protest, unless, in
ttic performance of a pnbtto antj^ the service Is
of such a nature that its omiMon might afEeet
the rights of others, or of tiie public, and It fs
therefore required by law.
[Ed. Note.— For other caees, see Carriers,
Cent Dig. H 243-260, 258-261, 266-260, 8&S-
8&S; Dea Dig. If 72, 188.*]
2: Oakbimrs (H 108, 122, 188*)— TaAHSPOBTA*
XZOH — FBBIBHABU FBBieHT — RB-IOXNa —
NicBssiTT— Dei^t---Ohabqx Aoaxnst Owir-
EB— Decat op Goods— Debtbuction.
(a) The fact that, in the transportatltHi of
goods likely to be damaged by a delay for which
the owner of the goods u in no wise responsible,
a service for which a carrier Is ordinarily per-
mitted to charge compenaation as the Only
means of preserving the shipment, affords no
reason for impoaiog liability for the jwyment
of the usual cliarge for service upon the con*
signee or the owner of the goo^
(b) Where a consignee directs the omission
or nonperfonnaoee of a service which may be
essential for the proper transportation and pree-
erva.tion of a shipment perishable In its nature,
he assumes all the risk of damage consequent
upon the omission, which is traceable to it. In
each a case the consignee's direction protects
the carrier from any liability, wtiich might have
ensued from the omission of this service or duty
but for the direction of the consignee.
<c) If. in the transportation of shipments of
ft perishable nature, Uie directions of the ship-
per or ccKtsignee (the owner) result in such de-
terioration or decay as to render further trans-
portation impracticable or unsafe, the direction
of tb» owner will terminate the oontract of
00. T. PANT FISH 00. MT
carriage, and the carrier may, without liability,
discharge or destroy the shipment
[Ed. Note.— For other cases, see Carriers,
Cent Dig. || 471-495, 520-522, 537, 638, 667-
660, 853-858; Dec. Dig. |i 108, 122, 188.*]
(jldditional Byllabuif hy Editorial Staf.)
3. Caxbikes <| 62*) Deuvxrt to Coir-
8IONEB8— DUTT OF CaBBIBBS.
A consignee in possession of a bill of lad-
ing is entitled to have the goods delivered to
him on payment of the charges specified in the
biil of lading, unless the carrier knows, or has
reason to believe, that the consignee Is not the
real owner of the slilpment
[Ed. Note.— For other cases, see Carriers,
Cent Dig. SS 200-816; Dec Dig. | 82.*]
4. Oabbiebs (I 01*)— DuTx to Dblztkb-Coh-
VERSION.
When a conslgBee having the bill of lading
pays or tenders the charges entered theieon, ho
Is entitled to possession of the goods, and a re-
fusal to deliver conatitutes conversion.
[Ed. Note.— For other cases, see Carriers,
Cent Dig. || 338-355; Dec. Dig. $ 01.*]
6. Cabbiers (i 107*)— Fbbioht— Additional
COABOBS— RE-ICIHQ SHIPUlIfT— DBLIVKBT.
A carrier has no lien on the shipment nor
can it withhold delivery for nonpayment of
extra charges for re-icinz, designated on a sec-
ond waybill; its remedy being limited to a
right of action against the consignee.
[Eld. Note.— For other cases, see Carriera,
Cent Dig. f S 801-000 ; Dec. Dig. | 107.*]
Brror from City Court of SaTannah; Da-
vis Freeman, Judge.
Action by -the Fant Fish Company against
the Southern Express Company. Judgment
for plalntut, and defaidant brings error.
Affirmed.
In August, 1010, the Fant Fl^h Company
of SaTannah, Ga,, wrote the following let-
ter to the agent of the Southern Express
Company in that place: "We deaire to pot
you on notice that we do not want any more of
tlie flah coming to ua from Florida points re-
iced while In transit If any are delayed,
it is not our fault, and your company will
have to use their Judgment In disposing of
them. We should have no cause to pay roT
icing charges on fish that come to us by ex-
press from Florida, when they make the
schedule time." Thereafter the Fant Fidi
Company ordered from a Mr. Montgomery,
of Oak Hill, Fla., 400 pounds of trout and
600 pounds of bottom fish, of the aggregate
value of |75, and Montgomery dtilrered this
shipment to the Southern Express Company
at Oak Hill, Fla., on the afternoon of April
1, lOlL The shipment had not at that time
been paid for by the purchasers, but the
Fant Fish Company, at Savannah was- dealg-
nated in the bill of lading as the consignee.
In the ordinary operation of the railroad
trains, these fish would have left Oak Hill
about 2 o'clock In the morninc of April 2d.
and would have teach ed Savannah on the
afternoon of the same day. Due to a con-
gestion on the line of the Florida EastXioast
Ballway, the shipment did not leave Oak
*For ot&er cases see same topic and section NUMBER In Dec Dig. A Am. Dig. Ker-No. Series A
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78 SOUTHIQASTBBN BBPOBTBB
Hill imta 2 o'do^ In, the afternooo April
20, and aniTed at JackwmTllle at 1:30
o'clock In tbe mornlns of Apzil 3d. The flah
left JacAsonrllle on the next train, about 8
vx 9 o'clock a. m. of April Sd, and were de-
Urered to tiie Faut Fish Company In Sa-
TBnnah, vlth tranaportatlott and Idng cbarg-
ea collectible, at S o'clock p. m. of April 3d.
Tbe shipment was thus delayed something
over 21 hours. The. flab company claimed
tikat three barrels of' the flSh had not been
re-Iced,- bnt tiiere Is erldenee In behalf of
the express company that the entire ship-
ment was re-iced at JackamiTllle; and, In-
asmn^ as the verdict In favor at the plain-
tiff was directed, it must be conceded that
tiie mtire shipment was in fact re-iced. The
flsh company toidered the express company
the transportation charges on the flsh and
Idng charges on those barrels which they
thought had been re-loed, but dedlaed to
I»ay the idng charges on the three barrels
which they contended had not been re-Iced.
The express company declined to deliver the
flsh without the payment of all diarges, and
the flsh company brought suit In trover. On
the trial of the case, the court directed a ver-
dict In favor of the plalntlfl. The express
company moved for a new trial, which was
reused.
Lawton ft Gnnnlngham and A R. Lawton,
Jr., all of Savannah, and Bobt, G. ft Philip
H. Alston, of Atlanta, for plalntUf In error.
Osborne ft lAwrence and E. H. Abrahams,
all of Savannah, for defendant in wror.
RUSSELL, J. (after staUng the forego-
ing facts). It appears from the briefs that
the court directed a verdict In favor of
the plalntlft upon the ground that the idng
charges were shown upon separate waybills,
and were not shown upon the waybill which
bore the transportation charges, and that,
according to the tariff under which this ship-
ment moved, the re-ldng charges should have
been shown upon the original waybill. There
is nothing In the record to indicate that the
order directing the verdict was placed upon
this ground, bnt we could not set aside his
judgment, even If it was based solely upon
that reason. The rule Is well settled that
the Inquiry of a reviewing court Is directed
to the question as to whether the Judgment
rendered Is right; and. If it be rii^t. It will
be sustained, althoi^ the trial court may
have assigned the wrong reason for its ren-
dition. Everett v. Southern EtqireSB Ca* M
Oa. 803 (8), 306. For this reason we pass,
for the present, from a consideration of the
validity of this reason for the Judgment, and
address onrsdves first to an examination of
features of the case which we deem more
important
[1] It is undisputed that the Southern Ex-
press 0(»npany was notified by the Fant Flsh
Company not to re-ice shlpmaite of flsh be-
ing transported to from Florida; Hiat the
fish In question were transported by the ex-
press company from Florida to the Fant FMi
Company as consignee; that they were re-
Iced ; that the delay of more than 24 hours
in the shipment was not due to any fault of
the consignee; that the diarges for the re-
ldng, whldi were donanded by the expteea
company, are those filed with and approved
by the Interstate Commerce Commission;
that re-ldng would not have been necessary
for the preservatl(Hi and proper transporta-
tion of the flsh, if the ddivery had been tS-
fected in the usual period of time required
for a shipment by express from the initial
pointy and that, upon the failure of the con-
signee to pay the idng charges, delivery was
refused. No point is made upon ibe fact
that the plaintiff waived Its notice to the
express company as to two barrels of the
flsh offering to pay the idng charges npon
that much of the sbipmorit; and so, to our
mind. It appears that the case is one fbr the
application of the elementary prindplb that
no one Is required to pay for something which
he does not want, and which he has protested
against having supplied to him. No one is
required to be benefited If he does not wish
to be, and certainly no one Is required to
acc^t and pay fOr something whldi anoth-
er assumes will be beneficial to him, wh^
he does not uitartaln the opinion that It
will be benefldak A. cannot perform a
service for B. over B.'s protest and then
compel B. to pay for it Measured by this
rule, and considering the case apart from
the distinctive rules applicable to common
carriers, the question presented by this rec-
ord would appear to be one of easy solution.
It Is Insisted, however, by counsel for the
plaintiff In error that It is the duty of the
carrier to safely deliver each and every ship-
ment which It recdves for transportation,
and that, when It Is necessary for the preser-
vation of a perishable shipment that It be
re-Iced, It must charge for the service the
rate filed with the Interstate Commerce Com-
mission and posted In accordance with the
rulw of that trlbunaL Counsel for the plain-
tiff in error therefore Inslste that the dlrec*
tlon of the consignee not to re-Ice a shipment
so well known to be perishable as fresh flsh
must be disregarded In any case, and especial-
ly in a case where the direction to omit idng
is given by a consignee whom the express
company does not know to be the true owner
of the shipment. The plalntlfT in error fur-
ther InslBts that not only Is the tariff allowed
by the Interstate Commerce Commission, and
the charge for idng, in the nature of a regu-
lation which is reasonable, and therefore can
be imposed by the shlp[>er, bnt that to per-
mit one shipper to direct that his flsh be
shipped without idng from a particular sec-
tion, in avoidance of Ite general rule, would
tend to throw Its business as a carrier Into
hopeless oonfodon and to Involve It In Inter-
minable dlfflcultlea. I
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80UTHSBN EXPRESS
'oa ▼. FANT 7ISH 00.
199
Two Incontestable legal prindplee are In-
volTed in the consideration ot the case, to
which TOluminoiis reference is made In the
briefs. In onr oploion. neither of these prop-
ositloiis can be gnestloned, and we under-
stand their ralldi^ to be conceded by the de-
fendant in error: First, that the Interstate
Commerce Commission has the exclnslTe pow-
er of fixing all rates and regulations as to
Intestate shipments; and, second, tliat the
rates as filed and approved by the Interstate
Oommerce Commisslou most In every case be
collected by the carrier. Georgia Railroad t.
Greety, 6 Ga. App. 421, 63 S. EL S28; Texas
& Pacific Ry. T. Abilene Cotton Oil Co., 204
n. S. 426, 427, 27 Sup. Ot 350, CI L. Ed. 553,
8 Ann. Gas. lOTO ; Interstate Oommerce Com-
mission T. C, N. O. & T. P. Ry. Co., 167 V.
S. 479, 17 Sup. OL 896, 42 Ll Ed. 243. And
80 far as the propriety of a rate fixed by the
Intrastate Commerce Commission, for a serv-
ice for whlcb a shipper has contracted or
which he has Toluntarlly accepted, is con-
cerned, this court would be without jurisdic-
tion to consider any such phase of the case
if it were involTed; for, in the case of Balti-
more A Ohio Railroad Oo. v. Pltcalni Coal
Ca. 216 U. S. 481, 30 Sup. Ct 164, 54 L. Ed.
292, the Siupreme Cbnrt of the United States
held that "regulations which are primarily
within the competency of the Interstate Com-
merce Commission are not subject to Jndlcial
supervision or enforcement until that body
has been afforded an opportunity to ecert its
administrative functions."
After a careful review of the record in
this case, it seems to ns that the only eub-
stantial issue between the parties la as to
the application of well-settled legal princi-
ples to the particular fbcts ot the case, and
the determination of the qnesti<m as to wheth-
er the carrier had the antliari^ to charge
tor a service which It must be conceded it
was not anthorlKed by the owner of the ship-
mmt to perftnm— nay mor^ a sorice which
Uie comdgnee had expressly requested it not
to perform. It is settled that the true owner
may give directions for the ^pment of his
goods delivered to a carrier for transporta-
tion. Bedfleld on Carriers (1st Ed.) | 34; 1
Hutchinson on Carriers, I 1; 6 Am. ft Eng.
Bncyc. lAw, 364, 365; V. B. Express Go. v.
Konnts Bros., 8 Wall. 342, 19 L. Ed. 467 ; Sa-
ger V. Portsmouth B. R, 81 He. 228, 60 Am.
Dec. 658; Southern Ry. Oo. r. I. Bf. Fnnk ft
5 Ga. App. 574, 63 & Bi 6B6. It 1> Uke-
wiae settied that In the abaoioe of knowledge,
either actual or ctmsbnctiTfl, to the contrary,
the consignee may be presumed to be the
owner of the goods which have been accepted
fbr dilpment. Hntcbtauon «i Ohrrioa, H 060
et seq., 1804; Oentral of Georgia Ry. Ca v.
Winingham, 8 Qa. App. 818, 70 8. D. 198.
We eonidnde, thraefore, that bq<A a cost-
algnee may direct the manner of the trans-
portation of a ehlmnent addressed to hlu,
and 0w carrier, In ftOlowlng the direc-
tions of such a consignee, will not subject It*
self to any Uhblhty which may result from
the consignee's directions (Western ft A^
lantic R. Oe. v. ExpoEltion Mills, 81 Ga.
524 [3b], 530, 7 S. B. 916, 2 L. R. A. 102) un-
less the directions Involve the omission or
nonperformance of some service or duty the
performance of which Is by law made essen-
tial In its transportation. This being true, does
any rule of the Interstate Commerce Com-
mission require the express company to ice
In transit fish delivered to it Cor shipment,
in disregard of the Instruction of the owner,
or of a consignee, under conditions whldi
authorize the presumption that he la the own-
er? It is well settied, of course, that the
main purpose of the statute which forbids the
charging of a rate different from that ap-
proved by the Interstate Oommerce Oommis-
slon, and likewise forbids a failure to collect
the charges in full, Is to prevent discrimina-
tion, and upon this principle counsel for the
plaintiff in error grounds his argument that
the fish company Is liable for the charges fbr
idng, althons^ this service may have beoi
done in disregard of Ite notice and over Its
protest Whether the consignee would be
liable for the icing, even when the idng was
in disregard of Its orders and in positive dis-
obedience of its instmcttons, would depend
upon two things: (1) Was the idng neces-
sary for the preservation of the fish and their
safe transportation, in the usual course of
such shipments and within the purview of
the contract of carriage, as contemplated by
the parties? (2) If the shipment was de-
layed and the delay not occasioned by any
fault of the consignee, and the carrier, being
liable for the deterioration or decay of the
fish, thought it necessary, and If it was neces-
sary, to ice the fish in order to preserve them,
and the idng was dae to this extraordinary
clrcomstance alone, would the carrier still be
required by the rule of the Interstate Com-
merce Commission to charge for the idng,
because, by a colnddenc^ It happened that
the beet means of preservii^ the fish from
the damage incident to the carrier's own de-
lay was the application of a service for
which the carrier was required to coUect pay
in a case in which idng waa requested or
permitted by the consignee or ownor of the
coods?
[2] As to the first qnestl<m : The evfdeaice
Is ondlapnted that ordinarily no re-ldng la
necessary to preserve fish shipped from Oak
HIU, Fla., to Savannah, Ga., and it conld not
have been within the contemiilation of Uw
consignee, because the consignee had express-
ly notified the expresa company not to re-ice
anytfldi onnlng to On consignee ftom riorlda.
We come thai to tlie second matter ot In-
quiry. It is well aetUed, of course, that tlie
eon^gnor must soe for any breadi ta the
contract of shipment, but the axtsignee lias
the right of action for any damages accru-
ing during the tranaportatioUf and^the con-i
Digitized by VjOOglC
200
78 SODTHSASTBSN 9BF0BTBB
(Ga.
Blgnee^ tt Qm eanler followed tala dUecUons
and tbe ahlpment was damaged in oon-
seanence of tbese dlrecttoos, would assume
tbe eoUre Tiak, and would himself have to
stand Uie damages. It la also well settled
that for damage resulting from any de-
lay In traiwportatlon occasloDed by the act
of God or of the pabUc enemies, or where the
fault ot the consignor or of the owner has
occasioned or coutrttmted to the delay, or
the delay Is the reanlt of misfortone or ac-
cident, the consignee is not entitled to re-
coyer damages resulting from the fact that
the period of transportation was so lengthoiT
ed aa ttiat perishable shipments deteriorated
in Talne or became valneless. But It Is
eonally w^ settled that when the delay In
transportation results from some congestloa
of traffic (and this was ttie cause of the de-
lay in the present case), and the shipment la
damaged or deteriorates In valoe by reason
•t delay, not occasioned by any act of the
shipper as the other party to the contract, the
owner of the goods may recover. If, there-
for^ In the proBMtt case, the express compa-
ny, having be€9i notified by the consignee not
to re-Ice the fish shipped to It from points In
FlOTida (and the distance being such that It
was not necessary to the safe transportation
of the flsh In the usual course that they
should be re-Iced), was compelled to lee them
in order to escape a liabiUty for damage to
which a delay In transportation not excused
by law might subject 1^ and not because the
rule of the Interstate Oommerce Commission
required that all fish should be Iced, then the
consignee should not be liable for the ex-
pense of the Idng, nor for any charge de-
poident upon the Idng.
It may happen that some service which Is
enumerated In the tariffs filed with the In-
tmtate Commerce Commission may In a giv-
en case, where the carrier's own preservation
from liability demands action on his part, be
the only preventative from lose, but It can-
not be said In such a case that the use of
that preventative Is a necessary part of the
ordinary transportation of that artide; and
certainly it cannot be held that there was
involved In the contract, etthcir express or
Implied, anything which devolved upon that
carrier the duty of collecting the usual charge
for sndi a service when It was properly an
Inddent of the transportation. The collection
of the charge In the latter case is necessary
to prevent dlscrlminatiwi in favor of one
shipper or consignee and against another
of either class. The use of a means of pre-
venting damage, applicable alike In every
case, except as to amount, where the carrier
Itself Is exposed to liability. Is not ess«itial
In connection with the subject of transporta-
tion. The Interstate Commerce Commission
under the provisions of the Interstate Com-
merce Act (Act Feb. 4, 1887, c 104. 24 Stat
879 [U. 8. Oomp. St 1901. p. 3164]) es amend-
ed June la; 1910 (Act Jone IS, 1910^ c. 800, 86
Stat S44 CU. Sw Gomp. 8t SnppL lail, p. 1288]),
fixes Oie rate at wbkii SBrrlces of ratlous
kinds shall be performed by carriecs of va-
rious fclnde, but the exercise of this pow«r to
^vmnlgate tariffs for servlcea actually po^
fwmed In transportaUtm does not deprlTe the
pasB^igw, nor tike owner of goods ddlvered
for transportation, of the right to contract toe
sndi services as either, as the case may be,
may deem necessary for the safe transporta-
tion €it his iHoper^ or of his pfflson, or cmn-
pel him to pay for sOTvlces which he may not
think necessary, and which may In fact ha
unnecessary to his own comfort or safety, U
a passenger, or to the safety and dispatch
of his goods. If he be the owner. The In-
terstate Commerce Commission has full au-
thority to promulgate rates and rules regu-
lating and fixing the charges of ide^ing car
companies, and, where one beoomee a pa»
senger upon a ale^^g car, he subjects him-
self to the relations, and the sleeping car
company must collect, and the passenger
must pay, the fixed rates— no more and no
less. The same Is true as to the rates and
regulations BE^Ucable to the passenger upon
a railroad company's train, but It does not
follow that it is witbin the power of the
railroad company to compel a passenger to
occupy a slewing car, and to pay the rate
which the Commission allows to be charged
for the sleeping car service, when the passen-
ger does not wish to avail himself of it Like-
wise a carrier might be authorized, by the
approval of the Interstate Commerce Com-
mission, to ■ fix and charge a rate for Idng,
but it would not be a matter wholly within
the discretion of the carrier as to whether
a shipment should be iced. If this were
true, the carrier oilght elect to ice shipments
which would be damaged, rather than bene-
fited, by the op^tion. Tbe owner has the
right to direct the manner and the route in
which his goods shall be shipped, and, as
ruled above^ in the absence of anything ap-
pearing to the contrary, the carrier may
assume that the consignee Is tbe owner of
the goods d^vered to It by the consignolr
for Bhimoflnt to the conaigneek without rea-
ervatlon.
The evidence demanded the finding for the
plaintiff irrespective of the reason upon
which the trial Judge is alleged to have bas-
ed his Judgment and we have dealt first with
this phase of the question. But the fact that
the idng charges did not appear upon the
original waybill, in accordance with the tariff
which was introduced in evidence, would it-
self have constituted a sufficient reason for
directing a verdict for the plalntUC. It is
argued by counsel for the plaintiff In error
that the Icing charges were necessarily pat
upon a separate waybill, because, at the time
the original bill of lading was issued and de-
livered, the service had not bees performed,
and therefore the chargea tor theteiog could
not be uttered npon tbe orlgbuil.«ayt^. W*
Digitized by VjOOglC
BOTHSCHUJD V. 6^ATB
201
do not BBsent to the aasei Uon that the charg-
es conld not have been eittered upon the orig-
inal waybiil^ but, granttug that this conten-
tion Is sound, that the fact wonld Impose up-
on the Fant Fish Company the duty of pay-
ing the Icing charges before the express com-
pany delivered the shipment, and aa a condi-
tion precedent to delivei'y.
[8] The consignee of a shipment who }s in
possesion of a bill of lading is entitled to
have the goods delivered to him (unless the
carrier knows, or has reason to believe, that
he Is not the actual owner of the shipment)
upon payment of the chiirges specified in the
bill of lading. A carrier may refuse to de-
liver a shipment to any other than the con-
signee or an agent of the consignee, but be
cannot refuse to deliver to the consignee who
iB In possession of the 1411 of lading, unless
be has sutQcient reason to doubt that he Is
the true owner, and nnliiss the consignee re-
fuses to pay the freight charges as shown by
the original bill of lading.
[4] When the consignee pays or tenders
the payment of the charges which are enter-
ed upon the original bill of lading, he Is oi-
tttled to the poesesiiDn of the sM^ent, and
a refusal to deliver is oonver^n.
[I] A carrlar bav» a li^t of action
a^inst the aonslgnes for the charges upon
the second waybill, but he would liave.no
lien upon the shipment, nor could It withhold
delivery of the shipment upon these extra
diarges.
The Judge of the dty court did not err in
refusing to grant a new trial.
Judgment affirmed. ''
(U Oa. App. my .
BODIFOBD V. BTATB. (No.
(Court of'Appeals of Geor^o. Uay 20» 1913.)
(SyttabUM hy the Oowi.)
Conviction Subtainbd.
No error of Iblw is complained of, and tbt
evidence Bupports the verdict.
Error from Ctty Court of Cairo; 3. R.
Blngletary, Judge.
J. W. Bodifcwd was convicted of crime,
and he brings error. Affirmed.
J. Q. Smith, of Cairo, for plaintiff in er-
ror. ,W. J. Willie, SoL, and Ira Carlisle,
both of Cairo, for the State.
HUXh OL J. Judgment affinned.
(12 Oa. App. 702)
FOBTUNB V. BBASWBIXb (No. 4,898.)
(Oimrt d Appeals of Qeoi^ Uay 29, 191S.)
fSyttahut by the Vwtr*.)
DiTE Paocxss or Law.
This case is controlled by tbe opinion of
■the Soprctne Oontt (77 S. B. 818) on the con-
■titntioBal law qneetioQ certified, and the judg-
ment of tbe lower court Is affirmed.
Error firom Cil7 Court of Utmvoe; A* Q.
Stone, Judge.
Action between Mrs. B. B. Fortune and W.
H. Braswell. From the judgment, Fortune
brings error. Afflrmed.
O. Roberts, of Monroe, and B. R Fortnne,
of Logansvllle, for plaintiff in error. B; I*
Cox, of Monroe, for defendant In error.
P&B CURIAM. Affirmed.
(u ga. App. tm
ROTHSCHILD v. STATR (No. 4,873.)
(Court of Appeals of Georgia. May 29, 1918.)
(BwVahue \y t\e Court.)
1. CUnmrAi, Law (g 878*)— Tebdxux^-Oor-
SIXTTcnON.
If an indictment contains two connts
charging kindred or limilar misdemeanors, and
one of tbe counts is defective and tbe other Is
good, and a general verdict of guilty is render*
ed on tbe indictment, the law will apply the
verdict to tbe good count Especially Is this
true wbere tbe evidence is confined to tbe good ■
count and clearly establlsbes the commission of
tbe offense as charged therein. Bulloch v.
State, 10 Ua. 47, 64 Am. Dec 368 ; Frain v.
State, 40 <3a. 629.
[Ed. Note.— For other cases, see C!rimbial
l4ur^^Cent IMg. H 200S-Sm^,-' Z>eo. Dig. |
2. Criminal Law ({ 78e*>— Instbuction—
Statement of Accusxo.
Where the trial judge instructed tbe jury
that tbe defendant had the right to make to tbe
court and jury such statement in his own be-
half as be deemed proper, tibat the statement
was not under oath and should have only such
weight as the jury might see proper to give it,
and that they might believe it in preference to
the sworn testimonv iu the case, it was not er-
ror to add tlie following instruction : "Tou
will consider all tbe testimony, and give snch
weight as you see pnmer, if any, to the defend-
ant's statement, and nom all of it undertake to
arrive at what the truth is." The wor^ "If
any," are not subject to the criticism .that they
constituted an expression of opinion as to the
weight they should ^ve the defendant's state-
ment or an Intimation of the court that tibey
should not give any weight whatever to tiie
statement Nor was It in any respect prejndi-
cial to the defendant especially' when oo judder-
ed in connection with tbe context of tbe cha»e
on the same subject Woods v. State, 10 Ga.
App. 476 (8), 78 S. EL 608.
[Ed. Note.— For other eases, see Criminal
Law, Gent Dig. Si 1T87, 18DS-1901, 1900,
1984 ; Dec. Dig! | m*J
3. JUBT (S 142*)— BXAMZNATZOlT OT JUBOBS^
Waiveb or Objiction.
While tbe question propounded by the so*
lleltor to the jnrors on the voir dire. Are yon
opposed to the enforcement of the law known
as tha prohibition law In Georgia?" was unau-
tborizea' by law, yet where no objection was
made to the question when propounded, and the
accused' stated that he had no objectiMi to. tbe
panel of jurors as put upon him, either aa a
whole or separately, he will not be heard, imsr
the verdict, to object to the question.
[Ed. Note.— For oChei cases, see Jniy, Cent
Dig. SI 600, 680; Doc. DUfri 142.*]
4. INTOXIOATINQ LiquOBS ($ 189*}— OttlHIKAL
PBOSECUnON— DbfkItsb.
On the trial of on indictment for selling
liquor, it is no defense that tbe aocused sold the
•fte eUw eases M* same t^ «&d asottan HOllBttB IB Dm. rat. « Abl Dig. Kti^McU««MC)B^
le
202
78 SOUTHSASTEEN BBFOBTBR
Uquor M u ttatvUmi of llie ■ocial dnb to the
members dMieoC Intoxleatitig liquor cannot bo
sold in this state by an individual or a corpo-
ration as a beverage, and where a steward of a
Bodal club sells to toe members of tbe club in-
toxicating liquors, be It foilty of a violation of
what is known as the "prohibition law," at-
tbonch in making the sale he is acting solely
for the benefit of the clab.
[Ed. Note.— For other cases, see lotoxicatiiv
Ugaors, Gent. Dig. H ISTTiSS; Dec. DliTl
169.*]
6. iNTOZIOATIRa liTQITOBS (| 169*)— GSIHIirAL
Pbosbcutiok— DKncnsK
Tbe evidence for the state demanded the
conviction, and tbe statement of the accused,
to tbe-effect that in selling the intoxicating liq-
uors to members of the club he was acting for
the clab, and that be received no personal ben-
efit from such sales, constituted no defense.
[Ed. Note. — For other cases, see Intoxicating
I^uors, Cent Dig. Si 187, 188; I>ec Dig. i
Error from Superior Court, Qlynn Coun-
ty; C. B. Conyers, Judge.
Ike BotbscUld was convicted of selUns
liqnor, and he brlnjiB error. Affirmed.
Smeet Dart» of Brmuwlck, tor plaintiff
In error. J. H, Thomas, SoL Gen., of Jeaup,
tot the State. ■
HILI^ OL J. Judgment affirmed.
02 Qa. App. «M)
WRENN T. STATB. (Na 4.688.)
(OoDit of Appeals of Georgia. Apm 16, 1SS1&.
Britearing Denied May 20, 1918.)
(Syliahtu Ay th« Court.)
1. Gkiuinax. Law (I 697*)— Oohtikvaitg*^
Befusai..
Where the testimony of a witness relied
npon by the accused to prove an alibi, and for
whose absence a contlnnance was asked, would
not have been soffldent tor that punKwe, the
refusal to grant the motion for a contimianc*
will not require a new trial.
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. |{ 1331. 1332; Dec. Dig. |
B97.*]
2. Labcekt (I SO*)— iMDicncraT— Debcbip-
TXON OF PBOPEBTT.
The description of the property alleged to
have been stolen, given in the indictment, was
sufficient for the purpose of Identification and
notice to the accused, although some of the
words of descriptioD consisted of technical
terms requiring explanation by expert evidence.
[Ed. Note.— For other cases, see Larceny,
Cent Dig. H 64^-76; Dec Die I 80.*]
3. RzTiKW on Appkai..
No error of law appears, and the evidence
strongly suMMrts the verdict.
Error from Snperior Court, Fulton 'Coun-
ty; Price Edwards, Jndge.
George Wrenn was convicted of laioeiv,
end brings error. Affirmed.
Gober & Jackson and Jas. H. Dodgen, all
of Atlanta, for plaintiff In error. B. M. Dor-
sey, SoL Gen., and E. A. Stephens, both of
Atlanta, ft>r the Stat&
HILU G. J. Judgment affirmed.
(IS Oa. App. M)
FELSER V. STARK. (No. 4,676.)
(Court of Appeals of Georgia. May 6, ISU.
Rehearing Denied May 20, 1918.)
f'SvUobw hy ike Court.)
Funs (1 19*)— Pathent bt Note.
Where a person pleads ^ilty in a munic-
ipal fMJurt to the offense of disorderly conduct,
and a fine is imposed, and he 'is released by
the police officer upon the execution and de-
Uvery of a promissory note, signed by a third
person, in payment of the fine, it is no defense
to a suit on the note that the person thus re*
leased was not In fact guilty of disorderly con-
duct, but was guilty only of tbe offense of gam-
ing, for which the municipal court bad no ju*
risolction to try him; that the munidpal officer
knew that the accused was not guilty of dis-
orderly conduct, and charged him with that of-
fense, and accepted his plea rimply for the
purpose of enabling him to evade a prosecution
for gaming. The fact that be was subsequently
charged in. the state court with that offense is
immaterial.
[Ed. Note.— For other cases, see Fines, Cent
Dig. K 20-22; Dec. Dig. S 19.*]
Error from Olty Court of Monroe; G. A.
Johns, Jndge.
Action by W. B. Stark against J. H. Fel-
ker. Judgment for plalntU^ and defendant
brings error. Affirmed.
J. H. Felker. of Mtmroe^ for plaintiff In
error. B. I* Ooz, <tf Honroe^ for dtfeaidant
in earn.
POTTLBl X Judgment afflrmeiL
(12 Oa. App. my
WABBBN T. STATE. (No. 4,722.)
(Court of Appeals of Georgia April 16, U18.
Behearhig Denied May 20, 1918.)
fSnttahut ly <k« Court.)
1. iNDicnocnr avd Intorvation (| 190*)—
IiABCBlTF-GOHTlCTIOn Of ATTBUFT.
On tbe trial of an accusation of die of-
fense of larceny from the house, the jury
may find the accused not guilty of the of-
fense charged In the accusation, but, if the
evidence wsnants it. guilty of an attempt to
commit tbst offense, though the accusation
contain no sperial count charing such ao at-
tempt Penal Code 1910^ { lOBl.
[Ed. Note.— For other cases, see Indictment
and Informatiom Gent. D4g. H 6B&-603i Dec.
Dig. I 190.*]
2. CsiifiNAL Law (S 803*)-Apfsai. aito Bb-
BOR— Vkbdict— Insibuctiok. '
On the trial of an accusation of larceny
from the bouse, the jury found tbe following
verdict: "We, the jun, find the defendant not
guilty as charged In tbe bill of indictment, but
guil^ of an attempt to commit larceny." flsid,
verdicts must not be avoided, unless from ne-
cessity; snd, giving to this verdict a reasona-
ble construction, the jury intended to find the
accused guilty of an attempt to commit the
crime charged In the accusation, to wit, lar-
ceny from the house, and not an attempt to
commit simple larceny. GlvQ Code 1910, f
6927.
[Ed. Note. — For other cases, see Criminal
Igr^^Cent. Dig. U 2089, 2S^; Dec; Dig. {
^^nTMbarMMs^^
DOZIBB ▼. STATE
3. liucnrr (| 40*)— AcouaAixoir— Taburck.
Where Ou acctuaUon deiCTibes the prop-
erty u being 60 cigart of the value of $2, and
the proof shows that the stolen property con-
aisted of a box of dgan of the valae of $1.90,
the Tarlance Is Immaterial, whether the box
contained BO dgara or a !«■■ nnmber.
IBd. Note.— For other cases, see Larceny,
Cent Dig. ff 102-120, 160: Dec. Dig. | 4a*]
4. Cbixinax Law (| 1159*) — A-ppkal and
Kbkob—Vbbdict— Evidence.
The evidence is exceedinglf weak and nn-
satlafaetory as to the existence of any crim-
inal intent; but this court cannot say that
there were no circomstanceB from whic^ the
Jnry could have inferred the existence of such
intent, and, as no error of law was committed,
tlie verdict mnst stand.
rOd. Note.— For other cases, see Criminal
Law, Gent. Die II 3074-806S; Dec. Dig. |
119%*]
Error from Snperlor Court, Baldwin Conn-
Jas. B. Parle, Jadga
Henry Warren, Jr., was convicted of lar-
ceny from a house, and he brings error. AI-
firmed,
Sibley & Sibley, of Minedgevllle, for plaln-
tiir in OTor. Jos. E. Pottle, SoL Gen., of
HUledgeville, for defendant in error.
HILU CL J. Judgment aflBrmed.
(IS Oe. ^p. 783)
DOZIEfi T. STATB. (No. 4,810.)
(Omnt of .^veals of Georgia. May 20, ^13.)
(BpUahuM by Os Court.)
GBmniAZ. Law (g 770*) — IirsTBUonoiiB —
Theost or Dbfbmse.
Where, in a criminal case, the accused, Ifl
his statement at tlie trial, presents a theory
iriileli, if true, aitltles htm eitlier to an acquit-
tal or to convictioD of a lower gnuie of olEense
tliaD Uiat charged in the indictment. It is error
for the court to refuse to give io chaise to the
jury a written request upon the law applicable
to such theory.
[Ed. Note.— For other cases, see Criminal
Law, Cent. Dig. S 1806 ; Dea Dig. | 770.*]
Error from City Court of Vienna; W. H,
LasEiter, Judge.
Charlie Do^er waa convicted of larceny,
and he brings enot. Beveraed.
Jnle Fdton, of Montezuma, for plaintiff
In OTor. Watta Powell, SoL, of Vienna, for
the 8tat&
POTTLE. J. The accnaed was convicted
of the larceny of a piece ot meat from a
Btorebonse of the Byrom Corporation.
The main witness for the state testified,
on direct examination, tliat the accused came
to the store to purchase some meat, took
a side of meat from the box, cut off a piece
weighing abont 9 pounds, inld for it, and
put the remainder, weighing about 12 or 14
poimds, baclc Into the meat box. Afterward
die accused made sereral other punAases,
pnt tbem all In a sack, and took tbem homa
Shortly after he left, the meat was missed.
and file witness went to tlie home of the
accused In search of It. The accused opened
the sack in the presence of the witness, took
out the 9-pound piece of meat, and said that
this was all that he bought The witness
looked in the sack and found another piece
of meat, which he Identifled as the other
portion of the side of meat from which the
9 pounds were cut The accused was request-
ed to go back to the store, and, on the way,
he remarked that this was the only tiling he
had ever taken in his life, and If the witness
would not pnt him in Jail he was wilUi^ to
go to work for blm. On cross-examlnatlou
the witness testified that he did not hear the
accused tell him that he got the other piece
of meat, and to charge It to blm. The wit-
ness would not say, however, that the accus-
ed did not make this statement because he
was some distance away from Mm. The ac*
cosed had worked In the store for a num-
ber of years, had a good credit there, had
cut meat delivered goods, collected money,
and performed similar duties. When the
witness first saw the meat at the house of
the accused the accused contended tliat he
had weighed the meat and told the witness
to charge it to him. When the accused first
came to the store to make the purchase, he
told the witness that be wanted all of the
side of meat but did not have enough money,
and he had better let part of it remain. The
witness had known the accused for several
years, and his previous character bad been
good. Another witness also testified to the
good diaracter of the accused.
The accused, In hla statement said that
after he cut off the 9-pound piece of meat
and the clerk who was serving him had tak<
en his money and had gone across the store
to a desk to make out the cash ticket, the
accused told the clerk that he would take
the other piece of meat also, and gave its
weight and requested that it be charged to
lilm. He thought the witness heard tlds
statement He had often gotten meat at
the store before and liad It charged to him-
self. He excepts to tlm overruling of hla mo-
tion for a new trlaL
1. The court was requested In writing to
charge the Jury as follows : "It tile defend-
ant took the meat and requested Mr. Slade
to charge It to him, and be believed that he
was entlUed to talra It under tlieae drcnm-
Btancet, yon could iiot convict this detpnd-
ant" Tile Jndge declined to give this tn-
stmctlMi, but did charge generally the law
as to the pElaoner*s statemrat at the trial.
The refusal to charge as requested Is com-
.plalned of In the motion for a new trial.
The accused was entitled to have the court
give tlie instmction requested. If no request
la made to do so, it Is not generally reversible
error to fall to charge on a theory arising
solely from the prisoner's statement; but
when a pertinent and legal request Is pre-
•For ether cm— m* wns teple tad swUon KUUBBB la Deo. Die * Am.
20C
re SODTHSASTIBBN BIDPOBTBB
(Ga.
sented for an Inbtnietion upon socb a ttieory.
It to as much renralble error to lefaae to
do so as It would be to r^nse to glre an in-
Btniction based np<m a tbeor; arising from
the sworn testimony In the case. If this
wwe not tme, the accused coo Id be deprived
of the benefit of the statemttnt which the
law authorizes him to mate In his own de-
fense, and which is often the only means by
which the accused can rebat a prima facie
case against him made by the state's evi-
dence. According to the evidence for the
state, if the clerk had been requested by
the accused to extend credit for the meat,
he would have done so ; and the clerk, who
teetlfled in behalf of the state, does not une-
quivocally deny the statement that the ac-
cused made the request that the meat be
charged to him. The guUt of the accused is
by no means free from doubt, and he was
entitled to the instnicttqn whl^ he requested
the' court to give.
2. There are several other grounds in the
motion for a new trial, but none of them dis-
close any material error.
Judgment reversed.
(U Oa. no)
GORDON T. STATE. (No. 4,690.)
(Ooort of Appeals of Georgia. May 20, 1013.)
(BvtUbiu 6y tk« OosrfJ
L Obihirai. Law (| 1064*) — Appeal — Bnx
OP BXCEPTIOns.
A recital in a bill of exceptions, to the ef-
fect that the trial judge refused to c<Hwider or
to approve certain grounds of an amendment
to the motion for new trial, presents nothing
for the consideration of the Court of Ap-
peals.
[Ed. Note.— For other cases, see Criminal
Uw, Cent. Dig. H 2676-2684; Dec. Dig. {
1064.*1
2. Gsnnffix Law (I 918*) ^New Tbiai,—
SuFnciBNCT or EMdence.
Tbe incriminatory circumstances iatrodnc-
ed in evidence by the state were sufficient to
exclude every reasonable hypothesis, except
that of tbe defendant's guilt, and authorized
the Jury to con^ct him of the offense of gam-
ing; and, as there is no complaint of any er-
ror of law upon the trial, the trial judge did
not err in overruling the motion for new triaL
[Ed. Note.— For other cases, see Criminal
Uw, Cent Dig. H 2187-214B; Dec Dig. S
913.*]
Error from City Court of Statesboro; H,
B. Strange, Jndga
Joe Gordon wab convicted of gaming, and
brings error. Affirmed.
F. B. Hunter, of Statesboro, and J. D. Cirk-
land, of Metter, for plaintiff in error. F. T.'
Lanier, Sol., of Statesboro, for the State.
RUSSELL. J. 11] L It Is recited in the bill
of exceptions that his honor, Judge Strange,
"refused to allow the amended motion* or
to consider the two grounds contained In
tbe sam^ wUch said dlsallowanoe and
fusal Joe Gordon now assigns as ema."
The two grounds of the amendment^ which
the trial judge rinsed to approve, are sent
up In the record^ and it appears ttiat tbe
reason glvoi tor the judge for his refusal
to allow the amoidniMit or to ai^rove the
grounds thereof was that the grounds of the
motion as stated were conduslons of fiicC
and argumentative. If the question wera
properly presented, we would have no hesi-
tation In holding that tbe judge properly
disallowed the ammdment to the motl<ni,
for the reason stated by taim; but nothing
is better settled as to motions tor new trial
than that a court of review can only pass upon
such assignments of error as are contained In
grounds of the motion which have been ex-
pressly approved. It Is elementary that
assignments of error contained In tbe mo-
tion fbr new trial, which are disapproved
by tbe trial judge, present nothing for the
consideration of a court of review.
[2] 2. The only point argued in the brief
of counsel for tbe plalntifC in error Is that
the evidence oCFered to show tbe guilt of the
accused is wholly Insuffldent, and therefore
that a verdict finding him guilty Is contrary
to law. In our opinion the verdict was ful-
ly authorized by the proof submitted In be-
half of the state. It Is true that the de-
fendant introduced a number of witnesses,
who testified that be was merely a spectator,
and did not in any way participate In the
unlawful game of cards which they admitted
was in progress. But, aside from the gen-
eral rules which may or may not be control-
Ung with juries in ratabllablng the credi-
bility of testimony, there was one undisputed
circumstance, introduced on the part of tbe
prosecution, which Is wholly Incompa tibia
with the supposition of tbe defendant's inno-
cence. The state proved that, when the
game of cards was interrupted by the ar-
rival of the officers, tbe defendant immediate-
ly claimed tbe money which was being used
In the game as his property, and on the trial
he did not offer any explanation which would
tend to show that his money was being used
either for an Innocent purpose or without
his consent He did not deny having made
claim for the money.
The other circumstances introduced In be-
half of the state, such as tbe proximity of
the accused to those who were shown to be
players in the game, and his Interest in tbe
proceedings, might have been Insufficient to
authorize a conviction. Griffin v. State, 6
Ga. App. 43, ^ S. E. 685. But the pregnant
fact that he claimed the money that was
being played for, taken in consideration with
the other drcnmstances, when unexplained*
was 80 incompatible with innocence as to ful-
ly authorize the verdict
Judgment affirmed.
•For otbtr caw m ssme topis sod MCtlai NtJHBBB fa Doa Dig. A Am. Dig. Key-Na BerM<*R«0'rUdtt«
Digitized by VjOOQ IC '
GARTER T. STATE
206
(U Oa. App. 71S)
KILLBBRUW STATE. (No. 4.821.)
(Conrt of Appealfl of Geexsta. Mar 20^ 1^13.)
HOiaCIDK (S 250*)— VoLtJKTART MaNSUTTOH-
TEi— Sufficiency op Evidence.
There was no theory of the evidence or <rf
the prisoner's atatemoit at the trial which aa-
thoriBcd his conviction of the offense of volnn-
tarr mansIaDghter, atld the verdict finding: him
gnilt; of that olfense sbottld hav« been set aside
on a motion for a new triaL
[Ed. Note.— For other cases, see Homicide,
Cent. Dig. U 615-617; Dec Dig, f 260.*]
E^rror from Snperlor Conrt, Monroe Conn-
ty; Robt T. Daniel, Jodge.
Sam Elllebrew was convicted ot volontary
mauBlaughter, and be brings error. Be-
Tnsed.
R. Ll Williams, of MaCon. and A. M. ZeU-
ner and Persons & Persona, all vt Forsytb,
for plaintltt In error. B. M. Owen, SoL Gen.,
of Zebolon, fbr Uie State,
POTTLE, J. l%e accused was convicted
of voluntary manslan^tw, and bis motion
tor a new trial was oTerroled. Besides the
gtfieral gronnda, the motion contains asslgn-
menta of error hikui tiie grooad tbat ttie
erldeaice iXUl not antborise an Instmctlon
iq^ law relating to Tolnntarr man*
danghter, and also a ground contalalng al-
leged newly discovered eildenca Tbe evi-
duee leaves Ut doubt tbe real came of tiie
dlfllCDUy. From a statement made by the
deceased, whlc^ was Introduced as a dying
dedaratlon, it aKieara tbat tbe aecosed was
angered because of some i^revlouii difficult
wbldi bad taken place betweui tbe deceased
and a brother of tbe accused. According to
tbe evldaiCB for tbe states tbe bomlclde was
murder; tbe deceased was walfciiv along
tbe road unarmed; tbe accused met Mm,
and, wltboat any drcnmstances of jnstlflca-
tlon or mitigation, deliberately fired at blm
and killed blm. According to the evidence
for tbe defendant; the deceased cam« down
the road with a idatol In his band, met sev-
eral persons and Inquired If they bad seoi
tbe accused, shortly afterward met the ac-
cused in tbe road, tbrew a rock and hit blm
on tbe shoulder with it, and about the same
time shot at the accused twice ; the accused
thai abot once ; and the deceased then fired
three more times. Previous to the kliling
tbe deceased told, one of tbe witnesses that
he bad a pistol and that be was gcdng to kill
tbe accused with it, if It was the la^ thing
that be did. Thereupon he 1^ this wit-
nesfl^ with tbe pistol In bis band and his
coat swung over bis arm. This conversation
took v>1a.ea on tbe afternoon of tbe killing
and some two or three miles firom the place
where tbe homldde occurred. In bis state-
ment at the trial the accused ssld that tbe
deceased met blm in tbe road a^d threw a
rock and hit him with it, and then commenc-
ed shooting at him, and that he then shot
the accused one tiine. Two wounds were
inflicted on the deceased ; he was wounded In
his side and one finger was shot off. There
is evidence that one shot could have made
both wounds.
From a careful examination of the evi-
dence, we are unable to And any theory up-
on which the accused could properly be
convicted of voluntary manslaughter. Tbe
evidence for tbe state made out a clear case
of murder, and the testimony for tbe de-
fense an equally clear case of self-defense.
There is nothing in the statement of the ac-
cused which would authorize a conviction of
voluntary manslaughter. It is suggested by
the solicitor general tbat the throwing of
the rock by the deceased constituted an as*
sault and authorized a conviction of volun-
tary manslaughter upon the theory that
there was a mutual combat or upon the Idea
that the assault was enough to excite pas-
sion. Tbe manifest reply to this contention
is that the evidence demanded a finding that
the deceased shot twice at the accused be-
fore the actensed shot at him. If the ae-
cosed had shot and killed the deceased Im-
mediately after the throwing of tbe rock,
the position taken by the solicitor general
would be correct But there Is no evidoice
wMch supports this theory. According to
the testimony the deceased was a Q^an of vio-
lent tonpOT. and the accused bore a good
reputation. This doubtless infiuenced to
some extent the jury to return a verdict
which, in the light of tbe evidence, can only
be regarded as a compromise finding. Under
repeated rulings of tbe Supreme Court and
of this court, the accused baa a right to
have such a verdict set aside in order tbat
the Question whether he is guilty of murder
or not guilty of aAy offense may be clearly
snbmltted to the Jury. It is unnecessary to
Iiass upon tbe ground of tbe motion contain-
ing alleged newly discovered evidence. U
sncb evidence Is competent, it can be sub-
mitted to tbe jury ou another trial.
Judgm^t reversed.
(12 Oa. App. ttO)
- CARTER V. STATE. (No. 4,182.)
(Conrt of Appeals of Georgia. Feb. 34, 1918.)
(SvUahvt ht the Court.)
1. Statutes (i 47*) — Autouobiub — Speed
Regulation— Validitt.
So much of the act of IQIO (Acts 1910, p.
92, i 6) regutating the use of automobilea as
undertases to make penal the operation of an
automobile on the highways of this state "at
a rate of speed greater than is reasonable and
proper, having regard to the traffic and use of
■ach highway, or so as to endanger the life or
limb of any person or the safety of any prop-
ert7<" la too nncertain and indefinite in Its
terms to be capable of enforcement.
[Ed. Note.—For other casea, see Statutes*
Cent Dig. I 47; Dec Dig. | 47.*3
*Fttr otber casas ■■• sama topla and aecUon MUlIBBIt la Dee. Die- A Am.
206
78 SOirrHBASTERN REPORTER
2. HlOHWATS (S 186*)— AUTOKOBILE8— VlO-
xjiTioN OF Sfecd Bbouuiioh — AconsA-
TIOH.
Tbe count of tbe aocnBatioii ehar^Uv the
accDBed with having operated an aatomobile
"so as to endanger the life and Umb of per-
■ona and tbe Bafetr of property" was sabject
to tpectal deronrrer on the gronod that it fail-
ed to ahow what person or what property waa
endangered by the running of the aatomobile.
[Ed. Note.— For other cases, see Highwaya,
Cent Dig. K 476, 477; Dec Dig. { 186.*]
3. MURXOIPAI. GOBPOBATIONB ({ 707*)— AD-
TOHOBILES— SFEBD RbQULATION— OFEBATION
or STATtme.
Section 12 of, the act of 1610 (Acts 1910,
p. 94) regnlatinK tiie uae of automobiles, which
lurovideB that 'Nothing contained in this act
shall be construed as changing or interfering
with any regulation or ordinance which has
heretofore or may hereafter be adopted by
any municipality of this state, regulating the
ranning and operation of the machines describ-
ed in Uiis act, provided such regulation or or-
dinance la not in conflict with tbe proviaions of
this act," does not render the act Inoperative
in a city or town which haa adopted an ordi-
nance attempting to make punishable the run-
ning of automobiles "at a rate of speed great-
er than ten miles per hour at comers and
eroaafngs, or fifteen miles per hour beyond
cnwsinga and comers when outside of the fire
limits, or at a greater speed than five miles
Ker hoar when inside tbe fire limits at crosa-
iga or comers, or ten miles per hour beyond
comers and erosaings," within the limits of
the munidpaUty; the ordinance being void be-
cause in conflict with section 5 of the same
act, which makes it a misdemeanor to operate
an automobile at a rate of speed greater than
six miles per hour on approaching a crossing
of intersecting highways.
[Ed. Note.— For other cases, see Municipal
Corporationa, Cent Dig. | 1618; Dec. Dig. |
707.»1
4. HiGHWATB d 18B*)— TlOLATIOIT OF BVKKD
Rsouunoif — Accusation — "AirroHo-
BILK."
In an accusation spedfically charging tbe
illegal operation of an automobile in violation
of the act of 1010 (Acta 1910, p. 90) regulat-
ing the ronniag of automobiles and conveyanc-
es of like character, it is not necessary to al-
lege the particular power by which the anto-
mobile In question waa propelled.
Tbe term "automobile" has a definite popu-
lar slgnifleance, and is understood to refer to
a wheeled vehicle, propelled by gasoline, steam,
or electricity, and used for the transportation
of persons or merchandise.
[Bd. Note.— For other caaea. see Highwaya,
Cent. Dig. H 476, 477; Dec Dig. { 1»6,*]
6. QuEsnoKB Not Coksidbbed.
As some of the rulings upon the demur-
rer require a reveraal of the judgment of the
lower court, and the subsequent proceedings in
the trial were nngatory, tne questiona raiaed
by the assignments of error in the motion for
new trial will not be conaidered.
Error ftom Otty Goart of SabHttm; Geo.
0. Grogan, Judge.
Cleveland Garter was conrlcted of vlolat-
Ing the Btatnte regulating tiie speed of auto-
mobiles, and be brings enror. Revved.
P. P. Proffitt, of Flberton, for plaintiff in
error. Boozer Payne, Sol., of ffilberton, for
the State.-
RtTSSEILL, J. Tbe plaintiff In error was
convicted In the city court of Elberton of a
violation of the act approved August 13,
1910, regulating the operation of automobiles
on public highways of this state (Acts Ga.
1910, p. 90). There were three counts in the
accusation: The first charging that he oper-
ated an automobile "at a rate of speed great-
er than was reasonable and proper"; the
second, that he operated the automobile "so as
to endanger the life and.llmb of persons and
the safety of property" ; and the third, that
he operated tbe automobile on a public high-
way, at a place known as "Hemdon's Cor-
ner," "without having said machine under
control," and operated It "at a speed greater
than six miles per bour."
The defendant demurred to the first connt
upon the ground that it failed to charge any
crime^ and Chat the act itself failed to de-
fine a crime, because It fklled to name any
special rate of speed which would be unlaw-
ful, unreasonable, or improper. To the aeo
ond count he d^niurred up(m the ground that
the accusation Mled to show what person
or what proper^ was enduigered by the
running of the automobile named in the ac-
cusatton. To the accaBatlon as a whole ha
demurred upon the ground that the accosa-
Uon fftlled to show that the automobile nam-
ed therein was prevailed steam, gas, gaso-
line, electricity, or a power other than mus-
cular poww. The d^urrers wen oremded.
The defendant tten filed a plea In bar, set-
ting ap that the otteaae was alleged to have
occurred within the dty of Elberton, and
that, the dty of Elberton having, on^ August 2,
1909, passed an ordinance relating to auto-
mobiles within the city lindts which flzed
the Tate of speed on the streets and at
crossings and in approaching curves, and
provided a pmal^ for Its violation, the Jn-
rlsdiction of tbe municipality to punish for
the unlawful operation of automobiles is ex-
elusive. This special plea was overruled,
and exceptions pendente lite were preserved.
[I] 1. We think the court erred in over-
ruling the demurrer to tbe flrst count In so
far as tbe General Assembly attempted to
penalize the operation of automobiles at
an unreasonable rate of speed, the act of
1910 Is void, because there is no measure by
which the unreasonableness can be ascer-
tained. Tbe law falls to define what is
reasonable or unreasonable, and hence the
definition of the offense Is too vague and
general to constitute a crime. The degree of
unreasonableness that may be deemed crimi-
nal not being fixed by law, but being left to
the varying opinions of different Juries, the
portion of the act referring to tbe speed Is
not uniform In Its operation, and for that
reason Is unenforceable. Hayes v. State, 11
Ga. App. 371, 75 S. B. 523.
[2j 2. We think, also, that the demurrer
to the second count in the accusation should
•War other oasaa m same tople aad seetloa NVUBBR In Oso. Dig. a Am. Dig. iBSgrtlt^cfiffl'
OABTES T. STATE
207
have been sastalsed. Wblle, as a general
role, an accusation wblcb defines an offense
In tbe precise language of the statute is suf-
ficient (Penal Code, 1910. { 954), sUU this Is
not a nnirersal rule; and, as has been fre-
quently pointed out in tJie decisions and
text-books (see Wlngard t. State, 13 Qa.
400; U. 8. V. Simmons, 96 U. S. 360, 24 L.
Ed. 819; U. S. V. Hess, 124 U. S. 483, 8
Sup. Ct 571, 31 L. Ed. 516; Johnson v. State,
90 Ga. 444, 16 S. W. 92 ; Amorous v. State,
1 Ga. App. 313, 5T S. B. 999; Toumans t,
Stote, 7 Ga. App. 101, 112, 66 S. E. 383;
Burkes V. State, 7 Ga. App. 40, 65 8. E.
1001), there are some offenses of such a na-
ture as that a charge In the language of the
statute under which the accusation Is
brought would be wholly insufficient to so in-
form tbe accused of the nature of the charge
against Mm as to enable him to prepare his
defense. Every person accused of crime has
the right to be suffldently informed as to the
time, place,' and circumstances of the al-
leged offense, to identify it and enable him
to prepare his defense. PresumptiTely, at
least, one accused of crime Is Innocent ; and
If be Is Indeed Innocent, and yet the particu-
lar crime with which he is charged (identl-
fied only by Its Code deflnltioB) is merdy al-
leged to hare been committed by him at a
time within the statute of Umitatloiu and in
the county In which the accnsatlai la pre-
f erred, he Is no better Informed as to tbe
Idoitl^ of tbe alleged criminal txanaactlon,
aa to wblch be Is eftlled apon to defend, than
were tbe Ibunana aa to tbe proiislona of the
statutes which Caligula required them to
obey, tboii«b be purposely placed bis edicts
apon a cplunm too blgb to be seen.
A persoD who operates an automobile
should aa macb obey tbe law at all times
as tbose citizens who (like tbe members of
this court) are unable to support su^ a
luzusy ; but It la easy to coneelTe of a case
in which. If the owner of the automobile was
accustomed to use bis machine mea a small
portion of tbe time, and It was charged that
In tbe county, on some day within two years
prior to tbe filing of the accusation (for tbe
state is not ctHfOned to tbe day stated tlieie-
in), and at some place of which the accusa-
tion gives no bint, he operated an automo-
Ule 80 aa to endanger tbe life and Umb of
some person or persons whose name, age,
color, sex, or place of residence is not eren
suggested, or so as to endanger property the
nature and location of which la possibly un-
dlscoTerable, be might be placed absolutely
at tbe mercy of the prosecution, though the
testimony against him be false.
[t] S. Hie question raised by the plea in
abatement, based upon section 12 of the law
regulating the speed and operation of auto-
mobiles and other like vehicles, as contained
In the act of 1910, Is whether tbe state law
is Inoperative upon drivers and automobllists
manipulating machlnee within tbe limits of
a town or dty that has an ordinance reg-
ulating the speed and operation of automo-
biles. The accused claims that it is, and that
the state has no jurlsdlctioD over the op-
erating of automobiles and other like ve-
hicles within tbe limits of the dty of El-
berton. wblch has an ordinance upon the
subject
Section 12 of the act of 1910, supra, reads
as follows: "Nothing contained In this act
shall be construed as changing or Interfering
with any regulation or ordinance which has
heretofore or may hereafter be adopted by
any munldpality of this state regulating the
running and operation of the machines de-
scribed in this act, provided such regulation
or ordinance Is not In condlct with the pro-
visions of this act." The provision of the
law regulating the speed and operation of
automobiles Is found in section 5 of the act,
to wit: "No person shall operate a machine
on any of the highways of this state as' de-
scribed in this act at a rate of speed greater
than is reasonable and proper, having re-
gard to the traffic and use of such highway,
or so as to endanger the life or Umb of any
person or the safety of any property, and
upon approaching a bridge, dam, high em-
bankment, sharp curve, descent or crossing
of intersecting highways and railroad cross-
ings, the person operating a machine shall
have it under control and <^>erate it at a
speed not greatra* than six miles hour."
The ordinance of tbe dty of Blberton pro-
vides: "It shall be unlawful for any person
In diarge of any automobile, auto buggy,
motorcydOb or bicycle or other like machine
or chauffeur, rider, or driver, to run sudi
machine at a rate of ^eed greater ttian ten
miles per hour at comers and crosslnss, or
fifteen miles per hour beyond comers and
crossings when ontdde of the fire limits, or
at a greater rate of apeed than five mllea
per hour when toalde the flre limits at cor-
nera and crossings, or ten miles per hour
beyond comers and crosstngai in tbe dty of
Elbert(m."
Tbe question to 'be dedded 1^ this court ia
whether or not, under aectlon 12 aa aet
fortb, the general law of section S ia opera-
tive within the dty of Elberton, or whethw
the dty of Elberton has exclusire jurisdic-
tion in reference to the relation of speed
and operatI<ai . of automobiles within the
dty limits; In other words, whether tbe
dty ordinance so conforms to the statute aa
to be ezduslve of any other regulation with-
in tbe dty limits. Section 12 antborlzes
dties and towns to pass ordlimnces r^ulat-
Ing the speed and operation of automobiles
(notwithstanding that there is a general
law on the subject), provided only that they
do not conflict with any of tbe provisions of
the general law upon the same subject. A
dty ordinance regulating the operation of
automobiles may contain other regulations,
not Inconsistent with tbe law of tbe atater^l^
Digitized by VjOTJIV It:
78 SOnTHBASTBBN BBPOBTEB (Ga>
m
41x6. dealing wltb circumstances which are
not Included within It, but It must accord
with the proTldons of section 5, above set
forth. Whether the effect of section 12 of
tbB act of 1010 is to oust the state of juris-
diction, and give jurisdiction excluslTely to
mnnldpal corporations, where they hare val-
id ordinances regulating the operation of
the machines described In the act, is a ques-
tion that need not be determined in this
case, for, if snch he its effect. It la so only
where (to use the language of that section)
the ordinance *ia not in coniEUct with the
proTlsions of this act"; that Is, section 12 Is
not to be construed as excluding the opera-
tion of the state law In a municituLlity un-
less Uie municipality has an ordinance which
conforms to the state law, and in the present
case the ordinance does not conform to the
state law. If the purpose la that the ordi-
nance Shan exclude the operation of the stat-
ate. It must cover the same matter, must
make punishable the same conduct, and must
ndt omit punishment for conduct ponlshable
under the statute. It Is not to he supposed
that the state would abdicate its rl^t to
deal with the speed of antomobllra In popu-
lous communities, where the dangers from
the operhtion of such machines are ftir great-
er than elsewhere. If the municipal regula-
tions should in any respect foil short of the
state law on the subject. Here Uie ordi-
nance allows a speed of ten miles an hour
at crossings In the dty, except within ttie
fire limits, while the state law forUds a
speed greater than six miles an hour on ap-
proaching crossiogs, in order that the speed
may be reduced or the machine tAappeA at
the crossing. Surely it could not hare been
Intended the I/egls1ature that such an or-
dinan):!e should render Immune from prose-
cution one running an automobile in a dty,
who, If. he ran It at the same speed outside
the city limits and in a less populous lo-
cality, would be subject to prosecution under
the state law.
If the Legislature Intended that where
such ordinances existed they should have the
effect of excluding other regulation of the
speed and operation of automobiles within
those towns and cities in- which they had
been adopted, it certainly did not say so.
The statute expressly says: "Prorlded such
regulation or ordinance is not In conflict
With the provisions of this act" What pro>
visions? Air of the provldons, among whldi
la found the one In section 5 regulating the
speed and operation of automobiles and other
like vehicles. If the liOglslature had meant
to refer only to conflict with provisions regu-
lating llglits, hnmbers, signals, etc., and not
the provirions regulating speed and opera-
tion, it would have specified or indicated the
parldcular provlslona to irtilch it Inteided to
refer. The coutts must apidy to Legislatures^
as well as to individuals, that well-known
and wise presumption, found In our law, that
what was done was intended to be done^ and
in construii^ a statute must look to the
words of the act to ascertain the legislative
intent We therefore hold that the plea In
abatement was correctly overruled, and that
the municipal ordinance, in so fiir as it
may be lo conflict with the general law in
any of Its provisions as contained in the
act of 1010, supra, la Inoperative, null, and
void, as usurping the province of the gener-
al law of the state as contained In section
12 of the act of 1010.
[4] 4. The demurrer, upon the ground that
the accusation failed to alt^ that the au-
tomobile was propelled by any certain kind
of power, was properly overruled. The
words, "propelled by steam, gas, gasoline*
electricity, or any other power than muscu-
lar,** refer to the phrase "any other vehicle,"
and not to the word "automobile.** The
word "automobile" has a well-fixed signifi-
cance In the popular understanding, and it
was not the intention of the Legislature to
define it It is understood to refer to a
wheeled vehicle, propelled by gasoline, steam,
or electricity, and used for the transporta-
tion of persons and merchandise. In our
Georgia statute, the only kind of power ex-
cepted is "muscular power," apidying to "any
other vehicle of Uke kind," and not to "au-
tomobiles." The defendant could bardity se-
riously ask that he be informed that his au-
tomobile was not pr(velled by muscular
POWOT.
[I] Since, by reason of the errors of the
loww court in ruling upon the demurrer, to
whldi we have referred, the subsequait pro-
ceedings in the trial wwe nugatory, it is un-
necessary to role upon the anesUons raised
by the assignments of error In the motion
for new tilaL
Judgment reversed.
Digitized by
Google
ICG)
HAeAMAN T. BEttKBARDT
300.
on N. G. m)
HAGAMAN T. BERKHABDT et ftL
ffinpttmt Ooort of North OaioUaa. Maj 22,
1913.)
1. AFFui. AND Ebrob (S 695*)-Joxiit D*.
nifDANTB— Sbpaeaxb Rboobdb.
When Appealing defendant! do not premt
antaconlftle ezceptlona, it U not neoenary that
tfaer lend ap eeperate- lecorda.
(Ed. Note.— For other caees, eee Appeal and
Bnor, Coit Dig. i 2623; Dec. Dig. ) &96.*]
2. Stzdincb (f 868»)— DocuMNTS— Map&
A map consisting of Udgs otuy, with noth-
inf written thereon explsining what lands were
Inferred to and with nothing to give it Talidity
or authority as evidence in a controrersy orer a
bonndary, waa properly excluded.
[Ed. Note.— For other cases. M* Evidence
Cent Dig. If 1B00-I60e; De& Dig. S 808.*J
8. BOURDABIXa (I S5*)~ETIDSNaB.
Where a Spanish oak tree was admitted by
twth partLee to a boundary loit to be a proper
corner of the land in controversy, and one of
defendants' witnesses testified that the oak had
been pointed out to him by one since deceased
M the comer of the land in controverBy, it was
mot error to permit S.. nnder whom defendants
claimed title, to testify that when he bought
Um land and b^an to snrrey it he commenced
at a Spanish oak marked as a corner and 80
poles frtun the river.
[Ed. Note.— For other cases, see Boandaries,
Cent Dig. «| 1C3-1S6. 167-1S9^ 168, 16S, 177-
183; Dec. Dig. I 30.*]
4. EriDXNoi (I 274*>— DBOL&unoRg ur ibb
IllTBBBST OF DECLAKijrT.
Where d^endantn claimed title nnder 0.,
since decMsed, it waf not error to refpae to
permit 0.*s son to testify that his father, in
potntinf ont bis own lines to him, ptdnted to a
rock aa the oomer of the grant; tbe declaration
being in the declarant's own Interest
[Ed. Note.— For other cases, see Evidence
Cent Dig. II 1121-1134; Dec. Dig. { 274.*]
6. BouETPABin (I 3S*)— Location— OiKiBAL
RcpuTAnoH- Etidehol
A question whether a witness knew the
repntation of a rock as being tlie comer of a
•pedfied giant wu objeetfmable not calling
for the "geottal repnbttion of the rock aa a
comer."
[Ed. Note.— For other cases, see Bonndariw,
Cent. Dig. If 153-155, 1B7-16&, 168, 166, 177-
183; Dec. Dig. I 80.*]
A, BOUNDAUXa (I 41*)— InBTBUCnoRB.
TbB conrt in a boundary line dispute pnm>
criy refnsed to charge the Jary to follow lines in
snch a manner that, if followed, the lines wonld
not close.
[Ed. Note.— For other cases, see Bonndailea,
Cent Dig. II 206-207; Dee. Dig. 1 41.*]
Appeal from Suportor Conct, Caldwell
Gomitr ; Adam, Judge.
Ejectment Iqr John B. Hagaman acalntt
J. M. BernbBzdt aootbw to reooyer eer-
tein iand of wbldi defendant & B*. Harper
was In posaoaslOD and from which detend-
ant Bwnbudt bed cat timber; botti dtfoid-
■ntg claiming title under 6. A> SolUvan.
Plaintiff also naked an injunction against
-tlie defendants to zeetnia the cntttny of
Tttmber and tbv xionona at ihat tircadj cut
Plalntltt bad -a verdict for $00 damage and
from a Judgment tliereou and in plftintlfTe
favor fbr the recovery oC the land, deftaid-
ants appeaL- AflBnned.
This is ai} action of ejectment, the plain-
tiff claiming to be owner and entitled to the
possession of t3tie land prescribed in the
complaint of which tiie defendant S. F. Har-
per waa In possession and the defendant J.
M. Bernhardt baa cnt timber thereon, both
defendants claiming title nnder G. A. Sulli-
van, and asking an injunction against the
defendants from cutting said timber or re-
moving that which has already been cut
The Jury rendered a verdict in favor of
the plaintlfr, assessing the damages at $60.
Judgment was rendered accordingly In fav-
or of the plaintiff for the tract of land de-
scribed In the first iasae and tor said dam-
ages. The defendants appealed.
Edmund Jones, of Lenoir, for api>ellant
Harper. Lawrence Wakefield and Mark
Squires, for appellant Bernhardt W. C
Newland, of Lenoir, for appellee.
CLARK, G. J. [1] Both defendants ap-
pealed and sent up separate records; but,
aa tbey.were not on opposite sides nor pre-
sented antagonistic exceptions, this waa an-
unnecessary expense. Pope v. Lumber Oo.
(McGurdy'a Appeal) 78 S. B. 65.
The decision of this case depends upon the
location of, gra,nt No. 384 to Aaron Brad-
shaw. The first exception by the defendant
Hatper ia for the refusal of tiie motion to
nonsuit . Thia motion could not have been
granted aa tl^ere was sufficient evidence to
go to ths Jury.. .
[2] Harper's second exception la for the
refusal to admit in evidence a map claimed
by the defendants to be a plot of McCaleb
Coffey's land. This map consisted of some
Unas only, nothing b^lng written upon it
•aplalnlng what lands were referred to, and
there was notblng to give It validly or au-
thoiity as evidence in this controversy. It
was not attached to any muniment of title
and waa Incompetent Jones v. Hugglns, 12
N. C 223, 17 Am. Dec. 567; Dancy T. Stigg,
19 N. a 615; Dobson r. Whlaenhant, 101
N. a 646, 8 S. S. 126.
[•] Ttx9 defendant Bembardt's first excep-
tkm la to permitting the witness Sullivan to
state that whan be bought the land from
Coffey and b^an to survey he commenced at
a Spanish oak marked as a comer down
next to the ilver 30 poles teom the river.
The Spanish oak referred to was admitted
iv both parttee to be a pzop^ comw of the
land in contToversy. Klrby, wltnesa for de-
fmdanta, testified under their examination
that .J. T. Uontgomery, now deosased, point-
ed ont to hlin the ^^anish oak as the cor-
ner of the land Iq oontroveray. '
- Berithardt's second exception Is abaddtm-
ed, and bis third e?H!eptlon.ls.the same as
Harper's first exception above. Bernhardt's
"^Sr^r^^wTMwietSSe^^
210
78 SODTHBASTBBN BEPOBTEB
(K.C
fourth wcepUon Is the otdnilDii by the
court of the map made by J. O. Harper, and
was Incompetent apon the same authorities
that are dted In passing upon Harper's sec-
ond exception abore. It was not attached
to any deed and was merely an isolated plot,
and not competent. In this controrersy.
[4] Bemhardt's fifth exception Is to the
refusal of the court to permit C C. Coffey to
testify that his father, Thomas Coffey, point-
ed out to him a rock as the corner of grant
No. 41S7. The witness stated that his fath-
er tn pointing out this rock was pointing out
to him his own lines. It was therefore In-
competent aa a declaration in his own In-
terest
[6] Bemhardt's sixth exception was to the
refusal of the court to allow the said wit-
ness to answer the question, "Do you know
the reputation of the rock as being tbe cor-
ner of grant No. 4167?" This seems to be
repetition of the last question above, for the
witness was not SBked if he knew the "oet^
oral reputation of said rock as a corner."
[I] The chief exception and controversy
seems to be this: The defendants asked the
court to cha^e that *^he call In said grant
is 'south to and with said Elijah and Wll-
bom Coffey's line 14C poles to a stake,' and
the conrt charges yon that the line of the
Bradshaw grant would follow the Wilbom
Coffey line from the p<rfnt east 14fi poles, ir-
respectlve of course, and at the end of the
14S poles, wherever that might be, the Une
should tnm east and oonttnae that course
nntU it struck McCaleb Coffey's line; the
next call of the Bradshaw grant b^g 'east
135 poles to a stake in McCaleb Coffey's
line."* Instead of this the court charged:
"The proper Interpretation of the next suc-
ceeding call in the Bradshaw gnmt 'thence
south to and with Wilbom Coffey's line 146
poles to a stake' wonkl be met by running
tbe Une from the elrde in the paralleh^ram
to tbe line B F and then tnm the Intersec-
tion of these two lines south 146 poles along
ttie Une B F ud to the gouth at far at the
4tatanc» moy emtend.^
We think ther« was no error in tin above
reject It the pmyw asked by the defend-
ants had been given, flie lines ooold not have
been dosed. Under tbe Instruction given,
the Jury followed the 111^ D 7, which was
tbe WllbOm Coff^ Une (as admitted by the
defttidants) prolonged to 145 poles:
Under lite d^^eudantf prayer, if given,
tbe Une would have followed the Wilbom
Coffey line a short distance south, and then
have turned west with that line and then
south, and the Unee^ as already said, would
not have dosed. Under tke instmction, as
^ven, the line ran with the Wilbom Coffey
line, tlU it turned square off to tbe west and
then kept on in its course "south to a stake
145 poles, from B"— where the line bad
struck the Wilbom Ooffey line. It conld
not have been Intended to follow an the
turns of tiie ^nUMwo Coffey llne^ irrespec-
tive of eoursa
No error.
cm M. C. OT)
8TATB V. BL&OK et aL
fSupreme Court of North Carolina. May 22,
1913.)
1. CbIMIITAI. La.W ({ 804*)— TBIAI/-BXDUOINa
Chabges to Wbitihq.
Where defendant at the close of the evi-
dence requested the court to put his charge to
the jar; in writing. In accordance with Bevieal
1905, { 636, the conrt'a refusal to do so was
error.
iEA. Note.— For other caaea, see Criminal
Jaw. Cent. Dig. || 1M8-1&67; Dea Dig. |
804*]
2. CRnmiAX. Law ^ 1099*)^Appial— Ftmro
or Bbcobo — SnpuuTion — Nscnasm or
Writino.
Under Supreme Court Bole 39 (140 N. C.
867, 53 S. E. ii), providing that the court will
not recognize an; agreement between counsel in
any case unless it snail appear on tbe recoM or
in writing filed in tbe cause in this court, an
oral agreement of counsel for the extension of
time for preparing and serving a counter case
will not be considered.
[Ed. Note.— For other cases, see Criminal
^,^Gent Dig. U 2886-2880; Dee. Dig. {
Appeal from Snperior Court; Buncmnbe
County ; Long, Judge.
W. F. Bla^ and others w&» convicted of
consi^cy, and they appeaL Error, and new
trial ordered.
X Scroop Styles, W. P. Brown, and H. B.
Carter, all of Asheville, for appellants. At*
tomey General Blck^ and T. H. Calvert,
for the Btata
WALKBB, J. The defendants were charg-
ed in the court below with conspiracy. Tbe
prosecntion originated In tbe poUce court
of Asheville, by affl<tavit of a G. Lannlng
and a warrant based thereon. Defendants
were convicted In that conrt and appealed
to the superior court, where they were again
convicted, and from the last Judgment they
have an>ealed to this court
[1] It is nnneoessary to consider the nu-
merous exc^itlons In the case, as it appears
therefrom that at the dose of the erldenoe
the defendants requested the Judge to put his
charge to the Jnry In writing, which he re-
fused to da Exception was duly taken to
this ruling, and the same is assigned aa
vror.
We are ounpelled by tbe statute and the
decisions of this conrt to sustain this ex-
ertion. Revlsal 1906, | 636, provides:
"Every judge, at the request of any party
to an action on trial, made at or before the
dose of the evidence, before instructing the
Jury on the law, shaU put his instructions
in writing, and read them to the Jury; he
shall then sign and file them with the clerk
aa a part of the record of the acthm." We
•ror etfesr flaws sis laas tnl* sad sMlln HUHBBB la Dee. Ms. * Am Wa.
N.OJ
ORXXN' T. DUNK
211
baTe held that tbls provlston of the hiw la
mandatorr, and If the Jadge falls to com^iy
with a reqneet duly made that he reduce bis
charge to wiitiiig, a new trial will be or-
dered, If proper exceptton la noted In the
case on appeal. Carrie t. Clark, 90 N. C.
358; Drake t. ConneUy, 107 N, 0. 463, 12
8. E. 251 ; State T. Young, 111 N. a 715, 16
S. B. 543; State T. Dewey. 189 N. C. 664, 51
S. EL 937; Sawyer t. Lumber Co., 142 N. C
162, 65 S. E. 84. The question is not whetta*
er the record contains the Instructions aa
actually delivered, there being no admission
In regard to it, but whether the request was
duly made and refused and the refusal fol-
lowed by an exception. The Judge muat
comply with the request State r. Toung,
111 N. C. 715. 16 S. EL 543. is much like
this case, and there Justice Burwell eald:
"In Drake v. Connelly, 107 N. O. 463 [12 8.
B. 251], it was decided that the refusal to
put the charge In writing and read it to the
Jury, if the request that this should be done
was made in apt time, entitled a party In a
dTil suit to a new trial, for the reason that
such refusal would be plainly a violation of
Code. I 414. If this is true In a dvll suit,
much more is it true In a criminal action,
where life and liberty are involved. The
question, then, is: Did his honor toll or
refuse to comply with this request?" And
again: "The case made out by the prisoner's
counsel, and duly served on the representa-
tive of the state in this prosecution, and not
excepted to, states that the prisoner's coun-
sel entered an exception when this oral sup-
plemental charge was so given. Whatever
may be the facts, we most consider the case
as it is presented to us in tiie record, and
are not at liberty to assume that do such
exception was then made, because we may
feel sure that the learned Judge would cer-
tainly have put his supplemental Instruction
In writing If his attention had been called
to the matter by an exception entered at
the ttme." And in Sawyer v. Lumber Co.,
snpra, Chief Justice Clark thus referred to
the mandatory character of the statute: "It
is but Just to the learned Judge who tried
this case to add that he states that through
inadvertence. In the haste of the trial, he
did not observe that the prayer was to put
his charge In writing, as well as to give the
prayers subjoined. But as the statute gives
a party a right to have the whole charge, as
to the law, put In writliw if asked *at or be-
fore the close of the mideuea; we must dt-
reet a now trial."
We are satisfied that the careful and
teamed Judge who preedded at the trial must
from some canse have been Inadvertent to
the request of counsel; hut, as we have
shown by the decided cases, even this is
fatal to the verdict and Judgment
12] The state asked for a certiorari, so
that the solicitor fiould file a counter case on
appeal, upon the ground that ttie def^dants
bad filed their caw with him after the time
fixed by the agreonent of the solicitor, who
had waived this irr^larlty. It Is allied
that there was an express agreement, and, if
not then an implied agreement that the
solicitor should have more time to file a
counter case; hut this Is denied by the de-
fendant's counsel. Rule 88 (140 N. C. 667,
53 S. E. Ix) provides that "the court will
not recognize any agreement of counsel In
any case, unless the same shall appear In
the record, or In writing, filed In the cause
In this court" We have repeatedly held
that we will not undertake to settle disputes
between counsel as to their oral agreements.
Mirror Co. v. Casualty Co., 157 N. 0. 28, 72
S. E. 826. The defendants prepared and
tendered their case, and service thereof was
accepted. The solicitor filed no exception
thereto and did not serve any counter case.
We are therefore confined to the defendant's
case on appeal as it appears in the record,
and which was duly served and filed as re-
quired by law. State v. Young, supra.
There Is a question raised by defendants
as to the final Jurisdiction of the police court
in this case, and as to the power of the su-
perior court to try the case merely upon the
affidavit and warrant This objection, if
tenabl^ may be' obviated, perhaps, by re-
quiring a bill to be sent to the grand Jury
and an indictment returned. But this Is only
a suggestion, to be followed or not as may
be deemed proper.
The error In refusing to write the charge
and read It to the Jury requires that a new
trial be ordered.
New trial.
(US N. a MO
GREEN V. DUNN.
(Supreme Court of North Carolina, l&y S2,
1913.)
1. Tbux, (I 260*)— Issues— Rbfttsal.
It is not error to refuse issues teadeied by
the defendant when the issues submitted hj
the court present every phase of the contro-
versy.
[Ed. Note.— Por other cases, see Trial Cent
Dig. H 661-^ ; Dec Di^ f ^-'l
2. Pleadihu Q 418*>— DncuBBBi— Bitunm
— Waiveb.
Error in overruling a demurrer to the blU
Is waived by the filing of an answer.
[Ed. Note^— For other cases, see Pleading.
Cent Dig. li 1398^ 140S-14W; Dee. Dig. %
418.«1
8. APPEAL AND EaaoB (I B16f) — Bicoan —
Stenoobaphib's Notes.
While a stenography's notes are material
for the consultation of the trial judge in mak-
ing up the case, he may not send them up as a
part of the record of Bis own motioD.
[Ed. Note.— For other cases, see Appeal and
Error, Gent Dig. H 2822-2S26; Deo. Dig. |
516.*/
Appeal from Superior Cotut, Lenoir Coun-
ty; Justice, Judge.
Action to remove a cloud on tltie by Ridi-
•For otber oum ms sua* tople >nd sMtloa MUUBfeR la Dm. DIf. A Am. Dig. K«r-]eieBRlM:#
212
TS SOUT|iUASTBIBM BBBOBTEB
ard C. Oreen agaloat Gbarles F. Dunn. Jadg-
aaait tot plaintiff, and defendant appeal&
Affirmed.
€L V, Dunn, of Klnstcm, In pro. pw.
V. Gowper, of KInston, for appeQee.
O.
CLARK, a J. On Marcb IS. 1910. Vlm-
ence Henderson owned a small lot In Eln-
ston. According to tbe plalntUTs evidoice
Bbe sold Uie lot to him for f36, and be paid
ft)r tbe same In fall; bnt tbe render being
ill at tbe time sbe did not make blm a deed,
but her agent gave him a receipt for tbe
money, and by her authority he took posses-
ion (tf the property, rented it oat, and later
started a building on it; and has been in pos-
session to the present In May, 1910, the
lot was sold for taxes C23 cents), and was
bought by the defendant for 32 cents. In
June, 1910, the plaintUF, who bad understood
that the taxes were paid when be bought,
testifles that on learning that the lot bad
been sold for taxes he tendered tbe, purchase
price, legal costs, and 20 per cent interest
four or five times during lOlOtothepurcbas-
er, and also to tbe sherllf and to the dty
tax collector, each of whom declined to re-
ceive the same. In May, 1911* the defend-
ant obtained a deed ttom the diertff for
the land. The defendant, in bAa testimony,
denied that any tender had been made him
by tbe plaintiff nntU after he lu(d recelTed
tbe deed from the iheriff. The sheriff tes-
tified that the pii(int<if several times during
1910 offered to pay him all taxes, costs, and
20 per cent, but that each time he referred
htm to Dunn, who had purchased the land.
TbB city clerk testified that It was bis cns-
tom not to take taxes from the owners of
land after It had been 80ld» bat that he al-
ways salt them- to settle with the pnrdiaser;
that tbe plalntUTs character wa« good, but
that he does not remember whether he ten-
dered him the taxes, etc, or not Witness
Hodges stated that during 1030 be heard
the plaintiff toider the defmdant the taxes,
costs, and 20 per ceait The plaintiff also
testified that in tendering tbe taxes he did
so as agent of Florence Henderson, who had
«o authorised him.
[1] This is an action to remore doud upon
titl& The court submitted as tones: "(1)
Did fbB plaintff^ within one year from tiie
date of flie tax sale to the defendant, make
an offer and tender of the amount of taxes
paid by defttidan^ together with costs and
20 per cent charged? (2) Is plaintiff, Rich-
ard 0. Green, tbe owner of the land describ-
ed in complaint and esitttled to possession
thereof?' To both of which the jury re-
sponded. *7es.'* These lasnes presented every
phase of the eoatroveray. and it was not
error to refuse those tendered by the de-
fOkdant In May. 1919; Florence Huidffison
executed a deed to the i^alntlfl to the land,
wbltib was prior to the beginning of this
action, sod he was iK^perly the party In In-
terest and entltied to maintain this acthm.
It is Immaterial to consider whether the
plaintiff, as eaultable owner, roald make a
legal tender of the taxes, as he testified
that he «ilso tendered them as agent of Flor-
oice Henderson. We must presume that his
bonor charged properly upon these points,
as there is no exc^tlffli to his charge, and
it la not sent up.
{2] We need not consider ttie proposltlonfi
set up in the demnrrer, as that was, of
course, overruled by filing tbe answer.
Moseley v. Johnson, 14A N. a 273, 66 & B.
922.
[9] The atoiographer's notes were not sent
up as a part of tbe record, and cannot now
be filed, as tbe defendant offers to do. They
are material which the Judge could consult
In making up the case. But it would have
been error for the jndge himself to send
them np as a part of tbe record, as we hare
repeatedly held. Locklear , t. Savage, 159
V. C. 240, 74 S. B. 347.
We Qnd In the record no Indication that
the Judge committed any error in the trial
of the cause. ».
Mo error.
(Ut K. a M)
WILSON DUMBER & MILLtNO 00. T. AT^
KINSOK et aL
(Snprame Cioart of North Carolina. Hay SO,
1913.)
1. BVIDKRCS (I 106*)— OukAOm-^AFPUOi.*
TXON OF PbOOP.
In a salt to set ailde a comi>romlBe and
settlemoit for defendants* alleged fraud, ert
deace that the general character of a defendant,
who bad testified In bis own behalf, was good,
white competent to sustain his credlbill^ as a
witness, could not be considered as a- sabstan-
tive fact to disprove tbe fraud*
iBlA. Nota— For other cases* sae Bvidene^
Cent Dig. i| 177-197; DeeTrag. 1 106.*]
2. Afpkaz. and Eeibob ({ 1060*)— Soofk or
BVIDBNCB— PbEJUDICK.
Where evideoce of defendant!* alleged
fraud in indncinf complainant to make a com-
promise and lettlement of a claim against them
was BQcb as to sustain a finding In complain-
ant's favor and require submission of the ques-
tion to the jury, a ruling that evidence of de-
fendanta^ good cbaraotCT oonld be oonddered as
substantive proof to r^nt the fraud was preJut
diclal error.
[Bd. Note. — For other cases, see Appeal and
Error, Cent Dig. « 1068, 1060, 4153-4167,
4166; Dec. Dig.) 1050.*]
Appeal from Superior Oourt, GaldweU
County; Lyon, Judge.
Action by the Wilson Dumber ft Milling
Company against J. B. Atkinson and others.
Decree fbr defmdants, and complainant ap-
peals. Beversed.
This action waa broaght to set aside a
compromise and settlement between the plain-
tiff and the defmdant Ji P. Babb, made on
December 20, 1909. Plaintiff, during the
years 1904. 190S, 1906, and 1907, was en*
•Fwettsssssissss SMS torts seassoUon HUHBXB in Dm. Dig. « An.
wiutoN Lxnama a muLaxQ oo. t. atkinbok
213
gaged In tbe lumber biuiiien. of vhlch J.
B. AtUnMm, tbe otber defendant, was Its
manager at Lenoir, N. O. The defendant
Babb cot. and deUvered to the plaintiff
at Morgairton and othw potnts a large quan-
tity of lumber, for which die plaintiff paid
blm from time to tlme^ At the otd of that
period tbe books of the plaintiff showed that
tbe plaintiff had overpaid Sabb for lumber
■o cot and delivered In the snm 94354.82.
Plaintiff alleged and offa:«d vtoat to show
that, while this was tbe apparent amount
doe by Rabb, he had in fact received a laree
payment or credit for lumber wbl<:b had not
been delivered, and the reel balance should
be $10,900, instead of $4364.82. and in addi-
tion to this amount thus owing by Batob to
the plaintiff the latter paid for him four
certain notes for the aggregate amount of
$1,900, Which was not charged on its books
against him. Plaintiff further alleges that
tbese items were omitted from the bot^ by
reason of fraudulent collnsion between At-
kinson and Babb, ot by mistake of the par^
ties. It then appears tiiat on December SO,
lOOB, plaintiff and defaidant Babb entered
into an agreonmt for a settlement, by which
certain timber was conveyed to J. H. Beall,
as trustee, to be sold and the moceeds ot
sale, together wtQi any cash paid by Babb,
to be apidled to the Ugnidatlim of Rabb's
debt to the plaintiff. This agrewent was
made for the pnrpoee of "adjusting and
settling" the account between tbe plaintiff
and Rabb. Plaintiff alleges tliat at the time
this agreement wise entered into 1^ tbe par-
ties it was totally Ignorant of the fact that
the lumber on the yard- at Moi^nton had
been delivered Bfibb, nndtf its contract
with him, or that Babb owed tlu company a
much larger amount than the balance of
$4354.82 recited in the compromise a^ee-
ment; that these facts were only known
to Babb and frandnloitty concealed by him
from the plaintiff, whereby it was made to
convey its own property for the payment of
a debt due by Babb to it; and that Babb
otherwise suppressed the true facts, for the
purpose of obtaining an unfolr advantage of
the plaintiff. Issues were submitted, and
upon them the Jury Mtomed tbe foUowlng
verdict:
Did the plaintiff company, at various
thnee prior to December 29. 1A09, advance
to tbe defeoidant I. P. Babb money to be
used by blm in purchaslag lumber and tim-
ber to be mannfactored into lumber by him
for the said lumber couqtany ? Answer : Xes.
"(2) Did the plaintiff and defendant, by
contract entered into between them on De-
cember 29, 1909, make a full and final set-
tl^ent of all matters of aceonnt eylfftfng
jetween them, growing out .of their lnmb«r
transactions? Answer: Tea.
"(S) Did tbe defoidant Babb, at tbe time
of maUnc the contract of DecWw 29, 1909,
fraudalently suppress or conceal from plain-
tiff facts within Us kaowledcs mm to. the tme
status of the acconiit brtiran Oeml An-
swer: No.
"(^ It eo, was the plaintiff thereby misled
to Its inJoryT" No answer.
"<6) Was said contract entered Into by
mutual mistake as to the true status of tbe
account? Answer : No.
"(6) Is the defendant Babb Indebted to tbe
plaintiff? If 1^ In what amonntr* No im-
swer,
"(7) Is the plaintiff's cause of action bar-
red by tbe statute of limitations? Answer :
No."
In the verdict prop^ the answer to the
flrst Issue ts simply "Tes." while the recital
of the verdict in the Judgment of the court
states that it was, "Tea ; but sot a^ ««ent" .
But this discrepancy Is not considered ma-
terial In the view we now take of the case.
By the contract with Babb for cutting the
timber and delivering the lumber, it is pro>
vlded that the lumber shall be considered as
delivered, and shall become the property of
the lumber company when it is piled on the
yard. At the close of the evidence tbe court
ordered a nonsuit as to Atkinson, and the
case proceeded as to Babb with tbe result
above stated. Judgment was entered npon
the vwdlct, and plaintiff, having duly ex.-,
oepted to owtaln nillng^ awaaled to this
court
Mark Sgatres^ of Lenolr» and A. B. Hol-
ton, of Wlnston-Salem, for appelant W.
B. Oonndll, of Hickory, and Uwrenoe Wake-
fl^d, of Lenoir, for appellee Atklnspn. W.
'C Newland, of Lenoir, and 8. J. Brvln. of
Bforganton, for appellee Babb.
WAI^B, J. (aftor stating the facts as
4bove). [1] We have stated so much of the
pleadings and evidence as is necessary to
present clearly one of tbe exceptions of the
plaintiff, which we think was propaly taken
and should bo sustained. Evidence of the
general character of the defendant 3, P.
Babb was introduced ; the witnesses testt^-
ii^ that It was good. He had testified him-
self, at great length, as a witness in his own
behalf, and had denied drcnmlBtantially the
charge of fraud made against him. It was
competent to prove his good character, so
ffir as necessary to snstain his credibility as
a witness ; but in bis charge tp the Jury the
Learned Judge expressly permitted the Jury
to consider his character as a substantial
fact Involved in the issue of fraud. This Is
the language of the particular Instruction,
to which exception was iipted ; "Tbe defend-
ant Babb being charged with fraud, evidence
of his good character should be considered
by you as substantive as well as corrobora-
tive evidence, in passing on the Issue of
fraud." This was error. It has been said :
"That a, person did or did not do a <;ertain
act because his character would, predispose
him to do or, net to do it.is.i^n loference
^bicb, although somflt^,tMg^£,04@g
214 78 SOUTHBASTBBN BBPOBXEB
tlTe, tbe Bi^llBh law ot eridence, with some
excepttons, absolutely rejects In dvU cases."
16 Ore. 1268. The text-writer dtes numerous
cases in the notes to this passage in support
of the ^position, and, among others, several
decided by this court Jeffries t. Hunt, 10
N. a lOS; McBae t. Lilly. 2S N. O. 118;
Hrtleg r. Dumas, 6S N. O. 214 ; Marcom ▼.
Adams, 122 N. O. 222. 29 S. E. 833. In Hc-
Bae T. Lilly, supra. Judge Qaston applied
the role of exclusion to a case of seduction,
In these words: "It is also Insisted that the
Judge erred in rejecting the testimony offer-
ed by the defendant to show that his general
duracter was that of a modest and retiring
man. We are satlsfled that there was no
OTor In rejecting the testimony proposed. In
(dvil suits the general rule Is that, unless the
character of the party be put directly In
Issue by the nature of tbe proceeding, evi-
dence of his character is not admissible.
And no reason Is seen why, in this case,
there should be an exception to the general
rule." More directly to the point Is the lan-
guage of the court In Heileg t. Dumas,
supra : **If such eridrace is proper, then a
person may screen himself from the punish-
ment due to frandnloit conduct till his char-
acter becomes bad. • • • Byery man
must be answerable fbr every impropa act,
and tbe character of every transaction must
be ascertained by its own drcomstanoes. and
not by the character of the parties"— citing
Thompson v. Bowie. 4 WalL 470, 18 L. Ed.
428, and quoting from Fowler v. Insurance
Co., 6 Cow. (N. Y.) 673, 16 Am. Dec. 460. The
subject is treated exhaustively, with full d-
tatiohs, In Norris v. Stewart, 106 N. O. 455,
10 8. E. 912, 18 Am. St Bep. 917, where the
defendant was enlarged with fraud, and tes-
timony as to his good character was offered
and rejected. The ruling was approved by
this court. Justice Shepherd saying: "As
a general rule, evidence of good general chat^
actw la inadmissible, by way of defense, in
dvU actions in which a party Is charged
with a spedfic fraud, because the character
ot every transaction must be ascertained
from Its own circumstances, and not from
the character of the parties. Such evidence
Is not admitted in dvil actions, unless the
nature of the action involves the general
character of the party, or goes directly to
affect it" So whatever the rule may be else-
where, the law of this state has been set*
tied by repeated dedslons. We need not In-
quire, therefore, whether the reasons for the
rule are snffldent to Justify it The distinc-
tion between dvll and criminal cases In this
respect was clearly stated by the present
phief Justice in Marcom v. Adams, supra,
approving the rule in dvil cases as we have
stated it The court committed a positive
error in ^vtng the Instruction excepted to,
end a new trial nnist be granted, If it was
prejudicial.
[2] The defendant J. P. Babb contends
that it was harmless, as upon a fair consld-
(N.a
eration of the facts iriUdi tbe evidence tmOs
indisputably to establish tlie detendant was
entitled to the verdict whidi was rendered
by the Jury. But we do not understand this
to be the state of the evidence, and the plain-
tiff strenuously Insists that on the contrary,
there is strong proof of fraud on the part ot
Rabb, and of a collusive arrangement be-
tween him and Atkinson, his codefendant, to
cheat and defraud the i^aintlff. We might
by a discussion of the testimony, demonstrate
that there Is evidence for the consideratloa
of the Jury upon the question of fraud. If
the lumber m the yard at Morganton bad
been delivered and belonged to the plalnttfl,
it is strange that if it had knowledge of the
fact the lumber should have been transferred
to the trustee to pay a debt due by Babb;
in other words, that it should pay Babb's
debt due to it, vrlth its ovm property. If
the lumber did not belong to the plalntUT, not
having been delivered, then Rabb has re-
ceived credit on the books of the plaintiff to
which he was not entitled, and in dther view
he would be Indebted to the plaintiff, unless
the latter Is in some way estopped or con-
duded by the settlement Thwe is enough
on the tace of the agreement and in the con-
duct ot the parties to show that the plain-
tiff did not understand tliat the lumber had
been delivered, and thertfrae that the title
had passed to It It might fairly be argued
that If it did It would not have arranged
to pay a debt due by Babb to it and there
is evidence, as we look at tbe case, tliat Babb
knew that plaintiff was acting upon the false
assumption that the lumber was not its prop-
erty, and yet dealt with the plaintiff, in mak-
ing the settlement, well knowing that plain-
tiff was acting in ignorance of the facts.
Tbe phraseology of the agreemoit Is such
as to Indicate that plaintiff bad some claim
on the lumber, which was released, but was
not the owner; either that, or It Is so am-
blguoQsly Worded that the Jury might have
drawn such an inference from it in view of
the other facts and drcnmstances. If by
his conduct and the manner of dealing with
the plaintiff in making the settlement, he
induced the plaintiff to t>elieve that the hun-
ber belonged to him and not to the plalntUK,
and took advantage of his own peculiar
knowledge of the true situation, and plaintiff
was misled, beguiled, and overr^died In the
transaction, the law will not permit tbe set-
tlement to stand in the way of an equitable
adjustment between the parties. As was
said in Manter v. Troesdale, 57 Mo. App. at
443: "The general rule is that mere silence
cannot be treated as a representation, but
a party may put himself in a position wha%
he is bound to speak. The Supreme Court
in the case of McAdams v. Cates, 24 Mo. 223.
In discussing ttils subject said: 'Although
many duties must be left by law to the honor
and consdence of Individuals, the public mor-
als rajulre us to lay down and enforce such
mlem in relktton
WJUSON IiYTMBm A MIIXINO 00. T. ATKINBOK
315
men, u win secvre ffclr and honorable deal-
lug, as far as this Is practicable, oonslstent-
17 with the freedom oC Indiviaial action and
tbe Interests td oraunerce. 1^ In a contract
«f sale^ the raidor knowinglJ: allow the ren-
dee to be deceived as to the thins aoid In a
matwial matter, his i^we Is grossly traudu-
loit In a mwal potnToC tIsw, snd may tM
safely treated accordingly In tl» law trlbur
nals of tbe country. Althoo^ be Is not re-
quired to give the purchaser all the Informa-
tion be poBsesaes blme^ he cannot be per-
mitted to be Bll^t when his sllenoe <verates
Tlrtually as a frand. If he falls to disclose
an Intrinsic drcnmstance that Is vital to
the contract, knowing that tbe otbw party Is
acting upon the presumption that no such
fact exists. It would seem to be Quite as
mnch a fraud as if he had expressly doiled
It, or asserted the reverse, or used any arti-
fice to conceal it, or to call off the buyer's
attention from it' " And again: "When the
law attaches conseQuences to silence. It does
so. It seems, upon a footing of a brea<ii of
duty to speak." See, also, Thomas v. Mur-
phy, 87 Minn. 358, 91 N. W. 1097. It was
said by Lord Cranworth, In Beynell and
Sprye. 1 De Gex M. & G. 708: "Once make
out that there has been anything like decep-
tion, and no contract restUig In any degree
on that foundation can stand."
There is room to argue that Babb knew
that plaintiff, when the agreement for settle-
ment was being n^otiated, was evidently
misled as to the title of the lumber and was
acting in utter ignorance of Its rights, while
Rabb himself knew whether or. not the lum-
ber had been delivered under the contract
of 1906. so that the title had passed to the
plaintlfl^ for he was the one to make the de-
livery. The books of the plaintiff disclosed
tbe &ct, perhaps, after an expert's examina-
tion of them, conducted through several
months, but there Is evidence that an ordi-
nary inspection of them would not have dis-
covered the tme situation. While notice to
an agent Is notice to his principal, we can-
not hold, under the facts and drcumstancea
of this case, that knowledge of the true title
to Atkinson, plaintiff's manager and a di-
rector, was notice to plaintiff of such title.
If the agent is so circumstanced as to make
it bis Interest to wlthold Information from
bla employer, then tbe rule that notice to him
Is notice to his principal, or the doctrine of
imputed knowledge, does not spply. Stan-
ford T. Grocery Co., 143 N. C. 419, 56 8. B.
816, and Tiffany on Agency, 282, 263, where
It la said: '^e prlnciiial Is not bound by
the knowledge of his agent when It would fce
against the agents Interest to inform bla of
tbe facts. Therefore, if tbe ag«nt Is engaged
In perpetrating an Independent fraud oa his
own aoconnt, knowledge of facts relating to
the fraud will not be Imputed to the prinei-
paL Tbe principal Is not bound, ft Is said,
when the character and nature of the agent's
knowledge make It Intrinsically Improbable
that he wHI Inform his piindpaL Whetdier
the rule or the exception rest upon a pre-
sumption Oiat tbe agent will or wlU not
communicate tbe facts to his principal may
be doubted. Whatever tbe reasons for tbe
exception, It Is well establlEdied. Of course,
if the agoit Is openly acting adversely to his
principal, his lowwledge will not be imputed
to the latter. In such case he is not acting
as agent, bat on bis own bebalt" Whether
the plaintiff knew of Its title to the lumber,
or could have known of it by the exercise of
ordinary care and reasonable diligence, were
questions for the ^ury, and they were prop-
erly submitted to them by tbe court in this
case. It must not be understood that we are
even intimating any -opinion upon tbe weight
of the evidence or its snflBdency to estaldish
fraud. As the case must be tried again, we
would scrupulously rtfraln from Indlcatinx
any view upon that question, lest we might
prejudice one or the other of the parties.
All we decide is that there Is evidence in
the case, as now presented, upon the issue
of frand, and that It was error to instruct
the jury that they should consider what was
said by the witnesses in regard to the good
character of J. P. Rabb "as substantive evi-
dence In passing upon that issue." We can-
not consider this instruction as harmless. It
may have had great weight with the jury In
deddlng with tbe defendant
We have examined tbe evidence very care-
fully, and think the judge committed error
in holding that there was no evldmce against
the defendant John B. Atkinson. The evi-
dence may not have been either strong or
convincing, but we are unable to say that
there was absolutely nona He was the gen-
eral agent of the plaintiff company at Le-
noir, and there are facts and circumstances
disclosed by the evidence, In regard to his
management of Ito affairs and his relations
and dealings with his codefendant, which, in
our o[dnlon, should be submitted to the Jury.
It might prejudice one or tbe other of the
parties If we discussed the evidence in this
connection, or even commented upon it, and
for this reason we r^«.in from doing so.
New trial.
'Digitized by Google
78 SeUTHBASTBIRN EBPOBTXB
ouv. cm
OT^ARKBl et aL T. AZJJRIDOB.
(iSnprana Coort of North OaroliiUL May 22,
1918.)
1. Assnrjjiai, Y^ir w d 1*) — Soons or
SXIEBDT.
A writ of asaiitaiicMk in .iU ordinaiy ac-
ceptatioDf is one inuing' from a conrt baring
general equitable }ariedietio& for the enforce-
ment of decreet or oiden conferring a right to
die present posseeilon or enjoyment of property.
It uaaally iSBuea on motion after notice duly
•erred, when the ri|^t thereto i* clear and, as
a. mle, cmly against parties or penone bound by
the terms of the decree.
rSd. Note.— For other caeea, see Assistance,
W^oU Cent Dig. t 1; Dec/Dig. | L*]
2. Deeds (i 116*)— PBTSzau. Bubvxt— Dn-
80BIPTI0R.
Where parties, with a rlew (tf making a
deed, go on the land and malce a physical sur-
ray of the sam& giving it a boundary which is
actoally mn and marked, and the deed Is there-
upon made, intending to conrey tbe land which
tn^ have snrreyed, soch land will pass, at
least as between the parties or volunteer claim-
ants who hold in ^n^, though a different and
erroneous description may appear mi the face
of the deed.
[Ed. Note.— For other eases, see Deeds; Oent
Dig. I S2S; Dec. Dig. | llfi.*]
S. Btidknob (1 400*)— Pabox, BvnmroB-Coir-
TBADicnon or Deed.
Parol evidence of a survey by the parties
prior to tbe execution of a deed to identi^ the
land intended to be conveyed is admissible to
control the written descriptico in the deed.
[Bd. Note.— For other cases, see EMdenee,
Cent. Dig. H 2115-2128; Dec. Dig. | 460.*]
4. JuDomrr Ji 786*) — Goholdsivbiius —
pABTiTiofl Decbeb— Issues.
Where, in a prior siUt, the parties only
Joined Issae as to tite deUvery of certain deeds,
and the gnestlon ti -boundary or eoraeot loca-
tion of the land was neither hivt^Ted nor de-
termined, a provision In tbe decree that defend-
ant was the owner of the land described in the
deeds was not conclusive as to tbe location of
tbe land actoaBy conveyed.
[Ed. Note.— For other cases, see Judgment,
Cent Dig. || 1263, 1266; Dec Dig. S 735.*]
5. JuDGMsnr <S 638*)— DicaXB-QairaxBuo*
xion— DsacHnrrzoN of Lard.
Where, prior to the execation of certain
dfeeds, the parties went on the land and made
an actual survey of the land hitMided to pass,
marking the bpundaries thereof, sad then ex-
ecuted deeds by a description which did not
comply with tbe boundaries' located, a decree
awanUng tide to the land contained in the
deeds should be Interpreted to mean "as con-
tained" in the deeds correctly located accord-
ing to law.
[Ed. Note. — For other easM, see Judgmeott
Cent Dig. ii 978, 983; Dec Dig. | 63S.']
Appeal from Baperlor Court, Mitchell
GOdnty; OHne, Judge.
Action by T, P. Clarice and others against
Beojamin Aldridge. Judgment for plaintiffs,
and defendant aweala. Beveiaed.
On the trial It vaa made to ai^tear that
heretofore plaintiffs and defendant, other
than Benjamin Aldridge, as children and
heirs at law of D. S. darke, deceased, bad
instituted suit for partition of certain lands
in said county. Owing to the existence of
equities affecting the title, and not relevant
to the pres»it Inquiry, the cause was bron^t
to superior court In term. Fending the con-
troversy, defendant, Benjamin Aldridge, on
motion, was made party d^endant and
pleaded sole seisin aii to a portion of th«
land, under and by viHae of two deeds from
D. S. Clarke to two of his sons, H. W. Olarke
(Henry) and J. B. Clarke, of date March 8.
1898; said Aldridge havli^ acquired and
holding whatever estate and Interest were
conveyed In' these deeds. A deed to a third
son, Barvey, for an additional portion of the
land, purported to have been made at the
same time. Tbe plalntUfs, in tbe partition
proceedings, denied tbe validity of this claim
on the part of Aldridge, asserting that the
alleged deeds by D. S. 01ari:e to his sons
had never been delivered. The following
Issue was submitted and responded to by the
Jury: "(1) Were the three deeds of March 8.
1898, executed by D. S. Clarke and wife^
Susan, to James Clarke, Harvey Clarke, and
Henry Clarke, delivered to said parties? An-
swer : Yes." It was thereupon adjudged that
Benjamin Aldridge was owner of the tracts
of land described in tbe two deeds from D. 8.
Clarke to Henry and J. B. Clarke, and that
Harvey Clarke owned the land "described In
the deeds to hinL" Thereupon tbe defend-
ant, Aldridge, asserting his rights under said
deeds, and claimed by him to be In accord-
ance with said decree, particularly under the
deed to H. W. (Harke (Henry), which con-
tained tbe land lying next to that of plain-
tiffs, occupied the property up to a divisional
Une: "Bc^nnlng at a recognized comer at
p., runs thence S. 80 O. S3 poles to a stfike,
thence S. 65 E. 16 poles to a stake, thence N,
72 B. 60 poles to a. Stake, thence S. 87 E.
S2 poles to a black .^um, W. W. Clarke's
comer," etc. On the face of the deed to
H. W. Clarke, this divisional line Is described
as follows: "Beginning at tbe recognized
comer, D,^ runs tbm<x B. 11 E. 83 polra,
tbehoe S. 65 B, poles to ft stake, thence
N. 72 B. 60 poles to a ataki^ theice 8. 87 B.
62 poles to ft black gum, W. W. Clarke's cor-
ner,** eta ; tbe discrepancy, as It is now pre-
sented, bdnc cftused by running the line from
D.» S. 80 B. 83 poles, Instead of 8. 11 B. 33
poles, tbe call on the face of the deed. Tbe
plalntiEb, then, on affidavit filed and notice
duly issued and served oh all the adverse par-
ties, returnable to terra, moved the conrt for a
writ of aaslstapce to place them in posses-
sion of the land, according .to the terms of the
decree. On this notice, pleadings were regu-
larly filed, and at said November term, 1912,
the cause was submitted to tbe Jury and tbe
divisional line was estoblisbed by the verdict
to be as contended for by plaintiffs. There
was Judgment for plalntUf, and defendant
excepted and appealed, assigning for error
certain mllngs of tbe court on questions of
evidence.
liiDee.Dlg.aAm.Dlg.Ke^ff,^^^^
^wetfeflri
I ssb asms tovle sad ssoUoa MUllBBB
CZ*ABKS T.
217
W. L. Lambert, of Bakenrffle, W. G Mev^
land, of Lenoir, aod 8. J. Errla, of AIoxgan>
too, tar appelluit T. A. Lon^'of Saglsaw,
for aayollooa.
BOKB, J. (after stating fbo facta as
above), p] The writ of assiatanoe, In Its
ordinary accfiptation, is one iMQing from a
court having general equitable Jurisdiction
for the enforcement of decrees or orders
conferring a rl^t to the pr^ent possession
or enjoyment of property. It usaally Issues
on motion after notice duly served, when the
right thereto is clear, and, as a mle, only
against parties or persons bonnd by the terms
of the decree. Wagon Co. t. Byrd, 119 N, O.
464, 26 S. B. 144; Exum t. Baker, 115 N. U
244, 20 S. D. 448, 44 Am. St Rep. 449;
Knight T. Honghtalllng, 94 N. G. 408; 2 Beach.
Modem Bq. Practice, | 897 ; Schenck v. Con-
over, 13 N. J. Eq. 220, 78 Am. Dec. 06, and
see editorial note to case of Clay v. Ham-
mond, 100 111. 870, 65 li. Q. 352, app^rlng in
Am. 8t Rep. at page 154. It seems that the
facts of the present case would properly call
for or permit a resort to this process, bat
we are not required to detennlne this ques-
tion, tax Hm reason that, on notice dnly
served and retnmaUe to term, pleadings
have been regularly filed and the Issues de>
termlned by the Jury, and, the parties having
thus elected to treat the inoceedinga as an
original action to recover land, we have
concluded it Is best to adopt their view and
consider and deal with the case In that
fespect
[2] Oomlng, Qien, to Qia pilmdpal question
^^he validity of Che preacmt trial before the
jury— tba plalntUte put In e^ence the orig-
inal proceedings, including the decree and tb9
deeds under which defendant claimed, partic-
ularly that to H. W. Olark^ describing the
divisional line as rmmlng from the recog-
nised point at D., S. 11 IL 33 poles to a stake,
thence S. 66 B. 16 poles to a stake, etc., to
the Mack gum comer, and offered evidence,
farther, of the value of the lands wrongfully
occupied by the defendant It the line from
D., S. 11 SI., were run as called for on the
taoe of the deed. Defendant thai offered to
prove that, Just prior to the execution of the
deeds In question, and with the view of mak-
ing the same, the grantor, D. S. Clarke, de-
siring to make division of said land among
bis children, went on the premises with a
surveyor and the grantees, J. B. and Harvey
Qark^ and ran and marked the boundaries.
Including this divisional line in controversy,
running said line from "the corner fixed at
D., thence aloog a fences S., 80 E. 33 poles to
a stake, thence S. 65 E. 16 poles to a stake
along the fence, thence north 72 E. 60 poles
to a., thence S. 87 E. 62 poles to the black
gum at H.," said D. S. Clarke Indloating the
line and marking some of the trees and hav-
ing others marked on the line as surveyed;
that "tha deed in question was made pursu-
ant to said sufrvey, and intending to convey
the land embraced In the same." TUa, with
otbw avldenee of ^U«r purport, waa, o^
objection, exdoded by tha court) and we are
of <9bilon that the nillng most be hdd Cor
reversible error.
[3} It haa been long held Sat law. In this
states that, when parties, witb the view qf
making a deed, go upon the land and make
a physical survey of the same, giving It a
boundary which Is actually run and marked,
and the deed Is diereupon made, intending to
convey the land which th^ have surveyed,
such land will pass, certainly as between the
parties or volunta^ claimants who hold In
prirlty, though a dUterent and erroneoas
description m^ appear on the face of tlw
deed. Xhls Is regarded as an exception to
the rule, otherwise unlver^lly prevailing,
tliat, in the case of written deeds, the land
must pass acoordin« to the written dflserlp>
tlon as It apears In the tostrument (Beed v.
Schendt, 18 N. a 416); but it ih an excep-
tion so long recognised wlHi us it must
be accepted as an established prlndi^e In
our law of boundary.
In Oierry v. Slad^' 7 N. a 82, the position
referred to is thus stated: "Whenever it
can be proved that there- waa a Une actutlly
run by the surveyor, was marked and a cor-
ner made, the party claiming under the
patent or deed shall hold accotdicgly,' not-
withstanding a mistaken description of the
land In the patent or deed"— and In Beed v.
Sdienck, supra. It was again rtfierred to as
follows: *Tarol evidence to contrid the de-
acrfptlon of land oontolned in a deed la In no
case admissible; unless trhere monuments of
boundary- vr&e erected at the execution of
Uie deed. If Ow description In the deed
.'Varieii ffom these monnmoato, the former
may be contndled by the latter."
8oon after Uieee decisions, hnd In some of
the later cases, expressions will be found
giving IntimatlOB that the principle shonld
only be allowed to prevail when theta are
some other written data In the principal
deed or elsewhere by reference to which the
physical survey could b« attached, but a
careful examination of the authorities con-
trolling in the matter will disclose that this
suggested limitation on the exception may
not be stistalned. Thus In Cherry v. Slade,
Chief Justice Taylor, delivering the prin-
cipal opinion, refers with approval to the
case of Person v. Roundtree, 2 N. C. 378, as
follows: "In Person v. Houndtree, the latter
entered a tract of land, lying in Granville
county, upon Shocco creek, which was run
out, 'beginning at a tree on the bank of
Shocco creek, runolni; south a certain num-
ber of poles to a corner, thence north a cer-
tain number of poles to a corner on the
creek, thence up the creek to' the beginning.'
By a'mlstake, either in the surveyor or sec-
retary who filled np the grant, the courses
were reversed, placing the laik^
218
n SOUTHEASTBBN BBPOBTBB
Site aMe of the mek to Uut on whldi tt wa«
reaUy sozrered, so that the grcnt did not
coTw any <^ tbe land sniTeyed. Ronndtree
settled on the land snrreyed, wblcb was
afterwards entraed by Person, who obtained
a deed from Lord OranTille, and brought an
^ectment against Roondtra^ who j^ored the
lines of the trarvoy and a possession under
his grant Tbe oonrt decided that Ronndr
tree was entitled to the land Intended* to be
granted, and whl^ was sarreyed. and that
he shoal<l not be prejudiced by the mistaka
of the aorrayor or secretary." The qnestton
received very fall consi deration in several
cases appearing In volumes 119. 117, and 116
of our reports, to wit. In Hlgdon t. Bice, 119
N. a 623, 26 S. SL 206, and DeavOT v. Jones,
il9N. aO08,26S.ELlS6, Shaffer t. Gay-
nor, m N. a 15, 28 S. EL 1S4, and Cox t.
UcGowan, U6 N. a 131, 21 8. a 108, in
wticb Associate Jnstioe Avery, for the court,
In opinions of great force and learning, ^ves
adhwenoe to the principle as announced In
CSierry t. Slade and Person t. Ronndtree;
and in Hlgdon y. Rice tbe learned judge
said: "It seems to have been conceded that;
subject to some not very clearly defined re-
strictions, it Is a rule of law that deeds and
patents shall be so run as to include the land
actually shown to have been surveyed with
a view to its execution," In Deaver v. Jones
the court held that "when a grant is located
by contemporaneously marked lines, those
lines govern and control Its boundary and
fix the location so as to supersede other de-
scriptlonB." In Sbalfer v. Oaynor, It was
held: "A deed Is a contract, and the leading
object of the courts In Its enforcement, where
the controversy Involves a question of bound-
ary, is to ascertain the precise lines and cor-
ners aa to which the minds of grantor and
grantee concurred. Hence, thouffh parol
proof is not, as a rule, admissible to con-
tradict a pl^n, written description. It la al-
ways competent to show by a witness that
the parties by a contemporaneous, but not
by a subsequent, survey agreed upon a loca-
tion of lines and comers, different from that
ascertained by running , course and distance."
And again, In Oox v. McGowan: "All rules
adopted for tbe construction of deeds em-
body what the law, founded on reason and
experlrace, declares to be the best means of
arriving at the Intention of the parties at
the time of the delivery of the deed ; hence
course and distance, or even what Is con-
sidered, in law, a more certain or controlling
call, must yield to evidence, if believed, that
the parties at the time of tbe execution of
the deed actually ran and located a different
line from that called for, such evidence be-
ing admitted to show the description of the
line to be a mistake" — and numerous and
well-considered cases before and since these
decisions are in approval of the principle,
notably Lance v. Rumbough, ISO N. C. 19-24,
C3 S. B. 357 ; Fincannon v. Sudderth, 140 N.
O 246, 02 a. B. 679; Elliott r. Jefferson, 133
N. a 207, 4B8.EL6S8,64i:i.B.A. 135; Bar-
ker T. Sa By., 126 N. O. 596. 84 S. E. 701,
74 Am. St Rep; 668; Bonaparte t. Garter,
106 N. a 034* 11 S. B. 262; Baxter v. Wilson,
05 N. O. 187. In Lance Rumbough. Asso-
ciate Justice Walker, speaking to the ques-
tion, said: "The survey made under such
drctenstaneea is considered as a practical
location of the land by the parties."
[4] It la insisted for plaintiff^ that, al-
thoos^ the principle is fully recognized in
this jnrisdicttoa, it should not be allowed to
prevail in the present instance, and this by
reastm of the language of the decree in the
former proceeding "that defendant is the
owner of the land described in the deeds,"
and that defendant Is thereby estopped from
claiming the lands In controversy, but this
position cannot. In our view, be sustained:
First For the reason that the parties only
Joined issue as to the delivery of the deeds,
and the question of their boundary or cor-
rect location was In no way involved, and
certainly was not considered or determined.
It la the accepted rule. In such cases: "When
a court, having Jurisdiction of the cause and
the parties, renders Judgment therein, it
estops the parties and their privies as to all
issuable matters contained In the pleadings,
and though not issuable in a tedinlcal sense,
it concludes, among other things, as to all
matters within the scope of the pleadings
which are material and relevant and were In
fact Investigated and determined at the
hearing." A correct application of this prin-
ciple, announced in Tyler v. Capeheart, 125
N. 0. 64, 84 S. EL 108, and approved in many
other decisions of this court, Weston v. Ro-
per Lumber Oo., 77 S. E: 430, at present
term, Goltrane v. Laugblln, 1S7 N. a 282, 72
S. E. 961, and Oillam v. Edmonson, 154 N.
G. 127, 69 S. Eu 024, Is against the plaintiffs'
position. As heretofore stated, the boundary
of these deeds and their correct location were
not necessarily involved In the partition pro-
ceedings, nor were they in any wise put in
issue or Investigated, and no estoppel arises
therefore as to their proper location. Sec-
ondly, and apart from this, the law of bound-
ary, which we have discussed and held ap-
plicable to the facts presented in the record,
whether It be referred for Its basic principle
to the doctrine of mistake, as suggested by
Associate Justice Avery In Hlgdon v. Rice,
or to that of estoppel, as intimated by Mr.
Justice Douglas In Barker v. R. R., as be-
tween the parties or against privies, who
claim as volunteers, la a principle governing
the correct location of deeds which prevails
in actions at law.
[E] In such case, It has not been held that
any change in the phraseology of the deeds
is required, and therefore In a case where
the only Issue involved was as to the de-
livery of the deeds, and there was no ques-
tion of boundary either raised, considered,
or determined, a decree, awarding to a party
UUgant the landa ^t^e^Jpj^the deeds.
EDWAB1>S T. SOUTHBBN BT. CO.
219
should by correct interpretatioxi, be couilxaed
to mean "as contained" In tbe deada cor-
rectly located accoidlng to law.
For the error In exdudlngr the evidence,
there must be a new trial of the caoaa, and
It la so ordered.
New trial.
(W N. o. rs)
EDWARDS T. SOUTHERN RZ. CO.
(Snpreme Court of North Carolina. May 2%
1918.)
1. CABRIEBS (I 380*)— EJBCIZOH OF PASBXH-
GEB— PbOOP— VaBIANCX.
Under Revisal 1905, f (OS, pwrUttng that
no Tariance shall be material nnleaa it has M-
tuallj mislecl the adverse party, a variance m
an action against a railroad company for
wrcmgfnl ejection* between the anecation of the
station at which plaintiff iraa ejected and the
proof aa to such station, ia immaterial, where
there was no controversy over the place.
[Ed. Note.— For other cases, see Carriers,
Cent. Dig. H 1464-1466, 1469, 1470, 1472;
Dec. Dig. I 880.*]
2. Cabbiebs (I 8S2*)— Oabbxasi or PAsaEH-
GEBs — WBONonrL EncnoH ov PAanRon
— Dbfeitbbs.
Where a passenger, who had purchased
and snrrenderea a ticket, was wrongfully eject-
ed by the conductor upon the theory that he
had no ticket, the conductor's good faith will
not bar his right of action for compensatory
damagea, though it may be considered on the
Question of punitive damagea.
[Ed. Note.— For other cases, sea Oarrlera,
Cent Dig. if 1412-1414 ; Dec. Dig. S 352.*]
8. Cabsikbs (I 860*)— Gabbiaok of Passxn-
UBs— Ejection.
A passenger not gallty of any misconduct,
who has a ticket which he duly surt-endered to
the proper officials of the railroad company, is
entitled to ride to the destination called for in
such ticket, and a wrongful ejection entitles
him to compensatory damages.
niA. Note.— For other caaaa, see Oarriexa,
Gent Dig. i 140B; Dee. Dig. |8Ba*3 '
t. 0ABBIEB8 (I 882*)— OaBBXAQB OF PAaSM-
QRS — WaONSFDL BnOTXO V — BttABDBB OF
Damagbs.
Where a passenger is wrongfully ejected
In the presence of other passengers and in a
manner to humiliate him, those facts, as weU
as mental anguish and inconvenience, may be
considered on the question of compensatory
damages.
[Ed. Note.— For other cases, see Carriers,
Gent. Dig. H 1478, 1488-1491; Dee. Dig. f
882.*]
Tbial (I 260*)— iRSTBUonoHB— RiquwrB.
Where the coart refused to submit the is-
nie of pnnitive damages in an action against
a railway company for the wrongful ejection of
a passenger, expressly telling the Jury there
WM no evidence to snstain the allegation of
such demise, the refusal of defendant'a in-
structions on that issue is immaterial.
[Ed. Note.— For other cases, see Trial, Cent
Dig. if 651-659; Dec. Dig. f 260.*]
Appeal from Superior Court, Buthwford
Conntr; Justice^ Judge.
Action by Crawford Edwards, by bis next
friend, H. B. Kdwardi^ against the South-
ern I^lway Company. From a judgment
for plaintiff, defendant appeals. Affirmed.
This la an action to reoow damagea for
wrongfully ajectlng Uw plalntUE from tlie
defendant's train.
The irialntlfl offered evldenoe tending to
prove that on July 8, 1910, be boafiit a tldc-
et at Lattlmore tor CHlk^, itatlonB on the
defendant's road; tlut ha entered tlie de-
fendant's train as a paaaeni^ ; that he gave
his tidtet to tbe condnctor; and that he was
ejected from the train against his will at
Coze's Crossing, before he reached GOlkoy.
The tlclcet agent of Uie defendant testl-
fled In onroboratlon of tba plaintiff as fol-
lows: **Am agmt Sonthem Railway at Istr
timore. Know plain tUf. Sold him ticket on
8d <^ Joly, Sunday, 1910, from Latdmore to
GUhey. This Is the stub. He paid 60 cents.
Conductor asked me If I sold ticket to plain-
ttfl for Gilkey. I told him, 'Yes.' He said
plaintiff bad no Ucket to GUkey. After-
wards he said plaintiff had no tidut at alL
Ticket would show same aa stub."
There was no controversy that the plain-
tiff left the txaln at Coxa's Crossing, but
the defendant offered evidence tending to
prove that the plaintiff either had no ticket
to Gilkey or failed to give his ticket to the
conductor. The defendant moved toK Judg-
ment of nonsnlt, which was overruled, and
def^dant excepted.
The defendant asked tbe court to chaige
tiie jury as follows: "(4) That If the Jury
should find from the evidence, or the greater
weight thereof, that the conductor of the
defendant believed, or had good reason to
believe, that the plaintiff had not given him
a ticket from LatUmore to Gllkeiy, and that
the plaintiff had represented to the conduc-
tor that he had paid OS cents Instead of 60
ceata, which was the r^rnlar fare for such
a ticket, and if the Jury diould further find
that such representation, in eonntetlon with
the fact that tbe conductor of tbe def^dant
had not in his possession, among the tlclcets
collected by him, a ti<^et from I^attlmore to
Gilkey, If tbe Jury should find from tbe ev-
idence such a fact was reasonable ground
to believe plaintiff had not handed blm sudi
a ticket, thm the plaintiff cannot recover In
tills action, and the Jury should answer Om
second Issue 'No.* " Tbe court refused this
prayv of tbe defendant^ and tbe defendant
excepted.
The court Inatructed flw Jury, anx>ng oth-
er things, as follows:
(1) "If you find from the evidence that the
plaintiff bad a ticket from Lattlmore to Oil-
key, and yon find sudi fiact from the greater
wMgbt of the evidence, and ttmt be gaTO his
ticket to tbe conductor, tbm the court in-
struct you that be had a rl^t to ride on
defendant's train from Lattlmore to Gil-
key, the destination called for In his ticket ;
and the court Instructs you that, tf be was
ejected from tbe train (unless on account of
his own wrongful conduct or disorderly be-
fot otber esses sse same topic sad ssettoa NUHBSB Ui Deo. Dl» A Asl Dig. K^'
220
-78 S0UTHBA8TEBN BBPOBTBB
bavlor, and tbeA li no •rldente 9t andk be*
havlor), bis ejeett<m wu wrongftil and in
violation of the duty wlii<fli defendant owed
talm, and that be wonld be entitled to recoT-
w comptnisatorT damages, ^e amount or
qaantltr at damage whldi plaintiff would be
mtitled to reeoTor in this view would de-
pend npon the Caeta as yon find them to be
from tibe evidence. If yon find from the ev-
idence, and from Its greater weight, that the
defendant's conductor, after taking np Qie
plalntlCTs ticket, went to plalntltC and again
demanded a ticket and stated that unless
he paid his Are he (the conductor) would
put him off the train, and that this was
stated to plaintiff In the presence of other
passengers and In a manner to humiliate
and wound the feelings of plaintiff, and that
defendant's conductor actually did eject
plaintiff from its train, then you will con-
sider these facts as elements of compensato-
ry damages. And if yon further find that
defendant'^ conduct in ejecting aAd putting
plaintiff off its train was calculated to hu-
miliate plaintiff, then you will consider his
humiliation and the suffering entailed there-
by as dements of damages, as above ex-
plained to you. And if you further find
that the plaintiff was actually humiliated
by the conduct of the defendant in putting
tilm off the train in an out of the way place,
if you find that he was put off at an out of
the way place, after he had bought and turn-
ed In his ticket to the cdndnctor, and that
he suffered mental pain on account of sucb
conduct by defendant, then he wonld be en-
titled to compensation In damages, notwith-
standing the conductor may not have had
any intention of causing htm humiliation
and pain. The question Is, Was the conduct
of defendant (If you find It to be wrongful,
as explained to yon above) calculated to en-
tall mental snflorlng upon the plaintiff by
humUlatlbn and morUflcatlon, and did he
actoally Boffar lik that aunn^r' Defend-
ant excepted.
(2) **The court Instructs you tiiat cotspen-
satory damages conor and include a reaaonr
able and fair eompensation for loss of time,
loss of mon^, lAyirica] Inconvenience, and
mental Buffering and humiliation endnred,
and which could be considered as a reason-
able and probable result of the wrong done.
Of course you must ilnd that the plaintiff
sustained the wrong and that it was the
proximate cause of the damage sustained. If
you find that there was damage, and as to
this you have been lutmcted above.** De-
fendant excepted.
There was a vcardlct and Judgment for Qie
plaintiff, and the defendant excepted and
appealed.
S. Oallert, of Butherfordton, for appel-
lant
ALLBN, J. H] The motion to nonsuit 18
lnBUte4 vsfofk la ttila oonrt pdndpaUjr npm
the ground of a vartance between Um allegar
Uon and the proof In that the eompli^t al-
lies that tiie plaintiff was ejected at Bufli-
erfordton* and Hie proof la he vraa ejected
at Ooxe^i Orossing, but the vrhole record
shows Uiat there was no controversy as to
plac^ and the Beviaal, | 515. loorldea: **No
variance between Oie auction In a plead-
ing and the proof shall be deemed material*
unless It has actually misled the adverse
party to his prejudice In maintaining his no-
tion upon the merits."
[2] The prayer for instructlob asked by
the defendant was properly denied. Con-
struing the verdict with the charge, the Jury
has found that the plaintiff was a passenger
and had given his ticket to the conductor,
and that he was expelled from the train
against his wllL If so, his expulsion was
wrongful and gave the plaintiff a right of
action, and the good faith of the conductor
could not defeat the action and wonld only
be material on the question of punlUre dam-
ages. Ammons v. Ballroad, 1S8 N. G. 556*
61 S. B. 127, 8 Ann. Oas. 886.
The case of McOraw v. Bailroad, 1S5 N. O.
264, 47 S. B. 758, 18 not in point In that
case, as the train was leaving Oharlotte, the
plaintiff Jumped on the platform of the bag-
gage car, and the conductor testified that:
"When I got to the front end of the mail car
the train had begun to move, and I saw
these two men up there. About the time I
got there the baggagemaster stepped up on
the other side. I told the men to come
down, ^ey did not get down, and, In or-
der to get them on the ground before the
train got up too much speed, I reached up
and pulled them down and let them light on
the ground. When I put the second one
down I cam^t on the back end ot the same
car. I Jurt caut^t hold of tiiem and {railed
them down. They did not realat I had no
conversatloo with than; did not see any
tidtet; did not suppose for a moment that
th^ had any ticket or th^ would not be
there, because It vras not a place for pae-
sengers. and they could not pass team that
end of the car to the other. There Is no
doorway from the maU car to the baggage
car. Passengers are not allovred to go
through than at aU." On appeal It waa
held to be error to charge the Jury, In any
view of the evidence to answer the issues
against the defendant, because the plaintiff,
according to the conductor, was v^ere pas-
sengers had no right to be.
[3, 4], The Instructions given to the Jury
and excepted to are fully sustained by the
authorities.
[6] The exceptions for failure to give cer-
tain instructions on the Issue of punitive
damages need not be considered, because
his honor expressly told the Jury there was
no evidence to sustain the plaintiff's all^a*
tion of punitive damages, and refused to
SQbmit tha laniA Digi,,edbyGoOgle •
H.O)
WX8TERHAN T. OHAMPION 7IBBB 00.
221
Then are other ezceptlona In ttie record
which we hare examined and la lAlcB ire
find no error.
No error.
on N. a JH)
WB»rsBMAN T. CBAMPiam FIBER oa
(Sapreow Oonzt oC North Oudhia. May 22,
1. BriDEHCE (i 54S*)— Expert TramconT—
OosT OF CcTmra fracBxit.
Lambermen of experience, having pereoaat
knowledKe of fecti and oonoitlone, may give
their opinion aa to the cott of cutting and de-
Uvering timber in particnlar localities.
[Ed. Note.— For other cases, lee Evidence,
Cent. Dig. H 2806H-285S; Dw. Dig. 1 MS.*]
X. BviDcnoB (I 142^Bxi:aTAiraT- Goar of
OuTTnio TncBXB.
In an action to rcoovcr damaget tor de-
fendant's breach of a contract under which
plaintiff was to cat and cord timber, evidence
■a to what it bad cost witnesses per cord to get
oat timber on the same locality vas iDadmissl-
ble, since it involved an inquiry into the ca-
IMidtj of the witnesses for management, the
price paid for bands, etc, without proper ref-
erence to the description of the methods by
which and the condltionB under which tbeir
work was done, and Introduced issues foreign
to the Inquiry and calculated to confuse the
Jury.
[Ed. Note.— For other cases, see EMdence,
Ont Dig. II 416-428: Dee. Dig. 1 142.*]
5. GoiTTUoni J 808^>— Bxcnss roa Nonfeh-
rOKVAHOB — PaBTUI; IteUCB BT OTHKB
Pabty.
Where plaintiff contracted to cot and cord
BOjDOO cords of wood, and defendant agreed to
bwld the shacks for his hands, defendant's fall-
are to baild the 8 or 10 ordinary shacks neees-
mrj to house phtlntUTs hands was not so ma*
ttfuU a breach as to effect a complete discharge
and justify plaintiff in refusing to farther per-
fnrm Us contract
VEU. Note^Por other eases, eee Oontracts,
Out Dig. n 140I>-144S; Dee. Dig. | 80B.*]
4. CoirnuoTB (| 2»7*>— Pabtiai, Bbbaob— Ac-
tion roB Daicaobb.
- Where plaintiff contracted to cot and cord
E0,00(> GoMs of wood, and where defuidanfs
breach of its agreement to build the sliacks for
plaintiff's hands was not so material a breach as
to justify plaintiff's refusal to perform further,
plelntiff. however, uiigbt recover damages as
for a partial breach.
[Ed. Note.— For other cases, see Contracts,
Cent Dig. if 1214, 12Ui ; Dee. Dig. | 297.*]
6. Appeax. asd Brbob <| 1068*)— Hauojbss
Bbboa— iNSTBirCTIOnfl.
In an action for damages for breach of con-
tract whereby plaintiff was to cut and cord tim-
ber, in which there was evidence that would
Justify a recovery of damages as for an en-
tire breach by reason of defendant's, prevention
•f plaintiff's work by others working under
Its authority and approval, the objecaon tiiat
a ciiarga that If defendant agreed to build the
shacks for plalntifTs hands, and such agreement
was a material part of the contract, defendant
on violation of such a^eement, would be liable,
was erioneous In giving undue slgoificance to
the Sssoe of damages, was not open to defend-
ant
[Ed. Note.— Pot other cssea see ^pesl and
Error, Cent. Dig. H 42a&-4228, ^0; Dec.
Dig. i 1068.*]
6. AVFEAL AND EBBOB <| 928*)— BCTXXW—
PBESUUFTIOITS— InaTBnCTIOITS.
Where the entire chaiye of the ooort was
not Bent up, the Supreme Court, in the absence
of error usigned or suggested, mnst presume
that the Issue of damages was submitted under
proper ioBtructions.
[Ed. Note.— For other cases, see Appeal and
Error. Cent Dig. H 87^1ntM; De&Dig. |
»2a*f
Appeal from Bnperl«r Oooit, BleDoweU
County; I^on, Judge.
Action by W. E. Westerman against the
Champion Vibex Company. Judgment for
idalntur, and defoidaiit aroeala. AlSrmed.
Pleaa it Winbome, of Marion, and Boame,
Parker & Morrison and T. P. Davidson, all
of AshevUle, for appellant Johnston ft Mc-
Nalry and Hudglna ft Watson, all of Marlon,
for aiNpellee.
HOEX; J. The evidence on part of plain-
tiffs tended to show that In November, 1800,
they made a contract with defendant com-
pany to cut fOr it the cordwood on a given
boundary of land in Haywood county on
the waters of Bhiner creek, to begin on one
side of the creek, cot the timber up and
around the head of the stream, and down
on the other side, till 50,000 corda .were "cut,
calculated and paid for," etc., this being the
amount estimated within the boundary, the
wood to be cut and put on the edge of the
branch and corded up at the price of per
cord, and defendant company was to con-
stnict and have ready the shacks required
for boosing plalntUte' hands engaged in the
work; that the shacks not having been built
by defendant, plaintiffs, with their hands,
were compelled to construct the same and,
shortly after commencing the work, other
persons, acting under contract with the com-
pany, and by Its authority, commenced cut-
ting wood within the boundary and on the
more advantageous portions of the same and
so obstructed and Interfered with plaintiffs
that they were compelled to desist and aban-
don the undertaking altogether; that they
remonstrated with the managing agent of the
company about this interruption, who not
only declined, to Interfere, but sanctioned and
approved the same and endeavored to induce
plaintiffs to cut elsewhere r that the wood
within the boundary could have been cut
and placed on the creek at an average of
f2.S0 per cord, and plaintiffs had suffered
great damage. The evidence on the part of
defendant was to the effect that the contract
was Dbt for any definite boundary, but that
the plaintiffs were to cut and cord the wood
on the branch at or about the place stated
and to be paid for same at 93 per cord as
cut; that, owing to iChe rugged nature of the
land, ithe dense undergrowth, and its char-
acter, it was. worth at least 96 per cord to
cut and place the wood as agreed upon ; and
that plaintiffs had. abandoned the contract
•fer ottisr essss ssssams topfs «nasMUoDNraB£BlBX)ss.Dlg.ftAm.XUg.K«K-No. Q^Im 4 Rep'r
Digitized by Vj'
222
78 SOUTHEASTBBN BBPORTBB
(N.C.
without legal excuse, to defendant's great
damage.
[1,2] The plaintl^ as heretofore stated,
haTiiXK recovered Jadgment below, the case Is
before us on defendant's appeal, and It is
contended that the trial court committed er-
ror in refusing to allow a witness for de-
fendant, W. J. Mashbam, to say what it had
cost him per cord to get out wood on this
boundary for the two we^s after plalntlCCs
had abandoned their contract and also, in
a similar ruling, excluding a question ad-
dressed by defendant to another witness, J.
I*. Smith, as to "what it had cost blm to
get out cordwood in a cove In the same
locality and similar to the one In which
Mashburn worked." The court has held, In
several recent cases, that it was proper to
permit "lumbermen of experience, having
[personal knowledge of facts and conditions,"
to give their opinion on the cost and cutting
and delivering timber In specified localities,
a case presented in Younce v. Lumber Co;,
166 N. O. 239, 71 S. m 829. Ann. Oas. 19120^
107, and evidence of this very kind was re-
ceived on this trial; but the questions ad-
dressed to these witnesses do not, In our
opinion, come within the pfindpla Involr-
ing, as they do, an inquiry Into the capacity
of these persons for management, the price
paid for hands, etc., in the way now pre-
sented and without, further reference to or
description of the methods pursued or the
conditions under which the work was done
by them and their manner of doing it, the
proposed questions were properly excluded
as tending to Introduce Issues "foreign to
the Inquiry and calculated rather to distract
than aid the jury In their dellberationB."
Carpenter v. Railroad, 78 S. B. 168, at pres-
et term; Chaffln r. Maunfticturing Co., 135
N. a 104. 47 S. B. 226; Wamn r. Makely,
85 N. a 12.
[S-6] Exception was made further that his
honor charged the Jury as follows: "If you
should find that the defendant agreed to build
the shacks for plaintiffs to use, and that
such agreement was a material part of the
contract, and defendant violated such agree-
ment to build the shacks, then the defend-
ant would be liable, and you should answer
the flrst Issue, 'Tes.* " It Is not every breach
of contract that' will operate as a discharge
and justify an entire refusal to perform fur-
ther. Speaking generally to this question,
in Anson on GontractA, p. 849, the author
says: "But though every breach of the con-
tractual obligation confers a right of ac-
tion upon the Injured party, it is not every
breach that relieves him from doing what
he has undertaken to do." The contract may
be broken wholly or in part, and, if in part,
the breach may not be suffidently important
to operate as a discharge or. If it be so,
the injured party may choose not to regard
it as a breach, but may continue to carry
out the contract, reserving to himself the
right to bring action for such damages as
be may have sustained." Aod, If this por-
tion o^ the charge must be construed as
holding that the failure to build these shacks
went to the full measure of the obligation
and Justified an entire severance of the con-
tract relation, it would, in our opinion, con-
stitute reversible error. In a contract of
this magnitude, a default in respect to build-
ing 8 or 10 ordinary shacks to bouse the
hands engaged In the business should not ef-
fect a complete discharge. The plalntifTs
themselves did not so regard or treat it, but
very properly went on and built the shacks
themselves. This, however, would not pre-
vent plalntlCCs from recovering damages, in
this respect, as for a partial breach, and
the charge is both technically correct, and.
on the allegations of the pleadings and the
evidence, is a proper charge upon the issue.
It would only amount to prejudicial error
in case it should be given undue significance
on the Issue as to damages, but we do not
think such an objection is open to defend-
ant on the record. There were facts In evi-
dence that would Justify a recovery of the
damages as for an entire breach, to wit, the
interruption and prevention of plalntUfs*
work by others acting under the approval
and authority of the company.
[6] The entire charge of the court is not
sent up, nor is there any exception made
thereto on the issue as to damages, and. In
the absence of error assigned or suggested,
we must presume that this feature of the
case has been rightly dealt with and the
questions submitted und» proper instrac-
tlons. Graves r. BaUroad, 186 N. 0. 8, 48
S. E. 602.
After giving the case our full considera-
tion, we find no reversible error, ^d the
judgm^t In plalntUta* fftTor Is afflrttied.
No error.
a<2 N. C S88)
HOWELL T. HOWELL et aL
(Sapreme Court of North Carolina. Hay 22,
1913.)
1. AFPEU. AlTD Ebbob ({ 827*) — Rbtibv —
Questions or Fact— Dibkissal on Puead-
inos.
Where the court dismisaeB the action on
the pleadings, the atatemeots in the complaint
must he taken as true on appeal, because plain-
tiff by dismiaeal was barred of the opportunity
of proving them to be true,
[Ed. Note. — For other caaes, aee Appeal and
Error. Cent Dig. fS 2912, 2917, 8m 8768,
4024; Dec Dig. | fe*]
2. Pabbnt and Child (| 18*)— AnnuonoN
OF Child — Civn. Liabiutt— Right or Ao-
TION.
A parent has an action for damagea for
the unlawfol taking away or concealment of
bia minor child, and is not Umited to cases in
which such chlu is the heir or oldest aon, nor
to cases where the abduction Is for immoral
purposes.
[Ed. Note. — For other cases, see l^rent and
Child. Cent Dig. K_ 182-188; Dee. Dig. | 18;*
Kidnapping, Cent. Dig. 8 13.]
•Wpr oUi*r c«MB WB* tople and swtfa» NUUBIDR la Dm. Dig. * Am. Die. K^-N& Bm1«^^
N.O)
HOWELL T. HOWMJf
223
3. Pabbnt and Child (f 18*)— Abductioit of
GBILD-^Tn. LlABIXITT— DAUAOBB.
Damagea In a dvU action by a parent for
the nnlawnil taking away or concealment of
hia minor child are not limited to the fiction of
ion of aerricea, hnt the real gronnd of action
la competusation for the expense and injury.
[Ed. Note.— -For other cases, see Parent and
Child, Cent. Dig. {t 182-188; Dee. Dig. | 18;*
IQdnapping, Cent Dig. f 13J
4. Pabknt and Child ^ 18*)'-Asduotion or
Child— Pttnititx Dahaobs.
In a dvll action by a parent for the im-
lawfnl taking avay or concealment of his minor
child, poniuve damages for the wrong done
him m nis affections and fn the deatmctlon of
hia hooaehidd are reeoraraUe.
[Ed. Note.— For other cases, see Piarent and
Child. Cent. Dig. |l 182-188; Dea Dig. i 18;*
Kldnapi^ng, Cent Dig. | 13.]
Appwl from Sitperlor Court, Yancey Ckran-
tf; I^on, JndgiB.
Action 1^ O. a BowcOl agilnat Sdltb
How^ and O. A. Brlns. Jodgmmt tax
defendantB, and plaintiff appeals. Rerersed.
Hndglns, Watson & Watson and Ai Hall
Johnston, all of Marlon, for appellant
CLARK, C. J. The plaintiff entered into
a contract with his wife, the defendant
Ddith Howell, and Uie defendant G. A.
Brlgga, her father, that the daughter of the
plaintiff, Lucy Howell, mlfht remain with
her mother, Edith Howell, at the home of
Bald G. A. Brlgga nntll said child should
reach the age of six years, when she should
be returned to ber father. The plaintiff,
soon after said contract obtained a divorce
from his wife on the ground of her adul-
tery, and the decree provided that the cus-
tody of the child should be left open for
farther orders of the court There has been
no decree fixing the custody of said child.
It is alleged in the complaint that, a few
days prior to the child's attaining six years
of age, the defendant Edith Howell, with
the advice and assistance of her codefend-
ant, O. A. Bri^B, spirited the child away
beyond the state to some placti unknown to
the plaintiff. The complaint asks Judgment
against the defendant G. A. Brlggs for dam-
ages, and against both defendants for the
custody of said child If she can be located,
and for a role upon the defendant Brlggs
requiring him to dlBclose the present where-
abonts and residence of the jdalntUTa child.
[1] Abduction la usually prosecuted on the
erimbuU vide of the do<iet But there are
many cases In whidx damages hare been
recovered for wron^al abdnctton. The
court haTlng dlamlased tlie action upon the
pleadings, we mnst take the Btatements In
the complaint to be tme, becanse by the
dismissal of tiie action the plaintiff has
been debarred the opportunity of proving his
allegation to be tme. The qnestlon Is wheth-
er the conndalnt stated a cause of action.
[1] In Harris t. Harris, lilt N. a 68&, 20
B. E. 187. 44 Am. St Rep. 471, it was held
Oat a father who was entttied to the coe-
tody ai the child might recovet damages on
a bond given for the retnm of the ddld to
his enstody for failure to do so. A grave
wrong was done tiie pUlntiff 1^ as tite com-
plaint avers, his.chlld was taken out of the
state or secreted by the mother with the aid
and assistance of the defWdant G. A. Brlggs.
If the diUd were in the state, tills action
can he maintained for the production of the
child before the Jadge irtto upon hearing the
evidence would award her custody. As to
the defendant G. A. BrlggB, if the allega-
tions of the complaint are proven to be tru^
he is clearly liable for damages.
It is tme that at common law abduction
of a female for Immoral purposes was not an
offense (State v. Sullivan, 86 N. 0. 506) ; but
as Judge Settie remarked in State v. Oliver.
70 N. O. 60 (referring to the common-law
rlt^t of a huBband to whip bis wife), "We
• • * have advanced from that barbar-
ism," to some extent by Laws 1879, c. 81, now
Revlsal 3358, which makes abduction under
tome circumstances an offense If the dilld
Is under 14 years of age (State v. George,
03 N. a 667; State v. GhlsenhaU. 106 N. a
676, U 8. E. 618; State v. Burnett, 142 N. a
579. 55 S. B. 72).
At the common law, abduction of a child
was not an offense. State v. Rice, 76 K O.
104. But Blackstone, 8 Com. 140, holds that
a dvll action lay therefor, and that a father
could recover damages, though he says it
was a doubtful question, on which the au-
thorities were divided, wliether a &ther
could recover for the abduction of any other
child than the oldest son and heir. In Bar-
bam T. Dennis, Cro. Ellz. 770. It was held
that be could not But later cases held that
an action would lie for taking away any of
the (Adldren because the paroit "bad an In-
terest in them all,*' It Is Interesting to
quote the reasoning of the courts at common
law as given in Barham v. Dennis, supra.
Anderson, Walmdey, and Klngsmll, JJ.,
said: "The father should not have an ac-
tion for the taking of any of his children,
which is not his heir; and that Is by reason
the marriage of his heir belongs to the ^-
ther, but not ot any other bis sons or dan^
ters; and by reason of this ItMs mly, the
action is given unto him; the writ In the
Register Is for the son and heir, or danghtw
and heir only; which proves that the law
has always been taken, that the action lies
not for any other -son or daughter. And al-
though it hatb been said that a writ of tree-
pass lies for ttTtts things whereof none of
them are in the Beglster ; and It hath been
adjudged that it lies for a parrot, a popin-
jay, a thrash, and as In 14 Hemy VIII for
a dog; the reason tiiereof is, because the
law idipntes tiiat the owner hath a propoty
In them. • • * But for the taking of a
son or daughter not heir, it is not upon the
•ForothsroasMTCSsaiutspieaBdMeUoaMDHBBRlnDse. Dig. * AnLDlg. Kv
224
T8 SqnTHSlASTBjEtN BSPORTBB
(N.a
same reason, and therefore not alike. Here
the father bath not any property or Interest
*jx the daughter which the law accounts may
be taken from him." GlanvlUe, J., dlss^itlng,
laid: *7be father hath an interest in every
of hie children to educate them, and to pro-
vide for them, and he hath his comfort by
them ; wherefore it la not reasonable that
any should take th^ from him, and to do
blm such an Injury, but that he should have
bis remedy to punish It" The majority of
the court are sustained by the form of the
writ as preserved in Fltz-Herbert's Natura
Brevlum 90 H., which was of date 12 £(eni
IV, 16. But Judge GlanviUe based his dis-
sent upon reason and Justice and baa been
sustained by subsequent casea
[3,4] In Cooley on Tox:ts (3d Ed.) 482.
483, It Is said that an action for dajuages
for abduction of a child wlU lie In favor of
the parent In Bice v. Nlckerson, 91 Mass.
(9 Alien) 478, 8S Am. Dec. 777. it. was held,
tn ft ease much like this, that the plalntlfl
n^gbt recover actual damages for expenses
Incurred In the pursuit .of bis child which
bad been abducted. The court also Indicat-
ed that upon proper auctions, audi as
have been made In tills caa^ the plalntlfC
would be entitled to recover punitive dam-
agaa for the wrong inflicted upon him.
Among otb^ caaea sostalntng an action for
damagea for abdnctitni of a child are Bradr
ley T. 8bt|fw, 64 Hon, 428, 19 N. X. Supp.
640; Hills V. Hobert, 2 Boot (Conn.) 48; Dob.
ao9 T. Oothian. 84 S. a 618, 18 8. EL 670;
Kreag t. AnOraa, 2 Ind. App. 482, 28 N. |Dl
778.
IB Brown Crocket^ 8 La. Ann. 80, It
la h^ that In an action for tbe wrongful
abdocOon of a minor tbe Jury baa a right
to award damagea for naental angulah as
a part of the compensatory damages for
sucb wrong. In Baumgartner v. Elgenbrot
100 Md. 60S, 60 AtL 601, It waa held that If
the child wu kept In dafendant'a custody in
a dandestlne manner an action would Ue.
In Steele v. Tbacher, 1 YfA^e,. 86 Fed.
das. No. 13,348 It was held that "a parent
may maintain a llb^ In the admiralty for
tbe wrongful abdnction of his child, being a
minor, and carrying him beyond the sea."
This has been cited with approval In 22
Fed. Cas. 1204, where the above case Is re-
printed. The subject Is very interesting
discussed In ETverett v. Sherfey, 1 Iowa, 356,
and Scbonler, Dom. BeL (3d mU) | 260; 2
HllUard on Torts (8d Bd.) 618. 621, which
tui stain tbe proposition that a parent can
maintain damages for the .abduction of his
child. To same effect Ballroad Co. v. Show-
ers, 71 Ind. 461 : Salient t. Matbowani, 88
N. H. 64, and other cases.
The moat usual cases In which this action
la brought have been upon the abduction of
a daughter for marriage or Immoral pur-
poses. Bat the modem aotboritle^ aa we
have said, have advanced, and now the
parent can recover damages for the unlaw-
ful taking avray or concealment of a minor
child, and Is not limited to cases in which
sucb child Is heir or eldest son, nor to cases
where the abduction la for Immoral pur^
poses; nor are the damagea limited to the
Qctlon of "loss of services." This court
pointed out In Hood v. Suddertb. Ill N. 0.
215, 16 8. E. 397, and Willeford v. Bailey,
132 N. 0. 402. 48 8. El 028. that this is "an
outwbm fiction" even In actions for seduc-
tion. The real ground of action Is compen-
sation for the expense and Injury and "pu-
nitive damages tor tbe wrong done him In bJa
affections and the destruction of his house-
hold," as said in Scarlett v. Norwood, 115 N.
G. 886, 20 8. El 469 ; Abbott T. Hancock. 123
N. a 09, 31 8. El. 268 ; Snider v. Newell. 132
N. 0. 614, 628, 624, 44 8. EX 354.
Tbe law is summed up with citation Of
numerous authorities in 1 Ai ft B. (2d Bd.)
167, as follows: "A father has a right of
action against every person who knowingly
and wittingly Interrupts the relation sub-
sisting between himself and his child or ab>
ducting his child away from him or by har-
boring the child after he has left the house.**
It can make no difference that tbe child
at tbe time she was carried away waa not
in the Immediate custody ot the fitther.
She waa temporazlly with ber mother, but
he waa legally entitled to her custody or to
have It adjudged by tbe court, and to take
ber out of tbe jnriadlction of Uie court, or
secrete her, was an Injury for which he was
enttUed to damages. The allccatlon of the
complaint that the defendant Brigga "iwo-
cnred. aided, asdated, and advised tbe tak-
ing off of the child and conceals its wbere-
abouts, and ioB thereby caused tbe plaintiff
great and agonizing dlatreas <ME both mind
and body," states a i^kmI canae of action
against him.
The Judgment dismissing the action la re-
versed.
(in N. a M)
J. L 8HATHFBS ft CO. et aL t. TOXAWAT
HOTBL GO. et sL
Supreme Court of North Carolina. May 22.
1918.) ^
1. Appbaz. Aini ShBOB (f 882*)— PxBsoNS Br-
TITLED TO AIXKOI BRBOE.
A defendant cannot complain of an error
in an instruction requested It which ]m in
Its favor.
[Ed. Note.— For other cases, see Appeal and
Error, CenL Dig. U 3601-8610; Dec. Dig. |
882.*!
2. Bills awd Nona (| 339*>— Bona Fidb
Holdbbs~Who Ana.
Under Bcvisal 1006, | 2206, providing that
to constitute notice of an InBnnity in the in-
stroment or defect In the title of the person
negotiating it the person to whom it is ne^tiat-
ed most have bad aotnal knowledge of the in-
firmity or d^ect, or knowledge of soch facts that
•For oUw easfs is* same toMv and aaotloa NVHBBa 1b Deo. Dls. a Am. XMg. lUj-Mo. autla/d^Brnft
Digitized by VjOIJ'
J. L. SMATHBBS A CO. t.
TOXAWAT HOTEL CO,
225
hiB acUoQ is taklog the instranwnt amonnts to
bad faith, a holder of a promissory note can-
not be charged with notice of Infirmities, mere-
ly be<»aK the circanutancea of the iaauance of
the note Bhoold hare pat a reaaooably prudent
man upon inqnirr. ana anch Inqnlrr would have
discloaed the fraud ; bat to charfe aim with no-
tice of fraud the drcnmstancet miut be «neh
that hlB taking of the not* UDonntad to bad
faith.
[Bd. Note.— For otiiar Mt Bffla and
Notea, ObuL Die H 821-«^; Dae. Dig. 1
8. Bills aud Nam 8B8*)— ▼auditt— Coh-
aiDUATION.
Under Bertaal 1906, n 2178, 2im pro-
Tiding Aat Talne fa any conaldetation anffident
to ropport a simple contract, and an antecedent
or pre-exlatios debt cooatltutea valae, and that
where the holder baa a Uen on the inatniment
arising from contract or hj implication of law
he is deemed a bolder for Taloe, penona taUnc
promlaaoTx notes for an antecedent debt or aa
eollatanl aeenzlty for a debt are holders for
value.
[Ed. Not&— For other cases, eee Bills and
Notes, Cent Dig. M 913-923. 961; Dea Dig.
I S6&*]
Appeal from Superior Court, Buncombe
County; Fovsbee. Judge.
Creditors' bill by J. L. Smathers ft Ca and
others against ttae Toxaway Hotel Company,
In which McMlcha^ & Co, and another in-
tervene. From a jodgment for plaintiffs,
defendant and interrenen aroeaL, Bevereed
and zemanded.
The relevant facts are very correctir ■tat'
ed In one of the briefs, aa follows:
"On November 18, 1906, the Toraway Hotel
Company executed a bill of sale, conveyliig
to B. a; Jacobs certain merchandise, cattle,
and other personal pro[>ert7 In Transylvania
and Jackson counties. On the said day said
Jacobs executed to the Toxaway Hotel Com-
pany, aa payment for said property, fourteen
<14) notes of fSOO each, one payable each sue-
ceralve three months thereafter, and at the
same time said Jacobs executed a deed of
trust to the Wachovia Bank ft Trust Com-
pany, whereby It conveyed all of said iffop-
erty as security for the payment of said pur-
chase-money notes, which deed in trust waa
duly r^stered In Transylvania and Jack-
eon counties, respectively, on November 20
and 26, 1906. On November 16, 1906, the
Toxaway Hotel Company indorsed four of said
notes to HcMlchael ft Co. ; and on the same
day said Toxaway Hotel Company Indorsed
five of said notes to Frank ft Co., of Savan-
nah, as collateral security for a debt of about
92,S00, which it owed to said Frank ft Go.
The first two notes falling due were paid by
Jacobs; one of them being held by Frank
ft Ca On June 6, 1907, the plalntlfrs herein,
general creditors of the Toxaway Hotel Com-
pany, instituted this action, alleging that
the sale to Jacobs, and execution of the notes
and deed In trust by him, were done for the
purpose of hindering, delaying, and defraud-
ing creditors, and the property In the hands
of Jacobs was attached, and the appoint-
ment of a receiver of said property was pro-
cured by the creditors, who took charge of
the sani&
•The Toxaway Hotel Company answered,
denying the allegations of fraud, and al-
leging that the sale to Jacobs was bona fide.
The Wachovia Bank ft Trust Company, by
permission of the court. Intervened at the
request o< HcMlchael ft Co. asd Frank ft
Co., holders of some of the notes, as afore-
said, and asked possession of the prop«ty
held by the receiver, tn order that, it solght
enforce the lien of said deed In trust The
plaintifls, creditors of the Toxaway Hotel
Company, resisted, alleging that Alclfldiael
ft Co. and Frank ft Co, were not Innocent
purchasers. McMichael ft Co. and Frank
ft Co., by order of court* also became In-
terveners, and alleged that they had taken
the notes held by them in the usual course
of business, before matmUy, In good faUb
and for value, and had no notice or knowl-
edge of any fraud in connection with the
execution thereof.
"The plaintifEa, creditors of the Toxaway
Hotel Company, replied that the transfer of
the notea to Melfichael ft Go. and Frank ft
Ca was a part ctf tiia orlitfnal sehema o<
the Toxaway Hotel Company to hinder, de-
lay, and defraud otbw ci. ito creditm, and
that If IfaUtehael ft Co. and Frank ft Co. did
not have actual knowledge (tf this trandnlent
purpose and Intent of Hdd Toxaway .Hotel
Company ■ and said Jacobs, tald transfes of
the notes ta thorn was made 'under sudi
drcnmstances and with knowledge of such
facts and drcnmstances on the part of said
alleged transferees as would and ooi^ to
lead a reasonably prudent and careful man
to discover the wrongful and fraudulent la-
tent of the parties so transferring the sama'
, "By consent of all the parties, the reeelm,
under order of the court sold the property
taken Into possession, and Is holding the
proceeds pending ttie results of this action."
The Jury rendered the following verdict :
**(X) Is the Toxaway Hot^ Company In-
debted to the plalntlflliB. as alleged In ^
complaint? Answer : Yesi
"(2) Were the bill of sale, deed of trust,
and notes, dated November IS, 1006, men-
tioned In the pleadings In this cause, and
executed between the Toxaway Hotel Com-
pany and B, A. Jacobs, made and executed
with Intent to hinder, delay, or defraud the
creditors of the Toxaway ^tel Company t
Answer : Tes.
"(3) Are the interveners J. a McMIcbael,
incorporated. Innocent purchasers for value
and without notice of said fraud of the notes
mentioned in paragraph 7 of the plea of
intervCTtlon filed herein? Answer: No.
"(4) Are the interveners Frank ft Co. In-
nocent purchasers for value and without
notice of such fraud of the notes described
•fftooUMreaHis«aiaiBeteploas«MettniMUMBait m DM.DIS. * Am. Ills. K«r-Na 8wl«ft Bep'rlfAKUsT^
788.ILr-lB Digitized by VjOOy It:
226
78 SOUTHEASTERN RBPOBTEB
(N.C.
In pftiagraph 8 of ^ plea of Interrentloii
filed hereiD? Answer: No."
Bonme, Parker & MorriMn, of AsberiUe,
for appellants. J. O. Martin, C W. Malone,
and W. WUtBon, all of Aaherllle, for ap-
pellees.
HOKE, J. [t] Oorstatateonn^otlableln-
strnments (Revlsal, a 64, | 2205) makes pro-
vision as follows: "To constitute notice of
an Infirmity In tbe Instniment or defect in
the title of tbe person negotiating tbe same
tbe person to whom it la negotiated must
bare bad actual knowledge of the inflrmlty
or defect or knowledge of such facts that
his action in taking tbe instrument amoonted
to bad faith."
A perusal of the record will disclose that
the court below, on tbe third and fourth
Issaes^ at first charged tbe Jury In substan-
tial accord with tbe statute. The only crlt-
Idam suggested is that, baring been glren
In the exact language of one of defendants*
prayers tax instructions, it Is couched in terms
too persnasire, in riew of the conflict of eri-
dence on tbe subject ; but such an objection
Is not open to the appellants, for the error
beie, if one existed, la in defendants faror.
[2] In a later pwtion of the charge how-
erw, and more tiian once, hla honor, on these
Issnea, stated. In effiect, tbe correct mle to
be Qiat If tbe Jury should find tliat there
was fraud in the execution of the notes, and
fliat these creditors <*had notloe of the fraud,
or had notice of any facts or dr cum stances
which oni^ to bare pnt a reasonably pta-
dent man upon inguiry, and if they had made
such inquiry they could hare dlscorered the
fraud, or the facts or circumstances con-
stituting tlie same, and they failed to make
nicb Inqnlry and dtscorwy. It wonld be the
duty «f the Jury to answer Uie issue, *Tea.* "
^nila position. In our opinion, is In direct con-
flict with the statutory provision, as ex*
prcMed In the flnt jnrtion of bis honor's
ebaq^ and miut be htfd tm reversible er-
ror. Anderson t. Meadowy 1GB N. a 404,
74 8. B. 1019. The Qaestion aa to what la the
dtiaxactet of notloe required to affect tbe
states of <nie dalrolng to be the holder In
due course cf a negotiable Instmmrat has
been subject to some fluctuation In the
oonrts, and has given rise to much contrarie-
ty of decision. As sbomi In tte learned and
snggestlTe argument and tnlef with which
we were favored eonnsel for appellants,
the doctrine toT a time prevailed in England
as it la laid down by bis honor In the latter
portion of bis diarge; that is, that the bold-
er was put upon Inquiry by facts or drcnm-
Btancea which wonld Induce a cautious and
pmdait man to make one^ and was affected
by notice or knowledge of conditions which
such inquiry would disdosew This seems not
to hare been the rule aa it first obtained in
the English courts, and later they returned
to the original poslt^; and it baa been
long firmly, established there that, in this
respect, the title of the holder can only be
Impugned by showing direct knowledge of
the infirmity, or notice of such facts as
would make the acquisition of the instru-
ment amount to bad faltb. 2 Randolph on
Commercial Paper (2d Ed.) | 096 et seq.;
Norton on Bills and Notes (Sd Ed.) p. 319;
Hnffcut on N^tlable Instruments, pp. 29,
400-417.
In Hnffcut, page 29, a succinct account of
the rarylng phases of the doctrine Is gir^
in a citation from Chalmers, Bills of Ex-
change Ad; as follows: "The test of bona
fides as regards bill transactions has varleA
greatly. Previous to 1820 tbe law was mudi
as it now is under the act But under the
Influence of Lord Tenterden due care and
caution was made the test (Gill v. Onbltt, 5
D. & B. 324, and this prin^le aeema to be
adopted by section 0 of tbe Indian Act In
1634 the Court of Klng*B Bench held that
nothing short of gross negligence could de-
feat the title of a bolder for valn& Cook
r. Jadla, S B. ft Ad. 909. Two years later
Lord Doiman statee It aa settled law that
bad faltb alone oonld prevent a holder fbr
value from recovering. Grosa negligence
might be evidence of bad ftiltb, but was not
condusive of it Goodman v. Herv^, 4 A.
ft B. at page Sre, ntber V. Udi, 10 A. ft XL 784.
This prindple has never since been shaken
In England, and It aeema now firmly estab-
lished in tbe United States. Hurray v.
Lardner, 2 Walt 121 UT L Ed. 8&7]; Chap-
man V. Bose^ 66 N. T. 140 [16 Am. Bc^
401].'* And in Norton, supra, 819, the an-
thOT, after laying down tbe rule aa it tem-
porarily prevailed In England, says: "But
this doctrine tbe law merdiant rejects, and
It la now the rule of tbe law merchant that
mere knowledge of any fiuito sufficient to put
a reasonably pnutent man on Inquiry is not
suflOdent but ttiat to defeat bla claim to be
a bona fide bolder In due course, he most
be guilty of bad faith."
There baa been conflict of dedalon In this
country, but we think the position requiring
that bad faith be shown, or notice or knowl-
edge of facts ttoax wbidi bad faith In taking
over the instarument could be reasonably In-
ferred, has been long recognised here by
the great weight of autborlty. Hotchklss r.
Kat Bank, 21 Waa 864, 22 L. Bd. 646;
Goodman v. Slmonds, 20 Bow. 843, 16 L. Ed.
934; Bank v. Western, 161 N. T. 621, 66 N. E.
1080, 76 Am. St Bep. 283 ; Bank v. Sarety et
at, 127 Mass. 76, 84 Am. Bep. 846; BradweU v.
Pryor, 221 lit 602, 77 M. B. 1116; Bank v.
Morgan, 166 Pa. 100, 80 Att 957; Blchards v.
Monroe, 86 Iowa, 869, 62 N. W. 839. 39 Am.
St Bep. 801 ; De Toss v. Bldimoud, 69 Ta. 338,
98 A"i Dec: 646; Tescher v. Mercea. 118 Ind.
586, 21 N. E. 816; HamUton v. Tougbt 34
N. J. Law, 187. Speaking to the rule In this
last case, and tbe reason for it Chief Justice
Beasl^ has well said: "From this brief re-
S.G)
IN BE
EVANS
227
said tbat the doctrine lutrodiKed by Lord
Tenterden stands at the present moment
marked with the disapproval of the highest
judicial aathorltf. Nor does such disapprov-
al rest upon merely speculative grounds.
That doctrine was put in practice for a
course of years, and it was thus, from ex-
perience, found to be inconsistent with true
commercial policy. Its defect—a great de-
• feet, as I think — was that It provided noth-
ing like a criterion on which a verdict was to
be based. The rule was that to defeat the
note, drcnmstancea must be shown of so sus-
picious a character that they would put a
man of ordinary prudence on inquiry, and by
force of such a rule it is obvious every case
possessed of unusual incidents would, of ne-
cessity, pass under the uncontrolled discre-
tion of a Jury. An Incident of the transac-
tion from which any suspicion could arise
was sufBdent to take the case out of the
control of the court. There was no Judicial
standard by which suspicious circumstances
could be measured before committing them
to the Jury. And It Is precisely this want
which the modern rule supplies. When mala
fides is the point of inquiry, suspicious cir-
cumstances must be of a substantial charac-
ter, and if such circumstances do not ap-
pear the court can arrest the inquiry. Un-
der the former practice drcnmstances of
slight suspicion would take the case to the
Jury; under the present rule the circum-
stances must be strong, so that bad faith
can be reasonably inferred."
Our own court has not escaped the per-
plexities which seem to have attended the
subject, as indicated by the case of Far-
thing V. Dark. 109 N. 0. 291, 13 3. B.
918, reviewed on appeal and disapproved in
case, same title. Ill N. a 243, 16 S. E. 387,
and these and other cases with os, as In Hul-
bert V. Douglas, 94 N. O. 122. give counte*
nance to the position of **puttlng a prudent
man upon Inquiry"; but whatever may be
the correct estimate of our former decisions,
we r^ard the matter ae put at rest by the
express language of the statute: "That to
constitute notice of Infirmity * • • the
bolder must have had actual knowledge of
the tnflrmlty or knowledge of such facts that
his action In taking the instrument amount-
ed to bad faith," and are of opinion that the
law, by correct Interpretation, was designed
and intended to establish on this subject and
In this Jurisdiction the rule as it has been
lone recognized in Boglaud and sustained In
this country, as stated, by the great weight
of authority.
[3] As a legal proposition, the same statute
justifies def^dants in making the claims
Uiat they are purchasers for value; section
2173 providing that: "Value Is any consid-
eration sufficient to support a simple con-
tract An antecedent or pre-exlstlDg debt
constitutes value and ia deemed such wheth-
er the instrument is payable on demand or
at a future time" (McMlchael's Case), and
section 2175 : "Where the holder has a lieu
on the Instrument arising either from con-
tract or by implication of law he is deemed
a holder for value to the extent of his Hen."
(Frank & Oo.'s Case). And on the facts as
they now appear of record the determination
of the third and fourth issues were very prop-
erly made to depend on whether these cred-
itors held without knowledge or such no-
tice of the alleged infirmity as the law re-
quires to affect their title. Bandolph, Com-
mercial Paper, { 1S92; Carpoiter v. Longan,
83 U. S, (16 WalL) 271, 21 L. Ed. 313 ; Can-
non V. McDaniel, 46 Tex. 8l0& i Logan v.
Smith, 62 Mo. 455; Updegmft t. Edwards,
46 Iowa, 513.
For the error indicated, Uiere must be a
new trial of the cause upon all ot the Issues ;
and it Is 80 ordered.
New trial.
(H 8. a 4U)
In ze BVANS.
(Suprone Court of South Carolina. Hay 0^
191S.)
L AnoansT and Client (S 62*) — DxsnAB-
VKNT— CHABGES—VKBIFICATIOn.
The rule requiring charges axainst an at-
torney to be verified need not be observed when
the charges are made by a bar asBocIation or
the Attorney General, and are so ftrave as to
require InvestlsatioD in the public interesL es>
pecially after issues of fact and law have beoi
joined.
[Ed. Note,— For other caaeL see Attorney
and Client, Gent. Dig. M 69, 70; Dec. Dig. f
52.*]
2. AlTOBmr AHD OUSST 0 08*) — DZSBAB-
MtNT.
Since it Is presumed that, upon the admis-
sion of an attorney to the oar, the court in-
quired into his character, charges of miscon-
duct in transactions ooenrrlng btfore an at
tomey was admitted to the bar should not be
considered In proceedings for his disbarment.
[Ed. Note.— For other cases, see Attorney and
CUent, Cent Hig. H 74, 75; Dec. Di«. | 58.*J
3. Attobnbt and Csjstn Q 44*)— MiBooir-
DUCT OF ATTOBRKT.
That an attorney bad anUiozi^ to indorse
a check and receive money for his dieut did
not excuse the appropriation of the proceeds
of the check to his own use, nor was such mis-
appropriation excused by his giving the client
his own check, where he never wined to n-
fund the money or pay the check.
[Ed. Note.— For other caset see Attorney and
Client, Cent Dig. i| 56i 02; Dec. Dig.
S 44.*]
4. Attobnkt and Clixnt {{ 58*) — Disbab-
HBNT PBOOEBDIITOS — SumOXENOT OT EVI-
DXNOB.
Evidence, In an inquiry Into the conduct
of an attorney, held to show that the attorney
applied to his own use mooey collected by him
ss attorney for a client, and refused to refund
it without excuse.
iBd. Note.— For other eases, see Attorney and
ent Cent Dig. H 74. 75; Dec. Dig. | 63.*]
5. AtIOBNBT and CuKNT (I 53*) — MlBOON-
DucT or Attobnbt — Ijbbl,
Untrue statements made by an attorney
without probable cause in a public veech,
•Tor etber eases sss sanw tiQle sad ssetloa NUICBBK In X}e& Dla. « Am. Dig. Ksy-Nsb SariM A Bs^r Indsxesi
Digitized by VjOOglC
228
78 SOUTHEASTERN REPORTEB
(S.a
eharcing othen with bnrniiic Bpedfie property,
mnit be wdiAed hj the court in determining
whether tiie attorney ehoald be disbarred, es-
pecially when coupled with other offenses, such
as the misappropriation of a client's money.
[Ed. Note.— For other cases, see Attorney and
CUent, Cent. Dig. K 74, 76; Dea Dig. I C3.*]
& Attobhbt ahd Ouxnr (| SS*) — Stopen-
noir.
Whwe an attorney has misapplied moneys
collected, and otherwise been guilty of miscon'
duct, and the wrongdoins has been caused by
habita of intemperance, lie will be suspended
from the practice of thie law indefinitely, with
the privilege of moving, after two years on sat-
isfactory proof of reformation, for reinstate-
ment
iBd. Note.— For other cases, see Attorney and
ent. Cent Dig. {{ 76-78 ; Dec. Dig. { 68.*]
In the matter of an inquiry into the con-
duct of Barnard B. Uvans, an attorney at
law.' Judgment of indefinite suapenalon from
the practice of law, with leave to more for
reinstatement after two years.
W. H. Cobb, Boh, of Columbia, tat ttw
Stnte. a P. Sand^ oC Spartanbors; for
defendant
WOODS, Acting CL 3, TIOb proceeding,
InrolTlng' an Inquiry by the court Into the
character and conduct of Barnard B. Evans,
an attorney, waa Inatitoted under an Infor-
mation filed on the 6th day of January, 1913,
by Honorable J. Fraser I^n, then Attomegr
General of tbe stat^ chajglng that the re-
spondent, B. B. Evans, had been guilty Of a
number of dishonest transactions, and of
maliclouB slander of several persona, that
he had been indicted by a grand Jury for
forgery, and that his reputation for honesty
and veracity was bad. The information al-
leged that the respondent was admitted to
the practice of law on the 10th day of March,
1902, and some of the transactions charged
against htm were alleged to have taken place
before that time. In obedience to the court's
order Mr. Evans filed his return, in which
be set out, by way of defense, his version
of the facts which occurred after his admls-
aUm to the bar.
In the return two 1^1 posltlcms were sub-
mitted which were decided by the court be-
fore entering upon the trial of tlie issues of
fact The first was that the whole proceed-
ing should be quashed because the Uiforma-
tlon was nbt verified by the oath of the
Attorney General, and was not founded ou
the resolution of any bar association of
which the respon^nt was a member, or up-
on the presentment or true bill of a grand
Jury. The court, with the dissent of two of
the justices, denied the motion to quash the
Information, on this reasoning: The general
rule Is that an attorney should not have his
character and office put in issue on nnverlfled
charges. Ex parte Burr, 9 Wheat 529, S L.
Ed. 152; Weeks on Attorneys, | 83; Burns v.
Allen, 2 Am. St Rep. 858, note. But in the
leading case of Ex parte Wall, 107 U. B.
266, 2 Sup. Ct 569, 27 L. Ed. 552, It was
distinctly held that the rule Is not InfiexlbH
and it will be varied according to the circom-
stanees when full notice and opportunity to
be heard Is given to the accused.
[1] The rule may, with entire propriety,
be departed from when It appears that the
charges are made by a bar association or by
the Attorney General lu his official capacity,
and that the charges are grave and require
investigation In the public Interest or In
vindication of the accused. In this case, not
only were diarges of a serious character
made by the Attorney General of the state,
but when the motion was made to quash, the
respondent by his return bad admitted the
material allegations of fact made In the in-
formation, and had endeavored to Justify his
course by alleging additional facts which. If
[ffoved, would hare tended to exculpate him.
When the Issnes of fact and lav had been
thus Joined, the rule requiring rerUicatlon of
the information disappeared.
[2] On the second point the court refiiaed
to consider cihazges of misconduct in transac-
tions occurring before the respondent was
admitted to the bar, for thla reason: me
information contained no statement that the
alleged dlaoedltable tcanaactUuu were con-
cealed tiom the court or were unknown to
the court when the respondent w%b admitted
to the bar. The presumption Is that the
court inquired Into his diaracter before his
admission, and that the delinquencies alleged
against blm were not proved, or that he had
redeemed his character by subsequent repent-
ance and good conduct
After disposing of the legal questions In
the manner Indicated, the court entered upon
the investigation of three specific charges
against the respondent: First The Indorse-
ment and appropriation to his own use by
respondent of a check, payable to George I*
Salter, which respondent had received as at-
torney for Salter. Second. Ai^lication to
his own use of money collected as attorney
for the Murray Drug Company on a dairn
against T. B. Dowllng. Third. Stating ma-
liciously and falsely, at a public meeting
in Spartanburg, that E. w. Able and B. W.
Crouch, two attorneys of Saluda, were blind
tigers, thieves, and Incendiaries; "that one
of the parties was caught in the act and com-
promised, and the other liad destroyed all
the Ubrarles of the lawyers In Saluda"; and
in making, with malicious Intent the false
statement that B. F. Sample, sheriff of
Saluda county, had stolen a receipt from re*
spondenf B office In Saluda.
The first charge was proved beyond all
dispute. George I* Salter, a farmer of Edge-
field, applied to J. Frank & Sou of Angosta,
6a., through respondent for a loan of
$1,000 on a mortgage of his land. The ap-
plication was accepted to the amount of 9660,
and the loan made. Frank & Son paid up a
•For cft*t CMM MS um* topic sad Motion NDUBBB la Dee. Dig, A Am. Dig. Kcr-Ho.
Digitized
•
S.O.) • JN RE EVAKS 229
senior mortgage and sent to napondent a
cdieck on the Union Savings Bank of Angasta,
dated October 17, 1906, payable to Geo. L.
Salter, for 9108.00, the supposed balance of
tbe loan. Tbe reapondent. Brans, indoraed
tills cbeA, "Geo. Salter, by B. B. Brans,
Attorney fn Fact,** and delivered It to J. J.
Bobertson of Colnmbla, receiving from bUn
tbe full amonnt called for. The check was
lnd(H«ed by Bob»tson and paid by tbe
drawee bank October 26, 1006. S}rana did
not pay the money to Baiter, thon^ payment
was several times demanded of him, bnt
afterwards gave Salter as payment his own
cheek on Bank of Johnson for S200.20, which
was protested for lack of funds. Tbe notice
of protest Indicates that this check was not
given by respondent nntll March 0, 1007,
nearly five months after he had used the
check for $108.00. It was never taken np by
Evans, nor was the money collected by him
on the check for 9108.00 payable to Salter
ever acconnted for to Salter. Subsequently,
when Frank & Son were Informed that Salter
bad not received his money, they sent him
another check, repudiated the indorsement
made by Evans on tbe original check, and de-
manded and received repayment from the
bank. On the claim by the bank that Bvans
liad no right to Indorse tbe check, Robertson
refunded tbe mon^ to the bank with whom he
bad negotiated It Be made several demands
OD Evans that he him the money, with-
out recelvlDg any response, and then placed
thecbe(^ In tbe hands of Mr. George ILRun-
bert, bis attorney. Demands were made on
the respcmdent by Mr. Bembwt» with tbe
threat of criminal prosecution. In April and
May, 1007, but he stiU failed to refund tbe
money. Finally Mr. Bembert brought the
matter to tbe attention of a brother of the
lespondMit, and be paid tbe amount of tbe
dieck.
[3] All of tiie above-stated facts are es-
tabllsbed b^ond controversy. The explana-
tion and excuse offered by Mr. Bvans is that
there was error In the check for 9^8.90, that
In bis application for tbe loan Salter had
constituted him his attorney in fact to in-
dorse tbe check and receive the money, and
that he did not turn it over to Salter for that
reason; but even If be had the authority to
Indorse the check and receive the money for
Salter, that was no excuse for the appropria-
tion of tbe proceeds of the check. Nor is any
excuse to be found In respondent's claim that
he gave Salter bis own check for 9220 covers
Ing the balance coming to him in the place
of the check by Frank & Son for 918&90, for
he does not claim that be bad foods to meet
bis check, nor that be baa ever offered to pay
It. Brides, the protest notice makes it evi-
dent that this worthless check was not giveu
untn March 0, 1907, more than four mouths
after he had Indorsed to J. J. Robertson tbe
check ^Hiilch be should have turned over to
Salttf, and had appropriated the proceeds
to tail oim use. It Is tme that reapondent
went to Mr. Bemberft oflloe In company,
with lait. Bobertson, dedarlng bis intention to
pay back tbe money received from Robertaon
and take up the che<^ and that be testUled
that he did not pay because there was no
one In the office but a steni^rapber ; but that
was after he had disregarded Robertson's
letters, and had been threatened with crimi-
nal proceedings. Besides, this excuse loses
all slgnlflcauce in view of respondent's fail-
ure to take any farther steps to refund the
money.
[4] As to the seomd charge, tbe facts are
simple. The Murray Drug Company of Co-
lumbia placed in the hands of respondent, for
collection, a debt due by T. IL DowUng for
$129.84. Tbe respondent collected, during
tbe year 1906, from DowUng in small pay-
ments for which be gave strata recelpto,
on the Murray claim, a total of 9103, and
then gave Dowltng a general receipt in full
of tbe claim. This money was . not turned
over to tbe Murray Drug Company. Upon as-
certalming that the respondent had collected
9103 from Its debtor, tbe Murray Drag Com-
pany placed the matter In the hands of Mr.
Alien Green, now deceased. Mr. Walter T.
Green teettOed that respondent told Mr. Al-
ien Green In his presence that he bad not
collected the claim, but had received from
DowUng a mortgage covering this debt and
several others, and asked that be be paid a
fee for foreclosing the mortgage. DowUng
testlfled that be never gave a mortgage for
the claims held by the respondent, and that
Mr. Bvans gave a receipt In full after the
payment of 9103 on the claim for 9120.84,
saying that he had been authorized to make
a discount Dr. Murray, of the Murray Drug
Company, testlfled that he did not authorize
settlement for less than the full amount, and
that Mr. Bvans told him that be bad not col-
lected tbe debt but had a mortgage to se-
cure It The matter remained In this condi-
tion until, on the affidavit of Dr. Murray, a
rule was Issued against Mr. Evans in tbe
circuit court, and the money was paid by a
brother of respondent
As explanation and excuse, respondent tes-
tlfled that he did take a mortgage from Dow-
Ung which was never recorded, that he had
several other small dalma against DowUng,
and that wbUe he gave receipts on tbe Mur-
ray claim, the money was actually remitted
to the other creditors. He also produced at
tbe trial an account for 9100 against the Mur^
ray Drug Company, ofle Item being a chaige
of 9SK( for the collection of the Murray claim,
and another of $50 for answering a question
of law propounded by Dr. Murray at a cas-
ual meeting on the street This account was
submitted to the court and is dated January
13, 1013, apparently after the <dalm of Dr.
Murray had been settled. Mr. John Gary
Bvans testified that he paid this clalai, as
well as the Salter claim, without communicat-
ing with tbe reapondentp^g^l^ ^f^t^S^^il
230
78 SOUTHBASTBBN BBPOBTBB
(8. a
tida statement that tbe respondent did col-
lect 9108 for hlg client; tbat be misappro-
priated the money, and, without any Just ex-
cna^ fUled and refoaed to refund It
As to the third Bpedficatlon of the Infor-
mation, the return did not deny* and there*
fme admitted, the auction of the informa-
tion that the respondent had stated In a pub-
lic speech at Spartanburg that Messrs. Able
and Oronch were thleree and Incendiaries,
"that one of the said persons was canght
In the act and compromised, and the other
destroyed the libraries of all the lawyers In
Saluda," and that at varlons times he had
averred that B. F. Sample, sherifC of Saluda
county, was a thief and had stolen a receipt
from respondent's office. But by amendment
of his return respondent denied "that be had
ma'de the charges mallcionsly, because at the
time he bellered them to be true." On the
stand in open court the respondent reiterat>
ed his charge against Sample, giving as the
sole foundation that the receipt was among
his effects seized by Sample under a distress
warrant, and that it had not been returned
to him. He testified that he believed the
charge against Crouch, because Geo. 0. Wheel-
er and W. J. Padgett told him that they had
caught Grouch in the act of setting fire to
tlie house of Geo. C Wheeler, and that be
believed the chaise against Mr. Able be-
cause Messrs. C J. Bamage and J. N. Greg-
ory told him that Able burned the lawyers'
libraries, and because T. O. Bush had told
him that Able had burned his house. All of
these persons, except Mr. Gregory, who Is
dead, appeared and denied that they had
ever made such statements to respondent
Kot a particle of testimony was offered tend-
ing to show that Crouch or Sample was
guilty of the hdnous offenses charged against
them by respondent The testimony tending
to Implicate Mr. Able was not credible, and
there was nothing to show mea that was
before the respondent when he made the
charge. There Is no escape from the con-
clusion that the charges were false, and that
they were made recklessly and without prob-
able cause.
[I] It Is not for this court to animadvert
upon the prevaloit exaggeration and excess
in public qpeech so discreditable and mislead-
ing. Allowance must be made for weak men
who drift with the current Into untrue state-
moits, and who assume one character In pri-
vate life and another in public speech. A
charge of falsehood against an attorney so
weak as to meet expletive with expletive and
excess with excess in the heat of a polit-
ical campaign would rarely be considered by
the courts In disbarment proceedings. But
untrue aaseverationB, made without probable
cause In public ^eech by a member of the
bar, that certain dtlzois have stolen or burU'
ed specific property, are a serious offense,
going to the foundation of character, and
must be weighed by the courts, eqtedaUy
when coupled with other offoiseB shoving a
reddess disregard of professional duty.
We have not thought it prop» to give any
weight to the mere true bill of the grand
jury of Saluda county on an Indictment
charging forgery, in that the respondent al-
tered a receipt for papers signed by Sheriff
Sample, since the Information did not allege
that the cha^ was well founded, and the
indictment was quashed and the matter thus
ended without triaL
This plain narrative shows that tb0 re-
spondent in two instances awroprlated trust
funds to his own use, and failed to restore
them, though repeated demands were made
upon him; that he, without justlflcatton, pub-
lidy asserted that other citizens were guilty
in wedflc Instances of larceny and arson;
that in the trial before the court he has pre-
sented mere pretexts as excuses for his con-
duct; and that on almost every material Is-
sue of fact he has been contradicted by other
witnesses. The chlTdlshness of the pretexts
and excuses offered Indicates obsession of
moral peroeption and a lack of ca];iaci^ to
estimate moral values. In addition to this, a
nund)er of persons In OolumUa and Saluda
have testified to the respondent's bad reputa-
tion for honesty, while the witnesses who
testified in his fhvor on the issue of chazae*
ter admitted that they had heard unfavora-
ble, as well as Ihvorable^ expressions of opin-
ion.
[>] How did it liappen tliat respondent fdl
to this low estate? He bad the advantages
of a rearing gentle and refined ; he has been
encompassed from his birth with devoted af-
fection; he had a brother ready to come to
his relief; he has had all his life the stim-
ulus of descent from families on both sides
distinguished and esteemed, in the past and
now, for manly virtues and pubUc services.
The court is of opinion that the reason of his
fall may be found mainly In the fact that
the respondent is an Inebriate. All men
know that alcohol may make liars of the
truthful, knaves of the honest, ruffians of
the gentle, and traitors of the faithful. Un-
der its Influence the respondent has in mind
and morals staggered along the devious path
which leads to the abyss. It Is true that he
la now Just as unworthy and Incompetent to
perform the duties of an attorney as If his
offenses were due ^tlrely to Inherent wick-
edness, and obviously he will remain so un-
til he changes his habits and reforms his
character. Therefore the court cannot per*
mlt him to exercise the rights of an attor^
ney, or to resume them at any time In the
future, until it has had satisfying evidence
of redemption in habits and character. But
there is a difference in degree between the de-
basement of the criminal who plans hts
crime with deliberation and that of the weak
wrongdoer whose character has been wreck-
ed by drunkenness. The probability of re-
form is also much greater In the lattw than
In the former casa r\r\n\r>
Digitized by V^OOQ IC
&0J
HOLCOMBE T. BPAaTANBURO BT., OAS ft ELECTBIO CX>.
231
A. Uceue from this court to practice law
l8 a declaration by the court that It has sat-
lafled Itself by careful Inquiry and eramlna-
tlon that the licensee la a person of such
attainments and character that he may be
trusted by the public. Proceedings of this
kind against a lawyer are undertaken by the
court for the purpose ct ascertaining wheth-
er the lawyer accused is no longer worthy to
bear the court's imprtmatur. When the ev-
idence shows that he ia, the court cannot es-
cape the sad duty of withdrawing its license
either temporarily or permanently, accord-
ing to the drcumsitancea The evidence in
this case shows that Mr. B. B. E^vans was
guilty of the wrongs charged against him,
and that be la at this time unfit to be In-
trusted with the issues of life, liberty, and
property incident to the practice of law.
The court Is of the opinion, however, that
the respondent should be allowed the oppor-
tunity to reform, and be reinstated upon
proof that he has ceased the use of intoxicat-
ing liquors, and has redeemed his life In oth>
ar respects.
It Is therefore the Judgment of the court
that Barnard B. Evans be Indefinitely sus-
pended and forbidden to exercise the rights
and duties of an attorney in the courts of
this states or elsewhere, nnd^ the license of
this court, with the privilege, however, to
move before this court for reinstatement aft^
er the expiration of two years, upon satis-
factory proof that he has not, for two years
immediately preceding his application, used
Intoxicating liquors, and that be has reform-
ed bis (teseter.
HTDBICE, WATTS, and FBASEB» JJ^
and NIGHOLLS, Acting concur.
(M 8. a 4»}
DLUSON T. aBBBNYILLB. 8. * A. BY.
CO,
(Suprema Oourt of Sooth Caroliiia. ICay
1913.)
TeuX a 369*)— DiBPOBiTion of Oui— Judq-
HKNT ON SpSCIAL VKBDIOT.
Under Code Civ. Ptoc. 1912, | 822, i»-
qoirlng the court to give judgment according
to the special vezdkt when conflicting with the
general verdict, a special verdict controls on
appeal, where the record presents no ground
for setting it aside, and Judgment must be ren-
dered accordingly.
[Ed. Note.— For other casea. sea Trial. Coit.
Dig. Si 867-860. 876, STTTsTS; Dec Dig. f
Gary, a J., and Watts, J., dissenting.
On petition for rehearing. Oranted, and
former opinion modified.
Vm fonnsr optadon, see 77 8. B. 72S.
WOODS, HTDRICK, and FRASBB, 33,
Upon consideration of the petition for a re-
hearing in this case, it appears that, by Its
Judgment, granting a new trial generally,
"nnlesa plaintiff ^all remit upon the record
BO much of the verdict as exceeds tlie sum
of $7S0 and Interest," the court has inad*
vertently put It into the power of the i:lain-
tiff, by refusing to remit as required, to have
the special verdict set aside, notwithstanding
Its correctness has not been questioned by
either party, and notwithstanding the man-
date of the statute (Code of Proc { 322.
quoted in the opinion of the Chief Justice)
that the court shall give Judgment, in a
case like this, according to the special ver-
dict The opinion of the Chief Justice shovra
clearly that, unless the special verdict la
set aside, and plaintiff's attack upon the
validity of her deeds sustained, plaintiff can-
not recover more than 9700 and Interest As
the record presents no ground upon whldi
the special verdict can be set aside. It fol-
lows that in obedience to the statute. It
must control and Judgment must be rendered
accordingly.
Therefore the Judgment of this court
should have been, and now la, that the Judg-
ment of the circuit court be modified, so
that plaintiff shall recover of d^endant $750
and Interest thereon, togetbw with the costs
and dtsbursonenta cit 0ie action.
OART, C. J. I cannot concur in the con-
clusion that the Ju^:ment of this court should
be modified, tor the reason that the verdicts
are so Interwoven that, if one of them is
set aside, there mnst be a new trial de nova
WATTS, J. I amcaz In what Chief Jns-
tice aABT sayi.
(H a. 0. 4SE}
HOLOOUBB V. SPABTANBUBG BT., GAS
ft ELECTRIC CO.
(Supreme Court of Sooth CkroUna. H» 12,
1918.)
1. Cabbikbs (I 278*)— PAS8cnocB»— Acnom—
JUBT QUKEmOlT.
In an action for wlUful failure of defendant
Intemrban company to carry plaintiff between
two points after receiving him in one ctf Its cun,
evidence hetd to authorise the subodsslon of
the question of wantoDuess to the jury.
[Ed. Note. — For other cases, see Carrieis,
Cent Dig. ii 1060, 1081; Dec. Dig. | 278.*]
2. TsiAx (I 194*)— IsBCRncnoire— WnoHT or
EVIDENO&
Instructions which merdy stated the Is-
sues as made by the pleadings were not objec-
tionable as being on the facts.
[Ed. Note.— For other cases, see Trial, Cent
Dig. S3 418. 486. 439-466; Dec. Dig. 1 1&4.*]
8. CaSBIEBS (% 276*)— PASSENOEBftv-ACIIONB—
ADHI8SION or EvtDBNCB.
Id an action Cor .willful Callore of defendant
Interurban company to carry plaintiff between
two points after receiving bim ui one of its cars,
it was not reversible error to permit plaiottff
to testify to a converaatioa with an employe In
charge of defeodaot's can, while plaintiff was
wainng for the car to his final destination, as to
plaintiff not being able to go there on the cars
that night
[Bd. Note.— For other casss, see Cbrrieia,
Cent Dig. H 1078, 1079; Dec. Dig. { 27&*]
•rer ot&ar eaass ssms to^ aatt seotlon NUUBBR in' Deo. Dig. A Am. Dig. K«7-2^^|iftiiit%
282
78 80DTHEUJ3TBBN BBPOBTBB
(B.a
Appeal from Oommon Pleaa Circuit Oonrt
oC Spartanbnxg County; Geo. .W. GagCh
Judge.
Actum by Thomas h. Htdeombe a^dnat ttie
Spartanbnqc Hallway, Oas ft Electric Ooni-
pany. From a Judgment for plaintiff, de-
fendant appeals. Affirmed.
Sanders & De Pass, of Spartanburg, for
appellant NlcbollB & Nlcholls and a P.
Sims, all of Spartanburg, for respondoit
WOODS, J. TbB statement of the case and
p^ts at Issue, made In ajwellant^s tiga^
vaokt. Is 80 enellent tbat we adopt It:
*rnils action Is broi^t to recover damages
tat tbe alleged wUlfol and malicious faUure
of the defendant to carry the plaintiff from
tbe Southern depot, in the city of Spartan-
burg, to Clifton, S. after reod.Ting him In
one of its cars and contracting to do so.
"The following are the undisputed facts:
l%e plaintiff, with his wife and <diildren,
wen passengers on the train of tbe Southern
Hallway Company, with tickets to Clifton, S.
G. The train on the nl|^t in qnestiob, arriv-
ed at Spartanbu^ at 8:02 o'clock p. m., and
left Spartanburg at 5:10 o'dodc p. m. The
car of the defendant on which the plaintiff
took passage, as he says, for Clifton left the
Southern depot at 8:16 o'clock p. m. Tills
car did not go to Clifton, but ran from the
Southern depot to the eastern eoid of Main
street and the passengers desiring to go to
Clifton were transferred in tbe city at the
-43t)8eing of Church and Main streets. The
last car of the defendant going to Clifton
leaves the point of traiufer at 16 minutes
after 7. When, therefore, the plaintiff board-
ed the car of the defendant at the Southern
depot, the last car going out to Clifton had
been gone about one hoar.
"The following facts are in dispute: The
plaintiff testifies: That on leaving the car
of the Southern Railway he w^t to the
street car of tbe defendant and asked the
conductor if he could go to Clifton that night
on tliat car. That the conductor told him he
could. Tliat he, with his wife and children,
boarded the car and went to the crossing at
Main street At tbat point the conductor
told him to get off; that the car to tSke him
to Clifton would be there In a few minutes.
Tbe testimony of plaintiff's wife tends to
corroborate him In this respect The con-
ductor of the defendant testified tiiat he
knew the Clifton car bad been gone about
an hour; that he did not tell the plaintiff
tliat he could go to Clifton that night, and
did not tell him to get off at the crossing,
that his car would be there in a few minutes,
but did give him transfers, which would
have been good the next morning. The plain-
tiff testified that, Instead of waiting until
the next morning, he hired a hack and paid
the hackman $1.50 to go to Clifton. He made
no effort to find a hotel at which he could
have stayed, but voluntarily hired a hade
to talte Mm to his destination that »^g*>t
"Against the objeetloiui of the defendant,
tbe plaintiff and bis wife were allowed to tes-
tify as to a conversatlcm with Mr. BwAlifli*-
ter about tb^ not being able to go to GUfton
tbat Digfat At tbe conclusion of the testi-
mony ttie defendant moved tbe court ta dt-
rect a verdict to be rendered In its favor as
to punitive damages. Tbe motion was »-
fused.
'"His hwuv, at tbe lequest <tf tbe defend-
ant, instructed the Jury that: *A mere con-
ductor has no authority to make contracts
for the nmnlnff of the cars of a sfareet rail-
way company.' His honor further Instructed
the Jury as follows: 'Now. the third view
of tbe case is this, and that Is the one Inidst-
ed iipon by Holcombe's attorney: Did tbe
street car conductor tell Holctnnbe to get on
this car, and that ha could malce connection,
when he knew he could not; did be ttfl
him be could toke blm through, when he
knew be eonld not; and did he, or not,
care wbetlwr be could take bbn fluougb
or not? IB other words^ a total disregard
of tbe duty ot carrying and servlns tbe pa^
I1& Now, It that is BOk tbe Jury could as-
sess sgsinst tbe street car company ponittve
damages for that sort of conduct Now, tbe
tesUniony must satlstr yon by ifai pre{Nm>
derancB that tbat Is so. Does tbe testimony
Hitls^ you that on that algbt the street car
conductor told Holeombe to board this car,
and "we will take yon tbroogh to GUfton")
Does tbe testimony satisfy yen tbat be told
bim that and he knew it was not so, and was
BO unmindful of bis duty towards tbe publte
that he didn't care whether he oariled hbn
through or not, so he got his money? Does
the testimony leave yon In doub^ so tbat yao
cant find ii;hen the truth lies? If so, yov
Should find a verdict for the defendant'
"The Jury rendered a verdict for tbe platn-
ttff for 9600. The defendant thereafter made
a motion for a new trial on tbe grounds,
among other things: • * * His honor
thereafter passed an ordw granting a new
trial, unless the plaintiff would remit all over
the sum of $300. The plaintiff thereafter
did remit the sum of $200 from tbe verdict
and Judgm^t
"The appeal challenges the correctness of
his honor's ruling : (1) In allowing the plain-
tiff to prove a conversation with Mr. Bn<^»
helster. (2) In not directing a verdict to be
rendered in favor of toe defendant as to
punitive damages. ^) In tbat he chained
on the facts. (4) In refusing to grant « new
trial absolutely."
[1] While It may be true ttiat it is very
improbable that the conductor wantonly mis-
led the plaintiff, stlU there was direct evi-
dence that, although be was familiar with
the schedule and knew that tbe last car for
Clifton had gone, yet he assored the plain-
tiff that he would be taken to Clifton that
nlgbt Under this evidence tills court can-
not say there waa error In submitting to tbe
Jury the issue
of wantonness. (^^^^I^
Digitized by VjOOy IC
W.VaJ
GBOTTT NEW BIYEB 4 POOAHOKTAS OONSOL. GOAL C90.
283
[2] The portloiia ot the cbarge qooted In
flu) Btatem^t were Bottalnc more than a
statement of the Issnea u th«y ■ppeared In
tlie complaint and answer.
[t] There was no reversible error In al-
lowing the plaintiff and his wife to testi-
fy to ■ conrereatlon with Bnokhelster, yrhm
they were waiting for the Ollfton car. The
plaintiff testlfled that BiickheiBter had charge
of defendant's cars, and this fhct was ad-
mitted by defendant's counsel, and after that
tact appeared there was no farther objection
to the testimony. Besides, the statements of
Bnekhelster were not material to the Issae
made by the pleadlnc.
Afflrmeda
GABY, a and HYDBIOK, WATTS.
man FRABEiB, J3^ ooncnr.
era w. v«. m
GBOITY T. NKW BIVEB & POOAHONTAB
OONSOU COAL 00.
(Sttpraue Court of Appeals of West Tftrginla.
r«h. la 1018. B«h«aring Denlea
U«y 29, IfilS.)
(8i^iu$ hv tJie Court.)
L EAoaauna <f 1^)— Wats of NKSsnrr—
iMPUOiLTIOET.
A way of necessity over the lands ct a
grantor Is implied in a deed, If, by reason of a
physical obstruction to access to the granted
land, tbe grantee cannot c<Hutract a road
from a ccnsideiable portkn thereof over tiw
residDs witbovt an e^tenditare whoUy dispro-
portionate to the value of the land.
[Ed. Note. — For other cases, see Easements,
Gent IHg. H BO-66: I>ec. Dig. |
t. Easeuzhtb <| 24*)— Watb ow Nsobmrt—
BittHTs or Oaumni.
Smb a way is appurtenant to the nanted
land, and passes to subseqnc;nt grantees utereof,
am] a subsequent grantee of land not used at
the time of tne severance of the larger tract bv
tbe common owner may* when tlie use oi sncn
way beoomes necessary to the enjoyment ot the
land, claim it under the remote deed of sever-
ance.
[Ed. Note. — For other cases, see Easements,
Cent Dig. H Dec Dig. S 24.*]
Bobineon and Iijneh, JJ., dissenting.
Appeal from Circatt Oonrt, Tayette County.
BUI by O. B. Grotty against the New Blver
ft Pocahontas Consolidated Coal Company.
Decree tot defmdan^ and pia^nH*** appeala.
Reversed, and Injanctlom rtfpatated and per-
petuated.
Hnbard & Lee and Gl B. SnmmerOeld, all
<tf f^ettevllle, for appellant Dillon ft Nnck-
ona, of Fayetterillflb for appeUeob
POFFSNBABGEB, P. This biU filed to
▼Indicate tbe plalntUTs alleged right to a
way over the land of the defendant, claimed
as a public one, a private one by prescrip-
tion and a private one by necessity, must
be sustained, if at all, upon the last theory,
since the evidence wholly Calls to sustain
either of the other two. The ai^peal is from
a decree dismissing tbe bill.
The way in question Is a short one. only
S22 feet In length, leading from the plalntUTs
4.5-acre tot through the land of the defend-
ant to a public road. This lot and the road
are on two separate tracts of land, whl<di
at one time constttuted a portion of a still
larger tract, owned prior to the year 18S1
by Henry Banks under a patent Issned by
the state of Virginia December 6, 1794. This
large tract, containing 12,300 acres, was di-
vided into lots, and sold in 1881 and 1882,
John Bowyer becoming the purchaser of lot
No. 15 and Samuel Blalce of lot No. 21, con-
taining, respectively, ISO acres and 497 acres.
The plaintiff's 4.6-acre lot is a portion of the
former. At the time of this division a public
road ran through lot No. 16, bat there was
none through lot No. 21. The portion ot lot
Na 15 out of which plaintiff's small lot was
taken was cut off from the public thorough-
fare 1^ a cliff so high and steep as to render
it ImposaiUe to go over It without veej
great a^am. This pprtlon containing abmit
30 acres lies about 400 or BOO fMt low«r than
the table land on which the resldoe of the
tract, through wUch the road nm, la situat-
ed. Above and below the dlff the mountain
Bide is Tery steen and tht dlff ttsdf Is
nearly parpendlcnlar and 100 feet Jdgh. fbe
plalntUTs title goes batik ngnlarly to the
deed to John Bowyer and that of the defend-
ant to tba-deed to Sunnel Blake. The por-
tion of lot Na 15 lying betow tbe dUEe,. ex-
cluding the plaintUTa 4Jt acrss^ la owned In,
small lots by the heUiB of me Wood, end is
unimproved. The plaintiff obtained his lot
In 1005, and erected a butcher shop thereon.
Later he pot op a n^ntanttal building for
rertdence and mercantUe purposes. Until
that time be had been permitted to use th»
way dalmed by him ont to the conpty road
constructed on the adjacent land, lot Na 21*
long after the division of the Banks land.
About the time of the completion of the
building, the defendants obstructed the road,
and denied him the right of use thereof.
When Bffle and Frank Boach. the heirs of
Woods, coirreyed this 4.&-acre lot to the
plaintiff, more than 60 years had elapsed
from tbe date of the division of the Banlcs
survey and conveyances of its several parts.
They conveyed, not a small lot out of a
larger one, but all that had been assigned to
them in the partition of the Woods estate.
Hence it cannot be said that at the date of
this grant there was a grant by Impllcatitm,
on the ground of necessity, of a right of way
through their remaining lands. The^ had
none:. however, there was a way of ne-
cesrtty included In the partition among the
Woods heirs vrhl^ became appurtenant to
this 4Jt acre lot, the deed to that lot to the
plaintiff may have carried it But, as the
partitioned land did not extend to the public
road In question, that way would anil plain-
tier nothing. To sustain his claim. It
I, lt4;ecoaue8 .
•Tor otbar omm im sum tople and SMUon NUHBBR hi IW Dls. * Aib. Dig. K<ir-MoPaMttidi>!tip4 UU^^
234
78 SOUTHBASTBaMI BBFOBTBB
<W.V».
necessary to go back to the dlrlsion of the
Banks land In the years 1881 and 1832.
[2] Whether an owner of land can go back
beyond the deed of the Immediate grantee to
the common source of title, however remote
It may be, and claim a way by necessity, as
appurtenant to the land, is a vital and far-
reaching gnestlon In the case. The authori-
ties uniformly hold there must have been at
some time privity of tltlew There cannot be
a way of necessity over the land of a stranger
to the tlUa Llnkenboker v. Grayblll. SO Va.
835; KlmbaU v. Railroad Ga, 27 N. H. 448,
59 Am. Dea 387; Pomfret v. Rlcroft, 1
Sannd. 323 ; 23 A. & EL Enc. U 17. lit.
Sergeant Williams' note 6 to Pomfret v.
Rlcroft asserts the right to go back to unity
of possession and title, however remote. It
says: "If the origin of a way of necessity
cannot any longer be traced, but the way has
been used without Interruption, it must then
be claimed as a way either by grant or pre-
scription, according to the circumstances of
the case. Where the tect la that there ex-
isted at one period an unity of possession, It
must then be claimed as a way by grant"
The principle and coucluslon Intimated in
this note have been embodied In actual de-
dsfona. In Logaa v. Stogadale^ 128 Ind. 872,
24N. ai8S^8UB.A.68,tbe oonrt, after
very thorough consideration of the anthorl-
tlM, n^ield the dalm to a right at way aa>
serted on the ground of necessity by going
b%ek to a remote common grantor, citing
Ta^or T. Wamaky, 6B GU. 80a The fidlow-
iag la taken fnnn the cq^nion: "Sie decUra
In the case referred to la sustained by the
doctrine, maintained by the ancient and mod-
em anUuMitiflB, that the original grantor
grants, as aronrtenant to tlie parcel ezprees-
I7 conveyed, a way which will enable hla
grantee to obtain accesa to the onporeal
property expressly conveyed to him. Both
the corporeal property and the Incorporeal
right pass fran the grantor at the same time
—one as the inseparable incident of the oth-
er— and a subsequent grantee must necessari-
ly take the land conveyed to him subject
to the burden created by the Implied grant."
The character and w^ht of the considera-
tions upon vrhicix thlsi Implication rests argue
strongly the correctness of the theory of the
decisions here referred to. Land without
means of access la practically valueless. No
reasonable use can be made of it, and it has
no market value. The presumption of in-
tent on the iKirt of the parties to the conv^-
ance to provide a means of access is so
strong, for this reason, that the contrary
thereof can hardly be supposed. This brings
the Implied grant within a w^I-s^tled prin-
ciple of construction and interpretation of
contracta
That the land was in a state of nature
at the date of the division of the Banks
land, and there was no road on lot No. 21,
nor any occasion for an outlet in that di-
rection for a number of years thereafter,
are asserted and relied upon as Incon^toit
with a presumption of Intent to grant the
way in question. These circumstances are
not broad enough In their scope to preclude
It The parties may well be presumed to
have contemplated such conditions as the
future was likely to bring forth. This prin-
ciple is asserted in Uhl v. Railroad Oo., 47
W. Va. 59, 34 S. a 934. In which the follow-
ing is quoted ^om Jones on Easements, S
323: "The prevailing view in this country
Is that a way of necessity Is not limited to
such use of the laud as was actually made
and contemplated at the time of the convey-
ance, but Is a way for any use to which the
owner may lawfully put the granted land at
any time." In that case Judge Brannon
said: "Though such a use of that crossing
may not have been dreamed of at the date
of the deed, yet the crossing was for use for
any purpose which might thereafter be called
for in the conveyance from the land of its
products — whether a wagon carrying wheat
or coal, or a pipe or other appropriate means
of carrying gas — so it did not practically
impair the use of the right of the railroad
to use Its tracks." The principle thus ap*
plied necessarily includes, or accords with,
what has been said in the preceding para-
graph. A way of necessity springs out of
the deed at the date of the grant, and be-
comes appurtenant to the granted estate. If
It includes such a way as is necessary for
any purpose to which the land may there-
after be adapted and becomes appurtenant
and attaches to the subsequent grant, whoi
the occasion for a broader use of the ad-
jacent land or a heavier burden thereon
arises, the right to it Is found In the remote
conveyance. In the case Just referred to,
tfawe was an express grant of a r^ht of
way, but not such a way as afterwards be-
came necessary to the full enjoyment of the
land, and the court held such larger grant
had been made by Implication. I( a remote
grant by implication can be invoked to en-
large a way expressly granted, no reason is
perceived why recourse cannot be had to one
for a way of necessity by implication for
property, which at the time, owing to its
position and the surrounding circumstances,
was unoccupied and in connection with which
no road was actually used. According to
the legal theory, a way of necessity Is grant
ed for any and all purposes for which the
land is adapted, and, if the grantee has at
the time of the grant occasion for an outlet
and demands it, he can enforce the right
It Is therefore a right appurtenant to the
land, and, having become fixed, it goe* to
subsequent grantees.
[1] As to whether phystcal obstruction to
access to land, such as the Insurmountable
cliff standing between the plalntUTs lot and
the public road on the table land within the
boundary of lot No. 10, will sustain an Im-
pucation of a ^f^^&^fl^,
W.Va.)
OHAPMAK r. BRANCH
286
the aathorlUes are in conflict, Bome saying
the srantee cannot have a right of way out
orar the adjacent land of the grantor, If,
by any meana, no matter at what cost, be
can get ont over his own land, while others
eay neceeslty within the meaning of the
terms as It la used In the law of contracts
snffices. The latter class of cases seems to
accord with reason and the considerations
npon which the rale rests. If the cost of
the conatraction of a right of way or road
out over a man's own land wonld exceed
the Talne of the land Itself or be greatly
disproportionate thereto. It may well be sup-
posed such means of access was not within
the contemplation of the partlea, and that
a way out over the land of the grantor was
contemplated. That a road over the ad-
jacent land of the grantor Is more conven-
ient and could be constructed at a lighter
cost than one over the grantee's own land
will not sustain a grant of such right on the
theory of necessity, of course, but, if it is
practically Impossible to get out over the
grantor's own land, there is as clear a case
of necessity, within the reasonable meaning
f>f the term, as if It were surrounded by ad-
jacent land of strangers; for, in the latter
case, a right of way can generally he secured
if a sufficient amount of money Is offered
for it, Just as a road can be made np such
a cliff as is described here by the expenditure
of an amount of money wholly dispropor-
tionate to the value of the land, and so
great the grantee cannot be supposed ever
to bare intmded to burdm himself with It
Logically it is the necessity that gives rise
to a grant by implication, not the diaracter,
or form or occasion thereof. Very few, If
any, of the cases In wbldi It has been held
that a way of necessity does not exist when
a man can get to his own property through
his own land and that ste^ess or narrow-
ness of the way does not prevent it, pre-
sented such as the situation we have here.
In practically all of them the grantees had
sought ways out over the grantors' lands
on the ground of convenience and economy
only. Snch was the case of Shaver v. Bd-
gell, 48 W. Ya. 502, 87 S. n 064. Of the
evidence In that case Jadge Brannon said:
"It shows that his land runs a long distance
along the public highway, and there is no
obstruction of access to it, save some tol-
erably steep ground, and that a vray nsable
road can be made to the highway at small
expraise, ranging from $5 ap to $6(K ac-
cording to differoit witnesses, the most re-
liable putting the cost at flS or $20.** In
cases like this the courts have said there
need not be an absolute physical obstruc-
tion. The following text from Jones on Ease-
ments, i 316, is well sustained by authority :
"The word Is to have a reasonable and lib-
eral interpretation. The way must be rea-
sonably necessary. If It were limited to an
absolute pbyrtcal necessity, a way could not
be implied If another way 'mu^I be made by
any amount of labor and expense, or by any
possibility. If, for example, the property
conveyed were worth but one thousand dol-
lars, it would follow from this construction
that the purchaser would not have a right
of way over the intervening piece as appur-
tenant to the land, provided he could make
another way at an expense of one hundred
thousand dollars." See Pettlngill v. Port»
et al., 8 Allen (Mass.) 1, 85 Am. Dec. 671;
Smith T. Griffin. 14 Colo. 429, 23 Fac. 905;
Oliver V. Pitman, 08 Mass. 46; Schmidt v.
Qulnn, 136 Mass. 676; Paine v. Chandler,
134 N. T. 385, 32 N. B. 18, 10 I* R. A. 90;
Goodall V. Godfrey, 63 Yt 219, 88 Am. Bep.
671; O'Rorke v. Smith, U H. I. 208, 2S Am.
Rep. 440.
Applying the foregoing principles and au-
thorities, we think the plaintiff Is entitled
to a way of necessity. The practicability
of a way by a different course Is relied upon,
but, as it too would pass over a portion of
lot No. 21 and be very inconvenient as com<
pared with the road plaintiff now oaeib the
fact constitutes no defense.
The decree complained of will be reversed,
and the injunction r^nstated and perpetu-
ated.
B0BIN80N and LTNOH, JJ^ dlMHtlng.
(7» W. Va. M)
CHAPMAN et aL T. BRANCH «t aL
(Supreme Court of Appeals of West Vlrgbds.
28, 1013. Rehearing Denied
Hay 20. lOlB.)
(Byllahiu Ig the Court.)
1. JtmiciAL Sales (S 54*)— Rishtb or Pub-
CHASEBS— REVKBSAL Oft VaCATIOK OF DE-
OBH.
The title f>f an immediate parehaser. w
of a remote purcbRSer, not parties, cannot be
disturbed or affected by rflversal on appeal, or
on setting aside of a decree of sale, for mere
error therein not going to the Jurisdiction of
the eonrt
(Bd. Note.— For otter cases, see Judicial
Sales, Cent Dig. || 108, 100; Dee. Dig. 1 04.*]
2. iNFAirrS (8 114*)— PUBOHASES AT JUDICIAL
Salxs— Rbvebsaz. ob Yacation or Deobei.
This rale -is applicable to infants as well
as adults, proceeding by prochein ami before
majority, as in proper person after majorilr,
either under section 7, chapter 182, Code 1006;
or by motion, original bill or UIl of review to
■et adde Boch decree.
[Bd. Note.— For other cases, see Infants,
Cent Dig. H 323. 825; Dec. Dig. | 114.*]
3. IhFAWTB (5 74*)— AcnoNB—MlSNOMIB.
Where In a suit by an administrator to
sell a decedent's land to pay debts, one or more
of the infant defendants are misnamed in the
process or bill, but the correct name elsewhere
appears in the record, by deposition or affi-
davit, the error in process or bill is correctible
by the record.
[Ed. Note. — For other cases, aee Infants,
Cent Dig. K 188-100; Dec. Dig. § 74.*]
236
78 SOUTBBABTBBN BEFOBTBB
(W.Va.
L UiVAiRS Q 74*>-Aionoira— UiBiroiaEB.
If In mco Bait the answer of the guardian
td Utem (or infant defendants contains the
ume error in the name of an infant defendant,
SDCb error wilt not depriTe the court of juris-
dkdoD to decree lala of tlia land proceeded
■sftbuti
[Bd. Nots^For other eases, see Infanta,
Oant Dig. H 1^190; De& Dig. I 74.*]
SL Ihtajits 80*>— AonoNB-OuABDiAn Ad
LlTEH— APPOINTVSNT.
Errors and irregularitiei In the appoint-
ment of a guardian ad litem, or In his answer
filed, where no statute controls, will not de-
pzin tb« court of its Jnrisdictiaii to ^XHKHinas
decreo.
[Ed. Note.— For other cases, see Inftuts,
Gent Dig. U 210-221; DecT Dig. { Sa*]
& EzKCUToaa avd ADUinisrrBATOBB <| 897*)
—Sales undbb Obdeb or Goubt-Contit-
AMCB— PbOPBBTT EXCLVDSD.
If in a suit to subject a decedent's lands
to sale to pay his debts the court by its decree
authorizes tlie commissioner appointed to selU
to first offer the mineral and mineral rights in
the land, and if these do not bring sufficient
to pay the debts, then to sell the whole estate
in the land, and the commissioner so advertises
and sells such mineral and mineral rights for
sufficient to pay the debts, the court on hia re-
port is without jurisdiction by subsequent de-
cree of confinoation, the question not being
therein otherwise presented or litigaled. to in*
elude in such sale property and proper!? rights
not sold, and such decree and uie deed of the
commissioner to the purchaser to the extent of
such property and property rights are void and
confer no title on the purchaser, as against in-
fant heirs and defendants, and in a suit subse-
quently brought by them showing canse against
such decree and deed, the same and all subae-
anent deeds may be removed ss clouds on their
itls to the property and property rights not
add.
[Eld. Nota^Vor other case% Executors
and Administrators, Cent Dig. H 1588-1604;
De& Dig. I 897.*]
7. BxECDTOBs Ann ADiaimnuTfng 850*)
— 8au8 undbb Obdeb or Oouw-ConoLO-
htbnbw or Dxcbeb.
If In such snit to sell m decedent's lands
one not a party, or mentloiMd In tbe bill, and
against whom no relief is sought, claiming to
be assignee of an alleged oral contract of sale
by decedent to another of a part of his land.
Intervenes by petition setting op nudi oral con-
tract, praying for spedflc execntion. and for
deed, but not making parties thereto, and with-
out process thereon, the court is without ju-
risdiction to decree specific performance of
such alleged contract against infant httat and
defendants not parties and for whom no ap-
pearance or defense is made, and such decree
and the deed of the commissioner appointed to
convey such land to petitioner is void, and in
a salt by such Infants snbseqnontly brooght
showing cause against soeh decree and deed the
same and all snbseqoMit deeds may bs set
airide and removed a> elovds on the title of
such infants.
[Ed. Note. — For other cases, see Executors
and Administrators, Cent Dig. U 1463^1467;
Dec Dig. I 356.*]
Robinson, J., dissenting.
.^peal from dicuit Court; Uncoln Coonty.
Bill in equity by Lena Chapman and oth-
ers against J. R. Branch and othera. From
a decree fbr defendant^ plalntitfa appeal.
Decree reversed In port, aAzmed Id part;
and cause remanded.
B. T. England and J. B. Ellison, both of
Logan, for appellanta. Bnslow, Fttzpatil^
Alderson & Baker, of Huntington, for aiq^el-
leea.
MILLER, J. PlalntUEa, Oamett EIIU Cate
Chapman), and Lena Chapman, adults at
the time of salt, Bodolpb CSiapman, then an
infant, but now also an adult, and Leslie,
Gra<^ and EUsha Chapman, then and now
Infanta, aU children and heirs at law of E,
M. Chapman, deceased, and OUvla Chapman,
hia wife, said Infanta suing by Gamett Ellis,
th^ next frtend, cm Fetvuary 1. Ifl09,
brought this suit agalniA J. B. Branch,
Branchland Coal Company, and others, seek-
ing upon several grounds to set aside, annul
and remove as alleged douda on their title
to a tract of one hundred and twmtr-nlne
acres, and a balf undivided Interest In ji
tract of one hundred and thirteen acres of
land In Uncoln County, certMn decreea and
orders and deeds made pursuant thereto,
pronounced In a certain othw suit, Instituted
the said Olivia Cha{»nan, as administra-
trix of their father, E. M. Chapman, against
than or some of them, then all infants, and
otb^ on Septembnr 25, 1899. to sell aald
lands to pay the debts of said decedent b»-
Muse of alleged defidenc? of personal as-
sets.
The prooees In the suit of said administra-
trix recited the names of all the Infant de-
fendants oorrectl7. except Oamett; in hw
stead U. J. Chapman Is named. la the bill
all are impleaded correctly except Oamett
and BUafaa; In tb^ places IL J. Chuiman
and EUsa Chapman are T"*"?ed. Anfl the
guardian ad Utem answered for those nam-
ed in the bill, and no answer was otherwise
made for Oamett and EUaba.
The decrees <tf sale and oonflrmatUm of
the mineral and mineral rights under the
128 acre tract comi^ained of were prououno-
ed on April 18, 1900^ and Angnst 22. 1900,
respectlTely ; and the decree made on peti-
tion of Johnson Ferguson, adjudging him
entitled to aald balf undivided Intereak ot
said EL IC (Siapman, In said 118 acre tract,
and directing a deed to be made to liim there,
for, was also pronounced on April 13. 1900.
The grounds for relief alleged, briefly stat-
ed, are: First, that neltb^ Garnett nor
Elisba were ever made parties to the suit, or
bill, and never aM>eared, and tliat both re-
mained tnfiants during the whole progress of
the suit; that D. E. Wilkinson, appointed
guardian ad Utem, was a defendant, a credi-
tor, and so Interested as to render him an
Incompetent person to represent them, and
that the court therefore never acquired Ju-
risdiction to pronounce the decrees against
tliem; second, that though the decree au-
thorised sale of the 129 acres In fee, if the
MUHBmtoDatt.Dls.*A0kIMs.K^|^^|^fll^l6k@gll^
•Verstbsri
I see lams tapis sad saotlaa
OHAPACAK
▼.BRANCH
237
mineral rights would not sell for sufficient'
to pay debta, yet only mineral rights were
advertised and sold, bnt that in the decree
of coDfirmatloD along with the mlaeral rights
sold, the court undertook to confirm and the
oonuulssloner appc^nted to convey timber,
bnlldlng rights and other surface rights not
sold, leavljig plaintiffs, as owners of the sur-
face, absolute at the mercy of the par-
chaser of the mineral rights; third, that
though K U. C3iapman, at his decease, was
owner of said halt undivided Interest in
the US acre tract, the court by one of the
decrees complained of, on mere ex parte petl-
tlQii of Johnatm rei^nnoni without process,
notice, or otfa^ proceedings against plaintUT
and without appearance, on one and the
same day allowed said petition to be filed,
and decreed petitioner entitled to that inter-
est, and appointed a commissioner to conv^
hltQ the legal title thereto, in violation of
the statute of frauds, of the rights of plalur
tUTa, and of all proper rules of procedure,
and without having acquired Jurlsdictlim to
do so; fourth, that said sale was decreed,
without giving the administratrix and heirs
at law or some one for them, a day to pay
the debts decreed; fifth, that the mhiwal
and mineral rights were sold for a grossly
inadequate price; sixth, that it wm error to
. decree a sale of said land befoire nw^gning
dower to the widow.
The bill shows that the lands and mineral
interests In controversy and so affected by
said decrees have come by sundry masae
GOUTeyanees to the ponesdon and ownocahlp
of the defendant Branchland Goal Gonpaay;
that its immediate predecessor, the I4nceln
Goal Company, in 1901, took possession of
said lands, espedaJly the 129 acre tract, and
immediately began cutting timber, building
, Cram roads, and opening up coal mlnea; that
It took. pofliMsslon of the. whole of the land
fronting on the rivw, about for^ acres, and
built houses tliereon, . also ot the land on
Four M&e Creek, for the dlstaoce of about
one fourth of a mile,^ cat large ditches there-
in, built roads, and oonttnued these opera-
tions for some tlm^ until the Branchland
Coal Company took charge and con tinned
said operations; and that the whole of the
merchantable timber has becai cut firom the
land and used In building houses, bams and
other buildings, and for cross ties and timber
in its coal mines, and that the larger por-
tion of the coal under said land has bem
mined and shipped away; that taken from
the 129 acres being valued at flB,O0O^;
and the one half of that Ukea from Che 113
acrea is estimated at 12,600.00^ for which
and for other rents and profits. plalntUta al-
leged thegr are entitled to an accounting with
defendants. The purchaser. Smith, of tHe
mineral and miniifg rights under the 129
acre tract, was a stnnger to the suit, and
80 ter as the record discloses was not oth-
enrtae Interested ; and the answers (tf J. B.
Bxaneb and Branchland Coal Company, pot*
ting In issue all the "m^^fflft' allegations of
the bill, shows respondata to have been re-
mote and innocent purchaser^ without no-
tice, otherwise than hy what is disclosed by
the record of the cause, at any i^flymHj^
in the title, and this fact Is not controverted.
[1, 2] We think it settled law in this state,
that the title of an immediate purchasw, and
of remote purchasers, not partta under a
Judidal -decree cannot be disturbed or at-
fected by reversal on appeal, or on setting
aside of a decree of s^e for mwe error
therein, not going to the Jurisdlctiott of the
court, and that Smith and those honing un-
der him are now protected by sectitm S,
chapter 132, Code 1906. Sinnatt v. Cralltf's
Adm'r, 4 W. Va. 600; Martin v. Smith, 26
W. Ta. 679, 586; Dunfee Ghilds. 4S W.
Va. 165, 30 8. EL 102 ; Stewart v. Tennan^
52 W. Ta. 560, 44 S. B. 228, 7 SyL; Perkins
T. Pfalzgraft, 60 W. Ta. 121, 68 S. 013;
Hansford v. Tate. 61 W. Ta. 207, 66 S. B.
872. The reasws for this rule and the legal
prtnc^lefi underlying it are sufladenOy cov-
ered by the <qplidons in the cases clt^ and
particularly in the caaes of Dunfee v. Ghilds
and Perkins r. Pb.lzgra(^ supra, and we
need not reiterate them. These cases or
some of them apply this rule to Infants as
well as adults proceeding by procheln ami
before majority, as they may. Poling t. Pol-
ing,61W. Ta.78,66&a903, Seymour v.
Alfclra^ 47 W. Ta. 802, 806, 34 S. B. 968, and
casee dted, or in proper person after dla-
abilitr remorod either under section 7, dwp*
tor 132, Gbde^ or by motion, original bill ck
UU <tf review to set aside each decree oC
sale.
It is quite aiqiarent that the fourth, fifth
and sixth grounds for relief relied m fall-
within this rule, and tl^it no reversal the
decree of sale for alleged errors therein wUl
entitle plalntlfEs to any relief against the
immediate purchaser Smith, or any aubeer
quent grantee, and paziicnlarly respondents
Branch, and Branchland Coal Company, and
that as to them this question Is a closed one.
[1, 4] Next, and with reference to this rule,
let us consider the other grounds for relief.
First, as to Oamett and BSlsha Chapman.
Did the court acquire Jurisdiction to asU
their intwesta in the land purchased by
Smith? Four of the six plaintiils, infant de-
fendants in the former suit, were properly
named in the summons^ but two, Oamett and
Elisha, were not named in the bill, other-
wise than aa IL J. and Ellaa Chapman,
Wilkinson was appointed guardian ad litem
for the infant defmdants, by the names des-
ignated in the bill, and so aaawered for
than. 1^0 other answtf appears to have
been filed for Oamett or Elisha, and they
were not served with process and did not
otherwise am>ear. But their mother, the
plaintiff and administratrix was examined as
a witness la the cause, and gave the names
of all these infant defendanta /CtnrecUy.
Their true names were tB^imAdaW^S^dfi
238
78 SOUTHBASTBRN BEPOBTEB
on ttie record, wbereby the error In process
and bill could, on motion, hare been cor-
rected, certain^ It the right party has been
served, or, as In this case, where no process
was necessary. 1 Dauiell, Oh. PI. and Pr.
430; section 13, chapter 120, Code 1906; Fer-
rell T. Perrell, 63 W. Va. BIB, 44 B. B. 187.
As was the case In Alexander t. Darls, 42
W. Va. 465, 26 S. E. 291, a decree In the
cause recites filing of the answer of the
guardian ad litem, but no answer Is found
In the record. It was held that the recital
of the decree was not conclnslTe, the certifi-
cate of the clerk making no allnsion to the
absence of the answer. The decree In that
case was not treated as void, but voidable
only, entitling the infant defendants, within
six months after reaching their majority,
to show good cause for setting It aside ; but
It was not intimated that because of the
absence of the answer there was lack of ju-
risdiction to pronounce the decree complain-
ed of. It was regarded as error only. And
so with respect to decrees in McDonald v.
McDonald, 8 W. Va. 676, Myers v. Myers, 6
W. Va. 369, and Roberts v. Stanton, 2 Munf.
CVa.) 129, 6 Am. Dec. 468.
[6] We find that in most jurisdictions, in
practically all, except where controlled by
statute, the omlsdon to appoint a guardian
ad litem, or Irregularities therein, are not
regarded as Jurisdictional, but amount to re-
versible error only, not going to the Jurisdic-
tion of the court 22 Oyc 941; 15 Am. ft
Ei^. Bncy. Law, 9, and cases dted In notes.
We have examined most of these cases and
find them supporting the text Examples of
those cases controlled by statute, and per
contra, are Dohms v. Mann, 76 Iowa, 723,
39 N. W. 823, 825; Roche v. Waters (Md.)
18 AtL 866; Brown v. Sceggell, 22 N. H. (2
Fost) 548. Apropos to this discussion we
held in Boal v. Wood, 70 W. Va. 383, 73 S,
E. 978, that "Where the court once legally
acquires Jurisdiction of an unborn heir by
representation through Ilrlng helra of the
same class. Its subsequent birth without
thereafter being made a direct party to the
cause does not divest the court of Jurisdic-
tion to decree against It, though to do so is
error."
But it Is said, that as Wilkinson was a
defoidant and interested and antagonistic,
his appointment as guardian ad litem for the
intent defendants was illegal, rendocing the
decree of sale void, not merely voidable.
For this proposition appellants rely on Plant
T. Humphries, 66 W. Va. 88, 66 8. E. 94, S»
L. B. A. (N. 8.) 558. But it does not sup-
port the proposition. That case simply holds
that If a guardian ad litem purchases at a
sale the infant's coat the sale will be rolda-
ble not void. No soeh question la here in-
volved.
While these enrors relating to misnomers,
want of a proper guardian ad litem, and a
proper answer by him, may amount to re-
versible error, we do not think them Juris-
dictional, so as to deprive purchasers of the
protection of section 8, chapter 132, Code
1906, defeating their title.
[f] As to the second ground of relief, re-
lating to mineral rights and larger Interests
in the surface, including timber rights, than
the decree of sale authorised, or the com-
missioner, appointed to make the* sale, ad-
vertised or undertook to sell, given the pur-
chaser by the decree of confirmation, a more
serious question Is presented. In Core v.
Strlckler, 24 W. Va. 689, It was held, that
a sale by a commissioner not previously au-
thorized to make it, after confirmation, was
not void, but a mere Irregularity which was
cured by the decree of confirmation, and not
reversible error on bill of review. And in
Caatleman v. Gastleman, 67 W. Va. 407, 68
S. E. 84, 28 L. R. A. (N. 8.) 893, we decided
that a sale by a commissioner of land by
the acre, not so authorized by the decree of
sale, was not void, but a mere Irregularity
likewise cured by confirmation. But those
cases do not cover the exact point now pre-
sented. They involved no error covered by
the decree of condrmation. The decree of
sale In this case authorizes the commissioner
appointed to sell, to drst offer the mineral
and mineral rights In the land, and If these
do not brln; sufiBcIent to pay the debts, then
to sell the whole estate In the land. Sale
of the minerals under such a decree would
undoubtedly Include reasonable mineral
rights, adequate to enable the purchaser to
mine and take out the coal and other min-
erals. We 80 held, in effect, in Armstrong v.
Coal Co., 67 W. Va. 689, 69 S. E. 195. If
the commissioner had advertised the sale
of the minerals and mineral rights and other
rights as described in the decree, and the
court had confirmed the sale thus made, Cas-
tleman v. Castleman, supra, would be ap-
plicable. The notice or advertisement, of the
sale we do not find in the record. The biU
alleges that the special commissioner "ad-
vertised the mineral, mineral rights and priv-
ileges," and It concedes that If reasonable
rights only had been included In the decree
of confirmation and deed of the commis-
sioner, there would be no error; but it la al-
leged that without previous advertisement
and sale these larger surface rights, with
all the timber, and other rights not so ad-
vertised and sold were by the decree of con-
firmation and the deed of the commissions,
erroneously invested in the purchaser. Is
this error in the decree of confirmation juris-
dictional and not covered by section 8, chap-
ter 132, Code? The question is a close one,
but we are persuaded to answer in the af-
firmative. In some jurisdictions as formerly
in Wisconsin and Michigan, where sales of
a decedent's lands to pay debts are authoris-
ed on mere license granted an administrator,
the proceeding to obtain license Is regarded
ae one In rem rather than In personam. And
such being the character of the proceeding,
the court having ^|^e^^|l«^q^^(^e
W.Taj
CHAPMAN
T. BOANCH
239
rem, errors or defects In the proceedings are
not treated as Jurisdictional, voiding the ti-
tle of purcbaser. Qrlgnon r. Astor, 2 How.
319, 11 L. Ed. 283; Mofar t. Uanlerre, 101
U. 8. 417, 2G L. Ed. 1062. In the former
case, Judge Baldwin, at pages 338. 330, of
2 How. <U h. Ed. 283). says: "As the Ju-
risdiction of such courts Is IrrespectlTe of
the partiw In taterest, our inQul^ in this
case Is whether the County Court of Brown
County had power to act In the estate of
Peter Qrlgnon, on the petition of the ad-
ministrator under the law of Michigan, pro-
viding that where the goods and chattels of
a decedent are not sufficient to answer his
Just debts, on representation thereof, and. the
same being made to appear to the County
Court where he dwelt, or where his real es-
tate lies, It may license the executor or ad-
ministrator to make sale of so much as will
satisfy the debts and legacies. No other
requisites to the Jurisdiction of the County
Court are prescribed than the death of Orlg-
non, the Insufficiency of his personal estate
to pay his debts, and a representation there-
of to the County Court where be dwelt or
his real estate was situate, mniting these
(acta appear to the court Their decision
was the exercise of Jurisdiction, which was
vooterreA by the representation; for wben-
ever that was before the court, they must
tiefir and determine whether It was true or
not; it was a subject on which thne ml^t
be Judicial action."
Bat in this State by statute a suit whether
by administrator or creditor to sell a de*
cedent's lands to pay his debts is in perso*
nam as well as in rem. Section 7. chapter 86,
Code 1906, requires that the widow, heirs,
and deviaees. If any, and all known creditors
of decedoit shall be made defendants, and
the rights of all parties, infants and adults,
must be protected by proper process and de-
cree. Jurisdiction of the person aa well aa
of the property must be acquired, to s^
and to ^ve good title to purchasers.
The troublesome question we have here Is,
did the court have jurisdiction by decree of
confirmation to Invest in the purchaser title
to property not sold, or ofCered for sale, or
authorized to be sold, except on condition
that that offered for sale and reported as
BOld by the commissioner would not sell for
Buffldent to pay decedent's debts? If the
mineral and mineral rights sold and au-
thorized to be sold brought a sufficient
amount, aa they did, to pay the debts, the
decree gave no authority to the commissioner
to sell other or addiUonal property and prop-
erty rights, and the commissioner was there-
fore without authority under the decree to
seU more, and the court, we think must be
r^rded aa having been without Jurisdiction
to confirm to the purc^ser other property or
greater rights and interests therein than was
sold or authorized to be sold. The pur<diaser
was entitled only to the property actually
pnrchaaed, and tb^ court by conflrmatlon
could not confer upon him title to property
or property Interests not purchased and not
authorized to be sold excei^ upon a condl*
tlon, wbU^ did not happen.
We have high authority for holding that
an order confirming a sale of property not
authorized to be sold by the decree or order
of sale is void and inoperative. Freeman
oa Void Jndldal Sales (3d Ed.) section 44.
In M. & M. K. B. Oo. V. Soutter, 2 Wall.
609, 17 h. Ed. 886, It was held that a sale
by a marshal, unauthorized by decree, la a
nullity. The iinestion In that case was
whether certain rolling stock of a railroad
company was decreed, and included In the
sale by the master. Apropos to this case the
court says: "Upon principle, the question is
by no means free from difficulty. We are
clear that a sale without a decree to austain
it would be a nullity, and we doubt if a court
can make it valid by a mere general order
of confirmation. If, however, an issue had
been made by exceptions or other proper
pleading, as to the question whether any
particular piece of property had beea. in-
cluded in the decree, or order of sale, and
the court had decided that It was so In-
duded. It might be an adjudication upon ttie
construction of the decree which would bind
the partlea. Nothing of the kind occurred
here. There la every reason, on the contr^,
to believe, that the court had no suspicion
that the Marshal had sold more than the
decree authorized." As In that case so in
this, no exceptions to the commissioner's re-
port raised or perhaps could have raised on
the report as made any issue as to the right
of the pnrchaser to other property or larger
interests in property than were actually sold
and reported as sold. There was therefore
no valid adjudication of the rights of the
purchaser to the additdona) property and
property r^ts and Interests covered by the
decree of confirmation. It was the duty of
the court to have guarded carefully the
rights of the infant defendants and to bare
seen to it that no injustice or bijnry was
done them.
The purdiaser's right to the additional prop-
erty and property rights not having t>e^ adju-
dicated and the error ajq^earing in the decree
of confirmation, we think the court was with-
out Jurisdiction to confer title to the addltloa-
al property and property rights (m the pur-
chaser. It was held in Dunfee t. Chllds,
supra, that error In a decree of confirmation
Is not covered by the statute, and a pur-
<duuer is not protected thereby. Pertinent
is the case of Hilleary ft Johnson v. Thomp-
son, 11 W. Ta, 113. One of the questions
in that case was whether or not the growing
crop on the land was sold with It, and It
was held that under the drcumstances sur<
rounding that case, and In view of the mis-
understanding at the sale, the conduct of the
auctioneer, and the Inadequacy of the price
bid, along with the consAderation, that a
court in acting upon « [j^p^ 6^V»l&^Le
2i0
78 S0UTBBA8TBBM REPOBTEB
(W.Va.
not exercise ma arUtrary but a eoand legal
discretion In the Intereat of fairness and
prudence, and with a Just r^rd to the
rights of all concerned, the sale was Illegal
and void. That case It Is tme was decided
upon appeal, the decree below being reversed
for the error and the cause remanded.
In Stuiver v. Ltdb, 2 How. 43. 11 L. Ed.
172, more land was sold than was decreed
or the conrt had Jurisdiction to sell, but
after the sale the court undertook to con-
firm It At page S&, it la said: "Does the
ratification of the sale bring It within the rale,
which applies to a case where the court has
Jurisdiction, but has committed errors In
Its proceedings? Had the court Jurisdiction
of the tract of land In controversy?" The
answer glv»i at page 60, Is, "No court, how-
ever great may be Its dignl^, can arrogate
to Itself the power of disposing of real estate
without the forms of law. It must obtain
Jurisdiction of the thing In a legal mode.
A decree without notice, would be treated
as a nullity. And so most a sale of land be
treated, which has been made without an
order or decree of the court, though It may
have ratified the sale. The statute under
wUdi the proceeding was had requires a
decree; at least such has been Its unlfonn
construction." In Townsend v. Tallant, 83
Cat 40, 91 Am. Dec. 621, It is said: "But If
the «rder of sale was coram non Judlc^ then
the 'sale' was no sale, and It could not be
made valid and binding by any number of
so-called conflrmatloDs." In Bethel v. Bethel,
60 Ky. (6 Bush) 66, 99 Ank Dec. 655, It la
held, that a sale of land im vcdd when not
made in pursuanoe of a decree, and that no
invalid sale can be sanctifled by a mere con-
flimatton of a commlsHloner'B report. In
tlmt case the first decree authorised the com-
mlasloner to sell land in parcels, limiting
Che price per acre. The sale made was under
a seccMid decree at another term, authorizing
a sale of the whole of the land, and without
restriction as to price. The sale was held
void. In Campbell t. Ctey, 6 Bush (Ky.)
600, the statute required the coomilsslonerB
to report certain facts, as a condition of
selling infants' lands. The report was not
strictly In accordance with the requirements
of the statute. The statute not having been
compiled with the decree and sale were held
void. See, also. Borer on Judicial Sales
(2d Bd.) sectiona 63, 66, and 499.
Upon the principles of these authorities,
we hold, that the decree of confirmation in
this case In so far as it undertook to con-
firm to the purchaser property and property
rights other than what were sold and re-
ported by the commissioner Is absolutely
void, and that the purchaser by the decree
of confirmation took no title thereto as
against the Infant defendants, plalntlfEs in
this salt Those rights which we think
should be eliminated from the decree of
confirmation and the deed of the commis-
sioner, consist In the tight oonflrmed to erect
coke ovens and manufacture coke; the rlgltt
to erect and maintain buildings on said land,
other than those necessary to convenlentlj'
remove the coal and the oUier minerals sold
and conveyed; the right to take any of
the timber therefrom, for any purpose;
rights of way over and upon said land, for
general railroad purposes ; the right to erect
and maintain store houses or other improve
ments thereon, not necessary for the con-
venient mining and removal of coal and
other mineral substances fairly included with-
in the mineral rights sold and purchased
by the purchaser. In so far as such property
and property rights and interests were by
the said decree of conflrmatloa confirmed to
the purchaser, we hold It to be void and that
It should be set aside, reversed and annulled,
and that defendants should be required to
account to plaintiffs therefor, and for the
use and occupation of said lands, not legally
authorized, and fer the property and prop-
erty rights taken which were not sold and
purchased under the decree of sale.
[7] And lastly, as to the decree on the peti-
tion of Johnson Ferguson. The pedtloner
was not a party to the suit There was no
mention of him In the bill, nor of the land
claimed by him, nor -after his Intervention
was the hill amended. The petitioner sim-
ply Intervened by his petition, and the order
fllii^ It made him a party, whether plaintUf
or defendant the decree does not say. He
set up an oral contract for the sale of land,
of which he allied he was assignee. The
petition alleges that one Mldkiff was the
purchaser, and that after his alleged pur-
chase In the fall of 1898, be moved on the
land and built a small log house; that
Chapman was to make him a deed the fol-
lowing spring, but died in the meantime and
never had done so. Petitioner concedes that
nothing was paid by the purchaser until aft-
er the death of decedent when the contract
price, $50.00, was paid to the admlnJstratrlXt
the wife. The legal title to this land on the
death of Chapman descended to his Infant
heirs. The petition made no one a party to
It; did not pray for process, and no oppor-
tunity was given to defend the petition, not
even the guardian ad litem answered or was
required to answer, or made any defense.
The bill In this case pleads the statute of
frauds, and want of Jurisdiction In the court
to decree the land to the petitioner, or to
dismiss It out of the suit These defenses
would have been available to plaintiffs if
they had been adults^ In Olade Mining Co.
V. Harris, 65 W. Va. 152, 63 S. E. 873, we
held it to be the duty of the court to pro-
tect the Interests of infant litigants, and
that this rule Is applicable to appellate
courts, and that on appeal an Infant will be
given the benefit of every defense of which
he could have availed himself or which might
have been interposed for him In the trial
court This is not literally an api)eal from
that decree, but it ^ J^.^^HjflJf^gl^-
W.VaJ
BOGOXBS T. BARTLBTT
241
Ing caoae against It But tbe particolar
Quegtlon presented for dedslon now la, haci
the court jariadlctlon of tlie parties to pro-
nounce tbe decree? As there was no issue
between plaintiff and petitioner presented by
the bill, and the petition did not make par-
ties thereto, tbe decree prononnced In fovor
of the petitioner without process we think
was utterly void. To confer Jurisdiction It
Is necessary to have pleadings presenting an
issue to be tried, and also to have Jurisdic-
tion of the person by process or appearance.
Many decisions say that where a case Is
made out between co-defendants by erldence
arising from pleadings between complainant
and defendant a court of equity may and
should render a decree between the co-defend-
ants, but that when there are no such plead-
ings a court of equity cannot render a de-
cree between co-defendants. 8 Enc. Dig. Va.
ft W. Va. Kep. 286, and many cases cited.
We do not think It can be properly said that
a case was made out between the petitioner
and the infant defendants on the pleadings
between plalntifh and defendants in the orig-
inal snit
Treating the petition of Tergnson as an
answer se^ng afflrmatiTe relief, the rale of
Turner v. Stewart, 61 W. Va. 4»3, 41 S. E.
824. syllabus IS, is applicable. That rule is
that where an answer is not Intended for
defense only, bnt to affect the rights of a
co-defehdant, It must make him a party and
call for relief against him upon Its facts, as
In case of a cross bill, and the process to
answer it mast be served upon defendant.
Goff V. Price, 42 W. Va. 384, 26 3. E. 287;
Kanawha Lodge v. Swann, 37 W. Va. 170,
16 8. E. 462. See Dudley v. Barrett, 66 W.
Va. 363, 372, 66 S. E. 507. and Dudley v.
Buckley, 68 W. Va. 630, 647. 70 S. B. 878,
uttlrmlng the same proposltioti.
Therefore, for want of Jurisdiction of the
subject matter and of the parties, and for
want of pleading and process, we are of opin-
ion that the court In the original suit and the
decree therdn was wholly without Jurisdic-
tion to pronounce decree In favor of Fergu-
son, and that the decree in his favor is ut-
terly void, and that It and the deed tbere-
for by the commlsfdoner should be set aside
and removed as a cloud upon the title of
plaintiffs and appellants.
The decree below will, therefore, be re-
versed in the particulars herein Indicated,
but affirmed in all other respects, and the
cause will be remanded to the circuit court
fi>r further proceedings to be had tbereln in
accordance with the prlndples herein enun-
ciated and further according to rules govern-
ing oonrts of equity.
ROBINSON, J. (dJaaentlog). Point 6 of
the syllabus does not meet my approval.
Where a omrt hu oMalned Jmladlction of
the parties and the subject matter of the
suit, that which It may Improperly do In
relation to them Is error, but not total In-
validity. The court In conflrmlng the sale,
dnce by process and pleading it had obtained
Jurisdiction of the parties and the land, had
the power to construe Ita decree of sale as
to what mineral or mining rights were meant
to be sold, though it may have acted ever
BO erroneously or improperly.
(n w. Va. sn>
BOOQESS V. BABTLBTT.
(Snpnoie Court <^ Appeals of West mxrinla.
April 29. 1913.)
(Bflt9hu$ h9 the Court.)
1. Uuras ANn MinERALs (S 79*>— Ijuun Goh-
xa&OT— FBaroaiuNCB or Conditions.
An agreenwDt by a lessor with the lessee
to procure a release of the Uen of a deed of
trust ai>on the premises by an assignee of tbe
note representing the debt so secured, as a
condition precedent to payment of part at tbe
purchase money of the lesse, is not dlacbargad
or performed by tbe procuremeDt of a telwae
of tiie lien by tbe onsinal creditor.
[Ed. Note.— For other cases, see Mines and
Minerals, Cent Dig. f 209; Dec Dig. | 79.*}
2. kbim A»D MlRKBAlS (i 70*)— lAASX COK-
TaAC^PnroBXANCi or Condition.
Nor is the effect of the agreement destroy-
ed or penformance of the condition excused by
pnx^ in an action for Mcovery of the deferred
purchase money, of payment of tbs debt secur-
ed by the deed of trust to the original creditor,
before assignment, or its extinctutn by merger
in the hanoi of an assignee.
[Ed. Note— For other cases, see Mines and
lUnerals, Cent Dig. ! 200; Dec. Dig. S 79.*]
3. Action (| 62*) — PBSuaxnu Coiukkck-
UENT— ViXIDATIOK.
In such case, the surrender of tbe lease,
under a provision thereof permitting it,' after
the commenceaieut of the action, but before
trial thereof, does not warrant recovery. It is
raqniaite to the maintenance of a suit that
tikere be a caose of aetiw at the date of Its
institution.
^^^^'i^-^ oases(. see Action, Ont
Dig. H 71&-721. 723; DceTblg. { 62.*!
4. CORTBACTB (| 308*)— AonoNS— DmNsp—
Waivkb or BaucH.
A party to a contract causing, by his own
default, a breach ot one of Its subsidiary or
collateral provlaiona, the purpose of which was
to suspend the time of payment of money by
him to the other, is deemed to have waived the
benefit fliereof, and cannot rely upon the tureach
as a defense to an action for the money.
[Bd. Note.— For other cases, see Contracts,
Cent Dig. U 1409-1448; Dec Dig. i 808.*]
5. CoNTBACTS (} 278*)— Waitxb or Bbeach.
In such case. If the collateral or sabsldiary
agreement is separable from the main contract,
and was made for indemnity of the defendant,
he is deemed to have elected to for^o its bene-
fit snd rely upon the main or geoenl contract
for compensation in damages tor violation of
plaintiff's obligation nnder it
[Ed. Note.— For other cases, see Contracts,
Cent Dig. || 1207-1213; Dec Dig. S 278.*]
•For ctkqr cams see aasu teple aad ssetlon NinCBBR ta Deo. Dig. * Am. Dig. Key-Hob Barlas Mtep> ^J^^
T88.£^ltt ■ Digitized by VjOOQIC
342
78 SOUTHSASTBRN BEPOBTEB
(W.Ta
Xrrw to dicnlt Court, Marlon Connty.
Action by Harriett A. Boggess a^nst
Fred W. Bartlett Judgment for i^lntlff,
and defendant brings error. Afflrmed.
W. S. Meredith, of Fairmont, for plaintlfl
In error. Harry Sbaw» of Fairmont, tta de-
fendant In error.
POEVENBAKGBB, P. The Judgment here
complained of Is for tbe amount of a chedt,
$1,250, reprcscntinE part of tbe pnrcbase
mon^ of a lease for oil and gas purposes,
executed the plaintiff to the defendant,
and Interest on said sum. It rests iqion a
verdict wbicta was objected to on several
grounds, all of wblch the court beld untena-
blew Tbe case was tried In tbe Intermediate
court of Kforlon couni?, whose judgment was
affirmed by the circuit court of said county,
from which tbe Jn^ment comes here on a
writ of error.
By agreement of the parties, admitted by
tbe plalntUE as w^ as proved 1^ tbe evi-
dence^ the money reiweBented by the check
was not to come Immediate Into her hands,
but was dtber to remain In tbe bands of
the dtfendant, or In the bands of a deposi-
tary, until tbe plaintiff should free the lease
of a daim to a prior lien on the land by one
O. A. Snodgrass, as aaslgnee of a note se-
cured by a deed of trust As to the nature
or diaracter of tbe d^iXMdt, there Is contro-
versy, but the agreement to make a deposit
with W. 8. Bngle^ until the Uen should be
released or the dond dissipated, la admitted.
To cfmsnmmate the deal the d^ndant sent
the plalntUE a check along with anothtt and
two notes by his agent When this check
ms examined it was found to have been
written for $1,060, Instead of $1,250. There-
uptm the agmt &xev another In tbe name of
his ^Indiial for the correct amount, $1,2S0,
which he delivered to the plaintiff along with
the other che<& and the notes. TtdB check
was OEcbanged at a bank in Fairmont for a
certificate of d^sit in an equal amoant
wblch was forwarded to Engle, the deposi-
tary. By order of tbe defendant, the drawer,
payment of the check was refused, when it
was presented at the bank at Mannlngtou on
which it was drawn, and thereupon it was
protested and returned to the bank which
had issued the certificate of deposit Then,
upon request Engle returned the certificate
of d^slt, which was surrendered to the
bank by wfalcb it bad been issued and the
check taken up. The action is in debt on
the check, and defense is made under tbe
general issue, and also a special plea charg-
ing failure of con^daatlon. The action of
the court In ovOTruIlng tbe demurrer to the
declaration is tbe ground of an assignment
of error ; but tbe assignment Is unsupported
by any argument and we pocelve no defect
In the declaration.
The additional facte bearing upon the is-
sues submitted to the Jury are substantlaUy
as follows: Owning a tract of land conteln-
Ing 121 acres, situate In Blarlon conn^, the
plaintiff on Mardi 28, 1005, conveyed it to
James N. Shaw by a deed of trust, to se-
cure the payment of a note for the sum of
$1,000, executed by tbe plalnUff and her hus-
band, and payable to BUza A. Bosk 12
months after dato Later, about Novonba,
1906, she and her husband conv^ed tbe land
to one J. D. Charlton for the use and benefit
of the Exchange Bank of Mannlngton. On
November 10, 1906, Charlton drew his check
for $1,097.88, payable to BUza A. Busk, which
was paid and bears her indorsement It
bears the following memorandum: "For note
of B. A. Busk against O. J. Boggess." Charl-
ton took from her a written assignment of
the note and the deed of trust Having thus
gotten the land and paid or bought the note;
Charlton conveyed back to Mrs. Boggess, on
the same day or a day or two later, en In-
terest In tbe oil and gas in tbe tract Then
be conveyed tbe residue to the Exchange
Bank of Mannlngton, for which be bad acted
as agent In the transaction. Elarly In Mardi,
1909, Charlton and the bank united In a deed
conveying the land to C. A. Snodgrass, and
Charlton by direction of tbe bank- executed
written assignments of tbe note and deed
of trust to him. Tbe assignment Is dated
March 3, 1909, and was acknowledged Oc-
tober 26, 1909. Both asslgnmente of tbe
note were without recourse. By a letter
dated March 6, 1909, Snodgrass gave Mrs.
Boggess notice of bis alleged purchase of the
note and claim of right to enforce the deed
of trust against her oil and gas interest In
tbe land. Her husband responded to the
notice for her and was fully advised of the
claim. Acting for her, be effected the con-
tract of lease of her interest to Bartlett
April 17, 1909, a part of which was the agree-
ment to deposit with Single Bartlett's check
for $1,250 of the porcbase money, or a cer-
tified check or certificate of deposit therefor
(a question as to which the evidence con-
flicte), to be held until Mrs. Boggess should
procure a release of tbe lien claim. Later,
and long after she bad parted with the note,
Mrs. Busk executed a release of tbe deed of
trust This action was brought July 27,
1909. Bartlett assigned the lease to N. h\
Clark, who sorr^dered it In April, 1910, be-
fore the trial of this action, under a clause
thereof permitting him to do so. PlalntlCTs
husband swears Charlton, or the bank whose
agent be was. agreed to pay tbe Rusk note
as part of the consideration for the convey-
ance of the land to him. Snodgrass, who as
attorney for Mrs. Rusk collected the note
from Charlton, says he does not know wheth-
er such was the agreement
[t] Procurement of a release of tbe deed
of trust from Mrs. Rnak did not constitute
performance of the condition precedent to
the payment of the $1.^ to the plaintiff.
At the time she executed It Mrs. Rusk had
DO toterest in the ^^^^^.^y^^MUg^
W.VaJ
BOGOESS T.
BABTLETT
243
She had loDE since assigned the note to
Charlton. The procurement of a release from
her was an attempted evasion of the plain-
tlfTs obligation. It was distinctly under-
stood between her and Bartlett that the
claim of Snodgrass, not Mrs. Rusk, was to
be extinguished before idMolote and final
payment of the money.
Nor did the invalidity of Snodgrass* claim,
assuming the note to bare been paid and not
purchased by Cbarlton, or the lien and debt
to hare been merged in the title to the prap-
erty, when both came Into the possession and
ownership of Charlton, constitute any de-
fense. On the face of the contract, as sworn
to by the parties, there was do agreement to
pay the $1,250 to the plelntltt except upon
condition. According to the witnesses for
the plaintiff, the money or a certlflcate of
deposit thereof, or a certified check therefor,
was to go into the bends of Engle and to be
held by him, as an indemnity in favor of
Bartlett against the claim of Snodgrass, un-
til that claim should be extinguished. Ac-
cording to the testimony of the witnesses
for the defendant Bartlett's check only was
to go into the hands of Bngle. If this testi-
mony states the contract truly, the money
was not to be actually paid by Bartlett nn-
til after the procurement of the release. In
neither case was there an obligation of di-
rect payment to the plaiutlflC. She agreed
with Bartlett to procure a release of the al-
leged lien on the subject-matter of the lease.
He demanded the lease with a clear record
title, and she agreed to give It in that way.
As executed it was not swA a lease, and she
agreed to forego payment of the money In
question until it should be made so. If the
claim of Snodgrass was Invalid, for ^ther
of the two reasons assigned, she could have
compelled him to execute a release by proper
proceedings, and agreed to do so. Her agree-
ment was not to procure a relets from any
other person, for no other person was assert-
ing any clalio under the deed of trust By
her contract she precluded herself ab-
solute payment, and bound herself to the
performance of the condition precedent: In
such cases, recovery cannot be had without
previous performance of the condition. In-
deed, no Eli^t of action accrues until after
such performance. Plumbing Go. v. Carr, S4
W. Va. 272, 46 S. SI 45S; Parker r. Build-
ing & Loan Ass'n, 55 W. Va. 184, 147, 46 S.
B. 811; Reynolds Tompkins, 28 W. Va.
228; Wharton, Con. | 594; Hammond, Con.
S 466; Ghltty, Con. 833.
[2] Flaintifl's ^ort to estahUsh payment
of the debt or extinction thereof against
Bartlett In this suit la no performance of the
agreement She undertook to establish that
fact against Snodgrass, and to make it con-
clusive by Ha procozement and recordation
of a release from him. He is no pert? to l^iis
■nit aiid an adjudicatlm of payment of the
debt here against Bartlett would not con-
(dude him or .affect any right he may baye^
[3] Aa the reason or purpose of the col-
lateral agreement of indemnity ceased with
the surrender of the lease, right of recovery
might be founded on that fact, if the sur-
render had occurred before the Institution of
the action, but it did not The action was
commenced July 27, 1909, and the surrender
occurred April 17, 1910, about a month be-
fore the trial of the action. As there was no
right of recovery nor of action at the time
the bction was commenced, the proceeding
was fatally and incurably defective. Subse-
quent acquisition of the right to sue for the
debt described In the declaration conferred
no right of recovery in this action. It was
prematurely instituted. Wlldasin v. Long,
82 S. B. 205, decided at this term, and not
yet reported ; Frye v. Mlley, 54 W. Va. 325,
46 B. B. 136; Silllngs v. Bumgardner, 9
Qrat (Va.) 273; Lemon v. Hansbarger, 6
Grat (Va.) 301. A cause of action is incom-
plete until the occurrence of default on the
part of the defendant, his invasion of the
plaintiff's right, or neglect of the duty he
owes the plaintiff, and the cause of action
must exist at the date of the Institution of
the suit
[4] As to the character and terms of Oie
collateral agreement of Indemnity, the testi-
mony Is oral and conflicting. Its terms, as
contended for by the defendant are tesUfled
to by himself and two other witnesses, Hess
and Weed. Plaintiff's husband testifies with
equal emphasis to the different terms and
provisions contended for by the plaintiff.
Bartlett and his vrltnesses say E^gle was to
hold his check utatll the Iwse should be pro-
cured. Boggess says the money was to be
actually paid or the check cashed, and the
money loaned out and the evidence of Indebt-
edness placed in the hands of Engle. The
check was never placed In the hands of
Bugle. On the contrary, Bartlett sent the
check by Weed along with the notes and an
additional check tor delivery to Mrs. Bog-
gess. Owing to a mistake in it as to the
amount the check was destroyed, and Weed
drew another for the correct amount and de-
livered It to her. His acts accord with fhe
statement of the contract by Boggess rather
than that by Bartlett and his witnesses. The
delivery of the check occurred very soon
after the agreement Weed and Boggess
went from Mannlngton to Rirkersburg to
drae the contract tbe former carrying with
him the checks and notes. Upon this evi-
dence, it was competokt for tlie jury to find
either way.
[I] If the contract was as stated and claim-
ed by the plalntUfi, Oie defendant violated It
and prevented tiie consummation thereof by
stoppage paymoit of tbe check. The col-
lateral agreement was for his benefit and
protection. He had agreed to pay ¥8,630 for
the lease, and executed his obligations for
that amount two notes for $1,000 each, his
che<^ for and another tor^,250, bat
the mott^ representeit)i$i^4^yAb<^@iSK
244
78 SOUTHBASTIBBN BBD?OBTBB
(Ga.
go lato the hands of a third imrty aod there
remain until the release of the deed of trust
There was consideration for the $1,250. It
was part of the purchase money. The de-
posit agreement was collateral, relating to
the time of payment This sum of mon^
was part of the agreed value of the lease
ecuted to him, but there was a collateral
agreement made for his t>enefit and protec-
tion. The money was to be held as a trust
fund until the condition for final payment to
the plalntlCt should be performed. The con-
dition was one of Indemnity, not satisfaction
nor relinquishment It could be waived, and.
once waived, the money became due Im-
mediately. His stoppage of payment of the
check prevented the consummation of the
agreement In so doing, be Impliedly waived
the benefit of it, elected not to perform his
part of it, and yet claimed and held the bene-
fit of all other provisions of the contract
The collateral agreement was not a neces-
sary element of the contract In the sense that
it conld not have been omitted in the forma-
tion thereof. It could have been so framed
as to permit the lessee to rely upon general
legal and equitable rules and principles for
his Indemnity against the Snodgrass claim.
He elected In the first Instance not to rdy
upon the law for such protection, but upon
an express contract By refusal to perform
his part of that subsidiary agreement, he
virtually elected not to take the benefit
thereof, and to stand as If It had not been
made. In this situation, logic, equity, and
law require him to pay the money as he
would have done bad the contract been clos-
ed without the collateral agreement and rely
upon the law and the right arising out of
the general contract for redress of such in-
jury as might result to him from the Snod-
grass claim. Of course Mrs. Boggess agreed
to procure the release b^ore receiving the
money, but she agreed to do tliat on condi-
tion that Bartlett should deposit It or pay it to
her and intrust her to deposit It He was
to make the money secure In a certain way,
before her duty respecting the release began.
That act of his was a prerequisite to obliga-
tion on her part to move for the release for
the purposes of the collateral or subsidiary
agreement Her obligation under her general
agreement to furnish a lease with a clear
record title was an entirely different thing,
not affected by the fftUure of Qie special In-
demnity agreement
The general principle underlying this
conclusion was applied, under circumstances
somewhat different from those of this case.
In Ashland Coal ft Coke Co. v. Hull Coal A
Coke Go., 67 W. Ta. 003, 68 a EL 124. The
contract involved In that case Was more ex-
ecutory In character than this, but the con-
duct of the parties here embraces all the equi-
table considerations and elements of estoppel
fonnd In that case. Bartlett has retained
the benefit of the general contract while re-
fusing to consnmmate the collateral or i^a-
dal agreement His default induced that of
the plaintiff upon which he relies as matter
of defense, and the policy of the law denies
to the wrongdoer the benefit of his wrong-
ful act Other cases illustrating the applica-
tion of the principle of waiver, as applied to
contracts containing dependent or concur-
rent covenants, are referred to In Aahiawrt^
etc., Co. V. Hull, eta, Co., here dted.
The petition for the writ of error charges
generally error in the rulings upon Instruc-
tions. It si>ecifles no particular ruling as
being erroneous, nor does the brief. Not
more than two Instructions were given for
tbe plaintiff, and one only was given for the
defendant These seem to have properly sub-
mitted the vital Inquiry to the Jury, namely,
the terms of the special contract Several
Instructions requested by the plaintiff and
two by the defendant were refused. We
perceive no error lu the rulings upon any of
them.
The Judgment will be affirmed.
on o*. OS)
GHIGA.GO BLDG. & MFG. CO. T. BUTLIDB
et aL
(Supreme Coort of Georgia. April 16, 191&
Behearing Denied May 16, 1A13.)
(8vTldb%9 »y tU Court,)
1. Appeal and EKbor (| 1173*)— DEcnxtw—
junouEnr Euoiraotn ik Pabt Oklt.
Where a judgment excepted to is errcma-
ons In part and can be segregated so th&t tbe
legal part can be separated from the illegal, it
is Dot necessary to set aside the entire Judg-
ment, but only the part which li erroneons.
(a) Where a number of persons have been
sued, and a verdict has been rendered in fa-
vor of an the defendants, and where on re-
view the evidence shows thst the verdict la
sustahied as to all the defendants except two,
and there is no evidoiee to anpport the ver-
dict as to them, the Judgment of the trial
court overruling a motion for new trial, will
be affirmed as to all of the defendants except
the two in whose favor there was no evidence,
and as to them the judgment will be reveraed,
[Ed. Note. — For other cases, see Appeal and
Error, Cent Dig. S| 4662-4572, 4666: Dec
Dig. I1173.*]
2. Vbndob AifD PusofiAsn (S 44*)— Actios
OW SUBSCEIPTION CONTBACT— EVIDBNCB.
It was not error to exclude the followlaff
evidence offered by the plaintiff, where it does
not appear that the defendants were present
and were connected in aome way with the
transaction, to wit: *^hen I commenced solliy
itlng subBcriptionB, a meeting was beld at the
courthouse at Greensboro, Ga., and at this
time I read the contract in fall and explained
exactly what would be necessary, and in fact
that unless we were able to secure at least 00
signatures, covering CO shares of stock, at flOO
each, the contract woold be null and void, and
not binding on any of the parties."
[Ed. Note.--For other cases, see Vendor and
Purchaser, Cent Dig. H (»-76; Dee. Dig. {
44.*I
3. BviDERCB (I S84*)— HairowBinna— Stahd-
ABD OF COlDPABiaOll.
Before a paper purporting to be signed 1^
a person can be admitted In evidence, the pi
ence, the pur-
•VorotlMri
I ■•• nB« topis aad BMtlra NUMBBB la Dae. IMS. a Am. Dig. Ke)ri^<ai»lS|i
G«0
OHZCAOO BLDO. A HFQ. 00. T. BITTLKB
pots tf Introdndiiff which paper la to ha,TC m
comparison by the Jury of the slgnttnrca to
the paper with the slgoature to another paper,
wbtcb Is Bued upon, and to which a plea of
noa eat factam mm been filed. It is ncceuary
that the sisnatore to the formsr paper shall be
legally proved, or acknowledged to oe genuine.
[Ed. Note^^For other eaaea, aee ETidoice.
Cult Dig. U 238K-2888; DvcTdIk. f M4.*]
4 Btidencb (I 434*) — Pabol Etidehcb —
OOHTB&Or— FbaTTD Ilf PBOCUBKHSnr.
Tlie general rule is that parol contempora-
aeoiM eTidenee la not admissible to contradict
or Tuy the terms of a valid written instru-
ment Bnt where a written instrameDt is saed
apon, and the alleged makers file pleas <^ non
est faettuu and that the instmmeiit was pro-
cored by fraod, eridenea tending to anpport
snch pleas Is admiasible.
(a) In snch a case, evidence tending to show
that the alleged maKers did not sign the al-
leged contract sued on. and that the contract
waa i»ocnred by frand, ia not admissible as
contradicting or varying the terms of a valid
written instrument It denies the existence of
snch a contract
[Ed. Note.— F(w other cases, see Srvidence,
Cent Dig. a 2005-2020; Dec Dig. S 434.*]
PABTnXBSKZP (I 217* )— ama— APTHOBITT
or Pabthib— EvioxnoB.
Where a member of a partnership signed
flie firm name to a contract which was ss to a
matter not legitimately connected with the
partnerdiip boinneaa, and the partner so sign-
ing had no authority to sign audt contract it
is not error to allow anoaer member of the
firm to testify, on the trial of a case In which
the members of the firm were eodefendants,
that the fim bad agreed among themaelves
that they did not want any atodi In the busi-
ness that the contract waa algiwd to aeeoM.
[Cd. Note.— For other eaaea, aae Partnership,
Cent Dig. n 410-426: DacTbig. % 217.*]
6. HUSBAITD ARD Win (% 187*) — SEFASAn
Pbopebtt of Wm— Action oh Cohibaci^
Aduissibiutt or Evidknox.
In this state a wife la a feme aolt as to
her separate estate, and her huaband cannot
hind her or her property without ber authority.
Consequently, where stut was brought agafoBt a
wife on a contract alleged to have been signed
by her, and to whidi ahe had filed a plaa 01 non
est factum, it was not error to exclude from
the jury a postal card, written by the husband
to the agent of the plaintiff, authorizing the
agent to "put down one share" of the stock
called for in the contract to the wife.
[Ed. Note.— 'For otiter eases, see Husband
and Wife, Cent Dig. H 612-638, 880, 040;
Dec. Dig. I 137.*] »
*l. VBNDOB and PUBCnASBB (8 316*) — SUB-
BCBIPTION TO But— EVIDKNCK.
It was not error to refuse to allow the
attorneys for the plaintiff to put In evidence a
copy of a notica, and to testify, in connection
therewith, that ue same was a copy of a no-
tice sent to each defendant in a suit brought
to recover prinetoal, faitereat and attorney's
fees for an luleged breach of a oontract ah<nr-
ing that the attorneys held the daim sued on
for collection, Including attorney's fees.
[EM. Mote. — For other cases, see Vendor and
Purchaaer. Cent Dig. {{ 028-081; Dec. Dig. |
816.*1
& PBuroiPAi, AMD Amnr (t 106*) — Sub-
BCBxrnoK mBux— DooukbitubtBtipbiipb
— Rbobift.
Where by the terms of a written contract
a bntter factory was to be built according to
specifications by one of Ae parties and turned
over to the other party thereto on tlie comple-
tlnai of tfia plant a written recdpt aceeptfni
the plant as complying with the terms <h tbs
contract and signed by persons other thsn die
Kartles defendant to the suit, was not admissi-
le in evidence as against those alleged to have
breached the contract; it not appearing either
that they signed the receipt, or that the com-
mittee signing the receipt was one appointed
and acting under authority of the contract
[Ed. Note;.— For other easas, aee Principal
and Agent Cent Dig. || 27&-288, 868-890;
867: Dec Dig. f 108.*]
0. TsiAi. (t 296*) — ISBntvonoira — CuBi or
Ebrob.
The following charge of tiie codrt was not
erroneous, because of the use of the word "re-
auirea": "Where you find there is a conOict in
i« evidence, tiiS law requires you to reconcUo
tliat conflict without Imputing willful perjury**
— especially where the court followed this Ian-
guage Immediately with 'the following: "IL
however, you find a conflict In the evidence, and
are unable to reconcile it the law requires that
you take the antire testimony, search It care-
fully for the truth, and where you find that
truth to be, let that establish and control your
verdict**
[Ed. Note.— For other cases, see Trial, Cent
^.^^H 706-718, 716, 716, 718; Dec Dig. f
* Error from Superior Court, Oreene Coun-
ty; B. Ifc Bawllngs, Judge.
Action by the Chicago BtriMlng & Manu-
facturing Company against J. F. Butler and
others. Judgment for defendanta, and lOaln-
tlff brings error. Afflnned In put, and re-
rersed tn part
F. B. Sblpp and Joa. P. Brown, boHi ot
Qreauaboro, tat plaintiff In error. Geo. A.
Aferritt and Noel P. Park, both of Greens-
lioro, for deftodanta Sn error.
Him 3. The Chicago Building ft Mann-
factoring Gompaiv^ btonght anlt againat F. X
Butlor and IS oOiera, and alleged that the
defaidanta were gatwcribera to a oontract
wherein each agreed to pay 9100, subject to
the conditions of the contract, the material
portions of which are hereinafter a^ out
The defendants were allied also to be mem-
bers of the Greensboro Creamery Association,
referred to In the contract aa the first party
thereto. By the terms of the contract the
plaintiff waa to erect, bnlld, equip, and deliv-
er to the defuidants a butter factory, in con-
sideration of the purchase price of $4,960;
The contract stipulates tliat "for any unpaid
or deferred balance of subscription all ddln-
Quent subscribers are Jointly liable." It is
also provided that, when "any payment Is de-
ferred, all necessary cost of collection and dis-
count may be Included, should second party so
desire. All remaining subscriptions or note
balance, after said aasociatlon'B entire in-
debtedness to second party has been paid,
shall be duly assigned to said corporation
for a working capital." Also: ."Pursuant to
the laws of his state and these conditions, it
Is agreed that each stockholder shall be liable
for the amount of stock set oKHislte bis or
her same, and no more.** It was alleged
•Tor ether essM as* sans tople snfl section NUUBBB la Deo. Dig.AAm.DIg. K«y^Mftj^HrM%
246
78 SOIITHBASTBBN BBPOBTEB
tbat all the def radants signed and subscribed
to said contract, or authorized their signa-
ture and subscription thereto, and became
bound by the terms of the contract, and were
each severally liable on the contract, as mem-
bers of the Greensboro Creamery Association,
to the plaintiff, for the balance due, amount-
ing to $2,000, besides 33^ per cent, of the
amount recovered, which the plaintiff agreed
to pay its attorneys of record. The prayer
of the petition was for a joint and several
Judgment against all the defendants for prin-
cipal, interest, and attorney's fees.
The defendants flled their plea of non est
factum, and set up that the alleged contract
was obtained from^ them by the agents of
the plaintiff through fraud, in that the sub-
scription list paper was folded by the plain-
tiff's agents so as to conceal from defendants
the written contract on the other side, and
by certain mlsrepresentatlonB made by those
agmtB 88 to matters not embraced in the
contract; that the figures "1" to "100" repre-
senting respectlTely the numtwr of shares of
stock and the price thereof* appearing oppo-
site ttieir names, were not tm the paper when
they signed, and were, not placed there by
their consent or with their knowledge; and
that the paper the defenduits signed was a
blank sheet, containing mtly the names of a
soflSciait number, as the agwts of the plaln-
tlfl represottod, to Insure the building of the
plant, and deCendanta did not know they
were signing a contract with conditions as
set out In the contract sued on. Demurrers
In abundance were flled by both the defend-
ants and the plalntUT, some of whl^ were
sustained and some overruled by the court
After much evidence pro and cod, the case
went to the jury, which returned a verdict
for all the defendants. A motion for a new
trial was overruled, and the idalntlff ex-
cepted.
[1] 1. The assiguments of errors upon the
overruling of the various demurrers are
without merit The verdict Is supported by
the evidence as to all the defendants except
two, namely, W. F. Jackson and O. A. Parker.
They flled the same answers and defenses as
the other defendants; and we have searched
the record and fall to see any evidence sup-
porting their defense. The plaintiff made
out a prima facie case against all the de<
fendants. If the evidence supported the de-
fense filed by these t^vo defendants, we would
have little difficulty in affirming the Judg-
ment of the court below ae to all the defend-
ants; but, there being nothing In the record
to support the defense of the two defendants
named, we are confronted with the question
whether we can affirm the Judgment as to
the other defendants, and reverse It as to
these two. We understand the rule to be
that, where a Judgment is entire and Indivis-
ible, it cannot be affirmed in part and re-
versed in part, but the whole must be set
aside It there be reversible error therein.
8 Cyc. 448 (b); 1 Black on Judgments, { 211.
But where a judgment appealed from can be
segregated, so that the correct portions can
be separated from the erroneous, the court
will not set aside the entire Judgment, but
only that portion which is erroneous. 3 Cyc.
447 (2) ; Austin v. Appling, 88 Ga. S4 (S), 13
S. E. 955; CaudeU v. Caudell. 127 Ga. 1 (3), 55
S. E. 1028: Brown v. Tomberlin, 137 Ga. 696,
601, 78 S. B. 947; Orooker v. Hamilton, 3
Ga. App. 190 (1), 69 S. £. 722. See Powers
V. Irish, 23 Mich. 429, 438.
Assuming that the authorities last dted
support the rule that the 1^1 portion of a
Judgment can be separated from the illegal,
let US' turn to the evidence and see whether
It supports a verdict for all the defendants
except the two named above. Each of the
defendants (other than the two named) tes-
tified substantially In support of their an-
swers. The testimony of these witnesses
tended to show that they did not sign the
contract sued on and attached to the petition,
nor did th^ authorise any one else to sign
their names thereto; that all they signed
was what purported to be a subscription list
only for the tentative purpose of ascertain-
ing, according to the representations of the
agents of the plaintiff, whether the desired
number of subscribers (60) could be secured.
If a snffidoit number could be obtained, then
a meeting was to be called, and an organiza-
tion was to be perfected by all the subecrib-
era; but no liability was to attadi to any
of the subscribers until the requisite number
were obtained and 1^ meeting adled. If
any other paper containing a contract was
attached, to the subscription list, the agents
of the plalntUt did not exhibit it to the de-
fendants, but kept It concealed for the pur-
pose of perpetrating a fraud upon the de-
fwdants. The agents reiveaented at the
time that no oth» obligation or contract was
connected with the subscription list; that. If
the creamery or butter factory could be or-
ganized, the plaintiff would put it in opera-
tion, and the subscribers could gat 30 cents
per pound for their butter; and that the
plaintiffs had a process by which the onion
and bitter weed taste and odor in milk and
butter could be removed, and they would put
In a pasteurizer to kill the germs, and the
milk would not sour. The testimony for the
defendants (other than the two named) tend-
ed to show tbat the buttCT made by the plain-
tiff at the creamery built by It did not bring
30 cents per pound, and the onion and bitter
weed taste and smell were not removed from
the milk and butter. The creamery after it
was put in operation was not a success, and a
great amount of butter was lost on account
of the fact that there was no way to keep it,
etc. One of the witnesses for the defendants
testified (what was substantially testified by
all who did testify) as follows: "I signed
contract on those representations. Said he
would guarantee it ^^^^^f^^^
CBJCA.QO BIJ)a. A MFG. 00. T. BUTLER
247
tog In courthouse and vonld be fixed. Didn't
see anything except list on that I signed.
He said paper I signed was list of names.
Told lilm I wouldn't pay one nldcel for conn
men creameEj. There was no such contract
aa ezbiUted to me tlndlcatlng]. Paper I
signed wasnt read over to me. Didn't see
anything hot names. Said, if got would
call meettng and comiAete It I signed,
thinking it was going to be $100 a sbaTe.
provided tbey organised. He did not tell me
X would tie Uable for anybody who didn't pay.
He said nothing about being my agent
When I signed papw, it was doubled up and
a damp through there^ so Qiat all prtaiting
and writing were hiddra, and notUtng but the
list of names coidd be seoi. * * * I
signed paper on his represmtaUons to get out
bitter weed, onion, and souring, and to ship
to JadEsonvlll^ Fta., a good market The
testimony for the plalnttfT was, In the main.
In direct conflict with that of the defwdants.
From the erldence we think tba Jury was au-
^orlzed to find a verdict for all the defend-
ants except the two named above. As to
these two there seems to be no evidence
which would authorize the jury to And In
their favor; and we therefore affirm the
judgment of the court below as to all the de-
fendants except the two named above, and re-
verse the Judgment and order a new trial as
to W. F. Jackson and O. A. Parker.
[2] 2. The seventh ground of the motion
for a new trial assigns error because the
following evidence contained in the Interrog-
atories of one of the defendants* witnesses
was withheld from the Jury, to wit: "When
I cMnmenced soliciting subscriptions, a meet-
ing was held at the courthouse at Greens-
boro, Ga., and at this time X read the con-
tract in full and explained exactly what
would be necessary, and in fact that unless
we were able to secure at least 60 signatures
covering 50 shares of stock at $100 each, the
contract would be null and void, and not
binding on any of the parties." It is in-
sisted that this evidence was material to re-
but the pleas and answers of the defendants.
It does not a^ear that the defendants were
present and were connected with the meeting,
and therefim the evidoice was properly
cluded.
[3] 3. Error is assigned because the court
refused to allow the original tax returns con-
taining the signatures of L. A. Boswell and
J. E. Baynes, two alleged signers of the con-
tract sued on, to go in evidence on the plaln-
titrs demand, after the reception of evid^ce
by B. L. Lewis, the tax collector of Greene
county, tending to show that he brought
them into court under a subpcena duces te-
cum from his ofiBce, where they had been re-
turned by the tax receiver of Greene county,
and the further testimony of the receiver,
Dolvin, which tended to show that he signed
the returns as such receiver as a witness,
and that he would not have signed as a wit-
ness If the returns had not been signed In
his- presence, and to the best of his reoolloN
tlon it was the original sl^iature ot the par-
ty signing the returns. The court, after this,
asked the tax receiver, Dolvin, if he knew it
wae Lu A. BoeweU's signature, and the wit*
neee answered, "No, sir.** It Is insisted that
the returns should have been admitted to
prove the signatures of Boswell and Baynes,
the alleged signers of the contract sued on,
by a comparison of the handwriting, "tha
court did not err In etcludlng this testimony.
Proof of handwriting may be resorted to, In
the absence of direct evidence of execution.
In sudi a case any witness Is coovetent to
testify, who will swear that he knows or
would recognize the handwriting. Civil Code,
S 6835. Other writings, proved or acknowl-
edged to be genuine, may be admitted in evi-
dence for the purpose of comparison by the
jury. ClvU Code, | 5830. But before a paper
purporting to iiave been signed by one can
be admitted in evidence, the purpose of ten-
dering which paper is a comparison by the
Jury of the signature thereto with the sig-
nature to another paper sued upon, and to
which a plea of non est factum has beea filed,
it is necessary tluit the signature to ihe for-
mer paper shall be legally proved or ac-
knowledged to be genuine^ McVicker Gon-
kle. 90 Ga. 584, 24 S. BL 73.
[4] 4. Complaint Is made that the court
erred in admitting the testimony of A. S.
Mosely, one of the defendants, to the efTect
that Moore, the plalntlirs agent, who pro-
cured the name at the witness to the con-
tract sued oa, represented to Mosely that the
creamery would take out the onion and bit-
ter weed taste from tike milk and buttw
treated by the creamery. The objection is
that this was extraneous parol evidence tend-
ing to add to, vary, and contradict the terms
of a written contract The general rule Is
that parol contemporaneous evidence Is not
admissible to vary or change the terms of a
valid written contract Civil Code, S 6788.
If the defendants signed the contract sued
on, the rule Invoked would apply. But they
deny signing it They insist that there is no
contract and that what purports to be such
was procured through the fraudulent repre-
sentations of the plaintiff's agents. That is
the issue in the ease. If tbey only signed
a blank sheet of paper, as they allege, in-
stead of signing a written and printed con-
tract, they are not Uable on It; and the ev-
idence tending to prove this was admissible.
Under the allegations contained In the de*
fendants' answer, we think the evidence was
admissihl& See ClvU Code, | 5700.
[C] 6. Error is assigned because the court
admitted, over objection, the testimony of
G. 3. Miles, one of the defendants, which was
in substance that the firm of Miles, Ellard A
Ruarks had agreed among themselves that
they did not want any stock in the creamery.
The objection is that the agreement was a
private one between the partners of this firm,
and could not bind the plaintiff.
Digitized by
848
18 SOUTHBASniRN BBPOSTBR
(Gil
dence was admissible as showing Uiat the
firm name waa not anthorlzed on the alleged
contract, and that the firm would not be
bound by the signature of the firm to a con-
tract made by one member of the firm, not
aathotlzed to sign the Qrm name to a matter
not le^timately connected with the part-
nership. It did not appear that the Arm had
authorized or ratified the signing of the
firm name to the alleged contract On the
contrary, the testimony tended to show that
It was not authorised. See Otrll Code, i
8182.
[1] 6. The followli^ evidence, offered hy
the plaintiff, waa withheld from the jury:
"A post card, acknowledged by J. P. McRae
to have been written by him, postmarked
Oreshamvllle, Greene county, Oa., and ad-
dressed to D. "W. Broadwater, Oreensboro,
QtLu as foUow8» to wit: '10/28/OS. Mr.
Broadwater — Dear Sir: My wife will take
one share in yonr co-operative creamery, aqd
pay yon In four quarterly notes of $25.00. I
wHl stand by her and help her through. If
this salts, you can put down one share, Mrs.
J. P. McBa& If this doesn't suit, all right ;
If it does sDit, let me know. Very Bes., J.
P. McBae.'". It is insisted that tbls postal
caiiS should have been admitted in evidence
to show vrliy liie name ot Mis. McBae ap-
peared on the contract as a Babacriber. The
court properly exdnded this testimony. The
InuOwnd would tiave no atitbority to sign his
wif e^a name to the contract, m authorize any
one tiM to do so. In the absence of express
anthozlty given by the wife. In this state
a wife ts a ftine Mrie as to her separate es-
tate and no one can bind her or her prop-
erty without her authority. See Civil Code,
H 3007, SOU.
[7] 7. EkTor la assigned on the refusal of
the court to allow the plalntUFs attorneys to
put in evidence a -copy of a notice, and to
testis in connection th«ewlth that the same
was a copy of a notice sent to each def«idant,
showing that the attorneys held the claim of
the contract sued on against them for col-
lection, and that none of the defendants,
cept S. W. Tai^n and J.- Ll Harris, came to
see the attorneys, or made any response to
the notice, until a year afterwards. It is In-
sisted that the evidence was admissible as
tending to show that by their silence the de-
fendants admitted the claim held against
them and to rebut the plea of non est factum
made a year later. ■ This evidence was not
admissible for this purpose. The court did
not err, therefore. In refusing to allow the at-
twneys for the plaintiff to put In evidence a
copy of the notice, etc.
[I] 8. The tollowlns certmcate and reertpt
was admitted In evMeoee, and latar in the
trial was ruled oat, to wit: **8tate of Geor-
gia, 80th day of December. To the Chicago
Building and Manufacturing Co., Chicago,
ni. — Gentlemen: % We, the undersigned, exec-
ntive committee. In behalf of and for the
first party to the contract for the batter fac-
tory at Greensboro, county of Greene, state
of Georgia, do hereby certify that in com-
pany with your special agent, Mr. W. P.
Wort, have examined In detail the said Init*
ter factory and have (diecked off the aped-
flcatlons, and find nothing lacking to com-
plete the same according to said contract
and spedflcatlons aforesaid, and we have this
day received the keys to the said factory.
Jas. I* Brown, Chairman. J. B. Splnks. B.
P. mmbrough. T. A. Branch. J. A. Cathey."
On the back of said certificate the following
is written In Ink: "Acceptance made with
understanding and agreement that a pasteur-
izer is to be famished by the Chicago Build-
ing & Mannfactnring Company, at once.
Said pasteurizer to be returned to said Chi-
cago Building ft Manufacturing Company,
should the time ever come when it is not
used by the creamery." It is Insisted that
the receipt was. material, as showing that
plaintiff Iiad done what It undertook to do
under the contract, and that the plaintiff bad
the right to have the written agreement of
the acceptance. We think the receipt was
properly excluded from the jury, as It no-
where connects the defendants with the a»
ceptance, nor was it shown that the com-
mittee which signed the rec^pt was one ap-
pointed and acting under anthority of Uie
contract
tl] 9. Complaint Is made of the following
charge of the court: "Where you find there
is a confiict in the evid^ce, the law requires
you to recont^le that confiict without imput-
ing willful perjury." It is contended that
the use of the word "requires" is erroneous,
and is too strong a word to use in that con-
nection. We think that the law does require
the Jury to. reconcile the conflict in the evl-
dence without imputing perjury to any wit-
ness; but, as the court further charged the
Jury In this immediate connection, "If, how-
eyer, yon find a conflict in the evidoice, and
are unable to reconcile It, the law requires
that you take the entire testimony, search it
carefully for the truth, and where you And
that truth to be, let that establish and con-
trol your verdict," taking the whole charge
on this question, the court did not err in
giving the instruction oomjAalned of.
10. There is no merit In-tlie other aaslgii-
ments of orror.
Judgmrat afllrmed in part, and meraed In
part All the Justices ctmcor.
Digitized by Google
249
(W Oft. OS)
BOLAND T. BOLAMD et sL
BOLAND et aL t. BOLANd!
(Sapreme Court of GeoigU. April 18, 19X8L
Behearing Denied Uny 16^ 181&)
1. JUDomHT (I 40S*)— BQUITABU B■LI■]^-
OBOUHD8.
Wbere a Goiuent decree provided tbat a
tract of land in diapute ahould belong to the
defendant if he ahonld pa; to the plaintiff a
ipedOed aam hj • date named, that if 1m
ahould. fail to do ao the land aboold belong to
the plaintifEf and that time waa of the eaaencc
of the decree, eiiuity would not xelieve the de-
fendant, or one who claimed to have pnrcha*-
ed from him after the tenditiMi of the decree,
from the xwmlt of a failure to make the pay-
ment or a tender within the time limited, un-
less fraud preventing it or some other suffi-
cient ground of equitable relief, were ehown.
[Ed. Note.— For other caaea, see Judgment,
Cent Dig. H 706, 767 ; Dec Dig. 1 40C>.«]
2L JUDQllBNT (i 674*)— PSBTOBUAKOB— TXM-
DEB.
Where anch a couaent decree provided for
the making of pajment to the plaintiff b7 name,
and waa signed both by the clients and their
attomeya, and where it waa agreed and under-
Btood by them all, onttlde of the face of the
dtaee. that auefa payment had to be made to
the plaintiff in person, and not to the attor-
neys who had represented such plaintiff, and
where, if such attorneys would otherwise have
had an implied power to receive the money. It
was revoked, a tender to one of them woold not
answer in uea of tender or payment to the
plaintiff in person.
[£ld. Note.— For othe* cases, see Judgment,
Cent Dig. |{ 1643, 1614; Dec. Dig. { 874.*]
& JuDOURT (S 461*>— Dviosncx— Pasol Bt-
iDsncB— CoRTKADioniTO DEcnxn.
Wbere the decree did not in terms provide
for making payment to the attorneys of the
plaintiff, but to Bucb plaintiff by name, and
tiie qneatioa of the right to make payment or
tandar to mch attorneys depended on thor
general or implied powers, evidence waa admia-
nbk to prove that it waa agreed and under-
stood by both elienU and attorneys that tbe
payment should be made to the plaintiff iter-
•onally, and not to the attorneys, and that any
anthority of the latter to receive It was re-
voked with their consent Sudi evidence was
not objectionable on the ground that it contra-
dicted the decree.
[Ed. Note.— For other cases, see Judgment,
Cent Dig. SI 892, 89S, 89S; Dec Dig. t 461.*]
4. JUDGHEHT a 682*)— PnFOBHAiraB.
If, after Oe rendition of anch a decree, a
third person purchased the land from tlie de-
fendant, he took subject to the conditions of
the decree; and if he vraa informed of the
want of antliorit? to receive llie money on the
part of the attorneys who had represented the
plaintiff in ample time to have made a pay-
ment or tender to the plaintiff personally, but,
instead of so doing, merely caused the money
to be depodted la a bank, mbftct to tbt plain-
tUTs order, thla waa not a ccunpUariee with
the decree.
[Ed. Note. — For other cases, see Judgment
Cent Dig. 11 1208-1205; Dec Dig. | 682.*]
5. Tbial (I 160*}— DxREcmoii or Tsmozor—
OBonnos.
Where both partleo introduced evidence,
and taken aa « whole it required a rerdtct for
the defendants, there waa no error in the
court's directing anch a verdict, Instead of di-
recting a nonsuit or dismissal ex mero moto-
[Ed. Note.— For other cas^ see Trial, Cent.
Dig. If 341, 381-887, 3S8TDee. Dig. | 160.*]
6. DiBPosnioiT or Cabx.
The judgment oomplained of fat the main
bin of exceptions havinc been afilrined. the
cfoaa-biU <tf exo^tioiw la diamiaaed.
Brror from Superior Court, Colqnltt Oovn-
ty; W. EL Thomaa, Jndgeb
EqTiitable action by J. P. Bidand against
Uretta Boland and oQiws. Judgment for
defendants on a directed ▼erdict, and plall^
tiff brings error and dtfendants file cross-
bill. Affirmed on the main bill, and cross-
bill dismissed.
Mrs. Uretta Boland flied her equitable pe-
tition, seeking to cancel a deed which she
had made to her husband. A demurrer was
flled to the petition on certain grounda. It
was overruled. Tbe case was brought to
this court by Mil of exceptions, assigning
error upon the overruUng of the motion and
striking certain parts of the answer. The
judgment was reversed as to some of the
rulings. iBl Ga. S79, 62 S. B. 1042. After
the case was returned to the trial court, a
settlement was bad, and on April 4, 1910, a
consent decree was taken covering the case,
and also a petition for alimony which had
been filed by the wife against the husband.
It contained the following provisions: "(1)
Geo. W. Roland Is to pay to his wife, Uretta
Boland, the sum of $1,750 on or before De-
cember 1, 1910, without Interest (2) G. W.
Roland la to have the rents, Issues, and prof-
its of said land for the year 1910, pay the
taxes on same, and exercise acts of owner-
ship over It CSi The sum of |1,7S0 Is to be
in bar of any suit for alimony damages,
claims, rents, Issues, or profits, and Is to be
In lieu of all claims whatsoever, In law or
equity, which the wife may have against the
husband, G. W. Boland, In the future. (4)
If the said O. W. Boland pays the said $1,760
by December 1, 1910, then the title to the
said lands In question shall vest uncondi-
tionally in him, but If he does not pay said
sum of $1,760 on or by that time, then the
title to the said lands shall vest In the wife,
Uretta Roland, time being of the essence of
this decree. <^ Geo. W. Roland shall pay all
court costs in these two cases." The consent
to this decree was signed by Mrs. Roland
and her husband in person and also by their
respective attorneys.
On March 13, 1011, J. P. Rolaml filed his
equitable petition against Mrs. Uretta Ro-
land, Benjamin A. Tucker, Zachle Whitfield,
and lola B. Morrison, and B. M. Morrison as
administrators of the estate of John Morri-
son, alleging, In substance, aa follows: At
the date of the consent decree the land was
reasonably worth $3,000 to $4,000, and It was
not contemplated that Geo. W. Boland, the de-
fendant therein, would fall to make the pay-
ment of $1,750 to his wife and thus lose the
•Vmr otber eases see sane topis sad ssotbM HUHBBR la Dee. Dig. 4 Am. Dig. Ktj-No. Series A
Digilized by
250
78 80UTHBASTBRN BBIFOBTBR
property* Gea W. Soland vas at tbe date
at tbe decree, and still la» a resident of Flor-
ida, and Is the brotlitf at the present iflaln*
tiff. Shortly after the date of the decree
Geo. W. Boland began negotiations wlttk the
plaintiff looking to the sale of tile lands to
tbe latt» and the raising et the amonnt nee-
essary to make tiie payment to his wife In
compliance wLOi the decree Klnally tbe
present plaintiff bought the land from bis
brotho-, paying therefor the snm of 93,000,
and for the pnipose of perfecting the titie,
at tbe Instance of George W. Roland, xriae*
ed on deposit to tbe credit of Mrs. Boland In
tbe Citizens' Bank of Moultrie tbe snm of
$1,750, the wbereabonts of Mrs. Boland be-
ing unknown to this plaintiff to O. W.
Roland at the time of the deport, which was
October 22. 19ia On that day this plain-
tiff and O. W. Roland paid to the clerk of
the court the costs due under the decree,
and G. W. Roland executed to this plaintiff a
warranty deed to the land, and tbe latter,
shortly thereafter, went Into possession.
This plaintiff did not know then or thereaft-
er tbe place of residence of Mrs. Roland, and
he diarges that she concealed herself so
that actual tender of tbe money Ozed by tbe
decree could not be made to ber t>efore the
expiration of the date of payment therein
named, and he also dui^ that she knew
of the dwoslt In the bank long before De-
cember 1st On December 2d she appeared
In Moultrie, and was immediate tendered
the money, which she refused. On that day
she executed a warranty deed to Tucker
for the recited consideration of $2,750. On
tiie same day Tucker, for the purpose of
obtaining money to pay for the lauds, exe-
cuted to the Morrisons, as administrators, a
security deed. On the next day Tucker exe-
cuted to Zachle Whitfield a warranty deed for
the recited consideration of f3,000. Tbe
plaintiff charges tliat each of these parties
took with notice of his rights and of the
facts above stated. On December Sth Mrs.
Roland procured from the judge of the su-
perior court an order for a writ of posses-
sion, and under it this plaintiff was evicted
and Zachle Whitfield entered Into possession.
Tbe plaintiff has frequently asked Mrs. Ro-
land and her attorneys to take possession of
the deposit in the bank and to cause pos-
session of the land to be surrendered to blm.
Tbe prayers were for a cancellation of the
deeds from Mrs. Roland to Tucker, from
Tucker to the Morrisons as administrators,
and from Tucker to Zachle Whitfield; for
receiver and injunction ; for the setting aside
of the writ of possession and the order on
which it was based, and the restoration of
possession to the plaintiff ; and for general
relief and process.
In her answer Mrs. Roland denied any
knowledge of the transactions between her
husband and bis brother, or that any money
had ever been tendered to her under the
ctmsent decree^ She also denied having con-
cealed herself, but alleged Uiat Ae bad con-
tlnnously lived *in and around" the county
wliere tbe >idt was brought, dther at the
home ot ber mother or with her brothers and
sisters, having nowhere else to go after ber
husband deserted her. She further denied
that she knew anything about any deposit In
the Gltlseni^ Bank for ber until aftu De-
cembo* 1, 1910, but alleged that the offlooa of
the bank infiimied ber on December 2d that
the sum of $1,760 was d^sited In tbe bank
for her, provided she would make a deed to
the property in qiiestion, wbl<^ she refused
to do. She admitted s^ng and eonveylng
the land to Toc^ on December 2d, but .al-
that tbe land b^onged to hv , that the
decree bad not beat compiled with, and that
she had a pofect right to sell tbe property.
The other defendants denied any knowledge
OT notice et any caalm on the part of J. P.
Roland, the jsesent plaintiff, and aUegad
that t^ sale by Mrs. Boland to TniAer on
December 2d, after tbe time for payment un-
der the consent Electee had ^psed wllhotit
payment being made, was bona flde and for
value, as was also tbe deed made by him to
secure mimey with which to make the pay-
ment, and the sale by him on the nut day.
By amendment the plaintiff alleged a ten-
der to the attorneys of record of Mrs. Uretta
Roland prior to December 1, 1810, and also
a tender to her brother, who was alleged to
be her agent, and a refusal of eacb tender.
As to some minor d^lls there was conflict
In the evidrace; but talcing it as to such
matters most strongly in favor of the plain-
tiff. It showed tbe following &cts: At the
time when tbe setUement was made and the
consent decree was taken, Mrs. Roland hes-
itated about agreeing, and stated that she
was not willing for the money to be paid to
any one but herself. Both she and her bus*
band and tbe attorneys representing them
agreed to this, and she was informed that
unless the money was paid to her by De-
cember let, tbe land would be hers. There
had been some discussion about writing the
decree so that payment could be made to
ber or her attorneys, but, after ber state-
ment set out above, the decree was drawn
with tbe provision that Roland should pay
tbe money to his wife. Tbe attorney wtu>
represented her in tbe transaction testified:
"That was tbe absolute agreement She
withdrew my authority, If I ever had any,
to receive the money. • • • I had no au-
thority from the signing of the decree to ac-
cept the money or sell the land in any way.
* * * She was to take the money in
hand, and I run the risk of getting my fee.
I could file a lien on the place. In fact she
wouldn't consent to It any other way." On
October 22d George W. Roland, the defend-
ant in the former proceeding, went to Moul-
trie to close up a purchase of tbe land by
his brother from him. They went to a per-
son who appears to have been an officer of
BOLAND r. ROLAND
251
brotlier vtabeA Co lean on a train wblcb de-
parted in a short ttme^ and aafced tbe official
to as^ blm In winding np tbe matter. The
attmtlon of sodi official was called to the
decree wbldt had been rendered. He In-
quired where Mrs. Bo land was, and tbey
told htm thaj did not know. He then In-
quired who were hv attomeTS* and was told
that tli^ wwe Meears. BUiv St Kiiaa. He
said that, according to his understanding;
they conld rec^Te the mon^. So th^, or
George W. Roland, adrod blm to go and
pay It to the attonuya, He went to the oC>
Ace of the attorneys named, and nld to Mr.
Shlpp that he supposed tbe latter represent-
ed tin caae (naming tbe eaae In which the
decree had been rendored) and the attorney
raid be did. The bank official stated that
there was a trade made and the money was
ready, and he wanted to pay tbe attorney
the amount spedfled In the decree. Ar-
rangements had been made by which the
mone^ was ready to be paid. Mr. Shlpp re-
plied that he was not authorized to receive
it, and that no one was so authorized ex-
cept Mrs. Roland. The officer replied that
be was a little surprised ; that he thought, In
a legal sense, on^s attorneys were the same
as himself and could receiTe the money.
He then went back and conferred with the
Rolands, and the three decided that the
next nearest ttiliig to paying It to her was
to put It In her name on deposit, and that
was agreed upon and done. There was no
eridence of any tmder to Mrs. Roland on
or before December let, nor even to the
attorney, except as above stated. Nor was
there any evidence of any inquiry made as
to her wbereabonts from the attorneys, nor
that she conld not readily have been found.
The only evidence tending In that direction
was a statement on the part of J. P. Roland
that: "I knew her [during] the months of
November aod December, ' 1910, but did not
know where she lived at that time. I did
make an Inquiry to find out" What inquiry
he mad^ or from whom, or when, or what
difficulty there was in ascertaining her where-
abonts, did not appear. Gewge W. Roland
left bis wlf^ and she went to UTe with her
mother. She did not leave the county, or
conceal herself, or do anything else to pre-
vent payment under the decree. Some time
during the Call ahe heard In a casual way
that **they" claimed to have mon^ dqwslt-
ed to her credit In the bank of Moultrie hut
no tendn was made to her, raw did they
ever tell her that they had money in the
bank for her. She "Just heard It like you
would anything In the country." On De-
cember 1st idle was In Moultrie and spent
the day there. She met the attorney who
had represented her husband in the litiga-
tion, and asked him If he was ready for a
settlement, but was informed that her hus-
band tiad left town some days previously,
and that tbe attorney did not know where
be bad gtme. No tender was made to her,
and nothing said to her about any money
being In bank for her. On tbe 2d of De-
cemtw she again wait to Moultrie and
remained aeveral days, during which time
she conveyed the pnqterty to Tucker. Tbe
attorney who had r^esented the hus-
band of Mrs. Roland la the previous liti-
gation testified that he had endeavored
to assist his client in raising money wlUi
whkb to pay the amount stated in the de-
cree, but that the latter bad gone to Flwlda
without paying the attorney his fee^ and
the attOTn^ did not know where he was,
nor did he know anything of any dcawslt
of money In tlie bank for Mrs. Roland until
after December 1st There was some differ-
ence among the witnesses as to the amount
of this attorney's tee, and as to the state-
mmt of tbe witness In regard to It. There
was some evidence tending to show that the
officer of the bank was absent from Moultzle
Just before December 1st, and returned late
on the evening of that day. There waa other
evidoioe which It la unnecessary to state
in detalL
At the close of Uie evidence^ on motion,
the Judge directed a verdict In favor of the
defendants, and tbe plalntilf excepted. The
d^oidants filed a cross-MU of exceptions as-
signing error on the overruUng of certain
demurrers.
James Humphreys and W. A. Covington,
both of Moultrie, and Pope & Rennet, of Al-
bany, for plaintiff in error. Shlpp ft Kllne^
of Moultrie, for dtfmdanto In error.
LUMPKIN, J. (after stating the facta as
above$. [1] 1. Tba oonseot decree required
the husband to pay to his wife $1,750 on or
before Deeembor 1, 191(^ In order for the
title to veet in him. and provided that If he
did not make such payment 1^ tliat time^
the title should vest )n the wife. Time was
expressly dfvlared to be of Uie essence of tbe
decrea He did not make the payment to bis
wife within tbe time qtedfled, nor did he,
or any person for him, make any toider to
her. Hie evidence entirely ftUled to show
any concealment of herself by the wUa. Her
husband having left ber, she lived with
her mother and kindred, but remained in
the country from April 4th, the date of tlie
decree^ until afttf the 1st of December. No
reason ia shown why $be conld not hare been
found at any time betweok those dates.
When the consent decree was taken, It was
expressly agreed and understood by the par-
ties and tb«lr attorneys that tbe payment
must be made to the wife in person. The
attorney who bad rqnesented ber signed the
agre^nent to the decree along with her, and
testlfled that bla power to receive the money
was revoked, if he ever had any such au-
thority. The only effort sliown to pay or
tender the money was a conversation be-
tween a bank offldal (with whom arrangft-I^
Digitized by VjOTITO l(C
253
78 SOUTHBLASniBM RBFOBTBB
ments bad been mfttto In regard to tbe mon-
ey by the bnSband and his brother as the
purchaser from blm) and the attorney who
had represented tbe wife in taking the de-
cree. This oecnrred on October 22d, and the
attorney ex|iressly Informed the office that
he did not have authority to recetve the
money, nor did any ime else except tbe wife.
Thus, after boOi the hoBbaod and Us broth-
er, who was parchaalng from him, had teea
notified by tbe attorns of Us lack at au-
thority, no farther ^ort was shown to pay
or tender It within tbe time Undted by the
decree, except to deport It In the bank for
the wife. Of couwe this was neither pay-
ment nor tender to bar. Time being of tbe
essence of the consent decree equity wonld
not reUere the bnsband, ot one claiming as
a purchaser from him, after the rendition of
such decree, from making payment within
the time limited thereby, unless he were
prerected from so doing by fraud, or for
some other sufficient reason.
[2] 2. Unless the conversation between the
bank official and the attorney who had rep-
resented Mrs. Roland, the wife. In obtaining
the consent decree amounted to a tender
binding on the wife, there was nothing show-
ing any compliance with the decree on the
part of tbe husband, or anything excusing
compliance within the time fixed by It
At common law an attorney's employment
was generally held to end with the entry
of jndgm^t for or against Ui client, unless
there was some additional agreement or cir-
cumstance continuing the relation or pro-
lon^ng tbe authority. This general rule has
been mndi modified. 4 Oyc. 040 (c), 9S2-(d).
As early as 1791 the Court of Appeals of
Virginia held. In Hudson t. Johnson, 1 Va.
10, that, in genial, payment to an attorney
at law who had prosecuted an action on a
specialty was good, "on the custom of the
country, particularly if he have possession
of the special^," though It was added that
"under parUcolai circumstances this rule
mls^t not apply, aa if notice were given
tiaat BO such power was vested In the attor*
ney." In 2 Oreenleaf on Evidence, i 518,
t3ie same rule Is announced, but It is added
that: "Proof of payment made to the at-
torney after his authority has been revoked
will not dlsdiarge the liabililgr of tbe party
paying." In 8 Am. ft Eng. Bna Law (2d Ed.)
86^ the rule is thus stated: "It is always
an implied power of an attorn^ to receive
payment of a daim intrusted to him for col-
lection. A paymmt to Um, wUle Us au-
thority is unrevoked, is therefore binding
on his client unless it affirmatively appears
that the party making the payment has
actual notice of bis want of aathortty.**
And on page 887 it is stated that; "A revo-
cation of tbe attorney's antborttv, after Judg-
ment has been rendered but befttre payment,
or an assignment of the Judgment, will not
affect tbe debtor paying to the attorney in
good fftlth relying on Ua anOiotlty to re-
celve the payment, nnless it appears that
tbe debtor had notice of -the revocation, or
was chargeable with such notice." See* also,
Toakum TUden, 8 W. Va. 161, 100 Ana.
Dec. 788; Buckman t. Alwood, 44 111. 183.
In Erwln v. Blake, 8 Pet 18, 8 L; Ed. 8S2;
Mr. Justice Story said tliat, where an at-
torney obtained a Judgment and execution
for Us dlent; and levied on and caused to
be sold property wUdi was bid in by hla
.diat, and where tbe Judgment debtor had
a Ti^t to redeem the property within a
particular period of time, by paymmt ctf tlie
amount to the Judgment creditor, there was
strong reason to contend tJiat the attorney
was impliedly authorised to receive tbe
amount; and thus Indirectly to discharge the
liai en the land; at least, If this was the
common conrse of tvattlce in the state
where the transaction occurred. But It was
said that it was not necessary to rely on
that ground. 8ee^ also, Oray t. Was^ 1
GreenL (Me.) 2S7. On the other hand, in Be
Qrundysen, 68 Minn. 846, 55 N. W. 667, It
was said that the mere ranployment of an
attorn^ to foreclose a mortgage doee not
give him authority to rectire from the sher-
iff money paid sftet foredosure to redeem
the property trma a sale to the mortgagee.
In th^ state a recovery of a Judgment for
money Impliedly authorizes the attorney to
coUect It. Under the statute wUcib gives to
an attorn^ a lien upon suits and Jndgmento
(Civil Gode^ i 8864) a client cannot arbitrarily
take from an attorn^ the right to enforce
a Judgment, without ills oonsrait, and so as
to destroy his Item for an unpaid fee. But
an attorney la not obliged to Insist upon his
lien or his right to collect the Judgment or
execution. He may waive it or submit to
a discharge. One who pays to the attorney
of record tbe amount of the Judgment or ex-
ecution without uQtlce of any termination of
his authority may well be relieved from fur-
ther liability to the cUent. But If tbe attor-
ney and tlUmt agree upon a discharge or a
termination of his authority, and the Judg-
ment debtor 1b notified thereof he cannot In-
sist upon the right of the attorney to assert
his lien or refuse to hare his authority re-
voked. A case might occur where the ques-
tion would arise whether such revocation of
authority was a mere trick or device to pre-
vent payment within the limited time, but
the evl^nce presents no such situation here.
It shoira that all parties agreed and under^
stood when the decree was taken that the
payment was to be made to the client her-
self, and not to her attorn^, and that his
authority (If the decree In Question falls
within the general rule of the power of an
attorney to collect) was revoked. It is not
dear that the brother of the defendant In
tbe tormw proceeding was not fully apprised
of the situation throughout; but, If not, he
was Informed of It on October 22d, more
than a month before the ^^''^^^^^^'^^
WILLIAMS r. BAPKB
263
bad elapsed. Under tnch drca instances, If
the converaatlw between the official of the
bank and the attorney who bad represented
the wife In obtaining tbe (Kmsrait decree bad
amounted to a t^or to ancli attornej, It
would not bare taken the place of a tender
or payment to the wlfa Uoreover, If It
bad been desired to Insist that It was the
r^t and da(7 of the attcffn^ to rec^Tft the
money, In q4te of bis declaration that he
was without authority to do w>^ and that a
tender could be made to him, it woiUd sewn
an actual tender to him should bare been
made, and not a mete depoelt of tte money
In bank.
[t] 3. Brror was assl^ed <m the admission
of erldcnoe to the effect that it was under-
stood and agreed by both the attorneys and
clients that payment should be made only to
the wife, and not to the attorney, and that
the latter was not authorised to ncetre pay*
ment The sronnd of objection stated in the
bin of exceptiona was that tikis evidence was
irrelevant We think it was rcAennt The
ground of objection argued was that this
was an effort to modify or <^ange a consmt
decree by parol erldence. This argument
rested upon a misconception of the basts of
the relevancy of the evidence. The decree
did not ]n terms authorize payment to the
attorney of th6 wife, but to her. It declared
that title should be vested In the husband if
he should pay a certain sum to the wife on
or before a fixed day. If this should be
treated as in the nature of a decree for the
recovery of money, the attorney's right to
collect would not arise from the words of
the decree, Init from the goieral or Implied
authority of an attorney. Such authority
could not be modified or withdrawn by an
agreement to which the parties and attor-
neys assented. The evidence did not conflict
with the decree, but showed a withdrawal
or negation of an implied authority on the
part of the attorneiy to proceed further, after
Its rendition.
[4] 4. The purdiaser contracted with full
knowledge of the decree and subject to its
terms. The husband had no power to change
those terms by a conveyance to his brother.
The brother alleged that he had no notice of
the want of authority on the part of the
attorney to receive the money, and thns
sought to excuse a tender to the client He
failed to show this; but, on the contrary,
proved that, at least on October 22d, he bad
actual notice that the attorney asserted his
want of authority, and that the money was
depotdted In a bank, where it lay vntU De-
cember 2d.
When the case between husband and vrife
was before this court on the question raised
by demurrer, it was remarked by the writer
of the opinion that "the difficulty with the
petition is that it prays too much and alleges
too little." In the present case this state-
ment may weSl be paraphrased, and it may
be said of the plaintiff that his trouble was
that he aU<sed too mu<A and inored too
little.
[S] 5. BoOk ddes introduced erideaee.
There was no motion for a mmsuit wr for a
dlsmissaL The evidence as a wlioie required
a Twdict fbr the defaidant, and it was not
error for tlie presiding judge to so afflrma-
tively instruct the Jury, Inrtead <tf granting
a nonsuit ex mero motn.
[•] 6. The judgment complained of in the
main bill of axcqtttons having been affirmed,
the Gross-bin of exceptiona is dismissed.
Jndgmoit afBrmed on the main liiU of ex-
ceptions. OroBS-bill of exceptions dismissed
AH the Jnstiees concur.
(itt a>. nu
WILLIAVS at aL T. BAPBB.
KAPBR T. WILLIAMS et aL
(Supreme Conrt of Qeorgia. April IS, ISIS.)
(ByUabiu hy Court.)
X. TaiAL (I 62*)— Rbceftion of EviOBini^
FBiaHTBRino OF HoBSKS— -Rebuttal.
The reception in evidence of testimony
an ImMseUng nature, referred to in tiw opin-
ion, will not require the grant of a new trial,
in the light of all the evidence.
[Ed. Note.— For other cases, see Trial, Gent
Dig. H 148-150; Dec Dig. fi e2.*]
2. TBIAI. 191*)— iNSTBtJCrrOHB— AaSUMINO
PAcna— DAitanoTO AanNor— Automobili.
The act of Angnst IS, 1010 (Acts 1010, p.
00), regulates the speed and manner of op-
erating automobiles on the public highways.
Where the acta of negligence alleged to have
caused the damage oonsist of the violation of
tliat act a new trial in the case la not required
becaaae, in an Instruction applying the statute,
the court charged as follows: "In this con-
nection I charge :rou that the operators and
owners of aatontolules have the same right to
use public roads as the owners of other vehicles
or machines, but It being a dangerous machine,
the law has prescribed certain roles by which
the; are to be governed in nmning on tiie pub-
lic highway ; and If in running these machmes,
they oome within the rule or comply with the
law, and damage results tlierefrom, they are
not liable."
im Note.— For other cases, see Trial, Oent
Dig. IS 420-431, 4S5; Dec Dig. | lOL*]
8. iNBTBCcnons Atpbotsd and Vbbdkot
SOSTAINED.
There is no merit In the other exceptions
to the chai^ and the evidence is saffldeat to
support the verdict
Srror fVom Superior Oonri; Wldtfldld
County; A. W. Fite, Judge.
Action by J. W. Raper against Mrs. A. 8.
Williams and others. Judgment for ^aln-
tlff, and defoidants bring error and file
croes-bilL Affirmed on main bill, and cross-
bill dismissed.
F. K. HcGntchen, O. D. McCntCtien, and
Maddox, HcCamy ft Shumate, ail of Dal-
ton. for plaintiffs In error. Geo. O. Glom
and Bf. 0. Tarver, both of Dalton, Cor de-
fendant in error.
fVer other mms ms snse topic sad ■eoUoB' hrUMBBR ta Deo. DIs. A Am. Dig. K«y-No. Ssrias A H^:
Digitized by Vj'
254
78 SOUTHSASTEBK BBPOBTEB
(Ga.
EVANS. P. J. The plalnUff alleged that
he was driving a roadworthy horse to a
buggy along a • public road, and Just aa he
was approaching a sharp curve an automo-
bile of one defendant, operated by the oth-
er defendant, dashed around the curve, com-
ing In his direction at the rate of 40 miles
an hour, frightening bis horse, and causing
talm to overturn the buggy, injuring the
plaintiff and damagiiig his buggy and har-
ness. The specific acts of negUgoice alleged
consisted in running the automobile around
a sharp curve at a rate of speed greater
than 6 miles per hour, - as provided In sec-
tion 5 of the act approved August 13, 1910;
In operating tiie automobile at a rate of
speed greater than was reasonable and prop-
er; In failing to give a signal of the ap-
proach of the automobile; and in failing;
npon being signalled to do so, to bring the
automobile immediately to a stop, as pro-
vided by the above-cited act The d^end-
ants denied all acts of negligence as alli-
ed, and denied that the plaintiff or his prop-
erty were injured. A small verdict was re-
turned in favor of the plaintiff. A motion
for new trial was overruled, and the defend-
ants excited. By way of cross-bill the
defendants excepted to the refusal of the
court to dismiss the motion for new trial,
because of certain alleged defects.
- [1] 1. The evidence was conflicting upon
every Issue made by the pleadings, and par-
ttcnlarly as to the rate of speed of tta au-
tomobilb Tben was another automobile
fftllowlng the one alleged to have occasioned
the injury, and was refarred to by witnesaes
aa a meuis ot Identifying It. The witnesses
for the defendant testlfled that at the time
of the occnrr^ice the automobile was round-
ing the cuxre at a speed of leaa than 6 miles
an hour, and that at no time during the
trip was the speed of the automobile more
than moderate ; one of them did not believe
that the speed exceeded 20 miles an hour
at any time. In rebuttal of thla evidence
the court allowed two witnesses to testlty
that at a place on the same road they saw
two automobiles going at a raidd rate of
speed in the direction of, and not far from,
the place where the Injury Is alleged to have
happened ; one of them estlmatlug the speed
at 40 miles an hour, and the other saying
that the machine was running as fast as It
could. The rebuttal testimony was object-
ed to on the ground that it was not shown
that either of these machines was the one
in controversy. There was sufficient iden-
tification by one of the witnesses ; and,
though the other was not able to identic
either of the automobiles as that of the de-
fendant, yet, under all the circumstances
of the case, we do not think the recH>tlon
of this evidence was error.
[21 2. The court charged: "In this con-
nection I charge you that the operators and
owners of automobiles have the same right
to use public roads as the owners of other
vehicles or machines, but, it being a dan-
gerous machine, the> law has prescribed
certain rules by which they are to be gov-
erned in running on the public highway;
and if In running these machines they come
within the rule or comply with the law,
and damage results therefrom, they are not
liable." It la urged that the use of the
phrase "it being a dangerous machine" was
prejudicial, and calculated to impress the
Jury that because of Its dangerous quality
the defendant was bound to exercise a great-
er degree of care than the law imposed. We
do not think so. The General Assembly, In
recognition of the character of the machine,
its power and capabilities of ^>eed, and pos-
sible danger to pedestrians and horse-drawn
vehicles in its operation, have seen fit to
enact a statute regulating the speed and
manner of operation of automobiles on the
public highways. Acts 1910, p. 90. The
statement by the court of a reason for .the
enactment of the law, though not commend-
ed, was not so Improper aa to require a new
trial, under the facta of the case.
[3] 3. There la no mult In the exc^itiona
to the other charges coroidalned of, and they
are not of suCb a natoie Qiat a dlacuaaion of
them would be profitable. The evidence was
conflicting, but was anfflciait to aniKiort
verdict
. Judgment ca main bill at exceptlona af-
firmed. OrosB-blll dismissed. All the Jus-
tices concur.
OJ a«. App. Tis)
THRASHER t. COBB REAL E8TATB OO.
(No. 4,74&)
(Court <ii Appeals of Georgia. Maj 20, 191S.)
(SyHabut Ity <A« Court.)
YlNDOB AITD PUBCHABEB Q SOT*)— AcnOK lOB
Pbicb — Faxlubb of Rbpbbsbntatioks —
Bills and Notes.
Under the decision in Prlntap t. Boms
L«nd Co., 90 Oa. 180. 16 S. B. 764, the court
erred in sustaining the denmrrer to the defend-
ant's answer, and in entering Judgnient la
favor of the plaintiff.
[E^. Note. — For other eases, see Vendor and
^rchaser. Cent Dig. H 868, 872; Dec. Dig. I
Error from Superior Court, Colquitt Coun-
ty; W. E. Thomas, Judge.
Actkm by tile Cobb Beal Estate Company
against J. C Thrasher. Judgment for plain-
tiff, and defendant brings error. Reversed.
McKenzle & Kline, of Moultri^ for plain-
tiff In error. Shlpp & Kline and Ia L.
Moore, all of Moultrie^ for defendant In
error. •
POTTLE, J. The plaintiff sued npon
three promissory notes payable to one Ay*
cock, and duly transferred to the plaintiff;
•VbrothweaswaMMUiMtople andsMtluiNUlfBBRloDM. Die A Am. DIfr Kur-No, BartMiiPIUD'rJBadm
Digitized by V^jOOyiC
THBASHEB t. COBB
KEAU ESTATE CN>.
265
The defendant pleaded tbat the notes were
^Ten In part payment for certain lots in
the city of Hoaltrle; that the defendant was
induced to pnrdiase the lota statements
of Ayeock that he would soarantee the build-
ing of a railway depot adjacent to the prop-
erty: that he would ctmstmct on the adja-
cent properly a handsome residence for blm-
8^; and that he would maintain a boule-
vard trarersing the propertTt and uctend It
throngh certain public roads—none of which
promisee have been performed. It was fur-
ther aU^EBd that the plaintiff was not an
Innocmt porchasra ct the notes, and took
tbun with Icnbwledge of the inducement
which bad been held out by Ayeock. By
amendmoit the defendant alleged: On De-
cemba IS, 1909, the plaintiff bad a public
sale at certain lots of land, which had been
laid titt near the dty of Moultrie, immediate-
ly south d the corporate limits, the surrey
being known as West Broad Heights. The
public were Invited to the sale, which was
conducted on the land. The plalntlfl and
Its auctioneer and agents represented to the
d^endant and the other Udders that the
plaintiff would buUd. keep, and maintain a
wide and magnificent boulevard, on the
edges of which would be planted shade trees,
and would keep and maintain numerous
parks and pleasure grounds In fnmt of and
near to the lota, that the plaintiff would
build a suburban depot on the right of way
of the Georgia Nortbon Railway, tearersing
the land and adjacent thweto, and that the
plaintiff would erect a liandsome $10,000 res-
idence on the boulevard, near the lots, all of
which statxmeuts were made by the plaintiff
and its agents in the heulng of the defend-
ant and Qie other bidders as an inducement
for them to purchase^ Buying upon these
representations and promises, the defendant
bouc^t two lots for |21<^ payable one-third
cash, and the balance in equal Installments
in one and two years, and gave the notes
sued on, for the deferred payments. The
plaintiff executed to the defendant a bond
for title to the lots. This bond was in usual
form, and recites that the defendant has
agreed to purchase two described lots of
land, and baa executed his notes for the
i»lance due on the purchase price, and that
upon the payment at the notes the obligor
agrees to malce a warranty deed to the lots.
It Is averred in the plea that the represents-
tlon of the plaintiff and the exhibition of
maps and plats showing the property as the
plaintiff agreed to Improve It were all wrong*
fully and deceitfully made for tbe purpose
of Inducing the defendant and the othors to
bid at the sale, and the plaintiff and its
agents then knew that tbe representations
and promises were not true and would not
be carried out The boulevard has never
been maintained as promised, but it has been
allowed to stay In Its natural state, and It
now appears as a deserted wilderness, cov-
(*red with weeds and growing trees, with
naught but the whitewashed posts to mark
tbe last resting place of these 4eserted lots.
The beautiful parks have become merged
with the desolate scene, and the decay-
ing fences remind one of a deserted grave-
yard. The beantlfui suburban depot has
never furth^ materialized than the word-
pfcture drawn by the plaintiff and marked
on the maps and plats. The (It^OOO resi-
dence Is yet a dream tasey of the mind,
though sufficient years have elapsed to have
built it wiUi (me man, a hammer, and saw.
The defendant avers that, by reason of the
ftHregolng facts, tbe ccmsiderallon of tbe
notes has faUed; that the lots are wholly
valueless as town lots, and are not worth
exceeding $60 per acre; that the defendant
has paid $70 on the purchase price, and the
lots bou^t are not reasonably worth more
tba.n $lBw The defradant offers to surrender
the bond for titie, and prays that he recover
(tf the ^Inttff $55, being the difference be-
tween tbe caaih payment and the actual val-
ue of tlie lots.
Tbe plaintiff demurred on the grounds that
Qie answer sought to vary the terms of an
unconditional contract in writing; that it
does not apjwar that the alleged representa-
tions wore conditions of the contract of
sale, such representations not bdng set fwth
in the bond for tltl^ nor contained In the
notes sued on; that it does not appeu that
the lots are of less value than tb^ were
before the sale; nor does it aiqjtear how the
failure of tbe plaintiff to comply with the
promises alleged to have been made affected
the sale; nor does It ai^ear within what
time the promises alleged to have been made
were to have been performed. The notes
sued on were executed on December 16,
1009, were due, respectively, April 1, 1910;
December IS, 1910, and December 15, 1911.
The trial Judge sustained the demurrer,
struck the answer, and entered up Judgment
in favor of the plaintiff.
A discussion of tbe legal indnciples which
control the case Is rendered unnecessary by
the decision of the Supreme Court In the case
of Printup V. Rome Land Co., 90 Ga. 180, 15
S. SL 764, upon the authority of whicdi deci*
slon the Judgment in favor of the plaintiff
must be revejrsed. In that case suit was
brought on notes given for the purchase price
of lots which had been bought at an auc-
tion sale. The answ» averred that the
plaintiff and its auctioneer represented to
the d^endant and oUier bidders that a dum-
my street car line would be built and main-
tained through the lots b^ng offered for sale,
and exhibited maps and plans showing the lo-
cation of such car line. It was further tep-
resented that arrangements bad bem made
for the location of a manufacturing tHant
and factory in the Immediate vicinity of the
lots being sold. The sella executed to the
purchaser a bond for title containing no stip-
ulations except that the land should be con-
veyed upon cotain payments bd]^^^n^^^|^
2S8
T8 SOUTHEASTBRN BBPORTBB
was fnrtlier alleged that at the anctlan sale
It waa repiesented by the plaintiff that bioad,
graded aTennes and stre^ had been laid
cut; that the xnropertj was connected by
means of streets and the dummy line with
the dty of Borne, thereby rendering the lots
convenient and desirable for homes, and that
the defenduit boiu^t tilie lots rdying upon
the representations made at the salSi We
can perceive no snbstantlai difference be-
twem that case and the ease now under con-
sideration. In that case the sale took place
on the land; therefore it Is manifest that
the purtdiaser conld not have been deceived
by any false represeutatlona as to what had
already been don& A Judgm^t striking the
plea was reversed, and the decision of the
Supreme Court must necessarily have been
predicated upoi^ the theory that the defend-
ant was relieved from the payment of the
notes by the false and fraudulent promises
of the seller that certain things would be
done to enhance the value of the property.
The plea in the present case was not sub-
ject to demurrer because it failed to allege
that the seller promised to make the
tmproTements referred to within any defi-
nite time. No time being stipulated, the law
would imply a reasonable time. The sale
took place in 1909. The ault was filed In
April, 1912, and, according to the answer, no
steps wbatever were taken during this period
to comply with the promises made by the
seller. The question of what is a reasonable
time is one for the jury, but it would seem
that, In the abbence of some good reason
for not doing so, a sufficient time had elaps-
ed to require the seller to begin perform-
ance, if he Intended to perform at all. In
our opinion the case Is controlled by the case
above cited, and the court wied sustaining
the demurrer to the plea.
Judgment reversed.
(12 Oa. App. 688)
NORMAN T. RBHBBRa (No. 4,387.)
(Court of Appesls of Georgia. Mi^ 20, 191S.)
(BvUabua by the Court.)
GanaKAZ. L&w (f 1001*)— Sbhibhcb— Susfkit-
Bzoir— Vauditt.
Under the ralinga of the Supreme Court
Id Daniel v. Persons, 137 Oa.'826, 74 S. E.
260, and Neal v. State, 104 Oa. 500, 30 S. B.
86S, 42 L. R. A. 180, 69 Am. St. Bep^ 176. so
much of the Judgment in the Instant case as
purported to suspend the sentence daring the
good behavior of the defendant was void and of
no force and effect, and consequently the trial
indge did not err in refusing to release the
plamtiif in error upon the petltioii for habeas
corpus, or in directing that uie former sentence
of the court be executed.
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. || 2554^2550; De& Dig. |
1001.*]
Error from City Court of Moultrie ; J. D.
McKenade, Judge.
Petition of Albert Norman for writ of
habeas corpus against Ja V. Bebberg. Tram
an order doiying the writ, petitioner brings
error. Affirmed.
W. A Covington, of Moultrl^ for plaintiff
in error. Alfred B. Kline, SoL, of Moultrie^
for defendant in error.
RUSSBLLs J. The plaintiff In error on
August 14, 1911. entered a plea of guilty in
the clt7 court of Moultrie, Ga., to the of*
fense of simple larcoiy. Vpon this plea the
Judge of the city court entered the follow-
ing Jndgment: "State r. Albert Norman,
No. 90, page 15, In the City Court of Moul-
trie, Colquitt County, Ga. Whereupon It is
ordered and adjudged and considered by
the court that Albert Norman be placed and
confined at hard labor In a chain gang on
some public works In said county and state,
or wherever the proper authorities may di-
rect, for the term of eight months, and the
payment of fifty dollars, Including the costs
of prosecution. The sentence of eight months
to be suspended upon the payment of said
fine, and pending the good behavior of said
defendant" After the Imposition of this
sentence, the defendant paid the fine of 900,
and was set at liberty by the sheriff. On July
15. 1912, the Judge of the dty court of Moultrie
passed an order stating the contents of the
former sentence and setting out that there
was a condition that. If said .Albert Norman
paid the fine of $50, the chain gang sentence
was to be suspended during his good behav-
ior, but that, whereas there was an affidavit
filed In the dty court of Moultrie charging
the said Albert Norman with committing lar^
ceny again, the court ordered that the sus-
pension of the sentence be dedared void,
and that the sheriff proceed to enforce the
original judgment by pladng the said Al-
bert Norman In the chain gang as provided
in the sentence.
The plaintiff in wror filed a petition
for a writ of habeas corpus, setting up
the foregoing facts, and averring that no
notice was ever given to the petitioner,
or his attorneys, of the order command-
ing the rearrest of the plaintiff in error
prior to the Issuance of the order, nor
any opportunity afforded him to defend him-
self against the charge that he had violated
the condition upon which the suspension of
the sentence was based. The petition fnt^
ther alleged that the original plea of guiltr
was made upon the understanding that the
petitioner should not be deprived of his
liberty as long as he kept the laws of Geor-
gia, and that his det^tion was nnlawfal
for the further reason that more than eight
months, during which time the petitioner had
been constantly going in and out before the
otQcers of the. court, had elapsed since the
imposition of the original soitence. Upon
the hearing of the application tar habeas
corpus, all of the facts stated in the petition
•Tor ota«r cauM urns topic sad Mcuoa NUUBBB In D«a Die a Ant. Dig. K|^^o.^^^M^
Oa.)
2S7
were admitted by tlie nspondent Rehtierg
to be true. After the bearing tlie application
for release was refused, and tbe Bberlff of
Colquitt count? was directed to enforce the
sentence of the court in conformity with the
order subsequent thereto.
Were it not for the rullDgs of the Supreme
Gonrt upon the questions Involved, It might
seem unfair and out of keeping with the
spirit of onr Constitution and laws (as In-
sisted by connsel) to deprive this petitioner
of his liberty. In view of tbe fact that it Is
admitted that the sentence was a conditional
sentence, In which It was contracted that
the prisoner should hare his liberty, unless
be violated the law, and that an adjudication
that he had violated that contract was made
without a hearing or any opportunity on his
part to show that he had not In fact broken
it Under these rulings, the attempt to
suspend the sentence was wholly void; and
upon tbe petition for habeas corpus the
Judge was compelled so to bold. And, since
the effort to suspend the sentence was void,
the reasons for Its suspension or tbe drcnm-
Btances upon wbldi the suspenedon depended
were wholly immaterial. It was wboUy
immaterial whether tbe petitioner had by
vloIatli« a (Siminal statute subsequently to
tbe sentence broken the contract under which
be was entitled to his liberty; for it was
wholly beytmd tbe power of tbe court that
Imposed the sentence to propose any con-
dition compliance with which would have
the tBsxt of altering or voiding a sentence
wMdk the court bad autlmrity to impose.
Daniel v. Persons, 137 Ga. 826. 74 S. B. 260.
The other question In this case, as to
whether tbe fact that the period of dlgbt
months which bad already expired since tbe
sentence of eight months was Imposed runs
in favor of the defendant, is equally well
settled by adjudications of the Supreme
Court In Neal's Case, 104 Ga. GOO, 30 S. E.
858, 42 L. B. A. 190, 69 Am. St Rep. 176,
the sentence of six months, with provision
for Its suspension, was Imposed on March
8, 1897, and on March 12, 1888, more than
a year thereafter, the trial Judge ordered
his rearrest Upon this state of facts, the
Supreme Court held that "one u[>on whom
such a sentence has been Imposed cannot,
though more than six montbs may have
elapsed from the date of tbe sentence, be
held to nave served out the term therein
mentioned, when In point of fact he has nev-
er been placed in the chain gang." It Is true
that in diat ease attention is called to the
fact that the sentence Itself provided that
"the sentence begin and be counted from the
time of the reception of said defendant In
the chain gang under this sentence and Judg-
ment" and in this respect that sentence dif-
fers from the sentence now before us. But
the ruling was placed upon tbe constitution-
al provision tbat "the legisUitlvek Judicial,
and executive powers shall forever zemain
78B.B.^n
separate and distinct, and no person dis-
charging the duties of one shall at the same
time exercise the functions of either of the
others, except as herein provided." Civil
Code, I 6379. Judge Fish, deUvering the
opinion of the Supreme Court held ttiat the
attempt to suspend a sentence on the part of
a court is an unwarranted interference with
the powers, duties, and functions of the ex-
ecutive, and said: "If the execution of a
sentence which has been imposed in accord-
ance with the law can be suspended, ei-
ther In whole or in part as the Judge may
see fit during the pleasure of the court then
the court may in this way indirectly grant a
reprieve, commute a penalty, or remit any part
of a sentence, and thus practically exercise
powers which the Constitution Imposes ex-
clusively upon the Governor of the state.
For a sentence, the execution of which is
suspended during the pleasure of tbe court
may never be enforced, as It may uvvvr be
the pleasure of the court to revoke the or>
der of suspension and enforce Its execution.
If a court can Indefinitely suspend the ex<
ecutlon of a sentence. It may even indirectly
exercise all the pardoning power conferred
upon the executive of the state, except that
portion of It which embraces the removal of
dtsabllitles imposed by the law in certain
criminal cases as a consequence of convic-
tion.". From the reasoning upon which the
ruling in the Neal Case, supra, is based it
la apparent that the Judgment was not af-
fected by the foct that In that particular
case tbe sentence was not to begin or to be
computed until the time of the defendants
reception into the chain gang.
As to the point tbat the city court of Moul-
trie was without jurisdiction to suspend tbe
sentence, see CVDwyer v. Kelly, 183 Oa. 82^
67 S. B. 106; Wall v. Jones, 135 Oa. 426. 69
S. E. 648 ; Boberts v. Wansley. 187 Oa. 439.
78 S. B. 654; Daniel v. Persons, 137 Ob. 826.
74 3. B. 260, supra. In tbe latter case tbe
Court of Appeals certlfled to the Supreme
Court certain questions la reference to the
apparent conflict In the dedsons in Neal v.
State, supra, Gordon v. Johnson, 126 Ga. 684,
56 S. E. 489, and the O'Dwyer Case, supra,
and tlie Supreme Court demonstrated tbat
the decisions In these cases were in harmony,
tbe court pointing out at length tbe features
In which the facts in each tiiwHng^iwtn>fl it
from the other.
Since the trial court was without Juris-
diction to suspend the sent^ice In the first
Instance, and the petitioner must be presnm*
ed to have known that that part of tbe sen-
tesD.ce whldk related to its suspension wat
wholly void, the Judgment of the trial Judge
upon the petition for habeas corpus is not
affected by the fact tbat tbe accused was
not called iqion to show cause why tbe ceurt
should not pass ah order requiring the exe-
cution of the sentence, and certainly could
not claim tbe expiration of a sentwce un-
der wbloh be bad not ewed a ali)^ day.
Digitized by VjOOglC
258
78 SOUTHBASTBRN BBPORTER
merely because the period of time wblcb had
elapsed was longer tiban the aentence ori^-
nally Imposed.
Jndsment affirmed.
(a Qn. App. 441)
CHABLBSTON ft W. a BT. 00. t. McES^
MTRBAT BBOa (No. 4.006l)
(Oonrt of Appeals of Georgia. Feb. 11, 1913.
On Motion for Reliearinr, Marcb
1, 1918.)
rSyHobitt by the Oomrt.)
1. RArutOADS (I 478*}— FiBK Skt bt Locoho-
TivE— Pleading.
The petition, properiy construed, baaed tbe
Elaintiff'e right of action, not only upon the n^
gence of the defendant In lo operating ita en-
gine as to caose an unusual emission of sparks,
but also upon tbe negligence of tbe defendant in
permitting the accumulation of combuatible mat-
ter on ita right of way. It therefore set forth a
cause (rf action, and tbe court did not err in
overrating the general demurrer. The special
demurrers were without merit. The plaintiff
was not required to atate tbe particiilar agent
of tbe defendant whom be notlBed of tbe com-
pany's negligence as to tbe accumulation of
trash on Ita ngbt of way, for the notice was un-
necessary.
[Ed. Note.— For other cases, see Railroads,
Cent Dig. H 1696-1706; Dec Dig. | 478.*)
2. AfPIAL AND EBROB ({ 692*)— BBIXT OV ET-
IDBXOB— SumCIKNOT.
There being no bona fide effort to brief tbe
evidence as required by law, aud the remaining
assignments of error being dependent upon the
evidence, the judgment of the lower court must
be affirmed.
[Ed. Note. — For other casea, see Appeal and
Error, Cent Dtf. |t 261&-2620, 8126;lDee. Dig.
On Motion for Bebearing.
8. Railboadb (M 478*)— Fibeb -~ PmnoH—
STrmcwNCT.
The demurrer, complaining generally that
no cause of action is alleged in the plaintiffs
Ctition anlnst the defendant, was insufficient,
view of tbe allegations of tbe petition, to
present to the con^deratlon of tbe trial court
the specific obiection that the petition did not
set forth clear& and distinctly a right of action
in the plaintiff and against the defendant for
negligently allowing the fire to escape. Tbe al-
lepitions as to the accumulation of combustible
matter upon the defendant's right of way, taken
in connection with the other allegations in the
petition, sufficiently charge the defendant with
liability for negligentiy permitting the escape
of fire from its right of way, to withstand a
general demurrer.
[Ed. Note.— For other casea, see Railroads,
Cent Dig. II 1698-1705; Dec. Dig. | 47a*]
4. Appeal and Ebbor (| 639*)— Bbiei' of Et-
IDKNCB— Review.
The provisions of section 3 of tbe act regu-
lating practice in courts of review in this state,
approved August 21. 1911 (Acts 1911. p. ISO),
are restricted to questtons as to the snmclency
of tbe approval of the grounds of motions for
new trial, the sufficiency of the approval of tbe
brief of evidence, and toe sufficiency of the filing
of either the motion or the brief, and bare no
reference to tbe right of tbe reviewing court to
determine whether a paper, filed and apiwoTed
as a brief of tbe evidence, is sueb a brief of the
evidence as is required by law.
pBJd. -Note.— For other cases, see Appeal and
^01^ Cent Dig. H 2787. 2829; Dec Dig. |
Error from Clt7 Goart of Richmond Ooun-
ty ; Wm. F. Eve, Jadge.
Action by McElmnrray Bros., for use, etc.
against the Gharleston ft Western Carolina
Railway Company. Judgment for plaintiffs,
and defendant biii^ error. Affirmed.
W. K. Miller, of Augusta, for plalntifr in
error. J. C CL Black. Jr., of Augusta, for
defendants In error.
BUSSELI^ J. Jodgment affirmed.
On Motion for Rehearing.
The action was for damage on account of
fire alleged to have be^ caused by sparks
from the locomotive of a passenger train
passing the plaintiff's land. The petition al-
leges that the right of way of the defendant
railway company, running through the land
of the plaintiffs, and immediately adjoining
that portion which was burned over by the
fire alleged to have been set out by the de-
fendant's locomotive, was, Just previous to
the said fire. In a foul condition from an
overgrowth of dry grass, weeds, and brnsta.
and that due notice had been given. In writ-
ing, to the railway officials of this condlttoo,
and of the danger to be apprehended from
fire which might be set oat by their passing
locomotives, and, farther, that there was no
attempt on the part of the defendant rail-
way company to clean off the said right of
way. Paragraph 4 of the petition is as fol-
lows: '*That said defendant negligentiy per-
mitted large quantities of dry grass, weeds,
trash, and underbrush to gather upon Its
said right of way, and, though It was advis-
ed in writing, prior to the date of the in-
Jury hereinafter stated, of the dangerous
condition of said right of way, negligently
allowed said inflammable and combustible
material to remain upon the said right of
way." In the fifth and sixth paragraphs it
Is alleged that on the 14th and 27th days of
November, 1910, respectively, an oiglne op-
erated by tbe defendant negligentiy emitted
sparks which art Are to said rigbt of way.
which fire was communicated to the plain-
tiffs' adjacent fields, destroying specified
property of the plaintiffs. It was alleged
that "tbe defendant was guilty of negllgraice
Id this: (a) That the engines used by said
defendant as aforesaid were without a safe
and sufficient spark arrester, and safe and
sufficient devices and appliances for pre-
venting the emission ot spai^ whidi set
fire to the right of way as aforesaid, (b)
That said engines were so carelessly and
negligently operated as to allow the emission
of sparks, which set fire to the rl^t of way
as aforesaid, (c) Tb&t said defendant neg-
Ugoitly permitted large anantltiea of dry
grass, weeds, trash, and onderbmsh to gath-
er upon its light of way as aforesaid."
The d^endant demmrred as follows: a)
Because ho cause of action is alleged in
*For other oasis am same topta and seetlon NUHBBR in Dee. Dig. a Am. Dig. ^<^^Na^ ^y'^S!^^3^^t^*
CHABLESTON A W. C. BT. CO. T- MoELMUBBAT BBOS.
259
plafntUTB petition against this defendant
(2) Defendant demurs to the following para-
graphs of the petition, namely: To para-
graphs 4 and 8, because no copy of the writ-
ing therein referred to Is attached to the
petition ; to paragraph 6, because plaintiff
falls to allege what particular kind of retch
was growing on his field on the 14th day
of November, 1910; also because plaintiff
fails to allege when he discovered the Are in
question, and why be did not discover It
sooner than he did.** T2ie court orermted
the demurrer.
The trial resulted In a verdict for tbe
plaintiffs. Tbe defendant's motion for new
trial was overruled, and it excepted to that
Judgment, as well as to tbe owmUiig of
tbe demurrer.
BUSSELI^ J. (after etating tbe facts as
aboT^. We declined to grant tbe motion for
rehearing filed by the plalntifl In error. It
la based upon the following grounds: "(1)
Tbst the point In Its demurrer to the plain-
tiff's petition was that It bad a right to set
out fire, either Intentionally or negligently,
on Its right of way, and that an adjoining
property owner bad no tight to complain of
sncb fire, If not damaged thereby. The fire
being on Its right of way, If It was allowed
to escape from the right of way and damage
the property of tbe adjoining landowner, hia
right of action would be for negligently al-
lowing a fire to escape, none of which was
alleged In the petition. (2) Relatively to the
brief of evidence: This was, of necessity,
fixed and approved by the court below, and
no objection was raised thereto in this court.
Plalndfl in error respectfully submits that
since the act of August, 1911, section 3 (Pub-
lic Laws, p. ISO), this court should not re-
fuse to adjudicate questions depending upon
the evidence, because too much evidence was
brought to this court. The presumption is
that the court below did its duty and approv-
ed a proper brief of the evidence. What la
too mncb evidence, or what Is too little, must
of necessity be determined by tbe court be-
low, if this court should undertake to de-
termine sucb questions without all the evi-
dence before It, and then say what is or
what Is not a proper brief of the evidence,
and after a hearing In this court on the mer-
its of tbe appeal, litigants would have no
fixed rule to guide them."
[S] 1. It win readily be seen by reading
the demurrer that it did not direct tbe at-
t^itloa of the trial court with sufficient
eieameBB to tbe spedflc point now insisted
upon; and, as we have several times bad
occasion to remark, "demurm, being a critic,
should Itself be free from Imperfections."
We think tbe allegations of tbe petition, in
the absence of an appropriate special de-
murrer requiring a full statemwt of the
plaintiff's canse of action, soffldently set
fortb the right of action ai^lnst tbe defend*
ant for negligently allowing tbe fire to es-
cape. Where there Is only an imaginary line
separating the railway's right of way from
the land of the adjoining landholder, and
the railway company negligently permits Its
right of way to remain covered with dry
grass, refuse, and other combustible materi-
al, It is reasonably to be assumed by tbe
railway company that, if the right of way Is
set on flre^ such fire will be communicated
to adjacent premises, unless precautionary
means are then at band to confine the fire
to tbe right of way. In the absence of a
more specific objection to tbe allegation of
the petition, the petition can very properly
be constroed to cbai^ merely by way of in-
ducement tlie negligent emission of the
sparks. If ttie right of way bad contained
no combustible material. It Is possible that
there would have been no combustion Injuri-
ous to the pbOntUb* property, althongb tbe
di^endant mi^t have been negligent as to
tbe emlssiun of sparks trtm its ugines.
Be this as it may, it is dear tliat tbe spedflc
point presented In the first ground of tbe
motion for rehearing was not presented to
the conrt below, and hence cannot be adju-
dicated here.
[4] 2. It is insisted, in tbe second ground
of tbe motion tax rebearlng, that the brief of
evidence was of necessity fixed and approv-
ed by the court below, and that, as no ob-
jection was there made to it, the Ck>urt of
Appeals "should not refuse to adjudldite
questions depending upon the evidence, be-
cause too much evidence was brought to this
court" Section 3 of the act approved Au-
gust 21, 1011 (Acts 1»U, p. 14fl), is dted as
authority for this position. The section re-
ferred to reads as follows: "That where tbe
Judge has finally passed on the merits of a
motion for a new trial, and the parties have
raised no question as to the suffldency of the
approval of the grounds of sucb motion, or
of the approval of the brief of evidence,
or of tbe filing of such motion or brief,
or of the Jurisdiction of tbe judge to en-
tertain tbe motion at the time he did. If tbe
parties acquiesced In his entertaining it at
that time, no question as to these matters
shall be entertilined by the reviewing courts
unless first raised and insisted on before
the trial Judge." It Is very plain that tbe
matters as to which there shall be no
question raised in tbe reviewing courts, un-
less the subject la first raised and insisted
upon before the trial judge, are expressly
limited to three points: (1) The suffldency
of the approval of the grounds of the mo-
tion for a new trial ; (2) the sufficiency and
approval of the brief of evidence; and
(3) tbe suflldency of tbe flilng of tbe brief
of evidence and of tbe motion for a new
triaL The act does not in any wise att^pt
to interfere with tbe power of tbe courts of
review to determine when there lias been s
bona fide tttoH to prepare a brief oCtbe evl* .
Digitized by VjOOglC
280
78 SOUTHEASTERN REPORTEB
dence, nor with Bw duty of this court to de-
cline to consider questions whose detenainft-
tton Is dependent upon a review of the evi-
dence, when In Act the paper which has
been approved and filed Is not In a legal
sense a brief of the evidence at all, hat Is a
bulky and volamlnoaa docomest, which, In
some Instances, Is a great conglomeration of
Irrelevant matter, from which the reTlewlng
court will not attempt to hnnt for and sepa-
rate such proof as Is relevant to the Issues
Involved. Albany & Northern Ry. Co. t.
Wheeler, 6 6a. 270 (1), 278. 64 S. E.
ItU.
Section 8 of the act of Iftll ctMifines It-
self to three msttert, whldi may be said to
be purely technical, and the Legjalatare
verj wisely determined that; If a Utlgant did
not see fit to take advantage of these matters
of practice before the trial court had lost
jurisdiction of the case by tlie flUng of a
writ of error, be conld reiy properly be held
to have walred it The LegMatnTe, no
donbt, also bad In mind the fact that coorts
of review are alw^ iDcUned, If possible, to
consider eases upon their merits, and by the
provlalona of section* 8 the General Assembly
nnqnestlonably sared the courts at review
from the labor of investigating and oonslder-
b»g cwtaltt questions wbldi had, prior to the
paasace of this act, consumed a consld«cable
part of the time of the courts, to wit:
Whether the grounds of the moticm, or the
brief of evidence, had been snffldenOy ap-
proved, or whether the motion or the brief
had been properly filed. As above stated,
however, It Is very plain, from reading the
statute, that the Legislature did not under-
take to take away from the courts of re-
view the right to say that a paper was not
a legal brief of evidence, although no point
could be made as to the fact that it had been
approved as such by the trial Judge. The
formal approval of a brief of evidence by
the trial Judge, and the question as to wheth-
er the paper approved is In fact such a brief
of evidence as is required by law, are two
entirely aeparate and distinct matters ; and
it will not be Inferred that the Legislature
Intended by implication to include the one
in the other. That this la true Is further-
more apparent from the fact that In most of
the reported cases in whldi the Supreme
Court and this court have declined to con-
sider aBsignmente of error dependent en-
tirely upon the evidence, for tbe reason that
there was no proper brief of evidence In the
record, there was no question, and there could
be no question, as to the auffldency of the
approval of the brief of evidence by the
trial Judge.
In regard to the statement In the motion
for rehearing, that "what la too much evi-
dence, or what is too little* must of necessi-
ty be determined by the court below." we
need only to reply, In the language of Judge
Powell, speaking ttrr ^s court In Albany A
Northern Railway Co. t. Wheeler, 6 Oa. App^
274. 275, 64 S. n 1114, 1116: "In this con-
nection we may say that, when an Improper-
ly pr^iared bnef of the evidence appears in
the record without any explanation or con*
trary statement, it is presumed to be the
work of counsel for the movant Hoice, If
counsel for the movant has not in feet been
derelict In this respect, and desires to sare
himself from this imputation, he ahould pre-
sent what he concaves to be a correct brl^
to the Judge; If oi^>oslng counsel objects,
and the Judge sustains the objection, and
causes additions to be mad^ It Is the privi-
lege of moving counsel to cause Oils fhct to
appear, either by a note or memorandum,
attached to the brief of the evidence and
verified as a part of It, or by a recital In tbe
bill of exceptions ; and iA when the case
retLChee this court. It appears that the brief
has be£3i improperly added to at the In-
stance of counsel for tbe respondoit, It Is
wltliln tbe discretion of this court to give
such direction to the matter, by taxing tike
costs, or otherwise, as will protect the party
not at fftult** Assuming, as we must, under
this ruling that an improperly prepared
brief at evUenoe Is the work of counsel for
tbe moTSnt it Is his duty. In any case In
wlilch he is forced to submit to additions to
the brl^ to object before the trial cour^
and follow It IV by a recital In the bill of
aoeptlons. Thla practiw is In exact con-
formity with Uie spirit of the act of At^ust,
1911, as to tbe approval and filing of mo-
tions tor new trial and briefs of evldaioe.
We hold that Ou act of 1911, supra, has no
relatkm to the question as to whether what
Is approved as a brief is in fact a pr<^>er
brief of the evldence—sudi m brief as la re-
quired by law.
Motion for rehearing denied.
OSOa. App. M)
HORBLET T. WOODLBY. (No. 4,U9.)
(Court of Appeals of Georgia. Oct 9, 1912.
On Rehearing, Blarch 1, 1918.)
f8yllabit9 hy the Court.)
1, Brokers ({ 42*)— Actions roa Coicubsion
—License— Failubk to Beoisteb.
Tbe deciBion of tbis case is controlled by
the ruliiig of this Oonrt In Ford t. Tbomaaoiw
11 Ga. App. 869, 76 S. B. 269. The suit was
brought for commlsdons alleged to be due the
plaintiff by the defendant in the lower coart for
his lervices as real estate agent in aiding an-
other real estate agent to make a sale. As it
affirmatively appears that the plaintiff In tbe
lower court had not registered with the ordi-
nary, nor paid the tax to the tax collector, re-
quired by section 978 of the CivU Code of 1910,
he cannot recover commissions accruing from
the sale of real estate. Ford v. Tbomason,
supra. The coart, therefore, erred In overruling
the motion for a new trial
[Ed. Note.— For other eases, sea BMkers,
Cent. Dig. | 43; Dec DlgTM!!-*]
•For oUmf oaH* n* suae topic and McUon KUMBEB In Dec. Die- * Am. tOg. J^-KcBM^^^^^^m
HOBSLET T. WOODIXr
261
On Rebearlsf.
2. BBOSBBB (I ^*)— "KXAX. Eotats X>ialb"
—Tax.
One can carry on the bu^neas of a "real
estate dealer/' within the meaning of that term,
and ae soch be subject to the proTialoin of sec-
tion 978 of the Civil Code, though he mar not
succeed in carrying through a single sale which
he attempts to make. Likewise one Is a real
estate dealer who, on fais own acconnt and am
a bnaineas independent of that of another real
estate agent, engag«s for a conslderatirai to aid
others, whether the ownen of tiie property or
their agents. In HlUng real ««tat» wUoi 1* of-
fered for sale.
[Ed. Note.— For other caaea, aeo Bnkan,
Cent Dig. | 43; Dm:. Dig. f 42. •
For other definitions, see Words and Phrases,
TOL 7. pp. 6M7, 693a3
8. New Tbial (11 28, 128*)— Appkai, and IDb-
BOB (i 173*>— Heabing oif Motion— Sum-
CISnCT OF OBJEOnonB— ILLBOAL COKSIDKB-
ATIOir.
While It Is the better practice to raise bf
plea, as a matter of affirmative defense, the
point that the plaintiff's claim is foanded upon
an iU^al or immoral consideration, still, npon
Uie hearing of a motion for a new trial, the gen-
eral assignment of error, averring that the ver-
dict ia contrary to law and without evidence to
support it, is sufficient to demand an investiga-
tion of the evidence. If It appeara, from a re-
view of the evidence, dther la the trial court
or in this court, that the plaintifTs demand la
void because ' the consideration was founded
wholly on an immoral or illegal consideration,
the verdict should be set aside. The law will
not shut Its eyes to the fact that the considera-
tion of a contract la illegal, when that fact aiH
jKBrs undisputed txom th« teatimony, and the
illegality of the oonaldoxattoa baa not been «x-
preesly waived.
[Ed. Note.— For other caaea, see New Trial,
Cent. IHg. H 3T-^. 257-262; Dec. Dig. » 26.
128:« App^ and Bnw. Cent Dig. ft iOTO^
1089, 1091-1003, ioo6-iioea» uoi-3jia6; De&
Dig. I ITS.*]
Pottlt, J., diaaentiDt.
EIrror Crom City Oonrt of Davson; U. a
Bdwards, Judge.
Action by J. M. Woodley against J. A.
Horsl^. Judgment for plaintiff, and d^nd-
ant brings error. Reversed.
W. H. Gurr, M. J. Teomans, and R. B.
Marlln, all of Dawson, for plalntlfC in error.
H. A. Wilkinson, ot Dawson, for defendant
In onror.
BUSSBLL, J. Judgmait rereraeA
On Kdieartng.
[t] Was Woodley a real estate acent?
What la a real estate agent f Nothing more
nor leaa tban the agent of aome tme else
wlio has real estate to and who helps
Urn to sell it It Is not necessary that the
land to be sold shall bdong to the prlndpaL
It Is Unmateilal that it btfonga to a third
party. If the person In Question Is employ-
ed by a repreaentatlTe of the owner to sell a
parcel real estate^ or to aid him in selling
It, and It la nnderstood and agi«ed that the
owner has no knowledge of hla contract of em-
ployment, the representatlTe alone Is liable
npon his contract, and fhe party employed to
aid In effecting the sale is only the agent of
the agent, but he is none the less hU agent
Fnrthermore, the degree of proof essential to
entitle a real estate agent to recover In an
action brought for his commlasions has
nothing to do with whether a particular per*
son la or Is not carrying on the business of
a real estate dealer In this state, so as to
subject him to liability to the tax, and ren-
der him golltr of a misdemeanor If he de-
prives the state of its just revenue by dodg-
ing the payment of this tax. It matters not
that one does not succeed in wiMfcinj a slni^
sale as a real estate agent; If he la in the
businefls and attempting to make aales, he Is
liable for the tax prescribed by law, provided
he is to receive a commission, or other com-
pensation, in case he effects a sale ; and be
should be none the less liable if he shares in
the commissions of an actual sale merely
because, by agreement between the parttes,
he is only to do a part of what Is neeeeaary
to complete a sale (furnish the prospects), if
his introduction of the customer results in a
complete sale. If so, then those Aedslons In
which it has been held that where a real
estate agent introduces a customer, and the
owner thereafter sells the property to the
person thus Introduced or procured, but upon
the same terms as were originally stipulated,
the owner is liable to the real estate agent
for bts commissions are all wrong. The tbe-
oty on which these rulings are placed Is that
although it may be true that, but for the
owner, the sale would not have been made^
BtUl, but for the agent, the owner might not
have found a purchaser at alL In what re-
spect does the pres^ case differ In prlnd-
ple from those in which these mllngi have
been made? Clearly there Is no dlflerenes
whatev^t except that in the cases to wU^
we refer the persons who were solng for com-
misslons were tfigaged In helping the owners
to aell,. and In Qie case at bar the plaintiff
claims to hare omtracted with tba agent of
the seller of tlie land for a suffldent oonsld-
eratlon to bdp him to It. It mattem not
that the coQimlBslons for which he sues are
contingent This does not affect an agents
for the sale of land, for In a large majority
of the adjudicated cases the real estate
agent's commission Is con^tlonal In amount
and continsent The fact that one Is the
agent of a real estate agent does not prevent
him from belnc himself a real estate agent
in the transaction which Is the subject-
matter of investigation.
In the motion for rehearing learned coun-
sel for the defendant In error contended that
the Judgment of this court, reversing the
JudgEoent of the court below in this ease,
was rendered under a misapprehemdon of
the evidence, in that there is no evidence
that Woodl^ was a real estate agent If this
be true, of course, the ruling of this court
•Fur other cues see suae topic and seetlon NOHBKIl In Dee. Dig. a Am. Dig. K«r
262
78 SOUTHBASTEBN BBFOBXHB
was totally wrong. In oar conception of the
ezclnslTe prerogatiTe of the Jury to deter-
mine all disputed Issnes of fact, we go even
further than that, and declare without hesi-
tation that the Judgment heretofore rendered
would be wrong If there were any legal tes-
timony upon which the Jury could find that
Woodley, in this investigation, was not a real
estate agent within the ruling in Ford v.
Thomason. 11 Ga. App. 3S9, 7S S. B. 269.
True, Woodley testlfles, "I was not a real
estate agent at the time;" but this was
merely a conclusion of the witness, and whol-
ly without probatlTe value, if by law and
under the facts upon which his condu^rion Is
based It cannot otherwise legally be held
than that the admitted facts constitute him
a real estate agent within the terms of the
act of 1900 (Acts 1909, p. 66). The state-
ment of Woodley that he was not a real
estate agent at the time, but that Horsley
was a licensed real estate dealer, and he
(Woodley) was co-operating with Horsl^, Is
absolute demonstration of the foct that
Woodley, whether liable or not, had not ro-
istered and paid the tax required by law;
for there Is no other reasonable Inference
upon this point which can be drawn from his
denial that he was at the time of the sale a
real estate agent, and that he was depending
upon Horsley^ license tt license was re-
quired.
Let OS, then, see whether or not his con-
dnsion that he was not a real estate dMler
Is supported hy any evidence. He had a gen-
eral arrangement with Horsley, by which he
was to try and bring Horsley customers In
the real estate business from South Carolina,
and. It Horsley sold to them, the commis-
sions up<Hi the Bales were to t»e divided. In
pDrsnance of this sgrsament Woodley
bronglit a Ur. Bnblette to HotsI^, and Hors-
ley sold to him tHe I. P. Gocfee place for $40,-
000: The reel estate dealer's commission
was $2,000: Horsley paid Woodl^ |60(K and
tile salt l8 brought for One rpmalnlng |00a
The original lnad)tedne8B was expressly de-
nominated, In the statement of aeooant at-
tached to the plaintiffs own petition, as
**onfr-baU commissions on sale of Cocke
place^** and in the ammdmoit tba statemoit
of the dalm fOr oommlsdons Is merely am-
plified by stating the name at the pnrdiaser.
Woodley*s testimony shows, wltliont contra-
diction, that he was not only interested In
the sale wtA<Ak Is directiy Involved, but that
he was dealing In otiier teal estate trans-
actions in Terrell count;; for he testtQes
that he did not turn Snblrtto over to Hors-
ley until after he himself had failed to In-
duce him to buy Mr. Lowry's farm (in the
sale of which Horsley was not Interested),
and the letter of November 10th, from Hors-
1^ to Woodley, which Woodley says confirm-
ed a prior verbal agreement, is a general
promise on Horsley's part to pay Woodley
"one-halt of my conamlsslons on any sale
made to parties brought down by yon or In-
fluenced by yon." It further appears tttm
Woodley's testimony and his letters that he
made more than one effort to earn commis-
sions on sales of land which Horsley was
handling In other instences than those to
which we have already referred. From his
letter of December 11th it Is very apparent
that his agreement with Horsley had Inter-
ested him in a sale of land to one Rutledge ;
and Sublette, the purchaser of the land from
the sale of which was derived the commis-
sions now Involved, testifies that, while
Woodley did not especially recommend any
particular farm, except the I<owry place, he
came to Terrell county on Woodley's ac-
count
If a real estete dealer is one who In con-
sideration of an anticipated commission en-
gages to the business of promoting sales of
real estete, and who to thus dealtog attempte
to sell or aids to selling the land of another,
then we thtok that under the ruling to Ford
V. Thomason, as well as under the act of
1909, Woodley most be held to have been a
real estete dealer, although '(bastog his con-
clusion on the fact that his principal busi-
ness was the pursuit of some other calling)
he may erroneously have adjudged that he
was not In the Ford Case we were dealing
with a case In whidi there was a sale com-
pleted by the person whom we held to be a
real estate dealer, subject to the provisions
of section 978 of the Code, because the proof
showed that he had made a sale such as
would have entitled him to bis commission
If the stotote embodied to that section had
never been passed. But It was not totended
to be held, and cannot be held, under Qie
ruling In tite Ford Gsse^ that one is not a
real estete dealer unless he has made a ssle
that win entitle him to recover his commis-
sions under the well-setUed rule that he pro-
duced a putchassr ready, able, and willing
to boy on the terms proposed by the sellOT.
I thiid: the evidence In this case shows even
tliis, tor Sublette testifies that he woald nev-
er have come to Terrell county bat for
WoodleVk influence, and ba was accepted
as the parchsser by Horsley in behaH of
Cocke.
Bat thers can be no question that one can
carry on the business at a real estete deider
without actually making more than an at-
tempt to sell, or aiding others (whether the
owners or tbeir attorn^ or sgenta) to sdl,
real estete which the owners wish to sell
It is perfectiy practicable tor a real estate
dealer who does not wish to Incur the ex-
pense of a costly office and of an office force,
or whose health will not permit todoor con-
finement, to make an arrangement (and not
to any sense a partoershlp) by which he can
legitimately capltelize bis acqualntenceship
with men and property, and his experience
as a bosiuess man, by toductog prospective
purchasers ot real estete to bu^^^^^lnDj|^
Oa.)
HOBSLET T. WOODIiBT
26d
erty wblcb ofberwlse tbey odght never bare
bought or eren heard of; and this, too,
though the actual sale be made by another
perBon who Is the agent of the seller, as
Horsley was. Transacttona In which two
real estate agents are engaged — the one the
agent of the seller, and the other the agent
of the buyer — are not Infrequent. It could
hardly be held In such a case that an agent
of the buyer would not be entitled to com-
pensation If, upon promise of a certain com-
mission, he sought out aud discovered for
his principal the name and address of the
owner of the property the latter wished to
buy, and got the owner's consent to sell it at
the price stipulated by his principal, the
prospecttve buyer, and upon tbe Ter7 terms
Btlpalated by him.
It Is streauously urged that, even If under
the rule In Ford v. niomaaoii, snpni, the
plalnttff was not entitled to recover bis com-
ndsslon. for the reasm tibat be had not paid
Uie tax required by law of real estate dealers,
still the txlal Judge did not err in overruling
the motion for a new trial, because the Ille-
gality of the contrart or Invalidify of the
consideration should have been pl«Lded as a
matter of affirmative d^enae. It Is also
strongly urged that the point was not made
1^ the plaintiff In error himself until after
tbe mllng of this court In the Thomason
Case. This view la not controlling with the
majority of ttie court Tbe general assign-
ment of error, that the verdict is contrary to
law and contrary to the evUieDee, at least
demands an investigation of the evidence to
determine whether the verdict la in fact so
wholly without evidence as to be contrary
to law. In k case where It appears undis-
puted that the consideration of a plalntKTs
demand depends wholly upon an act or con-
dition which is Illegal or Immoral, eoond
public policy would require the court to de-
clare that there could be no recovery. Cer-
tainly this would be true in a case in wblcb
the defendant did not expressly waive the
failure of consideration. In every case the
plaintiff assumes the burden of proving his
case, and If he utterly falls in that under-
taking he Is not entitled to recover. For my-
self, I do not see why this case does not
fall within the well-settled rule announced
in Bvans v. Josephine Mills. 118 Qa. 448, 46
S. E. 674, and la similar cases, for if the
plaintiff first estabUsfaed his case, he there-
after disproved it The testimony must be
construed most strongly against him.
It matters not that counsel for the plain-
tiff in error does not call the attention of
tbe court to a 8i>eciflc mllng under which
the particular finding is contrary to law, if,
as a matter of fact, the conrt knows that the
result reached In the trial was contrary to
law. Counsel may not know Uie law; the
courts must know it
[I] While it Is the better practice to raise
by idea, as matter of affirmative defense^ the
point tliat the plaintiff's claim Is /nvalld,
because it Is founded npon an Illegal or im-
moral consideration, still, upon the hearing
of a motion for a new trial, the general as-
slgnmoit of error, averring that the verdict
la contrary to law and without evidence to
support it, is sufficient to demand an inves-
tigation of the evidence. If It appears, from
a review of the evidence, either In the trial
court or in this court, that the plaintiff's de-
mand is void, because the consideration was
founded wholly on an immoral or Illegal
consideration, the verdict should be set asldft
The law will not shut its eyes to the foct
that the consideration of a contract is 11-
leistlt when that fact appears undisputed
from tlie testimony, and tbe illegality of the
consideration has not been upressly waived.
The Judgment of this court in this case,
reverdng ttie Judgment of the oonrt below,
is adlwed to.
POTTLB, J. (dissenting. Tbe only de-
teise filed in the tzlal court was a graeral
denial of any Indebtedness. I do not think
the defense that the plaintiff had no llcoise
as 8 real estate dealer could be raised under
the plea of the general Issue. A general de-
nial of indebtedness simply raises the ques-
tion that the defendant does not owe the
amount sued for. In the present instance he
does owe it, because tlie plaintiff performed
the services which he agreed to perform,
and the defendant agreed to pay the sum
aued for. But In the argument in this court
it Is contended that there is a special reason
why the defendant should not be required to
pay, .or rather why the plaintiff should not
be permitted to collect tbe amount sued for,
and that Is that be has engaged in the busi-
ness of a real estate dealer without hav-
ing registered with the ordinary and paid
the license required by law, and so has beeu
guilty of a misdemeanor. If the defendant
wishes to urge tbe failure of the plaintiff to
roister and pay the license as a reason why
he should not be allowed to recover, he
ought, in my opinion, to set it up by way of
special defense. A plea of the general issue
did not put the plaintiff on notice that the
defendant Intended to rely upon any such
special defense as the one above mentioned.
Apparently tbe point was made for the first
time in the Court of Appeals. It is manifest-
ly an afterthought and the point was not
discovered nntil after the decision of this
court In Ford v. Tbomason <while the pres-
ent case was pending). Indeed, It was not
insisted on in the original briefs of tbe coun-
sel for the plaintiff In error. In the argu-
ment on rehearing attentloo was called to
this fact, and counsel for the defendant in.
error insisted that a point ought not to be
raised by this court when it was not raised
In the court below, nor even Insisted upon
in this court by counsel for the plaintiff In
error. In this I think Jf|fl,59fl^^)©|^e
264
78 SOUTHBASTBRM REPOBTSIB
(Oa.
and tbat tbe point upon which the court
bases the reveraal Is really not Involved In
the case.
But, further than this, I do not think
Woodley Is such a real estate agent as that
he was required to obtain a license. This
question must be determined solely by the
nature of the transaction between Horsley
and himself. It makes no difference that
Woodley, generally speaking, may hare been
a real estate ag^t, and may hare, as to oth-
er transactions, engaged In tbe real estate
business. Tbe question is: Was he a real es-
tate dealer In reference to tbe particular
transaction with Horsley for whlcb he claims
the right to recover for his services? Wood-
ley had no connection with the owner of tbe
land. There was no contract between them,
and be could not bare maintained an action
against the owner for the recovery of com-
missions. Horsley was the real estate agent
He simply made an agreement with Woodl^
that if the latter would Introduce him to a
purchaser, and be should consummate a a&le,
he would pay Woodley a certain amount of
money equal to one-half of his commissions.
This, then, was the contract, as shown by the
evidence. Woodley had no authority to ne-
gotiate a sale. He had no authority to even
quote the purchaser a price. He had no
authority to enter Into any sort of a contract
with the purdiaser which would bind either
Horsley or the owner of the land. Under his
contract he was simply to send to Horsley a
prospective purchaser. The owner paid but
one commission, and that commission was
paid to Horsley. If a real estate agent
should say to another, "If you hear of a
man wbo wants to buy a farm, send him to
me, and If I trade with him I will pay you
flOO," I do not think the person who sent
the prospective purchaser to the real estate
agent would himself be a real estate dealer.
He Is not a partner of the real estate agent,
as was suggested In the ailment, but was
simply an employe of the agent He had not
the authority of a real estate a^nt nor did
he perfbrm the duties of a real estate agent
His matloa more closely resembled that of
a servant or an employ^ of a real estate
agent ; and this court has held more than
once that one employed to assist a Confeder-
ate veteran would be exempt from the pay-
ment of a license tax, upon the theory tbat
hfl himself was not engaged In the business.
(U Oft. App. TIB)
SMITH KNOWLBS. <No. 4.732.)
(Oourt of Appeals af Geonia. Hay 20, 1S13.)
(SvVabut by like OourtJ
1. OOTTBTS (I 189*)— OiTT GOUBT — TSBIIS —
TlMK FOB TBIAU
TToder tbe act creating the city court of
Sloyd county (Acts 1882-83, p. 688, | 8), serv-
ice of a petition and process la only required
to be made 10 days before (3ie term to wUdt
the same is returnable, and ordinary snits
stand for trial at the second term as in the
superior court.
Ed. Note.— For other cases, see Courts. Cent
Ig.^^ 409, 412. 418, 429, 458; De& Dig; |
2. JunauxHT (61 346, 384*)— SBmno Anns—
GaouNDB— Motion— SUFFiciENCT.
"A judgment valid iu other respects will
not be set aside as void because it adjudges
that the plaintiff recover, In addition to the
principal sum and interest a named amount as
attorney's fees." Shahan v. Myers, 130 Ga.
724 iljj 61 S. B. 702 : Latimer v. Sweat 125
Ga. 477, 54 S. B. 673. A general motion to
set aside a jud^ent as a whole, upon the
ground that uie judgment Is void, when in fact
it is only in part void is so much too broad
that It should be overruled, and especially is
this true when, prior to the moti<ND to set miid^
the only error In the judgment has been cor-
rected.
rEd. Note. — For other cases, see Judirment
Cent Dig. SS 678, 727-732; Des: Dig. SS 346,
384.*]
Error from CUty Oonrt of Tloyd Oounty;
J. H. Beeo^ Judg&
Action W. A. Knowles against J. Bf.
Sndtb. Judgment for plaintiff, and defend*
ant brings error. Affirmed.
Enowles brought suit against Smith on
two promissory notes. No defense was filed.
On the call of the appearance docket the
case was entered in default and Judgment
was thereafter taken September 25, 1912, as
In cases of default on unconditional con-
tracts In writing, and signed by tbe Judge of
the dty court This Judgment included at-
torney's fees. On November 26, 1912, upon
motion of attorneys for the plaintiff, and be-
fore adjournment of the term at which the
Judgment was rendered, the court passed
an order directing tbe plaintiff to write off
the attorney's fees Included In this Judgment
On November 1st the defendant made a mo-
tion to set aside the Judgment upon the
ground (1) that It appeared from the record
that the service of the petition and process
was made less than 15 days prior to the re-
turn term of the court; and (2) that this
being true, tbe September term, 193^, of
said court was only the return term, and
the court had no Jurisdiction at this term to
render a Judgment in favor of the plaintiff.
On the same date the Judge issued a rule re-
quiring tbe plaintiff to show cause why the
Judgment should not be set aside. On De-
cember 2d the Judge passed an order super-
seding the Judgment until a disposition of
the motion to set It aside, and on December
16th the movant amended his motion by set*
ting up that tbe Judgment Improperly Includ-
ed 10 per cent attorney's fees, and further
that the Judgment Is void because tbe Judg-
ment by d^nlt was signed by plaintiff's at-
torueys.
M. B. Bnbanks, of Rome, for plalnttiT in
OTor. Dean & Dean and- J. IL Hunt^ all of
Rome, for defendant In error.
•r«r otiisr esses sss ssms tagia and section HTOBBB la Dee. Dig. A Am.
Oa.)
HARTFORD FIRE INS. 00. ▼. WIHBISH
966
RUSSEIiL, J. (after Btatlng Om fkcta ai
ftbore). We need say noUdng mwe aa to Uw
complalDt that tibe plalntUFa attorney sign-
ed the jndgment by deea.alt than that the
Jodgm^t was signed by the presiding 3ndg&
That Is the Important point, and the question
as to whethra the plalntUTs attorney did
or did not sign It Is wholly ImmaterlaL The
signature of the plalntUTs atttmiey may be
treated as snrplnsage. but It certainly can-
not In any respect vitiate the Jndgment
The conrt did not err In overruling the mo-
tion to set aside the Jadgment upon any <it
the gronnds stated thradn or in the amend-
ment thereto.
[1] 1. There Is no merit In the oont»itloD
that the defendant was serred lees Uian 10
days prior to the return term of the court;
and, this being true, the second ground of
the motion (in which It Is Insisted that the
term at which the Judgment was rendered
was only the return term), of contse, falls
with the first ground. In suite upon promlB-
sory notes In the dty court of Floyd county
the petition and process need only be served
10 days before the appearance term of court
Section 8 of the act creating that court (Acte
1882-63, p. 6SS) proTldea that In dvll cases
the original petition shall be flied In the
clerk's office at least fifteen days before the
term to which it Is returnable, and. If filed
within fifteen days, the clerk shall make the
same returnable to tbe next succeeding
term thereafter. The service of the process
shall be made tra days before the term to
wblch the same Is made returnable." It Is
Insisted that the derk could not make this
suit returnable to tbe Jane term, 1912, be*
cause the petition was not filed 15 days be-
fore the first Monday In June. The point
made Is that as the petition and process
were not served as much as IC days before
the first Monday In June, 1912, the case was
not properly returnable until the September
term, 1912. If the petition was filed 10
days before the first Monday In June, 1912
(and this Is not denied), 10 days' service was
all that was necessary; and this require*
ment of the law was f&lflUedt as appears
from the movant's own petition to set aside
the jodgmoit. Consequently the ease was In
default at tbe June term, 1912, and stood
for trial In 8ept«nber, 1912, the term at
which the judgment by default was entered.
The act referred to provides, that "ordinary
suite stend tot trial at the second term, as
in the superior court"
it] 2. The only remaining ground of tbe
motion, then, is the Insistence that the Jndg-
meat be set aside because It Included attoz^
ney's fees. As to this point it seems that
tbe plaintiff's attorneys discovered this de-
fect before the movant did, and upon their
motion the court corrected the Jndgment In
this respect before his attention was called
thereto by the movant Upon the plalntUTs
motkm, the presiding Judge on November 20,
1912, directed that the attorney's fees be
striken from the Judgment, and the mov-
ant's amendmoit, aaldng that the Judgnmt
be set aside upon (hat gnmnd, waa not al-
lowed until Z>ecember leth thereafta. How-
ever, Uils is Immaterial, aa, under the rul-
ing of the Snpreme Court in Kiaban v. My-
ers, 180 Oa. 724, 61 S. EL TO2, the court could
have ordered the attorney's fees strlckoi
from the Judgment, or written off, and
shotdd not; on teas tbe Judgment was void,
bare set aside the Judgment as a whole,
even If the attention of the court had been
tor the first time directed to this error in
the Judgment by the movant himself. A
jndgment vaUd In other rewecto will not be
set aside as void because It adjudges that
the plaintiff recover. In addition to the prin-
cipal sum and Interest, a named amount as
attorney's fees. Shahan v. Myers, supra.
A general motion to set aside- a Judf^nent as
a whole, upon the ground that the Judgment
Is void when In fact It Is only In part void,
is so much too broad that it should be over-
ruled, and especially Is this true when, prior
to the motion to set aside, the only error In
the Judgment has been corrected. As was
said by Judge Lumpkin In Latimer v. Sweat
125 Oa. 477. 64 S. a 073: "The entire Judg-
ment waa not void, and therefore the motion
to set It aside as a whole falls." The de-
fendant in error asks tbe award of damages
as for a frivolous appeal, and this writ of
error is to our mind so wholly unnecessary
and so palpably without merit (when the
learning and ability of the counsel who pros-
ecuted It Is considered) that we can only a^
tribute it to a desire for delay; and dam-
age* are accordingly awarded.
Judgment aflUrmed, with damagea
(12 Ga. Am. 711)
HARTFORD FIRE INS. CO. r. WTMRTSH
(No. 4,72&)
(Gout of Appeals of Georgia. Hay 20^ ISO,)
(Sviiabu* H the Court.)
1. iHsonuioa (| 140*) — Poucx — Consxauo-
IIOK.
Words uied In a policy of Insnraneo are
to be given thtUt ordinary and usual dgnifl-
cation unless the eontezt requires a Werwt
coustniction.
[Ed. Notew— For other cases, see iDsursnce,
Cent Dig. IS 292, 294-298; Dee. Dig. { 140.*]
2. INSUBAKOI (f 425*)— AUTOVOBXUI InflUS-
ANCB— POUCT— GOIfSTBUCnON.
Where a ptriicy of bisarance Indemnifies
&□ owner of an antomobOe against loss or dam-
age occadoned theft robbery, or oUferage.
tbe owner cannot, under this dense of the pol-
icy, recover for damage to a madilne wblch
had been taken 1^ another and ased wldiont
the consent of the ewaar, but withonfc any in-
tent to steal.
[Ed. Note.— For other cases, see Insurance,
C^t^ Dig. Si 1129, 1185^ 1148; Dec. Dig. |
•r«r otlMT oMts SM SUM and SMtkn HUHBBR In Dm. Dig. a Am. Dtt. Key:
28ft
78. S0CXHBA9TBBN BBPO&13IIB
3. InsuKAircE (i 425*) — Actohobilb Iksdb-
ANCX — POUCT — CONETTBTJOTIOir — "THXFI"
—"Robbery"— "PiLFtEAOB."
At common law. and under the statntei of
tbiu Btat«, theft in amonymoas vHth larceny.
The word "robbery," aa used in the contract
saed on. should be given the same meaning as
that set forth in the Penal Code of tbU state.
"Pilferage" Im petty larceny. The Intent to
steal is a neeeisary Ingredient in all three of-
fenses.
[Ed. Note.— For other cases, see Insurance,
Cent Dig. H 1129. 1135, 1143: Dec Dig. i
426.*
For other definitions, see Words and Phrases,
VOL ^ D. S878; Toir?, pp. 625&-ei264; tdL 8,
pp. 77^, 6988, 60S9.]
Error from dty Court of Savannah; Davla
Freeman, Judge.
Action by Mrs. A. L. Wlmblsb against the
Hartford Fire Insurance Company. Judg-
ment for plaintiff, and defendant brings er-
ror. Reversed.
Adams & Adams, of Savannalj, for plain-
tiff in error. Shelby Myilcfe and A. A. Lavr-
rence^ both of Savannali, for defendant In
error.
POTTLE, J. The plaintiff sued the insur-
ance company for damages to an automobile.
The clause In the policy upon which the
plaintiff relies for a recovery provides that
the defendant Insures the plaintiff "against
actual loss or damage, U amounting to $25,
on each occasion by theft, robbery or pilfer-
age, by persons other than those In the em-
ployment, service, or household of the in-
sured." A demurrer to the petition as
amended was overruled, and a verdict was
returned in favor of the plaintiff. The de-
fendant excepted to the overruling of the
demurrer and to the refusal to grant a new
triaL From the evidence it appears that on
July 4, 1912, the plaintiff employed one Har-
ris to clean out the muffler of an automobile.
Harris began work on the machine about 11
o'clock and stated that he would have the
work completed by 4 o'clock. Harris was
seen driving the car down one of the public
streets of Savannah. The plaintiff did not
know that be had taken the car and gave
him no permission to do so. The plaintiff's
husband found the car about 10 o'clock at
night, about three miles from the dty, up
against a tree and in a badly damaged con-
dition. One of the witnesses testified that
immediately after the automobile was wreck-
ed in the afternoon of July 401, he came
upon the scene; that the car vras going at
a terrific rate of speed when It struck the
tree; tbat there were four occupants in the
ear, three males and one female; tliat the
car was badly broken up and the occupants
were badly hurt; that the driver had evident-
ly been drinking, and the other two male
occupants of the car seemed to have been
drinking also; and that the car was on the
White Bluff road, headed for Savannah.
The court charged the Jury, In substance.
tbat If the automobile was taken Iqr Harris
wltbont the consent or permission of the
owner, and while In the possession of Har-
ris was damaged* the plaintiff would have
a right to recover, provided Harris wa« not
In the employment of the owner at the time.
The jury were further Instmcted that the
word "theft," as used In the contract, ,waa
not to be g^ven its naoal or technical mean-
ing; and the coort declined to charge upon
request that, before the plaintiff would be
entitled to reooveft It must appear that
Harris Intended to steal the machine and
that If he took the car oat tor a ride, In-
t^dtng to return 1^ the plaintiff could not
recover.
El] In construing a oontrac^ the general
rule Is that words are to be given th^
usual and tnrdlnary meaning, unless the con-
text requires a different construction.
[t] There Is nothing In the policy sued on
in the present case which would Justify the
court In giving to the words employed. In
the clause upon which the plaintiff relies
for a recovery, a meaning dlfferoit from
that In which the words are ordinarily un-
derstood.
in It la argned tbat the word "theft," as
used In this policy, means any unlawful tak-
ing; that ts to say, a taking without the con-
sent of the owner. But In our law the word
"theft" has a well-deflned meaning. Theft
Is synonymous with larceny. It is merely a
popular name for larceny. See 4 Blackstone
Commentaries, 220. This is also true In our
Penal Code. For Instance, In section 161 it
is declared that "larceny or theft" constats
of: (1) Simple theft or larceny; (2) theft or
larceny from the person; (3) theft or larceny
from the house; (4) theft or larceny after a
trust or confldmce has been delegated or re-
posed. In section 1S2 "simple theft or lar-
ceny" is defined; and in section 172 "theft
or larceny from the i>erson" Is defined. It is
apparent, therefore, that the word "theft"
should be given the same meaning as the
word larceny, unless there is sometlilng In
the contract which requires a different con-
struction. "Robbery," of course, has a well-
defined technical meaning, and when used
denotes a crime containing all the elements
of that oflens& The word "pilfer" means
to steal, and to charge another with "pilfer-
age" Is the same thing as to charge him with
stealing. Becket v. Sterrett, 4 Blackf. (Ind.)
499, 600. "Pilferage" Is but petty larceny.
One cannot be convicted of either theft, rob-
bery, or pilferage unless he had the Intent to
steaL And we know of no authority tor giv-
ing any different meaning to these words in
a contract of insurance wherein it Is stipulat-
ed tbat the company will be liable for loss
or damage to an automobile, resulting from
theft, robbery, or pilferage. Under this con-
tract. If the thief carries away a machine
with intent to steal It, and it Is never recov-
Vervther CUM ae« aunt t^ls and SMtton NUICBER In Dm. Die. ft Am. Ker-No. aartoA*
Digitized by V:
HOBNSBT T. JENBSK
287
end aad loss occnrs, the owner may reooTer
tbe fall value of tbe antomobU& If tba
tblef be apprehended and the machine recor-
ered, then the owner la entitled to recover
for ^atever damage has been done the ma-
chine, If It exceeds f2S. Bat In both cases
It mast appear that the person taking the
machine Intended to steal It If be bad the
anlmo revertendl, he Is not guilty of theft,
or robbery, or pilferage, even thonkh be took
the machine without tbe owner's consent
This may be a hard contract, bat the par-
ties thns have made It, and there Is no rea-
son in law or morals why they Bhoold not be
bound by It. The plaintiff was not obliged
to accept the policy In the form that It was
offered; she might possibly have procured
more liberal Insurance elsewhere; bat In
any event the courts are not at liberty to ex-
tend by constraction the plain and well-un-
derstood meaning of language used in the
contract. There were some drcnmstances In
the evidence which seemed to indicate that
Harris did not intmd to steal the machine.
He took It out of the owner's garage In the
daytime and drove It along a public thor-
oughfare leading from the city of Savannah,
much frequented by the traveling public.
He was seen going In the direction of a pub-
lic pleasure resort, and when the accident
occurred, was returning to the city late in
tbe afternoon with several other persons In
the car with him. All these circumstances
tended to negative the Intent to steal which
ordinarily arises from an unlawful taking.
The fact that Harris was guilty of a misde-
meanor under section -9 of the "automobile
act" of 1910 (see Georgia Laws 1910, p. 9B>
would not authorize a recovery by the plain-
tiff, for under that act It Is a misdemeanor
to use an automobile of another without his
consent, even where there is no Intent to
steaL The question of an Intent to steal
dwnld have been submitted to the Jury, and
it was error to charge. In effect, that the
owner would be entitled to recover under the
policy If the machine was unlawfully taken
by Harris and without any lnt«it to steal It.
The evidence authorized a finding that Har-
ris was not In the employment of the owner
at the time he took tbe machine; the work
whldi he bad been employed to do having
been finished. The demurrer to tbe petition
as amended was properly overmled.
Judgment revetsed.
(U Oft. App. SM)
HORNSBT T. JENSEN. (No. 4.81S.)
(Court of Appeal* of Georgia. Bbiy 20; 1M&)
(BvUaliu &v ike Court.)
1. BvjDEnox (I 818*)— Hbabsat— Rbckipt.
The writing purported to have been a re-
ceipt given by one wbo was not a party to the
iBBue pending, and who was a competent wit-
ness. The Tscdpt was aei^ors mere heaxiay
and not admlsnble fai evidaBec.
[Ed. Note.— For other oases, see Bvidenee,
Cent Dig. U 1108-1200; Dec. Dig. | 81&*]
2. Appeal and Ebbob (! 1004*)— G^ANTHia
New TniAL— EviDEnoB.
Since the evidence was strongly conflict-
ing, and error in tbe admiaslon of illegal evl-
dence is preeumptively Injurious to the losing
party, the discretion of the judge of the snperlor
court in sustoiQing the certiorari and ordering
a third trial will not be controlled.
[Ed. Note. — For other caaes, see Apiieal and
Error, Cent Dig. H 4322-4362; Dec. Dig. |
1094.*]
(AddiUoiMl SyRabM by BditorUU Btaf.)
3. Appeal and Ebbob (1 1006*) — Bbtxkw —
Evidence.
After two or more ctnsecntiTB Terdiets,
the reviewing court, whether on certiorari or
writ of error, will conatrne the evidence most
strongly in favor of the prevailing party.
[Ed. Note.— For other esses, see Appeal tad
Error, Gent. Dig. || S051-S864; Dee. Dig. |
1000.«1
Error from Superior Court, Fulton Coun-
ty; J. T. Pendleton, Judge.
Action between T. L. Hornsby and H. Jen-
sen. From a Judgment of the superior court
snstainlng a certiorari and ordering a new
trial, Hornsby brings error. Affirmed.
J. W. and J. D. Humphries, of Atlanta,
and W. F. Phillips, of Chipley, Fla., for plain-
tlfC in error. Lowndes Oalhoon, of Atlanta,
for deCudant in error.
BUSSELL, J. [I] The plalnUtt In erro^
insists that the judge of the Buperior court
erred in snstalning die certiorari and In
thereto setting aside a second consectrtive
verdict In his favor. It ia, of coarse, well
settled that after two or more consecutive
verdicts the evidence is to be taken by the
reviewing coart, whether on certknri or
writ of wror, most strongly in fHvor at tbe
prevailing party. Windsor r. Orwo, TO Oa.
635, T S. B. 141. In Harrlgan t. Bailroad
Co., 84 (3a. 708, 11 S. B. 966, it waa held that
the court erred in settta^ aside the verdict
in ftivor of the plaintlfC becanae no reversible
error waa committed on the trial, and the
evldoice supported the verdict ; bat that was
the third verdict In the ^alntUTs tevor. In
the instant ease tbe juctee of the snperlor
court sustained the petition for ctftlorart
and remanded the cause for a tldrd trial;
and, while the judge did not assign any
special reason for the judgment. It Is plain
that another trial was granted to the peti-
tioner in certiorari because of ihe admission
In tbe justice^ court of certain testimony
which the judge of the superior court deemed
to be i^adldal to tbe defendant's right to
a fidr and legal trlaL Two Queattona, ther**
fore, are preaMited by tbe preeent writ of erf
ror: a) Was tb» eildenee as to tbe rece^
(to wbidi ttmely objection waa oflteed ia the
justice court) an error? And (2) if so, was
•ror oUur eaaaa aae nu* topio and Metloa MVHBKR la Dm. Dts. a An. Die Kar-^ti^^lV''^^'^
26a
78 aOVTBEAS'SmS BBPOBTDB
it nieh an vnot w required or authorised
the Kraut of a third trial of the case?
[1] As was said in Albany Pfaomhate Oo.
T. Hngger, 4 Ga. App. 771 (6), 62 8. E. 633, It
has long been the role, when the admUei-
bility of eridoice Is donbtfol, to admit it and
leave Its welglit and effect to be determined
1^ tiie Jury. If the trial court Is In doubt
as to the admlssibUltT of certain erldenee,
the safw rule always Is to admit It But
bi the presei^ case it seems to be clear that
the testimony to which the defmdant In the
lowCT court objected was inadmissible. Per-
sonally we are inclined In every case to ap-
Iffore the opening of every avenue to truth,
and the lettli^ in of all the light,- however
tetiae or brilliant It may be^ which can 11-
lomlnate the ISsne ; but under the well-con-
sldered rulings of the Supreme Oourt In
Prlntup T. Biitchell, 17 Oa. 558, 63 Am. Dec.
25% and Clarke t. Alexander, 71 Ga. 505,
Hkoe can be no question that the justice's
court erred In admitting (as corroborative
of the testimony of the plaintiff, which was
disputed and contradicted) what purported to
be written evidence of the date of a payment
as evidenced b; an alleged rec^pt of a third
person who was not a party to the cause.
If the receipt was given by the printer on
the day alleged, he was a competent wit-
ness to that fact, while the receipt Itself was
nothing more than hearsay (reduced to writ-
ing), a statement of a competent witness, and
yet not under oath. In the case of Prlntup
T. Mitchell, supra, the Supreme Court held
that the receipt of one McAmls, which stated
that Prlntup had paid him ^2S on account
of a spedflc matter Involved in the case,
was properly excluded by the trial Judge for
the reason that, UcAmls himself being a
competent witness, his receipt was hearsay.
In OLarke v. Alexander, supra, a letter from
Mr. Foucb^ to Clarke was held to be, as to
Alexaoder & Wright, res Inter alios acta and
hearsay, and the ruling of the trial court ta
excluding It was approved upon the ground
that Foudifi was a competent witness. So
in this case, as the printer was a competent
witness, the rec^pt which he had given to
Homsby should have been excluded upon the
objection offered thereta
[2] Being constrained to hold that it was
error on the part of the trial court to permit
the Introduction of the printer's receipt, we
are not pr^)ared to hold that the error was
so slight as that If should have been disre-
garded by the Ju^e of the superior court,
and that he should not have regarded It as
of sufficient importance to warrant another
triaL The issue between the parties was
dearly defined, and the evidence was strong-
ly conflicting as to a vital point In ttie casft
WritiugB are naturally regarded with such
respect, and the contents of a genuine writ-
ins ere generally con^dered so much more
accorate and reliable than mere memory that
It cannot be asserted as a fact that the writ-
ing which corroborated tbe piwiwHfp as to the
date when he had the cards i^ted did not
throw the scales in his favor in this close
case. Though, u a general rule of law, bear-
say has no probative value, this principle la
lik^ to be overlooked by a Jury whok the
court permits the introduction of such testi-
mony. And when hearsay is admitted after
an objection thereto has been overruled in
the Jury's presenoe, the Jury, In obedience
to the ruling of the court, 1b compelled to
consider it In any case in which hearsar In
admitted over objection and the court gives
no specific instruction as to its application
as an exception to the general rule, the jury
may tail to {woperly daasi^ It and may
treat it as competent evidoicfc
We find no tfxor In the Judgment of tbe
supu-lor court In sustaining tbe certiorari
and in ordraing a new trial The tntroduo*
tion of Incompetent evidroce la erroneous,
and ordinarily the error must be presumed
to have Injured the losing par^. Benoe it
cannot be held tiwt tbe Judge of the superior
court erred In setting aside even a second
concurrent Terdlct and ordering a trial In
whl6h an error which may have controlled
and must have Influenced the previous find-
ing of the Jury will enter.
Judgment affirmed.
(U Ga. Amf- TOO
ITLOOD T. STATU. (Mo. 4,820.)
(Cionrt of Appeals of Ctoorgia. Msy 20, 1918.)
(Stfttaiiu by the Oourt.)
1. Gbhonai. Law (| 938*) — New Tbial —
GaouRDS.
The testimony was not lufficient to ex-
clude every reasonable hypotheslB save that of
the guilt of the accused, and a new trial should
have been granted.
[Ed. Note.— For other cases, see Criminal
Law Cent. Dig. Si 2306-2316, 2817; Dec. Dig.
S »38.«]
fAdHtiomat SyRo&iu fiy Bditoridl Btaff,)
2. Intoxioatino Liquobs (S 224*)— Cana-
HAI, PsOBBOUnOIf— BUBDEN OF PBOOV.
In a prosecutioa for selling Intoxicating
liquors the burden is on the state to prove a
aale, indnding the racdpt or promlae of a con-
■iderati<m, and to negauve the Idea of a gUt or
loan.
[Ed. Note.— For other cases, see lotoxicating
Uouors, Cent Dig. H 275-281; Dec. DigTl
224.*]
3. CaiinNAL Law (S 652*)— CiKOUliSTAimAL
Evidence— SuFFiciENCT.
In a prosecution tor selling intoxicating
liquors the sale may be proven by circum9tan<-
tial evidence, but when such evidence Is re-
lied on it must be Inconsistent with defend-
ant's InQocence
[Hd. Note.— For other cases, see Criminal
Law^Cent Dig. (t 1257, 1269-1262; Dec. Dig.
Brror &om Superior Court, Murray Oonn-
ty; A. W. Flte, Judge.
Bill Flood was convicted of selling Intoxl-
•ror «tb«r ouw Me same tapla and MtUoa NUUBBB la Dm. Dig, tt Am. Dig. Key^ot, •
FIiO'oi> ▼. BTATB
269
catliifir Uqaora, and be brlngii ezror. B*'
versed.
W. E. Mann, of Dalton. for plalDtlff in er-
ror. Sam. P. UaddoXf SoL Oen^ of Dalton,
for the State.
POITLE, J. accused was convtcted
of sellins Intoxicating llquora, and his mo-
tion for a new trial was overmled. The
motion Is based npon the general ground that
the verdict Is contrary to the evidence, and
upon a ground containing alleged newly dis-
covered evidence.
[1] Only one witness to material facts was
sworn In behalf of the state, and his testi-
mony Is substantially as follows: In company
with four other persons the witness went
Into the mountains to look at some timber
land, and came bade by the house of the ao
cused. They all stopped and talked a while,
and all went away except the witness, who
stayed at the house to get some whisky.
While the accused was looking for something
to pnt the whisky In, the witness went out
wbere one of his companions was, got a dol-
lar from him, and came back to the house
and got a quart of whisky from the accused.
Ue asked the accused what the whisky was
worth, and the accused, readied that It was
worth $1. The witness put the money on
the table, and the accused told him to "take
that dollar up" ; that it might cost him $500.
The witness took np the money and. after
a while, laid it on a shelf. The accused
again told the witness to take the money. In
reference to the money the witness testified
as follows: "I do not remember whether 1
took it or not, but rather .think I left
It there. I hadn't been to dinner, and had
been drinking some. Hy mind Is not clear
about It, but my recollection Is that I left the
money there. I did not give it back to Mr.
T^son. I would not have kept IL I felt
Id my pocket the next morning and did not
have It That was all the money I had.**
The person who gave the witness the mon^
wag In the state of Arkansas at the time of
the trial. This person and the witness went
to the bouse of the accused the next day
after this transaction took place and got
some whisky. The witness did not then see
the accused, but his companion went in the
house, stayed about 30 or 40 minutes, and
returned with a gallon of whisky. The ac-
cused, In his statement at the trial, claimed
that be rinsed to accept the dollar; that
one of the men In the party had returned
home on a visit, and that be told the witness
tiiat he was giving him the whisky for his
old schoolmate; that he told the witness to
take the money, and the witness picked It up
and went away with It; that be was not at
home the next day, and did not know about
anybody getting any whisky from his boose
at that time. The alleged newly discovered
testimony counted of the afRdavlt of the
witness for the state, npon whose testimony
tlw ooavlctton zested, that after tbe trial he
was dlscnsstng the matter with Ma wife and
asked her about the dothes be wore the day
he went to tbe house of tbe accused, and If
he had on a vest at that time. His wife re-
plied that he did wear a vest that he bad
bought from a store In Dalton. She there-
upon took the vest ont of the trunk and
found therein a silver dollar. Affiant says
that thia was tiie same dollar that he of-
fered the accused, and tbat after finding this
money he now swears that he did not leave
tbe money wltii tbe accused, and he Is cer^
tain that the accused did not accept any mon-
ey from him. The accused makes an afi3da-
vlt that he knew nothing about tbe allied
newly discovered evidence until after the
trial, and could not have discovered the same
by the exercise of reasonable diligence.
There are no affidavits in reference to the
character of the affiant, nor any affidavit
from the attorney of the accused, and for
this reason the ground of the motion is not
technically complete. But, since the state
iiad offered tbe witness and thus vouched
for bis credibility, and since the witness
himself did not at tbe time of the trial kndw
the new facts, an affidavit of ignorance on
the part of tite defendant's counsel would
have added no force to the ground.
In the light of the testimony of the state,
however, we feel constrained to find
tbat tbe ends of Justice require a new bear-
ing. In all criminal cases tbe guilt of tbo
accused must be established beyond a reason-
able doubt . It appears from the testimony
of the state's witness, aside from tbe affi-
davit in the motion for new trial, that the ac-
cused declined to accept pay for the whisky.
Tbe witness does say bis mind Is not clear
whether he left tbe money there, but bis
recollection Is that he did; and he bases this
recollection largely upon the fact tbat he did
not give tbe money back to bis companion
from whom he had obtained It, and did not
find it in his pants pocket tbe next morning.
We have several times held that, where one
obtains whisky from another and leaves
money In a place accessible to the person
furnishing the whisky, tbe Jury would have
the right to infer. In the absence of some-
thing to the contrary, that the money was
accepted and appropriated by the owner of
the whisky. See Rucker v. State, 77 S. B.
1132. In the present case, however, the evi-
dence Is undUvuted tbat tbe accused refused
to accept tbe money, and there Is no evidence
that he afterwards appropriated It to his
own use. The Jury evidentiy thought that
a sale had been consummated, and were nn-
wUllng to accept tbe explanation as to the
circumstances under which tbe whisky was
obtained. The conviction was based wholly
upon the testimony of one witness for the
state, and since It was nowhere contradicted
the Jury must bave accepted It in whole, or
rejected it altogether. They were not at
liberty to treat tbe testimony of the witness
as tbey could the unsworn ^^rtajm^^^^
27a
78 SOUTHEAffTHIRlV REPORTER
accnsed— that Is to say, believe It In part and
reject It In part — unless the part rejected
was contradicted or In some way abown to
be untrue. It was not absolutely essential
In the present case that the person who made
the affidavit In reference to the newly dis-
covered evidence should have been supported
as to character, because he was the very
same person who had been vouched for by
the state and upon whose testimony alone
the conviction was obtained. The case Is
a peculiar one. The witness must be assnm-
ed to have been honest and tmthfnl. He sub-
sequently discovered the fact which convinc-
ed bim, and which would convince any Jury,
that he was mistaken in his original testi-
mony. We by no means Intend to hold that
the trial Judge should In all cases grant a
new trial simply because tbe state's witness,
after the trial, makes affidavit that he was
mistaken as to a material matter. But it Is
extremely donbtful if tbe conviction was au-
thorized without reference to the affidavit
of the witness made after the trial.
[2] The burden Is on the state to prove a
sale, and to negative the Idea of a gift or
loan. Before a sale can be shown, It must
appear tbat something was received or prom-
ised Id consideration for the delivery of tbe
Intoxicating liquor. If tbe state attempts to
show that tbe sale was for cash, it must
prove that money was offered and accepted.
[3] This hiay be shown drcumstantially,
but when drcumstancea are relied on they
must be inconsistent with lnnocenc& In the
present case they were by no means conclu-
sive of the guilt of the accused. The trial
Judge may be acquainted witb the parties,
and from his knowledge of tbem he may
have had reason to believe that the explana-
tion of the transaction by the witness, who
was friendly to tbe accused, was a mere pre-
text to enable him to escape the conse-
quences of his act; but we must view the
case Di>on the record as presented to us, and
do considering It we feel constrained to
order a new trial.
Judgmrait reversed.
tU Oa. App. 706)
GATES V. STATE. (Ko. 4,64a)
(Court of Appeal! of Georgia. Hay 20, 1913.)
fBvUchut by the Otmri.)
1. SUFFICIBNOT OW EVIDENCE.
There Is no complaint that any error of
law was committed on tbe trial. The evidence
was sulScieDt to authorise the jury to infer
that tbe accused was carrying the pistol in
gaeBtion without having obtained the license
required by law.
2. Weapons (| 6*) — CABBTXira Weapoiis —
EIleuents or Offense— Ownership.
Upon the trial of one accused of 'riolating
the statute forbidding tbe carrying of a piBt<^
without a Ucenie, tbe ownership of the pistol In
question Is Immaterial, except in so far as tbe
circumstances of ownership may tend to illus-
trate the guilt or innocence of the defendant
The statute may be violated as well by one
carrying the pistol of another as if the {dstol
carried were his own.
[Ed. Note.— For other eases, see Weapons,
Gent Dig. S S; Dec. Dig. | 6.*]
8. Cbiuinaz. Law (| 938*) — New Tbiai. —
Gbodnd»— Newly Discovsbed Bvidkncb.
Tbe alleged newly diacovered evidence
might by the exercise of proper diligence, have
been obtained at the trial.
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. H 2S06-231Sh 2817; Dec.
Dig. I OSS.*] ^ " .
4. GbdohaIi Law (S 9SS^ — Niw Tbiai> —
GBouNDa— NEWI.T Discovsbed BviSEifoi^
Chabacteb or Witnesses.
The witness by whose testimony it Is stat-
ed the alleged newly discovered fact could be
proved testified In the trial now under review,
and, according to the record, knew at that time
as much as he now knows in regard to tbe
facts in the case. This case, therefore, differs
as to its facts from the case of Flood v. State,
78 a E. 268, this day decided. Forthermor&
the judge did not err in overruling tbe ground
of motion, based on newly discovered evi-
dence, for tbe reason that the character of the
witnesses, whose affidavits were produced In
support of the ground, was not vouched for, as
required by law.
[Ed. Note.— For other cases, see Ctimisal
Law, Gent Dig. If 2886-2408; Dea Dig. |
»58.*J
Error from City Court of JefEerson^e;
L. D. ShumoD, Jadge.
Horace Gates was convicted of canylos
a pistol without a Ucoiw, and be brines er^
ror. Affirmed.
Jas. D. Shannon and B. A. Harrison, both
of JefTersonvllIe, for plaintiff In error. H.
F. Griffin, Jr., Sol, of JeffetaonvUIfl^ tot fbm
State.
RUSSELL^ J. Judgment affiimed.
(U Oa. App. TO)
. HcBOLLAN v. WILCOX. (No. 4.7C6.)
(Court of Appeals of Georgia. May 2&, 1918.)
(8yllabu$ &v the Court.)
Husband and Wm (i 187*)— Wm's Fbop-
KBTV— Sale vr Husband— Action bt Pub-
CHA6EB.
In a suit to recover damages for breach of
contract tbe uncontroverted facts were as fol-
lows: Tbe defendant made a written contract
for a named consideration with the plaint,
agreeing thereby to sell to bim on specified
terms certain real estate described in the writ-
ing. Tbe real estate was not owned by the
defendant when he made tbe contract but tiie
title thereto was in bis wife. The wife bad no
knowledge of the contract, and did not author-
ize her husband to make it and did not In any
manner ratify or adopt it These facta were
known to the plaintiff when he took tbe con-
tract The wife repudiated the contract and
refused to sell her real estate to tbe plaintiff.
Beld, tbat a verdict for the defendant was de-
manded; the plaintiff not being entitled to re-
cover even nominal damages.
[Ed. Note.^For other cases, see Husband
and Wife, Cent Dig. » 722, 723; Dec Dig. |
187.»]
•For oilier eaass sm same toplo and smUod NUMBER in Dm. Dig. « Am. Dig. Kil||^nKc8SrliaA«k^^|^ateaM
Error from Saperior Court, Jeff Davla
County; C B. Conyers. Judge,
Action by A. L. IfcHUIan against A. 7.
Wilcox. Judgment for defendant, and plain-
tiff brings error. Affirmed.
J. G. Bennett, of Bazleharst, and O'Steen
ft Wallace, of Douglas, for plaintiff In er-
ror. S. D. Dell and J. U. WUcox, both of
Hazlebnrst, and F. Willis Dart, of Douglas,
for defendant In error.
BILL, a J. Judgment affirmed.
(13 Ob. App. 708)
ANDERSON t. ANDEBSON. (No. 4,668.)
<Coort of A^eals Georgia. May 20. 1913.)
(BvllahuM by t\e Court)
1. Assignments (| 41*)— Bioht or Aonon—
ToHT— What Constitttes.
Where a widowed mother had a cause of
action against a railwajr company to recorer
damages for the homicide of her son, and she
entered into a contract with her children, by
the terms of which she agreed, in consideration
of advances made by them to her tor the pur-
pose of defrayiog the expenaoa of i^osecuting
her cause of action, to share equally with them
in any recovery she might obtain In her suit,
this was not ao assignment of the right of ac-
tion for the personal tort.
[Ed. Note. — For other cases, see Assinuneots,
Cent. Dig. St 76, 77; Dec Dig. { 41.»1
2. Champertt akd Maihibnancb (I 4*)-— Ex-
istence — PaSTXBS IN INTCBBBT — "CBAII-
PEBTT."
The contract made by tbe ehildrea with
the mother as indicated in tbe foregoing head*
note is not one of maintenance or chaoiper-
ty. Maint^niDg the suit of another is lawful,
if the person so maintaining has any Interest
in tbe snit, however ren^ote, vested or contin-
gent, or is connected with the suitor by some
social relation, or by the ties of affinity or con-
sanguinity, or la under any obligation to as-
sist and aid the suitor.
[Ed. Note.— For other cases, see Cbamper^
and Maintenance, CenL IMg. H ^ 11-19:
Dec Dig. 8 4.*.
For other definitions, see Words and Phrases,
VOL 2, pp. 1046-1050; vol. 8, pp. 7698. 76^
Error from Superior Coort, Whitfield
County; A. W. Fite, Judge.
Action by G. C. Anderson against Myra
Anderson. Judgment for plaintiff, and de-
fendant beings eiTor. Affirmed.
M. G. Tarver, of Dalton, for plaintiff In
error. C N. Eln^ of Spring Place, for de-
fratdant In error.
HILL, C J. Plaintiff brought suit In a
jDStiee's court against hts mother, to re-
corer. under a written contract, for the sum
of t90JBS, being one-ninth undlrlded Interest
in 181^ which, the defendant had reoorerad
as damages for ttie homicide of another son.
The facts are as follows: Myra Andwson,
the defendant, had a son. Noble Anderson,
killed by a railway ctunpai^ in the state of
Texaa She had a cause of action for her
son's death. She had no money to prosecute.
m
the cause of action, or to pay the naceemxy
expenses of the litigation. Her nine chil-
dren, among whom was the plaintiff, made
an agreemmt with her that they would ad-
vance the money to bsr to prosecute her
cause of acthm against tbe railway company
in Xexaa and to defray tbe expenses of one
of her sons in going to Tnas to look after
tbe suit, provided th^ should share equally
with the mother In the recovery. She as-
smted to this agreemoit The mon^ was
advanced by the children, tbe son went to
Texas, suit was Institnted, and recovery bad,
and the present suit is brought by the son
to recovOT his agreed proportion of the
amount of the recovery. The Justice of the
peace sustained a general demurrer and dis-
missed the suit The plaintiff took the case,
certiorari, to the superior court; hla cer^
tiorari was sustained, and the mlt of error
challenges the correctness of the Judgment
sustaining tbe certiorari. Two avestions are
raised by the record.
[1] 1. It la contended ttiat the contract in
question was an effort to make an assign-
ment of an Intereet in a right of action for
a personal tort; and that, under tbe Code, a
right of action for a personal tort Is not as-
signable. avU Code 1910, I 3055; Central
B. Co. T. B. ft W. a Co., 87 Oa. 386, 388.
13 S. BL 620. Under the facta of this case,
we do not think that ttiere was any assign-
ment of the right of action to the children
by tiie mother for the personal tort arising
from the homicide of her son, but it was
simply a contract between the mother and
her children by whldk they agreed to ad-
vance to her the necessary means to carry
on the litigation In her own name and be-
half for the death of ber son, and to pay
the expraises of one of her sons tot the pur-
pose of aiding her In the prosecution of her
suit The suit for tbe tort was prosecuted
in Texas in the motl^er's name, and not In
the name of h«- children.
[>] 2. The second question raised is whethr
er the contract between the mother and her
children was one of maintenance or cham-
perty, and tiiertfore void as against public
policy. Section of the <31vll Code Is re-
lied upon in support of this contention. This
section Is as follows: "A contract whldi Is
against tbe policy of tbe law cannot be oi-
forced; such are contracts tiding to corrupt
legislation or the Judiciary, contracts in gen-
eral in restraint of trade, contracts to evade
or oppose tiie revenue laws of another coun-
try, wagering contracts, contracts of mainte-
nance or champer^.** Was Uie contract in
question one of maintenance champor^?
There are two essmtial elemrats in a eham-
pertous agreement: Flrrt, there must be an
undertaking by one puaon to defray the ex-
penses of the whole or a part of another's
snit; and, second, an engagemmt or prom-
ise <m tbe part of tbe latter to divide with
tbe former the proceeds of the litigation in
AKDBB80K r. ANDEBSOH
tar etber eaaea see same topio and seetlon NUHBSB la Deo. Dig. A Am. Dig. '^'''op^'IfJ^i^lM^^^^^
272
18 SOUTHBASTBBN BEPOBTEB
fbe emit It proves mocesstnL Hie Supreme
Court of thla state has fteqoently held tbat
ft contract of this cbaracter was champer-
tons and oould not be enforced. Moses r.
Bagl^, OS 6a. 283; Meeks t. Dewberry* 07
Ga. 268; Jotanson HUton. 96 Ga. 077, 23
S. B. 811. Champerty, maintenance and bar-
ratry were defined and denounced as Undred
ofl!enses very early In the history of English
law. 4 Bla<^ Com. 180. Many states of this
Union have statotes against such practices,
as hi^ly injurious to the peace of sodety,
and as offenses which Interfere with the
course of public Justice. Blackstone^ in his
Commentaries, speaks of the offense of
champertr as one which "perverts the pro-
cess of law into an enc^e of ot^esslon."
It is, liowever, a well-defined exception to
the law against maintenance or champerty
ttiat whoe one has a pecuUar interest in a
snit, or is related by the ties of consanguinity
(V afllnlty to ^tber of ttie parties, he may
rlgjitfnlly assist In the prosecution or defense
of suCh suit, either by famishing counsel or
contributing to the expenses, and may, in
order to strengthen his position, purchase
tlie Interest of ftnottier party, in addition to
his own, and that agreenents of this diar-
acter and under these circnmstances are
valid. See notes appended to the case of
Thallhlmer v. Brlnckerhoft (N. T.) 16 Am.
Dee 908, 819. In the principal case It was
held by the Court of Appeals of' New Tork
that maintaining the suit of another la
lawful, if tlie person so maintaining has an
biterest in the suit, vested or contingent, or
is connected wlUi the sultM In some social
relation, or by the ties of affinity or con-
sanguinity, or In the relation of landlord and
tenant, master and servant, or attorney and
client, or is moved by the impulse of charity ;
and In that case a contract between an heir
and bis brotho^ln-law, tqr which the latter
promised to Incur a half of the expenses In
ai^ action wbi<ih was about to be brought, in
consideration at a fourth of the property to
be recovered, was h^d to l>e valid, and that
if the suit were brought and compromised,
and the property conveyed by the heir, the
broUier-ln-law might, in an action of In-
debitatus assumpsit for num^ had and re-
celved, recover his Share of the proceeds.
See, also, SmaU v. Mott, 22 Wend. (K. YJ
403.
From these decisions the rule is dedudble
that a champertous agreement Is one made
by a stranger to the subject of the litigation,
who has no interest therdn in law or in equi-
ty, or any ttspectancy by the ttei ot blood or
afllnlty, or who la under no filial or social ob*
ligation to assist or aid In the subject-matter
of the litl^tion, but who agrees to assist,
either ftom a pecuniary motive solely, or
for the purpose of embroiling his neighbors
in litigation, or to carry the suit through
the different courts upon a stipulation that
he shaU recdra a ehare ot the fruits of Oia
lltlgatkm u a reward for bis asadatanee;
and this character of contracts cannot be
enforced, because they are against public
policy.
In the present ease the mother had a right
of action fw the death of her son. She was
unable to prosecute her action. It was the
duty of ber diildren to asslBt her in that
proeecntltm, and In recovering compcmatlon
to whldi she was entitled for Oi» death of
her soi^ lUs duty was upon tb.% dilldren,
not only on account of the r^tionshft* whlclL
existed, but because there was really a com-
mon Interest (although it may have been
contlngoit to a lai^ extent) of expectancy
In the cause of action. Any interest in tlw
cause of acti<Hi, however remote^ would free
the cmtract fnun the taint ot being diam-
pertous ; and these children had an intereat
In whatever might i>e reoovered by the motli-
er, although that Intwest vras one of es-
pectancy, arising from the fact of a possible
contingency of inheritance. The reason why
diamperty is deiounced bf tb» law and by
ttie Code is that a contract of that (Aiaracter
is i^inst pubUe policy. It certsinly can-
not be against public policy for the children
of an Indigoit moHier to aid her bi the
prosecution ot her Just rights under the law.
Nor is such contract rendered chanqiertous
because, aa a part of the agreuuent whidt
the children made with the' mother. In tflie
event of a recovery aOie was to divide the
proceeds OQual^ vrlfh them. While U ml^t
have bem their filial duty to make the ad-
vances to the mother without any eompen-
sation, yet Uie motlier had tlie il^t to re-
imburse them for such advances and assist-
ance, by agreeing to share with them equally
In any recovery wbldi die ndght obtain ; and
the diBdren had the right to malce wltb the
mother a contract to reimburse them for the
money which they had advanced. For these
reasons we think the contract In this case,
made by the dilldren with the motber, was
in no soise a contract of maintenance or
champerty. It was for a vaUd consideration
and enforceable, and Onanton the Judge ct
the superior court did not err in sustaining
the COTOorarl.
Judgment affirmed.
Digitized by Google
SX PAKTB BliAOK
373
<Hi H. a on
Efac parte BLAOEL
(Snpreme Court of North Carollu. May 28,
^ 1»1S.)
1. Criuinai. Law « 1216*)— PDHismraNT—
CONCUBBEItT AND SlTCCESSITB SENTEnCKS.
A aentenee of imprisonment may be gireo
OB each enoceseive conviction of accoBed, and
each sacceMive term may commeoce on toe ez-
fiiration of the term next precedins; but the
stter senteace must state that the term shall
begin at the ezpiraticm of the former eeiitaiica
or the sentences will run ooncnrrently.
[Ed. Note^For other casee, aee Orimioal
Law, Cent Dig. H 8S10-8319; De& Dig. {
1216.*]
2. CRnuNAZ. Law (1216*) — PuirumiXNT—
CONGUBBMT AND SUCCESSIVE 8ENTEMCB8.
Where accused convicted of crime while at
large under a conditional pardon appeared per-
■imally in court and withdrew bia appeal and
anbmitted himaeU to the smtenee not stating
that it should begiB at the ezptratlon of the
prior aentence, and the conditional pardon was
revoked and he was taken into custody, the two
sentences ran concurrently, though Uie court
failed to enter on Its recoraa the wiUidrawal of
the aweaL
[Ea. Note^For otiier eases, see Criminal
lAw. Cent Die. H SSlO^SnO; Dec. Dig. i
1218.*]
Ai^>eal from Saperior Court, Swain Coun-
ty; Carter, Judge.
Proceeding for habeas oorpoa by W. P.
Black fbr bis discharge from Imprisonment
From an order remanding the petitioner, he
appeala Rerersed, and petitioner discharged.
W. P. Brown and J. Scroop Styles, both of
Aabevllle, for appellant 0?be Attorney Gen-
eral and the Aaalatant Attorney General^ for
the Stata
BROWN, J. The p^tloDer, Black, was
brought boCfin the Judge In obedlemce to a
writ of habeas corpus by the sheriff of Bun-
combe coDiitT* to try the legality of th« im-
prisonment of the petitioner, who was then
In prison by Tirtm of an order made by his
hcmor B. F, Long at the DecembCT apecial
tenn, 1812, of the criminal court ot Bun-
combe comtj. At the Norember tem^ 1908,
of tha snperlOT court of Bnnoombe eonnty,
the petitions was found galit? (tf a nuisaiK^
and was sentenced to a torm of 22 mmths on
the public roads of Buncombe county, from
vtbUcb Judgmmt he took an appeal to the Su-
preme Court The Ju^moit was afltrmed by
the Supreme Court and petitioner was taken
In execution on said Judgment on the 2d day
of Jone, 190ft. On the 18th day ot JanuuT,
1910, p^tioner was granted a conditional
pard(HL At the July special term, 1911, and
while petitioner was at large by Tirtue of
said oondttlfflial pardon, he was tried for
keepli^ liquor for sale In Buncombe county,
was convicted, and sentenced to a term of 12
months on the public roads of said county,
from which Judgment he gave due notice of
ai^eal to the Suiovme Court, and entered In-
to the appearance bond required the court
pending such ai^wal, was rddased turn cus-
tody, but the petitioner fld not xnoseente the
ap^eaL On the 4tti day of August, 1911, pa-
tltionw was taken bi custody upon the Ctov-
emor's revocation of the conditional pardon
aforesaid, and entered upon the service of
the remainder of his said original term of 22
montbSL At the criminal term of superior
court of Buncombe county which convened
on the 14th day of August, 1911, petitioner
appeared In open court and gave due notice
of the withdrawal of his appeal from the last
conviction aforesaid and announced his read-
iness to serve the term Imposed upon said
conviction; petitioner being at the time In
custody and serving the sentence In the oth-
er case. The presiding Judge bad no entry
made on the docket of August term, 1911, of
the withdrawal of the appeal and of the sub-
mission of the prisoner to the Judgment and
sentence rendered at July special term. It la
admitted and the Judge flnda as a fact that
if the sentence in the two cases runs concur-
rently, the prisoner baa served the fuU term
In both cases.
[1 ] It seems to be well settled by many de-
cisions and with entire uniformity that, where
a defendant Is sentenced to Imprisonment on
two or more Indlctmenta on which he has
been found guilty, sentence may be given
against him on each snccesidve conviction;
in the case of the sentence of imprisonment
each successive term to commence from the
expiration of the term next preceding. It
cannot be urged against a sentence of this
kind that it Is vtdd for uncertainty ; it Is as
certain as the nature of the matter will ad-
mit But the sentence must state that the
latter term Is to begin at the expiration of
the former one; otherwise It will run concur-
rently with it Am. & Eng. Enc. of I^aw (2d
Ed.) vol. 26. pp. 807, 808. It Is absolutely ee-
BentlaJ that the last sentence shall state that
the term of Imprisonment is to begin at expi-
ration of former sentence In order to prevent
the prisoner from serving the two sentanceB
concurrently with each other. U. S. t. Pat-
tetaoa (O. C) 29 Fed. 7T5; In re Ja<±8on, 8
MacArtbur (D. O) 24; Fortaon t. Blbert
County, U7 6a. 149^ 4S & 482 a90S); lOx
parte Gafford, 2S Nev. 101. 67 Paa 484, 89
Am. St 608 ; Bz parte Hunt; 28 Tex.
App. 861, 18 S. W. 14Si
[2] Tbe fiaet tbat no entry was made on
the records of the court at August term of
the withdrawal at the appeal Js immaterial
It is found as a fact that the prisoner ai>-
peared in ooort in .person at said term and
through his counsel withdrew his appeal and
submitted himsdf to the sentence of tlw
court It was tibe duty of the Judge to have
then directed the pr^ier entries. The prison-
er had no cmtrol over the records and did
all the law required of him. The oversight
of the Judge cannot prejudice the prksonet's
rights.
' *Vin: miter oassK see same tuple Sod siotloii NUHBBR iB Deo. DIs. ft Aob
78S.E^18
274
78 80UTHBASTHRN RBFOBTEB
(M.G.
As the second senteace failed to state that
It was to begbi at the uplratlon of the flrst,
the two aaitences ran concurraxtly.
The prisons is discharged.
Berersed.
(US N. C. 8»8)
BOQGS T. GCLLOWHEB MINING GO.
(Snpreme Court of North CaroHna. May 2S,
1913.)
1. DEF08ITI01IB a 68*)— SlOMATUBX BT WXT-
HESH.
Beviial 190S, I 1052, proridioK for the
taking of depodtiona, does not expressly require
that a witness subscribe to his deposition, and
a witness' signature is not essential if the depo>
^tion be otherwise sufficient
[Ed. Note.— For other cases, hs DeposltionB,
Cent. Dig. U 108-160; DecTDig. |
2. Mastbb and Sibtaht (i 270*)— IH JDBm
TO SBBTAm— BVIDBNGX— SUBeEQCaNT BE-
PAIBB.
While as a rule evidence of subsequent re-
pairs by the employer is not admissible to es-
tablish negligence, such evidence may be adous-
slble to show the conditions existing at the
time of the accident, and to show whose doty it
is to make the repairs when that is in ieeae.
[Ed. Note.— For other cases, see Master and
Serrant, Cent Dig. H 818-^. 832; Dee. I>ig.
I 2TO.*]
Appeal from Superior Court, Jackeon
County; Ferguson, Judge.
Action by J. Frank Boggs against the Cul-
lowhee Mining Company. From a Judgment
for pl&lntlff, d^endant appeala.. Affirmed.
Bee, also. 76 S. E. 717.
There was allegation with eridence on the
part of plaintiff tending to show that on
March 17, 1810, plaintiff, In the course of his
duty as an employ^ of defendant, was en-
gaged in operating a damp car over defend-
ant's tramroad and received serious physi-
cal injuries by reason of a defective brake
and brake rod on said car, and that the com-
pany had been notified that said brake and
rod, etc., were defective and likely to cause
Injury. There was evidence on the part of
defendant tending to show that plaintiff, at
the time, was doing the work by contract and
was charged with the duty of keeping the
tools and implements In proper repair, and
further that plaintiff had assumed the risk
of the alleged defects, and farther that he
was gall^ of contributory n^llgence In the
way he did the work and operated the car.
On Issues submitted, there was verdict for
plaintiff. Judgment on the verdict, and de-
fendant excepted and appealed.
Coleman C. Cowan, of Webster, for appel-
lant Walter E. Moore and Alley ft Buchan-
an, all of Wtfwter, and 8. B. Shephod, of
Baleigh, for aweUeei
HOKE, J. We hav* cax^Uy oauntaied
the record and find no reversible error. The
charge of the court on the different ques-
tions presented is In accord with , our deci-
sions, and the Jury having accepted the plain-
tiff's vendon of ttie matter, an adlonahle
wrong is clearly established.
II] It was contended that the Judge com-
mitted error in admitting for plaintiff a dep-
osition of the witness H. A. Hein, when the
witness had not signed the same. It la de-
sirable always tl»t the witness should aub-
Bcrlbe the deposition; bat the statate does
not seem to require Oils, and, on authority,
this Is held not to be an essential, if the dep-
osition Is otherwise regular and satisfacto-
rily identified. Bevlsal 1805, S 1602; Mazphy
V. Work, 2 N. O. UXt; Butherford Nelson,
2 N. 0. WH', Uonlson Hnrgrar^ 1 Serg.
ft B. (Pa.) 201.
[1] It was farther Insisted that his honor
erroneonsly .admitted evidence of "repairs
done to the car by defendant after the occur-
rence, and, with a view of continuing the
work, overhanllng the car and putting In
new and heavier brakes, etc." Oar dectsl<nia
are to the effect that evidence of snbsequent
repairs are not, as a general rale, admissible
as tending to establlsb negligence or an ad-
mission of it by the employer. TUe v. Thom-
asvUIe. IBl N. C. 281, 6S EL B. 1007; Myers ▼.
Lumber Company, 128 N. C 252, 89 S. E.
900; Lowe T. Elliott, 100 N. a 681, 14 S. S.
51. There are several recognized exceptions,
however, one being when evidence of the
kind In question is broni^t out in Showing
"conditions existent at the time of the ac-
cident," and auoUier 'Vhen the evidence
may become perUnoit on the question of
whose duty it Is to make the repairs.** 20
Cyc; p. 618; Blevina t. Cotton Mills, 150 N.
a 483, 64 S. E. 42a In the present cam, the
evidence offered was chiefly that of the wit-'
nees Jesse Brown, who succeeded plabiUff
In the work, and the teetiniony received,
among other things, was to the effect that,
Just after the injury, the car was overhaul-
ed, the rod molded. In a way described, and
Btrtmger brakes added, etc., and this Wfffk
was done by the company's bladtsmlUi and
by direction of the snperlntendent and gen-
eral manager.
On the record, there was direct Issue made
between these parties as to whose duty it
was to teep the car In proper repair and,
without deciding whether the conditions pre-
sented would make the evidence competent
under the first of the ezoeptlonB above stat-
ed, we are clearly of opinion that it came
within the second, and was therefore proper-
ly admitted.
There wwe a good many exceptions to the
rtfnsal of the court to glTe certain prayers
for instructions by defendant; but to the
extent Justified by the facts In erldmce thsy
were sufficiently embodied in the general
diaxge of the court, and, as heretofore stat-
ed, after careful examination, we find no
ezrOF to defendant's prejudice that would Jus-
tify us In disturbing the resnlts of the tirlaL
The Judgment is thwefore affirmed.
' No error.
•For oUwr «aM tppki and -oUoo yuMBattla D«». Di«. a Aa. Pis. K^^rT^ftfgyiyi^y^^^i^ll
N.O)
XiUNSFOBDS T. AUEZANDBB
275
(lO N. C. 5X9)
LUNSrORDS Bt aL t. ALEXANDER st aL
(Sivrane Oonrt of North CaroUu. May i
i9ia)
1. Afpkaz. and Euob a 899*>-AFFEaL Bono
— NioBsairr.
In the absence of an affidavit for leare to
appeal witbont bond, an appeal must be dla-
missed where a part; neither gives the appeal
bond nor makes a deposit In Ueu thereof.
[Ed. Note.~~For oUier cases, see Appeal and
Error, Cent Dig. IS 2(^ 2064-2070, 2085,
2086, 8127; De&bfg. J895.*]
2. Appkai, ahd Ebbob (i 885*}— Dibmusai^
BBinBTATBMENT.
Where appellants cave no appeal bond, and,
vhen Uie ease was reached and appellees moved
to dismlBB, appellants* raldent counsel did not
offer to make a deposit in lieu thereof, the cause
will not be reinstated upon a showins that the
clerk of the Supreme Court was absent and did
not advise appellants' nonreiddeDt counsel as to
0ie time It woald be reached.
[Ed. Note.— For other cases, see Appeal and
Error. Cent Dig. U 2058. 2064^2010, 2086.
2086, 3127; Dec Dig. } 395.*]
8. Afpbai. and Ebbob (S S85*>— FxLnva or
Appeaz. Bono— Dutt or Goukbbl.
Where the providing of an appeal bond la
left to the counsel, he is acting as asrent of the
appellaBts and not as connseL and nis neglect
is the neglect of the principal: therefore, the
living of an appaal oond being a condition
precedent, It la no ezcose to show that the fall-
are to file one was due to the negligence <tf oonn-
seL
[Bd. Note.-~For other cases, aee Appeal and
Error. Cent Dig. JS 2068, 2064-2(m>, 2085,
2086,3127; Dec Dig. | 395.*]
Gaveat to a will by Nancy Lonaforda and
oflkWB against Freel H. Alexander and oth-
ers From a Judgment for defendaots, plain-
tiffs appealed, and the appeal was dlsmisaed
on defendants' motiotL On mo Hon to rein-
state. Motion denied.
N. T. Gnlley ft Son, of Wake Forest, and
McNeill ft McNeill, of Lambertou, for plain-
tiffs. T. C. Bowie, of Jefferson, R. A. Dough-
ton, of Sparta, and B. I*. Ballou, of Jeffer-
son, for defen^mti.
. PER CURIAM. Motion to reiostate.
[1] When this case was reached In r^Iar
order for argument, on motion and by consent
of counsel, It was set for hearing for the end of
the Fourteenth district It vras again reached
under this order on May 8th, and at request
of one of plaintiff's counsel it was laid over
till an hour that would suit the convenience
of said counsel. When reached the defend-
ants moved to dismiss because no api>eal
bond had been filed. Counsel for the plain-
tiff was present and showed no excuse for
failure to file the bond, and did not thai
and there offer to make a deposit in lien of
bond, which he would have been permitted
to do. The case was then dismissed as re-
quired by the rule.
The decision of the conrt below la pre-
sumed to be correct Any party not satisfied
with such decision lias the right to appeal,
but only upon compliance with the condl-
tlona reqnlred by ehe statnte. Among these
conditions Is the execution of a bond, or
making a deposit in lien thereof and, If the
party la unable to do either of these fhings,
the law, in its liberality, permits him to ap-
peal without giving bond, upon filing the
affidavit and certificate and procuring leave
to appeal without bond, In the manner pre-
scribed by law. The appellant chose to do
neither of these things. He m^ht have filed
the deposit even after motion was made to
dismiss for want of a bond, but he did not
offer to do so.
[Z] The appellant now moves on the last
day of the term to reinstate the cause upcm
the ground that the clerk did not write him,
upon application, the probable date at which
the cause would be reached for argument
The derk was absent from his office by Ill-
ness, but the counsel making this affidavit,
who Is nonresident, bad residait counsel vrtio
was present when the case was reached for
argument and dismissed, and he should have
learned from Mm as to the date at wMdi
the cause would be reached. This court has
no dally calendar, and connad must attend
during the week for which the case Is set
under our rules. The clerk wonld probably
have answered the letter, tf he had been In
his office; bnt this would have heoi merely
a courtesy and not a rigbt
This court has repeatedly said that **whai
a man has a case in court the best thing
he cu do la to attend to IL" Pepper r.
Otegg, 182 K a 31«, 4S 8. EL 907. The ap-
pellant has not given this appeal such atten-
tion as entities him to have this cause re-
instated. Appellants are prone to forget that
"app^ees have iWits" as well as them-
seilTes. 0310 appellee has the li^^ it the
appeal Is not taken and prosecnted In the
manner required by the statute, to have It
dismissed, and the burden is uptm the aM>el-
lant to show that he has given the matter
proper attention and tiiat foUure to comply
with the requir^ent of the statute and
rules has been without laches on his part
If this motion, made on the last day of the
term, were to be granted. It wonld result in
keeping the appellee six months longer In
litigation. The appellant has made out no
case which aitities him to deprive the appel-
lee of the final disposition of the case which
the conrt has already maAe.
[3] Providing appeal bond, if left to coun-
sel. Is a dnty devolved on him, not as coun-
sel, but as agent of appellant, and his neg-
lect Is the neglect of the principal. Church-
ill V. Insurance Co., 92 N. a 485; Griffin t.
Nelson, 106 N. O. 235, U S. XL 414. In Co-
zart V. Assurance Co., 142 N. G. 623. 65 S. B.
411, the court says that compliance with the
"regulations as to appeals is a condition
precedent, without which (unless waived) the
right to appeal does not become potential.
Hence It is no defense to say that the n^U-
Dig. Ker-lf^'8M«yrib»¥itiM!^l^*^
*rw otmr easw see sum to^ and seettoa NVUBBR la Dee. .Dig. * Am.
78 8017THBASTBBN BUFOBTBB
gowe 1> n^^lgenoe of eoanael and not negll-
cence of the party," Thlsiiu heen dted and
approred In YMan t. SfltdieU. 144 N. O. 4T7,
8T 8. B. 167, and In many otber cmoi.
Motion denied.
<162 N. G. SOT)
A. BLANTON OROGEET 00. t. TAYLOB
et aL
(Snpreme Court of North GaroUna. Uay 22,
1813.)
1. Chattel Hobtoaoes (S 282*>— Action to
Foreclose— I N8TRUCTI0 NB— Fraud.
Where the plea in an action to foreclose a
chattel mort^lge on a stock of goods raised the
issue as to whether the mortgage was fraudu-
lent, and there was at least a presumption of
fraud justifying an answer thereto favorable to
the defendant, the refusal to submit such issue
was teversihle error.
[Ed. Note.— For other cases, see Chattel Mort-
gages, CenL Dig. 1 668; Dec. Dig. { 282.*]
2. Chattel Mobtoaqbs (| 201*)— Validitt—
Fbaud— Pbesuuptiokb.
A mortgage upon a stocb of goods, the pos-
•MsioD of wliicb is left to the mortgagor to se-
cure a deht maturing in the future, which con-
tains DO provision for an account of sales and
the application of the proceeds to the debt. Is
presumptiTely fraudulent as to existing creditors,
and, since the intent of entering into the trans-
action it immaterial, the presumption caanot ha
rebutted by showing the absence of actual in-
tent to defraud, but it may b« rebntted by
proof that there was no otMr creditor at tba
time of the registration of the mortgage, or that,
it there was, that the mortgagor owned other
property at the time, subject to the parent
of U)e debt aod snffident to pay mch creditor.
[Ed. Note.— For other caaea, see Chattel Mort-
gages, Cent. Dig. 1 S60; Dea Dig. S 201.*]
3. CHAriEL MOBTOAQES (8 192*)— VAUDITT—
Debts Contbacied Subsbqubni to Begib-
TBATION.
A mortgage npon a stock of goods, the poa-
session of which Is Isft wltli the mortgagor to
«ecure a debt maturing In the future and con-
taining DO provision for an account of sales and
the application of the proceeds to the debt, is
valid as to debts cMttraeted nibsegnent to its
f«Ki8tration.
[Ed. Note.— For other cases, see Chattel Slort-
gages, Cent Dig. H 434r-137 ; Dec Dig. { 192.*]
4. ffiviDEHOE (i 213*)— ADUISBIOn»— Teivdeh.
Under the express provision of Reviaal
1906, ( 860, a tender of Judgment not accepted
la to be deemed withdrawn and cannot be prea
In evidence.
[Ed. Note.— For other cases, see Evidence,
€ent Dig. SS 745-751, 768; Dee. Dig. i 213.*]
& Costs (I 42*)— Gsounoa or BiaHT-^Bbmor
OF TENDEB.
A tender of judgment nnder Bevisal 1906, {
860, providing tnat the tender, when not ac-
cepted, is to be deemed withdrawn, and that It
cannot be given in evidence, can only be used
after verdict before the judge to enable him to
adjudge who shall pay the costs.
[Ed. Note.— For other cases, see Costs, Cent.
DQt. H 137-164; Dee. Dig. 1 42.*]
4. Appeal and Ebbob (| 1064*) — Trial <{
243*) — IifSTBUonoNS — InoonaisiBirr Iif-
■EBUOnOIM. , .
In an action to recover the stock of gooda
-daimed nnder a chattel mortgage, where the
issue as to whettier aftCT-acqoIred goods pasr-
«d onder the mortgage was materiiil, Instrue-
tiona tbat It was to be determined by toe greater
weight of the evidence, and In another part of
the charge, without correcting such error, that
the evidence must be clear, strong, and convinc-
ing were Inconslstnt and eonstitnted revenibla
error.
[Ed. Note.— For other casei, see Appeal and
Error, Cent Dig. U 4219. 4221-4224: De?. Dig.
I^M^TrlalT &t. Dig. H BM, 665 ; Dee-
Appeal from Superior Court, Bntbnford
Ctmnty; Ferguson, Judge.
Action by tbe A. Blanton Grocery Com-
pany against J. W. Taylor and otbers. Judg-
ment for plaintiff, and defendants appeaL
New triaL
This la an action to recoTer a stock of
goods.; the plalotlfEs claiming ownership
under a chattel mortgage executed by tbe de-
fendant J. W. Taylor on January 25, 1910,
to secure a note of $100 due March 3, 1910,
In tbe form prescribed by section 1039 of the
BevlaaL The defendants are J. W. Taylor
and J. C. Hampton ; the latter claiming un-
der a general assignment to secnre creditor^
executed to him by the said Taylor.
The plaintiffs alleged, among otber thinga ;
"If BB a maUer of law the said mortgage
does not cover nil goods, without r^rd
from whom purchased, subsequently added,
np to the time of the Batlsfactlon of the
mortgage, then the same was IncorrecUy
drawn by reason of a mutual mistake of
both parties to said, mortgage." The defend-
ants denied this allegation, and also that
there was anything due the plaintiffs, and
the defendant Hampton further alleged:
"That the c^ttel mortgage described in tlie
complaint was fraudulent, aa well as roid,
as to the creditors of J. W. Taylor, because
It pret^ded to mortgage the stock of mer-
chandiae of the defendant J. W. Taylor, and
allowing said defendant J. W. Taylor to sell
the same without making provision for the
application of the proceeds of sale of said
stock of goods, and because the description
in said chattel mortgage is not sufficient in
law." The stock of goods was seized under
proceedings in dalm and delivery issued in
the action and delivered to the plaintiffs,
and sold by them under their mortgage, at
which sale tbe goods were bought for the
plaintiffs for $450.
The defendants tendered the following Is-
sue, among others: "Second. If so, was the
mortgage fraudulent and void as against
other creditors of the defendant J. W. Tay-
lor?" Tbe court refused to submit the la-
sue, and the defendants excepted.
Prior to the trial the plaintiffs made a
tender of judgment under section 860 of the
Revlsal for $305, with Interest from March
24, 1911, and costs. The court permitted this
tender to be offered in evidancsb and the d»-
fendanta eseej^oA.
There was evidence on tbe part of the
plaintiffs that the goods were not worth
more than $450. bat it was admitted that
after tbe sale th^ scdd ttiem fov $475, wid
^teoavsBMSMsm
9fU
A. BIiAimON OBOOEST 00. T. TATLQB
27T
ttieie WM ertdenee for tbe defendantt that
tin goods wen worth $800.
The TWdlet of the Jar; was as follows :
"(1) In what amount. If any. Is J. W. Tay-
lor Indebted to xdalntUBi? Answer: $78^.
**C^ Was there a inatnal ndatafce In draw-
ing tbe chattel mortgage by which the pro-
yUUm that tiie mortKage should cover all the
merchandlBe subsequently added to the stock
was omitted, as alleged? Answer: Tes.
What was the value of the property
takoi by the plaintiffs at the time of the
seizure? Answer: $462.50."
His honor charged the Jury on the second
Issue: "The plaintiff contends that the par-
ties agreed between themselves (that la. Tay-
lor and Laugfarldge) that the mortgage should
be so amended as to express that all goods,
which might be in stock or hereafter bought
(did not make any difference from whom
the purchases were made), and that, having
agreed upon that and underatandlng to put
it In the mortgage, it was a nilBtake made by
both T^nghrldge and Taylor in getting tbe
expression necessary to convey the Idea that
the mortgage should be on goods which
might hereafter be bought, uot only from tbe
Blaoton Grocery Company, but from any
other parties from whom he purchased. The
burden Is on the plaintiff to satisfy you by
the greater weight of the evidence that such
agreement was made and left out by mis-
take. In other words, that both parties un*
derstood what It was, and intended It shonld
be so embraced by the mortage, but, in
failure to use proper words to conv^ their
meaning as agreed upon. It was left out
They are not to satisfy yon be^nd a reason-
able doubt, as In criminal cases, but by the
greater weight of the evidence." Defendants
excepted. And again: "When yon come to
the second Issue, yon will remember it Is a
rule of law that when people reduce their
contract to writing the writing is presumed
to express what they agreed upon, and the
party who insists that something Is left out
of the writing which was agreed upon, by
mutual mistake, is called upon to give to the
court and Jury a class of evidence which Is
clear within Itself, and strong and convinc-
ing."
Judgment was entered upon the verdict,
and the defradants exceivted and appealed.
B. Oallert and McBrayer & HcBrayer, all
of Batberf<Hrdton, for ai^rallants. Qnlnn,
Hamcl<^ & UcBorie, of Rntherfordton, and
J. W. PlSBS, of Marlim, for appellea
ALLEN, J. [1,2] The Issue of fraud Is
raised by the pleadings, and. If there was
any evidence Jnstlfrli^ an answer thereto
favorable to the defendants, It was error to
rtfnse to submit it If we were dealing
with any other class of property than a
stock of gooda, or if It was necessary in this
case to prove a cormpt and fraudulent in-
tmt, we would hold there was no such evi-
dence, as there la nothing tn tha flTldcnce
su^estlng that the plaintiffs had any un-
lawful or wrong purpose, but the charac-
ter of the property and the admitted facta
are such that there arose a presumption of a
le^ fraud, which the plalnttfls were re>
quired to rdmt
In Cheatham v. H&wklns, 76 N. O. 88S.
the court says, In commentlug upon a mort-
gage of a stock of goods: "To secure a debt
the bargainor conveys In mortgage an en-
tire stock of miscellaneous merchandise, and
at the same time in the deed expressly re-
serves the po8sea8l<HQ of than for at least
nine months. The Implication is Irresisti-
bly from the vwy nature of the business,
that he was to continue in selling and trad*
log as btfore; otherwise why retain posses-
sion of goods, which would be a dead ln>
combrance up<m his hands, without the pow-
er of disposition? There is no provision for
his accounting for the proceeds of sale. He
could apply the money In payment of debta^
otaier than the mortgage debt; he could sijf-
ply it to family expenses, or even to the
purposes of ideasure or waste. Substantially
the proceeds belonged to him until the ma-,
turlfey of the Hawkins debt to be expended as
he pleased; and In the meantime tbe entire
stock of goods was to be secure from the
reach of his credltora * « • The power
to sell was the power to destroy, and the
sale was the destruction and extinction of
the property. If there were other unsecured
creditors at the time of this assignment, and
no other property of the debtor than that
omveyed in the mortgage out of which cred-
itors could make their debts, the fraudulent
Intent would seem to be irrebuttable. A
dear benefit Is secured to the debtor, and a
clear right Is withheld from the creditor be-
yond what the law permits. * • • Here
Is not only a retention of possession by the
assignor, which Is presumptive evtdwoe of
fraud, but there Is the further power to dls-
pose of it for the debtor's benefit, and still
more the exercise of tkat power annihilates
the thing Itself. We have, then, one of the
strongest cases of iHesumpttve fraud." And
In the same case, 80 N. O. 161: "The only
rebutting evldmie adduced against the fraud-
ulent purpose Inferred from the provisions
of the deed itself and their obvious and nec-
essary effect upon the rights of creditors Is
found in the dedaratimi of the several par-
ties to the transactlDn that an intent to fa-
vor the mortgagor, or to delay or defraud
his creditors, was not in their minds at the
time. This cannot be allowed to remove the
legal presumptton arlslug from the facts.
Acte fraudulent in view of the law because
of their necessary tradency to delay or ob-
struct the creditor in pursuit of his legal
remedy do not cease to be such becanae the
fraud as an Independent fact was not then
In mind. If a person does, and Int^ds to
do, that which from Its consequences the
law iwonounces fraudulent, he is held, to, liH
. Digitized byVliCTOy
278
18 soutbbabtbbn bbpobisr
or. a
tend tbe frand Inseparable tarn the act**
And this has been affirmed in Holmes v.
Marshall, 78 N. G. 264; Boone t. Hardle, 88
N. C. 473; Booth t. Carstarphen, 107 N. C.
^00, 12 S. E. 375; Cowan T. Phillips, 119 N.
C. 28. 25 S. E. 711; Edwards r. Supply Co^
150 N. C. 172, 88 S. 742.
The principles to be deduced from these
anthorlties are:
(1) That a mortgage upon a stock of goods,
the possession of which Is left with the mort-
gagor, to secure a debt, maturity in the fu-
ture, which contains no prorlslon for an ac-
count of sales and the applicatl<ni of the
proceeds to the debt, la presumpttrely fraud-
ulent as. to existing creditors.
(2) That the motive or intent entering in-
to the transaction is immaterial, and that
the presumption of fraud cannot be rebut-
ted by proving tbe absence of an actual in-
tent to def rand.
(3) That the presumption of ^ud may be
rebutted by proving that there was no oth^
creditor of the mortgagor at the time of the
registration of the mortgage, or if there
was such creditor that the mortgagor owned
other property at that time, which could be
subjected to payment of the debt, sufflcient
to pay such creditor.
[)] It has also been held that sndi a mort-
gage as we have descrll>ed is valid as to
debts contracted subsequoit to ita registra-
tion. Messlck r. Filea, 128 N. a 464. 39
S. E. 69.
The case of Bynum t. Miller, 86 N. C
669, 41 Am. Rep. 467, and the same case, 89
N. C. 893, proceed on a different principle.
In those eases the contest was between the
mortgagee and a purchaser from the mort-
gagor, and the oonrt said, in 86 N. C. t^,
41 Am. R^. 467: "Whatever diversity of
views may exist elsewhere, the law is well
settled 1^ adjudications In this state that
a snbsequmit purchaser of p^emnial property
^m one who has previoudy made a fraud-
ulent assignment of it. or an assignment
without consideration and for his own bene-
fit, whether the purchase be with or without
notice and for a Taloable consideration, and
soldi aaslgnment has been proved and regis-
tered as required law. stands In the place
of bis asBlcnor, and neither is permitted to
impeach Its force and validity. Ttn cstcq^
pel upcm the assignor «zt»d8 to his subse-
qaent vendee, and aa to both the convey-
ance, though it may be void as to credUon,
la equally efflcadona as to than.**
Nor to there anything in Kreth t. Boi^rs,
101 N. O. 270^ 7 a B. 682, which was ap-
proved in Brown t. Dan. 117 N. G 46, 28
8. BL 45, in conflict with these views. It la
true there were existing cndltora in tbe
Kreth CaaSi bnt these wore paid in fall, and
fbe controfergy was between flu fltst and .
a second mortgagee. In tbe first mortgage
there were stipulations as to the manner in
whldi tbe bnalneoB ahotdd be eondocted by
the mortgagor, and among otbera that no
purdiases should be made except for cadi,
and it appeared that $600 was paid on the
debt in a short tlme^ and upon these facts
the court held, if then was a presumption of
fraud, it was rebutted. Applying these prin-
ciples, we ara of opinion there was ernw In
refusing to submit the issue <^ fraud.
[4, i] We also think the t^ider of Judg-
ment oni^t not to have been admitted In
evidence, although we doubt i^ standing
alone, this would Justly a new trial, as it
is not clear It was prejudicial to the defend-
ants. Tbe statute authorizing a tender of
Judgment (Revisal, i 860) says that the ten-
der, when not accepted, *is to be deemed
withdrawn, and cannot be given in evi-
dence" ; and while this provision is primari-
ly for the protection of the one making the
tender, and to prevent its Introduction
against him. the statute is a part of the
wholesome scheme devised to encourage com-
promises and settlements, before and after
action commenced, and the purpose of the
statute can be beet subserved by holding ac- '
cording to its language that a tender of
Judgment unaccepted "cannot be given in evi-
dence," and can only be used after verdict.,
before the Judge, to enable him to adjudge
who shall pay the costs.
It appears to us a little remarkable that,
after the plaintiffs Introduced the tender
and inslBted on It, the defendants should
have recovered less than the sum offered;
the amount of the tender beli^ ^SOS and
the Judgment being for $386.21, the last
sum being obtained by deducting $78.29, the
answer to the first issue, from the value of
the goods as found by the Jury, $462.50, al-
though thero is a mistake of $2 in the cal-
culation. The facts bearing on the second Is-
sue an not clearly stated, bnt we are in-
clined to tbe oidnlon that after-acqnind
goods did not pass under the mortgage as
executed, and that the Issue was material.
[I] If so, hla honor instructed the Jury la
one part of the diarge tbat it was to be de-
termlned by the greater wdght of the evi-
dence. and in another, without correcting
this error, that the evidence most be dear,
strong, and convincing. These Instructions
are inoonsiatent and nnwtltuto reversible
error. Patterson v. Nichols, 157 N. C 412,
78 S. IL 202. The Teriflcatton <tf the ac-
count complies snbstandally wim the ra-
qnirementa of flie statute.
For the errors pointed out. then, must be
a new trlaL
New trial
Digitized by Google
KOI
▲NDXBflOdfr T.JCKADOWV
270
(W K. a 400)
ANDBRSON UXAPOWS at aL
(Sapnma Court of North GuoUaa. May 28^
1918>)
1. Advxbsb FoBSSsmoii C| OT*)_— POMEanow
Without Cou>b or Txxub— BziEnx or Ti-
TLB AcqUIBED.
Title acquired br advem poasHrion with-
oot color of title i» limited to tb» land aotnally
occapled.
[Ed. Note.— For other cases, lee AdTcne Foe-
■easiou, Ceot Dig. H 537-^41; Dec Dig. I
97.*]
2. AoTEBSK Possession 100*>— SufWOics-
OT or EtIDKNCB— COLOB OW TtTLB.
Where the plaintiff daiina tttle by adrene
poeeeesion with color of title by will, bttt a de-
icriptioQ of the land devised does not apiiear in
the record and there is no evidence that It ex-
tended beTOQd that to which the devisee bad ti-
tle bf dwd from defendant^a remote grantor,
the wilt cannot conatitnte cdor of title where-
by the possession is extended beytmd the land
actually occupied.
[Ed. Note.~~For other cases, see Adrerse Poi-
■easioQ, Cent. Dig. H 647-^74; Dw. Dig. S
ioa«r
8. AomsK P0S8U8I0K (S lOO*)— Possession
Without Colob or Title— Bxtbkt— Claim.
Adrersc possession does not extend beyond
tiw claim, alOiough that may fall short of the
Unas of tiia deed undar which the claimant is
in possession.
[Ed. Not&— For other euea, sea Adrazae Pioa-
session, Gent Dig. » Q47-fi74; Dae. Dig. I
100.*]
Appeal from Superior. Oonrt; Haom Coim-
t7; Long; Judge.
Aetkm b7 A. I. Anderson agalnat Bmlla
Meadow* and otbws. Jndgmost for tbe de-
fendants, and plaintiff appeala. Affirmed.
See, alao, 74 & B. 1019-
Tbia la an action bronglit by A. I. Ander-
son to recover a tract of land, and damagas
for trespaasea allied to have been eonunit-
ted thereon. The plaintiff Introdaced state
grant No. 2,S96 to Jacob Shope, recorded in
Book J, p. 290. dated January 25, 1862, and
recorded December 2. 1862 ; also, the will of
Jacob Shope, probated September 18, 1876,
and recorded In Book of Wills No. 2, p. 29,
which plaintiff claims convey the property
In qnestlon to tbe plaintiff.
Jacob Anderson, for the plaintiff, testified
that the land embraced under state grant
KoL 2,086 came Into the possession of A. I.
Anderson, the plaintiff, who la the mother
of wltnen. In the year 1881, at Grandmoth-
er Shope^s death, and that the plaintiff in
1882 had Glared np a field npon the land
embmced in that grant and bad cultivated
It In com and wheat for about six yean In
ancoesslon, and had pastured It for eight or
nine years Uiereafttf, and It bad beea In
eulUvatlon by them ever since; that this
field vas within the bonndazy of state grant
Na 2,006; and within the boundary of state
grant Na 2,984, and entirely within tbe
boundary of tbe land ctrnveyed I7 J. 8.
Woodard to J. B. Anderauii; and that they
had bad no possescdon outside of tbe bound-
ary covered .1^ tbe deed from Woodard to
J. B. Anderson.
Mrs. A. I. Anderson, plaintiff, tsstifled that
she bad had possesdon of the lands describ-
ed in the complaint ever since 1882, whwi
bar grandmotlier died; that die land liad
been in com, wheat, and pasture ever since;
that she went Into poaoeaslon of that land
under tbe wlU of Jaaab Shope; and that Iter
eon. Bud Anderson, wu UTiag Owre now
her permission.
Jacob Andwaon furthw testified tliat, at
tbe time the field was deared cm tbe land,
Ms tatber bad taken tbe boys upon the land
and cleared tbe field, claiming under title
that their grandfitther, Jacob Shope, and
grandmother, Isab^la Shope, bad 1^ than,
Tbe defendants Intztoduced state grant
No. 2,934. issued to Clark Byrd In 1864, em-
bradng section No. 11, district No. 17, of
Macon county, acquired by treaty from the
Cherokee Indians and surveyed by the state
In 1820, and a chain of mesne conv^aness
from Clark Byzd to the defendants.
The court charged the jury, among other
things, as follows: "If the Jtiry shall Ond
tTom tSie evidence that in tbe year 1881
J. B. Anderson, bostumd of the plaintiff,
bought from J. S. Woodard a portion of the
land embraced in section No. 11, and pro-
cured Woodard's deed therefor, that about
the year following, vis., in 18^ J. B. An-
derson and bis boys entered mwn the tract
purchased from Woodard, cleared It, and
have bad it in actual possession since that
time, but have bad no actual possesalon on
section No. 11 outside of the deed from
Woodard to Anderson, thra the court chaig-
es you that the plaintiff is not the owner
of tbe land in diq>ute, and yon should an-
Bwer the first issue, *Ko,' or 'No, except so
much thereof as Is covered by the Woodard
deed to Anderson.* ** The plaintiff excepted.
The will of Jacob Shope is not In the reo
ord, and no evidence was introduced to show
what land was devised by It to tbe plaintiff.
There wae a verdict In fttvor of the defend:
ants, and a Judgmmt rvadored. declaring
the ^alntiff the owner of the land in tbe
Woodard deed, and the def^ikdants tbe own-
ers of tbe land in controversy outside of tliat
deed. The plaintiff excited and appealed.
Bobertson & Benbow and J. F. Bay, all of
Franklin, for appellant Johnston ft Horn,
of Franklin, for appellees.
ALLEN, J. The grsnt under wbldi the
plaintiff fiaiinif was declared invalid on tbe
facts appearing in the reoonO, mxm tiw
fonner appeal In this aeti«i (Antomm t.
Meadows, 169 N. a 404, 74 S. B. 1019), and
therefore the plaintiff cannot recover any
of the land outside of the Woodard deed
a ctnmeeted chain of title from the
state. She must then lely upon proof of
«Var etlur eaass same test* aaS seeOa* VVHBKR la Dee. Dlfr *.Aai>
2S0
18 socrraKAsraBN bbfobssb
irr.a
title b7 ftdTerae possesalon, ^ritti w wlOioat
color.
CI] If Bbe relies nptm advene pOBseBsloii
alon^ Iier action mast fan, beeanee hee ac-
tual poHeBBion bas not eztoidea beyond the
Woodard deed, and tlQeaoanlred by advene
poBseealon, wltiiont color, is condned to the
land oceai»ied. Malone, Beal Trop. 280.
It is tnie that some of Oie witnesses
speak of mterkig Into poesesslon of grant
2,696; hnt the Woodard tract la wltUn tlte
bonnds of the grant, and, whm the evidence
Is considered as a whol^ It li evident they
reftored to possession of the Voodard land,
and It is 80 treated In the brief of appe-
lant
rX] The last position left open to the plain-
tiff is that the will of Jacob Shope, which la
the only paper title under which she claims,
is color of title, and that her possession of
the Woodard land extends to the bound-
aries of her color; bat this contrition can-
not be maintained, for the reason that the
description of the land devised does not ap-
pear in the record, and there Is no evidence
that the land in the will extends beyond the
Woodard deed.
[S] There is also no evidence of a claim
by the plaintiff beyond the Woodard deed,
and adverse possession ''does not ext«id be-
yond the claim, although this may fall short
of the lines of a deed, under which one is In
possession. Haddo^ T. Leaiyp 148 N. 0.
882, 62 S. a 428.
It also appeara Inferentlally that the de-
fendants have had possession for many yean
vt the land oatslde of the Woodard deed.
We are therefore of opinion that the
plaintiff could not, In any view of the evi-
dence, recover more than the land in the
Woodard deed, and this has been awardfld
to her.
Mo arm;
OSS N. a fiSB)
SPBUILL et aL V. HOPKINS et al
(Snprema Ooort of Nortii Carolina. Ifay 28^
1913.)
BviDiRca a 817*)— HKASSAT— DKcmSATIOIWI
— LiVINO DEOI.ABUVT.
Evidence of the declaratioos of a living
person that certain land in controversy was a
part of the a tract, It appearing that nelOier
party claimed under the declarant and that he
was but an agent In poaseasion of the adjoin-
ing lands, was inadmisaible at hearsay.
[Ed. Note.— For other cases, see Bvldence,
Cent Dig. H UT4-1192; DeeTDlg. | 817.*]
Ai»peal from Superior Ooort ^rrell Oonn-
ty: Webb. Judge.
Action by B. H. Spmlll and another a^lnst
'W. T. Hopkins and otbws. Judgment tas
plalntMh, and detoidants appeal. Bcrened.
This Is an actUm. to raqover damages fttr
cutting ttmbCT on a strip of land, claimed by
the plaintiff to be a part of the Clayton tract
of land. The deflandants admit tAat t3ie
l^alntUh are flie ownen at the Clayton tract,
bnt they 6mj that the land in controversy Is
a part of that tract The Belgrade and Hol-
ly OroTC tracts of land adjoin the Clayton
tract
BoOi parties dalm title nnd» W. 8. Pet-
ttgrew, who warn the father of Charles Pet*
tlgrew. Obarles Fettlgrew Is sow Bring,
and Uiere la iu> evidence in the record that
was at any time the owner of the land
in dlqiiut^ or <tf the Belgrade land, or of
the Holly Grove land.
Mr. Nooney testlfled for plaintiff: "Am 68
yean old. 1 was overseer tor ICr. Ghas.
Pettlgrew. I know tiie Cl^rton tnet of
land. Mr. Chas. Pettlgrew, lAlle In possea-
Bion of Uie Holly Grove and Belgrade tncfai;
told me not to eat on the land now In die-
pnte. Said ft was a part of the Noah Sim»>
ill's Clayt<»i land." Defendants euepted.
ThoB waa a verdlet and jndgmoit for the
plalntUEs, and defendants excepted and ^
pealed.
1. M. Meeklns, of Elizabeth City, and Ward
& Grimes, of Washington, N. C, for appsk
lants. M. Majett^ of Colnmbla, and W. M.
Bond, <^ Bdenton, for appelleea.
PES OCBIAM. The evidence of the wit-
ness Nooney waa Tsry Important on the Is-'
sue before the Jury, and was dearly hear-
say and Incompetent It la not broui^ with-
in the role admitting fbB dedantlais ct a
deceased witness, as declarant Is Uvlng,
nor does it appear that either par^ dalms
under him, or that he was mora than an
agent in posseeskm of the Belgrade and Hol-
ly Grove landa Cansler v. Flte, 60 N. a
426; Lawroice T. Hyman, 79 N. a 211; Pet^
Una V. Brlnkley, ISSN. a8S0;46S.B.652.
The evidence also Alls to show that Mr.
Pettlgrew had any knowledge of the bound-
aries, or that he was doing more than ex-
pressing an opinion that the land In dispute
was a part of the Clayton tract
There must be a new trial.
New trial.
(U2 N. c. ta)
aCBTERS V. NORFOLK & W. BY. CO.
(Sapreme Court of North Carolina. May 22,
1918.)
1. COKMBBCTB (I 27*)— iNJUBIXa TO SSBVAn^
EiiPLoYEB's Laaaiurr Aor — ImBssTAH
COUUEBO.
A servant of a railroad company cannot re-
cOTCr for injuries under the federal Bmployer's
liability Act (Act April 22. 1908, c 149, 38
Stat 65 [U. 8. Comp. St Supp. 1911, p. 13221),
nnleu he was engaged In an act of uteratate
commerce at the time of his injury.
[Ed. Note. — For oUier cases, see OosamerMb
Cent Dig. I 26; Dec. Dig. | 27.*]
2. CoucEBOi (I 27*>— IifJtram to Bebvakt—
Eupu>Taa's iJABir.nr Act — Iitikbstaik
ColOfBSCB.
Halntlff, a laborer In connection with a
work train on defendant's railroad, was in camp
'•I'^er etbsr eaMs ■•• mm* t^ and MOttoa NUUBKR In Dee. Ug. * Am. Dig. 1^;^%,
N.0;>
MBTEBS T. MOBFOIiK A W. BT. CO.
281
OS a Suadar, when his aastBteot foreman or-
dered him to catch a passiog freight train and
fo to M. for the mail for the camp. In at-
teiDpting to board the train he fell under it. and
was injnred. Held, that he was not engaged In
interstate commerce at the time of his in^ry,
and could not recover ander the federal um-
pl07er*B LlabUitr Act
IBd. Note.— For other casta, see Commerce,
Cent Dig. i 26; Dec Dig. S 27.*]
Appeal from Superior Goort; WUkes Comi-
ty; Daniels, Judge.
Action by Maurice L. Meyers against the
Norfolk & Western Railway Ckimpany. Judg-
ment for plaintiff, and defendant appeals.
BeTersed.
CffvU action tried upon these Issnes:
*'(!) Was the plaintltF Injured by tbe neg^
Ugence of the defradant? A. Tea.
"(2) Did tbe plalntlfl, by bis own negli-
gence, contribute to hSa own Injury? A. Yes.
"(8) Did. the plaintiff execute the release
ofl!^«d In erlduice by tlie deCandant? A.
Yei.
**(« Was 0ie plaintiff Induoed to aign the
lelBEue by the ftmvd and deceit of the detakl-
anf B agent? A. Tea [but aet aalde on motion
of defendant].
"00 Was the plaintiff ZL yean ef age
when he signed the recdp^ and baa he alnoe
ratlfled It? A. No.
"(0) What damage is tbe plaintiff entitled
to recover of the defendant? A. |l,00a''
From the Judgment renderaO, the defoid-
ant appealed.
Watson, Baxton & Watson, of Wlnston-
Balem, for appellant Chaa. B. Splcor, of
jdteraon. for appellee;
BROWN, J. This action was tried under
the act of Congress known as the federal
Employer's Liability Act
The evidence tended to prove these facts:
Plaintiff, a resident of Wilkes county, N. 0.,
was employed by the defendant company,
and in February, 1911, was working in West
Virginia as a band on an extra force on a
work train. His bnslness was to assist in
surfacing up tbe roadbed, straighten out
freight wrecks, and when there were slides
to clean them up. He was working under
Mr. Shaw, general foreman of the work train,
and under Mr. LIneberry, the assistant fore-
man. On Sunday, February 12, 1011, the
defendant was not working, but some time
during the afternoon be attempted to catch
a freight train, which was passing the camp,
and running from six to eight miles an hour.
The plalnticr claimed be was ordered by tbe
foreman to catch this moving train to go for
tbe mall. He failed to catch the train, and
fell under it and had his leg cat ott.
According to the plalntUTs own evidence,
we do not think be was engaged In interstate
commerce, and therefore his action was erro-
neously tried under the act of Congress. He
testifies that he was engaged solely In local
repair work on the track in West Viivlnia
as a workman on a work train.
At the time of his Injury he was not en-
gaged in any service whatever for tbe de-
fendant On Sunday, February 12th, the
work train bands were in camp, when plain-
tiff was told by lineberry to catidk a passing
fr^s^t train and to go to Nangatadc tat the
mail for the camp.
[1] One of the essentials Is that tbe on-
pIoy6, when injured, must be engaged In an
act of Interstate commeroa Horton, in Hor^
ton T. Ballroad. 157 N. a 146, 72 a IL 9S8,
was oiglneer of a train oigaged In interstate
commerce when Injured; and so was Flem-
ing, la Fleming t. Mbtfolk Southern B.
76 8. XL 218.
[2] In Zachary'a^ Case^ 1R6 N. a 496^ 72
S. B. 858, we held that the act of Congress
applies only to a carrier by rail while oi-
gaged in Interstate commerce, and wly to an
employfi Buffering Injury while he Is employed
by such canier in such oommerce. In that
ease we said: "We do not think the federal
act applies, for the reason that the deceased,
at the time when fcllled» was not employed by
the fionthem Ballmiy, the lessee, In Int^
state commwoa At the time he was killed,
the deceased was not engaged in an act of
any kind of commerce Be was on the way
to his boarding house, tor a purpose entirely
personal to himself, and not on the carrier's
business.'*
This case Is dlrectiy supported by federal
authorities. Lamphere v. Oregon R. & Nav.
Co. (C. C.) 193 Fed. 248. In this case tt Is
held "that tbe employ^ at tbe time of tbe
injury must have been employed in sncb
interstate commerce." It Is also held that an
extra conductor In the employ of a railroad
company directed, on reporting for work, to
ride to another ilolnt within the same state
for service on a work train working In that
state, and who was injured while proceeding
to his work train, was not at the time of the
injury engaged In Interstate commerce, with-
in tbe Employer's UablUty Act Feaster v.
Ballroad (D. C.) 197 Fed. 681; Pedersen v.
Ballroad, 197 Fed. 637, 117 a O. A. 88. In
this last case the subject Is fully discussed
by Bufflngton, Circuit Judge, and it Is held
that the act applies only to such employes as
at tbe time of tbe Injury have a real and
substantial connection with an act of Inter-
state transportation, dtlng Employer's Liabil-
ity Cases, 207 U. S. 463, 28 Sup. Ct 141, 52
L. Ed. 297, and Adair v. U. S., 208 U. S. 161,
28 Sop. Ct 277. 52 L. Ed. 436, 18 Ann. Cas.
764.
On the occasion when Injured the plaintiff
was not engaged In any kind of commerce.
He had been directed by Lineberry to go to
Mangatnck for the mail for the working
force, and was Injured while endeavoring to
board a passing frei^t train for that par-
pose and no other.
•For oUksr OMw sm suae topis mA aeoUoa NUMBSa tn Dm. XHs. * Am. I>ls^ XW'M^ AtrtM^ ^^1
282
78 SOUTHBASTERN BKFOBTBR
07. a
It Is Contended that according to plalntUTs
evld^ioe, oa tbe occasion when Injared, he
was not engaged tn any act of Morrloe for
defendant, and if Lineberry or Shaw directed
him to catch the freight and go for the mall
for the camp they were not acting within the
scope of their aathorlty, or In furtherance
of the defendant's work. It Is unnecessary
to decide this now. Another trial may de-
velop the facti more fully.
New trial.
Ott N. C. 404)
LATHAM T. SPRAGIN3 et aL
(Snpxeme Oonrt vt North Garollaa. Uay 2^
1813.)
1. Cabbdebs (I 68*) — Biixs or LAoino —
Rights or ^nunsrEaKK as Aoaikbi Goif-
noHB.
Where a raidor of goods consigns than to
th« porcliaser, taking a bill of lading from the
earner, and, intending to resome the riglfl: of
control orer them, at the Bame time draws op-
on the purchaser for the price and delivers the
draft with tiie Mil of Uding attached to an in-
dorsee for a valuable consideration, the con-
signee, upon receipt of the goods, takes them
snbjea to the rights of the holder of the draft
and Ull of lading, and cannot retain die price
of tin goods on account of a debt doe him from
tlie consignor.
[Ed. Note.— For other cases, see Carriers,
Cent Dig. SS 179-190; Dec. Dig. { B8;« Sales,
Cent Dig. f 649.]
B9*) — BiLis or Laoino —
AM AOAIHBT OOH-
2. CABBIEHe
RiOHTS or
SIQREE.
While the mere discounting and crediting
the amount of a draft to a depositor's account,
without making payment or incurring an; in-
creased obligation, would not make a buik a
purchaser for value of the draft and an attach-
ed bill of lading, where the depositor was in-
debted to the bank, and the net proceeds of
the draft so discounted was placed to bis credit
in eztingnishment of the debt and tiiere was
no agreement that if the draft was unpaid It
should be charged back to his account, the bank
was a purchaser for ralue, and acquired title
to the property represented by the bill of lad-
ing.
[Ed. Note.— For other casc», see Carriers,
Cent Dig. H 170-190; DecTDig. (
S. Cabuebs QL68*) — BiLLB or Laoino —
RlOHTS or TRARBVBBBK AS AOAINST GOR-
BIONEB.
Where a bukk, which discounted a draft
to which was attactied a bill of lading, upon its
return onpaid charged it to the drawer's ac-
count if he had a sufficient balance to pay
the draft, it was thereby satisfied and its claim
on the property represented by the bill of lad-
ing eztbigpiafaed.
[Ed. Note.— For other cases, see Carriers,
Gent Dig. H 170-190; DeeTDjg. | 68;* Sales.
Gent Dig. i 849.]
4. CABBiPta (I 68*) — BxiXB or hAmsa —
Bights or TRARsnBSB as Aoairbt Ooit-
SIONZJC.
A bank, wbich discounted a draft to which
was attadied a bill of lading and which was
returned unpaid, did not lose Its title to ^e
draft and bill of lading by cbargiiw it to ttie
drawer's account it there was nothing to bis
credit with whicb to pay it, and it continued
to hold the draft and bill of lading ; and hence
proof that it did ao charge it to his account, al-
though evldenoe of payment of the draft by tiw
drawer, was not etmclnrive, but was open to
explanation.
[Ed. Note.— For other cases, see Carriers,
Cent Dig. » 179-190; Dec Dig. {68;* Sales,
Cent Dig. f 649.]
6. Banks ano BARKina <S 166*)— Gollbc-
TiOKs— Relatior or Pasties.
A l>ank, wUcA discounts its depositor's
drafts under an agreement that if they are re-
turned unpaid they shall be charged back to
bis account and returned to him, is merely an
agent for collection.
[Ed. Note.— For other cases, see Banks and
B^Ung, Cent Di» H ^-SiS; Dee. Dig. 1
Appeal firom Bvpeilor Oonrt, GnUford Comi-
ty; PeftUes, Jiidc&
Action ^ J. B. Latham against J. !>■
Spraglns, tn wMdi tbe Ellt Horn Bank
Trust Oompaiiy interpleaded. From a Judg-
ment tor plaintiff, the Interpleader appeals.
New trial ordered.
CItU aettou tried upon these lasiuB:
"a) Is the EUc Horn Bank ft Trust Com-
pany tbe ownw and entitled to the poeaca
slon of Uie vnn/et^ in contmrersyl Adt
swer: No.
"(2) What damage if any, Is the plalntUC
entitled to recorer of J. D. Spragins, de-
fendant? Answer: One tlionaand foor honp
dred sixty-eight dollars and forty-foor cents
(¥1,468.44), With intwest from October 81,
1910.
"^) What was tbe value of tbe cotton
seized and replevied in tbls action? An-
swer: Sixteen hundred seventy-three dol-
lars and twenty-two cents ($1,673.22)."
From the Jndgmoit rendered, tlie Inter-
pleader, the Elk Horn Bank & Tmst Com-
pany, appealed.
S. Clay ^milams, of Greensboro, for ap-
pellant King ft Kimball and Thoa. B. Beall,
all of Greensboro, for appellee.
BROWN, J. The plalntlfl recovered Jn^
ment In tbis action against the defendant
Spragins Ua damages in sale of cotton.
Plaintiff al^o soed ont In tbis action a writ
of attachment and seized a lot of cotton at
Oreensbora The Elk Horn Bank ft Trust
Company Interpleaded, claiming the cotton.
Spragins shll^ied the cotton attadbed to
plaintiff at Greensboro, and drew on blm
with bill of lading attached. The draft was
payable to and dlscoonted the interplead-
er, and file net proceeds placed to Spragins'
credit This draft with bill of lading at-
tached was duly presented, and, payment
being refused, it was protested and returned
to tbe Intendeader, and charged np to Bi»a-
gin's account
The Interpleader requested flie coort to
charge the Jury as follows: *lf yon believe
tlie evidence of tbe witnesses J. D. %iraglns
and W. D. Barttman, whose depositions have
beoi read to yon on behalf of the interplead-
er, yon shall answtt tbe flrst Issne *Tes.'*'
This was refused, and interpleader excepted.
•For otbM- easw sas nme topic and aeoUon NUHBIBB In Dae. Die « Am. Dig.
29.0}
IiATHAH T. SPBAOINS
283
HU honor duurged u foOaxvn: *mie bank
has sbown no evidence saffldent to show
that thejr were tiie owners of that cotton.
They were not out any money. Spraglns
owed them already, and they Jnst took, that
draft and credited his acoonnt with It, and
whw It came back unpaid, they chaiged it
bade to him, and they were in the same fix
aftv the transaction as before, and the Su-
preme ODurt has held th&t dont constitute
a bank a pordiaaer tor consideration; and
yon will answer that Issne 'No.' " To this
diarge the interpleader excepted.
[1] It Is well settled that, when the ven-
dor of goods consigns them to the pnrchaser,
taking a bill of lading from the carrier and,
Intending to resume the right control over
them, at the same time draws upon the pur-
chaser for the price and dettvera the bill of
exdiange with the bill of lading attached to
an indorsee for a valaable conaldraatloa, the
«Hislguee, upon receipt of the goods, takes
them Bobject to the rl^ts of the holdor of
the bill of lading to demand payment of the
Ull of exchange, and cannot retain the price
of the goods tm acconnt of a ddii due to him
from the consdgnor. Ifannfacturlng Gb. t.
Tieraey, ISS N. 0. 686, 46 & B. 1026; Ma-
son T. Cotton Co., 148 N. C. 498, 62 B. B. 620,
18 li. B. A. (N. S.) 1221, 128 Am. 8L
635.
It is contended, howerer, that In any rlew
of the evidence the Interpleader Is not a
bona fide jrarchaser tor valne, bat that the
transaction constltnted merely a bailment
tor collection.
The cashier, Barkman, testifies as follows:
"On September 8, I&IO, I had a transaction
In my office at said bank with Mr. J. D.
Spraglns, in regard to a cotton draft drawn
on J. EL Latham, at Greensboro, M. C, on
that date. At that time the five bills of lad-
ii^ referred to by Mr. Spraglns in his testi-
mony and mailed 'Exhibits A. B, G, D, and
E,' were delivered to me by Mr. Spraglns,
attached to the draft for $1,703.35, drawn
by said J. D. Spraglns on J. B. Latham,
Greensboro, N. 0. The draft delivered to
me was the same referred to by Mr. Spraglns
Id his testimony, and marked 'Exhibit F.'
The bills of lading were assigned to me and
delivered with the draft, and I paid J. D.
Spraglns the sum of $1,793.35, less the us-
ual excliange for the same. We had no
agreement of any kind. I took It as a cash
item, as any other bill of lading, and for-
warded It Neither the bank nor any one
for it has rec^ved payment of the draft In
question. It was protested and returned."
Ttie same witness further testified: "At the
time I paid Mr. Spraglns $1,793.35 (for the
draft), with bills of lading attached, he was
overdrawn $1,636.86, which was mon^ which
the bank furnished him to buy cotton with.
When I received the draft from Mr. Spraglns
I credited bis account with It, and when the
draft was protested, I charged back to his
acoonnt the amomt of the draft." The wit-
ness also stated that In recharging Mr. Bpra-
glns* account with the amount of the iwo-
teeted draft they were following out their
syaton of bookke^lng: *T.t was recharged
to Mr. Spragina^ account to kaep onr records
dear as to the transaction and make disposi-
tion a£ this item. It Is sOU charged to Mr.
Spraglns' account, and has never been paid."
Defendant Spraglns testifled: "Aftw draw^
ing said draft and attaching the bUls of lad-
ing Oiereto I delivered the draft and bills ot
lading to Mr. W. Bb Baricman, cashier of the
Elk Horn Bank ft Trust Company. The only
terms were that Mr. Barkman either gave
me cash or credit for It We had no agree-
ment; it was taken aa a eaSh transaction,
and the Elk Horn Bank ft Trust Company
Idaced that amount of money to my credit"
The same witness further testifled that he
had no agreonent to tlw effect that he wonld
protect the bank In the evmt Chat the plaln-
tlir is raooseaful In assertliv his claim
against the pnipttty in controvwsy in till*
action. He also stated Out when the bank
accepted the draft and UUa of lading he
considered the deal dosed so far as he was
concerned, and that he did not regard him-
self under any legal obligation to pay the
bank.
We are of opinion that his hmwr was cox^
rect in refiudn^ the Interpleader'B prayer tor
instruction, but that he was wrong in direct-
ing, as a matter of law, that the Jnzy answer
the first Issne "No."
[1] The evidence tends to prove that when
Spraghu drew the draft, with MU of ladlog
attadied, payable to the interpleader, and
discounted it he was indebted to the Inter-
pleader, and that the net proceeds went to
Spraghui' credit In extinguishment of his debt
If those facts are true, then the bank be-
came a purchaser for value, end acquired
title to the cotton as security for the bill of
exdiange discounted. 6 A. ft Bl 298 ; 7 Cye.
929; Bank v. McNalr. 114 N. a 342. 19 S.
E. 361. If at the time Spraglns had owed
the bank nothing, the case would be different
for the mere discounting and crediting of the
amount on the dei>08ltor'B account without
making payment or tncnrrlng any increased
obligation, is not sufficient to make ttiB bank
a pordiaser for value.
[S, 4] Nor do we think that the mere fact
that when the draft was returned unpaid,
the cashier had it charged up to Spragins*
account as a matter of law, necessarUy de-
prives the bank of the security of the draft
and bill of lading. If at the time It was
charged up SpragtoB had a balance to his
credit sufficient to pay the draft, the charg-
ing it up would have satisfied the draft and
extinguished the Uen on the cotton. But
Spraglns had nothii^ to his credit with which
to pay the draft for the cashier testifies that
the bank has never be^ paid, and that he
charged up the draft simply as a matter (rf
bookkeeping me draft and bill ofI%dloO*^l
Digitized by VjOOglC
284
78 SODTUBASTBfiN BBPOBTBB
tached hare not been aarrendered by the
bank to 8praglii«, or any one elB&
[t] We do not dlsinite the proposition that,
where there Is a general agreement between
the bank and Its coatomer that If drafts, de-
posited by the cnstomer for his credit, are re-
turned unpaid, they shall be charged back
to the costomer's account and returned to
blm, this constitutes only an agency for col-
lection. Davis T. Lumber Co., 130 N. C. 176,
41 S. El 95; Cotton Mills v. WelU, 120 N. a
4S2, 40 S. B. 2ia But the fftcts testified to
In this case take it out of that goieral rale,
and differentiate It from those cues. If
Spraglns was in debt to the bank, and the
draft was discounted by it and the proceeds
applied In discharge of such balance, the
tank became the owner of the draft, and as
a pnn^aser for value to that extent of the
eotton described In the hUls of lading. The
fiict that, upon return of the draft protested,
the cashier dialed it up to Spragtais* ac-
count is some eridence to the Jury of a can-
c^tlon of the transaction, and of a pay-
ment of the protested draft by Spraglns, but
It Is not omdnslve evidence, and is open to
explanation. If Spraglns had nothing to his
credit with which to pay the draft, and the
bank continued to hold, as its property, the
draft and bills of lading, it would not be a
payment of the draft or a cancellation of the
original transactloo.
In directing a verdict fbr the plalntltt op-
on the first Issue, his honor erred.
New trial.
(US N. a t96)
AMEBIOAN LUMBBB 'Oa ▼. QVTErPT
MFG. CO.
(Snpreoi* Court of North Carolina. May 28,
1913.)
1. Tbux. (S 360*)— SDBussioif or laaun.
Where the isBue flubmitted by the court
embraced every issuable fact and enabled the
{tlalntifl to present fully its ^de oC the case,
t was proper to raieet iasnei tendered by plain-
tiff which if adopted would have tended to great
prolixity.
[Ed. Note.— For other cases, see Trial. Gent
Dig. IS 828-883; Dec: Dig. { 860.«]
2. Sales (S 6*)— Contsacts— CoNarBucnoN,
A contract by whidi a partr bargained to
■ell, ecHwey, and deliver 600,000 feet of turn-
her for $2,000 in cash and the advancement of
(10 a thousand feet on or before the 15th da; of
each month for all lamber sawed and put on
the sticks the preceding calendar month, the
92,000 to be deducted nom the first estimate
and no further advance made until 200,000 feet
to cover such $2,000 had been put on the sticks,
and the advance of $10 a thousand to be de-
ducted from settlement made to the seller, was
a contract of sale^ and not a. mere secnrl^ for
the advancements made to the sailer Iqr the
buyer.
[Ed. Note.— For other cases, see Sales, Cent
Dlis. f 14; Dec Dig. | 6.*]
3. Salks a 418*) — Bbxaok bt Seexbb —
Measubk of Dahaoes.
In an actlmi for failure to deliver lumb^
pursuant to a contract of sale, the court erred
In refusins to permit the buyer to 'recover the
difference between the contract price and tiie
market value of the lumber at the time and
place 6xed for delivery ; such difference not be-
ing speculative but being within the coatonpla-
tion of the parties and constituting the usual
measure of damages.
[Ed. Note.— For other cases, see Sales, Cent.
Dig. H 1174-1201; Dec Dig. { 41&*]
4. Saub m 418*) — Bbbaob bt Selub —
Measubb or Dakaoes.
Damages which are certain and must have
been reasonably contemplated by the parties are
recoverable for the .breach of a contract of saIc;
bat, if purely speculative or fanciful and sub-
ject to possible exigencies not likely to be fore-
seen, they are considered too remote and subtle
in toeir influence to be reached or established
by legal proof or jndldal Investigation, and
are therefore rejected as an element of compen-
sation.
[Ed. Note.— For other eases, see Sales, Cent
Dig. H U74-1201; Dec Dig. f 418.*]
Appeal from Superior Ootirt, Haywood
Gonnty; Fooshee, Judge;
Action by the American lumber Company
against the Qulett Hanntactnrlng Company.
From a judgment for i)lalntlff for Insnfflfdait
r^ef, it appeals. New trial granted.
Civil action to recover damages for the
braa<A of a contract to sell and deliver lum-
ber. Defendant "bargained" with plaintiff
to "sell, convey and deliver to It at Ell and
Bpps Springs, by the Appalachian Railroad.
600,000 feet of poplar, oak and basswood lum-
ber" of certain grades stated in the contract,
for $2,000 in cash and the advancement of
$10 per thousand feet on or before the IStb
day of each month for all lumber sawed
and put on the sticks the preceding calendar
montii, the $2,000 to be deducted from the
first estimate, and no further advance to be
made until the manufacturing company bad
put on the sticks 200,000 feet to cover the
$2,000 advanced; deliveries of the lumber
to be made as follows: 150,000 feet to be
loaded at Cherokee, N. C, and delivered at
Eli, N. C, and the remainder, or 300,000 feet,
at Epps Springs, N. C, or WhitUw, N*. O.
The following provisionB are in the contract:
"Lumber Is to remain on sticks until In sbip-
plng-dry condition and is to be well manu-
factured, well edged and trimmed, and pat
np in piles not to exceed six feet in width,
with at least four feet space between each
pile. Lumber is to be delivered at Epps
Springs, is to be cut from a tract of timber
purchased by the parties of the first part
from J. E. Bird, lying on the waters of Cane
Break branch and Tuckaselgee river, con-
slstlng of 680 acres, more or less. That
which is to be delivered at BSi is to be cot
from what Is known as the King and Wyatt
land, lying on the mters of Gonche^s cre^
consisting of 168 acres, more or less. Tha
said advance of $10 per thousand is to be do-
ducted from settlement made to parties of
the first part by party of the second par^
from time to time as the lumber is shipped.
All the above said lumber is to be delivered
N.O)
AMERICAN LUBAKR 00. T. QUnTFT MPS. 00.
286
«n or beCiftre Jaimary 1. Iftl2. to be bupeet-
ed tj. party of the second part, or one of
tbeir representatlTes, accordlDg to tiie Na-
tional Bardwpod BnleB and if Inspected by
parttes of tbe first part, they shall gnarantee
said InspectbHL It la estimated by the par-
ties of the first part that there Is now sawn
and on sticks one hundred thousand feet cnt
from tile Klvg and Wyatt lands, which him-
ber is in shipping-dry condltitm, whkdi th^
agree to b^ln to deliver at once to Cberokee^
North Oarolina, and finish sawing and pnt
on stJcka tbe balance of said timber within
tUrt; days. .The parties of the first part
further agree to b^ln sawing the Bird tim-
ber on or before May Ist, and to cut at l^t
76 per eenL of the oak 8-4; that there la now
logged about 200,000 feet of said ttmber."
J. EL Gobnm and wnuam j)ulett goar-
anteed the performance of the contract, and
are defoidants in this action. Tbe court
snlnnitted Qds issue to the Jury: "Are ttie
defendants Indebted to the iflalntiff, and, if
BO, In what amount?" The court dbarged
the Jury ttut, If th^ believed tbe erld&nce,
their answw to tbe issue would be 11,995.66,
with Interest at 6 per cent from April 3.7,
1911; "it Mug the amount of money ad-
vanced by tbe plalntur, less a cre<Ut for the
lumber shipped to It." PlatnttfF excepted
to this charge, and from tbe Judgment ap-
pealed, assigning the same as error.
W, T. Orawford and Alley & Gilmer, all of
Waynesvllle, for appellant Bryson & Black,
of Bryson C9ty, for appelle&
WALKER, J. (after stating the facts as
above). [1] Plaintiff tendered numerous is-
sues, but as tbe one submitted by the court
embraced every issuable fact In tbe case, and
enabled tbe plaintiff to present fully Its side
of the case to the jury, It was prot>er to re-
ject plaintiff's tender and refuse to multiply
the Issues, which coarse, if It bad been adopt-
ed, would have tended to great prolixity,
and this should always be avoided. Black t.
•Black, UO JI. C. 398, 14 S. R 971; Hatcher
T. Dabbs, 133 N. C. 239, 45 S. B. 662; TutUe
T. Tuttle, 146 N. G. 484, G9 S. S. 1008, 126
Am. St Bep. 481,
[2] We were told on the argnmrat that tbe
Judge construed the contract to mean that
the lumber was not sold to tbe plaintiff, but
was intended to be a mere security for tbe
advancements made by it to the defendant
company. Thte construcUon Is not permls-
■ible^ as tlie language of tbe parties plainly
expresses tbe contrary.
[3] It may be the court took the ylew that,
vhlle it was a contract tor a sole of the
lumber by iJis defendant, the damages now
claimed for its breach are speCnlatLve. The
plaintiff only seeks to recover the difference
between the contract prtee and the market
value of the lumber at the time and place
fixed for Its deltvery^ and to tlila It la dtearly
entitled. It Is Uie usual rule by ^hlch to
measure damages la sudi eases, and such a
loss by the plalntUT was surely in the oob-
temiOatlon of the parties, at the time they
made the contract, as tbe one uriiidi would
naturally and probably result from a breach
by the defOidant We liave held at this term
that tbe correct rule for the assessment of
images, when there has been a breach in
fidUng to deliver the goods bargained for,
Is the difference between the agreed prtce
and tbB market value at ttie time and place
of dcdlvuT. Berberry v. Tombacber, 77 B.
E. 412, citing many autltorltle& We woe
cited by defendant's conned to Madiine Oo.
V. Tobacco Ca, 141 N. a 284, 68 S. E. 886.
and Wilkinson v. Dunbar, 14B N. C 20, 82
S. El. 748; but those cases in no d^ree con-
flict with tbe general rule now applied to ads
case. The first of thran decides, as the sylla-
bus shows: "(1) Where one violates bis con-
tract he Is liaMe tor satSi damages, indud-
Ing gains prevented as w^ as losses sus-
tained, whlA may fairly be supposed to have
entered Into tbe contemplation of the parties
when they made the contract, that is, sodti
as might naturally be expected to follow Its
vlolatlou, and th^ must be certain, boOi In
dtelr nature and In reepect to the cause tnm
which th^ proceed. Ci) The law seeks to
give full compensation in damages far a
brea<A of contract, and In pnrsait of tliis end
it allows profits to be considered when tlie
contract Iteelf, or any rule of law, or any
other element in tbe case, furnishes a stand-
ard by which their amount may be deter-
mined, with sufficient certainty. (3) In an ac-
tion for damages for a breadi of contract
in the absence of some standard fixed by the
parties when they made their contract the
law will not permit mere profits, depend-
ing upon tbe chances of business and other
contingent ctrcumstances, and whldi ate
perhaps merely fanciful, to be considered by
the Jury as part of the compensation." In
the second ease, we said: "In an action for
damages, the plaintiff must prove, as paH
of his case, both the amount and the cause
of bl8 loss. Absolute certainty, however,
Is not required; but both the cause and tbe
amount of the loss most be shown with rea-
sonable certainty. Substantial damages may
be recovered though plaintiff can only give
bis loss approximately. * * * A diffi-
culty Arises, however, where compensation is
claimed for prospective losses In the nature
of gains prevented; but absolute certainty
is not required. Compepsatlon for prospec-
tive losses may be recovered when they are
such as, in tlie ordinary oonr^e of tblngs,
are reasonably certain to ensua 'Reason-
able^ means reasonable probablU^, Where
the losses claimed are contingent, speculative,
or merely positfble, they cannot be allowed.
* * * Profits which wonld certain^ have
been realised but for the defendant's fault
axe recoverable; those whidi are speculative
and contingent are not Tlu broaA^ S^^^l
Digitized by VjOO^I
286
TB SOUTHEASTERN RBPOBTBR
rule In each cases Is that tbe party Injared
la entitled to recover all Ms damages, Indad-
Ing gains prevented as well as losses sustain-
ed; and this rule Is subject to but two condi-
tions: The damages must be snch as ma^
fairly be supposed to have entered into the
contemplation of the parties when they made
the contract, that is, must be snch as ml^t
naturally be expected to follow Its violation;
and they must be certain, both in their na-
ture anid In respect to the cause from which
they proceed. * * * It Is not necessary
that such damages shall be shown with
mathematical accuracy." See Blale on Dam-
ages, pp. 70, 71; Grlffln v. Colver, 16 N. Y.
489, 69 Am. Dec. 718; Masterton t. Mayor,
7 Hill (N. T.) 61, 42 Am. Dec. Sa This state-
ment of the rule is In substantial accord with
Machine Co. t. Tobacco Co., supra, and the
two cases collect the principal authorities up-
on the subject
[4] If the damages are ctttain, and such
OB most have been reasonably contemplated
Iqr the parties, they are recoverable for the
breach of the oonteaet of sale; but, if pure-
ly BpeculatlTe or fandfal and BnbjecC to pos-
sible eodgendea not likely to be foreeeoi,
they are oonslderea too remote and snbtie in
their Influence to be reached or established
by legal proof or Judicial investigatton, and
are therefore rejected as an element of com-
pensation. Hasterton Mayor, supra. But
the differoice betwera the price and the
market value at the time and jdace of tbe
delivery find by the contract Is not specu-
lative, but fumiahea a certain standard by
which to estimate tibe loss In case of a
breach, and Is the one which the very nature
of the contract suggests was contemplated
by the partlea. "Damages are glvoi as a
oompensatlon, recompense, or satisfaction
to the plaintiff for an injury actually re-
ceived by him from the defendant, and should
be precisely commensurate with the injury,
neither more nor less. 2 Greenleai^ Bv. f 253.
The amount should be what he would have
rec^ved if tiie defendant had compiled with
the contract Alden v. K^ghly, 15 M. & W.
117." Lumber Co. v. Iron Woi^ 130 N. a
684. 41 S. E. 797.
The court erred in not applying the proper
rule to the case, whereby it excluded from
the recovery snbstantlal damages to which
the plaintiff was entiUed, If the Jury had
found the fttcta according to hia testUnony.
New trial.
ass N. C. SB)
HOPKINS V. EUPIBB LUMBER GO. et aL
(Supreme Court of North Carolina. Hay 28,
1913.)
1. Trespass (fi 67*) — Looatioh or Luro *-
QuBsrion roa Jubt.
In an action to recover for trespass upon
several tracts of land, where definite points
called for were sufficient when proven to locate
the tracts, the question of location was largely
a question of fact for the jury.
[Ed. Note.— For other cases, see Trespass,
Cent Dig. S 150 ; Dec Dig. S 67.*]
2. Deeds (i 96*}— Pbesuhption— Seal.
In case of an ancient deed, which is not
produced but is proved from the record, and
which fails to show that it was sealed, a pre-
sumption that it was sealed arises from a re-
cital therein to that effect
[Ed. Note.— For other cases, see Deeds, Cent
Dig. H 266-260; Dee. Dig. | 96.*)
Appeal from Superior Court, Cherokee
County; Lane, Judge.
Action by W. B. Hopkins against the Em-
pire Lumber Company and others. Judg-
ment for plaintiff, and defeadants appeal.
No error.
W. M. Axley, of Murphy, for appellants.
M. W. Bell, of Murphy, and Zebnlon Weaver,
of AabevUle,' for ai^ellea
PER CURIAM, [t] This action Is brought
to recover damages for trespass upon three
tracts of land. These three tracts have def-
inite points called for which are sufficient
when proven to locate the lands conveyed.
We think the evidence amply sufficient for
tbat purpose, and that the matter is one
largely one of fact and was properly sub-
mitted to the Jury.
The plaintiff introduced three grants and
connected himself with them, but In deralgn-
Ing his tiUe Introduced a cojiy from the reg-
istration hooka of a deed from I^man W.
Gilbert to W. H. Peet dated March 1, 1861.
There is no seal after the grantor's name,
but the Instrument condndea aa follows: "In
tesUmouy whereof I have hereunto subscrib-
ed my name and affixed my seal this the
first day of March, ifiei."
[2] In case of an andent deed, ^idi is
not produced, but is proved from the record,
which fttils to Indicate in any way that the
deed was sealed, there ta a presumption that
the deed was sealed, arising from a recital
in the Instrummt itself that It la sealed.
Jones on Real Proper^, SI 107^1076; Ay-
cock v. Railroad, 89 N. a 323; Heath v. Cot-
ton Mills, lit! N. C. 202, 20 S. a. 860; Beard-
sly T. Day, 52 Minn. 401. 05 N. W. 46 ; Smith
V. Dall, 18 GaL 010; Growmng t. Behn, 10
B. Man. (Ky.) 388.
Upon a review of the record, we find no
error.
(1S2 N. C. 58U
nSHBB at aL v. MONTVALE LUMBEB CO.
(Supreme Conrt of North Carolina. May 24,
1913.)
Apfsal akd Bbbob (S 667*) — Bulbs or
OouBTs— Necesbxtt ot Gompuarcb.
The Supreme Court must enforce Ae Su-
preme Conrt role, providing that tlie evidence
in a case on appeal shall be in narrative form,
except tbat a question and answer may be set
out when the anhject of a particular exception,
and when the rule is not complied witii, and
the case on appeal Is settled by the Judge coo-
"For other euai we »am» topic and Motion NUMBER la Deo. Die * Am. Dig. Kej-No. SerlM * Ru'r Indajres
Digitized by VjOTj^TCC
N.O)
HERNDON T. SOUTHERN BT.
287
talninff tiie evidence m taken by the stenog-
rapher under hie order, tiie eonrt will remand
for a settlement, to conform to tiie rule.
[Ed. Note. — For other cases, see Appeal and
Error, Cent Di*. {§ 2830-2833; Dec Dig. {
Action b7 Mrs. F. 0. Fiehw and other*
against the Montvale Lumber Company,
Judgment for defendant, and plaintiffs appeaL
Motion to diamlsB plaintiffs' appeal or affirm
the Judgment Cause remanded to prepare
and eerre caae on aivnl-
The appellee mores to dlamlas tlie aiveal
or to affirm the Judgment for tbat the erl-
denee In the caae on appeal Is not stated In
nuntlve fimn, tmt by question and answer.
An Inweetlon of tbe record dSaeloses tbat
tho eiideno^ as taken by Oie stnograplur,
by avestlon and answor, Is made a part of
the cas^ but that this was d<me order of
the Judge.
F. C. Fisher, of Bryson City, for plaintiffs.
Frye, Oantt & Frye, of Bryson City, W. L.
Taylor, of Baltimore, Md., and Bryson &
Bla^ of Brrson Oltf, Cor defendant
PBB OUBIAM. On February 18, 181S,
tUs court adcvted the following rale: "The
evidMice in case «i appeal shall be in narra-
tln form, and not quastion and answer,
except that a question and answer, or a se-
ries of them, may be set out when tbe sub-
ject of a parttcnlar ezc^on. When tibia
nle la not compUed with, and the case on
appeal is settled the Judge, this court will
in its dlsGvrtlon hear tbe aiq?eal, or remand
for a setUanokt- of tbe case to conform to
this rule. If the case is settled 1^ agreement
of counsel, or the statement of appellant is
the case on appeal, and the rule is not com-
piled with, and the appeal is team a Judg-
ment of nonsuit, the appeal will be dismiss-
ed. In other cases the court will In Its dis-
cretion dismiss the appeal or remand for a
settlement of the case on appeal."
The enforcement of the rule is a necessity.
The use of the stenographer in trials In the
superior court is increasing, and the tempta-
tion to Incorporate all of his notes In tbe
case, instead of taking the time to prepare a
caae on appeal. Is great If permitted, we
will frequently be required to read hundreds
of pages of evidence that have no bearing on
tbe points raised by the appeal, and the costs
in this court will become bordoiaome to liti-
gants.
It is therefore ordered, in accordance with
the rule (the stenographic notes having been
Incorporated In tbe case by order of the
Judge), that the cause be remanded to the end
tbat a case on appeal be stated. The appel-
lant wilt have 15 days after this opinion
reaches the superior court of Swain to pre-
pare and serve his case on appeal, and the
appellee 10 days after such service to pre-
pare and serve oceptions or counter case.
Bemanded.
on N. a 81T)
HBRNDON T. SOUTHERN BY.
(Supreme Court of North Carolina. May 22,
1913.)
Tbial ^ 236*) — IwsTBuonoMS— Cbbdibujti
OW WlTITESSES.
An infltractlon that the Jnir shoold weigh
all tbe evidence, and in doing so might conaider
the Interest of the parties, the conduct of the
witnesses on tbe stand, their demeanor, Interest
that they may have shown, or bias, on the stand,
tbe means they had of knowing tbat to whidi
they testified, and their character and reputa-
tion so aa to arrive at the truth, applied with
aoal force to defendant as to plalntiif and to
1 tbe wltnesaea alike, and was not objection-
able as an Intimation by tbe Jadge concerning
the weixht of the evidence.
[Ed. Note.— For other casM, see TiiaL Cant
Dig. {{ S31-S33 ; Dec Dig! 1 286.*)
Clark, O. J., dissenting.
Appeal from Superior Court, IfecUenbnrg
County; Justice, Judge.
Action by Sallle B. Hemdon against tbe
Southern Railway. Judgment for plaintiff
for less than the nUtt demanded, and she
appeals. Affirmed.
Civil action tried at September term, 1912,
Meddenbuftf Superior Court, Justice, Judge,
upon fliese Issues: (1) Was tbe feme idali^
tiff, Sallle B. Hemdon, Injured by the neg-
ligence of defondant, as alleged in tbe com-
plaint? Answer: Tes. 09 What damMee
are the plalntUb enUtled to recover of the
defoidant? Answer : $600. From the Jodff*
ment rendered, plaintiff appealed.
Maxwell ft Keerans, of Charlotte, for ajK
pellant O. F. Mason, of Gastonla, and Bhan-
noubouse ft Jones, of Charlotte, tor aro^Ueb
BBOWN, J. The only asslgnnieat ot vttia
is directed to the diarge <tf the court It
must be admitted by any one who reads the
charge in this ease that it Is a full, clear,
and accurate statement ot the law bearing
upon each issue. As eadi issue is found
for plaintiff, it would seon tbat she has no
reasw to complain of tbB faSge. If she was
not awarded as large damages as she hoped
for. It was evidoitly because the Jury did
not think she had siutalned them. The
charge upon tbe Issue of damage was eq»e-
dally liberal to plaintiff, and ptfndtted the
Jury to take into consideration every posslUe
element of damage permissible In such cases,
eapedally suffering In body and mind and
shock to the nervous qrstem. Taking the
charge as a whole, we find notUng that either
party can justly complain o£ Speight v.
Bailroad, 76 S. B. 686.
His honor, after charging fully, fairly, and
correctly on each Issue, concluded his diarge
with these words, to which plaintiff exeats,
to wit : "Weigh all of this evidence, gentle-
men, in every way, and in weighing It yon
have a right to take into consideration the
interest that the parties have in the result
of your verdict, the conduct of the witnesses
Dig. K«r-NAj|hliM9 %
•Vorottsri
> iMU tnia and aaetlon NUHBHR la Dm. Dig. a Am,
288
78 SOUTHBIASTEBN BBPORTBA
upon tlie fltand and Ouit demeanor, tbe In-
terest Quit thflif maf bare iliown, ot bias,
upon the stand, the means they hare of
fcnowlnK that to which they testify, their
character and reputation in weighing this
testimony so as to arrive at the tmth of
what Uils matter Is; take the case, gentle-
men.** This la but an admonlthm to the jury
and not pointed to any particolar wltsiess or
party. It applies with equal force to the
defendant as to plaintiff and to all witnesses
alike The record shows tbat the defendant
introdnced quite a nombor ot witnesses in-
dndlng some in its emidoy. In no sense can
the diarge quoted be considered as an ex-
pression of opinion upon the &cts upon the
part of the Judge, and it is hard to see bow
It conld be prejudicial to one party more
than to the other. His honor's charge is
but a cantlou to the Jury, and Is smarted
by authority.
In Hill T. Sprinkle, 76 N. a 88S, the trial
Judge was requested to Instruct the Jury
"Uiat when there is a conflict of testiniony
between witnesses of equal respectaMIlty,
one of whom la a party In Interest and the
other not the Jnry hsTe flie ri^t to constd-
«r the question of intorest in dedding upon
the crediUUty of the witnesses"; and the
conrt said : "ffis honor did not ^ve the in-
structions in 80 many words, but told the
Jury 'that they had a rltfbt to consider all
the drcumstances attending the examination
of the witnesses aa the trial and to weigh
their testimony accordingly.' The plaintiff
had a right to the Instructions asked, and it
may be that the oonrt intended those given
as a substantial compliance with the prayer
for instructions. But we do not think that
they were or that the Jury so understood
them. It Is questionable whether they or
others understood that the interest of the
defendant In the suit as affecting his credibil-
ity was a circamatance attending the exami-
nation of a witness as distinguished from de-
portment, intelUgence, means of knowledge,
and the like, which are more frequently un-
derstood as drcumstances attending the ex-
amination of witnesses. At all events, the
charge Is not such a clear and distinct enun-
ciation of an Important principle of evidence
as could leave no reasonable doubt of its
meaning In the minds of the Jnry. The
prayer was distinct, and the response should
have been equally so. For generations past
and np to within the last few years. Interest
in the event of the action, however small, ex-
cluded a par^ altogether as a vrltness, and
that upon the ground, not that he may not
sometimes speak the trnth, bat because It
would not ordinarily be safe to rely on his
testimony. This rule is still applauded by
great Judges as a rule founded In good sense
and sound policy. ♦ • • The parties to
the action are now competent witnesses, but
the reasons which once excluded them still
odst to go only to their credibility.'*
It la said In 80 A. ft m Ency. 1004:
**WhUe the testimony of a party in interest,
as that of any other wibiess, most be suIh
mltted to the Jury, the interest * • * te
a matter to be considered Iv the Jury in
weighing the .testimony and detamlnlng
what force it shall have."
"It is vers generally h«ld 'pxoper to In-
struct the Jury that they may take into con-
sideration the interest of a party or other
witness In detemdnliv the credlMli^ of bla
testimony, and accordli^ to tbB weight at
authority the oonrt may Instmct Oie Jury
that they should oraislder such interest In-
stmctloiis of this character are not obje^
tionable aa. chargng tile Jnry with reweet
to matters of evidence^ and the refusal of
such instmction Is error, and the «rror is not
cured by a general instructton that the Jnry
are the Judges -of the oediU]^ of the wit-
nesses and the wei&tt to be givoi to the
testimony of each, nor by an InstmcOon
that the Jury are to nse their commoo sense
and experience in regard to the credlUUty
of witnesses." 88 Gya 1720.
"An instmction to the Jury that they may
consider the relations of the parties and wit
nesses, their interest temper, bias, doneanor.
Intelligence, and eredlblUty in testifying, la
not a vialatl<ni of the coutlttttlonal provi-
sion prohibiting Judges fAnn charging Juries
with reepect to matters of tact or comment-
ing thereon." Klepsdi t. Donald, 4 Wash.
486, 30 Fac 991. 81 Am. St Bep. »36;
Salacar v. Taylor, 18 Oolo. 6S8, 83 Fac. 300;
46 Oent Dig. tit "TrUl," 418, 198.
The instruction was not oiUy very general
In Its character, but was not even Impera-
tive. It did not require the Jnry to semtl-
nlze the testimony or even to oondder the In-
terest of parties, but stated simply that the
Jnry had the right so to do.
In this respect the case Is clearly distin-
guishable from the cases relied upon by the
learned counsel for plaintiff. In those cases,
the conrt directed the Jnry to "scrutini» all
the evidence with great caution, considering
their interest in the result of the verdict"
or that tt should "be r^arded with suspicion
and carefully scrutinlxed," or "to scrutinize
the testimony of the defendants and receive
it with gralm of allowance on acconot of
their interest" or that "it was their duty to
scrutinize the testimony," or to "scrutinize
the testimony and rec^ve it with grains of
allowance," or some similar direction ;
whereas, in the case at bar, the trial Judge
simply informed the Jury that they had "a
right to take Into consideration the interest
that the parties have In the result of your
verdict the conduct of the witnesses iipon
the stand, and their demeanor, the Interest
that they may have shown or bias i^pon the
stand, the means they have of knowJng that
to which they testlfled, their charadker and
reputation, in weighing this testtmAny, so
as to arrive at the tmth of wh%t the uoatter
Digitized by VjOOwIC
.HBKNPOK r. eOUTBVBIN RT^
289
Is." lUs cbAiCadUt not Blnsle out tUe- plain-]
tiff at an object of 8in^ci<»i» as In State v.
Hollowar. U7 N. a 7S2, 23 S. B. 168, In
whldi the conrt Instracted tlie Jary **tbe7
had a rlsht to acrnttnlBe dosely the testl-
mouy <rf fbe defendvita, and x«celTe it with
gmina at aUowancc^ on acoonnt ot their In-
tnest In the event of the actton." To same
effect is State t. Graham, 133 N. C. 6B2. 46
S. E. 614, and State t. UcI>ow^ 129 N. a
fiSS, 39 6. B. 840; State T. Tann. 77 8. E.
296. In Speight T. BaUway, 76 S. B. 686,
the court atngled out the plaintiff and charg-
ed, "It la yonr duty to cartfully consider
the testimony of the plaintiff ood ascertain
as best yon can what Influence the Interest
she has In the snlt would haTs upon * * *
her testimony.** etc; It is oseleas to com-
ment farther- up(»i the cases dted by plain-
tiff, for In none of them was the charge so
general and so pLppUcabte to all parties and
aU wltnewefl alike as In tills case.
We folly agree with what Mr. Justice Wal-
ker weU says in State t. Ownby. 146 N. C.
page 678. 61 S. E. 630, that "the slightest
intimation iCrom a judge as to the strength
of the eridence, or as to the credibility of a
witness, wlU always hSTS great weight with
the Jury, and therefore we must be careful
to see that neither party Is unduly pr^udic-
ed by any expres^n from the bench which
is Uhely to prersnt a fair and Impartial
trial." But we cannot agree with couns^
for plaintiff that the charge quoted is the
lightest expression of oplnl(»i upon the
Ucta. It Is but the statement of a proposi-
tion, the truth of which fas self-evident, and
was applied alike to aU parties and their
witnesses.
No ettfa.
CIiARE, O. T. (dissenting). The feme
Iklalntiff was seriously injured In a derail-
ment The defendant placed no witness on
the stand to explain the cause of the de-
railment or to testify to the extent or nature
ot the injuries sustained by the feme lAain-
flff. The only witnesses testifying as to
these Injuries and the dendlmoit were the
plaSnttfl herself and her son. The defendant
did not put upon the stand a stivle witness
who was, or had been. In its employ. The
physlclana on both sides testified Oat they
could not t^ exactly how severe nervous
shocks aflWted patlenta, and had to rely
upon what the patient told fhem In tlis
treatment thereof.
Not a single witness on tfthor side had,
or claimed to have, any Interest in the result
of the action except the- feme plalntiCT, her
husband, and her son. These alone knew
the extent of her sufferli^ and injuries. The
' verdict of the Jury on the second issue as to
dama^ was dependttit almost entirely upon
the teaUmony ot these witnesses. While
there were other witnesses, the testimony of
these was the foundation upon which the
Jnry bad to rely In awarding damages. The
78S.B.-10
defendant contended before the jury that
these witnesses had magnified plaintiff's in-
juries, and that she was not really Injured
at alL The court told the Jury "Weigh all
this evidence^ gentiemen, In every way, and
in weighing it you have a right to take Into
consideration the interest that the parties
have in the result of your verdict" No
parties testified In the action who had any
interest in the same except the feme plain-
tiff, her husband, and son. No one else, on
either side, had any interest In the result
The Instruction of the court therefore could
apply only Co them and was a caution to the
Jury to consider their evidence with suspi-
cion, or at least In a different way from the
other witnesses testifying, because they were
interested In the result of the verdict and
might be disposed to magnify the Injuries of
the feme plaintiff — as was contended by the
defendant Upon all the authorities In this
state, this charge, when nothing farther is
said by the court, la contrary to our statute
which forbids any intimation upon the
weight of the evidence by the Jndgft There
are decisions to the contrary in those states
which have no statute like ours, and in
which, as also in the federal oouct, the Judge
Is not forbidden to express an opinion upon
the evidence.
Und» the unbroken line of authorities Id
this state, it has always been error for the
Judge to. caution the Jury as to the Interest
of witnesses In the result of the verdict, un-
less he goes further and explains to the Jur;
that, notwithstanding the interest of the par-,
ties in the result of tb^r verdict, their testi
mony as such witnesses may be believed,
and, if believed, should be given the same
weight aa that of disinterested witnesses
It is plain that If thla added Instmction is
not given, .and the testimony of such wit-
nesses goes to the Jury with the criticism
upon the Interest they hav^ the Judge has
depreciated seriously the weight which should
be given to their testimony.
In State r. Graham, 138 N. C 64S, 45 S. BL
614, tills cour^ ^peaking through Connor, J.,
said: "It Is error to instmct the Jury that
because interest they should carefully
scrutlnLse the evidence of defendants, loftA-'
out aadinff tha$ if the fury believe the wi-
dewee M thould have the soma weight « If
the witneea was not IntereeteA.^
In State t. M<iDowell, 129 N. a 582, 89
a a 848, the oourC sold: they find the
witness to be credible, and that be has
sworn to the truth, his testimony should
have the same weight as If be was not in-
terested; oauHtieaeenvrin the oeurt,v^ei»
Ouroino the fmry upon the emhfeet of Intor*
eet, not to so have ohorvei the furv-"
In State r. HoUoway, 117 N. a 732; 28 8.
BL 168, the oonrt below Instructed the Jury:
"rcbey hod a right to scmtlnlia dosdy ths
testimony of the defendants, and receive it
with grains of allowance on account of their
Interest In the «Tflnt et tlie action:'* 13iis
Digitized by VjOOQ
290
78 80UTHBASTBBN BOBPGRTBBt
court said fliereon: "TMt 6httrge U capahte
of mUletuHng the furtr Into tbe impression
or belief Chat the erldence of Interested par-
ties Is to some extent dlscredtted, althoi^h
the Jury may tUnk the witness Is btmest and
has told the truth. His baaot akoM have
gone farther and have explained to tbe Jnry,
after barli^ properly called th^ attention
to the Interested relation of the witness,
that, If th^ believed tbe witness to be credi-
ble, then fhey thovXA fftve to this tesUmonv
the tame weight at other eaidenee of other
wMneuM." This rule baa been approved.
State r. Boon, 82 N. a 648; State v. By-
drs, 100 N. C. S77, e 8. B. 420; State v. Col-
ana, 118 N. C. 1206. 24 S. E. 118; State t.
Lee, 121 N. a 645, 28 S. E. 652; State r.
Apple, 121 N. a 68S, 28 S. a. 460.
In Spdgbt T. Railroad, tbe court approved
the following charge: "It Is your duty to
carefolly consider tbe testimony of tbe plain-
tiff and ascertain as best you can what In-
flnoice tbe Interest which she has In tbe suit
wonid have npon the trutbtidness of her tes-
timony, and take into omdderation all the
tesUnuHiy. If yon find sbe told tbe tmtfa.
then you must give to her testimony tbe
tame faith am4 effect that yon would to the
teetimoHv of any dtsintereatei tottneaa," To
the same effect is the statement of the rtale
as laid down by Walker, J., in the still more
recent case of State t. Yann, 77 8. & 295.
The Act of 1796, c 41^ now Bevisal, i
535, prohibits a jndgs, in tills state, to in-
timate directly, or indirectly, to the Jury any
opinion as to the credibility of a witness,
whether they are Interested or not That is
the province of the Jury. Here tbe weight to
be attached to the testimony of the feme
plaintiff and her hnsband and son (who are
the only witnesses who were Interested In
the result of the action) was a vital matter,
and the court told tbe jury that such testi-
mony was to be considered with allowance
for their Interest He therefore disparaged
It greatly in the eyes of tbe Jury, and it
was error under our authorities, and under
a just construction of our statute, to fall
to tell the Jury that notwithstanding such
Interest they were at liberty to give to the
testimony of these witnesses the same weight
as if tbey were disinterested, if the Jury
believed what they said.
In Stoto V. Ownby, 146 N. C. 078, 61 S. B.
630, Walker, J., says: "The sUgbtest inti-
mation from a Judge as to tbe strength of
the evidence, ot as to tbe credlblU^ of a
witness, will always have great weight with
a Jury, and therefore we must be careful to
see that neither party is unduly prejudiced
by any expresslDn from the bench wbldi Is
likely to prevent a fitir and Impartial trial."
The instruction here given "rvrj dearly
discredited the parties as witnesses, because
of their interest in the event of tbe action.
Tbe judge told the Jury that it was their
duty to consider Che fftet that (lie parties
named were interested. The jury certainly
must have understood that greater weight
would be given to tbe testimony ot disinter-
ested parties and that less weight would be
given to the tesllmony of these witnesses be-
cause they were not disinterested. This was
error. There are numerous (Vlnians in oOnu
states to this etteet But tbe deddons un-
der onr statute have been so clear and uni-
form that nothing can be added to tbarn
from outside sources.
Further the court erred, as claimed in tbe
second exception. In t^lliv the Jury tlut
they should "take Into considenition tbe in-
terest that they (the parties testifying) may
have shown, or their bias; on Uie stand.**
This assumes that the witnesses have shown
interest or bias, because the judge 6Ui not
add that it was tax tbe Jury to determine if
th^ had shown sudh interest or bias In tes-
tifying. The Judge did not say **it yon find
they have shown such bias."
The amonnt of the verdict shows very
clearly that tbe Jury did not give full wd^t
to tbe testimony of these witnesses. If tbe
Judge bad told tbem that tbey could give to
the testimony of these witnesses the same
t<tx and weight as If tbey were disinterest-
ed, and then the verdict had been as It Is,
the result would clearly be due to the fact
that the jury did not believe these witnesses.
But when the jn^ told tbem that tbe tes-
timony of Interested parties was discredited
by the mere fact of Interest snd did not add
(as our statute and our decisions require)
that such interest was merely a drcum-
Btance, and that the Jury could, notwith-
standing, give that testimony sudi weight as
they thought proper, the plaintiff was de-
prived of the benefit of having the testi-
mony placed Impartially before tbe Jury with
entire freedom to give it full credit without
any gusplci<Hi bdng cast npon It, as a matter
of law, as was done by Oie dia^ in Uils
case.
To call attention to any circumstance
which will Impair the wdght of testimony la
erroneous unless the Judge shall further ex-
plain that it is not a matter of law, but mere-
ly a drcn instance for the Jury to consider
In giving such weight to such testimony as
in their ot^on and belief it is raitltled to,
un trammeled by any role laid down by the
court
(Ua N. 0. S8S>
HAYES et oL V. PAGE et aL
(Supreme Court of North CaroUna. Mmj
22, 1913.)
1. MOBTGAQXS 0 862*)T-HOBTOAen Sazs—
PUBCHABE.
The owner of a debt secured by a deed of
trust made to a third person as trustee with
power of sale may lawfully bid and Ipurchase
•For oUwr mw«s sm ssm* topic ud ncUon NUUBBR In Dso. Dig. 4 Am. Dig. K^-
N.O) HATES
at the sal« when there ti no fraud or coUa-
don between the creditor and trastee.
[Bd. Note.— For other cases, see MortKages,
Cent. J>is. H 1080-1084; Dee. Die 1 8«2.*]
2. MORTaAGKB (f 242*)— AsaiomosNT— Bi^
FECT.
A mere asrignment of a mortage, in
terms which does not profess to act upon the
land, does not pan the mortnf bo's estate bx
the land, bat only tb.B aecunty it affords to
the holder of the debt
[Ed. Note.— For other cases, see Mortgaces,
Cent. Dig. H 627, 628; Dec. Dig. { 2^^
8. MoBTOAOES (i 868*)— FoaiOUWDU— Va-
CATION OF SALB.
Where a mortgagee with power to sell
indirectly parchases at his own sale, the sale
may be avoided, conseqtiently where the bene-
ficiary of a deed of tnut by tneana of the col'
laaion of the trastee was enabled to parchaae
the property at madi less than its aetoal Tal-
ne, to the prejadice of Junior Uenholders, the
sale may be vacated.
[Ed. Note. — For other cases, see Morteages,
Cent Dig. SS lOea-llOO: Dec Dig. S m*j
4. HoBTQAOBS (S 368*)— FoBgOLOBiTB»— Va-
cation or Salb— PowEB or Coubt or
Equity.
A court of eqnity has the power to va-
cate foreclosure sales whkdi are attended by
fraud and deceit
[Ed. Note.-~For other cases, see Mortgages,
Cent Dig. |S 1093-1100; Dec. Dig. | 869.*]
6. MoBTOAQEs (8 369*)— FoBBCLoBUEK— Vaca-
tion or Sau.
A Junior mortgagee or Uenholder will be
protected by courts of equity, tbe mhw U
a mortgagor, from a frandalent sale.
[Ed. Note.— For other cases, see Mortaumi,
Cent Dig. H 1088-1100; Dec Dig. | 8^
& MOBTQAGBS Q 888*)— FOBBCIABUBB— SAU
—Injunction.
Where the advertisement of tlie sale of
premises under a' deed of trust did not specify
the hour, tbat fact alone is such strong ev-
idence of the fraudulent purpose to deceive
and mislead bidders as to warrant restrain-
ing the sale at the salt of junior mortgagees
and Uenholders.
[Ed. Note.— For other cases, see Mortgages,
Gent Dig. H 1026-1036; Dec. Dig. { §3&*1
7. iNJUNOnON ({ 168*)— TSMFOaABT Rk-
STBAiHiNO Obdeb— Status or Pasties.
Where a temporary restraining order Is
Issued pending trial, the status of the parties
shonU be preserved until the case It dispos-
ed of (m the merits.
^)d. Note.— For oUier eases, see Injunction,
Cent Dig. II 367-871: Dec Dig. | IBS.*]
^peal from Superior Oimrt; Hendenon
County; Lyon, Judge;
Action by Robert G. Hayes, as trustee, and
anotber against M. Toms Pace, trustee, and
another. From an order restraining sale un-
til fiul lieaibig, defendants tippeah Af-
flnned.
Smith, Shipman * Justice, €t ^idersoD-
Tllle^ tor appellants. BrookSi Bqip Jfc Hall,
of Qreensboro, tor appellees.
BBOWN, J. This litigation snnrs out of
the case of C B. Roper et aL r. National
Fire Ins. Ca et aL, 76 S. B. 860, at last
term. In the present action the Judge re-
r. PAGB 291
strained the deCendaots fran cMopleUng the
siilo of certain lands referred to In the plead*
Inga.
From the pleadings and affidavits in the
record these facts appear: On November 26,
1908, 0. B. Roper and wife executed to A.
U Holmes a deed of trust to secure $3,200
and interest; the land Included In the con-
veyance being a boundary of about 300 acres
situated near HendersonvUle. The grantors
subsequently built a hotel on one of the lots
Included in the boundary, and gave oth&e
mortgages and deeds of trust upon the same
property. On the 6th day of May, 1010, G.
E. Roper Individually, and as executor of
his wife, executed a deed of trust upon the
same property to Smith, as trustee for J.
M. Stepp, and thereafter procured a fire in-
surance policy on the hotel to be written hj
the plaintiff, the National Fire Insurance
Company, with a standard mortgage clause
payable to J. M. Stepp. Thereafter the ho-
tel was destroyed by fire, and the Natlinuil
Fire Insurance Company, In obedience to a
decree of this court at its last term, paid
the amount doe on the mortgage, -with Inter-
est, to O. H. Valentine, trustee in bankrupt-
cy for J. U. Stepp, and took an assignment
of the said deed trust That subseiiu«it
to the execution of the Sten> -deed of trust
in 1910 sereral parties filed liens gainst
C. B. Roper for materials furnished In the
construction of his boteL Subsequently Judg-
ments were taken thereon. That B. Gl Clark
was one of these Junior Judgment holders,
having pnrchssed the hotel tract at a sber-
iSCB sale under one of these Judgments,
know as the Loenhardt and Garren Judgm^t,
for the sum of $266, and took deed therefor.
Thereafter, in order to forestall the rights
of the National Fire Insurance Company as
assignee of the Stepp mortgage, Clark caused
an Insolvent clerk In his employ, M. Toms
Pace, to purchase for him the Holmes mort-
gage of $3,200 and Interest, and take an
assignment of the said mortgage to the said
M. Toms Pace as assignee and trastee for
Clark. Following this up, Clark requested
Pace, assignee of the Holmes mortgage, to
advertise the Roper lands for sale on the
14th day of February, 1018, and engaged
K. 0. Morris to attend the sale as his agent
and bid for the land, with the understanding
between himself and M. Toms Pace at the
time that it was to he sold in separate lots.
On the day of the sale plalntlCCs offered to
pay to Pace the entire amount of his mort-
gage, interest, costs, and expenses, and take
an assignment of the mortgage, without prej-
udice, to await a settlement of the equities
between the parties. This was declined.
The plaintiffs then requested that the land be
sold en masse. This was refused. Imme-
diately after the last lot of land was knocked
down to C G. Morris, he having purchased
it all, as per prior agreemrat, at the price of
•For otber cam Mm* topic sad Motion NUMBER la Dee. Dig. A Am. Dig. Key-No. Series 4il«p;r,
Digitized by vjC
78 SODTHHASTBBN BEPORTBB
07. a
$394. the plaintiffs offered $4,000. This bM
was declined.
The following notice In writing was read
by plaintiffs at and Immediately preceding
the sale : "Notice to all Blddm and Prospec-
tive Purchasers: Bepreeentins a mortgage
creditor who holds a deed of trust npOn the
property Indaded in the advertlsemeDt of
this sale, I hare offered, and do here and now
offer, to pay to A. Ii. Holmes or his assignee
or attorney all the prlndpali Interest, cost
and taxes dae him or them, and for which he
or they are liable to account at this sale, If
be or his representatlTes will assign the said
mortgage to me, to be held without prejadlce
to await the settlement of the equities, by
the eoart» of snbseqnent creditors to this
mortgage. This has been refused. I demand
that A. Ij. Holmes and his representatives
coDdoctlng this sale shall offer all the prop-
er^ included In his mortgage for sale en
masse, bo that the largest possible amount
may be obtained from this sale, satlafylng
tala fflortg^e, and providing, If possible, oth-
er fund to be distributed among the Junior
creditors otO.IL Boper aud O. B. Boper,
executor of F. A. Boper* deceased, the mak-
ers of this Diort^ge, and against whom the
Junior UablUtleB exist [Signed] Robert G.
Bayes."
It appears from the afSdavits that the laud
Is worth 97,000 to $8,000, and that it was bid
off for Clarb: at $391. It does not appear In
the record that Holmes, the original trustee
In the deed In trust, executed a formal
deed to Face conveying the land subject to
the trusts and with the consent of the ces-
tui que trust As the record appears, he
merely assigned the papers to Pac& Howev-
er that may be, we think that his honor com-
mitted no error in continuing the injunction,
restraining the making of deeds, and passing
the title to Clark upon the facta disclosed
in the record. It clearly appears that Pace
was the trustee and personal agent of Clark,
who had purchased several of the mortgages
and the Uens filed upon this property, and
that be sold the property for Clark and to
, Clark, through another agent, at a price
whldi, as stated by this court In a former
case, Is calculated to cause the bystanders
to exclaim tiiat he got the property for notb-
Ing.
[1] We do not controvert the proposition,
supported by abundant authority, that the
owner of a debt secured In a deed In trust
ma^ to a tiiird party as trustee with power
of sale may lawfully bid and purchase at
the sale, where there Is no allegfition or evi-
dence of fraud or collusion between the cred-
itor and the trustee. Monroe t. Fncbtler,r
121 N. C 101, 28 S. a 63.
ft) mioe in a difference between an as-
sl^unent of a mortsase and -Bie substitution
of another trustee In a deed in trust by all
tiie parties Interested In It A mere assign-
ment of a mortgage, in terms wUch do not
' profasi to net upon the land, does not pass
the mortgagee's estate In tike land, but only
the security it affords to the holder of the
debt millams v. Teachey, 86 N. C. 408.
[3, 4] But whatever may be the form at
the assignment by Holmes to Pace, the evi-
dence of collusion between Pace and Clark
is plenary, and a sale conducted under such
circumstances, even by a legal trustee, would
not be permitted to stand by a court of
equity- There is no question that a court of
equity has power to vacate a foreclosure sale
which is diown to be tainted with fraud or
deceit, or to have been made In puis
suance of a corrupt scheme to gain posses-
sion of the premises inequitably.
In Jones v. Pullen, 115 N. O. 471, 20 & IL
^4, It is said: "There Is no question, ac>
cording to our authorities, that If a mort-
gagee, with power to sell, indirectly purchas-
es at his own sale, the mortgagor may elect
to avoid the sale, and this without reference
to its having been fairly made, and for a
reasonable price. This is an inflexible tuI%
and it is 'not because there Is, but because
there may be, fraud.'" Olbson v. Barbour,
100 N. C. 192, 6 a B. TM; Proneberger t,
Lewis, 79 N. C. 429; Cole r. Stokes, 113 N;
a 270, IS S. R S21.
In Mosby v. Hodge, 78 N, a 888, Pearson,
Chief Justice, said: "The exercise of the
power Is only allowed In plain cases whoi
there Is no complication and no controversy
as to the amount due upon the mortgage
debt and the power is given merely to avoid
the expense of foreclosing the mortgage by
action; but that when there Is snch compli-
cation and controversy, the court will inter-
fere and require the foreclosure to be made
under the direction of the court after all the
controverted matters have been adjusted and
the balance due is fixed, so that the property
may be brought to sale when purchasers will
be assured of a title, and not to be deterred by
the idea that th^ are 'buying a lawsuit***
This case is cited with approval in Henzrt v.
Hinton, 132 N. C. 070^ 44 S. B. 885, 95 Am.
St Bep. 647.
Oblef Justice Merrlmon in Qooth t.
Yaughan A Barnes, 92 N. O. 616, says;
"Courts regard snch powers with suspicion
and watchfulness, and never fall to scruti-
nize the exercise of them, when it amMars
that there is ground to appr^iend tliat in-
justice In any respect Is done, or abont to be
done, to the mortgagor. The mortgagor Is,
te an important sense, completely In (be pow-
er of the mortgagee, and besides the latter la
a trustee, first to contrtA the vrapettr and
apply the proceeds of It wiien sold to the
payment of the mortgage debt, and, secondly,
for the mortgagor aa -to any sozplna, and Iw
is held to a strict account'*
[i] The Jilnlor mortgagee or Hen creditor
wfll be moteeted the obnita to th«- same
enent as the mottmor.
In ST'Crc. p. 1718, It is said: *'And where
the fraud takes the form of causing the sale
to be made for a Jarget sum titan is dna or
Digitized by VjOOglC
KtATB.T.BOOBBS
t98
coUnston between the mortgagee and th« pur*
diaser, to the ta^vry of the nwrtsaeoi'a
rights, or of mlereiireBeatatlcn) aisd deceit,
practteed xtpon the purchaser or upon a Jun-
ior creditor, the sale may be set aside."
The books are full of cases where coarts
of equity have Interfered to guard the rights
<tf mortgagors, junior mortgagees, and Iten
creditors with Jealous care, and hare set
aside sales niade by mortgai^ and tniatees
where manifest wroBg and oppronrion an
made to aroear.
[I] The aflldaTita not only show abundant
flTldence of collnslon and that Pace was
Clark's agent acting for him and under hla
eontrol. but it appeara further that the ad-
Tertlsement of sale mentioned no honr when
the sale was to take pAace.
In 27 Ore p. 409, the rola with respect to
the time and place of sale is stated as fol-
lows: "The notice must specify the place at
which the sale will be h^d with a d^ree of
certainty that Intending bidders will not be
misled, but will be able to find It, and it must
also give the time of the sale with equal cer-
tain^, stating not only the day. but also the
hour at which It will be held." Eltzpatrick
r. Fltzpatrlek, 6 B. I. 64, 75 Am. Dec. 681.
The omission of sudi an essential requisite
to make a ralid sale is strong evidence of a
fraudulent purpose to deceive and mislead
probable bidders. This fact alone is suffi-
cient to Justify the Judge la continuing the
injunction, and, if it be shown at the final
hearing that no time of sale was given in the
adv^tisements. the sale should be set aside.
[7] It ia a familiar principle of equity Ju-
risprudence that the status of the partis
should be preaerred pmdlnf a trial upcm the
merits.
The ordor oontlnning the InJuncUon Is af-
firmed.
ott N. C. aiM)
KCATB T. ROGBSS et aL
(Saprame Oourt of Korth OaroUna. Ifay
28. 1918.)
L JtTBT (I 32*)— NUICBBB OF JUBOU.
As UDderatood at common law and as
used in the federal and state Constitntions, a
'^ury" tignffiea 12 men, duly impaneled, and
a less number is not a Jury.
[Ed. Note.— For other cases, see JllZ7,0eut.
Dig. i{ 221-225: I>ec Dig. { 32.*
For other definitions, see Words and PIurm-
es, vol 4, pp. 3SS9-88»4.1
2. Jdbt (1,20*)— Waivrb <ur DEncr.
Where accused pleads not guilty in a
homicide case, he mutt be tried by a jury of
12 men and could not agree to waive his right
to such a Ju^ by accepting a Jury of 11 men,
when the twelfu Juror was excased' because
[Ed. Note.— For other cases, see Joiy. Cent
Dig. K m-208; Dec Dig. I 2a*l
Clark, a J., diflsenting. .
Appetd from Superior Coort, Haywood
Ooimty; Vovahe^ Jndga,
Bobfauon Bogera and anoth« were ocm-
Ttcted of manslaughter, and appeal. Bevers'
ed, and new trial granted.
Before impaneling the Jury, the solicitor
announced that he would not ask for a y&c-
dlct of murder In first degree. One of the
Jurors was taken 111, and the trial proceeded
with 11 Jurors. The defendants were con-
victed of manslanf^ter and sentenced to
the penitentiary. In apt time they moved in
arrest of Judgment as well aa for a new trial
upon the ground that they were not tried by
a lawfnl Jury of 12 men. Bis honor, upon
such mottoUf teaSetei the following judg-
ment:
"FladingB of Fact
*'Afl the ground for a new trial contained
In said two affidavits of defendants, to wit,
that they were tried by a Jury composed only
of 11 men, the court is of the opinion that
the defendants are not entitled to any find-
ing of fact on this matter and so holds ; but,
if the Supreme Court Is of a contrary opln-
ibn, then he makes the toUoidng findhigs <rt
fact:
*^at this case was called for trial on
Wednesday morning of the first wedc, whm
the solicitor moved for a contlnnance on tlM
ground of the absence of two witnesses to
the shooting; one being sick in bed In Can-
ton and the other in South Carolina. De-
fendants resisted the continuance and insist-
ed on a trial at this term, and the court
denied the motion fiw continnance. That
the entire afternoon was consumed before a
Jury was selected. Xhat the defendants did
not exhaust their peremptory challenges.
That the Jury after htbag Impanded was in
charge of an oflteer for the ni^t who was
duly sworn. That Thursday morning, before
any evidence had been offered, the solicitor
asked that the Jury be excused and in the
absence of the Jury stated to the oourt that
since the adjournment be and counsti for
the defendant bad discovered that one of
the Jurors selected was subject to fits, that
he had recently been in Johns Hopkins Hoaid-
tal and had a part of his brain removed, and
that he was liable to lose his moital balance
If subjected to mu<^ mratal strain, and that
In the opinion of counsel he was not mental-
ly competent to sit on the Jury, That the
state was willing to call in another Juror or
to make a mlatrlal or to get an entirely new
paneL That conns^ for defendants insisted
on proceeding with 11 men, and thereupon it
was agreed in open court by the defendants
speaking in open court through their counsel
and the solicitor for the state that the case
would proceed with 11 Jurors, and that the
clerk should make no record of the fact that
one of the Jury had been excused by consent
Tbat defendants waived their right to ttave a
tell panel, and that no point should ever he
raised that only 11 mui were In the Jury box.
•For etlttr easw we mud* topic and section NUMBER in Deo. Dig. kAm. DIs. Key-NBi^lirM 1%
294
78 80UTHHASTBBN BBFOBTBS
Ota
And tbeienpon the coort excused tnld Juror
and directed fbe trlml to xtEoceeO. ThaA-tbe
two defendants are men of more than ordi-
nary biteUlgence; that McCrackoi is abont
27 or 28 years of age, and the defendant
Bogers, about 40 yeara of age, and th^
families are prominent and wealthy. That
both these defendants are possessed of sufll-
clent mental capacity to understand and did
understand that both they and their counsel
wne entering into said agreement and elect-
ing to proceed with 11 Jurors by thdr assent
and that the court consented to this course.
"Theae defteidants were rqiresented by
four able and ei^terienced counsel, one of
whom has filled the office of solicitor for two
terms. That the trial proceeded through
Thursday, Friday, Saturday, and on IConday
tile court dellTered the cbaige to the Jury;
that tbB d^endantB were preset during this
time, during the sessions of court (b^ng un-
der good bonds the court did not order them
in custody during the progress of the trial);
that the Jury returned thdr yerdlct Monday
aftenuxm. At the request of defendants
counsel, the court gare them until Wednes-
day of the second week before pronouncing
the Judgmmt of the court, and on Wednes-
day the defendants again stated that they
were not ready and asked for anotho- day,
BO the conrt gave them antO Thursday, a. m.
On rniursday the defendants filed said affida-
vits, and this was the first time It was sug-
gested that they would attempt to repudiate
their solemn agreement That the defendants
were represented by the same counsel
throughout the entire term of court That
the defendants did not ask to discharge their
original counsel, nor did said counsel ask
to withdraw from the case, but the same
counsel who made the agreement made the
motions aforesaid for a new trial.
"Wherefore the court Is of the opinion
that by their conduct defendants are estop-
ped to set up the claim that there were only
11 men in the Jury box, and the court denies
the motion, and the dtfendants except
Wherefore the court denies the motion, and
the defendants except"
W. T. Crawford, of Waynesrille, ^yson
ft BladE, of Bryson CH^, J. U. Queen, of
Waynesrllle. and J. W. Stamey, of Clyde, for
appellants. The Attorney G^eral and As-
sistant Attnney General, tor the Stata
BBOWN, J. t1] It U etomentary that a
"Jury," as understood at common law and
as used in our ConsUtutlons, fedoal and
state, signifies 13 men duly inqtaneled In the
case to be tried. A less number Is not a
Jury. Traction Co. r. Hof, 174 U. 8. 1, 19
Sup. Ot. 680, 48 L. BiL 873. In Lamb T.
liamb, 4 Ohio St 107, Cbitf Justice Thurman
said: "That the term 'Jury,' without addi-
tion or prefix, imports a body of 12 men in
a court of Justice Is as wall setQed as any
l^ial proposition can ba** Opinion oC the
Justices, 41 N. H. 660; United States t. 1,983
Bags of Iferchandise^ 2 8^. 86, Fed. Oaa.
No. 16^964; United States ▼. PhlladelphU ft
Beading B. B. Co., 128 U. 8. 118, 8 Sop. Gt
77, SL L. Ed. 1S& In State t. Scruggs, 116
K. O.806,20S.Il720,ltis held that: rche
Jury provided by law for the trial <tf Indict
mente is composed of 12 men ; a less number
is not a Jury, and a trial tsy Jury in a crim-
inal action cannot be waived by the accus-
ed." In State V. Stewart, 89 K. a 664, an
indictment tor assault and battOT* Justice
Ashe saya: **It Is a fundamental ivlnciple
of the comnum law, declared in 'Magna COuuv
ter,' and again la our BUI of Bl^ts. Uiat "no
pentm shall be eonvleted of any crime bnt
by the unanimous vttdlct <tf a Jury (tf good
and lawful men in (Qen court* ArtUde X
I 13. The only esceptifm to tbls Is where
the Legislature may provide other means of
trial for petty ndsdaneanm with fbe tight
ot appeaL • • • The conrt here has un-
dertaken to serve In the double capad^ of
Judge and Jury, and try the defendant with-
out a Jury, which it had no antbority to do^
even with the consent of the prisoner"— cit-
ing 1 Bish. Prim. Law, 768. In State v.
Holt, 90 N. a 700, 47 Am. Bep. 644, an In-
dlctmoit for cruelty to animals, it is held
that a Jury trial cannot be waived 1^ the
defendant in a criminal acUon.
it] The defendant may plead gnilty, or
nolo contmdere, or autr^ols convict, and ot
ooutae the Impaneling of a Jury is unneces-
sary; bat wbea he pleads not guilty in cases,
sudi as this, where a bial by Jury Is guar-
anteed by the organic law, he must be tried
by a Jury of 12 men and he cannot waive it
State V. Moss, 47 N. a 66; Oanceml v. Peo-
ple, 18 N. T. 128l It would have been much
safer for his honor to have followed the set-
tled precedento of this court and have dis-
charged the Jury and impaneled another.
Innovations in settled methods of proce-
dure are gmerally unwise, especially In crim-
inal cases. In this connection it Is well to
r^ember the words of Chief Justice Merrl-
mon: "A greater danger arises from prac-
tices and precedents that insidiously gain a
foothold and power In courta of Justice, by
inadvertence and lack of due consideration.
* * * In the economy of tlm^ the hurry
of business, lack of att^tlon, hasty consid-
eration. Irregular and unwarranted methods
of trial are adopted, allowed, tolerated, and
thus vldons practices spring up, creating
sources of danger to constitotlonal zl|^"
State T. Holt, supra.
New trial.
GLABK, a J. (dissenting The Conatltn-
tton, art 1, I IS, provides: *Vo person Shan
be convicted of any crime but by the unani-
mous vordict of a Jury of good and lawful
men in open court" Section 19 of the same
arttele provides; Tn all oontroversleo at
law respecting property, tb» sndmt mode
of trial by Jury Is one of the ,
Digitized by
N. O) 8TATK T.
Of tb* rigliti of Chft peoplle, and ought to to-
nuLls sacred and inTtolabla." Tbe xlg^t to
trial bgr Jury la b^ond conCroretoy, botb In
dTll and criminal caaoa.
Tbeze can be no cootnmxsf dtiwr tbat
the Jury hero roferred to means '13 men^"
not because there la any ref wenoe to trial
by jury In Blagna Oarta, or that It would
hare any authority If there was, but because
our Gtmatltntlon, made by our people for our
own goremment, provides for a Jury and the
word "Jnxy must be given the sUpilflcatlon
wbbSk it had at tbat ttme^ whldi waa a fof
ry ot '02 men." In atune states a Jury now
may onislst oC Isas than 12, and In aereral
a unanlmouB mdlct la not required. The
Supreme Court of the United States In pass-
ing upon this natter has beld. In semal
cases, that the nmnber tbat should compose
a Jury, and whether unanimity should be re-
quired or not, la entirely a matter for the
pat^le of each state, and that the fourteenth
amendment does not impose any restrictions
upon the states in tills regard. The require-
ment In the fifth and sixth amendments to
the fedwal Constitntton of a Jury trial Is
hdd also to apply only to the federal courts,
nils matter has been fully discussed and
has been settled In Hnrtado t. Cal., 110 U.
S. M6, 4 Sup. Ct 111, 292. 28 L. Bd. 232;
OaldweU r. Texas, 187 U. 8. 692, 11 Sup.
Ct 224, 84 li. Ed. 816: Leeper v. Texas, 189
a S. 462. 11 Sup. Ct 077, 35 L. Ed. 22S;
Brown T. New Jersey, 176 U. 8. 172, 20 Sup.
Ct 77, 44 L. Ed. 110; and many other cases.
In Maxwell r. Dow, 176 U. S. 581, 20
Sup. Ot 448, 494, 44 L. Ed. 687, In sustaining
a conviction by a Jury of 6 as provided
by the Constltntlon of Utah, Mr. Justice Peck-
bam reviews the authorltieB to the above ef-
fect approves them, and says among other
things: "It Is emphatically the case of the
people by their organic law, providing for
their own affairs, and we are of opinion
Uiey are much better Judges of what they
ought to have in these respects than any one
else can be. The reasons glvoi In the learn-
ed and most able opinion of Mr. Justice
Mathews In the Hurtado Oase, for the Judg-
ment therein rendered, apply with equal
force In regard to a trial by a Jury of less
than 12 Jurors. The right to be proceeded
against only by Indictment and the right to
a trial by 12 Jurora, are of the same nature^
and are subject to the same Judgment, and
the veoplB in the several states have the
same right to provide by tbcflr organic law
for the change of both or ^ther.** See, also,
Cooley, Cons. Lim. (7th Ed.) 456 et seq.
Neither the federal Constttotlonnor M^a
Carta has any bearing upon the 8nbJcA:t
There have been lawwrlters and Judges who
have stated that Magna Carta, c. 39, guar-
anteed the right of trial by Jury ; but this
view originated at a time what historical
statements were received with less investiga-
tion than at present Magna Carta was but
m
one tt aemal agreonaits made between
King John (and latw 1^ ma son Henry ni>
on the me side, and the Insurgent barons, on
the other. Magna Carta was sealed (not
signed) on Friday, June IS, 1211^ In the mead-
ow of Bu&nymedo (then a little Island) on
the river Thames three miles below Wlndaor
Castle and In alght from Its towenL It waa
an agreement between the King on the one
hand, and the great barons on the oOtet.
Tba words therein "Judicium suorum pari-
um" bad no xeferenoe to a trial by Jury.
McKeebnle, liaffiA Carta, 168; 466^ 467; 1
FoUock « Maltland, Hist Eng. Law, 882, 68L
About 08 years baftmb at tbo Heticii at CImx-
endon, 1166, Henry II Instituted the germ
of the grand Jury which at teat consisted
of 12 nun a Pollock & Maltland. ISl); but
thorough investigation has shown that the
petty Jury was not known In England till
nea^ 100 jeais after Magna Carta. At Jtrst
the verdict waa rendered by a majority ; Uiat
is, 7 waa a valid verdict Button I» SL
There had been further back, in remoter
times, instances in whi<A the witnesses were
called upon to aid the Judicial officer In
pasadng usou a criminal offoise. But that
cannot be mistaken for the Jury which when
gradually instituted soon became of the fix-
ed number of 12 and from which witnesses
are excluded. Magna Carta coold not refer
to the "Jury," which was then unknown.
Besides, the word "Judicium" does not
mean "Jury,** but "JudgmKit" McEedmle,
Magna Carta, 407. What the barons meant
In Magna Carta waa not that every one
should have tlio right to an impartial trial
by Jury, for at tbat time Juries were un-
known and the common people had Indeed
less consideration from the mail-clad batons
than from the King. What the barons did
stipulate fbr was a "wedal privilege tor
themselves. The King, when in need of mon-
ey, had t>een In the baUt of sending his of-
fidals and Judges to try charges, most often
trumped up, against wealthy barons, and ex-
torted large supplies out of them. Therefore
this stipulation in Magna Carta granted the
special privilege that when the King bad
any charge against one of their order he
should not send his Judges against them, but
the charge must be tried by men of th^
own order, t e^, by barons. They were to
be convicted and sentenced, not by the King's
Judges, as the common people were, but they
were subject only to "Judicium suorum pari-
um," 1. to the "Judgment of thdx equals."
The common people might be tried by the
Judges, who were all appointed by the King
and removable at his pleasure. But they
made him agree that when he liad any charge
against barons they should be tried and Judg- .
ed "by their peers" ; that Is, by men of their
own order. The Judges were commoners,
and not the peers or equals of the barona,
who would have scorned the idea of being
tried by them. 1 PoUodc & Maltland. Hist
En^ Law. 162, 68^ 681.^^Th^^Ju^^[^
299
78 SOUTHSASTIDBN RBPOKTEB
tbtt equals of otb«r freemen and ootM try
tharo. ■ A« to the nut me wee of tlie people
who were not even freemen, they were guar-
anteed no trial except in the barons' eoorta,
who were practically th^ ownera. The bar-
ons, therefor^ in stipulating for a txlsl of
"erery freunan" by th^ pens, were stipu-
lating for a special ptlvUege exempting thun-
B^ves ftom the JnrlsdicUon of the King's
conrts. This ■ priTilege under the drcum-
Btanoes may have been very necessary for
their protection^ for the judges were the
Kln^s agmts. But the provision cannot be
landed as guaranteeing to us "trial by Jury,"
which was then an unheard of institatlon,
au4 to whicb the barons would under no dr-
comstancea have submitted. la McKechnle
on Magna Garta, ttae original sources of in^
formation are marshaled ' and interestingly
dtseussed.
King John possessed no power he could
otmfer upon or withhold from the people
of this Btata No agreements made between
him and his barons, -which were constantly
broken, can restrict or bind us. Magna Car-
ta and other similar contracts between them
are of interest as historical documents of a
stage far below ours in the develoimient of
human rights. They confer no rights upon
us, still less do they restrict our right to
self-goTemment We base our right to tUs,
not upon the grant of any King, but upon
the inherent power to govern ourselves, re-
stricted only by the Constitution and laws
which we ourselves have made. These old
documents are useful only to explain the
meaning of words which we have used.
It is universally held t&at in civil cases
trial by Jury is simply a right or privily
and can be waived, unless there is some stat-
ute forbidding it 24 Cyc. 149; 17 A. & B.
(2d Ed.) 1097 ; and numerous cases dted by
both. Embraced in these decisions is also,
as a corollary, the proposition that in civil
cases by consent less than 12 may find a
verdict
la criminal cases there Is a wide diversity
In the courts. In some states it is held that
a Jury can be waived in all criminal cases,
as in civil cases, and In others It is held that
a Jnry cannot be waived except in misde-
meanors, and In still others It has been held
that a Jury cannot be waived in any crim-
inal case. There is nearly the same diversity
as to the right in criminal cases of the de-
fendant to agree that the verdict may be
rendered by less than 12 men or dispensing
with unanimity^ exc^t that there are two
or Uiree statM which, while holding that a
Jury caanot be waived, yet hold that by con-
sent of the defendant the Jury may con^t
of lees than 12 men, when, as in Oils case,
otherwise there would be a mistrial. The
anthorltleB on these propositions may be
found in 24 Cyc. UO; IS^ and 17 A. & B. (2d
BO.) 108S, in nnmenms cases there cited.
Tot centuries In criminal casea a defttidant
retained hla right to the andoit mode ot
"trial by battel** and cooU not be tried bj
a Jury except by hla coneent ^noe the
formula we still retain, "How will you be
tried," and the repl7i *'By Qod and my conn*
try," L e^ by a Jury. I Legal Hist Essays,
6S7.
Am the tif^t to a Mai by Jury Is gnaran-
teed oQually by the Cinutltntim in dvll and
in c^ninal cases alike, it is difficult to un-
derstand why, if It is a reqinirenient and not
merely a privilege. It can be waived in one
class of cases and not In the other. This
distinction is not based upon the Ctmstttii-
tional phraseology, but upon the view which
has happened to be taken by the incambents
of the bendi in each state. Among the states
whidi boM that a Jury trial can be waived
in criminal cases are Arkansas, Gamsctloat*
Iowa, Kentucky, Looislana, Nevada, New Jer-
sey, MassaChusetto, Michlgia, Mtssonri, lOn-
nesota, and f omaylvanla. Among tlie casss
on the point whose reasoning Is most worthy
of eonsldetation are State t. Kaufman, SI
Iowa, 679, 2 N. W. 276^ 83 Am. Bep. 14S;
Com. T. Dalley, 66 Mass. 02 Oosh.) 80; Mur-
phy V. Com., 58 Ky. a Mete.) 966; State T.
Sackett, 39 Minn. 69, 38 N. W. 773; Com. t.
Sweet, 4 Pa. Dlst B. 136; State v. Wblte^ 88
La. Ann. 1^19; and there are oUiers.
In this state it has been held that, while
In dvll cases a Jury trial can be waived, this
cannot be done in criminal casee. State v.
Stewart, 89 N. C. 564; Stete v. Holt. 90 N.
C. 749, 47 Am. Bep. 644. -State v. Scruggs.
115 N. a 806, 20 S. B. 720, holds, as in State
V. Holt, that a Jury trial cannot be waived;
but It does not directly pass on the point
whether by consent a verdict may not be
rendered by a leaser number, ttaoogh that is
a reasonable Inference.
There can be no reason shown upon the
face of the Constlttttlon why a Jury trial
should be held to be a privilege in dvil cas-
ee but an iron-clad requirement In criminal.
We, howevm have, as Just said, no case In
which it has been expressly held that the
trial, at the request of the defendant, cannot
proceed with 11 Jurors. It should seem that
it could, as the Constitution also guarantees
the defendant a right to a "speedy trlaL"
Among able opinions to this effect are;
Shaw, a J., in Com. v. Dalley, 66 Mass. (12
Cush.) 80; State v. Sackett, 39 Minn. 68^ 38
N. W. 773; Simpson, 0. J., In Murphy v.
Com., 68 Ky. a Mete.) 365. To similar pur-
port: Stete V. Borowaky, 11 Nev. 119; Con-
nelly V. Stete. 60 Ala. 89, 31 Am. Rep. 34;
State V. Kaufman, 61 Iowa, 678, 2 N. W. 276,
33 Am. Bep. 148. The following cases also
hold valid the waiver of any Jury in crim-
inal cases. State v. Worden, 46 Conn. 349,
33 Am. Bep. 27; Dillingham v. State. 6 Ohio
St 280; Edwards v. State, 45 N. J. Law,
419; Ward v. People^ 30 Mich. 116; State
T. Mansfield, 41 Mo. 470; State v. Cox, 9
Ark. (3 BngJ 4S6i and Utereus others.
Digitized by VjOOglC
VAD8W0BTH l^Am 00. T. FIKDICOHV TTttAOTIOK 00.
297
It was at th« ImtancB and hj tbe reQoest
of tbe defendants In tlila case that, one at
the Jarors becouoinK Incapacitated, no mis-
trial waa entered, and It was agreed that tbe
case should proceed with 11 Jurors and that
no entry should be mada The Judge finds as
facts that "the solicitor moved for a con tin-
nance on ground of the absence of two wlt^
nesses to the shootlDg; one b^ng in and In
bed, and the other In Sonth Carolina. The
defendants resisted the continuance and In-
sisted on a trial at this term and the court
denied the motion for continuance. The de-
fendants did not exhaust their peremptoiy
challenges. The Jury was Impaneled and an
officer sworn, Wednesday. The next morn-
ing, before any evidence had been offered,
the solicitor asked for the withdrawal of a
Juror because since the adjournment he and
the counsel for the defendants had ascer-
tained that one of the Jnrors was subject
to fits and that counsel did not think be was
mentally competent to sit on the Jury ; that
the state was willing to call in another Ju-
ror or to make a mistrial or to get an en-
tirely new paneL Counsel for defendants In-
rfsted on iwoceeding with 11 men, and there-
upon It was (^[reed In open court, the de-
fendants sprung In open court throuili thtir
connsel, and the solicitor for tbe state, that
Uie case woiOd proceed with 11 Juron^ and
that fbe tHetk. should make no record of the
tact Oat one of tbe Jury bad beoi excused
by consent; tbe defendants waived fhdr
rlgbt to have a full panel and stated that no
point should vree be raised that only 11 men
were tbe Jury box ; and thereupon the court
excused said Juror and directed tiie trial to
proceed. The two defendants are men of
more than ordinary Intelligence, McOnxkea
being 27 or 28 years of age, and the defend-
ant Bogers about 40 years of age, and their
families are prominent and wealthy. Both
these defendants are possessed of sufficient
mental capacity to understand, and did un-
derstand, that boQt tb^ and their eeunsd
were ^terlng Into said agreement and Meet-
ing to proceed with 11 Jnrors by tlieli as-
sent and that the court consented to this
course. These defendants were represented
by four able anS experienced counsel, one of
whom has filled the office of solicitor for
two terms." The trial occupied four days.
No objection was made as to the Juror being
excnsed nntll two days after the verdict
The defendants did not aak to discharge
tbelr counsel, nor did connsd ask to with-
draw, and the same counsel who made the
agreement made the motion In arrest of Judg-
ment upon tbe ground- that It was Invalid.
The prisoners have had every right and
privilege which is guaranteed them by the
Constitution. Tbey thought It was to their
benefit to proceed with 11 jurors and asked
that it shoWd be done. The coulrte may well
ecmtlnise ^osely 'all offais to waive a Jury
facial In'orlmittal cases, because the defend-
ants may act unadvisedly In some cases, and
the consequences may be serious; but Oils
should not cause the Constitution to be con-
strued differently as to the trial by jury In
dvil cases and in criminal cases.
In the present case the court finds as facts
that the prisoners were men of intelUgence
and means and were represented by several
able counsel, one of whom was formerly so-
Udtdr for that district for eight years. The
prisoners do not show that tbey sufTered any
detriment In the coarse of the trlaL They
have had a fair trial, and they have been
deprived of no constitational rigtat.
A defendant has a constitutional right to
a speedy trial by Jury. Yet he waives this
provision by obtaining a continuance. A plea
of guilty dispenses with a Jury trial alto-
gether. Why therefore cannot a defendant
agree to accept a verdict by 11 Jurors when
be has competent counsel and is himself in-
telligent end both bis connsd and himself
think It for his Intwest to do so? E^pedally
when this Is done with the consent of the
court and the solicitor repieBentlng the state;
There is nothing to Indicate tbat tbe prlacm-
ers suffered any prejudice from the absence
of the other Jurpr, and they ought not to
obtain any benefit by tbelr brea<A of good
faith.
(Ui N. o. sui
WADSWOBftH LAND CO. v. PISimiONT
TRACTION CO. et al.
(Supreme Coart of North GarOUna. May
22, 1913.)
1. EmINEWT DoUAIN (J 10*>— COKDElfWATtOIT
OF Land— TaAcnOH Cokpawt— Riohi o»
Wat— CHAOTma PowxBs.
Where a traction company had the pow-
er of eminent domain, not only by virtue o(
ita cfaarter, bnt expressly conferred by Be-
viaal 1906, » 1138, 2576, it was no objeetton
to its exercue hereof tbat its charter also
aotfaorized it to enraffe In private bnimesa In
addition to its aatbority to operate a street
railway.
[Ed. Note.— For other cases, see Bmlnent
Domain, Gent Dig. U 86-18; Dec Dig. I
10.*]
2. Einmnr Dohazit (i 18*>-<tTWiT Bail-
BOAos— Land— Atrrronrrr to OomnHit—
Peivatx Purpose.
Where a traction company wa* alto ao-
tborlsed to gmerate electricity for public use,
and was given the power of eminent domain
by ita charter and by general atatute, it was
no ahawer to ita application to condemn land
that it intended to use the same for private,
-as dlBtingaiBbed from tiie pvblic, purpose, since
if, after acquiring the land for puuie use, it
devoted It to a private purpose, such use could
be terminated by quo warranto.
tEd. Note.— For other caaea, see Dmlnent
Domain, Cent. Dig. f| 51-68; Daa Dig. |
18.*]
3. BHnmiT DoMAiH <i 101*)— Fazmon—
"CoKiatBCiAj. Bailwat.'*
The words **eommerdal xauway, * as used
in tiie petltlcni ot a traction company for
condemnation ai land, meant a
•fWstltar eaiM aamt tople and aaottsb NUKBBH la Dwi. Dtg. * Am. Dig. Ktr-^'la§lM>tt.
298 78 BOimnABCTEN BBFQKnBB
OLa
ftcefl In oommeret by th* canUfs of utidea
ot merehMBdiH.
tE6. Mote— For otber eaus, mo Bminent
Domain, Ccmt Dif. || 50(MS18: De& Diff. I
191.*
For other definitions, mo Words ud Phras-
es, ToL 2. p. 1303.]
4. QaBBIEU (i 7*}-OUBnB — iHnBBTATB
KVSINKSS.
Where a traction company «aa authorized
to operate a railroad line between certain
points within the state, it was not a Tiolation
of it* diarter to accept frdght or paMengera
to be delivered at either terminus to other
carriers to be transported beyond the limits
of the state In interstate commerce.
[Eld. Mote^For otiier cases, see Carriers,
D«!. Dl«. S 7.*J
Appeal from Superior Oonrt, Uecklenbnrg
Gonnty; WAb, Judga
Action by tbe Wadaworth Land Company
against tbe Piedmont Tractloa Company and
others. Judgment for defendants, and plais-
tttf appeals. Affirmed.
Bnrwell & Gansler, Tlllett ft Ontbrie. and
Maxwell & Keerana, all of Charlotte, for
appellant Osborne, Cooke A Robinson and
Pharr & Bell, all of Charlotte, for appellees.
CLAUK, G. J. [1] Tbe plaintiff contends
that the Piedmont Traction Company can*
not exercise the power of eminent domain
because under its charter It is antborized to
engage In private business In addition to Its
authorl^ to operate a street railway, which
Is a qnail public busineaB. We think the law
Is dearly stated thus in IS Oyc. 670: "But
the fact that the charter powers of tbe cor-
poration, to whidi tile power ef emlnoit
domain has been delegated, embrace both
private purposes and public uses does not
deprive It of the rlgbt of onlnent domain in
the promotion of the public uses." Tbe trac-
tion company has the power of nninent do-
main, not only by virtue of its cbartw, but
by Bevteal, H and 2576; Street B, B.
Go. T. Bailroad, 142 N. a 428* 66 S. B. 845,
9 Ann. Gas. 683.
In Mcintosh v. Superior Court; 66 Wash.
214, 105 Fac. 687, it Is said: "It Is next con-
tended that, while ttie company la authorized
to construct and build railroads. It Is also
antborlsed to engage in private budnees.
Conceding this to be true, the company may
condemn and appropriate land In aid of its
public purposes for public uses only." To
same purport, Power Co. t. Webb, 128 Tenn.
986, 133 S. W. 1105.
12] The plaintiff further objects tbat the
defendant's charter shows that a great many
of its purposes are private, and that tbe
petition does not show that the lands sought
to be taken will not be used for such private
purposes. Looking into tbe petition, it la
there stated that the defendant desires this
laud in connection with its works for tbe
production of power "to graierate electricity
for the use and benefit of the pubUc" It
has the power of condemnation under its
charter and the general statute, and nothing
in this record discloses that tbe petitions
is seeking the land for any otber than pnbUe
purposes. We cannot presume it to be act-
ing in bad fa Itb. If, after acquiring tbe land
under condemnation for a pubUc use, tbe
petitioner should devote it to private pur-
poses, there Is a remedy by quo warranto
and otherwise. Tbe mere possession of in*
ddental powers under the charter to engage
in private enterprises will not be held to de-
prive the corporation of tbe right of eminent
domain to effectuate Its public purposes, and
when it is seeking to exercise this right for
the public uses which it is authorized to
undertake. Walker r. Power Co., 160 Fed.
856, 67 a a A. 660, 10 L. B. A. (N. S.) 725;
Brown V. Gerald, 100 He. 801, 61 Aa 785,
70 L. B. A. 472, 109 Am. St Bep. 620; Col-
Uer V. BaUroad, 113 Tenn. 121. 83 a W. 106;
Lewis on Em. Dom. (3d Bd.) 314.
In Street B. B. v. Bailroad, supra. It was
contended that the plaintiff was not trarsuing
the public purpose expressed in Its diarter
of building a street railroad In FayettevlUe,
but was building a branch line In the coun-
try and was tberefore acting ultra vires.
The court said that such objections, "even
If valid, can only be made available by di-
rect proceedings instituted by some member
of tbe company for unwarranted or irregu-
lar procedure on the part of the officers or
by the state for abuse or nonuse of Its fran-
chise, and are not open to collateral Investi-
gation in a case of this character nor at tbe
instance of tbe defendant."
Tbe traction company has taken out Its
charter under the general corporation law,
as authorized by Beviaal, 1 1138, and that sec-
tion provides that tbe term "street rail-
way" includes railways operated by steam
or electridty or any other motive power,
used and oirarated between different points
in the same municipality or between points
in municipalities lying adjacent to each
otber, and that sndi railways may carry and
deliver freight, etc, with the restrictlou that
the line so operated shall not extend In any
direction more tban 60 miles from the mn-
nldpaUty la wbldi the home <^ce Is situ-
ated.
[S] We do not eee anytblnc in 0ie potion
of an Intentiwi on the part of ttie tractloa
conuwny to use the proper^ aonc^t to be
condemned for any otlier than quad pnbUc
purposes. It Is true, as tbe plaintiff coih
trade, that tbe petillfm uses the words "oom-
mwdal railway.** But that is purely a mat-
ter of ^uaseology, for tlie company Is en-
gaged in commerce when It carries artides
of merchandise.
[4] Tbe plaintiff contends that the trac-
tion company proposes to engage In Inter-
state businesa. Tbe traction company, how-
ever, is now oi>eratlng only between Char-
•FM- Atliar csMS mm same toplo a&A fsetloa NUMBBK la Dso. Die. A Axo.
WADfiWORTH LAND CXX r. PIEDMONT TBAOTTON 00.
299
lotte and GastonlA. It would not be In tIoIa-
tion of the terms of Its diarter it It should
take &^lit or iwssengerB to be delivered
at eitber termiiraB to other carries to be
transported bey<md the limits of th« atata
TMm la what vnsy railroad company doee
ondw its charter. Tin traction company
would not thereto be exceeding Its cbartued
il^ti^ and. If it did, llie rraoedy ia, aa al-
ready atated, not to be flnmd by refudng tlie
oomiiany tiie ligkt to oondemn an eaaement
through the land, which certainly la within
the scope of its chartered powers, for the
transaction of legitimate boaineaB. Hie court
will not sustain a collateral attack, and deny
the right of condemnation, upon a suggeetlon
that the petitioner may exceed its chartered
right in the nse of fibe sporty tinu acquir-
ed by omdemnatlon.
Affirmed.
OB H. a son
ffADSWOBTH LAND GO. t. FIISDMONT
TRACTION CO. ct al
(SnpieBie Court of North Carolina. Hay
28. 1818.)
1. StasR Razlboads (| 48*)— Bioss of
Wat-^dditionai, Bubdbr.
An electric railroad company acqairlns
a right of way cooid not convey to a trac-
tion company the right to Impose additional
bnrdois thereca, but traction company
could only aeqnm the ri^t to Impose such
additlboal bnrdens and to use addiUonal land
for its parpoae by condemning the same and
paying damages to the ownen.
_[Bd. Note.— For other casea, ace Street
^Uroads, Cent Dig. H 1^ 124; Dec. Dig.
4& J
2. BUIZnZTT DOHAIN (I 202^BTIDXirOS—
Dauaoeb.
In a proceeding to condemn land for a
right of way by a traction compan;, evidence
that the landowner intended to develop tlie
property aa a city addition and to convert a
part thereof into an artificial park wag In-
admissible.
[Ed. Note.— For other eases, aee Eminent
Domain, CenL Dig. S 641 ; Dec Dig. { 202.*]
Evidence (( 14%*)~-Valub— Saixb ov Otb-
£B PbOPBBTT.
In a proceeding to condemn land for a
railroad right of way, the proper measure of
dsmagea ii the difference between the marltet
valae of the land before and after the appro-
priation, and hence evidence of specific sales
of other property not similarly located or de-
veloped was inadmissible, though it waa in-
tended to develop the property in guestion.
[Ed. Note.-~For other cases, see Evidence,
Cent Dig. S 377; Dec. Dig. j l42.»3
Appeal from Superior Court, Mecklen-
burg County; Webb, Judge.
Action by the Wadsworth Lend Company
against the .Piedmont Traction Company
and another. Judgment for [dalntur, and
defendants appeal. Kereraed.
Osborne^ Cocke A Bobinson and Fbarr A
Bell, all of Charlotte, for ai^Ianta. Bar.
well A Cansler, Tlllett A Onthrie, and Max-
well A Eeerana, all of Charlotte, for appcd-
lee.
GDABE, 0. J. The defOndant, Oie Char-
lotte Electric Railroad Company, bad ac-
quired from the grantors of the plaintiff
ttie right of way to maintain and operate
its street railway system. The Piedmont Trac-
tlon Company, under contract with the Char-
lotte Blectric Ballroad Company, is operat-
ing Its freight and pasaenger intenuban
can over the right of way which had been
aoqolred by said electric railroad company,
and has erected additional poles, wires, and
other apparatus thereon for its own pur-
poses and besides, since this action Ixgut,
has instttnted a proceeding before the clerk
to condemn said right of way tm ts» addi-
tlonal burdens thus placed on it, and also to
condemn 21 additional feet in width for Its
use. By consent the two proceedings have
been consolidated in this action.
[1] Exception 1. The court pr<^>erly
that the electric railroad company could not
convey to the traction company the right to
Impose the additional burdens, but that the
plaintiff was entitled to compensation there-
for. The traction company is imposing a
new burden and service upon said right of
way, and Is clearly liable In damages there>
for to the plaintiff for its nee of the 24 feet
right of way used by the electric railroad
company, as well aa fOr the value of the ad-
ditional 31 feet whi(^ the traction com-
pany is now seeking to oondeom. This has
been very fully discussed and demonstrated
In PblUips T. Telegraph Co., 180 N. a fi2(^
41 8. E. 1022, 89 Am. St 868; Hodges
V. Telegraph Co.. 133 N. a 22B, 45 a Bi BTi;
Brown v. Power Co.. 140 N. O. 334, B2 8. B.
9S4. 8 I« R- A. (N. 8.) 912; Beasley T. Ball-
road, 14BN.a2T%Se8.1L60L In McCdl-
lock T. BaUroad, 146 N. a 818, 09 B. XL 888^
the court said, npmi facts very rimiar to
these: '^e plalntlffB ar« entitled In this
action to have permanent damages assessed,
In the nature eS condemnati<m, for tbe addi-
tional burden placed upon the lot by its use
for purposes other than those for which d^
fmdant uses the lot pure^ aa lessee <tf the
North Carolina Railroad Company. Hodges
V. Telegraph Co.. 133 N. & 226 {46 8. B.
572], in which case this proposition la bo
clearly and fully reasoned out by Connor,
J., with fall citation of authorities, that
further discussion hen would be idle re-
petition."
[2] Passing by other exceptions, we think,
however, that his honor erred In admitting
evidence as to the speculative uses to which
the owner intended to put the property and
as to its contemplated improvement ami in
allowing the jury to cmsider ttiese matters.
The assignments of error presenting these
points are Nob. 8,a,«,ll«U.16kl8k84,4I,
48, 49^ ISO^ and 6a Of theses 8, S. IS. 16; 1^
and 84 are exceptlona to ihe admlsslmi of
erldence, over objection by the traction com-
•For otlur cases same lopio and section NUHBBR la Dse. Dis. * Am. Dig. Ktir
300
* 18 SOirrBBASTBRN BBPOETBB
pan; iui to the SntentloD at die owna to
conrert a part of Its property, oAdBtlng <tf
abODt 100 acres ot bottom lanA Into an -aitl-
fldal park. Nos. 6 and 11 are to tbe admla*
aion o£ evidence as to tlie probable value ot
the lots Into wbldi tbe i»oper^ might be
•ubdlTlded. Na 84 la to the refusal of the
court to Instruct tbe Jury, aa requested, tbat
they could not consider this Intended devd-
opment the owner ot tJie propert7> Mob.
4B, 4S, no, and 60 are to the Charge wbere&n
the court Instructed the Jury that they
should take into consideration the plana of
the owner for the future Improvement of
the property and the uses to which it was
Intended to be put
In Brown v. Power Co., 140 N. C. 833, BH
S. £X 954, '3 L. R A. (N. S.) 912, which we
reaffirm, the court held that it was proper
for the jury to take Into consideration, not
only the present condition of the property
condemned and the usee to which It was
then applied, but also all other naes to
which It might be applied for which It was
nattirally adapted.
In the present case the plaintiff was al-
lowed to go beyond this rule and show the
uses' to which the owner Intended to pot
the property and Its future ImproTement
Tbe plaintiff proved, without objection, the
capabilities of the property and all the uses
for which It contoided the property was
adapted. Its nearness to the dty of Cbar-
lotto, and that the property as a whole was
well situated for development as a residen-
tial secthm. To all this no objection was of-
fered 1^ the traction company. The error
was In permitting the plaintiff to go further
and to show that 100 acres of this property,
oHudstlnff of bottom land not suited for de-
velopment as a reeldeutlftl prtqierty but sub-
ject to overflow, the owner int^ided to
make Into a park and beautify it by laying
off walks and building aummer houses and
otherwise, and that such Improvouent
would eohanoe In value the remaining por^
tion of the pnv>ert7. We think this was
too remote and Impn^iarlT enhanced the
damages allowed. It was purely specula-
tive and .should have been excluded.
In EUIott, Beads A Streets, 278, it Is said:
"It Is held that, although It may be proper
to show the location and surroundings and
the uses to which the land Is adapted, yet
It is not competent to prove by the owner
the use to which he Intends to devote It"
Among many cases to support that propo-
sition are Railroad v. Railroad. 103 Va. 399,
49 S. E. 512; Plnkham v. Chelmsford, 100
Blass. 225.
In Railroad v. Stocker, 128 Pa. 233. 18
Atl. 399, It was held that the jury could
not value, a tract upon the theory of whet
It might bring, when platted and divided
up Into building lots ; but they.could Inquire
what a present purchaser would be willing
to. pay for tt In its present condition, and
not what a speculator might be able to rea-
lise out of a resale in the future. To same
purport, Ballroad t. AbeU, 18 Mo. Am^ ^7;
BaUroad t. Oleary, 125 Pa. 4S1, 17 Aa 468;
11 Am. fit Bep. 91&
In 2 Lewie, Bm. Dom., 1066, 1067. it is
•aid: 'TThe oonduslon fron the authoiitieB
and reason of the matter seems to be that
wltoesses should not be allowed to give
their opinion as to the value of j^oporty for
a particular piurpose^ but should state ite
market value in view of any purpose to
which it Is adapted. Tbe .oradltion of the
property and all ite sorroundlngs may be
shown and Its availlblllty for any particular
use. If it has a peculiar adaptetlon for cer-
tain uses, this may be shown ; If such pecul-
iar adaptetlon adds to Ite value, the owner
Is entitled to the beneBt of it. But when
all the facte and drcumstances have been
shown, the question at last Is what Is it
worth In the market" To same effect
Boom Co. V. Patterson, 98 U- S. 403. ^ U
Ed. 206; Railroad v. Humphreys, 00 Va.
436, 18 S. S. 901.
[3] The court also erred In admitting the
evidence as to the value of other property,
and the sales of si>eclflc parte thereof, and
In charging the jury that they might con-
sider such evidence In arriving at their ver-
dict Assignmente of error Noa. 27, 28, 29,
31, and 33 were to the admission of evidence to
the above effect and No. 47 was to the chaise
to the jury on that point Such evidence
was held Incompetent in Warren v. Makeley,
85 N. a 12 ; Bruner v. Threadglll, 88 N. a
365; Cline v. Baker, 118 N. C. 782, 24 S. E.
516; Rice v. Rallroaa, 130 N. a 380, 41 S.
E. 1031 ; Railroad v. Patterson, 107 Pa. 463.
In Railroad v. Patterson, above dted. the
court said: **It Is well settled by numerous
decisions of this court that tbe proper meas-
ure of damages where lands are taken for
railroad purposes is the difference between
the market value of the land before and
titter' appropriation of the right of way.
And it seems to be eqnaUy well settled un-
der the law of thia stete that evidence ot
particular sales of alleged similar i)ropaty,
under special circumstances. Is inadmissible
to esteblish market value. • • • Tbe
selling price of lands in the ndi^bortaood
at the time is undoubtedly a teat of value,
but it is tbe general selling price, not the
price paid for particular property. The lo-
cation of the land, ite uses and Ite products,
and the general selling price in the vicin-
ity, may determine the market valne. The
price which, upon a consldmitlon of the
matters steted, the judgment of well-inform-
ed and reasonable men will approve Is the
market value. A particular sale may be a
sacrlflctf compelled by necessity or it may
be the result of mere caprice or folly. If It
be given In evidence, It raises an Issue col-
lateral to the subject of Inquiry, and these
collateral Issues are as numerous, as toe
Digitized by VjTJOvTL
OB3KM» T. BOAJtlX OF 001C*BS .
sales. • • • Tlie Introdnctlon of erl-
dence of parj;lctiUr ffales !■ tbwefore not
allowable under our dedsloiis to eatabllsh
market Talne."
The erldenoe aa to aales of other pn^erty
was as to sales of proper^ In residential
suburbs of Charlotte which bad already
been developed by the laying out of modern
ImproTements and had already been largely
settled as home sections. The plalntlfl was
erroneonsly penoltted by this evidence to
compare Its property not similarly located
with property already developed upon the
ground 4hat it lnt«ided to der^p this
property 1^ the upmdltura of large nuns
ct money.
These etrors entitle the defendants to a
new trial, and It Is not necessary to con-
sider the other assignments of error, though
It may be said, witbont passing an authori-
tative opinion, tbht it does not now seem to
OS that there are avoH in tiie other excep-
tlona.
Ikxor. .
062 N. C. 479)
GREGG V. BOARD OF C0M*B3 OF BAN-
DOLPH COUNTY.
(Snpreme Court of North Carolina. May 28,
1913.)
1. Statutes ({ 16*)— BitAOXiisiny-BKADiHO
Statutes.
Priv. Acts 1911, e. 46S, proTidins for hold-
ing election* In special school distrlcti on the
question of isBoing bonds for school poiposes,
applied to the whole state aa introduced in the
House of Kepresentatives, and passed the House
on three several days with an aye and no note
oo the second and third readings, whkh was
entered on the journal, and in the Senate the
act passed the three readings oo separate days,
and on the second and third readings the ayes
and noes were called and entered, but on the
third reading the Senate adopted an amatd-
mcnt limiting its operation to Liberty school
district in Randolph county, which amendment
was concnrred in by the House of Bepreeenta-
tives without an aye and no vote. Held, that
the act was not void because not read three
tines in each bouse on separate days after the
amendment was adopted in the Senate.
[Ed. Note.— For other cases, see Statotw,
Cent Dig. H 14-16; Dec. EMjTI 18.*1
2. Evidence {| 83*)— Presumptioits.
lliere is a presumption in favor of the
legalitjr »ad regularity of the acts of public
officers.
[Ed. Note.— For other cases, see Evidence,
Cent Dig. I 106; Dea Dig. % 83.*]
8. Schools amd Schooi. Distbicts ({ 111*)—
IssuAWCE op Bonds— Time of Issuance.
Since Priv. Acts 1911, c. 465, authorizing
the holding of Sections, lor issuing bondi for
schotd purposes In Liber^ school district in
Randolph county, prescnbes no time limit
within which the bonds shall be issued after
the election, delay in issuing bonds under an
election held in Septraiber, 1911, is not ground
for restralidnc their Issuance, at suit of a
taxpayer, Ih the absence of evidence of abuse
of power In delaying their actual Issuance.
[Ed. Note.— For other caeea, see Schools and
School Districts. Cent. Dig. H 26S-268; Dec
Z%. I UL*]
Appeal from Superior Ooort; Randolph
County; Long, Jndge.
Action by 3. D. Gregg against the Board
of CommlssloneiB of Randolph County. From
a Judgment for defendants, plaintiff apswals.
Affirmed.
This Is an action brought by the plalntitf,
a resident taxinyer of Liberty school dis-
trict, In Randolph county, to restrain the is-
suance and sale of the bonds of said dis-
trict; the defendants having prepared said
bonds for Issuance and ofTered the same for
sale. The defendanto claim the right to is-
sue said bonds under the authority of chap-
ter 465 of the Private Acts of 1911, and an
election held pursuant to said act Hie
court denied plaintiff's motion for an injunc-
tion, and plaintiff appealed.
The act as Introduced In the House of
Reprebentatlves, applied to the whole state,
and provided for holding elections In special
school districts on the question of Issnlng
bonds for school purposes, the- election to be
ordered by the county commissioners, upon
petUion of one-fourth of the freeholders of
the district. Indorsed by the county board of
education. The act passed the House of
Representatives on three several days, and
on the second and third readings there was
an aye and no vote, which was entered on
the Journal. In the Senate, the act passed
the three readings on separate daya, and on
the second and third readings the ayes and
noes were called and entered on the Jonmat
On the third reading In the Senate an amend-
ment was adopted, limiting the operation of
the act to Liberty school district In Ran-
dolph county, which amendment was concur-
red in by the House of RepresentatlTes^ but
without an aye and no vote.
At the meeting of the board of county oom-
mlasloners of Randolph county, held on flih
7th day of August, 1911, the following peti-
tion was presented to the said board :
"To the Board of County GommlaBloners
of Bandolpb County: We, the undersigned
freeholders, within liberty school district^ in
Randolph county, a special school district
formed by the county board of education of
said county heretofore, as prescribed by sec-
tion 4115 of the Revisal, respectively peti-
tion your board to grant and provide an elec-
tion to be held nnder and in accordance with
an act of the General Assembly of North
Carolina at its regular session In the year
1911, entitled 'An act to authorize the is-
suance of bonds by Liberty school district,
in Randolph county,* upon the question as to
whether bonds Shall be issued by said district
for school purposes, as In said act provided,
in the amount of elghty-flve hundred dol-
lars ($8,600.00), to bear Interest at the rate
of five per centum per annum, payable semi-
annually, to mature twenty years from date
of same, which said bonds shaJl not be sold
for leas than par valuer And your petition-
•For atber esass same t^e oad section NUMBER In Doe. Dig. A Ask Dig. Ksy-MiU^tetrt %
302
78 SOUTHEASTERN BEFOBTEB
(K.G
era farther ask tbat, In case the IsstiaDce of
bonds be authorized at an election held in
accordance herewith and actually Issued,
there be levied and collected an amotint of
tax sufficient to pay the interest on said
bonds and provide a ninking fund to pay the
same at maturity.
"This the 20th day of Jaly, 1911.
"Signatures: J. Rom Bmitb and Otbers.
"J. H. Johnson.''
Said petition having been indorsed and
approved the board of education of Ran-
dolph county, the following order was made
by the Board of Coonty Gonunisiloners, be-
ing indorsed on the petition itself, to wit:
"Election granted and ordered to be held
in the town of Liberty, on the 12th day of
Se{)tember, 1911. C. R. Curtis is hereby ap-
ptrfnted rc^trar and J. C Elrkman and B.
0. Troy poD. holders.
"[Signed] H. T. Gaviness,
"Chairman Board of Goant7 OcHnmiflsioners.''
And the said petition and order recorded
in the minutes of the said Board of Coih-
mtssloners.
The town of Liberty Is embraced within
Liberty school district, though the town and
the district are not coterminous. The usual
polling place for the town was, and is, the
place where the election was held under the
aforesaid order, and also at the place where
the polling or voting was done at the only
election ever held In Liberty school district
prior to that Ume, and the said elecUon held
In pursuance of said order aforesaid was in
all respects conducted as an election for the
said Liberty school district At the election
held pursuant to said order of the Board of
County Commissioners a majority of the
qualified voters voted "for bonds." And, on
returns of said election being made to the
said Board of County Commissioners, it was
adjudged by said board that the election
had been carried In favor of the issuance
of tl^e bonds, and It proceeded to make ar-
rangements for the issuance thereof, and
have prepared bonds In the sum of $8,500 of
the said Libert? school district, in Randolph
county, for school purposes in said district,
pursuant to the said act, petition, order, and
election, and are now offering said bonds for
sale.
The contentions of the plalntitr are: (1)
That the act la void because not read three
times in each house on separate days after
the amendment was adopted in the Senate;
(2) that the election Is void because ordered
for the town of Liberty and not for Liberty
school district ; (3) that the election Is void
because it does not appear that the petition
was signed by the requisite number of free-
holders; (4) that the election was held In
September, 1911, and defendants have lost
the right to Issue bonds, if It ever existed,
by nonnser.
Hammer ft Kelly, of Ashboro, tot ai^l-
lant H. M. Robins; of Ashboro* tor appel-
lees.
ALLEN, J. There is, in our opinion, no
valid objection to issuing the bonds In con-
troversy.
ri] The act, as it passed the House, was
not obligatory on any school district In tlie
state, but simply gave the opportunity to all
to hold an election as to issuing bonds, etc.,
and every provi^on now In the act was not
only In it at that time, but it also applied to
Liberty school district as one of the*districts
of the state, and the effect of the amend-
ment adopted in the Senate was not to in-
clude Liberty school district, bat to exclude
other districta As thus understood, the
amendment falls within the principle declar-
ed lA Brown v. Stewart, 134 N. C. 857, 49
S. B. 741; Com'rs v. Stafford. 138 N. C. 463,
60 S. E. 862; Bank v. Lacy, Ifil N. C. 3, 65
S. E. 441. "It Is equally weU settled that,
when the act has been passed in accordance
with the provisions of article 2, section 14,
of the Constitution, an amendment whlc^
does not increase the amount of the bonds or
the tax to be levied, or otherwise materially
change the original bill may be adopted by
the concurrence of both houses of the Gen-
eral Assembly." Commissioners v. Stafford,
188 N. C. at page 469, 60 8. B. at page 863.
The second objection wonld require serious
consideration if the fact was as contended
by the plaintiff, bat when the petition Is read
with the order of the county commissioners,
it Is clear that the election was ordered for
the district, and that it was to be held at
the usual place in the district; which was
In the town of Liberty, and It does not ap-
pear that any cldzm affected by the election
was deprived of tlie right to vote.
[2] No evidence was offered In support of
the allegation that the requisite number of
freeholders did not sign the petition for the
election; and, in addition to the presump-
tion in favor of the legality and regularity
of the acts of public officers, the act pro-
vides, after the requirement as to the peti-
tion, that "The ordering of such election by
the board of county commissioners shall con-
clusively presume that all precedent condi-
tions and provisions ot this act have been
complied with."
[3] There is nothing In the act which lim-
its the time after the election within which
the bonds may be issued, and. In the absence
of evidence of abuse of power, the delay is
no valid reason for restraining Uie dtfend-'
ants from doing so.
It may be that the defradants have had
trouble in selling the bonds, and that they
have taken steps to issue tbem as soon as
a sale could be made.
Upon a review of'tha wbote xeoord, we
And no error.
Affirmed.
Digitized by
y Google
BAZd>THKASH A OO. T. KaOOBMlCIK
808
(192 N. 0. m)
BAIiI/-TBBA8H ft CO. t. UcGOBMICK
et sL
<8uin«me Oonrt of North Carolina. May 28,
1913.)
1. APPUI. and EKBOB (I 9a7*)— NOHSDIl^
EVZDBNC!»— RCTIEW.
The court on appeal from a nonsuit moat
coadder the evidence in the light most favorable
to plaintiff and draw all reasonable inferencea
therefrom necessary to soatain his caa^ and
will not oonsider adTeiae testimoDy.
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. (8 2912, 2917, 3T48, 3758,
4024; Dec. Di«. | m.*]
2. EviDBNCB ({ 876*)— Pbitatb Books— Aiv
MISSIBIUTr.
Where a clerk, who niade entriea In bank
books, is aeeeaalble u a witness, he must tes-
tify as to th» entries or tiiey cannot be recdved
at evidence.
[Ed. Note,— For other cases, see Evidence,
Cent Dig. |8 1628-1646; Dec Dig. | 376.*]
3. Pledoxs (i 30*)— Acnoir otf Notb Pxxdqxd
— RiQHT or Pates— "Keax. Paktt ikt Ihtbb-
BBT."
A payee of notes, who depoaits them as col-
lateral for his own debt due to a third person,
may roe before paying the debt and recover
thereon where be subsequently pays the debt
and takes up the notes and produces them at
the trial, wltbont making the pledgee a party,
for the payee is a real party in interest within
Revisal 1906, 8 400, and has at least an equi-
table Interrat if not the legal title sufficient to
form the bads of aa action.
[Ed. Note.— For other caaea, aea Fledges, Cent
Dig. H 75-8S; Dec. Dig. TsO*
For other deflnltions, see Words and Phrases,
vol. 7, pp. 6938-60S9; vol 6. p. 7779;]
4. PLCDOBa (II 1, 2L*>— NATOW-Itxan or
Flbdoob.
A pledge Is a depodt of pciBonal elhebi not
to be taken back bat on payment of a certain
sum, by express stipulation, and the pledgor re-
tains a disunct Interest in the property pledged,
and he may sue for the protection thereof.
[Ed. Note.— For other cases, see Pledges, Cent.
Dig. H 1, 4, 5; Dec. Dig. U 1, 21.*]
8. PlADOKS a 80*>— AonOR BT PUDOOB—
JUDeiCBIfT.
Where a payee of notes^ who pledged them
as collateral for bis own debt due to another,
sues the maker, the court, to protect the debtor
and the iriedgee, may require that the pledgee
shall be made a party, or provide in the judg-
ment that the money collected on it shall first
be applied to the discharge of the debt due the
pledgee, or the payee may redeem before trial
and judgment
[Ed. Note.— For other cases, aee Pledgea, Cent
Dig. 18 75-85; Dec Dig. S 30.*]
6. Pabties (f 76*)— Dsraoi of Pabtxbb— Ob-
jections—Nonsuit.
An objection based on a defect of parties
cannot be taken by nonsuit, bat only by demur-
rer or answer.
[Ed. Note.— For other cases, see Parties, Cent
plg.^llS^l^ 107^ DeeTbis. | 75;* Plead-
7. PUDOBS (I 34*)— PLBDOB OW CHOBE XR AO-
noN— Enfobceicknt by PX.XDnOB.
A pledgor may sne for the property before
paying the debt
[Ed. Note.— For other cases, sea Pledges, Cent
Dig. i 90; Dec Dig. 8 34.*]
8. PI.BDOBB (I 21*)— Obuoation qv Pledokb.
A pledgee, if deemed the legal owner of
the thing pled^, holds It In trost first tor him-
•VSr ethw eaass ass sasM topta aad ssctton NDHBBB la Dss. Dig. * Aia. Dig. Kf-^t^'iH^ik BmVM&t
self and then for the pledgor, and, where the
debt for which the property Is pledged Is less
than the value of the property, tne ^edgor has
not only a technical, but a substantial, interest,
and when be sues to preserve hla interest the
court may so frame its judgment as to prataet
all parties coneemed.
[Ed. Note.— For other cases, ses Fledgfla» CvA.
Dig. 8 45; DecDig. 8 21?r
Appeal from Supertor Oonrt, Biiiie«nb*
Connty; Bragaw, Judge.
Action by Ball-Thrash ft Co. against A. B.
McCormIck and another. From a jadgment
of nonsuit, plalatlfiF appeals. Reversed, and
nonsuit set aside and trial ordered.
Action upon promissory notes. The evi-
dence tended to show that plaintiffs, at the
request of defendants, installed a beatins
plant In th^ residence for the price of $684.
When the work was completed January 10,
1911, the defendant A. H. McCormick gave
to plalntifb his three promissory notes, each
in the sum of $228, and doe respectively 30,
60, and 90 days after their date. Plaintiffs
Indorsed the notes for value to the Amer-
ican National Bank of Ashevllle, N. a, the
bank discounting the same January 11, 1911,
and afterwards the first note was paid and
fSO paid on the other two notes in Decem-
ber, 1911. The defendants, A. H. McCormick
and wife, haring reftised to pay the other
two noteo^ plaintiffs were notified by the
bank tbtt tbey would be expected to take
care of them, and thereapon plaintiffs gave
to the bank their notes for the full amount
of the balance due, and the two notes of
defendants to the McGormlcks were depos-
ited with the bank as collateral security.
The evidence was conflicting as to whra
this was done^ whether in 1911, before this
action was commenced, or in February, 191%
after It was commenced; the snrnmong haT«
ing been Issued and serred on January 10,
1912. There was mudi evidaice taken aa
to tbe quality of the heating idant, bat; in
the view we take of the cas^ it la not neoea-
sary Uiat it should be stated hexv. Tbe
court, at the dose of tbe evidence lutvlnf
intimated that plalntUfs could not recover,
they submitted to a nonsuit and appealed.
Lee ft Ford, of AsheviU^ for appellant '
Jaa H. MftmimMi, of AaiuTlllab for anpet
lees.
WALKER, J. (after stating tbe facts aa
above). [1] As the evidence was omflictlng
upon the question whether tbe two unpaid
notes were tak«i up by plaintiffs In 1911,
or in February, 1912, after this suit was
brought, we must assume, In fkivor of plaln-
tiffs, Oat it was duriiw the finrmer year,
as the evidence must be omsldered in the
best Ught for them, drawing all reasoxiable
inferences tberef^om necessary to sustain
their cas^ and rejecting the defendants tee>
tlnumy, vUcb la adverse to the~t>lalntUh.
8M
Brtttaln t. Westhall, 135 N. a 492, 47 S. E.
616; FreemaD v. Brown, 151 N. 0. Ill, 66
S. B. T43; Deppe v. Railroad, 152 N. C. 79.
67 S. K. 262; Boddie T. Bond, 154 N. U 359.
70 8. E. 824.
[2] We do DOt think the learned Judge
could have rested big opinion upon tlie tea-
tlmony of the defendant's witness, as to
the entrioi In the bank books, as he did not
make the entries, and the clerk who did
make them was then In the bank and per-
fectly accessible as a witness. Justice Beade
■aid In Sloan t. McDowell, 75 N. G. 29:
"The entries of a merchant's <derk are not
evidence against third persona. It would be
very dangerous If they were. They are not
under oath and not subject to cross-examin-
ation. The clerk himself must be produced.
It hla memory be at fault, It may be that
he can refresh It by his entries; that is all."
But we need not pass upon the competency
of this testimony, for the court, as we have
seen, could not fbrce a nonsuit of the plain-
tlfls upon the defendant's evidence, even if
It was competent Boddie v. Bond, supra.
[3] The question then Is, and we presume
this is the one the Judge decided: Can the
plaintlflb as fledgoxs of the notes to the
bank, as collateral aecnrity, maintain this
action wiOiont the presence of the bank as
a party? We miut premise that it appears
from die evidence that the note of plaintiffis
to the' bank was paid And the collaterals
taken before the trial of this case; that
is, in November, 1012, t&e trial harlng oe-
cnmd at' January term, IftlS. It was not
denied that platntllEs had paid the notes and
were the legal and equitable owners thoeof
at the ttme of tbe trial, and one of defend-
ants witnesses tesOfled that Uiey were paid
in 'November, 7M2. We need not consider
the qn«ttlon ss to the TSlldlty of the lien,
as the plaintiffs were at least entitled to a
Judgment for the debt, If entitled to recov-
er at all. and the nonsuit deprived them of
this right Two issues were submitted, one
as to the debt and the other as to the lien,
and pIslntlfTs must have failed in their
proof as to both before we can hold that
tbe opinion of the Judge was correct and the
nonsuit proper. The bald question, there-
fore, is: Can a pledgor, who has deported
notes with a bank as collateral, sue and re-
pover upon the same, if he pays his debt,
takes up tbe collateral notee^ and produces
them at the trial, so that they can be can-
celed for the protection of the debtor We
will answer this question In the affirmative,
as we think it is in accordance with prin-
ciple and authority,
[4] First lot us consider the nature of a
pledge. It has been well defined In the lead-
ing case of Doak v. Bank, 28 N. C 309, with
reference to a transaction very much like
the one presented in this case:. "A mort-
gage of personal property in law differs
from a pledge; the forma is a condUloual
transfer or conveyance of the property i&
self; and. if tbe condition Is not duly per-
formed, the whole title vests absolutely at
law in the mortgagee, exactly as it does in
a mortgage of lands; the latter, a pledge,
only iMSses the i)osses8ion. or at most is a
special property In the pledge, vrith the rl^t
of retainer, until the debt is paid. A mort-
gage Is a pledge and more, for It is an ab-
solute pledge, to become an absolute interest,
If not redeemed in a certain time. A pledge
is a deposit of personal ^ects, not to be
taken back, but on payment of a certain
sum, by express stipulation, to be a lien
upon it Jones v. Smith. 2 Ves. Jnn. 878 ; 4
Kent's Com. 188 (8d Ed.) ; 2 Story's Eq. 227.
Generally speaklni^ a bill in equity to re-
deem will not lie, in b^alf of a pledgor
or his representatives, as his remedy is at
law, upon a tender ot tbe money. 2 Story's
Eq. 298; 1 Tee. 298. We eee that there Is a
very marked difference between a mortgage
and a pledge of personal property." The
I^edgor. thon^ore, baa a distinct interest in
tbe thing be has pledged, and. having It,
there is no reason why he should not have
a remedy in the court tor its protection, for
when there is a right there is said to bs
always a remedy.
[6] It may be replied tbat, If he Is allow,
ed to sne and recover, the debtor may be
subjected to a donbls' pajment, bnt not at
an, for reason teQs ns and the oases show
that the court ^tll so shape the Judgment as
to btrtU tb» debtor and fiie' pledgee, and this
can the more easily be done under our re-
fonned piocednre. Th»e are three ways
tiy wUcb the debtor and the pledgee can b*
protected: First by making the ple^teee s
party plaintur, if he is wlUlng,' or. If not
then a party defendant ; secondt by providing
in the Judgment .that the mtmcgr. collected un-
der the process to enforce the Jndgment
shall first be applied to the discharge of the
debt due the pledgee; and, third, by the
pledgor redeeming his pledge before the trial
and judgment as was done in this caaa
[6] It will not do to answer that the
pledgee was not made a party in this case,
for that would be only an objection based
upon a defect of parties, which cannot be
taken by a nonsuit, bnt only by demurrer or
answer, and, if tbe defect appears, the court
will order the proper party to be brought in
by process. This was expressly held to be
the result of the reformed procedure in Car-
penter V. Miles, 66 Ky. a7 B. Mon.) 698, a
case resembling this one In its facts. There
the court said: "A defect of parties, appar-
ent upon the &ce of the petition, is cause
for deuHirrer, and, when not thus apparent
is an objection to be taken in answer. Civil
Code, 1 128. An answer presenting such ob-
jection may be r^rded as a dilatory plea,
not however, reanlttng, even when sustained
by proe^ in a dismissal or abatement of Jhe
action, but furnisning,*,|g3»m4J(®»^tet
. 38.-aODTB]nASTBRN BEFOBISB'
KG)
00. T. ICcOORVIOE
SOS
of court requiring tbe additional parties to
be made, on pain of dismissal wltbont prej-
udice." It appears that the plalntUt had
retained a valuable Interest, aa pledgor, In
the collateral notes, and was a "real party
In Interest," within the meaning of BeTisal, |
400, and bad at least an equitable or bene-
ficial Interest, If not the legal title, and such
an Interest may form the basis of an action
to recover the property in which It is claim-
ed. Murray t. Blackledge, 71 N. C. 492;
Farmer v. Daniel, 82 N. O. 152; Condry t.
Cheshire, 88 N. C. 376; Taylor v. Batman,
92 N. C. 601 ; and other cases dted in Pell's
notes to Bevisal, | 400.
[7] But It has t>een expressly held that t&e
pledgor may aoe for the property before pay-
ing the debt The plaintiff and pledgor. In
Wells T. Wells, 63 Vt 1, brou^t a suit
against defendant, pledgee, for equitable re-
Uet The bill was dismissed because there
was an adequate remedy at law by action
for the property pledged; tlie court saying:
"And here It is to be remarked that the tact
that the note and mortgage were held by the
defraidantfl aa collateral did not stand in the
way of the orators proceeding either by suit
at law on the note or by foreclosure on the
mortgage, if they deemed it for their interest
to have the note or the mortgage, or both, en-
forced earlier than the defendants saw fit to
proceed In that behalf. See Am. Law Ber.
Oct 1880, p. 693. The court would see to It
that the rights and Interests of the pledgee
were protected In reference to the collateral
at the same time that the pledgor was acting
In regard to his own existing reverdonary
interest^ In the pledge, by the proceedli^ to
oiforce It, aa against tbe djebtor In the
pledge." The writer of the article In the
American Lew Review, referred to In that
case, states the law to be that the pledgor
has an interest In the thing deposited In
pledge, and la not restricted to. the remedy of
tender or repayment and the pledgee will
be protected in his rights by an order that he
shall be first paid out of the fund derived
from the sale of the property ple<^^ed or its
collection, if a note. So It was held In Fish-
er V. Bradford, 7 Me. (7 Greenl.) 28, that the
pledgor of a note might recover against his
debtor, the maker, when he had sued upon
It and had paid his debt to the pledgee be-
fore the judgment was entered. The case
la directly In point and the syllabna, which
fairly states the point decided, reads aa fol-
lows: "Tbe payee of a negotiable iwomis-
sory note, having. Indorsed it in blank and
delivered It in pledge to another as collateral
security for bis own debt has still the right
to negotiate It to a third person, who inay
maintain an action upon It In his own name
as indorsee; the lien of the pledgee being
dscharged before jodgment"
' City Elec. By. Co. t. Bank, 68 Art. M8, .47
B. W' 856, Is a strong case against the action
of the court In the case at bar, and- there it
is said : **Cotmi3el insist thkt tbe recctver of
the bank shoold not be allowed to recover in
this action on certain notes embraced In the
decree, because these notes at the commence-
ment of the suit were, as the receiver admits.
In the hands of a St Lonls bank which claim-
ed to hold them as collateral security for a
debt due the latter bank. It seems that aft-
er the suit was commenced, tbe St Lonls
bank and the receiver reached an agreement
by which the notes were returned to the re-
cover, and the latter filed them in court for
cancellation when the decree herein was tak-
en. This defense, it must be agreed, is ex-
tremely technical, so much so that counsel
seem to concede that If all the parties were
solvent this plea would hardly merit atteur
tton, but the apology offered for the Inter-
position of this defense Is that the insolvency
of the corporation destroyed the right to
make a transfer of claims to be used as a
set-off. Since we have determined, however,
that the street car company is entitied to no
affirmative relief against the receiver, it has
nothing to lose on this score." What should
have been done here for the protection of all
parties was to require the notes in tbe hands
of the plaintiff to be deposited with the clerk
of the court for cancellation, as Is generally
done in other actions upon such secorltiee.
O'KeUy T. Ferguson, 49 La. Ann. 1280, 22
South. 783, gives us the rule of the civil law:
"Until the debtor be divested from his prc^
erty (if it Is the case), he remains the pro-
prietor of the idedge which la In the hands
of tbe creditor only as a deposit to sec]Dre
his privilege on it" — end thus applies It:
"They [pledgors] maintain that having plac-
ed the notes In the hands of tbe plaintiffs,
they were themselves either powerless to
take out remedial process against their les-
sees or that It was not their duty to do so.
The fact that the defendants transferred the
notes to the i^lntlffs as collateral did not
in our opinion, withdraw from them the pow-
er of protecting their Interests by proceed-
ings against the makers of the notes. Not-
withstanding the pledge, they were still own-
ers of the notes. * * • We see no obsta-
cle in the way of the lessor's (pledgor's) hav-
ing recourse dlrecUy to conservatory pro-
ceedings to protect his interests. He could
legally make all tbe allegations necessary to
that end and procure the necessary proof on
the trial It wonld not be essentially neces-
sary for the purpose that he should be In
actnal possession of the notes." We see that
the rule of the dvll law, in regard to the
nature of a pledge and the Interests of the
respective parties, corresponds with our law
as stated in Doak r. Bank, supra.
The same objection as we are now consld-
wlng to plalnturs right to sue and recover
upon the pledged notes was raised upon sim-
ilar fiicts In' tiie- ncent case- of Oilman v.
Hitman, IB7 Iowa* 896, US N. W. 932, but
tbe court OTomiled It, and In doling mo lald
. ..- .. ' Digitized by CjOOglC
W SOnTHKASTBBM BBPOBTBB
CN.a
that tlw ifledgor nerer OB^Md to be egnltabte
owner of Oie note glvw In pledge, and that
the pledgee held the legal title and right to
posMSBlon merely, aa security tor the pay-
ment of his own debt It followed, said the
coort; that the pledgee and other Uenholders
would not be prejudiced by perndtting the
pledgor to ane and obtain Jodgment upon the
note he had delivered to hla creditor In
pledge. The court then held that the pledgor
could maintain the action upon the note and
mortgage which secured it, notwithstanding
they had been pledged to another aa securi-
ty for a debt, especially in the absence of
any valid objection by the pledgee. Under
such drcumstances, said the court, the ex-
istence ot the pledge Is not a matter of .which
the appellee can avail himself to resist the
enforcement of the lien against the mort-
gaged property (which had been pledged).
The court held in Bank v. McKinster, 11
Wend. (N. T.) 473. that the pledgor of a note
was still the general owner and the pledgee
the special owner, and the former could
maintain an action against a bank, with
which the pledgee bad deposited the note for
collection, for a breach of its doty to col-
lect, and that either the pledgor or pledgee
might bring the suit Other cases bearing
more or lees upon the question are Greer v.
Woolfolk, 60 Qa. 623; Hewitt v. Williams,
47 La. Ann. 742, 746, 17 South. 269; Insux^
ance Co. v. Lozano, 39 La. Ann. 321, 322, 1
South. 608; Simon v. Wlldt 84 Ky, ICT;
Guest V. Rhine, 10 Tex. 549.
[I] If we consider the pledgee as the legal
owner of the collateral, he holds It in trust
first for himself, and then fbr the pledgor.
If the debt for which the property Is pledged
be less than the value of the latter, the
pledgor haa not only a technical Interest as
a beneficiary, but a substantial one, and be
Is also a beneficiary In the sense that he will
be entitled to the ' thing pledged upon pay-
ment of his debt When he sues to preserve
and protect his Interest in the pledge, the
conrt may so invceed ot so mold Its judg-
ment or decree as to protect all parties con-
cerned. Our present system of pleading and
practice Is elastic enough for this purpose.
Its liberal jnocednre. It has been said, would
in some respects shock a lawyer bred In the
old school, bnt It is convenieiU; souible, and
in every way worthy of universal adc^on.
The common-law objection that Its procedure
and Judgments are Impossible 'ia ainvlJ ab*
surd; the thing Is done^ and is therefore
possible." Pomeroy's Bem. ft Bemedlal
Bights (1876) p. 153, note 3, referring to the
"divided" Judgment In Oradwohl t. Harris,
29 Cal. 150.
The nwsuit having been taken In defer-
ence to an erroneous opinion as to the law
of the case* la set aalds and a new tilal is
ordoed.
Mew trlaL
on N< C. »>
BBID T. NOBTOIiE BOUTHEBN B. CX>.
et at
(Supreme Court of North Carolina. May 28,
1913.)
1. CoaPORATIOIfB (i 636*)— FOBKIOR OOSPOKA-
nONB— OOMTBOL Or InRBNAL AJTAIBS—
POWEB or COUBT.
The court haa no power to control or ad-
minister the internal affairs of a fordgn ow*
poratioo.
[Ed. Note.— For other caaw, see Oorporatknu.
Cent Dig. it 2605-2S09, 2671: Dea DNig. 1
63a*]
2. Railroads (| 141*)— GonsouoATioir— Pdb-
LIO POLIOT.
The question wtiether a proposed merger of
railroad corporations is contrary to public poli-
cy dei>ends on the statute, and where a statute
ratifies and validates the merger It is not con-
trary to public policy.
[Ed. Note.— For other cases, see Railroads,
Cent Dig. § 443 ; Dec. Dig. i 14L«]
3. Railboads (1 141*)— MaaoKB— LionuTEva
AUTHOBITT.
Under the rule that the Legislature may
ratify and validate measures wliich it could
have originally authorized when not interfering
with vested rights, the Legislature may ratify
and validate a metier of railroad corporations
and acts dfine pursnaot thereto.
[Ed. Note.— For other cases, see Bailroadi,
Ceut Dig. I 443; Dec. Dig. | 141.*]
4. Evidence (| 80*)— Judioui. Nones— Pn-
VATE STATUTES.
The rule that a conrt will not take Judicial
notice of a private statute is, as recognized by
Revlsal 1905, 1 500, a rule of pleading designed
to prevent a Utlgant from being taken by sur-
prise, and It win not prevail when a statute,
which effectually settles the controversy, is,
after due notice, formally l^ongbt to the atten-
tion of the court, and no issue is made as to
Its existence or terms.
[EU. Note, — For other cases, see Evidence,
Cent Dig. | 88; Dec. Dig. S 89.*]
5. Appeal aivd Ebbob (| 19*)— Qvestiohs
Reviewabue— Moot QTrssnoirs.
The Snprone Conrt will not entertain a
cause to setun abstract projvositlona no longa
at issue.
[Ed. Note.— For other cases.see Appeal and
Error, Cent Dig. H AS-SOTbee. f 19.*]
6. CoNsrrrnTioNAL Law (| 20S*>— Bailboadb
(I 119*>— Special Pbivilbqbs anu lucum-
TIES— SlATOTES— VAUDITT.
Laws 191S, c. 516, ratifying and validating
a merger of railroad corporations and acts done
in pursuance thereto. Is not in conflict with
Const art 1, i 7, providing that no man or set
of men are entitled to exclusive emolumeits or
privileges but on consideration of public serv-
ices, especially in view of article 8, | 1, author-
izing toe formation of corporations by general
laws and special acts wtAeh may be altered or
r^ealed.
[Bd, Note^For other cases, see Gtmstitutlon-
al Law. GenL Dl^ fl ^-324; Dec. Die, {
205:* Bailroadi, Gent Dig. i 876; Dec. Dig.
Appeal from Superior Oonrd Wake Ooon-
ty : Garland Ferguson, Judge.
Action by Fergus Reid against the Norfolk
Southern Railroad Company. From a Judg-
ment sustaining a demurrer to the complaint,
plalntlfl appealed, and defendant, by affi-
davit, brought to the att^tion of the Su-
•Tor stber eases see same tople sad ssetlon MUMBBR la Dee. Dls> * Am.
BEtD T. NORFOLK
SOtJTHBBN B. (X).
807
preme Court a recent statute and moTed for
a dismissal of tbe case. Action dismissed.
Tbe action was instituted by plaintiff as
Btodtholder of the Norfolk Sontbem Rail-
road, alleged and for Uie purposes of this
action admitted to be a corporation of the
state ct Ttrglttia, and certain directors of
said company, and also five North Carolina
railroad corporations operating under cAiar-
ters of this state and harli^ their proper-
ties here; the salt being to restrain said
NorftoUt Southern from Incnrrli^ an Indebt-
edness of 15,406,000 and ezecatlng a mort-
gage to secure same on all the properties of
said Norfolk Sonthezn Railroad, Imdndlng
the properties formerly owned by the North
Carolina companies and whii^ the Norfolk
Southern bad acquired. Among other things
and as a basis for relief In this Jurisdiction,
it was alleged that the Norfolk Sontbem,
having purchased the capital stock of the
North Carolina companies, had caused four
at them to convey their properties to the
fifth, the Ralelfi^ Charlotte & Sontbem RaU-
road, and that a certlflcate of merger had
then been executed by the last-named com-
pany by whl^ It was certified. "That tbe
whole t)f the cai^tal stock of said four rail-
roads had been surrendered and transferred
to St and itft caiAtal stock Issued In exchange
Oterefor as will appear by ccvy," etc., and
that the Indebtedness and mcotgage referred
to vere for the purpose of -Obtaining the
means to carry out said enterprise and to
further «ctaid and eqnlp and operate the
Raleigh, Charlotte ft Southern Railroad, eta
It was further aUeged that the Norfolk
Sontbem was without power diarter or
otherwise to engage In said business or in-
cur an indebtedness therefor, and tlmt the
entire enterprise, In so tar as It affected the
railroads operating under such North Caro-
lina fdtarters, was contrary to our public
policies and the express prorldons of our
statute law, etc. The defendants demurred,
assigning for cause among others: (1) That
the court has not and will not undertake to
exercise Jurisdiction and control over the
'IntKWil management of the affairs of a
corporation of the state of Virginia or the
action of its officers and directors.** (2)
Tbat under and by virtue of the various
charter provisions annexed as exhibits to the
complaint, the companies had the power to
carry out the proposed undertaking, and
there was nothing In the plan tbat was in
any way contrary to the polldes of statutes
of this state, etc The demurrer having been
sustained, plaintiff appealed to this court
Pending said appeal on notice duly issued,
defendant by proper afBdavit brought to at-
tention of court and filed a duly certified
copy of an act of the last General Assembly
(chapter 516, Laws 1913), and which in ex-
press terms ratified and made valid the said
merger and all acts done pursuant thereto,
with certain restrictions and provisos not
relevant to the question as now presented,
and on said statutes and 1^ reason of the
terms of same, moved the coort to dismiss
the case.
T. I^nler, of Oxford, and R. Randolph
Hl(^, of Norfolk, Vs., for appellant W. B.
Rodman, of Washington, N. C. B. N. Simms,
of Raleigh, and Chadbonme & Shores, of New
York City, for appellee;
HOKE, J. (after stating the fftcti «a
above). [I] It Is well understood that onr
courts have not the power nor will they un-
dertake to administer or control the Internal
affairs of a foreign cmiHnation (Brenlser v.
Royal Arcanum. 141 N. C 409, 68 S. SL 885,
8 Ifc B. A. CN. S.] 235} ; and, this behig trae,
the only fiicts presented In this complaint
which t«ad to establish a cause cognizable
here are those which injuriously affect or
threaten- the chartered rights and i^vUeges
or holdings of these North Carolina com-
panies.
(2, 1] As a basli for such Jurisdiction, it is
alleged that the proposed merger and in*
cnrrlng the Indebtedness In aid thoeof are
contrary to onr public poUcy and the ex-
press provisions of our state law. If this be
conceded on tbe facts as set forth In the
complaint, tiie objectlrai. In onr opinion, has
been entlr^ removed by the statute which
has been formally called to onr attention.
This public policy, which has bemi not In-
aptly termed the "manifested will of Oie
state," is very largely a matter of leglala-
tive control, and it is a well-recognized pzln-
dple that In so far as the public Is con-
cerned, and when not Interfering with vest-
ed rights, a L^Islatnre may ratify and nuke
vaUd measures which It might have origi-
nally authorized. Barrett v. Bamett ft Dav-
is, 120 N. a 127, 26 a E. 691, 38 L. R. A.
226 ; Anderson v. Township of Santa Anna,
118 U. S. 856, 6 Sup. Ct 413, 29 L. Ed. 638;
Schenck v. City of JeffersonvUle, 162 lud.
214-217, 62 N. a 212; State Of IlUnols v.
111. Central Railroad (G. O.) 33 Fed. 730-771.
The plaintiff, not challenging the enactment
of the stetute, contends that the defendant's
motion should be denied: Chiefly because
the court will not take Judicial notice of a
private act; (2) because the stetute is in
violation of article 1, S 7, of our Constitu-
tlwt, which provides "that no man or set of
men are entitled to exclusive emoluments or
privileges from the community but on con-
sideration of public services."
[4] It Is true as a general rule that a
court does not teke Judicial notice of a pri-
vate statute or Its terms. This is a rule of
pleading designed and intended primarily to
prevent a litigant from being teken by sur-
prise and has been directly recognized bbCh
in our dedslona and stetutes. Corporation
Commission v. Railroad, 127 N. C. 283, 37 S.
E. 266; Revisal, § 600. But the principle
was never intended, nor shou^
96S
,n SODTHBASTBBZII BBFOBX^iB
to prenll wboi a ^tatntfl^ wbUih. effectotUr
settles all matters in controverv of which
the conrt ha* Jurisdiction, has after due no-
tice been formally brought to tbe attention
. of the court and no issue made or si^gested
as to Its existence or its terms.
[I] It has been repeatedly held here Oiat
the court will not entertain or proceed with
a cause merely to determine abstract propo-
slUtms and when the questions In controver-
sy are no longer at isane, and this is a case
coming clearly within tbe principle. Wallace
T. WUksbore, 151 N. a 614. 66 S. EL 657;
"WfktA V. Commissioners, 120 N. O. 451, 27
S. E. 117. In this last case Judgment for a
peremptory mandamus bad been entered
against commissioners requiring that body to
buUd a bridge over the Tuskasegee river and
to levy a tax therefor pursuant to a certain
statute. Pending an appeal the Legislature
repealed the act, held that tbe repeal abated
the action, and the present , Chief Justice
delivering tbe oi^on and In reference to
this repeal said; "This destroyed the cause
of action, and ttiere only remains the Judg-
ment against the d^^dant for costs. It
has been repeatedly held tbat, when pending
an appeal the subject-matter of an action or
the cause of action is destroyed In any man-
ner whatever, this court will not go Into a
consideration of the abstract question which
party should have rightly won merely In or-
der to adjudicate the coats, but the Judgment
below as to the costs will stand."
[B] Nor win the second objection avail
plaintiff that the act violates the section of
tbe Constitution which prohibits the grant-
ing of special privileges and emoloments.
Tbe very section relied on by the appellant
closes with the exception "But In considera-
tion of public services,** and under our de-
cisions these franchises granted to public
service corporations come. directly within the
words and meaning of tbe exception. In re
Spease v. Ferry, 138 N. C. pp. 218-222, 50 S.
B, 625. Our Constitution, art 8, | 1, also
contains provision aa follows: "Corporations
may be formed under general laws, but
shall not be created by special act, except for
municipal purposes and In cases where. In
the Judgment of the I^eglslature, the object
of the corporations cannot be attained under
general laws. All general laws and special
acts, passed pursuant to this section, may be
altered from time to time or repealed." The
grantees of these qnaal public charters and
their stockholders take and hold them sub-
ject to both of these constitutional provisions
aa construed and Interpreted, and the act
ratifying this consolidation and merger Is
no more the conferring of special privileges
nor the violation of vested rli^ts than the
statutes by which tliey were originally cre-
ated.
On tbe facts as tbey now appear of record,
we are of opinion that tbe action should be
diamlssed, and It la so ordered.
AcOon diunlssed. Ordered, that tbe costs
of this court be equally taxed against plain-
tifl and defendant
K. c. 6cz;
8TATB T. DRAEBPO&D.
^□prems Court of North May 3S,
1^13.)
1. IirnioiKsnT ANn Intobiution (| 180*) —
.Ta&iahcb — Namk ot Pbosecdtbix.
That proKcutrlz's name was alleged In the
Indictment for rape to bo "lAla." H.^when tiie
evidence ihowed tbat it was "Lisa" H., was at
most an immaterial variance.
(Ed. Note.— For other cases, saa Indictment
Information. Cent Dig. ff 651-666; Dee.
Dig. I 180.*]
2. Cbhonai:. Law (S 180*>-^roBim Smat'
ABDT.
Tbat Mtcused waa dlscbarsed on a formtf
trial at his own instance on the ground of va-
riance .between the name of prosecutrix as al-
leged and proved was not former jeopardy yo
as to bar a Bubaequest proseention.
[Ed. Note.— For other eases, see Orlndnal
Law. Cent Dig. K 316, S28; Dec: Dig. f 180.*]
3. Just (I 95*)— Disqualification.
The fact that one of tbe jurors who tried
accused was on tbe grand Jury which found the
first bill against htm. on which he was dis-
charged, was not ground for reversal of a Judg<-
ment of conviction, where such juror stated on
his voir dire, without contradiction, that he had
Dot formed an opinion of accused's guilt or In-
nocedce.
[Ed. Note.— For other cases, see Jvat; CenL
Dig. H 424-480; Dee. Dig. | 06.*]
4. Cbuchval Law <| ffU*)— YnoBOV— Vjuia-
Hon.
A motion to set aside a verdict of convio>
Hon beteuse one of the jurors was dlsqualifled
is addressed merely to tbe court's discretion.
[Ed. Note.— For oUmt cases, see Criminal
Law. Cent Dig. 1 2134: De&Dlg. | Oil.*]
5. CannNAi. Law (| 409*)— Bthoho—Ap-
HISSIORS.
Statements made by accused to an officer
are not rendered incompetent merely because
accused was in Jail at tbe time, unless made
under duress ta indncements held oat to ac-
cused.
[Ed. Note.— For other cases, see Criminal
Law. Cent Dig. |§ 785, 894-917, 920-827;
Dec Dig. I 406.*]
Appeal from Superior Court, Blchmond
Count?; Bragaw, Jndge.
Moses Drakeford waa convScted of rap^
and ^peals. Affirmed.
D. 3. OasbweU, of FayettevUle, and J. IL
Midjendon, of Roddngham. for appellant.
The Attorn^ General and T. H. CalvttU of
Balelg^ for the State.
CLARK, a X The prisoner was indicted
for rape upon "Llla" Hatcher. On the trial
the evidence showed that it had been com-
mitted on "Liza" Hatcher. Tbe prisoner's
counsel, insisting that the names were not
idem sonans, and tbat there was a fatal va-
riance between the diarge and the proo^
granted the motion of tbe prisoner and in-
structed tbe Jury to find the defendant not
guilty of rape upon "Llla" Hatcher, but held
«ror othweaMssM same twl« sad Motion NUHBBA In Dm. Die* Am. Dig. Ka^Vb^BUm'MBiigtl^Um
flVATS^ r. DXAKXFOBD
809
Mm.to appear at tba nsxt t«rm <MC ctmrt t9
answer ttie cbazge of commlttlns rape upoa
'Xtsa" Hatcher. Tbia UU waa so found, and
wban the jtrlaoner waa pot upon trial bla
oonnael pleaded "former Jecwardy."
[1] Xbe court properly «TeiTuled tbe plea
of former Jeopardy. The names might well
have been JaOA Idem aonans, or, at the moat,
an tiamaterlal vailance, and the toimet trial
ahonld hare proeeeded. State Laa^ 80 N.
a 407; State GoUlna, U6 N. C 716, 20
S. H 402; and numerous Inatanoaa thwe col-
lected.
[2] But the prisoner, harlng been dlsdiaix-
ed on the former trial at hla own Instance,
cannot nov avail hlmatff of tbla ditfenae.
In 12 Cyc. 266, It Is aald: ^Whera the aocva-
ed has secured a decision that an indictment
la, void, or haa procured its being gnashed,
or haa been granted an Instruction baaed on
its defective character, directing the Jury to
acquit, he is estopped when subsequently
Indicted to assert that the former Indict-
ment waa valid"— dUng TJ. S. v.- Jones (0. O.)
SI red. 725; Joy t. State. 14 Infl. 130; State
T. Ueeklna, 41 La. Ann. 543, 6 South. 822.
On same page (12 Oyc. 266) It la further said :
"If the accused is acquitted by the direction
of the court on the ground of material vari-
ance, he cannot plead the acquittal as a bar,
for he has never been In jeopardy, and, wboi
tried on a new Indictmott, the crime then al-
leged is not the same aa in former indict-
ment And it haa been bsHA that If the ac-
cused on tlie prior trial maintained that tlw
variance was material and the court direct-
ed a verdict of acquittal on that ground, he
cannot subsequwtly on his plea of former ac-
quittal allege or prove that It was not ma-
terial"— citing very many cases which sus-
tain this proposition, among them State v,
Birmingham, 44 N. G. 120 ; State v. Bevels,
44 N. O. 200 ; State v. Sherrill, 82 N, C. 604.
"Where a verdict of acquittal Is directed at
the request of defendant upon the ground
that tbe Indictment la fatally defective, he
cannot, on being again prosecuted, claim that
the former indictment was in fact good, and
that he has been in Jeopardy under IL"
17 A. & E. (2d Kd.) 615, and cases there
cited. Clark, Criminal Law, S 174, says
that a defendfint may waive his right to
plead former jeopardy, either expressly or
impliedly. In many cases, dtlng instances,
and among them specifies "where he pro-
cures a verdict or judgment to be set aside
on his motion in arrest or fOr a new trial"
In 2 Russell, Crimes, 61, the same is held as
to this same offense, citing numerous author^
itlea In 1 Archbold, Pleading (8th Ed.) 344,
are many decisions to the same effect
Among the cases there dted are Com. v.
Mortimer, 4 Va. 325, which holds that, where
a prisoner Is acquitted of burning the bam
of Josiah Thompson, he cannot plead this
acquittal in bar of Indictment for burning
the barn of Josias Thompson, the real own-
er, when the acquittal waa on the ground
that flw nameaC ttia trva owner waa notaai
ont properly on the flnt indictmait
Wliile, as we- bavo aaUl, the court on the
first trial sho^ liave Iieid that the namea
were idem aonana, or certainly should have
held that ttia variance waa impiaterlal under
Bevlml, S 3204, Tet aa 0ie defendant budst
ed upon the alleged defect in tbe bill and
procured the Judge to direct Qie verdict of
not guilty npon the ground of that variance,
upon all the aothoritiea, as well as upon the
reason of tte Uilng, he cannot iww indat that
he was in Jeopardy on the former trial. Xtta
Judge having held, at his instance, that there
was no eridcmee to connect Urn with an as*
sanlt upon Ula £bit<dier, be cannot now cm-
tend that be waa In Jeopardy <m a trial for
an asttult mKm £iaa Hatdier..' ThiB vfcnUA.
be trifling wltb the admiidstration of Justice.
Of course, eoonsM are at Uberty to ascertain
how any proposition of law that Is respec^
fully ma^ and urged "will strike tbe court"
But the court cannot be impressed with the
suggestion that tbe prisoner was put in Jeop-
ardy on a former trial whoi tlie court htid,
at the Instance of ttie prisoner himself, that
he waa not chafed with the offense for
which the Judge bound him over to the suc-
ceeding term at wUch this IndlbtmaQt was
signed and upon wfaldt be baa turn been con*
victed.
[3] The other ezceptloin do not require
discussion except the aaventh, which is that
one of the Jurors who tried the prisoner was
on the grand jury which found the fint Mil,
on which the def aidant was acqolttad. Aside
from the fact that It was not this bill, it does
not appear even If it were ttils- bill that he.
voted in passing npon it He may not have
been preaent when taie Mil was found. On
his voir dire the Juror stated that he had not
formed nor expressed an opinion aa to the
guilt or innocence of the prisoner. There la
nothing to show to the contrary. Certainly
we cannot pnanme that the Juror answered
untruly.
[41 It lias always twen held by us that a
motion to set aside the verdict because of a
defect as to one of the Jurors cornea too late
after verdict and addresses itself only to the
discretion of the court Walker.-J., In State
V. Lipscomb, 134 N. a 607, 47 S. B. 44. In
that case it was shown that the juror was
under 21 years of age. In State v. Maultsby,
130 N. C. 664, 41 S. B. 07, the same ruling
was made where a relationship waa discov-
ered after verdict between the prosecuting
witness and a juror, and tbe court there cit-
ed many other cases where a dlsquallflcatlQn
of a juror on divers grounds had been found
after verdict, and in all which cases the
court held that the matter rested in the dis-
cretion of the trial Judge and that the refus-
al of the motion was not reviewable on ap-
peaL
[I] We will merely mention, as to excep-
tion 6, that statements made to an officer
are not Incompetent aimpl^ '''^^^i^'&fHc
810
78 SOUTHBASm&N RBPOBTBB
QUO.
fendant was at tbe tlm« in cnstody or Jail,
unless there was duress, threats, or induce-
ments. State T. Jones, 14C N. G. 471, 59 S.
a 363 ; State t. Bohanon, 142 N. G. 695. 56
S. E. 797 : State t. Homer, 139 N. 0. 603,
62 S. B. 186. 4 Ann. Gas. 841; State T. Bx-
om, 188 N. G. 000, 00 & B. 288.
No error.
an N. c. «0)
BTATB T. ORBDB «t aL
(Snpreme Oonrt of North Candina. Hay 22,
1918.)
1. HoHioiDK (I 122*}— DirxHSB or Rsutitx.
A d^endaot had do right to kill deceased
to prevent him from killiiur or doing great bodily
harm to sodi defendant^ hrother, where the
brother was in the wrong in the difficnltr be-
tween hlmseU and deceased.
[Ed. Note.— For oUier eases, see Boaiidde,
Gent Dig. 11 177-181; Dec: Dig. { 122.*]
2. HOKIOIDK d 29*)— PAKIOIPATIOR— OOHHXS-
SIOR BT ANOTHEB,
Defendant W. and deceased hsTlng engaged
in a ToluDtaiT fight, W. was being worsted,
when his brother interrened, straca deceaaed
with an axe, and killed him. There was no evi-
dence of a conspiracy between W. and hia
brother, nor of any nnderstandlag or common
purpose, nor any testimimy from which the
brouiez's act could be inpnted to W. field,
that W. was not guilty of any degree of homi-
dde.
[Ed. Note.~For other cases, see Honddde,
Gent Dig. f 47; Dec Dig. I 20.*]
Brown and Walker, J3^ dlssentinc.
Appeal from Superkur Oonrt, Fonyth Goun-
ty; Allen, Jndg&
Wallace Grew and Wattle Greer were con-
victed of manslaughter for the kllUng of
Will Finney, and tbey appeal. Affirmed as
to Wallace Greer and reversed aa to Wattle
Qteet.
The first witness for the state. Delia Cau-
ser, testified as follows: "I live on Bath
street in Winston, and in the afternoon of
the day when Will Finney was killed, I
saw for the first time in my life Will Fin-
ney and Wattle Greer. They passed right
up side of my house. They were coming up
the street, both of them cursing each other.
Will Finney was asking Wattle Greer what
he had snatched. Wattle Graer refused, and
said, 'I will give yon a quarter,* and cursed
him to hlB mother, and he cursed Wattle
to his sister. Will Finney went right be-
hind him, sorter to one side, and Wattle was
ahead of him, but not In a direct route.
Wattle got to his bu^, grabbed his whip,
took it out of the socket to change ends,
but, before he got it straight, Finney was
too close on him to bit, and thecr went to-
gether, niere was a little wash where it
rained, and that made Wattle's feet slip, and
that threw him some way and made his bead
fall bear the horse, and tbe horse ran.
lliey wwe down there acrambling, trying to
get up. Will Finney had his left ann ova
Wattle. Wattle had his right over Will Fin-
ney. I saw this man, Wallace Greer, coming
running up, and hit him somewhere with
the axe. I had not seen Wallace Greer un
til he came up with the axe and stnidE WUl
Finney somewhere about his head. Will
Finney dropped sorter on the side of Wattle,
and, when he did, Wattle just whirled right
there and begtm to mend him in the face
with his fist This waa after he was strode
with the axe. He also grabbed the whip
and began to beat Will Finney In the face.
I never saw Will Finney move any more
after he was struck with the axe. Wattle
hit him twice in the face with the butt end
of tbe whip."
The husband of the at)Ove witness testlfled
snbetautlally to the aame facts, but added
that the deceased had a knife In his hand. It
appears from the other testimony In the case
that the dispute and quarrel between the
deceased and Wattle Greer began shortly be-
fore and while they were at the house of
one Arthur Green. It appears that tbe de-
ceased asked Wattle Greer for 2S cents,
which Wattle owed him; that Wattle then
had 76 cents to his possession, but that be
refused to pay the deceased the 26 cents.
Both were angry and profane, and vtflgar
words passed between them, to the course
of which, as testified to by the defendant
Wallace Greer, tbe defendant Wattle Greer
said to the deceased, "If I had a match. I
would strike It on your face."
Wallace Greer testified as follows: ''Q.
Ton are charged with the kllUng of a man
by the name of Finney; go on and tell his
honor what took place that morning after
you got la the neighborhood of where this
thtog happened, without any suggestion from
me. A. Me and my brother went down there
on Sunday evening between 4 and 6 o'clock.
John Sbeeks was with me, and John Allen
was with my brotbM-, and we goes In Kid
Green's house; I believe that's his name.
After we had been to there about five min-
utes, Ftoney come to. I wait back In the
back room, and when I come out Ftoney
had on my brother's hat Wattle says, 'Give
me my haf &nd Flnn^ says, 'I ato't going
to do nothing of the ktod,' and Wattle reach-
ed up and grabbed his bat off of Finney's
head. Ftoney says, *Yon owe me a quarter
for going away for you, and I got to have
it' Wattle says, 'I ato't got but six bits,
and yon can't have them.' Finney says, 'I
am broke, and X want It' Wattle says, Ton
can't get none of this.' Ftoney says, *I am
going to have it before the sun goes down
or kill you, one.' Wattle says, 'If I had a
match, I would strike it on your face,* and
Ftoney says, *No, yon won't do nothing.' Q.
Well, did they get to cnrstog each otherT A.
Yes. sir; and Kid Green asked them to get
out of his house, and tbey went on the porch
and stood out there and cursed, and the oth-
er gentleman to the otbes end told Finney
to quit 80 much cnrring ther&^-iie had some
"Poratbvi
I MS Hnw tepM ind sMiUoa KUMBU la Des. OI» A Am. Dig,
N.O)
T. OBXBB
311
children, and lie dldnt want fba cnralns
then. I iraslied my broUm Wstt and told
Idm to CO down off of tbe porcb and qnlt
foaslns. He went on the ground, and Flnn^
steps behind him, and kei^t carsinft and Fln-
n^ coned him to fala mother and bis sister,
and I says: 'If yon fuss with my brother
Watt, yon Jest fnss; bnt you leave my moth-
er ont of it* He cursed me and cursed Watt,
and I pushed Watt this way and Flimey that
way (Indicating). I says, 'Come on, now, and
let's go to the pond.' Watt says, 'All light.'
I tnmed aroand and Watt started towards
his bu^y, and I goes on to King's; In front
of this hoase was my bnggy, and Watt goes
to his bnggy. I told John Sheeks to turn
the bu^ around, and I got np in the bnggy.
They were still walking on, and I Just got
np in the buggy and set down like this, and
went to pull my lines this way with ttie
horse (Illustrating). I Just took my eyes off
of my brother a minute when I went to get
In my bnggy, and Just then I heard some-
body holler, 'Don't let him kill Wattle,' and
I turned around and Jumped ont of the bng-
gy, and I didn't know where the axe was,
but I started on, and the axe was about as
far as to that man (indicating), and when
I beard them say, 'Don't let him kUI Wat-
tie,' I Jumped out and grabbed the axe and
ran that way — Just went on hard as I could
and grabbed the axe (illustrating). Q. What
was the position of Finney and Watt? A.
My brother was layii« back this way, and
Finney had his hand this way, and I reckon
his liand was going on down to cut him;
Finney was on top of him, and had his hand
up this way when I got there (illustrating).
Finney was on top. Q. What did he hare in
his hand? A. Knife. Q. Is tbls tbe knife?
Or do yon know? A. That looked like the
same kulfe; I didn't pay much attention to
Uie knife: Q. At the time you struck him,
yon say Finney had his hand back this way,
raised over Wattle? A. When I Jumped out
and ran and grabbed the axe» Finney was
fixing: to tdt bim, and I stmck him, and Fln-
fell back tbla way aUnstrathiK); m
brotbtf gets np, and be says, 'He cut me,'
and I say, Ijet's see,* and he turned around,
and I see where be eat him and where it got
bung in Ote ooat there^ and I say, 'He got
yon ttiere, didn't he?* and be showed me, and
I say, 'Well, let's go home.' Q. Did. you or
your brotiier bit him outside of tliat one
blow yon gave blm? A. Didn't hit bnt once;
when I hit him and be feU over like that
(Indicating, Wattle be got np and showed
me where be was cut; he say, 'I wtmder
where we can get something to put <ni it'
I says, 'Oet in my buggy and let's ga' Q.
Ton left tbere? A. Yea, sir. Q. Next morn-
ing did yon surrender, or were yon arrest-
ed? A. Tea, sir; next morning I anrrui-
dered."
Cross-examination: "I surrendered the
next .morning after the fcimng^ x ^d' not
hlda that ntgbt, bnt come In die next morn-
ing and gave myaelf np. I do not know
whether Arthur Oreen'a bonse Is a regular
gambling place or not I never gambled
ther& I bad been Oiere about five or ten
times before Oie deoeaaed come up. I wait
oTer in tbe boggy with John Sheekg. I
might bare met tbe deceased at tbe comer of
King's bonaa^ bn^ if I did, I did not pay any
attention to it. I did not see Finney and
Wattle discussing tbe quarter. We all Jnat
went down to ildt Kid Oreen. I bave
gambled and bare been indicted tor gam-
bling, but I was not gambling that after-
noon. I never saw my brother borrow three
Quarters fftun John Sbeeks, as I was in Uie
other room, where I went to get a drink of
water. Wbm t onne ont; Finney bad my
brother's hat, and my brother was asking
for it They started to cnndng, and Kid
Green asked them ont of tlte boose. They
went ont ud tbey cnrsed on tbe pondi, and
they cnrsed atter thev st^i^ed on the ground.
They both then started tovrards the buggy ;
I went off and got In my buggy. I heard the
people screaming and. looked around, and I
Jumped right ont and grabbed the axe, as
I was <m my way to where tb^ w»e fight-
ing. I was sitting in my buggy when I heard
somebody scream. I was running towards my
brother, and I saw the axe and grabbed It
up. I did not see the axe when I Jumped
ont of my ba^. I did not see anything to
hit the deceased with when I Jumped out of
the bu^. I hit him as quick as I could
get there. Wattle did not hit tbe deceased
In the head or fiice either with his fist or the
whip. After it was over I told Wattte to
get In the bnggy and let's go. I stayed at
my slsto's bonse. The ofllcers did not go to
my house to look for me. I was not at home
that night, bnt stayed with my sister. I am
under indictment now for keeping a disorder-
ly honse, and I was also Indicted for break-
ing into Browu-Boger's store and serred a
term on the roads. I went in there with a
white man about 7 o'clock in the evening.
There was a man In the store who caught
me. I went In the ftont door of the store.
I have been in jatl here for gambling."
There was other evidence t^fltwg to cor-
roborate the dtf endant.
At the close of the evidence the defendants
requested the court to chai^ as follows:
"(1) That whenever there is a reasonable
ground to believe that there is a design to
destroy life, to rob, or commit felony, tbe
killing of the offender to arrest such design
is Justifiable In law, and if you find from the
e^dence in this case that WiH Finney had
the defendant Wattle Oreer on the ground,
and bad the knife whi<A has been offered
in evidence drawn and In a position to strike,
that in order to prevent the destmction' of
life or ^e commission of a felony or the In-
fliction of great bodily harm upon Wattle
Greer, the -defendant Wallace Grew rushed
up wltH an axe and^tom^^^gf^
312
18 SODTEEBAarBBN ROFOB'^iB
(N.a
which resulted In deafii, that sdcb kUBng,
uBder BwA dreamMances, would be Jnstifl-
able, and yon should so 0nd," The court
refused to glTo this Instruction, and the de>
fradants excepted. '
The court diarges yon that one not
engaged in a fight may on>oee another at-
tempting the perpetration of a felony, if need
be, to the taking of Uie felon's Ute, as In the
case of person attacked by another Intending
to murder him, who thereupon kills bis oa-
sallant; and if you find flrom the erid^ice
In this case that the deceased and the de*
fendant WatUe Greer were cm the ground,
with tbe defendant on the bottom* or even
by the dde of the deceased, unarmed, and
that the deonsed had already inflicted a
wound on the d^endant and had his knife'
drawn In a striking position, that under sudt
circumstances, if you so find, the defendant's
brother, Wallace Oreer, bad a rl^l^ If tiie
danger of - death or grant bodUy harm was
about to be inflicts on Us brother, the de-
fendant Wattle OrMT, to strike vAtb. tbe axe
In order t» invent Oie commission of a fel-
ony or Oie Infliction of great bodily harm,
and the Ullliv of Will Finn^, nndier such
drcum^Muices, would be justlfiabls, and your
verdict should be for tte defendants." The
court refused to give this Instroctlon, and
the defSndsnts excspted.
You ue instructed, if yon find from
the sTldenee that Wattle and Wallace Oreer
are broQiers^ and that Wattle Oreer was
down on the ground with the deceased on top
of him, or by his side, and Qie deceased
bad bis knife drawn and had stabbed Wattle
Oreer and was attempting to stab Um again,
that the relationship between the defend-
ants, Wallace Oreer and Wattle Oveer, gave
to the defendant Wallace Oreer the right to
Interfere^ and If It was reasonably apparent
to Wallace Oreer that his brother, Wattie
Orew, was in imminent peiU of death or
great bodily baim, and that it was necessary
for him to use the means or ferce which re-
sulted in the d»th ef Will Finney in order
to prevent the same, such killing, under sncb
drcumstanoes^ on the part ctt Wallace Oreer,
was Justifiably and It will be your duty to
give a rardiet of not guilty as to the d^end-
anta.** The court refused to give this In-
stmctlon, and Oie defsndanfai e»epted.
His honor diarged the jury, among other
Udngs, as follows: ' •
"Now the rule is that where one is at-
tained he may dtfend himself, even to the
eztoit of killing his adversary, on tbe prlnd-
lAe Halt what one inay do for himself an-
other may do fbr him, if this other belicTea
Ufe to be In Immedlato danger, and. If so, he
may use snCh fbroe as Is apparoitly neoessary
to 'hlm> to repel the attain of the aggressor,
provided the party in whose defense he acts
was not at Caifflt ; and so. If you find from
the evidence Isr this case that the- dtfendaat
Wattle oreer left Arthur Green's house, tell-
Okg Oko deceased that he did not wish to have
any trouble with Mm, os* words to that effect,
and went over towards his buggy, intend-
ing thereby to avoid the difficulty, and while
at his buggy this decMSed ran up to him with
a drawn kidfe kdA stmA at talm, and tbe
defendant Wattie Oreer and the deceased
fell to the ground, and while they were on
the ground the deceased was making an at-
temi»t to stab tiie defSndant Wattle Oreer
with bis knife, and had the knife npUfted
in a poslUon to stab, and Oie defandanf s
brother, Wallace Oreer, had reasonable
grounds to believe that bis brother, WatUe
Greer, was in danger of death or great bodily
barm was about to be inflicted on him by the
deceased, and he rushed up with an axe
and 8tru<* the deceased the blow that caused
his death, under such circumstances the de-
fendant Wallace Oreer had the right to , use
such force as was apparently necessary to
prevail tbe commissi wi of a felony or the
Infliction of great bodily barm, and a killing
under such drcnmstances; if you so find the
fects to be^ would be justlflable^ and your
verdict would be^ 'Not guilty/ Now, that in-
volves the idea that Wattie Oreer was not
at fault ; it Is presentliw that view of It
if tbe Jury should find Qiat he left and told
the deceased that he did not wish to have
any trouble with blm, or words of that diar-
acter, and went over tomirds his buggy in-
tttiding thereto to av<dd a difllculty." And
deftatdaats excepted.
"So an Important question for yon to de-
dde Is as to whether Wattle Greer is guDty
of willingly fighting or using language cal-
culated to bring on a fight, and a fight OA
follow accordingly. Would Wattle Oreer and
Flnnear have beat guilty of an afEray, of
fighting together, If no ktlllpg had occurred?
Would they both have been guilty T If they
would, and you are satisfied of thftt bey<md
a reasonable doubt, then, if Wallace killed
to protect Wattle they would both be guilty
at least of manslaughter, and ct murdm In
the second degree tf It was a maUdous klll-
Ing-^kUllng with malice as well as an unlaw-
ful killing. So that your verdict can be mur-
der In the second degreOi or manslaughter,
or not guilty, according as yon shall find
ftom the evidence." And dtfendanti «-
eepted.
Lools Sf. Swlnk and Jones ft Patterson, aU
of WinstoD-Salem, for appellants. Attorney
General Bickett and T, H. Oalvert, of Ba-
leigh, for the State.
ALLEN, J. [11 It will be noted that while
the absb*act propostUon as to the right to
prevent the conunlsrion of a fdony Is stated
In tbe iQstrtictions prayed for, when It Is
attempted to apply tbe law to tbe facts, sev-
eral alternative propositions are stated, as "to
inevwt the destruction of life," or "the com-
mission'of a felony," or. ^the infliction «f
great bodily harm opon Wattle Greer."
TUe presiding judge Is not required to die-
sect a-prayar Xor ingtonrt^ ^bu^j^^^
SZAZBS T. QBSSB
813
elder It tin a whole (Banla t. HaHrwfl, 182
N. a 43 S. SL 689), and neltlur of thosB
requested could bave been given unless Wal-
lace Oreer had the right to UU If It was
reaawiabtr neoes8ai7 to do so to avoid great
bodUy bamt to WatUe Greer, and nndu
the antfaontles here and elaewliera he did not
have thU right If Wattle Qreer yn» him-
self in the wrong.
Thto has been decided to be the law three
times In tbis court: State t. Johnson, 76
N. a 174; State T. Brlttaln, 89 N. a B04;
State T. Cox, 153 N. a 645, 09 S. B. 41& In
the Johnson Oase^ the court sa7>:
proposition la tme that the wife has the
right to fight In the necessary d^ense of the
husba^ the diUd in defense of hla parent,
the servant in defense of hts, master, and
reciprocally; but the act of the assistant
must have the same construction in anch
cases as the act of the assisted party should
have bad If It had been done by himself;
for th^ are In a mutual relation one to
another."' And In Uie Brlttaln. Case, In
which father and son were indicted, after
discussing the case of the tether: **Our oon-
elusions are equally , applicable to the cause
of J. W. Bxlttaln as to that of his father,
8. P. Brlttaln, for, although a sbn may flfl^t
In the necessary defense o^ bla fiither,' yet
In such cases the act of the son most have
the same construction as the act of tbe fii-
ther should have. had, if it had been done fay
himself; for they are In mutual rehitlons
to one another. State t. Johnson, TO N. 0.
174; 1 Hale; P. G. 484." And in Cox's Gise:
"In the oral argument here the prlsMMr's
counsel earnestly contended tHat the ^IsAier
had the rl^t to rater the, flsM to protect
Us father, but he only had that right to the
same otebt and under the same droum-
stances undw which the father himself could
have used force. If the fatba entered the
flight wUliivly„and had not afterwards with-
drawn from tbe flgbt and retreated to ttie
wall, or if he used eneafaiva tbrce^ ha would :
have bera' goiltv.lf he had daln bla assail-
ant Tbe same principle would apply to the
oondact of the son. fl^tlns la defense of a
fetfter vho .had not retreated to the waU or
if the prisoner used exeesslTe forca"
And the weight of authority elsewhere is
in support of this principle.
In Hale's FL Gr. vol. 1, p. 484, the author
says: "The U^e law bad beea for a master
killing in the necessary d^mae of his serv^
ant, tbe bveband tbe defense of the wife,
tbe wife of the tanstiand, the child of the
parent, or the parmt ot the child, for the act
of the assistant shall have the same oonstme*
tlon in such cases as the act of the party a»-
stBted should have bad U It bad been don^ by
btaiself, for they are in a ntutnal relation
4»e to aaothsri" And la Whar. Horn. | SSI:
"The gtneral rule^ as ordinarily stated. Is
that a buother or other relative assisting
another in resisting a wrongful act directed
against the}at^,can ua^no more force than
the. person he asdats would be mtitled to
use, and that Interfertfioe to protect a rela-
tive Is not Justified where the relative was
the aggressor In the utglnal difficulty. A
person has a right to use violence In defense
ot another only when the imperiled person
would have been justified in using it In his
own defense. Both must have been free from
fault In bringing on the difficulty."
In Stanley v. Com., 86 Ky. 443. 6 S. W.
166, 9 Am. St. Rep. 306, the court, after dis-
cussing the right *of one to defend himself,
says: "Not only, however, may be do tiiis,
but another may do It for him. Tliis other
person, in such a case, steps into tbe place of
the assailed ; and there attaches to him not
only the rights, but also the reBponsibliltles,
of the one whose cause he espouses. If the
life of such person be in immediate danger,
and Its protection requlree life for life, or If
Bu<:b danger and necessity be reasonably ap-
parent, then the volunteer may defend
against it, even to the extent of Uking life,
provided tbe party in whose defense be acts
was not in fault"
In Wood T. State. 128 Ala. 80, 29 South.
568. 86 Am. St Rep. 72: "One who Inter-
venes in -a pending difficulty in behalf of a
brotlier and tal^es the life of tbe other
original combatant stands In the shoes of tbe
brotbra', In respect qf fault In bringiDg on
the dlflScnlty, and he cannot defend upon the
ground that his brother was in imminent and
deadly peril and could not retreat, unless the
latter could have def aided upon that ground
had he killed his assailant Hence in such
cases it is a material inquiry whether ds-
fendant'a brother was at f&iilt In bringing on
the difficulty with the deceased."
In State v. GIroux, 26 la. Ann. 682: "The
next exception was to the ruling of tbe ju^e
refusli^c to charge the jury 'that It from the
nature ct tbe assault Giroux had reasonable
grounds to believe that tbe life <tf his wife
was in danger, or some felony was about to
be committed, upon tbe person of bis wife*
and was at the. time ol tbe klUiog b^ng in-
flicted upon her person, thw tbe killing was
done in aelf-detoiae.' Tbla would have re-
qnized tbe judge to asrame Che fact that the
anault upw the wife was vdtbout provoca-
'timi, Pa, it tbe wife was the j^ocressor. tbe
killing would not be excusaUe in. s^-de-
foase."
In Suzglnsr t. State, 184 Ala. 126; 82 South.
278: "Tbe ri|^ of one to use violence In
defense of anotb^ la reeognleeA by tbe law
only where the imperiled peraon would have
been legally jostlflable in using Ufce riolenoe
in his own defense and in no case la a ne*
ceesity- for acting in self -defuse regarded as
groumS tor an aoqnittal unlssa the person
sedUng shelter tbereundv waa free txom
fault in bringing mi the ^UOculty, or had re-
tdred therefrom and was thereafter assailed."
In SUte V. Cook, 78 S. C. 255, 69 S. ID.
Digitized by VjOOQIC
3U
78 SOnTHBASTBBN RSPORTBB
(N.a
Rep; 788, 13 Ann. Ou. 10ai« the drcnlt jnOce
charged the Jnrj: "Bnt If your brother or
one near and dear to you prorokeB a dUBcul-
ty, or pats himself In the wrong and tolngs It
on, the law does not allow yon to go tber^
take his place, and kill that man, and say
yon are gnilty of neither morder nor mau-
Blanghter. • • • The law does not give
the person who Is near and dear to yon the
right to provoke a dlfflcnlty and then let yon
come In and kill some oqe. when be baa
bron^t it on blmselt and get oat of It 1^
yonr saying be was near and dear to yon,
and yon did the fcUUng on that account
Bat if be was wlthoat fonlt In bringing on
the difficulty and the law wonld justify him
in defending himself, yon bave a right to go
In and defend bim. But if he brings on the
difficulty and you take part, you do it at your
own risk, and If he took life under similar
circumstances, and would have been guilty of
murder or manslaughter, and you go In, take
his place, and take life under those dream-
stances, then you are guilty of murder or
manslaughter." This charge was sustained
by the Supreme Court, and the court says,
after quoting from Hale and Wharton and
citing other authorities In support of the
principle: "We have endeavored to show
the law as laid down by the drcnlt Jodge la
firmly established. It is true the rule may
In exceptional cases work hardslilp; but tbe
opposite mle wjonld allow the innocent man
who had been forced to strike in self-defense
to be killed with Impuni^ merely because ap-
pearances happened to be against him at
tbe moment a partisan of bis antagonist
reached tbe scene of confiict Tbe duty
seems urgent to enforce rather than relax
the mle which admits of no excuse for taking
human life except necessity."
We are therefore of opinion that bis
honor properly refused the Instmetlons of
the defendant, and that there Is no error as
to Wallace Greer In the charge given. There
are other exceptions, which we have consider*
ed and which require no discussion.
[I] As to Wattle Greer, the court was re-
quested and refused to charge "that, if you
believe the evidence In this case, tbe defend-
ant Wattle Oreer is not guilty of bomldde,
and yon are instructed to return a verdict of
not guilty as to Wattle Oreer." This
prayer should have been given.
There Is evidence tbat Wattle and tbe
deceased were oigaged in a voluntary flght,
but Wattle did not strike the fatal'blow, and
there is no evidence tbat he instigated it
The Attorney General says In bis brief: *'We
have not fonnd In tbe record that Wattle
Greer bad a deadly weapon; any evtduoe
of a conspiracy between Wattle and Wallace,
or an understanding or common purpose be-
tween them; or any testimony from which
tbe act of Wallace coald be imputed to Wat-
Ue.-
^Ithough one may have bad some difficulty
wlCh tbe deoeased, be is Bot UaUe for a
bomldde eiHnmltted at or lUwnt tbe same
time by a third penon who was aeCtng in-
dependently, without any conspiracy or com-
mon design, even though the altercatlw
brou^t on the fktal encounter, and the third
perscai Inttffered to aid hlin. Title "Homi-
cide,** 2X Cyc 692. See, also, Wharton «n
Homicide, H 60; 81; State t. Kendall, 148
N. a 669, 67 B. B. 840; State v. Goode,
132 N. a 982. 43 S. B. 602: State t. Finley,
118 N. G. 1161, 24 & B, 406; State v. How-
ard, 112 N. a 869, IT a B. 166; State v.
Scates, 60 N. a 42a
There Is no error as to Wallace Greer, and
a new trial Is ordered as to Wattle Oreer.
BBOWN, J. (dissenting). There is evi-
dence tending to prove that tbe defendant
Wattle Greer aud tbe deceased. Will Fin-
ney, engaged in an affray, and that both
fought willingly, and tbat during the af-
fray they clinched and fell, Finney on t(^,
and that Finney drew his knife and stabbed
Wattle and bad bis arm drawn back to stab
him again, when defendant Wallace Greer
rustled up and struck Finney on the bead
with an axe and killed him. Wattle was
unarmed and at tbe time was fiat on the
ground with Finney on top of blm. The evi-
dence of defendant Wallace tended to prove
tbat Wattle and Finney were having some
words about a quarter of a dollar; that
Wallace separated them and stopped tbe
quarrel ; tbat Wallace turned away and went
to his buggy and started to drive off; that
he heard some one exclaim, "Don't let Fin-
ney kill Wattle"; that be turned and saw
that Flnn^ was astride of Wattle and bad
stabbed him and had bis arm drawn back
to stab him again; that Wallace grabbed
am axe and struck Finney on tbe bead be-
fore Finney could stab Wattle again.
In his charge bis honor made the guilt
of Wallace depend exdnslvely upon tbe
guilt of Wattle, saying: "His guilt or Inno-
cence would dej>raid upon tbe question as to
whether Wattle was at fault or not; that is,
as to whether Wattle engaged In the flght
willingly or used language calculated or in-
tended to bring on a fight" This charge is
sustained by our precedents in case tbe jury
should find tbat Wallace entered into ttie
fl^t for the purpose of aiding Wattle and
defending lilm in the affray with Finney.
It Is wcU setUed tliat "though a son ntty
l^t In Uke necessary defense of hie fa-
ther, yet the act of the eon moat receive Uie
same c<mstractlon as the act of tbe father."
State Btittain, 89 N. C. 482; State v.
Johnson, 7S N. OL ITS. This Is upon the
ground that these relatives stand in mutual
relation one to the other, and, where one
enters into the fl^t to osrist in defending
the oflier, he becomes lils confederate, and
bis act must have tbe same constrnctSen
as the act of the assisted
Digitized by '
STATE T. CtBSBB
816
P. a 484; S BlacMoooh 9, aafl note; State
V. MedUn, 126 N. a 1127, 86 B. B. 344.
Although tUs doctrine bu twon sevwely
critldeed some coaria, I am not dkpoied
to abrogate or gnaUfy It
Bat there is a lOiaae of tbto case nlddi
his honor did not presmt to the jury and
whldi Is not obnoxious to the auOiorlties
I have quoted. Bjf serers] ann^rlate
prayers for instmctlon tiie defendant Wal-
lace Greer substantially requested the court
to Instmet the jury that if be (Wallace
Oreei^ did not enter Into the fight for the
purpose of assisting and defending Wallace
In his contest with Tlnney but stmtit the
blow wblcb tilled Finney on a sadden emer-
gency with the tole purpose of preventing
Finney from committing a felonious homl-
dde^ and such blow was necessary for that
purpose, then defendant Wallace was Justl-
fled, and the jury, If they so find, should ac-
quit I think this Tlew of the evidence
shonld bave been presented to the Jnry.
The evidence tends to prove that, bad
nnney succeeded In stabbing Wattle the
second time and had killed him, be would
have been guilty of a felonious homldde,
and that the blow administered by Wallace
prevented snch result Wharton on Homi-
cide thus states the law: In section 633 It
Is said: "Bona fide belief by the defendant
that a felony Is in process ot commission,
wlilcb can only be averted by the death of
the supposed felon, makes the killing ex-
cusable homicide, tbou^, If such belief be
negligently adopted by the defendant, then
the killing Is manslaughter. • * * If A.
boneatly and without negligence on bis part
believes that B. is in the process of com-
mitting a felony which can only be arrested
by B.*B death, A. Is excused In killing B."
See, also, sections S37 and 630. "It is the
duty of every man, whether an ofQcer of
justice or private citizen, who 0OC8 a felony
attempted by violence, to prevmt It If pos-
sible, and, in the performance of bis dnty.
sncb person has the legal rigbt to use all
means which appear to blm as a reasonable
man to be necessary to make the realatance
and Interference effectual, and If the fOtony
cannot be prevented by other means, be la
jnstUled In taking lifew" 21 Itac of taw,
207. "A' bomidde la Justlflable when com-
mitted by necessity and In good faith In or-
der to prevent a feUmy attenq^ted by force
or sorprlae, such as murder. * * * To
Justify the killing, however, It must be done
In good faith and under an honest and rea-
sonable belief that sndi felony Is aboat to
be committed and that the killing Is neces-
sary In order to prevent Its accom^lshmmt
and must be done while the person is in
the act of oommittlng the offense^ or after
some act done by him showing an evident in-
tent to eunmtt mCh an oflBmsaL** 21 Oyc.
796, 799. Tbesa antbotitles show that, If It
appears that a person ia about ta commit a
felony upon another, a third party has tiie
right to take the life ftf the one about to
commit tbe felony, if he beUeves !t Is nec-
esaazy. In order to j^nwat tbe felony, and
a man of ordinary flnnness and IntelUgenee
would have reached the same conclusion.
I think there la a weU-marked distinction
between tbe cue where there Is otUv an in-
tention to iverent a fdony, and that In
which the third party, wbettier related or
not, espouses the cause of one of the partld-
pants to defend him in the contest In the
latter case tbe parties. In law, become con-
federates, and their relation becomes mu-
tual. In the former case a third party Is
excused, even in taking human life, If the
sole motive which prompted him to Interfere
was to prevfflit the perpetration of a felo-
nious bomidde, and the jury shoald also be
satisfied that tbe facts, as they appeared to
blm, were snch as might reasonably have
convinced a man of ordinary firmness and
Intelligence that such a felony was about
to be committed.
The distinction Is recognized by the Su-
preme Court of Midilgan In People v. Cur-
tis. 62 Midi. 617, 18 N. W. 886, In which it
is held that a dangerous felony msy be
fordbly prevented by any one who Is not
hlms^ In tbe wrcmg directly or by complic-
ity.
Under the common law the right of mu-
tnal defense was given to nearly all tbe do* •
mestie relations, but there Is no prlndple
of the common law which denies to a rels-
Uve tbe right to prevent the commission of
a felonious bomidde to title same extent and
under the same drcnmstances as one not
related may prevent it
When one intervenes In a fight for the
sole and only purpose to prevent the commis-
sion of a felonious homldde, and uses no
more fbrce than is reasonably necessary, be
iB not considered as fighting in defense of
any one, but 'only to uphold the law of tiie
land and to prevent the destruction of fan-
man llfew Tbe prlndple of Jnstiflcatlon In
such bue is broader Qian the men idea of
eelf -defense. It Is founded nimn duty to tbe
state and not to an Individual Upon the
same prlneUiIe private dtlaena may arrest
felons to prevent escapes without warranta.
State T. Bzya^ 65 N. a 827. There can be
no donbt Qiat this defense would be open to
tbe defendant Wallace Greer upon tbe evi-
dence In this case, had he not been the
biotber of Wattle. Tbe tact that be la bis
brother oo^t not to daprin lilm ot the
banafltof It
WAUCBB, concurs in this Mmmt.
Digitized by Google
3i6
78 SOmBDASTBSN BEVORTBB
ott N. c. «n)
STATB «, BtcACKWELL,
(Supreme Court of North Carolina. Hay
28; 1913.)
1. HOVICIDB fH 188*)— BTIDBnOH-nAlHCJBBI-
BILITT.
In a proaecatiou for homicide, eridence
that the deceased waa a violent and dangerous
man vhen under the influence of liquor, and
that he had been drinking juat before he was
UUed, la inadmiaaiUe where It waa not shown
that accused knew of his character at the time
of the kiUina, or that the kUling waa in self-
defense, or that the manner of the slaying was
doubtful.
[Ed. Note. — For other cases, see Homicide,
Gent Dig. H S91-S97; Dec. Dig. { 188.*]
2. CannNAL Law ^ 782*)— T&xa]>— Irotbito-
TIOKS.
The ezpreaslon, 'If the jnry believe the
evidence," preliminary to a direction aa to
how they would find upon auch belief, Is In-
exact, and ahonld be eschewed by the judges,
although not In Itself groncd for new tnal;
and consequently a requested instruction con-
aining that expression may be property re-
Bed when it tends to mislead the jury.
[Ed. Note,— For other cases, see Criminal
Law, Cent Dig. » 1847, 1849, 18B1, 1852,
1877, 1878, 1880-1^, 1906, 1907, 1909-1911,
1060, 1966, 1967; Dec Dig. | 782.*]
8. HOMZOJDK (I 116*)— SSLr-DUXN^B— Bu-
BOnABLK APPBEHBNSION.
Whether accused killed deceased under a
reaaonable apprehension that he was in dan-
ger ftf losing his life or of great bodily injury
must be determined by the Jury in view of the
facts and circumstances as they appeared to
accused, but the qaeation of a reasonable ap-
prehension cannot be determined by accused.
{Ed. Note.~-For other wu», see Homicide,
Gent Dig. H 168-168; Dee. Dig. | 116.*]
4. CmxiVAL Law <| 820*)— Tsiax<— iNffrauo-
TIONS.
Tbe refusal of Instmcticms' covered by
the charge as given Is not error.
FEd. Note. — For otber cases, see Criminal
Law, Cent Dig. { 2011: Dea Dig. | 829.*]
5. HOUICIDE (i 840* )— -APPBAlf— H ABMLBSS
Ebbob.
Where accused waa only convicted of
manslaughter, the improper refu«tl of an in-
struction on murder In the aeeond degree la
harmless.
[fid. Note.-^For other caaea, see Homicide,
Gent Dig. H 716-717, 720; Dec. Dig. { 340.*]
6u GBziairAX. Law <i 847*)— TBiAZr-lNSTBTio-
TI0N8— DUTT TO GaLL ATTBRIION TO Ml8<
TAKES.
If, by inadvertence, tbe court states any
contention of counsel erroneonsly, it should
be called to hla attention so that the mistake
can he corrected; for' the court is not bound
to adopt tbe language of accused's prayers
for instructions, but may select iiis own words.
[Ed. Note.— For otber caseo, see Criminal
Law, Dec. Dig. { 847.*]
7. HoinczDB (I 161*)— ^Ebiax.— Bubdbn or
Pboof.
Where the killing Is. with a deadly weapon,
the burden is on accnaed to satisfy Uie Joiy
of every matter or excuse for mitigation. .
[Ed. Note.— For other cases, see Homicide,
Cent Dig. |S 27frn278; Dec. Dig. { 16L*1
& CBuinAi; Law (| U6e*)-^AmA£r-TEB-
DIOTB.
If the jury return a verdict contrary to
the tratb of the matter the only remedy of an
accused la by' motion Ito (be court below; for
the error cannot be reached on aroeal.
(Ed. Note.— For other caaea, «e« Grimbial
Law, Cent .Dig. |{ .8074-8083; Dea Dig. |
1159.*]
Appeal frvm. Superior Ooart. lffe<A3enbais
Gonjil7.
Cnand Bladcwell was etmrlcted «f tatat-
slaughter, and he appeals. AfBrmed.
Tbe defendant was Indicted in tbe court
below for the murder of Dr. Fred Misen-
beimer, and was convicted of manslaughter.
The evidence taken at the trial is very volu-
minous, covering nearly a hundred closely
printed pages, and It will serve no useful
purpose even to gire a full synopsis of It
The prisoner surely cannot complain it,
for the purpose of passing upon his excep-
tions, we adopt his statement of the facts,
as contained In the brief of his counseL It
ia a fair and full statement for him; and,
while it omits reference to some of the evi-
dence, which strengthens the case for the
state, it la snfflclently accurate to present
ttie essential facts and tbe contentions of
the respective parties. We may add, though
that It did not appear that, if Dr. Mlsenhelm-
er had earned a reputation for vlolendb.
when drinking, or under the Influence of
liquor, the prisoner knew of It, but the evi-
dence tended to ahow the contrary, as his
first acquaintance with him waa on the night
before the altercation In the room took place.
The statement of tbe facts by the prison-
er's counsel Is as fbllows: "The defendant
together with W. L. Langley and G. B. Skip-
per, were, on the 25th of May, 1912, occnpy<
Ing a room. In the Buford Hotel. Skipper,
Porter, Beckman, and Langley had registered
for the room. Porter and Beckman left be-
fore the trouble started, and were not wit-
nesses to the flght Skipper bad been drlnk-
tDg hard for serenil days and was in a rery
weak eondltlon. Blackwdl came Into titie
room on Friday afternoon about 5 o'clock.
His room at the Buftord Hotel had been as-
signed by the clerk to some one else, and up-
on tlie lnTitatl<»i of Slipper and Lai^lej he
went Into their room about 6 o'CUk^ that
evening. Langley and Blackwell went to the
Elks Club, #bere they met Dr. Mlsenheimer,
who inquired aa to the condition of Skipper,
who waa BId^, and Tolnnteered to walk bade
to Uie hotel wlUi t&em. Th^ all came back
to the room which Skliq?er oocni^ed, and
went to bed abont 10 o'tiock that night
Lan^ey waked up about B o'tiock In the
morning and waked Hiaexdieimar and Skip-
per. BlaAwdl waked np and said he wonld
have to go home, whi(£h waa Lancaster, 8. G.,
as had been planned ttie nl^pit before. Ulsen-
heiiher and Skli^ took anoOieT drink and
went bacft to 8le«p. Langley stated that he
hated to CO awar and leave Skipper In
a bad condition, and si^^ested ttiat tb^
wait until the afternoon train. Blackwell
•FW etliar casM sea asms topic and seoUoa NUMBER in D«e> Dig. A Am.
H.G3
OTATB T. BLACKWKLL
S17
Agxeed to fbta, and fhiey went badi to bed.
Aboat 0:SO or 10 o'doA on SatorOay mam-
Ing, Skipper and all of the remainder of the
part7 woke up, and Ian£l<^ ordered break-
tast for all to be sent to, the iooiil. Dtutoi;
breakfast, Mlsenhelmer began to atntse Ijang-
ley. He then asked Langl^ for f2 to get a
quart of whisky. Langley replied that he
had no money of his own except a $60 bUI,
and the remaning money he had bidoi^d
to Skipper. Whorevpon SUppw directed
Langley to give BOsenhelmer Ifi, and Mlsen-
Mlmer wrote a prescripti(m and Langley sent
out for a qoart of Uqoor. When (he Uqaor,
came Ulsenhdmer borrowed k fcnife from
BlacfeweO to open the bottle with, took a
drink, went Into the bathroom and got a
atlCk abont 2 feet and 8% Inches loi« and
aboat 1% Inches at one end and 1 Inch at the
other, weighing abont 1% iwiinda. Thlsstldk
la what is commonly known as a Clamber's
<!bnm.* Ulsenhelmer took this stick and be-
gan beating around the room, chasing Lang-
ley and bitting at Skipper. Then Mlsenhelm-
er took the electric light cord and pulled It
down and told Langley he was going to lynch
him. He then began to pay attention to
Blackwell. At flrst Blackwell did not at all
reply to his attacks except to state, 'Quit
that. Doc., it hurts.' Langley went Into the
battafoom then to stop hla bleeding nose,
which had resulted from the encounter with
Ulsenhelmer. He states that while be was
there he heard three or four licks and heard
an oath used. He looked around and Mlsen-
helmer was staggering, saying that he was
stabbed. The doctor was sent for, and he
waa taken to the hospital. Blackwell tes-
tified that after Mlsenhelmer had finished
his attack on Skipper and Langley, and had
beaten up the room pretty thoroughly with
the stick, he came pver to the bed wher^
he lay and polled It down, and then Black-
well arose and got bis shirt, and Mlsenhelm-
er asked him where be waa going, using an
oath. BladcweU said he waa going to dress
and get out of the room, and Mlsenhelmer
then lodied the door and threw the key nn-
der the bed* and stated, with an oath, that
he would knoOk the tHotik off the flrst man
Uiat went out of the door. Bladnrtfl tiien
to(dC'ap his shirt and got fala knUto off of the
bed» where Mlsenh^mer had Uiiown It after
nsliig it to open the bottle of irttlsky, and
put it In his shirt pocket Later be wmt
after his aUppers, wbiidi were vtn&a the bed.
Mlsenhelmer thonght ha was going to get the
key. and said If he did get it ha would UU
him, and beg^ beating him over the head.
He cimtlniied to beat him over the head until
Blackwell picked up the knife off the floor
whoe It had falloi from his shirt pocket,
and struck htm with It SflBenbelmer was
tokeii to the hospital, and died after linger-
ing several weeks. The defendant then went
to Lancaster, under the belief that Mlsen-
helmer was not serioiisly hur^ but came back
TOluntazlly wben wquealiafl hf Uie poUce.
The defendant olfiBred abundant evldenee
aa to his good diaraeter, and also ritowed
that he waa not tbA O. 0. BlaCkwell upon
whom tbe state endeavored to flx a bi^ char-
acter. The (Hily eyewitnesaea who teatlfled
as to the tranuctton were* the defoitant,
Claud Blackwell, and the irttneas, W. I*,
langley. The steto offered evidence tendlzw
to show that the wound could not be caused
by tlie knlf6 Introduced by the state. Upon
this point expnte disagreed, and there la
positive evidoice that the knife dunm to
the Jury was tfae <me naed."
The following cnrors were asrigned 1^ the
prisoner:
"(1) The coort emd In refuslBK to admit
evidence of the violent and dkngerous chai^
ftcter of Qie deoeaaed while under tlift Inlhi-
oice of whiaky. The error In Oda la fliat
there was evidence of self-defense ; and vio-
lent and dangerous Character in cases itf
homicide Is admlasiUe wben there is evldenee
of self-defeosa
"(Z) The court rufuaed the prayer of the
defendant to Inatruct the Jury aa follows:
*lf yon believe the evidence, the deceased did
beat the defendant with a stld^ and without
provocation from talm, and was about to
strike talm again when tfae defendant stab-
bed hinL And Qie defendant had a right
to resist the assault of the deceased upon
him by ft>rce, and had a ftarther right to use
a weapon to repel the assault, and he waa
not required to confine himself to his natural
fbrce and strength not to retreat and flie
only question before yon la whether or not
he reasonably thought such force was neces-
sary to npel the assault, and if he ao
thouf^t you ought to acquit him.'
"(3> The court refused the prayer of the
defendant to Instruct the jury a follows : *lf
yon believe tiie evidence, the deceased stru<^
the defendant severe blows several ttmes with
a stick, and was attempting to strike him
again wh»t defendant stabbed bim, and the de-
fendant bad a rlgbt to stab the deceased at
the time he reasonably thought encti stabbing
was necessary to prevent the deceased from
killing him or Inflicting severe bodily harm
upon blm; such stabbing would not be ex-
cessive force under these circumstances, and
you should acquit the defendant'
"(4) The court. In Its charge, stated the
contentions of the defendant erroneously, as
follows: 'And the defendant says that he
went to the bed to get his shirt and while
he was putting It on, the penknife fell to the
floor, and while he was In the act of getting
his knife and putting on the diiit, the de-
ceased again struck him, and UM him he
was going to kill him.'
"9) Among other requesto, defendant ask-
ed the court to chai^: *If you beUere the ev-
idence, the defendant Is not guilty of murder
In the second degree, and you will so And.'
The court refused this charge, and fully de-
fined mui^ in tte -x^.J^^Ol^gtC
8X8
78 80UTHBASTBBN BE^BTBB
iT> and left tbe anutloa to the Jur^ of the
guilt or innocence of the defendant of the
cfaaig&"
The court gave a very clear and elaborate
cbai^e to the Jnry, explaining fuUy and cor-
rectly the different degrees of homicide with
reference to the particular facts of the case,
and also the contentions of the state and the
prisoner, and among other instructions were
the following:
"(1) Tbe inquiry In this case Is whether the
defendant is guilty of murder in the second
degree or manslaughter or killed the deceas-
ed in self-defense, and therefore Is not guilty.
Although the law raises a presumption that
the defendant Is guilty of manslaughter, that
presumption can be removed by evidence In
the case. It is not necessary that tbe evi-
dence should remove the presumption beyond
a reasonable doubt, In order that you should
acquit the defendant, but yon must be sat-
isfied only that tbe defendant struck the fa-
tal blow in self-defense. In other words,
such satisfaction need not be established be-
yond a reasonable doubt, nor by the greater
weight of the evidence, but through and by
means of any evidence In the case that causes
such satisfaction.
"(2) The defendant contends that, at the
time the fatal blow was given, he apprehend-
ed or believed tliat the deceased was abont
to take bis life or do him great bodily harm.
If that apprehension or belief was a reason-
able one, and the defendant acted under the
apprehension or belief that he was going to
suffer death or great bodily harm, he was
Justified in killing the deceased, as It would
be a case of self-defeuK, and yon wUl ac-
quit the defendant
"(3) In passing upon the reasonableness of
bis belief or apprehension. It Is not proper or
Just to the defendant that yon should Judge
him by the ctrcnmstances, as you are now
sitting and looking coolly back upon the
transaction, in the light of the evidence, but
yon should put yourselves in the situaUon
of tbe defendant, and sarroand yourselves
with tbe same drcumstances that surrounded
him, and then determine whether or not his
apprehension was reasonable* if yon find that
he had sncb apprehension.
"(4) The defendant contends that vrbea be
stabbed the deceased, the deceased had
stricken him several times with the stick
introduced In evidence. He contends that he
bad requested the deceased to stop beating
or striking him, and had made an effort to
leave the room In order to escape from the
deceased; that he was sitting upon the bed
putting <m his shoes ; that the deceased bad
locked tbe door and thrown the key rmOev
the bed, and threatened to kill any one who
went out Defendant contends that while
be was sitting on the bed, the deceased
■tmck him several times with tbe stick,
lUCalnBt his protest and while be vras in tbe
act of striking blm again, be picked up tl^
knUe from the floor and stabbed tbe decea**
ed, and at the time of such stabUng, he (tbe
defendant) had reasonable grounds to believe^
and did believe, had reasonable grounds to
apprehend, and did apprehend, that the de-
ceased was about to kill him or inflict great
bodily injury upon him. The court charges
you that If you believe these contentions
to be true, as heretofore It has charged you,
the defendant was Justlfled in stabbing the
deceased, and yon should render a Terdlct
of not guilty.
"(5) So, gentlemen, coming back to the
main proposition, What occurred at the time
of the stabbing, and what was going on at
that time? What was the character of the
assault. If any, by the deceased upon the
defendant and what kind of weapon was he
using? I repeat if the defendant has satis-
fied you that at the time the defendant
struck this fatal blow, he had reasonable
grounds to apprehend, and did apprehend,
reasonable grounds to believe, and did believe
— taking into consideration tbe character of
the assault and the weapon used — that he
was then in imminent danger of death or great
bodily harm, and struck under those circum-
stances, it would be your duty to acquit him
and find him, 'Not guilty.' If he has failed
to so satisfy yon, or if you find that he struA
the deceased because he was irritated and
mad at him; struck blm at a time when he
did not have reason to apprehend, and did
not appreheud, nor reasonable grounds to
believe, and did not t)elleve that he was in
Imminent danger of death or great bodily
harm, but struck him because, as I said, he
was mad at htm, t)ecause he wasn't going to
take any more from him, struck him tie-
cause he had been previously stricken vritn
a stldE by tbe deceased, and not because
he was in imminent danger of snflwlng
death or great bodily barm, then it would
be your duty to find him guilty of manslan^-
ter, and If he struck him with malice, it
would be your duty to find him guilty of
murder in the second d^ee."
Tbe court gave these further instructions:
"(6) There must be a present Impending
p^ to life, or great bodily harm, either real
or BO ai^roit as to create tbe honest belief
in the mind of the defendant that there is an
existing necessity to take the life of the per-
son intended to be killed at tlie time that
he attempts to take it
"(7) As I have stated to you, tbe burden
is upon the defendant he liavlng admitted
that he slew the deceased, to satlsty you,
not beyond a reasonable doubt i^ot bf tbe
greater weight of the evidence or the prepon-
derance of the evidence, but to satisfy you
that at the time he struck this fatal blow
that took tbe life of Dr. Mlsenhdmer, be was
enuaable for doing so.
"<8) Mow, gentlemoi of tbe Jury. Slve this
matter your sralous consideration. It la Im-
portant to the state and to tbe defendant
Take the case and make up your verdict"
Am already stated, tbe defendant was eoi^
Digitized by VjOOglC
37. OJ
8TATB T. BIiACKWKCA
819
^cted of manalanghter, and after TeBerrlnc
his «xc^;ition8 broni^t the ease ben by ap-
peal.
Caudle ft Delaney aod Oaborne, Cocke ft
Robinson, all of Charlotte, and Roach S.
Stewart, of Lancaster, S. C., for appellant
Attorney General Blckett and T. H. Calvert,
of Balel^ (Clarkson ft Dula, of Charlotte^ of
counsel), tm tb» State.
WALKER, J. (after stating the facta as
above). [1] Tbe plea In this case was self-
defense. The prisoner offered evidence to
show that the deceased was a violent and
dangerous man when under the Influence of
liquor, and there was evidence tending to
show that he had been drinking Jnat before
he was cut with the knife by the prisoner.
For the purpose of testing the competency
of the proposed evidence, we will therefore
assume that he was under tbe influence of
liquor at the time he assaulted the prisoner
with the stick. There was no offer to show
that the prisoner, at the time of tbe alterca-
tion, knew of the alleged cfaaractw of de-
ceased as a Tiolrat and dangerous man.
Upon this question the law of this state Is
well settled by numerous decisions, howevar
it may be in otber jurisdictions, thou^ we
believe that the great weight of authority
sustains the view of this court. Tbe gen-
eral rule prevailing in most of tbe Jurisdlc-
tloQB Is that such evidence Is not admissible,
and in this state snch a general rule Is well
settled, but It is subject to exceptions de-
pending upon the pecollar facts and drcum-
stances of each cas& It has been said that
these exceptions are now so well defined and
established by the current of the more re-
cent dedMons that they have assumed a spo-
dflc formula, and have tbemselTes become
a gweral mle gnboidlnate to the principal
one. State t. Turpln, 77 N. a 473, 24 Am.
Sep. 4BS. As at present understood and for-
mulated, the mle may be thus stated: As a
general mle^ evidence of the character of
the deceased Is not rrievant to the Issue In a
trial for homicide, and consegnently it la not
permissible to show bis general reputation
as a dangerous or violent man, but when
there Is evidence showing, or t^fliwg to
show, that the prisons acted in self-defense,
under a reasonable apprehension Uiat his
life was In danger, or that he was In danger
ot great bodily barm, evidence- of the diar-
acter of the deceased as a violent and dan-
gerous man Is admissible, provided the pris-
oner, at the time of the homicide, knew of
such character, or the nature of the trans-
action Is in doubt 25 Am. A Eng. Enc. of
Law (2d Ed.) p. 281, 6 Id. pp. 872, 873. where
many cases are collected In the note which
supports the text, and among them are (dted
State V. Turpln, supra, State Hensley, 94
N. C 1022, and State v. RolUns, 113 N. a
722, IB S. B. 894.
Tbe reason why It Is necessary for the
prisoner to have known of fiie character of
the deceased as a violent and dangerous
man Is w^ stated by Justice Bynum In Tnt^
pin's Case, supra, 77 N. O. at page 477, 24
Am. Bej). 4SB: **Where one is drawn Into
a combat of this nature by the very Instinct
and constttutlraL of his being, he Is obliged
to estimate the danger In which he has bem
placed, and the kind and d^n:^ of resist-
ance necessary to bis defense. To do this
he must consider, not only the size and
strength of bis foe, bow be is armed, and
his threats, but also bis character as a vio-
lent and dangerous man. It Is sound sense,
and we think sound law, that before a Jury
shall be required to say whether the defend-
ant did anything more than a reasonable
man should have done under the circum-
stances, It should, as far as can be, be placed
in the defendant's situation, surrounded with
the same appearances of danger, with the
same degree of knowledge of tiie deceased's
probable purpose which the defendant pos-
sessed. If the prisoner was Ignorant of tbe
character of the deceased, thm tbe proof of
It would have been inadmissible, because bis
action could not have been Influenced by the
dangerous Character of a man of which he
had no knowledge."
In Hensley's Case, 94 N. a at page 10S2,
the court said on this point: "If the pris-
oner did not have knowledge of such char-
acter of the deceased (for violence), then
such evidence would not be comi>etent, be-
cause It could not be Inferred that he acted
upon fticts of which he was ignorant"
The present Chief JnsUce said In RoUin's
Case: "Tbe evidence of the homicide was
not (drcumstantial; and, though the plea of
self-defense was set up, it did not appear
that tbe prisoner knew tbe character of de-
ceased for violence. Evidence to show sudi
character was therefore properly excluded."
It is also competent to show the character
of the deceased as a violet and dangerous
man when tbe evidence i> wholly drcum'
stantlal and the character of the encounter
is In doubt
The difference In the two kinds of cases
Is pointed out In State t. Byrd. 121 N. C.
684, 28 S. B. BS$i ***EMdeDce of the general
diaracter of the deceased as a violent and
dangerouB man la admissible where there is
evidence tending to dtow that the killing
may have been done from a principle of self-
preservation and ateo where the evidence la
wholly circumstantial, and the cbaruter of
the transaction la In doubt* We think tbat
threats made by the deceased against the
prisoner come under the same rule. If the
threats are not communicated to the pris-
oner, and tbe character of deceased Is
unknown to blm, such evidence ta not admis-
sible when offered only to show self-defens^
because facts of which tbe prisoner bad no
knowledge could have no effect upon bis
mind. State t. Turpln, aupra: SMfo..Tio
Digitized by VjOOy It;
320
78 SOXIXHEASTBBN BBFOBTBB
Hensley, snpra; State t. BoUlns, enpra.
But, where the evidence. Is wholly drciuii-
stantlal, testimony of the violent character
and threats of the deceased, even If unknown
to the prisoner, are admissible as tending to
show the inherent probabilities of the trans-
action. State T. Tackett [8 N. O. 210] ; State
V. Hensley. supra. In the latter case the
syllabus appears to differ from the opinion.
While this principle has been doubted in
some cases, we think It Is correct, and Its
adoption the only way of reconciling ap-
parently conflicting opinions." See, also,
State V. Oooch, 94 N. C. 987; State v. Sum-
ner, 130 N. C. 718, 41 S. E. 803: State v.
Exum, 138 N. 0. 800, 50 S. E. 283; State v.
Baldwin, 155 N. C. 494, 71 S. B. 212, Ann.
Cas. 19120, 479; State v. Price, 158 N. a
641, 74 S. E. 587. Our reference to State v.
Byrd, and to the language quoted therefrom,
most not be taken as an authoritative state-
ment by ns now of the rule where the evi-
dence Is circumstantial, for In this case the
testimony is not of that character, as the de-
tails of the encounter were given in evidence
by eyewitnesses, who testified substantially
to the same fac^. The present case has not
been brought within either branch of the
rule; for although there was evidence of
self-defense, the cha^cter of the deceased
for violence, if established, was not known
to the prisoner, nor was the evidence clr-
camstantial, nor was the nature of the trans-
action sufficiently In doubt In no view,
therefore, was It relevant to show the char-
acter of the deceased.
[2] The instructions requested by the de-
fendant, and the subjects of. bis second and
third assignments of error, were properly
refused. We have said that the expression,
"if the Jury believe the evidence," prellmina-
17 to a direction as to how they should find
Dpon audi belief, la "inexact," and should
be "eschewed" by the Judges, though when
naed it U not grooad for a new trial, unless
clearly preJudidaL Sossaman t. Gruse, 133
M. a 470, 45 a. a 757; Merrell r. Dudley,
139 N. a 07, 61 S. a 777. Bnt a Judge
ahoald not be required to use that form of
expression, espedally U it wlU mislead the
Jury as to their province In passing upon the
facta or reetrict tbem in tbe exercise of tbetr
propOT function aa triers of the facts
[S] Tbe prayers were too strongly worded,
end they are further objectionable as leaving
tbe question of reasonable apprehension as to
tbe prisoner's danger entirely too mncb to
Un when it is one for tlie Jury to decide,
thoo^ In view of tbe facts, circumstances,
and surroundings aa they appeared to the
prisoner at the time of tbe homicide. State
T. Turpln. snp^a; State r. Barrett, 132 N.
O. 1005, 43 S. B. 832.
We thns stated tbe prlndple in Barrett's
Case: "The reasonableness of hfs apprehen-
sion must always be for the Jury, and not
the defendant, to pass upon, but the Jury
must form their condnslim from tbe •facts
an^ circumstances as they appeared to the
defendant at tbe time he committed the
alleged criminal act If his adversary does
anything which Is calculated to excite In his
mind, while in the exercise of ordinary firm-
ness, a reasonable apprehension that he Is
about to assail him and to take Ms Ufe, or
to inflict great bodily barm, it would seem
that the law should permit Mm to act in
obedience to the natural impulse of self-pres-
ervation, aod to defend himself against what
he supposes to be a threatened attack, evea
though it may turn out afterwards that be
was mistaken, provided always as we have
said, the Jury find that his apprehension was
a reasonable one, and that he acted with
ordinary firmness." The prisoner must not
only have thought that he was In danger of
his life or of receiving great bodily harm,
but his apprehension must be based on rea-
sonable grounds, to be found by the Jury In
the manner we have stated, and not by the
prisoner. State v. Cox, 153 N. a 638. 69
S. E. 419; State V. Klmbrell, 161 N. C. 702,
66 S. E. 208, 614; State T. Dixon, 75 N. G.
275. The law is sufficiently lenient to him
when it requires that he should be Judged by
the facts and circumstances as they reason-
ably appeared to bim. State v. Nash, 88 K.
0. 621 ; Stote v. Gray, 77 S. E. 833. %
[4] But the principle of law attempted to
be Invoked In behalf of tbe prisoner was
fully and correctly stated to tbe Jury by tbe
court in its charge.
[S] The prayer for Instractlon as to mur-
der In the second degree, Contained in the
fifth assignment of error, is erroneous In
Itself, In view of the facta, bpt if it had been
correct, the error in refusing It would have
been harmless, as the Jury did not convict
of murder in the second d^ee, but of man-
slaughter. State T. Tates, 165 N. a 460, 71
S. B. 817; State t. Watklns^ 1S9 X. a 480;
76 S. E. 22.
[6] The fourth assignment of error Is with^
out merit, as there is no substantial differ-
ence between the statement of counsel and
the diarge of the conrt In respect to the mat^
ter". If; by inadvertence, tbe Judge stetes any
contention of counsel erroneously, it should
be called to his att^tlon, so that tbe mlsteke
can be corrected. J^Tress r. Ballroad, 158
N. O. 223. 73 S. B. 1013; State t. Cox, supra.
[7] In this case, tbe Judge charged the Jury
clears and exbaustlTely upon every phase
of the evldencew He was not bound to adopt
the language of tiie defendant's prayers for
instruction, if tbey had been correct, but
could select his own words, provided tbey
correctly expressed tbe legal principles ap-
plicable to the facte. He properly placed
the burden upon the defendant to satisfy the
Jury of every matter of excuse or mitigation;
the killing with a deadly weapon being ad-
mitted. Stote V. Quick, 150 N. C. 820, 64 S.
BL IBS; State- T. Yate^ supra; State r.
Digitized by
Google
821
Bowe, 166 N. a 436, 71 S. B. 332; State t.
Simonds, 164 N. C. 197. 69 S. E. 790; State
T. Bradley 76 S. B. 720.
[I] If the Jury hare returned a verdict
contrary to the very troth of (he matter, the
only remedy was by motion In the court be-
low to set it aside. We have no jtuisdictlon
to rererae It, w to modify It, for that rea-
son. The Jury evidently found that the de-
fendant did not act in self-defenae, as ex-
plained by the conrt, when be stmck the
fatal blow, and therefore convicted him of
manslanghter, upon the groond of legal prov-
ocation and the sudden heat of passion.
A careful review of the record and case
on appeal has disclosed no wror In the trial
of the case.
No teror.
HOKE, J. (concorring). I concur In the
disposition made of this appeal on the ground
tha^ all the eyewitnesses having been ex-
amined, there is substantial agreement as
to the objective facts of the occurrence, and
their evidence, to my mind, presents an In-
stance where the character of the deceased
was only relevant aa bearing on the reason-
ableness of the prisoner's apprehension. In
sncb case, evidence as to the cbaracttf of
the deceased as a violent, dangerous man, or
threats of Injury towards the prisoner, can
only be rec^ved when such character Is
known or the threati have been communicat-
ed. But I do not assoit to the proposition
In 80 &r as embodied in tlw principal opin-
ion, and expressed in several of the author-
ities dtedf that the testimony as to the char-
acter pf the deceased or of previous tlireata
towards the prisoner, when not made knows
to him, is only competent in cases which
rest upon drcnmstantlal evldenca On the
contrary, I am clearly of the opinion that,
when tliere la evidence which tends to make
out a oise of sdf-defense^ though from the
testlmoi^ of eyewitnesses the cluracter of
the transaction Is in doubt, evidence of the
character of the deceased as a violent, dan-
ssrons man or of threats by him, importing
serious menace to O^e prisoner, are both
competent when It may tend to tbrow ll^t
on the occurrence and reveal the same In its
true nature. To Illustrate: IC A. and B. have
an altercation, and A. kills B., and <hi the
trial prisoner offers the evidence of eyewit-
nesses -tending to show a homicide in his
necessary aelf-defense, and that B. was In
the act of committing a felonious Assault
with a deadly weapon and, with Intent to
UIl, evidence from eyewitnesses, on the part
of the state, that no such assault was being
made, nor any demonstration with a deadly
weapon. Is competent In such case, testi-
mony tiuit the deceased was a desperado,
one who was in the habit of using deadly
weapons, or that a short time before he bad
threatened to kill A., would be evidence of
the first Importance, tending to estabUah the
facts of the occurrence.
Speaking to this question, in State v.
Baldwin. 166 N. C. 486, 71 3. B. 21S, Ann.
Cas. 1012C, 470, the writer, In a per curiam
opinion, said : "It was Insisted further that
his honor made an erroneous ruling in ez-
cludlng evidence of certain uncommunlcated
threats of the deceased uttered shortly before
the bomldde, tending to show animosity
towards the prisoner and a purpose to do him
serious bodily harm. It la now generally
recognized that in trials for homldde un-
communlcated threats , are admissible: (1)
Where they tend to corroborate threats which
have been communicated to the prisoner ; (2)
where they tend to throw light on the oc-
currence and aid the Jury to a correct inter-
pretation of the same, and there Is testimony
ultra sufficient to carry, the case to the Jury
tending to show the killing may have been
done from a principle of self-preservation,
or the evidence Is wholly drcnmstantlal and
the character of the transaction Is in doubt.
Turpln's Case, 77 N. C. 473 [24 Am. Rep.
455]; State v. Mclver, 125 N. C. 645 [34 S.
B. 4301; Homlgan & Thompson, Self-Defense^
p. 027; Stokes' Case, 68 N. T. 164 flS^ Am.
Bep. 402]; Holler v. State. 87 Ind. 67 (10
Am. Rep. 74]; Cornelius v. Commonwealth,
64 Ky. [16 B. Mon.] 688. In the present case,
while there was evidence on the part of
the state tending to show that the prisoner
fought wrongfully and killed without neces-
sity, there Is testimony on his part tending
to show a homldde In his necessary self-
defense, and the proposed evidence, tending
as it did to throw light upon the occurrence,
should have been received." I take tbia to
be the correct and permissible deduction from
Turpln's Case, supra, and the position, In
my judgment. Is supported by the great
wdght of authority, many of the dedslrau
being dted In the well-prepared brief of the
prisoner's counsel, notably Wiggins v. People,
03 V. S. 467. 23 L. Bd. 041; State Thomp^
son, 49 Or. 46, 88 Pac. 663, 124 Am. St Rep<
1016; State t. Feeley. 104 Mo. 800, 92 S. W.
068, 8 L. R. A. (N. S.) 851, 112 Am. St Rep.
611; Keener v. State, 18 Ga. 194. 63 Am.
Dec. 260; Williams v. State, U Tez. App.
102, 46 Am. Bep. 230.
(la K. a SCO)
BDBNS V. 8TBWART St aL
(BnpiMiM Court of North Oaicdlna. May tt.
1818.)
1. Advbbsi Possession (| 71*)— OHUAOm or
Possession— "CoLOB or Titij:,"
"Color of tlfle" is any writing which on Its
face professes to pass a title bat which fails to
do so either from want of title in the penon
executing it or from the defective mode of con-
veyance employed, but It must not be so obvioas-
ly defective as not to mislead a iwrson of ordi-
nary capadty tmt not skilled Id the law ; It is
that which la appeaEanoe is title, but which in
reality la not; it does not depend upon the
VorottiareamBntsaaMtople and atgtlon NVMBBB ^ Dm. Dig. * Jba. Dig. K^r-N«iB|l^
78 8^-21
322
78 SOUTHEASTERN REPORTER
good faith of th« person entering apon Isnd, for
«Ten if he knew It belonged to another person
than hifl grantor it would atill be color of title,
bat is necessary not ao much to show good faith
as to fix tbe extent or boandaries of the Land
to wblcb title may be acQolred bj eontinnoos
and advetae poMeaaion. .
[Ed. Note.— For other cue& see Advene Pos-
eessioD, Cent. Dig. H 416-429; Dee. Dig. |
TL*
For other definitiona, see Words and Phrases,
ToL 2, pp. 1264-1273; toL 8, p. 7600.]
2. ADVXBBS POSSEBSIOR i§ 74*>— COLOB OF Tl-
lUB-^nDOHENT.
A decree, in a snlt involTin^ title to land,
effective to pass to plaintiff any title in the land
which tbe other parti ea may have had, at least
estoppd, constituted color of title under
which uverse poBsession fOr the reqabdte time
might ripen into a good title.
[Ed. Note.— For other cases, see Adverse Poe-
session, Cent Dig. H 443-447; Dec. Dig. I
74.*]
Appeal from Superior Oonrt; Uacon Coun-
ty; Lane, Jadge.
Action Nora W. Bums, administratrix,
gainst Henry 8tswart» Bfacon Connty Land
Company, and otluxa. Judgment for Uenry
Stewart and others, end plaintiff and Macon
Connty Land Company appeal. No error.
This action was brought to recover for a
breach of a covenant of seisin, contained in
a deed dated Aiffll 23, 1909, and executed
by Henry Stewart, Sr., and wife, Cassle
Stewart, and Henry Stewart, Jr., and wife.
Lota Stewart, to J. M. Buma, intestate of
the plaintiff.
The plaintiff's Intestate liad porcbased the
lands In question from the Stewarts, paying
one-ttaird of the purcliase money In cash, and
giving notes, payable In one and two years
after date, respectively, and securing the
payment of said notes by deed of trust to A.
W. Horn, trustee. The one-year notes being
abont to mature, and the holders thereof
threatening to foreclose, the plaintiff brought
this action, partly to restrain the collection
of the notes and the foreclosure of the deed
of trust, and as a basis tor her action allied
that there was a defect In the tttie to a
portion of the lands her Intestate had pur-
chased of the Stewarts, to wit, that portion
of the land wbldi was covered by grant No.
8,62S to John Ingram, K. Ellas, and T. J.
Keener, bearing date February 19, 1883,
containing abont 500 acres, and that portion
covered by grant 3,414 to 6. R. Fatton, as-
signee, dated September 17. 1876. The Ma-
con Coun^ Land Company was made a party
defendant for the reason that it claimed to
be the owner of the disputed lands by virtue
of mesne conveyances from the grantees nam-
ed In grant Na 8,084, which was Issued on
May 21, 1869, to A. L. Herren, J. Am-
nions, G. G. Qlnson, and Jolm O. Bve, record-
ed In Macon county In Book M, p. 462. This
grant, No. 3,084, was a large one, covering
atwnt 30,000 acres of land, and Included the
land embraced in grants Nos. 3,626 and 3,-
414, nnder which the Stewarts claimed tltl&
*For other eaaaa sea same te^ and aeotloii NUHBSa la Dee. Dig. A Am. Dig.
The queetlon. therefore, Involved In this ac-
tion Is whether or not the Stewarts \ren the
true owners of said lands under their al-
lied title, acquired by grants Nos. 3,625 and
3.414, or whether the Macon County Land
Company was the owner of the disputed land
under said grant No. 3,084; it being admlt>
ted that grants 3,626 and 3,414 hiy entirely
within the boundaries of No. 3,084.
The plaintiff offered In evidence the deeds
to her intestate from the defendants Hrairy
Stewart and Casede Stewart, Henry Stewart,
Jr., and Lnla Stewart, conveying the lands
in dispute, and containing the covenant of
seisin, and farther offered in evidence the
notes of the intestate to the Stewarts, and
the deed of trust securing the same, and for
the purpose of showing a breach of said
covenant, and for that purpose only, off'ered
In evidence grants Nos. 3,625 and 3,414, and
the mesne conveyances to the Stewarts from
the grantees named In said grants, and also
offered In evidence grant No. 3,084 to A. Lk
Herren et al., and the mesne conveyances
from the grantees ther^n to the Macon Conn-
Land Company. It was also shown that
grant No. 3,084 entirely overlapped grants
Noa 3,625 and 3,414, and, being senior in
date, passed the title; nothing else appear-
Ing. The plaintiff also, for the purpose of
showing a breach of the covenant of seisin,
and for the purpose of showing an estoppel
against the Stewarts to claim title under
grant 3,625, offered in evidence the record
of a certain suit, Including the Judgment
therein, entitied Harvey P. Wyman et aL v.
Henry Stewart et al., heretofore pending in
tbe District Court of the United States for
the Western District of North Carolina, at
AsbevUle ; the Judgment therein having been
rendered on November 9, 1891. and after
Henry Stewart had acquired title under grant
No. 3,625 from the grantees therein, by the
terms of which Judgment the plaintiffs in
said suit, Harvey P. Wyman et al, were de-
creed to be tbe owners of the lands covered
by grant No. 8,06^ enc^tt as Im^nafter
stated.
At the time this Judgment was rendered.
Henry Stewart, Sr., nnder whom the defend-
ants Henry Stewart, Jr., and Cassle Stewart,
claim, had already attempted to acquire title
to the lands covered by grant 3,625 by deed
from Ingram, Ellas, and Keener, dated March
4, 1889. The Judgment so rend^ed in tbe
District Court of the United States adjudged
that H. P. Wyman et al. were the owners In
fee simple of all the lands covered by grant
No. 3,084, except su<^ portion thereof as Is
covered by grants which were based npon
entries dated prior to July 16. 1867. Grant
3,625 did not come within the exception as It
was based upon an entry made January 10,
1882, but grant 3,414 was within the ejccep-
tion, as it was based on an entry of a date
prior to 1867; that is, September 23, 1859.
The defendant Macon Oonnty^Iiand Gom-
N.GL)
BUBN8 T.
STEWART
823
pany afterwards became the owner of the
laods covered grant No. 8^ by virtue
of deeds from H. P. Wyman et al^ the plaln-
tUb In aald action In the federal court
Defendant Henry Stewart introduced Uie
record In the case of Heniy Stavrart» Sr^ nn-
dw whom he claimed, against A. J. Gallo-
way, James Evett et aL, showing a Judg-
ment at Spring term, 1898^ of Macon supe-
rior 000^ in which it was dedared and ad-
judged, i^on issues answered by a jury, that
the plaintiff in that case was the owner and
entitled to the poBsesbion of the land covered
by grant No. S,ffii5, lying on Brush and Skit
tle^s credES in said county, giving its metes
and bounds. The following agreemeiU was
made in the case: As the court was begin-
ning its charge to the jury in order to Blni>>
Idify the issue before them, it was agreed
betweoi all the parties In court Otat if his
honor Abould be of the opinion that the grant
to Ingram, Keener, and Ellas, or the convey-
ances thereunder, or that the decree In the
superior court in the case of Benry Stewart,
Sr., V. A. J. Calloway, James Bvitt et aL,
heln at law of D. H. Bvitt, or either of them,
constituted color of title, then that the pos-
session of Henry Stewart, Sr., and the de-
fendants Cassie and Henry Stewart was ad-
verse and snffldoit to ripoi title, and that
the court should so charge the jury, and the
first Issue should be answered, "Yes," but
that if the court should be of the opinion
that said records, nor either of them, did
constltiite color of title, he should so charge
Oie jury, and thereupon the court, being of
the oidnlon that said record; nor dtber of
them did constitute color of title, charged
the jury that the said d^endants Henry
Stewart and Gasde Stewart had offered a
paper writing covering the lands in dispute
which the court bolds constitutes color of
title; and had offered evidence showing pos-
session sufficient to ripen the title, and that
if th^ believed the evidence they should
answer the first Issue "Tes.**
The jury returned the following verdict:
"(1) JXA the defendants Henry Stewart
and Oesaie Stewart convey a good title to
plaintiff's intestate under the deeds set up
in this action? Answer: Yes.
"(2) If not, what sum is the plaintiff enti-
tled to recover from the defendants Henry
Stewart and Cassie Stewart? No answer."
Judgment was entered upon the. verdict,
and plaintiff and the Macon County Lumber
Company appealed.
Bourne, Parker & Morrison and Z. Y.
Weaver, all of Asheville, and Johnston &
Horn, of Franklin, tot appellants. J. F.
Ray, R D. Slsk, G. L. Jones, and Robinson
& Boibow, all of Franklin, fto' aiveUes Stew-
art
WAIiKBR, J. Hie agreement ot Oe par^
ties, whidi Is copied in the statement, grea^
ly ilmpUflas the caaa It appears from the
charge that the court held, and so Instmct-
ed the jury, that the judgment er decree In
the case of Stewart t. Calloway, Bvitt, snd
othws was C(dor of tltl^ and, as Oie tppA-
lants had admitted the adverse possessloa
necessary to zlpen this color Into a good tl-
tie, they would, if they believed the evidence,
answer the first issue "Yes." So the deci-
sion of the case turns mainly upon the cor-
rectness of this ruling as to color of title,
and this Is necessarily so, because the par^
ties hav^ by their solemn agreement declar-
ed that It shall be sa In the brief of ap-
peUant's counsel, it is also ad^tted to be
so by this atatemait: "The Stewarts claimed
this judgment was color of title as against
appellants, and, as they had shown posses-
don for more than seven years after the
judgment, they had matured title; and the
court so held, and charged the jury to Cbat
effect" Counsel tor appellants contend that
there is no evidence as to what lands were
In controversy between the parties in that
case, and that the judgment did not pass
any title to Stewart, and therefore it is not
sufficient color of tltte. But we think other-
wise. It clearly appears that the title to
several tracts of land was litigated In the
suit and that it was finally adjudged that
Stewart was the owner of the land covered
by grant No. 8,625, and the decree, by Its
terms, had the force and effect in law either
of confirming or of vesting the title to that
tract as between the parties to the action,
In Stewart who was plaintiff In the action.
If the defendants had any title or Interest
in that tract they lost it by the decree, and
it became vested In their adversary, Henry
Stewart, Sr., and was transferred to him by
force of the judgment ftud they were for*
ever afterwards estopped from ffiaiminy any
Interest In the land as against him.
11] Color of title ^has been variously de-
fined by the courts of this country. It was
early held to be any writing which on its
face professes to pass a title, but which it
fails to do, either tiom want of title in the
person making it or from the defective mode
of conveyance employed ; but it must not be
so obviously defective as not to mislead a
I>erson of ordinary capacity but not skilled
In the law. McConneU v. McConnell, 64 N.
a 342; Tate v. Southard, 10 N. a 119. 14
Am. Dec. D7S; Dobson v. Murphy, 18 N. (X
586. The courts have generally concnrrad
In defining It to be that which in appearance
is tiUe, but which In reality is not Wright
V. Mattlson. IS How. (U. S.) 56, 15 U Ed.
280; Jackson v. Frost S Cow. (N- Y.) 846;
Baker v. Swan, 82 Md. 866; La Frombois v.
Jackson, 8 Cow. (N. Y.) 689, 18 Am. I>e&
463; Han r. Iaw, 10& U. S. 466» 26 L. Bd.
217. The doctrine la said to have originated
in the necessity for showing good faith in
entering upon the land, the law not permit
ting a person to be ousted who had settled
upon land In good taitt, believtnr4t to be^
Digitized by VjOOglC
324
hla, and aft^ hoI^OInf it adrerg^ for seven
years (Grant t, Wlnbome, 8 N. C. [2 Hayw.]
B6); bnt It was sntMeqaeDtly held that
vbeUier the wrltiiiar was good color of title
did not depoid npon his good faith, for, even
U he knew the land belonged to another
person than his grantor. It would still be
color. Beddick r. heggat, T N. G SSd; Sog-
ers r. Mabe, IS N. a UO; HcOonnell t. Mc-
Oonnell, sapra. Finally the definition ve
have first given was adt^ted, and an uncon-
stltational act of the General Assembly was
held to be within the meaning of the defini-
tion and to confer a good ttUe where the
necessary adverse possession had been held
mider It for the requisite time. Doe r. New-
bem Academy, 0 N. C. 233. Oolor of ttUe
Is necessary, not so nmch to show good ftiith,
as to fix the extent or boundaries of the
land to which title may be acquired by the
contlnuons and adverse possession. Thurs-
ton V. university, 4 Lea CTenn.) 620; Good-
win T. McGabe^ 7S OaL 684, 17 Pac. 705;
Greenleaf t. Bartlett, 140 N. a 495, 60 8.
B. 410, 14 L. R. A. (N. S.) 66a The case
last cited shows the liberal tendency of the
coiurfcs up(m this question, and we think fol-
lows the more reasonable principle. The
subject is fully discussed in Sedgwtdc &
Wait on TrUl of Title to Land. | 761 et seq.
Judgment or decrees may be color of title.
1 Gyc 1100; Wardlaw v. McNeill, 106 Ga.
20, 31 S. E. 785; Patton v. Dix(Hi. 105 Tenn.
97, 68 S. W. dOO; Kimball r. Lohmas, 31
Gal. 157; Thurston v. University, supra;
Wood V. Conrad, 2 S. 0. 841, 60 N. W. 95;
Reedy r. Camfleld, 159 ZU. 254, 42 N. B.
833 ; 7 Bdc of U. 3. Sup. Ct Bep. p. KS6:
Defferback v. Hawke. 116 U. 8. 407, 6 Sup.
Ot 95, 29 L Ed. 423.
We have held that a Jn^^ent in a pro-
ceeding for partition Is color of title, al-
though it does not divest or vest any title.
The court said in Bynum v. Thompson, 25
N. O. at page 584, that : "Partition does not
Indeed constitute a title, except as against
the parties to It But It is • • • color
of title as much as any of the defective
Instruments which have been thus deemed."
And this case has been followed ever since.
Smith V. Tew, 127 N. a 299, 37 S. B. 330 ;
Lindsay v. Beaman, 128 N. O. 189, 38 3. B.
811; HIU T. Lane, 149 N. a 267, 62 S. B.
1074. "to the same effect are Johnson t.
Britt's Heirs, 56 Tenn. (9 Helsk.) 756; Brind
r. Gregory, 120 Cal. 640, 63 Pac. 26 ; Duncan
f. Gibbs, 0 Tran. (1 Te^.) MO. The court
ddd in Lindsay v. Beaman, supra, that title
passes by deed from owner to purchaser, and
to constitute color of title the deed must be
registered (Austin v. Staten, 126 N. C. 783,
86 S. B. 838), while In partition proceedings
between tenants in common no title passes ;
and in Johnson t. Britfs Bdrs. supra, it
was said tAat in such a proceeding there is
no divestiture of title, but the decree merely
(s.a
de&ned the claim of the parties to their re-
spective shares.
[2] In this case the judgment In the suit
of Stewart against Calloway and others vest-
ed the title in Stewart as much so u If
Uie otbet parties had been required to exe-
cute deeds to him for the land. It is a sol-
emn adjudication after trial and Investlga-
ti<m that the tme title is in lilm, and it
would be sin^lar If we should hold that
such a Judgment Is not color of title, wtoi
the deed of one having not even the pretrase
of a title would be. The Judgment not only
declares the title to be In Stewart, but also
the ri^t of possession. An adverse posses-
sion taken and continued for seven yean
under such a solemn determination should
be as mudi protected as one under a void
deed or a deed In^ectual to paas titla To
rule otherwise wonld be to sacrifice Uie sub-
stance of the tiling to the mere fbnn or
shadow. It appears tliat the Judgment dear^
ly adjudges Stewart's ri^^t and title, de-
fines the extent of it with perfect aecuracyf
and declares him to be entUIed to the poi^
session of the land. It comes, therefore^
within every reastm or ^Indple upon which
the doctrine In re^>ect to color of title Is
founded. The effect of the Judgment was to
i>aB8 any title In the land which the othor
parties may have had to Stewart, at least
by estopiiel. The case of Keener v. Goodson,
89 N. a 273. does not militate against this
view. There no question of title was involv-
ed ; the allotment of the homestead having,
as said by the court, "no other efCeet than
simply to attach tQ bis (bomestead^'a) exist-
ing estate a quality of exemption from sale
under execution." We do not pass upon the
merits of that dedslon, for the facts and
the reasoning have no application to our
case.
Holding, as we do. that the Judgment In
the Calloway suit was color of title. It fol-
lows, under the terms of the stipulation
made by counsel, that the ruling of the court
was correct.
No error.
(M & a 45S)
8TATB V. WATSON.
(Snprene Oonrt of Soath Oandlnb Hay
14, 191&J
1. WiTHKssBs <S 406*)— iMnAcmanfT— Go^
LATERAL MATTEB.
A witness may not b« discredited as to
a collateral qaestion.
[Ed. Note.— For other cases, see WltnesBes,
Cent Dig. H 1273. 1276; Dee. Dig. I 405.*]
2. Cbiuinal Law (| 1147*)— DiscBsnoif—
Abuse.
A discretionary roHns will not be dis-
turbed unless tbere Is an abuse of discretion.
[Bd. Note.— For other cascev see CriaUnal
Taw. Cent: Dig. SI 3038. 3072, 3073; Dec
Dig. I 1147.*]
78 SOUTHEASTERN REPORTER
•For
euisr flMM M* nin* topic asd Motion NUHBBB la Dec Dig. A Am. Dig. '^gf|^^g§^^*'t^^^l^^|y^
8.G)
BTATE V. WATSOK
8S5
8. Bowcm d 800*)— tirsiBTTonoKft-flfeLT^
Dkfensb.
In a proaecDdoD for homicide, & charee,
Uiat if accused fired the first Bbot then ne
cannot open hi» moQth and plead «elf-defenie,
is erroneous.
[Ed. Note.— For otber eaaea, see Homidde,
^0-^ 622-680; Dec
^ BowoiDE (I lie*)"— Sbu-Defshsx.
To make out a case of leU-defeose It ts
necessary to sho^r that the accused actaaSr
believed that he was in sacb immediate dan-
nr of loains lUa life or sattainins Mrious
bodily barm that it was necessary to take the
life of his assailant, and that the drcumstanc-
es in which accused was placed were such as
would justify sach a beUa in the mind of an
ordinary peraon.
[Bd. Note.— For other cases, see Homicide,
Coit Dig. H 16&-168; Dec; Dis. I U6.]
Aiweal from Common Pleas Circuit Court
at Kershaw Count? ; O. W. Qase, Judge.
O. H. WatBon waa convicted of homicide,
and be appeals. Rereraed, and cause re-
manded for new trial.
The defendant's exceptiona are as follows:
*^e defendant excepts to the mllng of
his honor, George W. Oage, trial judge, and
to bis charge to the inrj^ upon t3ie following
gnmnds, to wit:
"(1) Becanse his honor erred In refnalnc
to allow the witness Bowers to testify as to
the Intimate sexual relations existing be-
tween the witnesses Ella Pmcb and Loma
Peach, and the deceased, T. B. Gregory, and
his brothers ; such testimony harlng been of-
fered to show interest or bias on the part
of the said Ella Peach and Loma Peach.
**(2) Because his honor erred in allowing
the solicitor, in his a^oment to the Jury,
over the protest of defendant's counsel, to
comment upon the fact that the witnesses
as to the good reputation of the defendant
were from a distance and that none had been
produced from the near vicinity of his home,
whereas, bis honor had refused to allow tlfe
defendant to put other witnesses on the
stand to testify as to his good reputation,
although he bad them present and ready
from the near vicinity of his home; such
facts having been called to his honor's at-
tention at the time the protest was made;
and notwithstanding that witness J. EL Ba-
ker was a close neighbor to defendant
"(S) Because his honor erred in charging
the Jury that the question of 'self-defense'
might be summed up in the language of the
school boy as 'who hit the flrst lick'; where-
as, he should have charged the jury that the
question of *self-defenBe* depended upon who
brought on the difficulty.
**(4> Because his honor erred in diarging
the Jury, without clear quaUflcatlon, that the
question of 'self-defense' d^wnded upon *who
fired the flrst idiot,' and In charging said
Jury that. If Watson fired the flrst shot,
then he cannot open his month and plead
self-defense* ; whereas, he should have Purg-
ed the Jury that Ihe defendant; Watson,
could plead *self -defense,' ev«i though he
Ared the flrst shot, if said shot was flred be^
cause of a reasonable belief by defendant
that he was In imndneut danger of death or
great bodily harm at the hands of deceased.
"(S) Because his h<»ior erred in charging
the Jury, without clear qualification, as fol>
lows, 'If the other man flred the first shot,
if the peril was there Imminent and the con-
troversy was on, Watson had the right to
shAot to save himselT*; the reasonable In-
ference from said charge being, in the ab-
sence of clear quail flciition, or explanation,
that the defendant had no right to shoot un-
less the other man flred the first shot
Because his honor erred in charging
that *self-defenae* la a matter of *who hit
the flrst lick.* or *who flred the flrst shotT;
said charge being an abstract proposition,
without qualification, explanatUm, or lllw-
tratlon, and thbrefofe Incomplete and mU*
leading.
"(7) Because the whole diarge of his honor
on the question of 'self-defense' Was Incom-
plete, erroneous* Inadequate, and mlsleadliis
to the Jury."
Williams A Williams, of Lancaster, for ap-
pellant Solicitor Oobb. of Columbia, M. L.
Smith, of Camden, and J. C. Massey, of Ker-
shaw, for the State.
GART, a J. The defendant, O. H. Wat-
son, was Indicted for the murder of T. BL
Gregory, and upon his trial the Jury ren-
dered a verdict of guilty with a recommenda-
tion to mercy, whereupon he was sentenced
to imprisonment for a period of four years*
and thereafter appealed upon exe^ittoDS
which will be reported.
[1] The case of State v. Hasty, '78 8. O.
105, S6 S. E. 669, shows that the flrst excep-
tion cannot be sustained. In that case the
court having under consideration a similar
question, used the following language: "The
presiding Judge ruled that the testimony
therein mentioned was Itrelanuit, and that
it was not competent for the purpose of con-
tradiction, as it related to a collateral ques-
tion. This court Is satisfied that the testi-
mony was not only Irrelevant, but that It
was sot admissible for the purpose of dis-
crediting the witnesses for the state tliera-
in mentioned."
[2] The second exertion must be oreRUI-
ed, for the reason that it has not been made
to appear that there was an abuse of discre-
tion on the part of his honor the circuit
Judg&
[3] The other exceptions assigning error,
on the part of bis honor the presiding Jndg^
in r^ard to the law of self-defense, mu^ be
sustained. The presiding Judge charged tiie
Jury that, If Watson fired the first shot, then
he cannot open his mouth and plead self-
defense.
The testimony as to whether the-defendanl
•For otlMT I
I Bime tople aod seotloB NUHBBR la Dee. Die. a Am.
336
T8 SOIJTHBASTERN RBPORTBB
or llie deceased loroToked Oie fflfflcnlty was
eonfllctlng.
[4] The nile In regard to aelf-defeose la
ttana stated in 0ie case of State r. Mc-
Qreer, 18 8. O. 464: "To make out a case
of aelf-def«nBe» two things are necessary:
(1) Hie evldenee aboidd satisfy the iurj that
the aoensed actoally believed that he was in
such Immediate danger of loiring hla Uf^ or
sustaining seiions bodily barm, that it waa
necessary, for his own protection, to take the
life of his assailant C2) TtMt the drcom-
stancee In wbldi the accused was placed
were such as would, In the opinion of the
Jury, Justify such a belief In the mind of a
person, possessed of ordinary flrmness and
reason. It la not a question which depends
sc^ely upon the belief which the accused may
have ratertalned ; but the question is what
was his belief, and whether, under all the
circumstances, * * * the Jury think he
ought to have formed such belief." The
charge of the presiding Judge was not in
harmony with the foregoing definition.
It is the Judgment of this court that the
Judgment of the drcnlt court be reversed,
and that the case be resnandad for a new
trial.
WOODS, HTDRIOK, WATTS, and FRA-
8BB, J coicnr.
(M & a in)
GEER T. BARIiB et at
(Supreme Oonrt of South Carolina. May
19, 191&)
HuncnFAi. Cobpobations (i 181*>— Om-
oxas— Yaoahct— Tkbh.
Under Act Feb. 20, 1907 (2S St at Large,
p. 818), amending Act March 2, 1899 (23 St
at Latffe, p. 188), providing that on the
happeniog of a vacancy in office of police
commissioners, who were elected for four
years, the dtr council would appoint an in-
cumbent "until the auoceeding regular elec-
tion," where a poUct commissioner resigned
before two years had expired, and before a
general election, which occurred at the two-
year period, and the vacancy was filled by
the council, the appointee beU only until the
next succeeding election, and not for the un-
expired term of fonr years.
[EM. Note. — For other cases, see Municipal
Corporations, Cent Dig. If 4S8-46S; Dec.
Dig.ni 181.«]
"To be officially reported."
Petition in the Supreme Oonrt by John M.
Gesft Police Commissioner of the City of
Greenville, against Wilton H. Earle and
otiwrv eonstltntlng the CItr Bxecntlve Com-
mitter Petition dismissed.
McCulloo^, Martin A Blythe, nf Green-
vHH ^ plalntifT. WUtim H. Earle, of
Greenville, for reapondents.
GABY, O. J. This Is an ai^llcatlon to the
court, in the exercise of Its original Juris-
diction, for a writ of certiorari, upon an
agreed statement which contains the follow-
ing facta:
1. "By an act of the Leglalatun approved
the 2d of starch, 1809, It is provided that on
or after the first Tuesday in April, 1888, there
Shall be established a board of police com*
mlssloners In the city of Greenville^ eondst-
Ing of five upright and intelligent dtJsena.' "
2. "By an amendment to said act approrad
February 20, 1907, the above-mentioned act
of 1809 was amended, by striking out sec^
Hons 2 and S thereof, and Inserting in lien
thereof the following two provisions:
"'At the next r^nilar election, for tbe
purpose of Meeting a mayor and alderman
for the dty of Greenville, there shall be
elected by the qualified electors thereof, five
members of the board of police commission-
ers, two of whom shall be elected fbr two
years, or until their successors shall be
elected and qualified; at each subsequent
r^lar dty election, successors to the mem-
bers of said board of police commissioners,
whose terms have expired shall be elected
for a term of four years.
" 'All vacandes in said board caused by
death, resignation, or otherwise, shall be
filled by election by the dty coundl of Green-
ville, until the sncceeding regular election.' "
3. "Under the aforesaid act of 1907 five
members of the board of police commission-
ers were elected, at the regular election in
September, 1907, two of them for two years
and three of them for four years, in accord-
ance with the statute. At the next election
in September, 1900, two members of said
board, L. O. Cauble and W. L. Mauldln. were
elected for a term of fonr years, In accord-
ance with the statute, and their terms wUl
expire during the prraent year, thdr succes-
sors having to be selected at the regular
election September, 1913. At the election
following the 1909 dectlon, to wit, that deo-
tlon occurring In September, 1911, Frank
Hammond, A. UcBee, and J. D. Gllreath
were elected members of the said board for
a term of four years in accordance with the
statute. Some time after his election, the
said J. D. Gilreath resigned from the said
board of police commissioners, and the said
resignation was duly accepted and became ef-
fective, the vacancy being filled by the said
dty coundl of Greenville by the dection of
T. O. Lawton. That during the year 1913 the
said T. O. Lawton, after serving some
months, moved out of the dty of Greenville,
S. C, and resigned from the said board of
police commissioners, his resignation bdng
accepted and becoming duly effective, and
the vacancy was filled by the said dty coun-
cil, by the election by the city coundl of
Jno. M. Qeer, plaintiff herein."
4. "The defendants, Wilton H. Earle, W.
0. Beachman, H. J. Haynesworth, J. I. Wes-
tervelt, G. R, Busbee, B. M. Shuman, J. W.
Goddard, R. F. Watson. A. K. Park, J. I.
West, M. B. Leach, and J. A. McDaniel. are
"Vor eUMT cam ■•• same to^e and asetlon NUHBaB tn Das. Dig. A Am. Dig. Kt^i^^kOm
8.0)
STATE T. MolNTOBH
827
the members of and constitute, the City Dem-
ocratic ExecutlTe Committee, under the laws
of the state <rf South Garollna, governing
primary elecUons, and under the constitution
and roles of the Democratic party are charg-
ed with the duties of prorldlng and arrang-
ing for dty elections In the said dty, of
declaring what officers shall be voted for,
and of providing ballots and arranging de-
tails for the election of sudt officers, in-
cluding members of said board of police
commlsdoners. And under our pollticfil sys-
tem In the state of Soutli OaroUna, nomina-
tion at the Democratic primary Section for
sndk officers are practically eqnlTalent to
election.**
5. "That the defraidants as constltnting
the committee, as afbresald, han ordered a
Democratic mdmary electbm to be beld for
nominees of the Democratic party, for the
genoal election fbr'ttae city of Greenville,
wbldh wiU be hdd in September, 1913, of
two members of the said board of police
commissioners Instead of three, two to suc-
ceed Messrs. Oaable and MknljDn, whose
tnms ittuperly ezidxe daring the present
year, and tme to succeed platidlf^ who al-
leges that bis term does not properly expire
vntll the year ms, and that the dedslon
and determination of the said committer are
In dwogatlon of Us right to the peaceful
possession of Us olBc^ as a member ot the
said board of police comndaslonen. and con-
trary to the provisions of the law made
and provided in such casa The members
ot iba committer admitting th^ doubt as
to the proper construction of the law cover-
ing this point, have deemed it better to order
tfals Section ot a saccessor to the said Jno.
M. Geer. and have agreed that the matter be
snlunttted without controversy to this coorE,
to determine wheth^ the said Jno. M. Oeer
Is correct in Us contentloQ, and the said
Oeer ber«dn claims the right to review the
tLcOaa of said conunittee by way of cwtlora-
rl, and praya that said committee he enjoin-
ed from ordering, arranging, and providing
for the election ot his successor until the
regular election for the year 1016."
The only question in Uie case is whether
the successor of Gilreath Is to be elected at
the next general election for dty officers
(which is to be held in September, 1013), or
at the subsequent election, when his succets-
sor would have been elected If he had re-
mained In office until that tlma In other
words, whether "succeeding regular election"
has reference to the next regular election
for the particular office to question.
The couteation of the defendants' attorney,
is thus stated In his argument: "The scheme
of the General Assembly with reference to
police commissioner undoubtedly Is that three
should be elected by the people at one time
for four years, and two years later two
should be elected by the people for four
years, and this probably because the desire
of the tawmak^ is that this office should
be as continuous as possible. The contention
of defendants recognizes this scheme, the
view being that upon the r^lgnatlon of Gil-
reath, Lawton was elected only until the
next general dty election, and, he having
resigned before this time, plalntlfr was elect-
ed by the council only until the next general
dty election, and that in September, 1013,
successors to the two commlBSioners who
were elected in 1900 will be dected for a
term of four years, and that the successor
to plalntlfC will have to be dected In Septem-
ber, 1013, for a term ait two years. In other
words, the successor to plaintiff to be dect
ed by the peo^ this year will be for the un-
expired Una of Gilreath, who was elected
In 1011 for a term ot tom years. The mat-
ter of electlnv In 1918 two commlsslontts
fbr torn years and one for two years wiU
merely be following the method adopted in
1907 under the amendatory act of 1907, when
three were elected for four years and two
for two years."
The Bcbone ot the statute was tbat the
members of the board should be so dasstfled
as to produce rotation in office, and that the
members shonld be elected by Qie peo^ as
far as possible; henoe the provision that all
vacandes caused by death, reslguatlon, or
otherwise Mhould be fflled by the conncUt
not for the unexpired tenn, but until the
succeeding genmil Section.
In order tlutt thto scheme shonld be caz^
rled Into effect, all minor inovlslons must be
construed to be subordinate and subservient
to fbe leading design. In the langnsge of
Mr. Justice Hudson In the case of Simpson
r. Wlllard« 14 8. a 101: "The supplying of
vacandes in nnext^red terms, is incidental
to the preservation ot an existing term of of-
floe, and hemce must be so conducted and
carried out as not to derange, but to pre*
serve this fnndamental and leading design ot
succession and regular rotation." By this
construction alone, can full force and effect
be given to Qie scheme contemplated by tba
statute.
It is the judgment of this oourt tiiat the
plaintiff Is not oiUtled to the relief for
which he prays, and that the petition be
dismissed.
WOODS, HYDBICK, WATTS, and FBA-
SBB, JJ., concur.
94 S. C. 429)
STATE V. MelNTOSH et aL
(SQpreme Court of South Carolina. May
12; 1013.)
1. CxnnnAL Law JJ 398*)— GoHPaLUKo Ao-
cused to be a withbsb aqainst hufsuj'
—Shoe Tbacks.
To compel an accused to give up bis shoes
for the purpose of comparisou witb tracks
made near the acene of the murder and . the
admission of the result of the comparisoo do
not violate Coust art. 1^,8,1J, .Prev^^ ^t>yU>
•roi atlMr em»m — um» toplo aafl taction KPMBgR ia Dao. Pig. * Am. Dig. Kar-NaJBariaa k Bap'r ladroa
IS SOUTUHlASTBR^r BJDFORTBB
DO pernm ihall be compelled In a erinlnal
cue to be a wiCneM acalnct hlmnrif.
[Bd. Note^For other case*, see Crimisal
Law, Cent Dig. H 671-874; Dec. Dig. I
893.*!
2. WiTiraasis a 888*L'-* Oortbadiotion or
State's owk wiTNEas— Incwnsistknt
Btateicbitts.
Where, ia a proeecntlon for marder, a
witness (or the state on cross-examinatioD
deflies the trath of a statement made by him
to the sheriff before trial, claiming that it
was procared by dnress, the sheriff may not
prore the statement to contradict the witiipsd.
[Ed. Note. — For other cases, see Witnesses.
Gent Dig. If 1218-124S: Dec. Dig. | 889.*]
8. Cbucinal liaw (| 418*)— Btxdihob—
Stateukhts in Pbbbbnoe or Accused.
Statements made by a person in the pres-
eoo* of accused are not admissive whore ac>
cosed denies tbeir truth.
[Ed. Note^For other eases, see Criminal
Law. Gent Dig. S! U^O, 1121; Dee. Dig. |
4ia*]
4. OsDaNAZ. Law Q 608*)— BTunirat—
Gebdibiutt.
Where, In a prosecution for murder, a
witness for tne state implicates the accused,
but on cross-examination says that he made
the. statement to save himseU, it is not error
to refuse to strike the teatimony* as it affect-
ed his credibility only.
[Ed. Note^For other cases, see Criminal
Ijw^Cent Dtg. H 1689-1044; D«!^ Dig. |
Appeal from General Sessions Gircnlt
Oon^ of Florence Count?; a W. G. Shlpp,
Judge.
"To be officially reported."
Harry Mcintosh and John Williams were
eonTicted of mnrdw, and tbey appeaL Be-
vwsed.
iKSan it OUrar, WIUcMC A vnilco^ and
Meoij EL Davia, all eC norene^ for app^
lanta. Walter H. Wdla, of inorenc^ and
J. Ifonroa Bpeon^ of DarUngttni, tar the
State.
HTDBICIC, J. On Bfardi 0; 1912. Andrew
Jackson, a little boy eight or ten years old,
of tbe fktr of Florence, disappeared. On the
second day thereafter his dead body was
found In an empty box car on the repair
tracks of the railroad company. The cir-
cumstances indicated that be had been mur-
dered. The shoe tracks of a man were found
leading to and from the car. They showed
certain peculiar characteristics by whleh It
was thought the shoe that made them might
be IdentUIed. A few days after the dis-
covery of the body, four colored boys, WIl-
Uam Foxworth and Freddie Mclntwh, and
the defendants, Harry Mcintosh and John
Wllllama, were arrested and detained la the
dty jail on suspicion of being guilty of the
murder. While they were in jail, the chief
of police ordered tbe defendant Harry Mc-
intosh to take off his shoe and give it to
Wm, and be did so. The shoe was com-
pared with the tracks found near the car,
and it was put on the foot of another person,
who made a track beside one of them for the
purpose of comparison. The shoe and tes-
timony of the similarity of the track made
by it to those going to and from the car
was admitted In evidence against the objec*
tlon of the defendant Mcintosh.
After the four boys had been transferred to
tbe county jail, William Foxworth and Fred-
die Mcintosh made statements to tbe sheriff
implicating the defendants. These state-
ments were reduced to writing by the sheriff
and signed by WUUam and Freddie. Tbe
sheriff then took these boys into the presence
of the defendants and read the statements
over in their presence and bearing and asked
WUUam and Freddie if they were correct
and true, and both said they were, but the
defendants both said that they were falser
and that the other boys had made them to
exculpate and sare themselves. At the trial
the 8tat« put up William and Freddie as it»
witnesses. William's tesUmony waa, with
slight variation, according to his statement
He admitted, however, on crosa-examlnatlon,
that when he was first put In jail and ask-
ed if he knew anything about the murder Im
had denied any knowledge of it, and said
his reason for doing so was that be warn
afraid be would fet himself Into It He
said also that the aherUt toU falm that IC
be knew Bnythtng aboat It; It would be
better fbr him to teU It end that if he did
not teU It and get hlmaalf oat he (the sher-
iff) would get all four of them. Freddie de-
nied ttM truth of his Btatement in every
material particular, and swore that It had
been extorted from him by fear and croA
treatment The sheriff denied that tbe etate-
menti had been obtained by duress, and aald
that th^ wwe voluntary; but he admitted
that when he read them Over In the pree*
ence of the defendante, both defendants said
they were not true, and that the bojB had
made tbem to get out of it themselves. Aft*
er William and Freddie had testified at tbe
trial, the sheriff was allowed to prove th^
statements to him, and they were admitted
in evidence, against tbe objection of d»
fendants.
[1] The first exception assigns error In
admitting In evidence Harry Mcintosh's shoe
and the testimony tending to show that the
tracks at the car were made by it on the
ground that It violated the Inhibition of the
Constitution (section 17, art 1) that no per-
son "shall be compelled In any criminal case
to be a witness against himself." The ad-
mission ot the evidence did not violate tbe
constitutional rlgbt of the defendant In
State V. Atkinson. 40 S. a 363, 18 S. EL
1021, 42 Am. St Rep. 877, certain pieces of
newspaper taken from tbe room of the de-
fendant, John Atkinson, which the witness
had entered without authority of law,
•War etksr eases see sune topla sad seotton KVHBSB In Dee. Dig. e Am. Dig.
SEABOARD AUt UNE BT. 00. T. HEWLBHTT
admitted In etld«nce tor the pnrpose of show-
ing that tber correeponded with pieces of
paper picked up at the scene of the boml*
dde, whldi were supposed to have been the
wadding of the gun with whltik the fatal shot
was fired. Their admission was Butalned.
The conrt qnoted with aBproral Oie follow-
ing from 1 Or. Br. | 2S4a: "It may be men-
tioned ta tUs place that thongh papers and
other subjects of evidence may have beui
Illegally taken from the possession of the
party' against lAom tliey are ofSsred, or
otherwise uiilawfnlly obtained^ this is no
TaUd objection to th^r adndsslbUlty, if they
are pertinent to the Issue. The oourt will
not take notice how Uiey were obtained,
whether lawfully or mdawfoUy, nor will It
form an lone to drtemdne tiiat qnestlinL''
Bee, also, Adams t. New York, 182 V. 8.
68S, 24 Sup. Ct ST2, 48 L. Ed. 07S; State t.
Garrett. 71 N. G. SB, 17 Am. Bap. 1; 80 A.
ft n Bna L. (2d Sd.) llBfii
[t, S] Thb conrt erred In admitting the
statements made to the eherltr by WllUam
Fozwortti and Freddie Mcintosh. They were
not adndsrible to contra^ct the witness
(State T. McKay, 88 8. a 234, 71 S. Bl 859,
nor to corroborate them (State t. Thomas, 8
Strob. 208; SUte t. Scott, IS S. C 484;
State T. ailUam, 68 S. a 419, 45 & B. 6;
State T. McDanlel. 68 8. G. 304, 47 S. E.
384, 102 Am. St Rep. 661), nor as Independ-
ent evidence, on the ground that they were
made In the presence of the accused. State-
ments made In the presence of a party are
generally admissible, if be remains silent,
when they are made, and the dTcamstances
are snch that he can speak and naturally
would or ought to respond to them. In
such drcarastancca, his silence may alTord
ground for inferring that he acquiesces in
the truth of the statements. But, where the
situation la snch that it would be improper
for him to reea>ond, statements made to him
or In his presence are inadmissible. State
T. Senn, 32 S. O. 382, 11 S. E. 292. So, also.
If he positively and unequivocally denies the
truth of such statements, as was done in
this case, they are lnadmissit>la Chanc.
Mod. Br. I 1421 : 12 Cyc. 423. The admis-
sion of But^ testimony woold violate the role
against hearsay and permit proof of an IsBoe
by fabricated teetbnony.
[4] There was no error In refusing to
Mxike oat the testimony of William Fox-
worth given at the triaL The fact that he
testifled, on cross-^amlnatlon, that he made
the statement, which was Introdnosd In evlp
denoe, to save himself went only to the cred-
ibility of Ida tesdmsny, not to Us admissl-
blUty.
As there mnt be a new trial. It would not
be propw to dlscoss . the testimony. - It Is
enongta to say there was no emr In refnUng
to direct a verdict of acquittal as to ttie de-
fendant John Williams. The asstgnmmts of
error In the charge are unsubetantlal and
cannot be sutalned.
Reversed.
GARY, a and WOODS. WATTS, and
FBASSR, JJ., concur.
(n a. cmt
SBABOARD AIR LINE RT. OO. v. HBW-
LBTT et al.
(Sopreme Conrt of Sooth Oarollna. 1^ 20,
1918.)
1. RspuBvin (I 119*) — BoHp — CJonomoir
"Foa PaoBECimoN or Aotior"— Bsbaoh.
Tbe condition of the bond. Klven by plain-
ttS In sn action of claim and aelivery, 'for tbe
prosecution of tbe action," is breached on tbe
action being dismissed, though on motion of
defendant theTein, for lack of jurisdiction.
[Ed. Nets.— For other cases, see Replevin,
Cent Dig. U 470-478; Dec. Dig. | U9.^
2. Replevin (S 1S3*) — Bonn — Action to*
BEBACH — COUPLUNT.
The complaint, in an action on the bond
given by the plaintiff In an action of claim and
delivery, alleging the institution of the action
of claim and deUverj. the giving of the bond (a
copy l>e]ng attached to and made a part of the
complaint, and showing tbe condidon to iwose-
cute tbe action), the taking of th« property
from the defendant in sucb action, ana its de-
liverr to the plaintiff therein. In consideration of
the giving of the bond, and the dismissal of soch
action, is saffieient to entitle plaintiff. In the
action OB the bond, to rely on the failare to
prosecute tibe action of claim and delivery as a
breach of tbe bond, though the chief reliance
of the complaint seems to be failure to return
the property In accordance with an sieged jadg-
ment therefor, which in fact was never ren-
dered, and could not liave been rendered because
the dismissal was for want of Jnrisdictloa.
[Ed. Note.— For oOier cases, fca Replevin,
Cent Dig. iS 620-S26; Dec Dig. | 133.*]
8. Afpbal and Esbob (| ffi2*>— BbVxsw—
Mattkb Not Uboxd Bblow.
The complaint and proof, Id an action on
a bond given by the plaintiff in an action of
claim and delivery, entitling plaintiff to recover
for breach of the condition "for prosecntlon of
tb« action," granttng defendant's motion to di*
reot a verdict because plaintiff had proved no
judgment for return of the property, was afBrm-
ative error, which will avail plaintiff on appeal,
though in the trUl conrt be merely resisted tbe
motion on the ground on which it was made,
and did not there urge that the verdict could
not be directed because there was allegation and
proof of breach of the condition to prosecnte,
fEd. Note.— For other cases, see Appeal and
Error, Cent Dig. H 18S1, 18S8, 1«!6, 1430,
1431; Dec Dig. | m*]
4. RnPLinx (I 124*)— Bond— BKBacH—DAK-
AOB8.
For breach of tbe bond given by plaintiff
in an action of claim and delivery, recovery can
have been only for soch dami^es aa defoidant
sustained by the taking of the property from
its possession: so where It was merely holding
the property for demurrage charges, it can re-
cover only snch amount as Is fonnd'was due it
for demurrage.
[Ed. Notftv— For other eases, see Ben^evliL
Cent Dig. 8S 487-497; Dtc Dig. | 124.T
Gary, O. J., and Fraaer, X, dbwentlnj,
Ai^ieal from Oominon Pleas Glrcnlt Obart
of Barnwell County; S. F. Rice, Juc^
•For otlisr eases ■•• same toplo and MstUm NOHBBB In Deo. Dig. A Am. Dig. Key
78 SOUTHSASTERN REPOBTKB
(&0.
Action by the Seaboard Air Line Ballway
Company against J. H. Hewlett and anoth-
er. From a Jndgment on a verdict directed
for defttidanta, plaintiff appeals. Beversed.
Harley & Best, .of Barnwell, and S. L
Gralff and I^les A lories, all of Columbia,
for appellant J. M. Fattorsont of Allendale,
tor re^ndents.
HTDBICK, J. The defendant Hewlett
brought an action of claim and delivery in
the coart of a magistrate against the plain-
tiff, Seaboard Air Line Railway Company, to
recover possession of a car of cotton seed,
which the company claimed the right to hold
for demurrage charges, amounting to $21.
Hewlett gave bond, as required by statute,
conditioned, among other things, for the pros-
ecution of said action, and tiie seed was
taken from the company and detlvered to
htm. Upon the call of the case for trial it
was dismissed, on motion of the Railway
Company, on the ground that the magistrate
had no Jurisdiction; the particular ground
being that the day of trial was fixed In the
summons 21 days after the day of service,
instead of on a day within 20 days thereaft-
er, as required by the statute. The Railway
Company then brought this action on the,
bond. The circuit court held that no breach
of the condition of the bond had been prov-
ed, and directed a verdict for the defendants.
[1] While, in some respects, the case of
Blder v. Greene, 84 S. a 1G4. 13 S. B. 323,
Is like the present case, there la at least
one important difference. It appears, from
the report of that case, that the condition
of the bond there sued on was "for the re-
turn to the defendants of the said property,
or so much thereof as shall be taken by vir-
tue of the said affidavit and requisition there-
upon indorsed, if a return thereof shall be
adjudged." It will be observed that the bond
In that case was not conditioned for the
prosecution of the action. Therefore the
court held that, as the condition of the bond
was "for the return to the defendants of
the said property, * * * if a return
thereof shall be adjudged," and as the trial
Justice bad no Jurisdiction to order the re-
turn of the property, bis order to that effect
was a nullity, and, no return thereof having
been I^ally adjudged, there had been no
breach of the condition of the bond. Never-
tbelees, in order that the parties might not
be denied the opportunity of trying thcdr
right and title to the property in dispute, and
that injustice might not be done, the court
remanded the case, with leave to the plain-
tifCs to apply for an amendment of their com-
plaint so as to make the action one fOr tres-
pass for the illegal seizure of the pr(^>erty
rather than ah action on the bond, which It
was held to be.
In this cas^ however, one of the oondl-
tlons of the bond was **for the prosecution
of the action," so that tho question here la
whether the dismissal of the action of claim
and delivery for lack of Jurisdiction, even
though it was done on motion of the defend-
ant in that action (plaintiff here>i was a
breach of the condition of the bond. Tliat
question has been conclusively answered in
the affirmative by this court in Alderman t.
Roesel. 52 S. a 162, 29 8. £X 385, where an
order of discontinuance of an action of claim
and delivery was taken by the plalntift, who
had given bond to prosecute the action. The
court said: "Is such discontinuance of an
action a breach of the condition of the bond
to prosecute? To prosecute an action, so far
as concerns the matter in hand. Is to carry it
on to final effect, and so the bond in ques-
tion Is conditioned to carry on the action to
effect Where a plaintiff abandons his ac-
tion, falls to prosecute It, discontinues it on
his motion, or where it is dismissed for want
of prosecution, there is a breach of the con-
dition to prosecute." In 34 Cyc. 1578, it Is
said: "A dismissal of such a suit is held to
constitute a breach of the bond, entitling the
obligee to an action for the return of the
property or Its value, although $uch dianUta-
al wat ordered on hia own motion for defe<^
in the torit, for want of furitdiction, or for
failure of plaintiff to prosecute" italics add-
ed). To the same ^ect la 24 A. ft B. Ed&
L. (2d Ed.) 539.
From the foregoing statement of the law,
which is well supported by the authoiitiea,
it appears ttiat it makes no difference that
the action of claim and delivery was dis-
missed on motion of the defendant, and there
is no reason why that fact should prejudice
the d^endant's right of action on the bond.
If the plaintiff In claim and delivery should
fail to prove his right to the possession of
the property, and for tliat reason be nonsuit-
ed, on motion of defendant; should def ^dant;
on that account, be denied tlie protection of
the bond whicii tlie statute required the
plaintiff to give as a prerequisite of hla being
allowed to take the property from hla posses-
sion? The bond Is required upon the sup-
position that the plalntlfl might Iiave no case,
or, having one, might fall to prove It Or,
suroose the plaintiff brings his acticm In a
court wliich has no Jurisdiction, gives bond,
and takes possession of defendant's proper^
ty, must defradant submit to the trial <it tbe
case In a court whose Judgment would be a
nullity and oould not be pleaded In bar of
another action at the peril of bdng told, U
be moves to dismiss the action tor want of
jurisdiction, that because he has done so, he
has no right of action on tbe bcmd? Such a
iKddlng would oiable a plaintiff to take ad-
vantage of his own wxQDg, and get posses-
sion of a dtfendantfs property wiUiout giv-
ing him that protection whldli the law re-
quires.
[2, t] It is aald, however, that the breach of
the oradltlon to prowcnte Uie action should
not be allowed to avail appellant, because no
such breach was alleged, or pzoveiLor itiied
Digitized by VjOOglC
SEABOARD AIR LINE BT. CO. T. HEWLETT
331
upon In fhe court Mow. It Is true Oat the
tallnre to proeecnte tbe tetlon was not stress-
ed dttaer In the aUegatlons of tbe complaint.
In erldene^ or In the oontenttona of the jdaln-
tlff In the drcnit court The grmTamen of
plaintUTs ocunplsint seems to hare been tba
failure of defendant to retain the property in
accordance with an aUeged Jn^iment for the
return thereof. Upon this ennmd, the plain-
tiff utterly failed to make oat a case, be*
cause the uncontradicted evUience was that
Uiere ms no Judgment for Che return of the
propoty. Indeed, there could not have been
any such Judgment, 'because the magistrate
held that he had no Jurisdiction, and there
was no appeal from his ruUng. Elder
Greene, supra.
The allegations of the complaint, howerer,
were quite snlBclent to entitle idalntlff to
rely upon Qie fiiUure to prosecute tiie actUm
as a breadi of the bond. The complaint at-
legea the institution of Oie action of claim
and ddlTery In tbm magistrate's court, the
giving of the bmid In accordance wltt the
prorlslfm of the ststnts (and a coi^ of the
bond Is attaidnd to Uie complaint, as an ex-
hlMt, and made a part of the complaint, and
In It there antears the condition to prose-
cute Uie acti<Mi)» the taking of the pnverty
from defendant, and tbe dellTcry thcveof to
plalnUfl, In oMiddehitiDn of the giving of
the bond, and the dismissal of the action.
To hold that these allegations are not suffl-
dent to entitle plalnttCf to rely npmi tbe fail-
ure to prosecute the action as a breach of
tbe bond would commit this court to a strict
and technical conBtruction of a pleading, con-
trary to the spirit and mandate of the Oode
of Procedure, as well as the previous ded-
slons of the coort
It most not be forgotten, also, that the
defendants herein, and not the plaintiff, se-
lected the tjattle ground in the circuit court ;
for the defendants moved for tbe direction
of the verdict on tbe ground that plaintiff
had failed to prove a Judgment for the re-
turn of the property, and it was upon that
ground that the motion was granted. It Is
true that plaintiff did not take the position
on circuit that the verdict could not be di-
rected, because there was allegation and
proof of a breach of tbe condition to prose-
cute, but merely resisted the motion of de-
fendants on the ground upon which it was
made. But this cannot avail respondent, be-
cause the error here complained of was one
of commission and not one of mere omis-
sion; knd the rule that errors of omission
will not ordinarily be allowed to avail a
party In this court, unless the matter com-
plained of was relied upon or brought to
the attention of the Jndge in the circuit
court, does not apply. This Is more like tbe
case of a demurrer to a complaint for in-
sufficiency on a particular ground, which
may be well taken as to that ground, yet if
tbe complaint states any cause of action, this
court has frequently held that It Is error to
dismiss It for Insuffldcney, thongh It may not
state tacts mflbdent to constitute tbe par-
Ucnlar cause of action which the complaint
diowB that the plainUff Intooded to set up.
So it has been held that when the facts nl-
leged and proved show that JOalntlff is en-
titled to my rell^ It Is error to grant ■
nonsuit or direct n verdict for defendant
In sucli cases, it is the duty of tbe court to
grant the rel^ whldi under the aUegatlons
and i^oof tbe plaintiff is entitled to accord-
ing to law.
[4] It appears from tbe record ttiat the
plaintiff contwded on dreult that it was en-
titled to recover the penalty of the bond. In
an action like this the plahitlff would be en-
titieU to recover only such damages as it
sustained by reason of tbe taking of the
property tnnn Its possession; for Instancy
In this case ptelntlff is oitltled to recover
imly BUdi an amount, if any, as oolj be found
to be due to It by the defendant Bewtett for
demurrage charges on the car load of seed In
question, for the collection of whldi It was
holding the seed. Alderman v. Roesel, su-
pra; 24 A. A SL Bnc U (2d Bd.) B40.
VoT these reasons I think tbe Judgment
should be reversed.
WOODS and WATTS, JJ., concur.
FRASER, J. I dissent This Is an action
commenced In the court of common pleas, on
a bond given in claim and delivery proceed-
ings In a magistrate's court In whlcb the re-
spondent Hewlett was plaintiff, the respond-
ent Barter was constable, and tbe ai^ellant
company was defendant
The defendant moved to dismiss the pro-
ceedings In the magistrate's court, on the
ground of want of Jurisdiction, as the sum-
mons was returnable within 21 days instead
of 20 days. There Is some confuMon In the
record, bnt the magistrate snstained the mo-
tion and dismissed the proceedings for want
of Jurisdiction, and there was no appeal.
The bond was for 9200, and tbe appellant
brought suit on the bond In the court of com-
mon pleas. The following is tbe bond:
"Hndertaklng of Plaintiff's Sureties on Claim
of Delivery of Personal Proper^.
"Whereas the plaintiff in this action has
made an affidavit that the defendant therein
wrongfully detains certain personal property
in the said aflOdavIt mmtloned, of the value
of cme hundred and no doltars, and tbe
plaintiff claims the Immediate deUvory of
such pr(^>er^, as provided by law: Now,
therefore, and In consideiatlon of the taking
of said property, or any part thereof by W.
J. Barter, special ctmstable of tlie county of
Barnwell, by virtue of the said affidavit,
and the requlettlui thereupon Indorsed, we,
tbe understened, A. J. Barter, J. H. Hewlett
do hereby undertake to be bound to tbe de-
fendant In the sum of two handred-.aqdJiL
Digitized byV^OAjylt
382
78 SOUTHEASTERN RSIPORTEB
dollars for the mrosecoUon of the action of
the plaintiff In the caae of J. H. Hewlett v.
Seaboard Air Une By. Ca against the de-
fmdant for wrongfully detaining the aald
property, for the return to the defendant of
Bald in-opert7, ' or so much thereof as eball
be taken, by virtue of the said affldavltt and
requisition thereupon indorsed, if a return
thereof shall be adjudged, and for the pay-
ment to Seaboard Air line Ry. Oo. of aucb
Bum as may, for any cause, be recoTwed In
this action against plaintiff.
**Dated December 10, A. D. 1902.
"J. H. Hewlett, [L. S.]
"A. J. Hartcr. M. D. [!» S.r
The complaint set oat the bond, and al-
lseed: "(S) That on or about the Slst day
of Deconber, 1909, said cause was called
for a hearlxig before eald magistrate and
was dismissed, and It was adjudged that the
said property was wrongfully and unlaw-
fully taken out of the possession of said
Seaboard Air Line Railway, and It waa ad-
Judged that the same should be returned
forthwith to It, the plaintiff herein."
The case shows that th^ magistrate dis-
missed the proceedings, but did not order a
return of the property. The circuit Judge
directed a verdict for the defendants (re-
spondents) on the ground that no breadi of
the bond had been shown, and the plaintiff
appealed upon four exceptions, which will
be considered as made.
Ehcceptlon 1 : *'<1) That his honor erred In
directing a verdict for the defendants wben
there was evidence that the condition of the
bond, set forth in the complaint and Intro-
duced In evidence, had been breached. In that
the property taken under the claim and deliv-
ery proceedings, by virtue of the affidavit In
sudi proceedings, had not been returned to
the Seaboard Air line Railway as provided
In said bond." This exertion cannot be
sustained. The bond was "for a return to
the defendant of said property • • • If
a return thereof shall be adjudged." There
was no adjudication f<nr the return; and,
under the case of Elder v. Greene, 84 8. O.
164, IS S. m, S23, there could not have been.
In this respect Uiere has been no breach of
the bond, and this exception Is overruled.
Exception 2: "(2) That his honor erred In
directing a verdict for the defendants when
the evidence tended to show that there bad
been a breach of the bond given in the claim
and delivery [woceedlngs, whereby J. H.
Hewlett undertook to prosecute the action
against the Seaboard Air line Railway Com-
pany for wrongfully detaining the property
taken In said claim and delivery proceed-
ings." This exception cannot be sustained.
Alderman v. Roesel, B2 S. a 102, 29 S. B.
386| is not applicable h«& That case says,
at page 164, of 62 S. CX, at page 386 of 29
S. E.: "Where a plaintiff abandoned his
action, falls to prosecute It, discontinues It
on his own motl(Hi, or where it Is dismissed
for want of prosecution,- there Is a breach
of the condition to proeecate. * * * A
voluntary discontinuance by him la no de>
fense in such case." This case shows that
the case was dismissed on appellant's motion.
What action Respondent Hewlett could have
brought Is not apparent. He certa^ily could
not have brought a possessory proceedinf
for property already In his possession. Be-
sides the breach alleged Is "failure to return
the property, and not failure to prosecute.""
There Is not only no allegation of a failure
to prosecute, but there is no evidence of swdt
failure. The question was not made la the
circuit court, and cannot prevail here.
Exception 3 : "{S) That his honor erred In
directing a verdict for the defendants be-
cause the complaint contained sufficient alle-
gations to sustain an action for trespass for
the wrongful and nnlawfnl a^znre of the
cotton seed under t3ie prooeedii^ before the
maglstrato, and there waa evidence tending
to sustain Oiis action, and therefore the case
should have been sabmltted to the lury."
TUs excqvtlon cannot be snstalnedL The ap-
pellant stood squarely m the bimd. There
was BO motion to amend. The appellant
dalmed tti9 right to poaseedtm, and baaed
his right on an order that was. not, and
could not. In law have been made. Thexli^t
to treat this as an action for trespaae waa
not dalmed In the circuit court, and cannot
be raised hen. Appellant la atlll rdylng oa
the bmd. The ehange to an action for trea-
paas woaM be audi an entire dumge of tSie
whole case that this court does not feel war-
ranted in allowing It
The fourth exception, not being consider-
ed in argument, la deemed abandoned. The
suggestion of respondent that this oourt give
Judgment absolute for the four or five dol-
lars admitted to be due cannot be acc^ted,
as the admission is only by resiwndent The
case shows that appelant daims more than
that sum.
The Judgment of this court Is that ttia
Jadgment of the drcidt court be afOrmed.
OABT, <X 3^ ooncnis In the dissent.
<Utt Oa. m
OUXJJQN TYLB&
(Suprane Court of Georgia. May 16^ lftl&)
(Byllaliu Juf the Co«rt.J
Appeax. and Eebob (i 077*)— First Gnain ov
New TBiAii— Discbetion of Codw.
There was no abuse of discretion in grant-
ing a first new trial in tbls case. Civ. Code"
1910, i 6204.
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. |{ 3860-3865; Dec. Dig. |
977. •]
Error from Superior Court, Burke County;
H. 0. Hammond, Ju^e.
Action between W. B. Cullen and O. M.
■For etlMT GUM wm mum toplo aad mcUsb NDMBBB m Dm. Dig. A Asa. Dig. K«r-NOk SwIm
Digitized by
.JOHNSON 333
Ga.J OSWALD T
Tyler. From the Jndgnunt, Cnllen bring* «r-
ror. Affirmed.
Wm. H. Davis aad C. B. Oarllck, botli of
Waynesboro, for plalnUff In error. & li.
Brtnson and H. J. Fnllbright, botb of WayiMa-
boro, for defendant In error.
TTTTJ^ J. juOgmoifc affirmed. AU tbe
JuttcM concur.
(U9 Qa. n>
dBBDENT 8T0NS ft TUB OO. r. UeOALI.&.
(Snpreme Conrt <tf OeorcU. May 16, 1918.)
(SvHabus bv *ht ComrtJ
Bbtcsal of Nbw Teial.
The petition stated a eaow of action, the
evidence authorised the verdict, and tbe court
did not aboae Its dlacretlon In refoBlng a new
tiiaL
Error from Superior Gottrt, Pulton Ooimtsr ;
W. D. BlllB. Judge.
Action between flie Cement Stone ft me
Company and John UcCalla. Trom an ad-
verse judgment, the company brlDga error.
Affirmed.
Edgar Latham, of Atlanta, for plaintiff In
OTor. Scott ft Davla, ot Atlanta, for de-
fendant In error.
BVAKS, P. J. Judgment affirmed. ' AU the
Jnaticea concur.
aM Oa. n)
08W.ua at ah t. JOHNSON at aL
(ttmumii Ooart of Oeoigla. May U, im.)
(StfUabua by tfie Court.}
1. PaBTITION (8 106*) — CONFlBMATIOIf OF
Sals— NsocasiTT— Seasonabu Objections
— Rbsai^
In tbe partitioB of land under Civ. Code
1010. 1 53&8 et seq., where t^te land cannot be
divided into parcels, and it la sold pursuant to
an ord^r of the court, Bucb sale if subject to
confirmation by the court Any party in Inter-
est may fil« objections to the conSrmatioD of tbe
■ale, at the term of the court to which the com-
missioners conducting the sale make their re-
port, If done before confirmation. If tbe mat-
ter uKed in the objections be such as to show
the sale to liave been unfair or inequitable to the
parties, the court will refuse to confirm it and
order a resale.
<a) Tbe conrt erred in dismissing tbe objec-
tions to the sale on the ground that they were
E resented too late, and that the sale could not
B attacked in the partition proceedings under
the above Code sections.
[Ed. Note.—For other cases, see Partition,
Cent Dig. U 858-361; Dec. Dig. fi 106.*]
f Additional ByUaJnu »y BditoriaX 8tsf.)
2. Judicial Sales ^ S9*)— Vaiidxtt— IWAna-
quact IK Pbice.
Inadequacy of price ia not per se sufficient
groond for setting aside a judicial sale under an
interlocutory decree, unless so gross as, when
combined with other circumstances, to amount
to fraud; but if it be great it is of itself a
strong circuiastaoce to endence fraud.
[Ed. Note.— For other caBe% see Jndidal
Sales, Cent 1 77; Dec. Dig. 1 89.*]
*PgrotlMr«assa
Error from Snperkar Ottnrt, Screven Ooon-
ty; B. T. Bawllngi, Judge.
Actlon.by Mrs. U A. Johnson and oOiera
against J. L. Oswald, guardian, and others.
Decree for plaintiff^ and defendants bring et^
ror. Beveraed.
Mrs. ,L. A. Johnson applied for a partltlm
of a tract of land owned In oommon by her-
self and others. It was represented to th«
court that it was lu^waslbls to have partir
tlon by metes and bounds, and the court or-
dered a sale of the land by three commis-
sioners. , The commissioners mads a repoKt
of the sale, and the plalntllts in smw offered
to file objections against Its confirmation.
The court sustained . an oral denuirrar to the
objections made to the fairness of the sals
and to the moden against it eonflrmatikm.
A final decree was rendered, apportioning ths
nrt proceeds of the sale^ and exertion Is tak-
en to such final judgment and certain inta<-
locntory rulings.
White ft Lovett, of Sylvanla, for plalntUb
In mot. B. EL Overstreet, of Sylvanla, for
defendants In error.
BVANS. P. J. <»fter stating the fscts as
above). lU The coatroUhog point arises out
ot the sxcspUons ts tbe ndbigs of the ooort
refusing to confer oblectUms to the fair-
ness anA vaUdltr of the sale of tbe property
sought to bs psrtUloned, and to its coaSrma-
tlon by the court When the ezcwtors of-
fered their written objections to the vaUdily
of the Bale, an oral demurrer thereto was
sustained, on the ground that the objection
to th« sale and the motion to withhold ooor
Ormatton was preswted too late, and that
tbe sale could not be set aside In this vto-
ceeding. This brings up the queetlpD wheth-
U is permissible, under the statute for ths
partition of land, to contast.ln tiwt ^weed-
ing tbe nUldlty of the sals made undor th»
order of the court, or most a dissatisfied
cotenant go Into equity for that pnrpoaa.
The Code provides that where land la
held in common one or more of the co-owup
ers, upon giving notice of their intenthm,
may amply to the superior court for the ap-
pointment of partitioners* who shall divide
the land according to the baterest of the re-
spective owners therein. Whenever an^ca*
tlon Is made and either of the parties In
Intereirt shall make it satlaCactorlly aniear
to the court that a ftilr and equitable divi-
sion of the land cannot be made by metes
and bound!, the conrt shall ordw a sale of
the land, and shall appoint three persons to
conduct it under such regalations and upon
such Just and equitable terms as tbe court
may prescribe, which sale shall take place
on the first Tuesday of tbe month, at the
place of public sales of the county in which
the land is situated, after an adv«tlsement
of such sale In some pnbUe gasette of tbis
state, once a week for four weeks. After
ss. tiiirie .la sMls. NUMBBR la Dse. Dig. a Am. Dlr K^^g,^ft1^^
S34
78 SOUTHEASTERN BEPOBTBB
(Ga.
the sale of the land, the commissioners con-
ducting It shall retnm th^ proceedings
to the conrt, and the court shall order the
IHWceeds of the sale to be dlTlded among
the sevoal claimants ratably in jm^rtion
to tl^ respective Interests, after deducting
tiie expenses of the proceedings. Upon the
sale of the land, the parties in Interest shall
execute a title to the purchaser, and if any
fall or T^nse to do so, the oommlsdonera,
or a majorily of them, shall execute the deed
of conveyance, whldi deed will be as valid
and binding la law and equity as if made
by the parties themselves. In any extraor-
dinary case, not covoed by the Code sec-
tions, the court may frame Its proceeding and
order so as to meet the exigency of the
case, without fordi^ the parties into equity.
At the term of the court at which the ap-
plicatioD is made, or at the term next after
the partltionera have made their return, any
of the interested parties may file objections
to the right of the applicant to have parti-
tion, ot to the return of the partltloners, and
may by way of defmse show any good mat-
tes in bar of the partition, or may show that
the demandant has not title to so much as
is allowed and awarded to him by the partl-
Uonov, or to any part of the land, uid an
issue made by such objection shall be tried
by a Jury. dvU Oode, H 63S8-S368.
The statute evinces a legislative purpose to
afford an effective mode for the partition of
land, without forcing the parties into equity.
Poww is reserved to the court in ordetli^ a
sale of tbe land to prescribe reasonable regu-
lations and equitabte and Just terms in the
conduct of the sale. These features of the
statute^ as well as the genend power of the
court ovw sales, which, are txr be the basis
of further action in the same proceeding,
indicate not only the power, but the propriety
and necessity, of the court's conflnaatlon of
tbe sale before dividing out the proceeds
amongst the interested parties.
It is argued that It Is only vhere the'
decree authorlalng a sale is interlocutory
diat confirmation Is necessary, and that the
order directing a sale of the proper^ for dl-
vUdon of the proceeds Is final In its nature.
It is true that it has been decided that where
an application Is made to the superior court
for the partition of land by sale, and the
Judge, after hearing the evidence, appoints
commissioners, and orders them to sell the
land, sntb Judgment Is so far final as to
authorise the objecting party to bring the
case to the Supreme Oonrt for review of
that Judgment Lochrane v. Equitable Loan
& Security Co.. 122 Oa. 433. 60 S. B. 372.
But that holding was put upon the peculiar
proylsions of the statute as affording a reme-
dy for exception to such Judgment, and not
89 dispensing with the necessity of con-
Qrmation of the sale. The power of the
court to Impose regulatory terms In the
conduct of the sale, and the statutory re-
quirement of a report of the persons conduct- {
Ing the sale as a precedent step to tbe divi-
sion of the proceeds, suffldently make It ap-
pear that the legislative intent was to require
a confirmation of the sale. Indeed, in this
case tbe court expressly confirmed the sale
In his order dividing the proceeds.
The objection urged against the sale was
Its unfairness aiid the gross Inadequacy of
the price at which It was sold by the com-
missioners. The plaintiffs In error are mi-
nors, who have a guardian, and owned a
three-fortieth Interest In the land. The pur-
chaser at the sale and his wife owned
•'/no of the land. It Is alleged tUat the
guardian was inadvertently misled by a con-
versation he had with the presiding Judge
Into believing that he wotild be given notice
when the sale would take place; that the
land was worth $8,000, and the purchaser
at the commissioners' sale had offered to buy
the Interest of plaintiffs In error on the basis
that the land was worth $5,000; that the
purchaser bid It off for the sum of $2,000,
which was the only bid made for the land;
that the guardian of tbe plaintiffs In error is
a man of means and Is their uncle, and he
would have bid on the land If he bad been
Informed of the sale; that, although the
plaintiffs in error bad a guardian, the conrt
appointed as their guardian ad litem a total
stranger, who, notwithstanding he accepted
the trust, did nothing to notify the idalntiffs
In error or their guardian of the order for
the sale of tbe land or the time it would be
sold.
[2] Inadequacy of price Is not per se snffl-
dent to set aside a sale, unless it Is so gross
as. when combined with other circumstances,
to amount to fraud ; but If it be great it Is
of Itself a strong circumstance to evidence
fraud, and this Is true where it Is attended
by any other fact showing the transaction
to be unfair, or unjust, or against good con-
sdence. Parker t. Glenn, 72 Qa. 687. nils
Is the rule laid down by this conrt with re-
spect to an execution sale, vliiCh does not
require conflrmaUon. How much greater,
then, Is the force of the role whoi appUed
to a sale under an interlocutory deoee? On
demurrer we have to assume the truUi of the
averments at fbct contained in the objections.
According to these averments, the land is
sold at oue-fDurth of Its market value; the
purchaser was a coteoant owning more than
two-thirds of the land; tito phMntitTs In
error were inadvertently misled into believ-
ing that they would receive notice of the
sale; and their guardian ad litem, the t^-
cer of the court appointed to look after th^
Interests, wholly failed to Inform them of tbe
order directing the sale or the time It would
occur. These facts are such as should ap-
peal to the court to refuse to confirm a sale
which works Injustice to the plaintiffs in
error, and which does not deprive the pur-
chaser of any equity or right he has in the
land. Under the clrcnniataacea, .ge. think
Digitized byVjOOSTC
Ga.)
WILET T.
WOOTEN
335
the court erred In dismissing the objections
to the confirmatloD of the sale.
Jadgmokt reversed. All tiM Justices
concar,
0*0 Oft. 6S)
SANDY GB088 GIN Ca r. DOYIL
(BapTOiM Conrt of Geofgia. Maj IS^ lOlS.)
eSyUalmt the Oourt.}
Aptcai. aiid Gbbob (1 1015*)— Bbtibw— Qusa-
TioKs or Fact— UoTioN fok Nbw Trial.
No complaint that any eraor of law was
committed upoo the trial There was evidence
to authorize the verdict, and tlie court did not
err la refusing a new trial
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. || 3860-387tt; Dec. Dig. |
lOlB.*]
Error from Snperlor Court, PrankUn Coun-
ty; D, W. Meadow, Judge.
Action by John Dove, by his next friend,
against the Sandy Cross Gin Company. Judg-
ment for plaintiff, and defendant brings er-
ror. Affirmed.
Geo. L. Goode, of Camesvllle, for plainttflF
In error. J. C. Little and W. B. JAtOb, both
of Camesvllle, for defendant in error.
FISH, a J. Judgment affirmed. AU the
Justices concnr.
OU Qa. «)
mZBLL A BBO; t. SATILLA TDBPIOV-
TINEl 00.
{Baffnaa Conrt ^ Georgia. Ifaj IS,
(SwOabiu by tk» Oouti.)
Tbuz. (I 199*)— Nonsuit— iNsnmciiifCT of
BvinxNOE.
The evidence submitted In behalf of the
plaintiff failing to make out a prima facia cas«k
a nuunlt was properly granted.
[Ed. Note.— For other cases, see Trial, Gent
Dig. H 369-867 ; Dec. Dig. { 1S9.*]
Error from Superior Court, Oiarlton Coun-
ty; T. A. Parker, Judge.
Action by MlzeU & Bro. against the Satll-
la Turpentine Company. Judgment of non-
suit, and plaintiffs bring error. Affirmed.
J. L. Sweat, of Waycross, and W. M. Olllff,
of Folkaton. for plaintiffs In oror. Wilson.
Bennett & Lambdin, of Waycross, for defend-
ant In error.
HILL, J. Judgment affirmed. AU the
JuBttcea concur.
<iu Oa. «)
TATIiOB T. BANK OF TIFTON.
<Siipreme Court of' Georgia. May 15, 1918.)
/AyHabuj &y tke Oimri.)
Glaus on Exechtioit.
This Is a companion case to that of Taylor
V. Brown & Co., 77 S. E. 1062, decided April 18,
1913, in which the facts and as^gnments of er-
ror are tiie same, and the rulings made In that
case are controlling tn thlsi.
Error from Superior Ooart, Tift County;
W. E. Thomas, Ju,dg«b
Action by the Bank of Tlfton against C. L.
Taylor. Judgment for plaintiff, and on levy
of execution S. A. Taylor Interposed a claim
on property found subject, and claimant
brings error. Affirmed.
J. H. Price B. Eve^ J. S. BldgdlU, and
a O. Hall, aU of Tlfton, for plaintiff In er^
ror. B. D. Smltb, of Tifton, for defendant In
error.
HILI^ J. Judgment affirmed. All Uic
Jnsttces concur.
atO Oa. 4»
MADDOX T. GILES.
(Supreme Oonrt of Georgia. May IS. UOSJ
Gbounds or Nkw Tbial.
The grounds ol the motion for new trial
are not meritorious. There was evidence to au-
thorise the verdict, and tiia court did not m
in refoang a nsw triaL
Error from Superior Oonrt, Butts Connty;
B. T. Daniel, Judge.
Action between J. P. Maddoz, administra-
tor, and S. J. Giles. From the ju^ident, tbe
administrator brings error. Affirmed.
J. F. Oannlcbael, of Jackson, and A. W.
Lane, of Uaoon, for lOalntlff in error. 0. "L.
Bedman and J. T. Moore, both of JaCkoon,
and O. U. Duke^ of FloTlUa, for d^endant In
error.
ITSH, a J. Jndsmott affirmed. AU tho
Jnsticeg concur.
(140 Oc K)
WILBT V. WOOTBN et aL
(Supreme Conrt of Georgia. May 14, 19U.)
(ByOahiM by the OourtJ
WitXa 0 684*) — OONSTBUOnON — DXBTBXBn-
TION or BKUAINDKa iNTMtBgT.
A testatrix devised certain realty to her
son for and during his oatural life, and at his
death to go to his wife. If she survived him,
for and during her natural life, and at tbe
death of the survivor, eithar himself or wUe,
having no children or issue of children, "the
said property at the period last aforementioned
to be equally divided among my other dtiil-
dren, according to tbe scheme mentioned in the
second and third items of my said wilL" The
second Item of the will provided that certain
lands be sold as soon after the death of tes-
tatrix as practicable, and the entire proceeds
of the land, and the proceeds of the notes, ac-
counts, and other personal property of the tes-
tatrix, be equally divided, snare and share
alike, between certain named children of testa-
trix. The third item of the will provided that
"the above bequest to my children respectively
shall be paid to their respective children in the
event either one of my children shall die be*
fore I do; that is to say, each &iaiily of n^
grandchildren shall receive the legacy to whidbt
their parent would have been entitled, had he
or she been in life at the time of my death."
Mrs. A., a daughter of testatrix and one of the
•Tor other csMs SM,Hm8 topic and seoUon. NUHSBIt tn Dso. Die * Am. Dig. Kay-No. Ssrlss * Jtep'r Iad«zai
Digitized by VjOOglC
336
deriieei ander Item 2 of the wfll; died before
the testatrix, and before (he life tenaDt or bia
wife. Mn. A. bad two cbildreo, who aarvived
ber. One of these, Florence, died after the tea-
tatriz, and after the wife of the life tenant,
but before bis death. Florence died testate,
making aeveral specific beqoests, and gave the
residue of her estate to her two named olecee,
the children of ber deceased brother, who are
parties to this caae. The life tenanta ander the
will died without diildren. Tbe property de-
Tised to them was then aold under anthoritr,
and the proceeds held by the administrator de
Iranis non cum testamento annezo undisposed
of. The administrator filed hia petition, asking
direction of tbe court m to whetlier tbe two
nieces of Florence were entitled to participate
in the dlNtribntion of tbe fonds In his hands
arising as above stated. To the judgment of
the court that they were so entitled exception
was taken, feltf, that nnder tbe will the
cranddaugbter of the tettatriz, Florence, took
a remainder Interest in the property deruMd to
the life tenants named. conUngent upon the
event of their death withoat duldren, or issue
of children.
(a) This interest was devisable, and, the Ufa
tenants having died withoat leaving children
or issue of children, the nieces of Florence,
as her devisees, are entitled to participate In
the distribution of her remainder interest
lEd. Not&— For otiier cases, see Wills, Cent
Dtg. H 1488-lfilO; Z>ee. Dig. | 634.*]
Error from Saperlor Oonrt; Putnam Gonn-
ty ; J. B. Park, Judge.
Action by O. IL Wiley, administrator,
against J. O. Wooten and otbera. Judgment
for defendantB,. and plalnttlf brings error.
Affirmed-
Hall 9c Hall, of Macon, for plaintUC In
error. W, B. f^ngfleld, of Eatonttm. for de-
fendanta in error.
' HILI^ J. Judgment ftfflmwd. All fhe
Justices concur.
(188 Qa. 83^
INDEPENDBNTT order of good SA-
MARITANS AND DAUGHTERS OF
SAUARIA et al v. MAOE et at
(SuprenM Court of Georgia. Hay 18, 1918.)
(BflUAua by the Court.)
CoBPOXATioiTB a M*)— Nau— ScinnoiJkBT
Associations— BuBDsn or Puor-NicES-
BAST Parties.
Where under tbe Act of 1909 (Civ. Code
1910, H 1993, 1994). an equitable petition was
filed by two benevolent oiicanisations, operat-
ing nnder charters, against another organiza-
tion of like character, seeking to enjoin the
latter from obtaining a charter from the su-
{lerior court and from the use of a name which
s colorable and of an imitative character of
the distinctive and principal words in the name
of the plaintiffs' organimtion and charters, aod
on tbe trial of the interlocutory hearing there
was evidence tending to show that the charter
of one of the plaintiffs bad expired by lapse of
tfme, and the other was aiitedated by the
charters of at least two other similar organisa-
tions not parties to the suit but which were
chartered and operating in this state also an-
der the distinctive words as a part of their
name, as nsed by the plaintiffs, at the time
of the filing of tbe petition for bijunctlon, the
judge did not err in refasinr to giant tbe in-
terlocutory injunction prayed for.
(a) In such a case, the burden Is upon tbe
(Ga.
plalntifFs' organisation asserting tiie right to
the exclusive use of tbe distinctive name or
words in question to ^ow that a«di is tbe
case. And it is not necessary that the or-
ganization actually entitled to the exclusive uaa
of the name in question riiall be a party liti>
gant
[Ed. Note.— For other caie% see Corporations*
Cent Dig. I 137; Dec. | «>.*3
Error from Superior Court, Clarke Coun-
ty ; O. H. Brand, Judge.
Action by Independent Order of Good
Samaritans and Daughters of Samaria and
otbers against James Mack and others. Judg-
ment for defendants^ and plaintiffs bring ow
ror. Afilrmed.
Tbe "State Grand Lodge No. 7 Independ-
ent Order of Good Samaritans and Daugh-
ters of Samaria," and the "Ind^tendent Or-
der of Good Samaritans and Daughters of
Samaria, United States of America," filed
their Joint equitable petition for injunction^
etc., against the "Benevoleat Order of Good
Samaritans," and made substantially tb«
following case: One of the plalntUfa, the In-
dependent Order of Good Samaritans and
Daughters of Samaria, United States of
America, was Incorporated under and by vir-
tue of a general act of Congress of May S,
1870 <16 Stat 98, c 80), filing their arUcles
of Incorporation on April 24, 1872, In the
District of Colnmbia, and was duly organized
as provided by law, and has since been us-
ing the ahore' naine oontlntMUaly. The chief
aim and object of this Incorporation, as stat-
ed in Its artltSes, being "to reeetve and carry
forward the cause of temperance and benevo-
lence in such a complete and effectual man-
ner, that all may receive and enjoy its heal-
ing influences; to provide for the side and
distressed, the widow and the orphan in
their affliction, to elevate the living and bury
the dead of the socletr, and generally, by
love seeking, may spread the principles of
love, purity, truth and humanity throughout
the globe." This plaintiff was recbartered
on the 24th day of April, 1892. The other
plaintiff, the State Grand Lodge No. 7 Inde-
pendent Order of Good Samaritans and
Daughters of Samaria, was chartered and
Incorporated under the laws of Georgia in.
the fall of 1908 by the superiw court of
Clarke county, and under and by authority
of the Supreme Grand Ijodge, having applied
for and obtained its charter by permission
and under the authority of the Supreme
Grand Lodge. Prior to obtaining tbe last-
named Incorporation, It had been operating
under tbe jurisdiction and dispensation of
the State Grand Lodge ot South Carolina.
The objects of this lodge are the same as
that of the parent lodge organized In the
District of Columbia. The membership of
these organizations Is composed entirely of
colored people, both men and women. The
organization is generally known and called
the "Good Samaritans." There are 10,000
78 SOUTHEASTERN REPORTER
•For otlier oasas as* saiae topic aod Mctloa NUHBBS ta Dec Dig. 4 Am. Dig. Ks^-Ne. ^i^s^^^^^
ok.) INDXPBNDZNT ORDER 07 GOOD SAMARTTANB, Em T. ICACK 3S7
members In the state of Georgia, and some
100,000 or more in the United States. It Is
a fraternal and benevolent order, with a
ritualistic form of procedure, and Is very
OiTorably known by the colored people, etc.
James HacK and the other defendants
against whom the Injunction was prayed
applied to Clarke superior court for a char-
ter, under the name of **BeDevoient Order of
Good Samaritans." It la averred that the
defendants have combined and conspired
among themselves to form anotber assoda'
tlon under the above name, and that the
name Is colorable and ImttatlTe of the char-
acter of the name that "controls and the
uses made" of the name by the plaintiffs,
and is an Infringement upon the corporate
and trade-name of the plalntlffa' association,
and would create great confusion and Injury
to plalntlfFs' order, which Is composed ex-
daslvely of colored people, many of whom
are Ignorant and illiterate and who will not
readily be able to distinguish the technical
differences between names, and more partlc-
iilarty In view of the fact that [dalntiffs' as-
sodati^Hi is generally known among ita mem-
bers and by the public m "Oood Samari-
tans.'* If defendants' association Is allowed
to be chartered and carry on Its business as
advertised, it will be known, as Intended to
be known, as "Oood Samaritans," the words
"Goods Samaritans" being the principal and
distittctlve words In the title, little attention
being paid to the prefixes and sufBxe*. That
with this atd In view some of the defend'
airts, who are lars^ dlssatlafled members of
plalntUEs' subordinate lodges, are already
seeking to. dlssatiafy not only the saembers
of plaintiffs' association, but whole lot^es,
and are trying to Induce them to attempt to
withdraw from the plaintiffs* aaso elation,
and to secede and Join defendants in their
illegal and franduloit scheme to . disrupt and
injure plaintlfEs. Plaintiffs further show
that under their articles of Incorporation the
principal and distinctive words are "Good
BamarltanB," by the JudldoDe, just, and fair
administration of the affairs of the associa-
tion very considerable property, real and
personal, has been acquired, of the value of
thousands of dollars, and, if defendants
are allowed to proceed. It would greatly in-
jure and have a tendency to mislead and de>
ceive the public and the members of plain-
tiffs' association, eta
The prayer of the petition was that the
def^dants be restrained and eojolned from
proceeding further with the application for
charter under the name of "Benevolent Or-
der of Good Samaritans," or under any simi-
lar name and style which, would be Imit^ttve
or colorable ot the name of plalntlffli' .asstH
elation; and from attwqitlng to organise
under aald namew or any almllar name^
whether under tiie charter applied for or
not ; or from attempUng to dissatisfy or In-
terfere with plaintiffs' aubcKrdioato lodges or
the members thereof, or witii the bustness
of plaintiffs' association.
The defendants, In their answer, admit
seeking Incorporation, but deny the other ma-
terial allegations In the petition, and, an-
swering specially, In substance say that the
plalntlfCs have acquired no "exclusive right"
to the use of any name or title containing
the words "Good Samaritans." It Is aver-
red that at least four other assodationa and
corporations have acquired a prior right to
use a name and style containing the words
"Order of Good Samaritans," and that plain-
tiffs themselves are infringers upon the rights
of other associations and corporations which
bad adopted, before any of the plaintiffs had
done 80, a name practically Identical with
the names of the two plaintiffs, who claim
to be corporations in this action. Defendants
aver that the following named associations
and corporations have used and appropriat-
ed names practically Identical with the name
of plaintiffs in this case, namely: (1) An
association known as the "National Graud
Lodge, Independent Order of Good Samari-
tans and Daughters of Samaria," organized
in New Tork City In 1847, and has been op-
erated under that name continuously since
In the United States and the state of Geor-
gia, and In other states of the Union, and ita
purposes are practically' the same as those
declared aud professed by plaintiff. (2) On
the Sd day of February, 1008, the "Nation-
al Grand Lodge of the Independent Order of
Good Samaritans and Daughters of Samaria
of North America," was Incorporated under
the laws of the District of Columbia, and has
continuously since been operating Its busi-
ness, which is practically the same as plain-
tiffs', under that name. (3) On the 14th day
of October, 1801, Smith W. Easley, Jr., and
his associates, were by the General Assem-
bly bt Georgia Incorporated under the name
and style of the "Grand Lodge of the Inde-
pendent Order of Good Samaritans' and
Daughters of Samaria of Georgia," and have
continuously since that time been operating
and conducting their business under said
name, and the purposes of which are prac-
tically the same as those declared and pro-
fessed by plaintiffs. (4) On the 15th day of
April, 1888, John M. Pace and his associates,
were incorporated by the superior court of
Clarke county under the name and style of
"Mt. Zlon Lodge No. 19 of the Independent
Order of Good Samaritans and Daughters
of Samaria of the United States of Amer-
ica," and have dnce said date continuously
conducted their bnalnesB under said name
and styH and the purposes of the oorpoxa-
tlon are practically the same aa those de-
clared by the plaintiffs.
It la further averred that so ter «a one of
ib» plaintlffiB, the "Independent Order of
Good Samaritans and Daughters of Samaria
of the Unltad SUtea of America," la concern-
ed, which elalmed that it -took aai arUdv
Digitized by VjOOgtC
S38
78 SOUTHEASTERN BEPOBTBB
(Oil
of Inooipoiatlon under a general act of Con-
greaa b7 filing its articles of Incotporatton
on April 24, 1872. If soch articlttB were filed
on the Ustrmentioned date, so as to make
that particnlar petiUoner a corporation, that
Its charter expired bj limitation on the 24th
day of Apill, 1892, under the terms of the
act of Congress referred to, and that this
plaintiff, If ever a corporation. Is no longer
one; The plaintiff "State Grand Lodge No.
7, Independent Order of Good Samaritans
and Daughters of Samaria." Is antedated as a
corporation by the three other corpora tlooB
named above, which have been nring the
names and styles continuously since the date
of their reiqiectiTe incorporation. The plain-
tiff last above named was not incorporated
until December 18, 1908, and the corporation
next before the last named was chartered In
the District of Columbia at least six montba
before the plaintiff, and that, while that was
a fordgn corporatlont It bad been doing busi-
ness In the state of Georgia for many years
before the "Stete Grand Lodge No. 7, Inde-
pendent Order of Good Samaritans and
Daughters of Samaria," dalms to have been
Incorporated, and the corporation chartered
by the Georgia Le^^ture and the corpora-
tion chartered by the soperior court of Clarke
county in the year 1908 were domestic cor-
porattons carrying on thdr business at the
time that the "Stete Grand Lodge No. 7, In-
d«pendait Order of Good Samaritans and
Daughters of Samaria," claims to hare been
incorporated. The defendante aver that by
reason of the facte above set forth that the
plaintiffs, nor rither of them, haya any
property righte In any name or style conteln-
ing the words "Order of Good Samaritans"
by whldi they have a legal and equitable or
eqidtable right to prevent d^iendante from
being incorporated by the superior court of
Clarke county under the name of "Benevo-
lent Order of Good Samaritans."
l%e Judge made an order to the effect that
the charter granted by the District of Co-
lumbia on April 24, 187% to the Supreme
Lodge of the Independent Ord» of Good Sa-
maritans and Daughters of Samaria in
America, and subsequently rechartered un-
der the name of Supreme QmnA Lodge of
the Independent OrAer of Good Samaritans
and Daughters of Samaria of the United
Stetes of America on April 26, 1^, expired
by limitation on April 26, 1912, and as the
corporate existence of the same was not ex-
tended as provided by Uie act of Congress,
the charter lapsed and the corporation be-
came extinct on the last-named date. It was
farther adjudged that neither of the plain-
tiffs had such vested or exclusive right to
the name "Good Samaritan" as to authorize
the grantiJV <^ ui Injunction even though
the corporate name asked fbr by the defend-
ants be substantially similar to that used
by the plaintiffs. The plalntifte excepted to
the order of the Judge refusing to grant the
injunction prayed for. '
Holden & Shackelford and B. K. Lumpkin,
all of Athens, for plaintiffs In error. Cobb
ft Srwin, of Athens, for defendante in error.
HIUU J. (after stating the facte as abov^.
This case turns upon the question of wheth-
er the plaintiff or either of them, have
the rl^t to the exclusive use of the dis'
Unctive name "Good Samaritan" as a part
of their chartered name. The Act of 1900,
p. 1S9 (avil Code, i 1993), is as follows:
"No person or organization shall assume,
w, or adopt, or become incorporated ui^w,
or continue to use the name and style or
emblems of any bonevolent, fraternal, to-
dal. humane, or diaritable onanlntUui pre-
viously existing in this state, and which
has bem incorporated uoAer the laws of this
or any other state, or of the United States
or a name and style or emUem so nearly
resembling the name and style of such li^
corpo rated organization as to be a colorable
imitation tl^ereof. In all caites where two
or more of sadi societies, assodations, or
corporations claim the right to the same
name, or to namra substantlaUy similar as
above provided, the organization which was
first organized end used the name, and first
became Incorporated under the laws of the
United States or of any state of the Union,
whether Incorporated In this state or not,
shall be entitled In this state to the prior
and wcdurive use of such name and the
righte of such societies, associations, or cor-
porations, and of their individual members
shall be fixed and determined, accordingly."
And section 1994 declares: "Whenever there
shall be an actual or threatened violation
of the provisions of the preceding seeaon
of this chapter, the o^anlzation entitled
to the exclusive use of the name In question,
nnder the terms of said section, shall have
the right to apply to the proper courte for
an Injunction to restrain the Infringement
of ite name and the use of ite emblems ; and
If it shall be made to appear to the court
that tiie defendante are in tact infringing or
about to infringe the name and style of a
previously existing benevolent; fraternal, so-
cial, humane, or charitable organizatton In
the manner prohibited In said section, or
that the defradant or defendante are wearing
or using the badge, Insignia, or emblems of
said <»ganlzatlon, without the authority
thereof and in violation of said section, an
Injunction may be Issued by the court nnder
the prlncipleB of equity without requiring
proof timt any person has been In fact mis-
led or deceived by the infrii^ement of such
name, or the use of wa<3x emUem."
No question la raised by ^tlier party to
fbSa case as to the validity of the act of
1909, supra, but each ai^iannitly concedes Us
validity and bases Ite case upcm It ' Nor Is
any question raised by the record as to the
organizations which were chartered prior
to the idalntUb* being estopped* on aoammt
INOKPSNDENT OBDER OF OOOD SAMARITAITO, BTa T. MACK
339
of lacAes. Oounsel for plaintiffs In error In
their argument before this court contend
that "the question of discretion on the con-
flicting evidence Is not involoe4 in this case,
but It Is a questioa of law." The question ,
tnnu largely upon, the construction of tbe
act of lOOd. The first section of that act
pxoTldes that: "In all cases where two or
more of snch sod^es, asBoclatton^ or cor-
porations claim the rlc^t to the same name,
or to names snbstantl&Uy similar as above
nco^ed, tbe organization which was first
organized and used the name, and first be-
came incorporated under tbe laws of the
United States or of any state of the Union,
whether bicorporated in this state or not,
shall be entitled In Gbis state to the prior
and exduidTe use of such name." From this
it appears that the only organizations en-
titled to the exduslTe nse of the name in
question are those which have been 'in*
corporated." See the two sections quoted
aboTCu It becomes material, thorefore, to
ascertain whether the platntifb or any of
the organizations considered in this case
were or were not incorporated at the com-
mencement of this suit Prior to the act
of 1909, organizations of the kind under
consideration, whether chartered or not char-
tered, were entitled to injunctive relief
where there was an infringement upon the
use of a trade-name. Whitley Grocery Co.
V. McCaw Mfg. Co., 105 Ga. 839. 32 S. E.
113; Creswell y. Grand Lodge, etc.. 133 6a.
837, 67 S. E. 188, 134 Am. St Bep. 231, 18
Ann. Oas. 453 ; Supreme Lodge, etc., v. Im-
proved Order Knights .of Pythias, 113 Mich.
133, 71 N. W. 470. 38 L B. A. 658 ; 88 Cy&
694r-696.
This case la based wholly on the act of
1909, and nothing herein said Is to be under-
stood as In any way affecting tbe rights
arising under the general law Independent of
that act It will be seen from reading sec-
tion 1994 of the Code, above quoted, that
before one organization can prevent another
from becoming Incorporated under a certain
name and style, it must have the right to
the eaclugive use of the name in question.
It is provided by that section that, "when-
ever there shall be an actual or threatened
violation of the provisions of the preceding
section of this chapter, the organization en-
titled to the exclugive use of the name in
question, under the terms of said section,
shall have the r^ht to apply to the proper
courts for an injunction to restrain the in-
fringement of its name," etc. It Is in-
sisted by the plaintiffs in error that this lan-
guage has application to the relative rights
of the parties litiffant, and not to those or-
ganizations collaterally referred to by the
defendants. But there is nothing in the act
of 1909, as codified above, to so Indicate It
would seem to place the burden upon the
organization seeking the injunction to show
Oat it has the sight to the .udusln use
of tbe name in question ovec all otbex in-
corporated organizations or persona. Un-
less, therefore, the plaintiffs In error have
established that they are entitled to the ex-
clusive use of the name or words "Good
Samaritans," they are not entitled to the
equitable relief sought To show that they
have obtained a iitmrter, or have organized
and are using that name. Is not sufiBcient
Th^ must not <mly show that they have the
right to use the name In question, but that
they have the excliuive right to so nse it
According to the statement of facts set
out above, it appears that both of the plaln-
tilEi nse the distinctive name or words
"Good Samaritans," and the defendant like-
wise, in its proposed charter, uses tbe same
words. Have the plaintiffs, therefore, the
exdnslTe rij^t to use the name of "Good
Samaritans." The plaintiffs In error rdy
upon a charter granted to "State Grand
Lodge No. 7 of the Independent Order of
Good Samaritans and Daughters of Sama-
rta" by Gla^e superior court In December,
1908. They also rely upon a charter grant-
ed to the "Independent Order of Good Sa-
maritans and Daughters of Samaria of the
United States of America" under the act of
Congress of 1870. and the acts amendatory
thereof. The plaintiffs also offered in evi-
dence and rely upon certificates of Incor-
poration granted In the District of Columbia
In the years 1872, 1879. and 1892, Incorpo-
rating the "Independent Order of Good Sa-
maritans and Daughters of Samaria of the
United States of America," for a period of
20 years. A certificate of reincorporation
was granted in April, 1892. The general
act of Congress passed May 5, 1870 (see
U. g. Stat at Large. voL lO, pp. 101, 102),
authorized the incorporation of benevolent
associations, etc., within the District of Co-
lumbia, for a period of 20 years. This act
was later amended, April 23, 1884 (U. S.
Stat at Large, vol. 23, p. 13, c. 28), and
the words "not exceeding twenty years"
were stricken from tbe act
It is argued that by the very act of
amendment the charter of one of the plain-
tiffs had perpetual existence, unless divest-
ed by direct proceedings for that purpose.
But to this contention we cannot agree.
This plaintiff asked to be incorporated for a
term of 20 years from April 25. 1892, It is
prpbable that if it had named a term of 50
or 100 years, or any indefinite period, the
life of the charter would have been for the
term named; but the plaintiff did not do
that, but instead, named a term of 20 years
from the date of the renewal In 1892, and
there* was no renewal at the expiration of
20 years from that time, so far as the rec-
ord discloses. The amendment to tbe origi-
nal act offered the opportunitv for a "per-
petual charter," or at least for a longer term
than 20 years; but the plaintiff did^not avaU
Ub«U »f . this opporti|^^e(|is^dL«#i@att(
340
78 SOUTHEASTERN BEFORTfiB
(Oa.
charter at or before the time It expired on
AprU25,1912. Asd we do not fbink that the
act amendatory of the act of Congress of
ISIQ, by merely BtrUElng ont the words "not
exceeding twenty years," operated of Itself,
without more, to give the plalntUE here dealt
with a perpetual charter. There was some-
thing for the Incorporators to do. They
could have the duuter renewed for an In-
definite term, if it took the proper steps as
proTided for the renewal of charters, but
without such an effort on its part, and the
renewing of the charter, we think it expired
tai April 25, 1912, and was legally dead at
the time the application for Injunction In this
case was made. Another thing, the amending
act provides how charters for benevolent
corporations may be obtained, and one prereq-
uisite Is that a certificate in writing sball
be filed by those who desire Incorporation, in
which It shall be stated, among other things,
"the term for which It Is organized." U. S.
Stat at Large, vol. 23, p. 13. Later tbls
seems to have been enlarged so as to read,
"the term for which It Is organised, which
may be perpetual." U. S. StaL at Large, vol.
31, p. 1283, c. 854. But this plaintiff in 1892,
when Its charter was about to expire, had It
renewed for a definite term of 20 years from
April 25, 1892. It might hare named a long-
er "term," tor the 20-year limitation had
been repealed. It mlgbt have named a
"perpetual" term, and thus obtained a per-
petual charter, as Insisted by plaintiffs In
error. But It did not name a term longer
than 20 years, and there was no renewal of
the charter at the expiration of the second
20 years. We do not think that the mere re-
peal of the 20-year limitation to the life of
of a charter, or the right to have a perpetual
charter If the proper steps were taken to
secure it, is self-executing, so as to extend
the life of the charter beyond the term which
is named In it For these reasons we think
the charter lapsed on April 25, 1912.
The defendants In error Introduced evi-
dence tending to show that there was or-
ganized In 1847 a voluntary association un-
der the name of "National Grand Lodge
Independent Order of Good Samaritana and
Daughters of Samaria," which has been do-
ing business under that name since the above
date. And on October 14, 1891, the General
Assembly of the state of Georgia ;<LBsed an
act granting a charter to "Grand Lodge of
the Independent Order of Good Samaritans
and Daughters of Samaria of Georgia" for a
term of 30 years. Acts 1890-91, toL 1, p.
604. This order has beea doing business nn<
der this last name continuously since the
charter was granted. On January 31, « 1908,
the "National Grand Lodge of the Indepen-
dent Order of Good Samaritans and Daugh-
ters of Samaria of North America" was in-
coiiwrated under the laws of the District of
Columbia, and has since been In operation
continuously under that name. These three
associations and corporations seem to be
distinct and separate from tiie xdalntUT in
error, and yet each has the dUtinctlre words
or name "Good Samaritans" Identical with
the distinctive words "Good Samaritans" as
contained In the charters of the plaintilb
in error. The plaintiff In em»- vrtilcb was
charterol by the superior court of Clarke
county Ui December, 1908, namely, "State
Grand Lodge No. 7 of the Independent Order
of Good Samaritans and laughters of 8aF
marla," la, under the ruling above made, the
only one which remains to be dealt with, and
its charter was antedated by the two other
charters and organizations above re&rred to,
namely, the **Grand Lodge of the Independ*
ent Order of Good Samaritans and Dangbtera
of Samaria of Georgia,'^ which was inoop-
porated, as above set forth, by the General
Assembly of Georgia in 1891; and the other
organization chartered under the laws of
the District of Columbia on January SI, 1908,
namely, "National Grand Lodge of the In-
dependent Order of Good Samaritans and
Daughters of Samaria of North America."
In view of the entire record in this case,
to which we have given very carefnl con-
sideration, we hold that the plaintiffs, nor
either of them, have the right to the exclu-
sive use of the name "Good Samaritans.*'
The evidence tends to show that at least two
of the organizations above specified were
chartered, organized, and are using the
words "Good Samaritans," and it cannot be
held, in view of these facts, that the plain-
tiffs have the right to the exclusive use of the
name In question. They do not come with-
in the- terms of the act of 1909. The case
of Lane v. Evening Star Society, 120 Ga.
355, 47 S. B. 951, and the other cases cited
by the plaintiffs in error, were decided be-
fore the approval of the act of 1909.
Judgment affirmed. AH the Justlcefl
concur.
a«i am. 1}
AMBUBSEN HTDBAULIO CONST. CO. t,
NORTHBBN CONTRACTING CO. et aL
(Supreme Court of Georgia. May IS, 1813.)
(ByUabua Sy ike CowrtJ
1. ABATEHsnr Ann Ritxtal d 13*)— Aicotb-
EB AcTxoiv PsvnsHo — Aonon xir Othek
Statk.
The pendency of a suit In one state be-
tween the same parties and for the same cauw
of action furnishes no cause to stay or abate
a new ault brought in a court of another state.
[Ed. Note.— For other eases, see Abatement
and Revival, Cent Dig. || 93-98, 100; Deo.
Dig. f 18.*]
2. Abateveht and Revival (j 13*)— Amoth-
BB AcnoH Pending — AcTiOM in Othd
State.
Tiiis rule applies as well where the second
suit is Instituted by the defendant -In the fint
•rot otbw CMM M» MiM tepi« aad moUob NUHBMR U Dm. XHg. * Am. Di«.
AUSUBSEN HTDRAULTO QOMBT. 00. T. NOKTBSBN OL Oa
•ait w where Ae plaintUC In IwUi wtiam H
the same person.
[Bd. Note.— For other cueL lee Abatement
nnd ReviTal. Cent £Hc Wm-98, 100; Dea
S. IitJUNCTioN (S S8*)— SUBJicm— Aonon ivt
Otbxb Statb.
The rule in equity la analogoos to tb*t at
law, and the. pendency In equity of the same
■canw of action between the same partiei will
not aathoriEe an Injnnction agaiDst a sabse-
qaent action at law in another state by the
defendant against the plaintiff, anlen It a^
pean that the trosecutlon of the second suit
would be ineqnitable and unjust
[Ed. Note.— For other cases, see Injunction,
Cent Dig. j| 70, 71; Dec Die. { 3S.*]
C InjuncTiON ft 83*)— SuBraon— AonoR' nr
OTHn State.
The tacta of tbla cam wamined, and It ia
Md, that the court abonld not have enjoined
the prosecution of the commoD-Iaw action for
damages for a breach of contract brought by
the defendant acainet the plaintiff in the fint
«uit in the atate of New York wbsra the pl^'
tiff liad Its. corporate nlstenca.
[IGd. Note.— For other caaea, see Injunction,
Cent Dig. it 70, 71; Dee. Dif. 1 88>1
Error from Snperlor Court Babim Conatr ;
J. B. Jones, Judge.
Action by thB Northern Contracting Com-
pany and othas against the Ambwsen Hy-
draulic Constmctlon Company. Jndgm^t
tor plalntUfa, and defendant brings error.
Beversed.
The Northern Contracting Company, a cor-
poration of the state of New Yoilc, contract-
«d with the Ambursen Hydraulic Constmc*
tion Company, a corporation of the state of
New Jersey, for the construction of a dam
■acr(MB8 the Tallnlah river In Rabun county,
^a. Tb» contract was entered into on Jime
2T, 1012, and contained a. provision that '*the
work herelD embraced tball be wholly com-
pleted at a date not later Qian March 1,
1912, time being of the essence bereof." It
was further covenanted that. If at any time
during the work It should ajvear by re^rt
-of the chief engineer of the Northern Con-
tracting Company that the forces en^loyed,
the quantity or aualily of tools, at^llances,
or workmen provided, or the progress of the
work, are not audi as to Insure the comple-
tion of the work within the stipulated time
4jr according to spedfltiatlons, the Northern
■Contracting Company may serve a written
notice on the Ambursoi Company to supply
at once such increase of forces, appliances,
■or tools, and to cause such Improrement In
the character of the work so as to confiurm
to apedflcatlons, and if on the expiration of
tea days after the service of such notice the
Ambnrsen Company shall have tailed to fnr-
<ilsh the Northern Contracting Company's en-
gineer satisfactory evidence of the Ambursen
Conq)any*s Intention, efforts, and atdllty to
Immediately famish the requisite material
and workmen, and remedy the spedfled defi-
ciencies, or If It shall appear that the Am-
butsen Company is insolvent or bankrupt,
the Northern Contracting Company was em-
powered to "enter and take possession of
the said work, or any part thereof, with the
tools, materials, plant, appliances, houses,
machinery and other appurtenances and sup-
plies thereon or used In connection with the
work, and hold the same for security for
any and all damage or liability that may
arise by reason of the nonfulfillment of this
contract within the time herein spedfled, and
furthermore may employ the said tools, ma-
terials, plants, machinery and other appur-
tenances and such other means as the com-
pany or Its engineer may deem proper to
complete the work, at the expense of the
contractor, and may deduct the cost of the
same from any payments then due or there-
after becoming due to the constructor, and
the constructor shall pay the cost thereof
to the company; or may declare such con-
tract forfeited as It may elect."
On December 26, 1912, the NorthCTn Con-
tracting Company filed In the superior court
of Rabun county Its petition against the Am-
bursen Hydraulic Construction Company, Its
superintendent and agent In charge of the
work of building the dam, who were tempo-
rarily residing In Rabun county, alleging
that the Ambursen Company In pursuance of
its contract proceeded to erect a dam across
the Tallulah river, when without excuse or
Justification It abandoned Its contract and
ceased vrork on December 19, 1912. It was
further alleged : That In view of the provi-
sions of the contract that the ^ork was to
be completed within a specified time, and, on
the happening of the contingencies authoriz-
ing them so to do, that the Northern Con-
tracting Company entered upon and took pos-
session of the work, together with the tools,
materials, plant, appliances, houses, machin-
ery, and other supplies thereon, and that It
purposes holding the same as security as
provided tn the contract and to employ the
same, together with such otb^ apipurtenano-
es and other means as It and its engineer
may deem proper, to complete the work ao>
cording to the contract That the Ambursen
Company not only had Its snpeilntendent
and agmt, but also more than 100 employei^
upon the work, and that the Ambursen Com-
pany had notified petitioner that they wlU
not permit It or ite employte to use their
tools, materials, etc., and that petitioner has
a force of laborers of Its own oigaged upon
a part of the work, and that nnleas the Am-
bnrsoi Company was restrained from inter-
fulng with petitioner in the use of the tools,
materials, eto., there would be not only dan-
ger of violence, but that the tools, materials,
ete;, would be Injured or destroyed. The
damage claimed to accrue to petitioner from
the defendant's violation and abandonment
of its contract was alleged. The pray^ of
the petition were for Judgment for breach of
contract; tot a decree ascertaining what are
342
78 SOUTHBASTEBN BBPORTEa
(Ga.
the tools, materials, etc.. described In tbe
contract, and which petitioner holds as secu-
rity for damages aristng from the defend-
ant's breach of contract; that petitioner be
decreed to have a lien in the nature of a
mortgage thereon to secure such sums as
they may have for its damages; and that
tbe tools, materials, etc., be sold In satlsfac-
tion of any Judgment whldi it may recover ;
for injunction against interf^ence with the
premises or vlth the tools, materials, etc.;
for general relief and j^ocesa. The defend-
ants were served on December 2% 1912, with
a copy of the sol^ proceas, and order of
court temporarily restraining the defendants
as prayed.
On December 81, 1912, the Ambursen Hy-
draulic .OonstmctlonL Company and Burton
Thompson filed In the Supreme Oonrt of
New ToA, is the county of Nassau, a suit
against tiie Nortbem Contracting OOmpany
and the Georgia Railway & Power -Company.
In tUs suit the contract between it and the
defendant company was set out, and It was
allied that tbe d«Cendant bad failed to com-
ply with tbe contract In many partlcalars,
by reason whereof tbe plaintlfl was unable
to carry out and perform tbe terms of the
contract on its part It was further alleged
that the dam was bdng constructed on tbe
property of the Georgia Railway it Power
Company, and that this company guaranteed
to the plaintiff the punctual performance of
all things to be done by, and the payment of
all moneys to be paid by, the Northern Con-
tracting Company to it, but that the power
company had failed to comply with Its guar-
anty. The seizure of the personal property
on tbe ^rk belonging to the Ambursen Com-
pany was alleged, and also that this com-
pany bad sold to Burton Thompson an undi-
vided one-half Interest In It Wherefore
plaintiffs demanded Judgment that the de-
fendants be required forthwith to deliver the
personal t>roperty seized by the Northern
Contracting Company to the plaintiffs; that
it be decreed that tbe plaintiffs had violated
their contract and bad no right to hold this
property; that the defendants be restrained
from proceeding with the construction of the
dam according to tbe plans prepared by the
Ambursen Company and by tbe use of the
plaintiffs' personal property ; that an account
be taken for damages caused by the deten-
tion of the personal property by the defend-
ants; and that plaintiffs have Judgment
therefor.
On January 11, lOlS, the Northern Con-
tracting Company amended its petition
against the Ambursen Hydraulic Construc-
tion Company. In the amendment it was
allied that subsequent to tlie service of
their original suit tbe foregoli^ suit in Oie
state of New YoA was filed in violation of
tbe restraining order ^viously granted, and
that its purpose was to defeat the Jurisdic-
tion of the smkerior court of Rabun county
and to take the custody of the property to
the state of New York. A copy of tbe in-
denmlty contract and bond executed by the
Georgia Railway ft Power Company was
alleged. Tbe prayer was for an injunction
against the Ambursen Company from ^me-
cnting Its suit In New Yortc
The Ambursen Hydraulic Conatmctlon
Company and Burton Thompson also on De-
cember 31, 1912, brought a suit in the Su-
preme Court of New York, . in the county
of Nassau, against tbe NorOiem Contract-
ing Company to recover damages tar breach
of tbe contract between It and tbe Ambursen
Company, alleging that before Hie commence-
ment of the action the Ambnraen Gompuy
had transferred to Burton fHiompeon an un-
divided one-half interest in the rt^t of ac-
tion. Thereafter, on January 16, 1918, Uie
Nortbem Contracting Company again amend-
ed its petition pending In Rabun superior
court, alleging tbe pendency of tbe action for
breach of contract In the Supreme Court of
New York, and that Qie matters therein in-
volved relate to tbe same contract and trans-
actions in Its original suit; tiiat the malifr-
tenance of tbe suit in the state of New York
is a great hardsMp to tbe Nortbem Ccmtraet-
Ing Company, and subjects It to donUe liti-
gation relating to tbe same cause of action,
and has tbe effect of Interfbrtng with liw
Jurisdiction of tiie snperlor court of Babun
county to folly adjudicate all matters con-
tained in Its original petition; that tJie
Northern Contracting Company has no prop-
erty in the state of New York, so that Hiere
Is no reastm for a Judgment against it in
that 8tat& The prayer of the amendment
was to enjoin the Ambursen Company from
prosecuting in tbe state of New York Its
action to recover damages for breadi of eon-
tract The Ambursen Company filed its an-
swer, and an Interlocutory hearing was had
on the prayer for a pendente lite injunction.
After bearing tbe evidence, the court ren-
dered a Judgment, decreeing: "(1) That tbe
Georgia Railway ft Power Company be made
party plaintiff in this suit with the Northern
Contracting Company. (2) That the plaintiff
make a good and solvent bond in the sum
of ¥100,000 conditioned to psy the defendant
the Ambursen Hydraulic Construction Com-
pany, any and all damages it may recover
of plaintiff in this suit (3) It is ordered
that on said bond being made the restraining
order heretofore granted on defendant's mo-
tion preserving tbe status of the property
and restraining the plaintiff from udng the
same be and is vacated. (4) It is also or-
dered and adjudged that the defendant Its
emidoyes, agents, and servants, are restrain-
ed and enjoined from doing any of the acts
or things complained of in tbe original peti-
tion until the further order of this court
(6) It Is further ordered and adjadged that
on said party plaintiff being made and bond
made as herein required, and until the fur-
ther orda of this court the ^lefenjE
Digitized by
AHBUBSEN HTSBAULIO CONST. 00. r. NORTHEB27 a 00.
343
bursal Constnictlon Ctompanr, its ofBcen,
agoitB. attorneys, and aerrantB, an xestralH-
ed and enjoined from further proceeding
wlOi or prosecuttns elLtbet of the two salts
brongbt In New York, and complained of
la the amended pleading of tbe plalntllL"
Broeptlon la talcoi to so modi of this Jndg-
xsent as restrains the Amborsen HjrdraaUc
OonBtmctlon Company from proeecuttng its
eQnuBOD>law actkm pending in the Supreme
Court of New York.
W. A. Charters, of Oalnesrlllflv and Robt
C. & PhlUp H. Alston, Of Atlanta, fbr plain-
tiff in error. King, Bpaldlng & Undowood,
of Atlanta, and H. H. Dean, of Oalnesrllle,
for defendants In error.
UnrANS, P. J. (after stetlnv the &cts as
above). [1, 1] The general mle Is well set-
tled tiiat the praidency of a salt In one Bta.te
between the same parties and for the same
canse of action famishes no cause to stay
OT abate a new salt brought in a court of
another state. Tarrer v. Bankln. 3 Ga. 210;
C3iattanooga, etc., B. Ob. t. Jadcson, 86 Oa.
076t IS & B. 109. The man comaion Instance
of the application of ttds rule is where the
plaintiff In the first salt Is also the plaintiff
in the second action. The rule, however, is
not limited to cases whwe the plaintiff In
both suits Is tbe same prason. If each of
tbe parties to a contract claims that the
other has breadied i^ each would be entitled
to sue for the breach. The defemdant In tiie
first suit could recoup his damages of the
plaintiff in that suit; but this right would
not forbid his going Into another state,
where his adrmary resides, and there bring*
lug a suit to recover damages for a breadi
of tbe oontraet If the defendant In suA a
case can place his claim for damages in a
more favorable condition to obtain redress;
If tals remedy In the state oS bis adversary
party Is more comprehensive— no sound rea-
son swears to ns why he may not go into
the state of the other par^ to the contract
alleged to have been breadied and sue hhn
there. It would b^ indeed, anomalona for a
resident of one state, daimlng an action for
breach of contract, to leave his own jurisdic-
tion to sue fbr Its Ineadi, and set up suA
prlw suit in abatemmt (tf an action brou^t
by tbe defendant against him in his own
state to recover damages ftnr a tweaCh of the
same contract To grant such a privilege
would be to allow a dtizoi of a state to
evade ite laws of remedial prooednre^ by
instituting a suit In a foreign Jurlsdictim.
Hence we eondude tiuit tbe rule that tiie
pendoicy of a iHior salt in one stete cannot
be pleaded in abatunoit of a suit betweoi
the same parties for the same cause of action
In a court of another stete appliss as well
where the second suit Is instituted by the
defendant In tbe first suit as where tbe plain-
tiff In both actions is the same person.
[31 The drcnmstauce that one of the suite
may be pending In a court of equity and the
othw in a court of law does ruA alter tbe
principle Upon authority, both English
and AmeHcan, Uie Supreme CQurt of the
United Stetes has hdd that the plea ot a
former suit pending in equity for tbe same
cause in a foreign Jurisdiction will not abate
an action at law in a domestic tribunal or'
authorise an injunctian against prosecuting
such actiML Insurance Oo. v. Brune's As-
signee^ 96 U. S. 688, 24 Ia Od. 7S7.
We do not contend that, after a bill in
equity has been filed, in a proper case the
court may not enjoin the parties from liti-
gating tbe whole or a part of the cause of
action in a fbrtign court ; but we do contend
that tbe bare fact that a bill in equity is
pending in this state, hi tbe absence of eqoi-
teble considerations, famishes no ground to
enjoin a defendant from suing his claim in
a foreign court, although the cause of action
may arise out of the oimtract involved In
the litigation In tbe equity court. Before
the prosecution of the def^idant^s suit will
be fflijobied, the ivoprie^ and necessity ot
confining the litigation to the tribunal in
which it is first instituted must appear. Tbe
poww of a court of equity to restrain po^
sons within ite Jurisdiction from prosecut-
ing sutts in a foreign court rests upon tbe
basis that the person sou^ to be joined
Is within the jurisdiction of Uw court; and
he can be prevented from doing an Inequlte-
ble thing. S2 Oyc. 818. Tbe case of Engel
V. Scheuerman, 40 Qa. 206, 2 Am. Bep. 578,
la illustrative of the principle In that case
a Geo^la creditor sued out an attadiment
against his nonreiddent debtor in this stete.
He also sued his debtor on the identical de-
mand in the stete of New Tork. His attadi-
ment suit was prosecuted to Jndgmait and
satisfied by payment After paying the at-
techment Ju^ment, tbe creditor assured the
debtor that lie would not further press the
New Torfc suit; but In violation ot such
Bssiuance he prosecuted the New Tork suit
to Judgment Tbereupmi the debtor filed a
bill ^inst the Georgia creditor in the coun-
ty of bis residence to enjoin tbe enfbrconent
of tbe New Tork Judgment and this court
held that the creditor, a dtlien ttf this stete,
having volunterily sued his claim to judg-
ment In tbe courts of this stete^ and accept-
ed payment of the judgment will be en-
joined from collecting tbe daim for tbe see-
ond time in a foreign court
[4] In the case at bar the Northern Ooih
tract! ng Company contracted vUb the Am-
bursen Hydraulic Oonstraction Company to
construct a dam wross the Tallulah river in
Georgia. Tbe fonner is a corporation of the
stete of New Tort, and the latter a corpna-
tlon ot tbe stete ot New Jmi^. In the
progress of the work dlflowiCQs arose be-
tween tbe contracting parties; each charg-
ing the other with a breach of the contract
Work was suspended. In order to complete
the dam within the stipulated time, tbe
Northern Contracting Company entered qw
Digitized by VjOOy I
78 SODTHSASTBRN BBPORTBB (Ga.
344
on tbe work and took possession of tbe tools,
materials, etc, of tbe Ambnrsra Company.
The contract gave them a right to do this
under certain contingencies, and when this
right was exercised th^ wen to bold this
property as secorlty for any damages sos-
talned by a breach of the contract on the
part of the Ambursen Company. In this
sltnatlon the Northern ContractlDg Company
brought a salt In Rabun county to recover
damages for breach of contract, praying that
the coTenant granting to It the right to re-
tain the personal property as security be
treated as a mortgage and foreclraed as
such, and for injunction against Interference
with tbtAr work of construction and the use
of defendant's tools, materials, etc. The
temporary restraining order was no broader
than the prayer for Injunction. Afterwards
the Ambursen Company, with another, al-
leged to be an assignee ct a half Interest In
the subject-matter of tbe litigation, brought
two actions In the Supreme Court of New
York in the coun^ of Nassau. The first
concerned the personal property which was
alleged to have been taken by the Northern
Contracting Company, and the latter was a
plain action at law for a breach of the con-
tract No point Is made upon the injunction
against prosecuting a suit in New York for
the recovery of .the personal property, but
exception is taken to the Injunction against
prosecuting tbe action for breach of c(m-
tract.
Now let us see whether the case presmted
shows a necessity for confining the litigation
for a breach of the contract to the superior
court of Rabun county. The fact that the
maintenance of the two suits will cause dou-
ble litigation, inasmuch as they lnv:olTe the
same subject-matter, is Insufficient cause for
an injunction against prosecuUng the com-
mon-law action In New York, for the reasons
advanced in the first part of thl^ opinion.
The suit in New York is for a breach of con-
tract, and In no way Interferes with the pos-
session by the Northern Contracting Com-
pany of the personal property of the Am-
bursen Company, alleged to have been taken
into possession by the Northern Contracting
Company pursuant to tbe contract In other
words, the prosecution of the breach of con-
tract action In New York does not affect the
res In possession of the Georgia court Tbe
restraining order did not forbid the Institu-
tion of tbe actton. It only remains to de-
termine whether It Is unfair and against
ctamleoet for tbe Ambnracn C<m4»ny to sue
the Mortbem Gontractliig Company, at tbe
tatter's home, for an allegcA bnach of con-
tract, instead of aobmttting to tbe tribunal
of a state selected by tbe other party.
It Is-nrged as naaons Aw eonflnlng the
Utigatlon to the actitm filed in Rabun oounty
that that suit was first filed ; that the court
in which It pends Is vested with full juris-
diction over the subject-matter ; that the con-
tract was to be performed In Georgia; and
that the witnesses by whom the breach <HC
contract and other relevant issues may be
established are more accessible to tbe Georgia
court It Is also urged that the Ambursen
Company procured tbe Georgia Railway A
Power Company to be made a party and ask-
ed for and obtained from the court a protec-
tive txwd. For aU of which reasons it is
claimed that it would be unfair and inequi-
table not to confine all of the litigation to
the action first instituted by It On the other
hand, the Ambursen Company replies that It
has the legal right to sue the plalntllf In the
venue of the latter's domicile; that the
matters set op by the Northern Contracting
Conqiany against prosecuting an action
against It In the state where It was Incorpo-
rated relate solely to Its own convenience;
and that equity will not take away from the
Ambursen Company Its plain legal rights and
require it to litigate In this state for the con-
venience of the other party, who prefers to
submit the controversy to a foreign court
rather than try the Issues in a court of its
legal residence. The Ambursen Company
joined the Georgia Railway & Power Com-
pany with the Northern Contracting Com-
pany In Its suit In New York concerning tbe
personal property, bnt it does not appear
from the record that the Georgia Railway &
Power Company was made a party to this
litigation at tbe Instance of the Ambursen
Company, or that it asked, that tbe Northern
Contracting Company be required tf> give
bond to indemnify against a recovery of dam-
ages. But even If It did, we do not see how
I Its effort to protect Its property involved In
the litigatlou should deprive It of Its legal
right to sue for damages for breach of con-
tract in another state.
Tbe j(dnder of Burton l^mpeon as a co-
plalntlfl with the Ambursen Company In the
New York suit is no ground for an Injunc-
tion against the further prosecution of the
action, even U the assignment be invalid.
If both assignor and assignee are before the
court as partiee, tbe dtfoidant is secure of
all its rltfbt, and further than they are in-
Tolved is not concerned, with the question of
me. Gilmore Bangs, 65 Ga. 405.
On the whole case, we think that the Inter-
locutory judgment should be so modified as
to zeliflve tbe Ambnrsen Hydraulic Construc-
tion Company from the Injunction against
prosecuting its common-law acUon for breach
ot contract la Uie state of New York.
Judgment revwasd. AU tbe Justices
oonenr.
Digitized by Google
AUIAMD T. HATaCOCK
841^
ALMAND T. HATHCOGK.
(BnpTCOM Ooarl: of Oeoigift. May 14» lAlS.)
fjEFyltotiH by «»• CovrtJ
1. JUDOMBITT (I 628*)— BS8 JlTDIOAIA— JOIRT
OBUOOBa
Tbe general rale it that, whert a Jotnt ooa-
tract is toe subject of a luft, a recoren acainat
one of tlie joint obllgort merges tiie entire caoee
of action, and bars any soMeqiieiit snit on the
■ame contract against any of u» other debtors.
[Bd. Note.— For other ea8e% aee Judgment,
Cent Dig. I U44; Dee. Dig. 1 628.*]
S. JuDGMKnT (I 628*)— Pbocbss (1 69*)— Bbs
Judicata— Joint Obuoor&
But under eection 6591 of the Civil Code
of 1910, when two or more joint contractors are
sned in tbe same action, and service ia perfected
on one or more of such Joint contractors, and
the officer serving tlie Wfit shall return that the
rest are not to be found, the plainttfT m» pro-
ceed to Judgment and execution against tne de-
fendants who are served in the same manner
as if they were tiie sole d^endants.
(a) Where suit is broogbt against two joint
obligors on a promissory note, both within the
jnriadiction of the court, and no return of non
est inventus as to either Is mads hj the cOeer
serving tbe writ, and it does not otherwise ap-
pear that either of the joint contractors ia with-
out the Jurisdiction of ue court, or is dead, but
4m the contrary it appears that both Joint con-
tractors are within the jurisdiction of the ooort
and one only has been served with procera and
Jadgment is had against him, and later the other
Is sued on the same joint contract, the judgment
against the first merges tbe entire cause of ac-
tibn, and bars a recovery in tbe sobseauent suit
on the same contract against tlw other joint
obligor.
[Ed. Note.— For other cases, see Judgment,
Cent. Dig. 8 1144: Dec. Dig. J 628;* Process,
Cent Dig. U 49, 98; Dec. Dig. $ 68.*]
ESrror from Soperlor Court, Fulton County ;
Oeo. L. Bell, Judge.
Action by J. L. Almand against U. Lt
Hathcock. Judgmmt for defendant, And
plaintiff brings error. Affirmed.
Horton Bros. & Burress, of Atlanta, for
plaintiff in error. J. F. GoUghtly .and J. How-
all Green, both of Atlanta, for defendant in
error.
BILL, J. Almand brou^t suit against
Bedwine and Hatfacock on a certain promis-
sory note retnmable to the Hay term, 1910,
of the superior court of Fulton eoonty. This
case was dlsnrissed for want of prosecution
and was reinstated by consent of coanseL
Hatbcock denied tiie authority of his attor-
ney to reinstate the case as to him, and the
court held that it was not reinstated as to
Hatbcock. Plaintiir then 'took jadgment
against Bedwine. ^weafter Almand
broogbt snlt on the same note agalmt HatA-
oock. The note was a joint, and not a joint
and Heveral, note. On the trial the plaintiff
totroduced the note and the agreement to
reinstate the case of Almand against Red*
wine and Hatbcock. The defendant Hatb-
cock Introduced tbe dedaratlon In tbe case
of Almand v. Bedwine and Hatbcock. The
court, after hearing the evidence of Hathoock
sustaining his plea, directed a verdict for the
defendant, ruling that the note had merged
into the first Judgment and that no cause of
action existed In the present suit as to Hath-
cock. To this ruling of the court the plain-
tiff excepted.
[1] 1. The one Question to be determined
is whether tbe plaintiff, who bad sued and re-
covered on a Joint, and not a Joint and several,
note, against Bedwine alone, while Bathcock,
the other Joint obligor, was within the juris-
diction of the court, could subsequently sue
Hatbcock and recover on the seme note. The
answer to the question depends on whether
the former recovery against one of the joint
contractors merges the entire cause of action
and bars any subsequent suit on the same
note against the other joint debtor.
At common law, where a Joint contract is
the subject of an action, a recovery against
one of the joint obligors merges the entite
cause of action, and bars any subsequent suit
on the same obligation against any of the
other debtors, or against all Jointly. 23 Cyc.
1208; Howell T. Shands, 35 Oa. 72; 2 Black
on Judg. (2d £d.) S 770. And see Boblnson
V. Snyder, 97 Ind. 56, holding that the burden
of proof is on the one who, claims to be
released by the former judgment. In tbe
case of Laaer v. Handow. 48 Wis.. 688, 4
N. W. 774, It is said: "It Is perfectly w&l
settled that if the holder of a Joint debt ta
obligation snes one of the Joint debtors and
obtains Judgment thereon against him, and
then sues another of the joint debtors for the
same debt or obligation, the latter may plead
such Judgment against his codebtolr and bar
the action. This Is so hecanse the joint debt
is merged in the Jodgment against ttie debtor
first sued, and, b^ng indivisible. It cannot be
merged or canceled as to one, and existinc
and operative as to another joint debtor."
And In the case at Kennard t. Carter, 6i
Ind. 31, It was said: "A separate Judgment
taken agahuft one of aereral Joint makers of
a note, In a suit to which the others are
not pattlee, or in which steps are not taken
to preserve the right to a subsequent judg-
ment against such others, may be pleaded
as a bar to a subsequent suit against those
not included in the first suit or Judgment"
The leading English case on this subject Is
thst of King V. Hoare. 18 Meeson & Welsby,
494. In that case, Parke, B., said: "The
cause of action Is changed Into matter of
record, which Is of higher nature, and the
inferior remedy merged In the higher. This
appears to be equally true where there Is bat
one cause of action, whether It be against
a single person or many. Hie Judgment of a
court of record changes the nature of that
cause of action and prevents its being the
subject of another suit, and the cause of a<
t
•For otberoftMS tee Sams tople and seetton NUHBEft ia Dee. Dig. * An. Dig. K«r-H*y WCiWPft1U|M^<i^ LC
346
78 SOUTHEASTBRM REPORTER
(G«.
tion, being single, cannot afterwards be dl-
Tiaed Into two. • • • The dUanctlon be-
tween the case of Joint and serenil contract
la very clear. It Is argued that each party
to a Joint contract Is severally liable, and
80 he Is in one sense, that If sued severally,
and does not plead in abatement, be Is liable
to pay the entire debt; but he Is not several-
ly liable In the same sense as he Is on a
joint and several bond, which Instrument,
though on one piece of parchment or paper,
In effect comprises the Joint bond of all, and
the several bonds of each of Che oUlgors.
and gives different remedies to the obligee."
In other Jurisdictions one state only (South
Carolina) seems to adhere to the opinion that
a former Judgment against one of the Joint
obligors to a contract or obligation does nqt
merge Uie cause of action against the other
obligor. 2 Black on Jndg. (2d Ed.) S 770. The
last-named authority says: *'But this stands
as an exception to the universal consensus
of opinion In England and America, and the
rule Is now established, by nothing less than
a multitude of authoritie>, that where the
contract or obligation sued on Is Joint, a re-
covery against one of the J(dnt contractors
merges the entire cause of action and bars
any subseqaent Judgmmt on the same cause
of action against the othw debtors or any of
tbem." Id. | 770.
[2] But it Is Insisted by the plaintiff in
error that the note sued on In the present
case did not merge into the first Judgment,
and he cites the cases of Merrltt v. Bagwell,
70 Ga. 578, and EUs v. Bone, 71 Oa. 466, as
controlling. In the first-named case nothing
contained therein militates against the gen-
eral rule. It was there decided that, "if
one of two defendants to a suit • • •
against them as mahers, tacitly permits Judg-
ment • • • to be rendered" by default
"against his codetendant, when the note is
afterwards offered In evidence against him,
be cannot object to It on the ground that
Judgment had previously been rendered
against his codefendant He had consented,
his silence, to a severance." This lan-
guage is sufficient to distinguish It from the
present case. In delivering the opinion in
the case of Mis v. Bone, supra, Mr. Justice
Hall said that, "while agreeing with the
learned counsel for plaintiff in error Out at
common law the weight of authority would
merge this liability in the first Judgment,
* * * yet we thLik, under our leglalatton,
no such effect could be gLveD to the first Judg-
ment" He thai cites the act of 3^ (Cobb's
Dig. pi. 48(9 and aectlons S360 and S8SL of
the Code (now Civil Code of 1910b U 6S81,
C682), which provide that where two or more
Joint, or Joint and several contractors, or co-
partners, are sued In the same action, and
service shall be perfected upon one or more
of the Joint omtractors or oopartners, and
the officer serving the writ shall return that
the rest are not to be found, the plaintiff
may proceed to Judgment and execution
against such as were served, in the same
manner as if they were the sole or only de-
fendants. In that case the plaintiff was the
owner of a draft due, drawn by fiSls & Laney
upon W. A. Cheney. The plaintiff brought
suit upon this paper. Cheney and Laney
were alone served. Ells was absoit from the
state, and was not served. There was no re-
turn of service whatever as to Ells, but In
the agreed statement of facts It appeared
that he was a nonresident of the state at the
date of the suit and Judgment Judgment
was rendered by thtt court against Cheney,
as acceptor, and Laney, as drawer, for prin-
cipal. Interest, and costs. Ells later returned
to Georgia, and plaintiff brought suit against
him on the draft The question was whether
in that case EUs* liability on the draft exist-
ed after the Judgment against Cheney and
Laney, or whether tt was merged In the first
Judgment It was hOId that EHls was liable
and that under the express terms of the stat*
ute nis was no party to the Judgment against
his copartner, Laney, and 'the accqitor,
Chen^. The Instant case differs from that
of Ells V. Bon& Thwe EUs was not a party
to the first suit He was absent txom the
stateu In the agrcfSd statement of facts, it
was admitted that EUs was without the
8tate» whlfib admission was equivalent to a
retom of non est Invaktns provided for by
the statute. In the EQs Case the court plac-
ed Its decision iqmn the statute and upon the
case ot Printnp Bros. & Co. ▼. Turner and
Tomw T. Frlntup Bros. & Co., 66 Ga. 71 and
78, which held that "when a Suit Is brought
against copartners, or against the survivors
of a partnership, it is not necessary to de-
clare against and pray process as to all the
membos thereof, juid have a return of non
est Inventus as to those not served, in order
to bind their interest in the partnership ef-
fects; In cither cose, the Judgment binds
the partners sued and served as to their In-
dividual property and all the property <hC
the partnership.''
As Is evident from the ruling Just quoted,
tlie decision was one in which the relation-
ship of partners 'vna Involved. ' A partner^
ship dAt Is not one solely of Joint UabilUy.
dvll Code, I 8106k declares Out in tlu cose
of partners, as to third iwrsons all are lia-
ble, not on^ to the extent of thetr Interest
In the partnership propwty, but also to the
extent of their a^urate property. Fnrtbeov
more, in cases ot partnership service of one
partner, with return of non est inventus as
to Uie others, authorises a judgment agabut
the firm binding all the firm assets. Civil
Ood^ I 81OT. As to the BUS Case, supra,
not only was It one invidvlng the relation ot
partnership, but also, as previously stated,
one In which it awears that the d^endant
against whom the second suit was brtm^t
was, when the former action
Digitized by '
MoUTTTRB BROS. « CO. T. SOUTH ATI.ANTXO STKA MBHTP UNB
847
■ nonresiaent of the state. Ab hereinbefore
pointed out, this placed the case on the same
footins as thouf^ the defendant had been
shown bj a return of non est Inventus to be
beyond the reach of process. While the deci-
sion seems to be planted mainly upon the
statute, it most be assumed that in rendering
the decision Justice Hall had in mind the
fact of Donrealdence appearing In the agzeed
statement of facts.
It will be noticed that this case Is tn line
with the great weight of authority, which
holds, independent of statutory enactment,
that the fact of nonrealdenoe, making it im*
possible to acquire jurisdiction over one or
more Joint obligors, Is ex necessitate rel
canse for a relaxation of the general rule;
and accordingly in such cases it is held that
the bringing of suit against the joint obli-
gors subject to the jurisdiction does not oper-
ate to merge as to nonresidents the cause
of action. See 2 Black on Jodg. S 771. On
its f&cts, the decision In the EHls Case Is In
line with these authorities. We know of no
case decided by this court In which there
was no relation other than that of a mere
joint liability, In which It has been held
that, after judgment against one joint ob-
ligor, the same cause of action can after-
wards be prosecuted to judgment in a sec-
ond suit against the other; both being all
the while within the jorlsdiction of the
court Whatever may be said as to the cor-
rectness of the ruling In the Prlntop Case,
supra, we are not inclined to extend it fur-
ther. To hold, independent of the statute,
that In the absence of a return of non est
inventus, or other showing that the joint
obligor not sued in the first action was not
at the time of Its commencement within the
jurisdiction of the court, the plalntUC might
nevertheless elect to i^oeeed severally
against the trfdlgors on a strictly joint prom-
ise, would be running counter to the com-
mon-law rule as adhered to by practically
all the conrbEk To construe section 6581 of
the GlTll Code as changing the common-law
mle to this extent wmild be an unwarranted
enlai^ement of Its terms. It may well he
conceived that the very object of the Liclsia*
tore in requiring a retiun of non est in-
vaitns to be msde was to restrict actions of
this character against less than all the joint
tAUgors to eases where it was shown that
when the action was oommenced jnrlsdlc-
tiMi could not attadi to one or more of the
defendants, and to leave otherwise unchang-
ed the common-law ml&
In the present case, it affirmatively ap-
pearing that Hathcock was within reach of
proceiB all the while the first suit was In
progress, we hold that the cause of action
sued on was merged in the Judgment ren-
dered against Redwine alone In that suit
Judgment affirmed. AU the Justices con-
cor.
(12 O*. App. 399)
MdNTYRE BROS. & CO. v. SOUTH AT-
liANnO STEAMSHIP LINE.
(No. 4,189.)
(Court of Appeals of Qeorgla. Feb. 34, lOlS.)
(SyUahut by <lle CosrtJ
L SniFPiiro (| 106*)— Cabbiaoi or Ooone—
Bii.1. OF IiADiNo — 'Effect.
When it affirmatively appears that the
cargo spedfled in a bill of ledins waa never
delivered to the carrier or received by it, the
orinnal cooaignee in the bUl of lading cannot
hold the carrier liable for the loss of the cargo,
unless it appears that the bill of lading was
issued with an intent to defraud.
[Ed. Note.— For other cases, see Shipi^,
Cent Dig. tt 226, 226, 414r4L9; Dec JMg.
I 106.*!
2. Shippino (f 62*)— Cakbiaoe of Goods—
C^HABTEB PABTT— CONSTBUCnOW.
It ia the duty of the master of a vessel,
who is a servant of the ship owner, to ascer-
tain whether artides receipted for him la
a bill of lading have been actuaUv received
for ahlpment and if, by reason of bis neglect
to perform bis duty in this reapect, losa is
incurred by the aliipowner, the latter cannot
recover therefor from a charterer of the ship,
altboogfa the charter party stipulates tfaat the
captain shall sign tiie bills of lading "aa and
when presented hj the charterer," when this
atipulation la so qualified as to restrict the
general aotbority of the captain to the matter
of freight ratea, and no specific authority la
given him to warrant the correctneaa of the
bills of lading in other reapecta. Oenerally,
an agent of a ahipowner has no author!^ to
sign trills of lading for cargo which haa not
been delivered to the ship for transportation.
[Ed. Note.— Tor other cases, see Sblpplnfe
Cent Dig. H 307-269; 81S-8Ut, 817; Dec. Dig.
8 62.*1
S. MoiriT Paid ($ 1*)— Gbouno vob Bioov*
BBT — NeCESSITT FOB REQUEST.
The payment of the debt of another, with,
out hia reqoMt or authority, does not entitle
the payer to recover from tiie debtor the sum
thua advanced.
[Ed. Note. — For other cases, see Money Paid,
Cent Dig. 81 Dec Dig. { I.*]
4. PiXADiHQ (I 248*)— AuHOiCENT — Pnx-
TION.
A petition which, in subatance, allegea that
the plaintiff has a right of action over against
the defendant for moneys wiiich the plaintiff
vras legally required to pay, on account of the
misrepresentations of the defendant, cannot
be amended by setting up a canse of action
dependent upon a specific breach of a contract
between the partlea wliicb would have entitled
the plaintiff to recover damages for the breadi.
[Ed. Note.— For other cases, see Pleading,
Gent Dig. H 686-709; Dea Dig. | 24a*j
Error ftom <Mj Govrt ot SaTRnnata ; Da-
vis Freeman, Judge.
Action by Ifclntyre Bros. A Ga against
the South Atlantic Steamship line. Judg^
ment for defendant, and plalntlfb bring er-
ror. Affirmed.
The plaintiffs, as shliwwners, entered Into
a chartOT party with the defradaut as a
charterer by the terms of which the plain-
tiffs' steamship Reliance was to be loaded
by the d^endant with a cargo to be pro-
vided by It at Stavannah, Ga^ and carried
•For otlwr aaaaa aaa aanrt topla and aeetioB NUICBBB la Dee. Dlft A Am. Dig. Kq'-V»g|to^ljMt)f
348
T8 SOUTHB ASTERN BEFORTEB
(Qa.
by said steanshtp to Havre and Hamburg.
The contract provided that the captain "shall
sign bills of lading as and when presented"
without prejudice to the contract In pur-
suance of that contract, the defendant, the
charterer, presented to the captain of said
steamship, for his signature, certain bills of
lading calling for 38 bales of cotton of speci-
fied marks set forth in the bills of lading,
and consigned to the respective parties nam-
ed In the petition as amended^ also bills of
lading for six pieces of wood consigned and
described In the bill of lading as set out in
the petition as amended, and also for three
barrels of rosin as described In the petition
as amended. These bills of lading were sign-
ed by the master as reQulred by the contract
or charter party and it is alleged that they
were signed upon a representation of the
def^dant, upon which representation the
captain of said steamship relied, that the
cargo spedfled in them had been loaded on
said steamship by the d^end&nt ai zeqnlred
by the contract
Upon arrival of the steamship at Havre,
the cotton so marked and consigned was
found not to tiave been loaded on it by the
defendant at Savannah, -'and the owners of
the ship paid the consignees for the missing
cotton. Upon the arrival of the ship at Ham-
burg, It was found that four pieces of oak
thus described and consigned had not been
loaded at Savannah by the defendant, and
the shipowners paid the consignees their
Talue. Upon the arrival of the ship at Ham-
burg, it was found that three barrels of
rosin thus specified and consigned had not
been loaded by the defendant at Savannah,
and the consignees of this rosin repaired the
shipowners to pay the valae thereof. Cer-
tain other cargo was found on board said
steamship, put there at Savannah by defend-
ant, bearing no marks, and marks for which
there were no consignees. PlalntlfFs endeav-
ored to get the consignees of the missing
cotton to accept the no-mark and wrong-
marked bales of cotton in lieu of the cotton
marked as consigned to them, but this the
consignees, refused to do. Petitlohers' there-
np<m sold tlie no-maric and wrong-marked
cotton, and obtained the best price obtaina-
ble therefor, and gave credit to defendant
for the amount received, less ttie necessary
costs and ezpaises Inddent to the transa(^
tlon. This suit was brongfat to recover the
difCerence in money claimed to be doe In con-
sequence^ The court below, on demuiKf,
held that neither the original petition nor
the petition as amended presented a eanse
of action, and dismtssed the suit
' Anderson, Cann & Cann, of Savannah, for
plaintiff in error. Adams & Adams, of Sa-
vannah, for defendant in error.
RUSSELIi, J. (after stating Oie facts as
above). Stripped of the many collateral
Ciestlons which have beoi presented In the
exhanstlve brlefis of die very learned counsd
for both parties, the solution of the question
as to whether tiie defendant Is liable to the
plalntifTs depends at last upon the con8tm<>
tlon of the contract by which they are bound,
and which we think the lower court properly
construed. The case is not affected by rul-
ings, almost without number, which we have
examined, where the charter party differed
from the one Involved in this case. A charter
party, after all, is nothing more than a con-
tract of affreightment, and though the con-
tract be unusual, or even unnatnrally favor*
able to one of the contracting parties rather
than to the other, this affords no reason
why the contract as written ^ould not be
enforced.
Briefly stated, and putting the case most
favorably for the plaintiffs, they seek to re-
cover money which they paid in Barope to
consignees for a portion of the' cargo whlcb
they were unable to deliver, because, upon
the ship's arrival, that portion of the cargo
could not be found in the ship, l^e defend-
ant contends that it la not liable, and that
the plaintiffs have no right of action over
against It because the plalntlfi^ were not
compelled to pay the consignees, and also
because, if they were liable to the consignees
in BuTope, this liability was due to some otli-
er cause than a breach of the defendants
contract as embodied in the charter parky;
in other words, that, even tf the plaintiff^
were liable to pay the consignees. It was not
due to any fault of the defendant
The merit of tliese respective contentions
Is to be determined the nature of the agree-
ment between the parties and the relations
they sustained to each other. It does not
matto: that vniee VbB provisions of a "time
charts sadi as Is dealt with In the Santona
Case (OL O.) 1S2 Fed. 51<^ or In Otdcar Steam-
ship Go. T. Tweedy (D. a) 146 Fed. 663, or
in the case of the 8. S. Hackney (which Is
appended as a note to the Santona Case), It
was held that the captain was the servant
of the charterer. These were cases in whldi
the eontraet Iras treated as a demise «f the
shii^ and, as Judge Hou^ says In the San-
tona Cftse: "The rale of law separating the
luting of a ship from a contract for her
services has been too often laid down to ad-
mit of doubt** Nor does it matter flut
courts ot highest aothorlty (as in IHda;
Dempster ft Oo. v. Dunn A Co., decided by
the Hoose of JjorUa) have htid that under a
particular contract th«celn involved the car-
rier could recover from the charterer the
damages he had to pay for short delivery.
We are only concerned with the contract en-
tered Into between the plaintiffs and the de-
fendant As we construe that contract the
charterers were to fnrnlah the cargo along-
side the ship and pay for loading It on board
the ship, and Uclntyre Bros. & Co. were to
transport It to destination and deliver It to
the ciutaer,- .gent^^^ a ta^aU^g^g.
McflNTTBE BROS, ft 00. T. SOOTH ATLAimo STEAMSHIP ZJNB
849
petttlon that a certain portion of the cargo,
the valne of which the plalntUIs paid the
consignees, and which It was the defendant's
duty to place alongside the ship, was not
placed alongside the ship, and that, in con-
sequence of Its not being aboard when the
ship reached Its destination, the plaintUFs
had to pay the consignees for it If nothing
more was stated, this would seem to glre
the plaintiffs a clear right of action, but it
appears from the petition that the only rea-
son why the plaintiffs had to pay the con*
signees for the shortage In the cargo was
that the consignees had bills of lading which
Included the missing cotton, lumber, and
rosin. And this raises the InQolry as to
the plaintiffs' original liability to the con-
sign ees upon thetr bills of lading.
[1] Goald the plaintiffs bare refused to
pay the conslgneeg for the portion of the
cargo they failed to deliver? And, If not,
would they hare a right over against the
defendant to recover the amount that they
were compelled to pay? We think the first
question must be answered In the affirmative,
and the second in the negative. It is not
necessary to determine the question of the
plaintiffs* llabiUty It the bUla of lading had
been aasli^ied and had passed into the hands
of innocent purcliasera without notice^ be-
cause there la no allegation that they were
ssdffned, and consequently such rulings as
that in Tan Bantw B. O. Co^ 81 N. T.
ITLt are not in point Construing the petl-
a«L most stroi^ly against the pleader, It
must he assumed that the bOSa of lading had
not been assigned, but were presented by
the original consignees. even if the
plaintifb were liable upon th^ bills of
lading, the defendant, whose dnty In refer-
ence to the cargo was to place It alongdde
the lAlp, would npt be liable upon the bills
of lading, because they were Issued by the
captain, who must be held to be .the ag^t of
the plalntifls themselves, and no responsibUl-
ty would attach to the defendant for an act
of the captain as. an agent of the plaintiffs.
This contract expressly limits the liablli^ of
the defendant to the period of time neces-
sary to put the cargo on board. It contains
the stipulation that: "Owners are to lie re-
- sponsible for ail cargo after it Is delivered
alongside, and signed for by niate or other
person authorized to receive same." And
paragraph 11 of the charter party provides
that: "All liability whatever ot the charter-
ers hereunder is to cease when the cargo is
shipped, the owners, master, or his agents
having an absolute lien on it for freight
dead freight and demurrage." These provi-
sions may seem unreasonable, but they speal£
the agreement of the parties. Consequently
it does not appear that the portion of the
cargo which waa missing, even if not loaded
by the stevedores, was not stolen or mis-
placed after It was placed alongside the ship
by the charterers. The petition, therefore.
does not show that the failure of the char-
terers to place alongside or load all of the
cargo imposed liability upon the charterers.
The plaintiffs rely upon the proposition
that Mclntyre Bros. & Co. were liable to
the consignees because they could not dis-
pute the statement of the bills of lading In
the bands of the consignees that they had
received the shipment, including the portion
which they <the owners of the vessel) were
unable to deliver. There is no stipulation
that the bills of lading are to be binding
upon master and owners as ptoot of quantity
delivered to the ship (as there was in the
Tougoy Case [D. C] «i Fed. 329); and so
we need not consider whether the plalntiflB
would have been estopped to deny the ac-
knowledgm^ts of their bills of lading, it
the present contract had contained such a
stipulation. The question turns upon wheth-
er the master bad the authority to sign biUv
of lading for a shipment which he had not In
fact received. The plaintiffs' petition states
that the missing articles were not loaded.
Therefore, of coarse, If the master acknowl-
edged the receipt of these articles, the stote>
meut that he bad received them was untrue
The plaintiffs attempt to meet this point by
an allegation that the charterers procured
the signature of the master to the bills ot
lading by false representations. This ml^t
give the plaintiffs a right of action for de>
celt, if by such ftilse representetlons the
plaintiffs had finally been compelled to pay
the consignees. The fact that the bills of
lading were induced by misrepreeentotion,
howev«, would not necessarily have made
the plaintiffs liable to pay the consignees
for the shortage la the cargo. At the time
that the plaintiffs paid the claim of the
consignees, they were not estopped from as-
serting that the master bad no authority to
sign In their behalf bills of lading for a
shipment, which, In fact, had never been re-
ceived by them.
[2] In Sears r. WIngate, 3 Allen (Mass.)
103, Judge Hoar, delivering the opinion of
the court, held it to be a general principle
amply supported by authority (which he
cites), "it Is not within the scope of tiie
master's autStorlty from the owners to sign
Mils of lading for any property but such as
is put on board." Counsel for the plaintiffs
concede the general principle, but insist that
in the present case, under the provision of
the contract that "the captain diall jdgn
bills of lading as and when presented m
press receipto or railroad guarantees, as cos*
tomary," the captain not only had the au-
thority to sign the bills of lading, but it
was his duty to do so without qaestion.
This view Is supported with marked ability
in the learned and Ingenious argument of
counsel, and many authorities are dted.
We think, however, counsel loses sfght ot
the fact that the provision In reference to
the ^ptain signing the bills of lading "aa
and when presented" ^b^Ml^^^f^O^diC
350
78 SOUTHBASTBRN BBPOBTBB
Illation tbat tli^ mut be algned "without
prejudice to tble charter party," and also
that the entire aothority of the captain in
signing the hills of lading la restricted to
the matter of freight rates.
Slnoe the charterers were responsible only
for the cargo In placing it alongside the ship
and in loading what there might be to load,
and their reHponslblllty ceased (under the
eleventh paragraph) when the cargo was
shipped (or loaded), anthorit? of the captain
to acknowledge receipt of cargo, which in
fact he did not receive, cannot be Implied
from the contract And it has been ^resa-
ly held that the terms in a charter party au>
thorizing the captain to sign bills of lading
"as and when presented, without prejadlce
to the charter party," "but any difference
between the amount of frel^t aa per bills
of lading and this charter party to be set-
tled at port of loading," etc., were not In-
consistent with the general rule that an
a^nt cannot give bills of lading for ship-
ments not received, but confined the author-
It? of the captain. In relation to the bills of
lading, to the mere matter of freight charg-
es. 36 Cyc. 65, 86; The Tongoy (D. C) 66
Fed. 330 ; The KIrkhiU, 99 Fed. 676. 39 C
O. A. 6sa
The declaration In the case at bar Is based
upon tbe alleged violation of the charter par-
ty: "Petitioners attach hereto an itemized
statement marked Exhibit B., which Is made a
part hereof, showing that said defendant Is
indebted to them In the sum of £196, 9b. lid.,
for which amount In terms of money of the
United States of America, to wit, the sum
of $951.11, petitioners, who are the owners
of said ship Reliance, and who have paid out
the sums heretofore set forth, because of de-
fendant's breaches of contract as aforesaid,
ask Judgment" But In tbe allegations there
is nothing to show that the charter party
was violated In any respect nor Is there any
reference to a particular part of It which
has been violated. The case proceeds upon
the theory that the master signed, the bills
of lading upon the defendant's representation
that the cargo described in the bills of lading
had been loaded, when, as a matter of fact. It
had not been loaded, but there is no allegation
of any fraud on the part of the defendant
It Is not stated that the defendant knew at
the time the bills of lading were presented
for signature tbat the missing cotton and
other artides had not been loaded, nor la
It alleged that there was any fraudulent ctA-
Inslon between the defendant and the master
with Intent to defrand the plaintiffs. It is
to be noted, too, that while the charterers
were te pay the stevedores for loading the
cargo^ the loading was to be under the cap-
tain's direction. He was to say In what por-
tion of the ship tbe varlons articles of freight
were to be stowed, and there la no reason
l^ven why he could not or did not check the
articles as delivered upon and stowed in the
ship^ except the fact ttiat the durterers
loaded the ship in great baste in ordu to
make the despatch money. This statement
itself would contradict the idea that the
defendant was Intending to defraud the
piaintlfb, and raise the inference that if the
defendant omitted to plan alongside or load
any portion of the cargo, it was due to haste
and negligence rather than to design.
[3] Counsel for the plaintiffs strenuously
insist that the ruling in Elder-Dempster &
Oo. V. Dunn & Co., Law Times. Dec. 18, 1909,
11 Asp. Mar. Cas. (N. S.) 337, is concluaive
upon the point that Mclntyre Bros. & Go.
could not dispute the statements of the bills
of lading, and therefore were liable to the
consignees. As we have previously said, we
Bee no reason why Mclntyre Brothers & Co.
could be held to be estopped from denying
the authority of the captain to sign the bills
of lading for cargo not received, but even
If they could not &ud if the liability for pay-
ment of the cousignees properly rested upon
the South Atlantic Steamship Co., Mclntyre
Bros. & Co. would not have a right to
recover for the payment made by them in
behalf of the South Atlantic Steamship Com-
pany, unless they had been requested by the
steamship company to pay its debt Tbe fact
that I, without Smith's request pay Smith's
debt does not authorize m^ to recover from
Smith tbe amount which I paid In l>ehalf of
Smith without his procurement or knowledge.
Smith may justly owe the debt non constat
that he Is ready and willing to pay it It
may be It would have been tedious and ex-
pensive to the plaintiffs to have resisted a
libel If the consignees bad proceeded against
tbe ship; but If the plaintiffs were not liable,
and these expenses had been caused by the
defendant tbey could have recovered from
the d^endant the damages which their
breach of the contract had occasioned.
It appears tbat the provisions of the char-
ter part7 in the Elder-Dempster Case are so
dissimilar to the charter here Involved Uiat
the ruling Is not in point The remarks of
Scrutton, K. C, show that the charter In the
Elder-Dempster Case was what Is called the
"net form" under which the charterer and
his servants put the goods right on board, .
whereas in the charter before us the shipper
gave the goods to tbe ship "alongside," the
owners were responsible for them while th^
remained there, and. though the charterers
furnished the stevedores and paid for the
loading, the loading was done under the su-
pervision of the captain.
We think that when the parties Inserted
in the present contract the stipulation that
the owners were to he responsible for Uie
cargo after It was deUvered alongside, and
signed for by the mate or other person
authorized to receive It the shipowners
either clearly overlooked the fact that a part
of the cargo might be stolen, burned, or re-
moved from alongside the ship-before Itpvas
Digitized by VjOOQIC
68.)
MalNTTBE BROS. A CO. T. SOUTH ATLANTIC STEAMSHIP LINE
351
loaded, or else tbey clearly Intended to as-
same the risk In case of either of these con-
tingencles, and, in the absence of any evi-
dence that the charter in the Elder-I>empster
Case contained a similar stipulation, we
would not be authorized to treat the ruling In
that case as controlliiig authority. The liabil-
ity of the defendant. If any, depends opon
the authority of the captahi to Issue bills
of lading for a cargo which he did not re-
ceive. It must be conceded that he has gen-
erally no such authority, and there is noth-
ing stated in the petition whldi would have
given the consignee the right to assume that
lie did have such authority. CoDsequoitly
tbe ooDBlgnees took the bills of lading
with knowledge of the fact that tbe captain
had no 'sndi authority, and they could not
bare held Mclntyre Bros. A Ga liable for
the portion of the cargo which was miss-
ing without flrat proving that Mclntyre
Bros, ft Co^ did, in fact, receive the en-
tire cargo. As Mclntyre Bros, ft Ca would
not have been responsible in the first in-
stance, they were not authorized to pay
the consignees' claim against the South At
lantle Steamship Company, and, having paid
it wlttiout direction or request <m the part of
the Sonttt Atlantic Steamship Ciompany, they
cannot recover. It may be that the bills of
lading themselves would show that the
South Atlantic Steamship Company was lia-
ble. But we cannot assume this. We would
have preferred that the bills of lading had
been in the record. Counsel for the d^end-
ant demurred upon the ground that they
should be set forth, but does not except to the
Judgment overrollng this demurrer, and, so
far as this case Is concerned, It must be held
that the court ruled correctly in overruling
the demurrer. We incline to the opinion
that tbe ruling was right, and that there was
no ground to except ; but certainly the plain-
tiffs cannot complain of the ruling, and from
their failure to amend by setting out the
bills of lading (although the? were not re-
quired to do bo) It may be presumed that
there la nothing In the bills of lading which
would disclose anything to their benefit or
take the case out of the general rule.
It may be that the bills of lading did not
disclose that the 36 bales of cotton were
actually Included therein, and the same may
be said as to the rosin and lumber. From
this it may be inferred that business consid-
erations may have influenced Mclntyre Bros,
ft Go. to accede to a claim which in fact was
not Justified by the bills of lading. The de-
scription of the marks of some portion of
the cotton may have been illegible on the
bills of lading, and the plaintiffs may have
conceded the claim of the consignees too
readily, simply to avoid litigation. Be this
as it may, since the plaintiffs elected to base
their action upon the charter party, their
case must stand or fall upon Its provlslous.
[4] The tact that It Is alleged In an amend-
ment, which the plaintiffs proposed to make
the seventh count of their petition, but whldi
the trial judge refused to allow as an amend-
ment, that the defendant failed to place the
portion of the cargo for which the plaintiffs
had to pay alongside the ship, as It was
bound to do by the provisions of the charter
party, has been the subject of our most seri-
ous consideration, and the question present-
ed has not been determined without great
difficulty. We were at first of the opinion
that this raised such an Issue of fact as to a
very apparent breach of one of the conditions
of the contract that it should have been sub-
mitted to the jury, and that the trial judge
erred in sustaining the objection to the
amendment and In refusing to allow it How-
ever, after an exhaustive examination of the
authorities, we are compelled to the concln-
slon that this breadi of the contract can-
not afford a basis for tbe plaintiff's recovery
of tbe sum of money which they allege tbey
Iiald to the consignees upon their bills of
lading, procured, as the plalntifb allege, by
nlse rH>resaitatlons of the defoidant to the
captain that tbe goods had been placed along-
side the ship. Even though the plaintiffs
might be entitled to recover in a direct action
brous^t upon ttie breach of the contract In
this particular, and without regard to the
bills of lading or the representations by
which QielT Issuance was Induced, if the rule
is as we think it is, and as stated bj Justice
Hoar in the case of Sean v. ^i^te^ suina,
that the master never has authority to ac-
knowledge rec^pt of goods whldi lie does
not actually receive, and If It is further true,
as held In Swift v. Tatner, 8» Ga. 660^ Iff
S. S. M2. 82 Am. St Rep. 101, that the mas-
ter, under this charter party, was the servant
of the owner rather than the charterer, then
the shortage In the cargo waa the fault of
the i^alntiffs' own agent and, of course the
plaintiffs could not recover from the defoid-
ant for a loss which had been occasioned the
plaintiffs by the negligence of their own
-agent in not ascertaining that the goods
spedfled In bis bills of lading had not In fact
been delivered alongside. If, as a matter of
fact, the goods were not delivered alongside
by the defendant charterer, tbe plaintiffs
may maintain an action for this breach of
the contract, and the measure of their dam-
ages would not only include the market value
at Savannah of such articles as were not
put alongside, but might also include ail
other costs and damages to which the plain-
tiffs were subjected by reason of the defend-
ant's breach of the contract evidenced by the
ctiart«' party. But this right of action would
be one entirely different and distinct from
the plaintiffs' original cause of action, which
depends upon tbe procurement of bills of
lading from tbe plaintiffs' captain by false
representation to the effect that defendant
bad placed alongside ship artlclea-^^ch bad
not in fact been deUveiF«|itl&ydtM^l@l@glC
352
78 SOUTHEASTERN BEPOBTBB
(Ga.
Of cootae^ If , as ft nntter of law, Ute cap-
tain was the agoit of tlie cAiaiterera, Instead
of the agent of the owners of tba ship, the
pUlntlffs would not have been compelled to
pay the constgneee for the shortage In -the
cargo. We think, therefore, that under the
allegations of the petition, as well as of the
amendments proposed thereto* the plaintiffs
could not recoTer of the defendant in this
acUon.
Even If It Is not clear that the plaintiffs
could have avoided paying the consignees In
Europe. It Is perfectly plain, In the absence
of any allegation of fraud or collusion be-
tween the captain and the defendant char-
terers, that the failure of the captain (the
plaintiffs' agent) to ascertain for himself,
and for the protection of his masters, that
the articles receipted for in the bills of lad-
ing had been actually delivered by the char-
terers, was the real cause of the shortage
for which the plaintiffs had to pay, and that
the plaintiffs cannot recover of the. defend-
ant for the negligence of their own agent
Judgment aflbmed.
<U Ga. Jlpp. 7X2)
BROWN STATE. (No. 4,761.)
(Court of Appeals of Georgia. May '20, 1913.)
(SyUahua hy <]i« Court.)
1. Infants ({ 66*)— Criminal Law (f 778*)—
COUPBTENOT TO COUMIT CBUO— BUXDBN or
Pboof — Instboctions.
Under the statute of this state, a person
between the age* of 10 and 14 years cannot be
legally convicted of a crime, unless it uipeara
from the evidence that he was capaz dolT; and
the burden of proving that he was bo rests
Upon the state. Penal Code 1910, 9 S3 ; Ford
T. State. 100 Ga. 63. 25 ». E. 845. The court
should have charged the jury to this effect, in
accordance with a written request, timely made.
An instruction to the effect that, in determin-
ing the question as to the mental responsibility
of the accused for his conduct, the jury should
consider any evidence showing what be did,
how he acted, what he said, in fact the whole
case in all of Its aspects, to determine whether
be knew good from evil, and that if the jury
bad a reasonable doubt on this question they
should acquit, was not equivalent to the In-
struction requested.
[Ed. Note. — For other cases, see Infants,
Cent Dig. S 172: Dec. Dig. I 66;* Criminal
L«w, Gent Dig. SI 1846-181^ 1864-1B57, 1960.
1967; Dec. Dig. 1 77a*]
2. HouiciDB 300*)— InsTBUOTioNS— Justi-
fication.
Since the decision of the Supreme Oourt
in the case of Gumming v. State, 99 6a. 662,
27 S. B. 177, it has been uniformly held by
that court and by this court that a charge to
the jury that "provocation by words, threats,
menaces, or contemptuous gestures shall in no
case be sufficient to free the person killins
from the guilt and crime of murder" (Penal
Code 1910, i eS) should not be given without
qoalification, where there is a theory of the
evidence, or of the statement of the accused
made to the jury, on which the Jury might find
that the person killing acted in self-defense, on
aerount of a reasonable fear aroused in his
mind by menaces, etc., considered in coonec-
tioQ with the other facts In the case. In tiie
present case the theory of the defense, based
upon the statement of the accused, was to the
effect that the aocosed, in killing Uie decedent
did so under the fears of a reasonable man that
the decedent was endeavoring to take his Ufa
or to commit a felony on his person ; these rea*
sonable fears being aroused by menaces, ac*
companled by the act of drawing a knife oa
the accused by the decedent
[Ed. Note.— For other cases, see Homicide,
Cent^Di^.^^S 614, 616-620, 622-680; Dee.
S. No Other Ebbob.
Bxcept as above decided, no substantial s^
ror of law appears^
Elrror from Superior Ooort, Bibb Gonn^;
H. A. Mathews, Jndge.
GuB Brown was convicted of crimes and 1m
brings error. Reversed.
John R. Coot>er, of Macon, for plaintiff In
error. John P. Ross, SoL Gen^ of Macon,
for the State.
BILL, O. 3* Judgment reversed.
(13 Os. App. 721)
CENTRAL OF GEORGIA RT. CO. v. BOB^
LAND. (No. 4,350.)
(Court of Appeals of Georgia. May 6« 1918,
Behearing Denied June 10^ 191S.)
(Bvllabttt hit the Court.}
1. TBIAI. ({ 267*>— iNBTBUOnONS— Rbquesi—
Nboessitt.
In the absence of an appropriate and
timely request to Uiat effect, the trial Judge
(after having folly and fairiy stated the con-
tentions of the parties as set oat in the plead-
ings) is not required to direct the attention
of the Jniy to spedfic eontentioiis of either
party, arising, for the first time, upon the ar>
gument of the case and not specifically men-
tioned in the pleadings; the contention behig
wholly dcpoident np<m -Inferenees 'trom the
testimcmy,
[Ed. Note^For other cases, see Trial, Cent.
Dig. II 642-645: Dec Dig. I 257.«1
2. Trial ({ 141*)— iNffTRucTiONs— Concedbd
LlABILITT.
Connsel for the defendant, in open court,
admitting its liability to die plaintiff for soch
damages as were due to a sUght wound in
the plaintiff's head, but at the same time de*
nying the existence of all other injuries from
which tbe plaintiff claimed to have suffered*
it was not error for tbe judge. In reply to
this statement of counsel, and in proceeding
with his charge, to use the following language:
"Connsel having conceded the lisbillty of the
defendant, you should careftdly consider ths
case and arrive at the proper amount after
giving due weight to aB of the testimony in
the case, and the form of your verdict should
be, *We, the jury, find for the plaintiff* so
many dollars, stating the amount"
[E:d. Note.-~For other cases, sse Trial, Cent.
Dig. 8 336; Dec. Dig, | 141.*]
8. Vbbdxot Sustainkd.
The verdict Is fully supported by the ev^
idenee.
Error from City Court of Sandersville;
R W. Jordan, Judge.
Action by J. D. Borland against the Cen-
tral of Geor^ BaUway Company. Jndg-
Dig. Bh]^#«|^i^@lO§l^
*ror otbsr oasse sss same tople and ssctlea MUKBBR In Dae. ZSg. A ioa.
OA.)
VABM&R t. pMlops
lAeiit for plsintfff, and defendant brings ta^
ror. Affirmed, wltli damages. - '' ;
F. H. Saffold, oC Swainsbora. J. J. Harris,
of SandersrlUe, and Lawtoo & Cunulnghan^
of Savannali, for plaintiff In error. Hard-
wlck ft Wriebt, 4^ Sandersyllle, and Smith &
Hastixigs, of Atlante, tor detttidant In error.
RDSlSELi; 3. Ttk6 plaintiff In the lower
conri brougbt an action for damages against
the railway comi>any, and the Jnry returned
a verdict In his fiiTor for ^,000. It is not
insisted by counsel for plaintiff in erroi' ttiat
the plalnUff was not entitled to recover dato-
ages in some amotut It Is admitted that the
railway company la liable for whatever In-
jury the plaintiff really suffered, dne to a
head-end colUdon of two of the defendants'
trains. The Jury, thierefore, had but two
Questions before it:' (1) What injnrles did
the plaintiff receive In the eolll^on? (2)
What was the amount of damages dependent
npon these ascertained Injuries? There are
two special grounds of the motion for new
trial.
[1] 1. In the fourth gronnd of the amend-
ment to the motion it is insisted that the court
erred In stating the contentions of the de-
fendant In that the conrt withdrew from the
consideration of the Jury one of the deCend-
ant's real and important defenses, ^Becanscs
one of the defendant's main contentions was
the apparent condition of the plaintiff, as
It appeared before the Jury, was not his
real condition; that the plaintiff was feign-
ing; that tils back was not Injared at all,'
and. If so, not as It appeared." It is very
apparent tliat this assigoment of error is
hypercrltlcaL The conteottons of the par-
ties are generally to be drawn from the
pleadings, and to have presented to the Jury
a special defense, whidi Is merely a matter
of ailment and deduction from the eri-
dence, would certainly reqidre the timely
presentation of an appropriate request in
writing. The charge of the court was a re*
markably fnll and fair presentation of adl
of the Issues Involved In the case, m set
out In the pleadings of both parties. The
question whether or not the plaintiff was
feigning a physical condition which did not;
In fact, exist was one wlilch necessarily de*
pended wholly on the credlMllty of the plainr
tiff on the stand and when not upon the
stand. No Judge can undertake to call the
special attention of the Jury to the credlbll-t
Ity of a wltnesB without error, and he Is llk»
ly to commit error whenever he undertakes
to state to the Jury that either party insists
that testimony damaging to hla case is uu-
retiaUe or nntmtftwortfay. We are IncUned
to the oitfnlon that the trial judge would
have erred to have Instructed the Jury as
counsel for plaintiff In error now tnslsts he
should have done. But, not b^ng required
ftt thlfl time to rule upon this jniat, we
hare no hestltatlon U holding that be cer-
tainly did not err, In the abs^cv ^ a
quest to give the lnstructl6n tSxe c^nlsslon of
which is assigned as error.
[t] 2. -Am the Judge was about to atate^ to-
ward the conclusion of hla Aaree, tfie fbrm
of the verdict In cufi the Jnry found for
the defendant, he waa interrupted by one of
covnsd for die plalntlfl with the statonent:
"If your honor please, I nndwatand the de-
fendant conoede» Its UablUty-" The court
said: "It la denied in the pleadings." There-
u^n defendant's counsel said: "Tour honor,
we adtnlt we are liable to the plalntlfl in
some amount for damages for the wound re-
ceived In his head, W^ o( course howevo*,
deny the other injnrlea the plaintiff dalms.*
Whereupon the court, as the concluding sen-
tence In his charge, said: "Well, gentlemto
of the Jury, counsel having conceded liability
of the defendant, you should carefully con-
sider the ease and arrive at the pnver
amot±t, after giving due weight to all of tha
^timony in the case, and the form of your
verdict should be, the jnry, find for the
plalutlir 80 many d(dlan^ stating the
amount." We cannot concur In the Intfat-
ence ttf the plalntlir in error that this mere
statement of the court as to the form of
the jury's verdict placed the defendant in
the position of admitting llablllt? as set out
and claimed the i^lntiff, for there is
nothing In the language as used, nor in
anything which traiwpirea in connection
therewith, to have created any sndb iminres-
slon in the minda of s Jury of ordinary In-
telligence.
[3] & The verdict Is fully supported t^^ the
evidence, and the special assigpnients of ei>>
ror ih onr oidnioo are wlthoat merit '
Judgmmt ftfflrmocL
(u CM. App. ns)
. VAIUCBB.V, PHILLIPS. (No. 4^66&)
(Court of Appcttla of Gswgla. May 6, ISIK.
BeheaziBS DeiOed June 10, 1818.)
(ByUahua &v th« Oomrt.)
\. Domicile (S 2*)!— "Besides ce."
The term "residence" has been judloiaUy
defioed' aa "au' abode or dwelling plaocb as di»
tlnguished from a mere temporary localitv of
existence" (citing 7 Words & Rirases, p. 6X55).
Note.— For other case^ see Domicile,
CenL Dig. { 2; Dec Dig. | 2.*J
2. Chattel HoBTGAOsa (SS 87, 1S8*)-^Px.ao>
OF RBce«^"BBSiDBNoir*- or MonoAOon-*
PaiOBITlBS.
A resideut of Tift county moved his family
over iDto Worth county, intending to remain
there nntil a bouse in wlilch he expected to
reside, located in Tltt county, was completed,
and made ready for his family re^d^ce, whoi
be intended to return to Tift county re-
8ume his residence with bis family therein.
While temporarily sojourning in Worth county,
he executed a mortage on personal property,
and this mortgage was xecor^d in Wwth ooun*
ty. Beli, (1) that the mortgagor's residence
was in 'titt county and the mortgage sbonld
have been recorded In that county ; (2) that a
second mortgage enented by hloa, cov^li^ iha
•Fsretter osms ms suae twls aad ssottas NUUBBB In Dot. * Asa. Mg. Key
78&B.-23
364.
78 SODTHEASXEBN BBPOKTEB
(Oa.
Mune property a* that la tiie first mortgage and
dalj recorded in Tift county (the holder of
the Kcond mortgage having no actual notice of
the existence of the first mortgage), was prior
in dignity to the first mortgage, and the pro-
ceeds arising from the sale m the mortgaged
property were properly awarded to the fi. f a. 1«-
Boed on the foreclosure of the serond mortgage.
[Ed. Note.— For other cases, see Chattel Hort-
tsges, Cent Dig. SS 162-166, 228-236; Dec.
)ig. SI 87, 138*]
Error from City Court of Tlfton; B. Ere,
Judge.
Action between J. Ia Farmer and J. 3. Tj.
Phillips to determine conflicting claims to
money arising from the sale of a horse levied
on. Judgment In faror of Phillips, and
Farmer brings error. Affirmed.
Ferry, Voj ft Monk, of Sylvester, for plain*
till In error.
SILL, 0. 7. The question la tikis caae
arose on a rale to dirtribnte money, and was
decided by the Judge of the court below, by
eonsent, wlthont the Interrentlon of a jiiTyi
upon tile following stlpnlatton as to the
facts : In ttie early part of January, 1912, J.
If. Farmer sold to one B. H. Holt a horse,
and took a mortgage from Holt for the pur-
chase money. This mortgage was properly
execnted,|and was recorded at once In Worth
county. Subsequently Holt executed a sec-
ond mortgage covering this horse to one
Phillips. This mortgage was properly exe-
cuted, and was recorded In Tift county. It
was foreclosed by PhlUIpa, and the horse
waa levied upon and sold by virtue of a
mortgage fl. fa. Farmer also foreclosed his
mortgage on the horse, and Imd an execution
Issued thereon. This execution was placed
in the hands of a levying officer before the
sale of the horse, with Instructions to the
officer to bold op the money arising from
the sale of the horse, awaiting the order of
the court directing its proper distribution
as between the two mortgage ezecutiona.
When the first mortgage given by Holt to
Farmer was executed. Holt lived In Tift
county on a place known as the "Parka place"
during the year 1910, and when he moved
from that place about Chrlatmaa, 1911, be
contemplated moving to another place in Tift
county, with the intention of residing there
during the year 1912. The place at which
he expected to reside during 1912 is imme-
diately across the Une in Tift county, on the
east side of a road which la the line be-
tween Worth and Tift countleB. Upon ar-
riving with his household eCEecta, that being
the only property be owned (he being a ten-
ant), the boose in which he expected to re-
Blde in during the year 1912 was Incomplete,
not having been finished in its building, and
was unfit for occupation; and thereupon he
made arrangements to move his household
goods and his family to a house Just across
the road In Worth couu^, where he remain-
ed for a few weeks until his bouse was
ready. While he was stopping at the bouse
In Worth county, he bonght the horse in
question from Farmer, execuUng to Farmer
a mortvage note. At the time of selling Holt
the horseL and at the time of the execution
of tlie mortgage Farmer hiqulred of Holt
where he Hved, whether In Worth or TUt
county, uid was told by Htdt that he lived
In Wortli county. Farmer did not know
at the time of taking said mortg^e note, or
at the time of having same recorded, or even
until after its foreclosure, that Holt at the
time of the executlcm of Ills note and mort
gage contemplated moving into Tift county.
The mortgage executed by Holt to Phillips
was properly recorded in Tift county. The
Judge awarded the money arising from the
sale of the horse to the fl. fa. in favor of
Phillips, and Farmer excepted to this Judg-
ment
[2] The only question to be decided by this
court is aa to the record of the mortgage exe-
cuted by Holt to Farmer. It is conceded
that this mortgage waa for the purchase
money of the horse sold by Farmer to Holt,
and it is not contended that Phillips, who
took tlu second mortgage, had any actual
knowledge of the existence of the first mort-
gaga If Farmer's mortgage was pFoi»erIy
reeorded, of course. It constituted constmc-
Uve notice to Phillips, and Farmer ms en^
titled to' the proceeds of the horse. Civil
Code 1910. 1 32S9, provides that a mortgage
on personalty most be reeorded In the county
where the mwtgagor resides at the time of
its executlmi, and it la insisted by the plain*
tiff in error that the word "residence" In
this section means actual residence of the
mortgagor as contradlatingulshed from his
domicile or political residence. In determin-
ing whether a mortgagor Is a resident of a
particular county, the qneetion as to his dom-
icile may not be Involved, for he may have
a residence whldt is not la law his domicile.
Domldle includes residence with intention to
remain, while no length of residence without
intention of remaining constitutes domlcll&
Drake on Attachments, | Q& In construing
the statute requiring that a mortgage on per-
sonalty must be recorded in the county of
the mortgagor's residence at the time of the
execution of the mortgage, the question of
residence and not domicile Is Involved, and,
as said by the Supreme Court of Minnesota
In KeUer v. oarr, 40 Minn. 428, 42 N. W. 292.
and approved by the Supreme Court of this
state in Stiekney v. Chapman, 116 Ga. 759.
761, 42 S. E. 6S, the fact of actual residence
is to be determined by the ordinary and ob-
vious indlda of residence.
[1] In both of the cases Just dted the ques-
tion under discussion was as to the Issne of
nonresidence under attachment lawa; and
in the decision in the Keller Case it was
held that a mere temporary or casual ab-
sence of a debtor from the state on business
or pleasure will not render him a nonresi-
•Vsr etner nmm tas same teple and wcUob NUMBBB la Deo. DIft * Am. Dig. KafgS»e<
HoLAUOHUN SAYEBS
865
dent. Hie words "resldenf and "realdaice*'
import more than a temporary - stay In a
place for the performance of a single piece
or Job of work, especially where the work-
man at the eame time has a home and per-
manent place of abode In another place, and
the t^m ''residence" has been Judicially de-
fined as "an abode or dwelling plac^ as dls-
tlngulsbed from a mere temporary locality
of existence." 7 Words ft Phrases, 6155.
Under these definitions of the term applied
to the facta of this case, we must conclude
that the mortgagor, Holt, did not reside In
Worth coonty, when he executed the mort-
gage note to Farmer, but at that time he was
rimply temporarily sojourning In Worth
county until hts permanent residence was
ready for his reception In the county of Tift ;
in other words, that he had not abandoned
his residence in Tift county by a temporary
dwelling In Worth county for a short time,
untU be could carry out his Intention of re-
suming his residence In Tift county. While
it seems that Farmer exercised due diligence
in making Inquiry as to the place of resi-
dence <tf Holt when he executed the mortgage
to him, and was not informed as to the facts
by Holt, we are not at liberty to add to the
mandatory statute of the Legislature which
dedares that a mortgage on personal proper-
ty must be recorded In the county of the resi-
dence of the mortgagor, In orda: to coustl-
tnte coQstructiTe notice of its existence^ En-
tertaining this view of the law, It follows
that the Judgmmt of the lower court, award-
ing the money to the holder ot the second
mortgage who had neither constructiTe nor
actual notice of the first mortgac^ should
be affirmed,
jmlgmrat afflimed.
fn w. Ta. m)
Mclaughlin t. satebs.
(Sttpr«na Oonrt of Appeali of West Virginia.
April 29, 1913.)
(Synahut hy the Court.)
BoniTT (S 420*) — Dkfavlx — Hsuzzra —
CONITNUANC*.
A defendant in default by a bill taken for
eonfessed against faim at roles, thoogh at the
first term lie unsucceasfoUy demurs and then
files bis answer, cannot as of right demand a
continuance to enable blm to take proof. The
plaintiff is entitled to hare the cause beard at
that term nnless the defendant abowB good
cause for a continuance by aCSdavit filed.
[Ed. Note.— For other cases, see Equity,
Gent Dig. | 970; Dec Dig. § 42a*]
i^jteal from Glrcnlt Court, Pocahontas
Gounty.
Bill in equity A. U. McLanghlln i^inst
D. W. Saym to enforce a vendor's lien.
B^om a decree for ptaintif^ defudant ap-
peals. Affirmed.
W. A. Bratton, of Marllnton, for appellant
Henry Gilmer, of Lewlsburg, for appellee.
BOBINSON, J. By the bill In this cause
plaintiff sought the enforcement of a vendor's
lien which he had retained on land conveyed
by blm to defendant From a decree for the
unpaid purchase money, ordering a sale of
the land to satisfy the sam^ defendant has
appealed.
Hiongh duly summoned, defendant allowed
the bill to be takm for confessed at rules.
At the first term thereafter be appeared and
entered a demurrer to the bill, which was
promptly, but most properly, overruled. The
bill was assuredly sufflcimt Plainly the de-
murrer was a dilator one. Upon the overrul-
ing of the demurrer, defendant t«idered an
answer, to which plaintiff filed exc^tttons:
The exceptions were sustained. That' this
answer atTorded no defense Is clear. The bill
was fully supported by documentary evi-
dence. Plaintiff Insisted on a hearing. A
decree of sale for the enforcement of plain-
tiff's lien was directed. Before such a decree
was entered, defendant tendered an amended
answer which pres^ted a snffldent defense
to the bill. Plaintiff replied generally. The
amended answer set up that which. If sup-
ported by proof, would have entitled defoid-
ant to an abatement of .the purchase money
or a rescission of the conveyance; That the
general replication was In place is sustain-
ed by Depue v. Sergent, 21 W. Va. 328, syl.
2. It put defendant to proof. With the ten-
dering of the amended answer, defendaut
moved a contlnnance of the cause, but filed
no affidavit in support of his motion. A con-
tinuance was refused and the decree com-
plained of was mtered.
Was it emnr to deny defendant a contln-
nance of the cause? Indeed tibe statute an-
swers the question: "At any time b^ore final
decree, a defendant may file bis answer, but
a cause shall not be sent to the rules or c<m-
tinued, because an answer Is filed in it, on-
less good cause be shown by affidavit, filed
with the papers therefor.** Code 1906, cih.
125, sec. SB. Since Oie motion for contlna-
ance was not supported by an affidavit as
required by this statute, it was proper to
overrule the same. True, upon tiie overrul-
ing <tf the demurrw, defendant was entitled
to answer the blU. He was permitted to do
sa ^nie question we have is not as to the
right to answer; It Is as to the right to a
continuance; The statute' plainly gives a
defendant the right to answer ; but It quite
as plainly denies him a continuance on the
strength of the answer alone.
True also, defendant tendered his answer
at the first term after the cause was matured
and set for hearing; but when he tendered
it he was in default The bill had been tak-
en for confessed as to him. That fact con-
victed him of dllatoriness. He might have
appeared at rules and aided the progress of
the cause, or might have token such steps
at rules as would have prevented the default
•Fn-otitw
•M wme tople and section HUHBBR In Dw. Dig. A Am. Dig. K«r-MfiU jHirM i%
356
78 S0UTHHASTB|tM .RElPOItTEB
of a bQl- tafcep for coBfessed. It was to pro-
vide agfUoflt delay by reaacm . <fC any sach
dUatorineaa on tbe part of a defendant that
the statute we. have qaoted was enacted.
Tbat atatnte'vlrtaally say» tlut a defendant
by affidavit filed in tl^, papers must purge
himself of all apparent neglect before be can
oontlqne the cause on tbe filing of an answer
in term. And that statute ai^dies as well to
tibe first term of court as to any. otiier. It
does not except the first term. If, as in this
case, the bill is one that does not require
the taking of depositions to prove it, a de-
fendant when summoned- to answer it must
take notice that a decree may be insisted
upon at the first term, and must use all reason-
able diligence in the making of his defense.
Otherwise he may not be able to aoqnlt him-
self and show good cause for a continuance
If he needs more time when the first term
comes oin. Of course la the majority of in-
stance, an answer filed in term puts the
plaintiff to proof and brings on a continuance
to which palntlff is then himself entitled.
Thus chancery causes usually go over the
first term tot the taking of proof. And it
Is this that has caused an inu>resslon with
some that In all cases a defendant summoned
to rules may wait untU the term to put in
his defense and rather as of right carry the
case over. But if the plaintiff is in position
to ask a decree at the first term, let the de-
fendant beware. If the defendant is in de-
fault, he can not get further time without
the affidavit required by the statute.
Mr. H<^ says: "When the plaintiff has
regularly filed his bill at rules and matured
the cause for a hearing, and the defendant
afterwards files his answer In term tiius, and
the plaintiff desires time to reply to the an-
swer and take proof and prepare his case for
hearing, he Is entitled to a continuance of
the cause as a matter of right, upon a mo-
tion made for that purpose." Then on the
other hand he says: "While a defendant may
file his answer at any time before final de-
cree, as we have seen, he cannot, upon the
filing of his answer, have the case continued,
except for good cause, to be shown by affida-
vit filed in the papers foi; that purpose. A
defendant who has time and opportunity to
take his evidence after the filing of the bill,
before the case is called for hearing in court,
or before the coming on of the term of the
court at which the case is heard, cannot file
his answer at the hearing or at the term at
which the cause may be heard, and then con-
tinue or delay the ease to procure evidence
■ in sui^Kut of his answer." Equity Procedure
sees. 460, 481.
In Gardner v. Landcraft; 8 W. Ta. 86. it
Is held: "When a bill baa been regularly
taken for confessed at rules, and the cause
set fbr hearing, and docketed, and the de-
fendant appears in court and by leave of
court, files his answer to whidi plaintiff files
a general replication, the iilalntifl la entitled
to have the cause heard at die same tern^
unless, the defiudant shows a^od pause for a
continuaneb" In that case Judga. Bay-
mond says: "Ac tba commencement of the
court. at whl4A Ox% decree was rmdered the
plaintiffs were entitled to have the cause
heard, uptm the bill takoi for confessed at
rules. At tUs term of the court the defwid-
ants appeared before the decree was rendered
and obtained leave to fll^ tlieir answers, and
did then file them, to which the plalntUtt
filed gmeral replications. Up to the filing
of the answers the defendants were lo de-
fault, and it was the right of the plalntiflk
to have the cause then heard, upon the bill,
exhibits, answers, and replication theretOk
unless the defendants by proper affldaviti
showed good cause to the court for a contino*
ance."
• In Reynolds v. Bank, 6 Grat 168, the court.
In relation to proceedings at the first term,
says: "In this case the defendant belug in
default, the law attached to his pleading
demurtlni^ or answering, the condition that
his doing so should not delay the cause; and
this condition was expressed in the order of
the court rectivlng his demurrer. If the de-
fendant had answered instead of demurring,
the plaintiff would have been entitled to a
trial without delay, and equally so thongh
a demurrer was filed instead of an answer.
The overruling of the demurrer placed him
in no better condition than he was before;
he had still a right to answer, but subject
to the same condition. If the mere filing of
a demurrer ts to entitle a defendant, in de*
fiiult, to the allowance of two months to
answer, It will enable him In every case,
without any reason whatever, to obtain a
continuance beyond the term; which Is di*
rectly In the teeth of the plain words of the
statute, and against its true spirit and mean-
ing."
In Bnmsott v. Vaughn, 44 W. Vs. 410, 29
S. E. 102St the very question that we have
under consideration arose and was passed
upon. There, just as in this case, at the first
term a demurrer to the bill was overruled,
the defendants answered, the plaintiff replied
generally, and the court denied the defend-
ants a eontinuanc& This Gourt* through
Judge English, said: "Was the motion tor
continuance properly overruled by the court?
In order to reach a proper conclusion upon
tlilB question, we must consider that thla
bill was filed at rules on the 9th of October,
1895, and the answer waa not tendered until
January 11, 180G, in term time; and afta
the answer waa filed, and the plaintiff re-
plied generally thereto, the defendants ask-
ed a continuance of the causey to give them
an oppcotunity to prove the allei^Uons of
their answer, v^ch motion was ovwruled.
The defendants offered no afitdavtt in sup-
port of their motion, or in any manner
showed to the court that they had any proof
to take or any good cause wto-Biich costin-
Digitized by VjOOQ IC
«I7
nance should be grftnted, wb» sectlofi. ^
of chapter 12Q of the Code expressly pro-
vides that 'at any tline before final decree a
defendant may file his answer, but a cause
shall not be sent to rules or continued, be-
cause an Answer is filed in U unless good
cause be shown by aflldartt filed with the
papers therefor.' .Under this secdon, then,
and In the circumstance of the case, I think
the motion for continuance was properly
overruled."
In Ash V. Lynch, 78 S. B. 866, decided this
t«rm, recognition is given to the necessity
of an affidavit showing good cause to war-
rant a continuance on the coming In of an
answer, though, as in that case, It is tender-
ed at the first term. TherelD Judge Poffeu-
barger says: "With this answer in, bo decree
should have been entered, because the bill
was not Bostained by any proof. If its
allegations liad been supported by proof, the
denial of tbe answer, had It been filed, would
not bare prevented a decree, In the absence
of good cause shown for a continuance. Vj^
on the Ull, answer and goieral replication,
without any evidence, there could not have
been a decree for ttw defendants. , Tbe
plalntift could have prevented this by taking
a continuance, but the defendants could not
have had a continuance^ vrlthout disclosing
CDOd cause therefor, If the plaintiffs bad
been read; to sabnilt tbe cause." And in
tfoore T. ACooreb 78 S. B. 09, alao decided
Ml this ternit we gave further recognition to
tbe necessity of an affidavit as the basis of
a continuance on the tendering of an answer
at the first tarn, by holding that tbe affida-
vit oOftreft at such term In that case showed
good cause and warranted a continuance
as was asked.
Dtfendant says that his answer, which is
sworn to, is an affidavit wUidi entitled him
to a continuance ot the cause. But we find
no facts stated therein which show good
cause why the bearing should have been de-
layed to enable defendant to take proof.
It may be that, la the shorit period of a
little more than a month between the filing
of the blU and the coming on of the term
defendant if he had been ever so diligent
could not have made out bis case for that
term or speeded the cause by earlier appear-
ance on his part It such was the fact, de-
fendant, by tbe terms of the statute^ was
required to show the same to the court below
by affidavit, in order to Justify that court
in even entertaining his motion for a con-
tinuance. The statute does not say that the
court shall Judge from anything bnt an affida-
vit as to whether a continuance shall be
granted a defendant when he files an answer
in a cause ready for hearing. The cour^ Is
not left to exercise Its Judgment on verbal
statements, general appearances, or the ordi-
nary pai)ers of the suit It can only adjudge
wbether there shall be a continuance by ref-
erence, to an affidavit. Where no affidavit
Is filed,' it must proceed to hear the cause
if the ttlaintUC so InaUts.
The eofori^etit of this plain statute
.which requires the filing of an a^davlt show-
ing good cause before any chancery stttt
ready for hearing on tbe part of the plain-
tiff can be carried over any term merely
by the defendant filing an answer therein,
will not be amiss in this day of complaint
against the slugglshnees of Judicial proce-
dure. Without its enforcement many a Just
cause may be delayed over a long period be-
tween two terms by a defendant simply fil-
ing an answer phlch he never expects to
prove, and which is put in only to prevrat a
decree for a time and thereby give him lon-
ger possession or use of the subject «f the
litigation.
The decree will be affirmed.
(72 W. Tft. 87V)
BOBBBTS T. BAI/CIMOBB ft a B. GO.
(Supreme Court of AkmsIs at West Yligiiila.
April 29, 191S.)
L Jdbhoes or tbb Fbaow Q 167*)-^AvnuL
— OOHTIHUANCE.
An auiended complaint filed in tbe circuit
court after tbe jury has been selected and
sworn In an appeal horn a Judgment of a Jus-
tice, setting forth more iwrticularly and for-
mally the claims or demands described in tbo
complaint filed in ttie jnstloe'a conrC, and In-
troducing no new cause of action, does not of
itself show cause for a continuance.
[Ed. Note.— For other case^ sea Justices of
the Peace, Cent Dig. (S 647-651. 654 ; Dec
Dig. I 16^.*]
2. NxoLiaiKO (IS 72, 136*)— CJoktribdtobt
NiaXjaKHCB — BMUGBNCUU — QlTBSIIOEl
JOB JUBT.
Id cases of sudden and unexpected danger,
necessitating quick determination and choice
of meana of safety or escape, tbe law makes
allowance for errors In Judgment exacting only
good faith and abstention from volontar; risk
on the part of the person so exposed, and the
inguir? as to whether injury resulting to him
from mitchoice of means was due to bis con-
tributory negligence Is generally obs tor Jiiy
determination.
[Ed. Note.— For other cases, see NegUi
Cent. Dig. » 99, 100, 277-^; Dec ~
72, 136. •!
3. Raiiboads ({ 850*)— Caossnfo Aocidritt
— CONTBIBUTOBT NBaUOBNOB — QUESTIOIV
rOB JUBT.
In tbe absence of proof of knowledge on
the part of a driver of a vehicle of the charac-
ter and extent of a defect In a highway cross-
ing on a railroad, by means of which a vehicle,
while being driven scross the track in the
nifihtUme, caught and became fastened upon a
rail of the track, and could not be detached
and removed in time to prevent it from beii^
struck 'by an engine, it n for the Jury to say
wbether the driver was guilty of contributory
negligence in attempting to effect a crossing,
in view of the character of ISk vehicle and the
defect in the croesiag.
[Ed. Note.— For other cases, see Railroads,
Cent Dig. 1152-1192; Dec. Dig. § 350.*]
•For oUtsr easw sm sun* toplo and SMttoa NUUBSR m Deo. Dig. 4 ina. Dig. K^-mQiSiaUiA
sss
78 BODTHBASTEiaN BBFOETBB
(W.Ta.
4. Trial (| 29{^}— Cbobsiiio AccmsHT— l!f-
STBUCriON.
An instraction In such a case, antiioriKliiK
the jury to find (or the plaintifif, if they be-
lieve from the evidence that the crossing was
OQt of repair and in an unsafe condition, and
the defect therein waa the proztmate cause of
the injut7, aided by other inatructiona given
for the defendant, propounding an inquiry as
to the existence oi contributory negligence and
clearly stating what ii meant by proximate
cause, may pro^ly be given in an action for
damages for injury nutained in audi manner.
[Ed. Note^For other cboh, lee Trial, CenL
Dig. U 703-717; Dec Dig. i m*]
6. Railboadb (I 361*>— CBoBSiNa ' Accident
■— iNSTBUCnON.
An instruction in such case autiiorizing a
verdict for the plaintiff, if the jury believe the
servaota of the defendant in chai^ of its en-
ine, by the exercise of ordinary care, could
ave discovered the vehicle and avoided injury
thereto, is proper, although binding end the
evidence upon, which it is baaed circomscantial,
ctmsisting of the facts and circumstances at-
tendant upon the injury. As the act of negli-
gence to which such an instruction relates, if
establiabed, is necessarily the last one of the
traneactioD and therefore the proximate cause
of the injury, the instruction need not cover
other phaaei of the case.
[Ed. Note.— For other cues, see Railroads,
Gent Dig. H 1193-12U, 1215-1216; Dee. Dig.
I 361.*1
• Error to Olrenlt Ooort, Webcel Oonntar..
Aetbm by John Roberts against the Balti-
more & Ohio Railroad Oompany, a corpo ra-
tion. Judgment for plalntlfl, and defendant
brings error. Affirmed.
Thomas P. Jacobs and F. V. lams, both of
New Martinsville, for plaintiff In error.
John F. ThockmortoD, of Hundred, and Ei. L.
Boblnson, of New Martinsville for defendant
in error.
POFFBNBAEGER, P. On appeal from a
Judgment of a justice the plaintiff recovered
a verdict and judgment for . damages for the
alleged negligent destruction of bis hay baler
and Injury to other property on a highway
crossing over the defendant's railroad. The
crossing being out of repair, the baler caught
on one of the rails of the track, as it was
being driven across the same, and before It
could be detached one of the defendant's en-
gines struck It and destroyed it together
with some other property connected with or
attached to It, and Injured and damaged the
plalutlCTs horses and harness.
[1] The filing of an amended declaration
after the jury had been impaneled and sworn
was the occasion of a motion for a continu-
ance, the overruling of which Is the ground
of one of the assignments of error. A com-
plaint, called a declaration, setting forth the
nature of the plalntifTs claim and an ac-
count, containing an Itemization thereof,
were filed with the justice. The amended
declaratl(fti or complaint amounts to nothing
more than a restatement, with more partic-
ularity and formality, of the claim filed with
the justice. It introduced no new ground
•Tor otlwr coHB
of action. The declaration or complaint filed
with the justice called the machine a hay
press and the amended declaration designates
It a hay baler, but this difference in name
Is not suggestive of a new subject-matter;
"hay press" and "bay baler" obviously mean-
ing the same thing. An amendment to a
pleading made at the' bar does not of Itself
confer right to a continuance. The cause
therefor must appear from the nature of
the amendment or be shown in some other
way. Koen v. Brewing Co., 69 W. Va. 94, 70
S. E. 1098; Bank v. Hamilton, 43 W. Va. TO,
27 S. E. 296; Anderson v. Coal Co., 12 W.
Va. 526. The baler was a portable machine,
carried on two trucks or axles, connected by
a reach or coupling pole. The whetis were
much lower than those of an ordinary wag-
on. In the reach or coupling pole were two
pins or bolts, extending slightly below it,
and distant from the front axle, respective-
ly, about two feet and ten Inches and four
feet and five Inches. Tb& plalntHTa agmt or
servant attempted to cross the track fnmi
north to south. From the south rail of the
track there was'a considerable drop, by rea-
son, of the earth having been worn away or
the traA having been bvllt abore the snr-
fase of the roadbed, or both. As to the d^>th
of this depression, there la some conflict In
the evidence, but none as to Its exlst^ce. At
the crossing tiiere la a switch or side track
as wen as the main tradt, and the evldoice
tends to show a depression between the
tra<&8. As to whether "there was a board or
plank on the ends ot the tlea outside of the
soutti rail of main track there is some
conflict, bnt there Is evidence tending to
prove there was none. When the front
wheels of the baler went over the south rail
of the main track into the depression, the
first bolt or pin In the reach caught on the
rail. By means of a jack It was detadied,
and then the other one caught, and pending
the efforts of the teamster and the boy who
was with him to detach It the engine camie
upon them and struck the baler. The colli-
sion occurred In the evening a little after
dark. The crossing Is either In a curve or
very close to It The headlight of the engine
would not, for this reason, reveal the baler's
pres«ice at a distance of more than 15 of 20
feet, and the engine was running at a rather
high rate of speed, 20 or 25 miles an hour.
The engine crew and another witness say the
crossing signals were given. There was no
light on' the baler, nor did the teamster or
boy endeavor to give any signal to the ap-
proaching engine or In any way disclose their
presence upon the track. When the teamster
came to the track, train No. 4, going east,
. was just about due, and he waited until it
passed. Train No. 55, going west, was due
at the crossing only a few minutes later.
All this he knew, but started to cross In this
short interval of time, assuming his abUIty
I same topic and nctton NUUBBR In Dec. Dig. * Am. Dig. K^^^&^feT
BOBSRTS T. BALTIlfORE A O. B. 00.
369
to do so wlfbottt mishap. The baler was
atmck by a loose engine, a helper, going west
ahead of train No. 65. It w^s an extra not
scheduled, and for all that appears the baler
might have been detached before the arrlTal
of train No. 65.
[2, S] As railroad companies In making and
maintaining pnblic crossings over their tracks
assume and dlsdiai^, in obedience to the
statute, the dnty ordinarily Imposed by law
upon county courts respecting highwajrs, and
provide and maintain them for the same pur-
poses for which coqn^ courts construct and
maintain highways, the due performance of
that duty Is tested by the rules and princi-
ples applicable to county courts, respecting
performance of their duties relating to high-
ways; and the duty of a traveler over such
a crossing is the same as that pertaining to
bis use of other portions of a highway.
Hence, what would amount to contributory
negligence on the part of a traveler on any
other portion of the highway would consti-
tute contributory negligence In tils use of a
crossing, and, If Injury in either case Is
caused by such negligence, there is no right
of recovery. This defense is relied ui>on
here in resistance of the rulings of the trial
court upon instructions and also upon the
motion to set aside the verdict Hence, the
Inquiry Is a very material and important
one. If the plaintiff's agent, knowing the
character and extent of the defect and dan-
ger, deliberately assumed the risk or hazard
incident to the attempt to cross, his act was
binding npon his employer. Under prind-
jjles declared In Shrlver v. County Court, 66
W. Va. 685, 66 S. B. 1062, 26 L. R, A. (N. S.)
377, Phillips V. County Court, 31 W. Va. 477,
7 8. IX 427, Moore v. Huntington, 31 W. Va.
842, 8 S. SL 612, Hesser v. Grafton, 83 W.
Va. 548, 11 S. B. 211, CampbeU v. Elkins,
68 W. Va. 308, 62 S. B. 220, 2 L. R. A. (N. S.)
159, and Slaughter t. Huntington, 64 W.
Ta. 287, 61 S. B. 156, 16 U R. A. (N. S.)
469, there can be no recovery. If the dan-
ger was obvious and the risk assumed. It
vras not negligence in the plalntifF to send
the vehicle npon the public road because of
its peculiar character or construction, hot. In
attempting to nse defective portions of the
road, he was bonnd to take Into consideni-
tion the character of the vehicle. He select-
ed It for such use and knew Its character.
If the depression was known to the driver to
be as deep as some of the witnesses say It
was, he must have known the attempt to
pass over it with the baler was hazardous,
Imt bis knowledge of the exact depth and
character of the depression is not shown,
and, owing to the lateness of the hour and
darkness, he may not have observed Its depth.
Knowing nothing to the contrary, he could
presume the crossing was reasonably safe.
Daniels v. Ctounty Court, 68 W. Va. 676, 72
S. £. 782, 37 L. R. A. (N. S.) 1168. It was
manifestly not negligence In the driver to
attempt to pass over the tra<^ immediately
after a train had gone by, In the absrace of
proof of the obvious approach of another or
a signal Indicating Its approach. With his
vehicle thus fastened on the track and un-
able to go forward, there was a duty upon
the driver. If practicable, to protect himself
from approaching trains by keeping a look-
out and warning them of his presence, unless
he had reason to believe his detention would
not be of sufficient duration to prevent him
from getting ofT the track after hearing
train signals for the crossing. In this con-
nection he was entitled to take into consid-
eration the Implements he had for eflFectlng
a detachment of the machine from the rail.
He had a jack suitable and convenient for
such purpose. By its use be relieved him-
self from the first Impediment, and was en-
deavoring to get relief from the second by
the same means when the collision occurred.
These circumstances Indicate lack of reason
for belief that he would be detained for any
considerable length of time. His embarrass-
ment, according to his own testimony, oc-
curred unexpectedly, and he had little time
in which to determine his course of proce-
dure. It was dark, and he had no light with
which to give a signal. He may have thought
the danger would have been Increased rather
than minimized by the consumption of time
requisite to the procurement of a light with
which to give signals. Under these circum-
stances, the question of contributory negli-
gence was one for Jury determination. In
cases of sudden emergency the law makes
allowance for errors in Judgment The test
is good faith and abstention from voluntary
risk. Mannon v. Railway Co., 66 W. Va. 554,
49 S. B. 450. Hence the verdict cannot be
disturbed, unless the conrt erred in some of
Its rulings In the course of the trial.
At the instance of the defendant, the Jury
were fully Instructed as to the duty of trav-
elers upon highways to exercise care for
their own safety, the effect of contributory
negligence as a bar to recovery, and the du^
of the plaintUTs servant, when he found liim-
self detained on the track, to nse diligence^
if practicable, to give such notice to ap-
proaching trains of his presence there by
signal or otherwise as ordinary prudence re-
quired under the circumstances. An Instruc-
tion upon the law of concurrent negligence
and another upon the duty of the plaintUTs
agent to give notice of his presence upon the
track by signals to approachli^ trains were
refused. As the defense of contributory
Diligence had been clearly brought to the
attention of the Jury, the subject-matter of
the Instruction on concurrent negligence was
suffldently covored by those given. The
Jury were told the plaintiff could not recover
if tils negligence in any degree contributed
to the Injury. Defendant's other proposed
instruction, refused by the court, omitted the
element of Judgment as to the necessity of
giving signals under the circumstances. This
omission Justified 'eft^^ th^^o^^^5grt_-
360
78 SOCTHOASTB^ BHIFOBTBB '
binding Infraction, omitting any reference
to one ot the issues fairly presented by the
evidence.
t4] PlalntiCTs InstractloD Mo! 1 merely as-
serted the duty of the defendant to keep
the crossings over Its tracks In repair and
In a reasonably safe condition for wagons
and t>ther vehicles. His lustrnctlou. No. 2
authorized the Jury to find for the plalntlfT,
if they believed the defendant had failed
and neglected to keep the crossing in quea-
Uoa in repair and reasonably safe, and its
foilure to do so .was the proximate cause of
the injury. It is said these Instructions
wrongfully impose duty to keep the approach-
es to the crossing In repair, though beyond the
right of way of the defendant There is do
evidence that the depression In question was
beyond the right of way of the defendant
Though instruction No. 2, binding as it la,
says nothing about the issue of contributory
negligence lu terms, it requires the jury to
find the n^llgence of the defendant was the
proximate cause of the Injury. The mean-
ing Qf proximate cause is clearly shown in
Instruction No. 3, given at the Instance of
the defendant, though not formally defined.
Had it not been thus disclosed, plaintiff's
instruction No. 2 might have been mislead-
ing t>ecause of * Its generality. It inserts two
conditions, telling the Jury they must find
the defendant was negligent, and that its
negligence proximately caused the Injury,
before they could find for the plaintiff. In
other words, instruction No. 2 Is sound and
complete, covering the whole case In general
terms, some of which are defined In other
instructions. Thus read, it does not ignore
contributory negligence as a defense.
[I] PlalntirB Instntctlon No. 3, likewise
Idadinc, antborlced a verdict for tba plalu-
tur, U the jury should believe the defend-
ant's servants, 1^ the exerdse of ordinary
care, could have discovered the baler on the
track and avoided injury thereof. There
was no dltoct or positive evldenoe that the
engLne crew could have discovered the ob-
struction on the track, If they bad bem keep-
Ins a lookout for It, In time to prevent the
Injury, but the drcnmstances may be regard-
ed as evidence proper for jury conaideratlon
upon that question. It was early in the
evening, just after dark, and the ra^ne,
pulling no train, could have been stopped in
a much shorter distance than If It had been
drawing one, and the curve in the road at
that point is not definitely given. Of course,
it Is error to give an instroction for which
there Is no Msis In the evidence at all, but
slight evidence only is required for such
purpose. This instruction propounded an
inquiry as to an act of negligence which, if
established, was necessarily the last one in
the transaction, and therefore the proximate
cause of the injury. For this reason tt
could properly be made binding, though it
did not cover all the Issues'ln the ca&e. Con-
sidered as a whole, the instructions fairly
pi%sented to the Jury all the issues developed-
by the evidence.
These conclusions result in- afflmiance of
the judgment,
<n w. Ts. Ml)
BBTNOLDS v. BBXN0LD8.
(SnviUM Court of Appeals of West Tlrgiala.
AprU 29. 191S.)
(Syllalva by the Court.)
1 DivoBCE (S 287*)— Appsai^Subsequsht
PaocxBoiiros Bklow— Allowahcx or Au-
■oirr.
On an appeal by the husband from a de*
cree granting the wife a divorce a mensa et
thoro, and decreeing a conveyance to the wife
of the hnsband's real estate as permanent ali*
mony, the decree as to seperetlon was afflrmad,
but, in respect to taking lands for alimony,
was reversed, and the cause remanded, with di-
rection to the lower court to enter a "reason-
able money decree" for alimony. Held, that
the chancellor has discretion to allow alimony
from the date of the decree of divorce.
[Ed. Note. — For other cases, see DivoreSk
Cent Dig. i 771; Dec. Dig. i 287 •}
2. DivoBCE (S§ 210, 286*)— Appeal and Eb-
BOB— Amount ot Aliwony— DiscsmoH.
The amount of alimony proper to be al-
lowed depends upon the wife's needs end sta-
tion in life and upon the husband's means and
ability to earn money; and the chancellor Is
vested with a wide Judicial discretion in deter*
mininf what is a proper amount, and Ms find-
ing will not be disturbed unless it clearly a[^
pears that he has. abused his discretion.
[Ed. Note.— For other cases, see Divorce,
Cent Dig. H 675-678. 980. 709. 770; Dec. Di(
US 240, 236;* Appeal and Brror, Gent Dlg,l
688.]
Appeal from Circuit Court, Wood Coont?.
Suit by Emma F. B^nolds against Wil-
liam O. Reynolds. From a decree Cor plain-
tiff, defendant appeals. Affirmed.
J(dm F. lAlrd, of Farkersbnrg, for appel-
lant Thomas Colonan, ot Parknsbnrg; tta
appellee.
WIIiLIAMS. J. This is the second appeal
lu this divorce suit, both taken by the hus-
band. The decision on the former appeal Is
reported In 68 W. Va. 16, 6» S. B. 881, Ann.
Gk& 1912A. 889, and contains a statement
of the facts. The two decrees first appealed
from were rendered on the 20th of December,
1907, and the HOth of Decembw. 1908. re-
spectively. The former granted tlie wife a
decree of divorce -a mensa and decreed a
conveyance to her of cwtaln real estate in
I:'Brkersburg. owned by her husband, as per-
manent alimony, and the latter, rendered aft-
er the filing of an answer and cross-bill by
the husband, who had theretofore been pro-
ceeded against by order of publication, sim-
ply confirmed the former and decreed costs
against the husband and Ills surety on his
bond! Thia court reversed the first decree
In respect to the taking of roa! estate,
•Far etasr Mam sm same tople sad saeUon MVMBBB la Dm. XUa. * Am. Dig. K^^Q^^
CHAMP T. jnmpIiAS CX}UKTT CCtl^BT
361
lUnunVf and flie aecond In respect to oosta^
uod affirmed ttiem In all other respects, and
remanded the cause, wltti direction to the
lower AoDXt to render a "reaaoiuitile mosey
decree" for alimony. Thereuiion, on the 8tb
of Febmary, 19U, the lower ooort determin-
ed l^t |12 jfet month, payable In quarterly
SuBtaUmaiti of fSd, during the J<4iit nves of
husband and.nlfe, or nntll titulr recondlla-
tlm, waa a reamnable alimony, and deoeed
,tbat it he paid from the 20tb of December,
1807, the date of the decree aKieated from.
It aicertained that 9444 waa due as <tf the
20th of January, 1911, and credited that
sum with f22^JlX, the coets of the api>eal
which it was decreed the wife should pay,
thna leavlDg a balance of 9219.45 for the
taosband to pay on account of back alimony;
and out of that sum the court decreed 9177
to the wife's counsel, of wbich 91&0 was for
bis fees for serTices rendered in bar behalf
in tbe lower court and in this court, and
|Bi7 <m account of costs paid for her. From
that decree the present appeal was taken.
[1] It is insisted tbat the lower court did
not follow the mandate In that U did not
enter a decree for appellant's costs incurred
in the prosecution of tils appeal, and allowed
an unreasonable alimony. This court de-
creed, costs of the aK)eaI against the wife,
and it was therefore not necessary for the
lower court to do more than enter the man-
date upon its record, so far as it related
to the matter of costs. The man^te^ by
virtue of the statute, became the decree of
that court. Section 29, c 185, Code 1906.
Execution for co^ta was not necessary, b»
cause the decree sow appeided from gave
credit for the cocrts on the accrued alimony.
Tbat amoimted to an actual payment of the
costs.
ThB wife waa entitled to alimony ttom the
date of the decree of aeparaU<m, and the
court had BO decreed; but it erred in taking
ttie husband's real estate In satiafactlon
thereof, and for that reason, that part ot
the decree was reTersed, and the cause was
remanded, with direction to ascertain a rea-
sonable idlmony payable In 'money, bnt the
decree divorcing the partiea from bed and
board was affirmed. The mandate fixed no
time from which alimony should begin to run.
That point was not adjudicated by this court
it was therefore left to the discretion of the
chancellor. He had the rlgbt to make the
alimony relate back to the time of that de-
cree. "The time of allowance (of alimony)
like the question of amount is in the discre-
tion of the court, and may. according to
some antborttieB, be made to relate back to
tbe commeooenMut of the snlt" 8 lfin& Ia
& P. 130; 14 Oyc. 788. The Supreme Court
of tieorgia held that it waa proper and usual
to make it relate back to the commencement
of sulL Bwearlngen t. Bwearlngen, 19 Oa.
266. See, ajso. Gay t. Gay. 146 CaL 2B7, 70
Pac. 885. But it is only necessary tm us
to dedde tbat it was proper to make tbe
allowance b^(in at tb» date'of the dame of
divorce, and that Is all we now decide.
[2] The conH allowed $12 per month, pay-
able In quarterly tnsitallments.of 936 «adL
TtOa was certainly not unreasonable. The
wife was given the care taiA curtody of an
infant daughter; tbe only other child was
of age. The husband owned one-fimrth
interest In a vacant lot In Parkersburg. val-
ued at 91.000, and worked as a eommm la-
borer, earning about 920 to 92S and his
board per month. The wife lived in a rent-
ed room for whidi she paid 93 per month
and did such house wiftk as she eould find
to do, thereby earning email sums of money
to aid in supporting herself and daughter.
The amount of alimony proper to be allowed
depends upon the wife's needs and her sta-
tion in life, and upon tbe husband's means
and ability to earn mcmey. It Is a matter
within the sound discretion of the chancellor,
and this court wlU not disturb Ills finding,
unless It clearly appears that he' has abused
it Henrle v. Henrle, 76 S. E. 887. There
has been no abuse of discretion In the pres-
ent case.
The allowance of fees to appellee's coun-
sel out of the wife's alimony Is not a mat-
ter of whidi appellant can complain. Those
fees were not decreed against Mm or paid
out of suit money furnished by him, but out
of the wife's allowance tor alimony there-
tofore accruing.
The court did not allow costs to appellee,
and that is crMS-asslgned as error. By the
decree first appealed from, it had allowed
her costs against her husband and bis surety
on his bond. But this court reversed that
decree in respect thereto and reserved no
right to again deal with tbat matter. The
question of costs has therefore been finally
adjudicated. For the lower court to have
rendered a decree for costs against the boa-
band, after it had once done so and this court
Iiad . reversed its decree,' would have been a
vl<^ilon of the mandate. Ihe dfect Is that
each party must pay his own costs in tbe
court below.
The decree will be affirmed, with costs to
appellesi
(71 W. y«. 47B>
CHAMP V. NICHOIUAB COUNTY OQUHT
et aL
(Snpreaie Court of Appeals of West Tic^nia.
May 6. 1913 J
(BftUtm* tke Ovmi.)
1. BiaivKrr Douaik (| 276*)— IimTi*CTtOE»—
Road E^abubiieo bt AOQinxsCHinJB —
Right to Use—Estopfbl.
Where a landowner, with fall knowledge
and without protest, permits a county court.
under bona fide claim of right or an agrewnent
'For other c«Mt am tmmm toplo wid Mctkm NVUBSB In Dm. Dig. * Am. Dig. Kty-
362
TB SODTHEASTBBN BBPOBTBB
(W.Va.
evincing Intent to dedicate a tu for a pnblic
highway, to expend money and labor in fitting
it for such ose, he cannot, after establishment,
maintenance, and' public use thereof contlno-
OQsly for three years, prerent by injunction
further oae at the land for the purpose oo in-
taided,
lEd. Note.— iViT other cases, see Eminent I>o-
main, Gent Dtg. f 774; Dee. Dig. i 276.*]
2. EBTOPPBX a SO*) — ObOURDS — ACQITZBS-
CBNCB.
When a party, with full knowledge of his
risbt and all material circumstances, &eely and
advisedly does anything which amounts to rec-
ognition of a transaction, or acts for a consid-
erable length of time In a manner incoasistent
with its repudiation, there is acquiescence;
and the' transaction, although origioally Im-
peachable, becomes nnimpeachable in equity.
[Ed. Note.— For other cases, aee Estoppel,
Cent Dig. H S42-244, 2^^; Dec: Dig. t
8. ESTOPni. (I 93*) — GXOUNDB — AOQUIES-
CENCE— Tim.
Acquiescence may t>ar relief In a very
short period. Where one stands by without
objection, and sees others dealing with proper-
ty in a manner inconristent with his right, and
by bis silence permits or encourages them to
part with their money or property, be cannot
complain. His silence is ac<iuiescence, and
estops blm.
Tiid. Note.— For other cases, see Estoppel.
Gent Dig. U 2G4-276; Dee. Dig. | SO.*]
4. DxincATioir Q 88*)— Ixplied Dedicatior
—AccEPTAHCB— Right to Rccaix.
If the acts of the landowner are such as
would fairly and reasonably lead an ordinarily
prudent man to infer an Intent to dedicate a
way for a public hlj;hway, and they are receiv-
ed and acted upon by the public, the owner can-
not, after acceptance by the pablie, recall the
appropriation.
[Bd. Note.— For other eases, see Dedication,
Gent Dig. » 77, 78; Dec. 1^ I 8&*]
5. DKDIOATIOH (I 16*)— IHPUBD DlDXOAIIOIt
—Estoppel— Sbcbet Intent.
Begard is to be bad to the character and
^ect of the open and known acta, not to any
latent or hidden purpose. If they are such as
to Induce the belief that the owner Intended to
dedicate tbe way, and the public and individu-
als act upon such conduct as if in fact there
had been a dedication, and acquire rights which
would be lost if the owner were allowed to re-
claim the land, the law will not permit him
to assert Qiat there was no dedication, no mat-
ter what may have been his secret Intent
(Ed, Note.— For other cases, see Dedication,
Gent Dig. U lS-49; Dee. Dig. 1 16.*]
Appeal from drcalt Court, Nli^olas
Coanty.
Actl<Hi by B. T. Ohamp against 0ie County
Oourt of Nlcbolas County and others. From
decree for plaintUt, defendant luiined ap-
peals. Decree rerened, injunction dlBsolved,
and bill dismissed.
S. B. King, of Summersvllle, and HoUo-
han, McGUntic ft Mathews, of Charleston, for
appellant Brown de Elddy, of Ricbwood, and
T. G. . Townsend, of Cbarteston. f<Mr appel-
lea
LTNCH, J. From a final decree perpeta-
atlns an Iniunctlon restraining defendant
from remoring certain obstnietlons traced by
tbe plaintiff in the public highway, tbe le^I
establishment of whicb through his lands
is controverted, tbe defendant appeals.
In Jane, 1905, tbe county court of Nicho-
las county appointed viewers to locate a
way for a public road "leading from a point
on the, public road near J. W. Bragg's resi-
dence * • and extending to the mouth
of AngUns creek." with direction to report
at the next regular term. The report, made
pursuant thereto, shows that plaintiff's lands
lay directly between the terminal points des-
ignated in the order, and that the read as
projected passes through his lands. It af-
firmatively appears, and vlrtnally Is sot d»<
nled, that plaintiff joined with others In pro-
moting the establishment of the road over
lands owned by blm and others along the
route, although he did not sign the petition
to the county court therefor, because of his
temporary absence from the community at
the time the petition was prepared, signed,
and presented. It likewise also appears that
he was present, with other landowners, at
the time of tbe preliminary survey, when a
discussion arose as to claims for damages
to the several landowners, all of whom, ex-
cept plaintiff, then agreed not to assert
claim therefor If all Joined therein, to which
plaintiff at first refused his consent But
the proof shows, and plaintiff snbstantlaUy
admits, that he then stated that he would
give the land for the road provided it was
located and opened along his outside farm
line; tbe reason SBSlgned by him therefor
beii^ that thereby he would avoid the neces-
sity and expense Incident to the construction
and maintenance of laiw fences. The view-
ers thereupon changed the route, complying
with his suf^estlon, and later reported to
defendant, the county court, the way viewed
by them through the lands of plaintiff and
others whose lands were thereby affected.
But defendant did not, as required by section
36, c. 43, Code 1906, "appoint a day for hear-
ing the parties interested, and cause notice
thereof to be given to the proprietors and
tenants of the property, which would have
to be taken or Injured, to show cause against
the same" ; but, by an order entered of rec-
ord December 13, 1905, the court "located
and established a public road upon the loca-
tion as shown In the said report," and there-
by directed the surveyor of the proper road
precinct to expend thereon "the $40 donated
by G. A. Burr, Marshall McClung, and Ja-
cob Bays in opening said road on said loca-
tion from John W. Bragg's to tbe land of
Jacob Bays," the plaintiff's land fnterren-
ing between the two.
Plaintiff urges, as grounds for relief, de-
fendant's omission to comply with the statu-
tory provisions cited, and its failure to com-
pensate him in damages for his lands which
it thus attempted to appropriate to public
use. He also deniea that defendant In fact
eatabllsbed and opeied the road, aa a public
•Vsr ethsr esses sas suns toplo toA ssetion NUUBBR la Deo. Dig. * Am. Dig. Icii^Qjt^
W. VaJ t3H43iP T. NICHOLAS COUNTY COURT 363
highway, or that the pnbUc used the aame
as such since Its order of December, 1905.
He therefore insists that defendant Is with-
out warrant of authority to remove the ob-
structions placed thereon by him, and from
removing which he seeks to maintain the in-
junction awarded and by the circuit court
made perpetuaL
While defendant did not, as stated, strict-
ly comply with the formalities usual, In fact
required by statute, its failure in that re-
spect may, with propriety, be traceable to
plaintiff's conduct Acting upon the good
faith of his promise— and. In efTect, what be
said is the equivalent of a promise — ^not to
qlalm damages provided the road was lo-
cated as suggested by him, the viewers re-
ported, and the county court, as it might un-
der the circumstances, accepted as true the
report, that "neither of the landowners claim
damages." On cross-examination, to the
question, "When you reached the lands of
Mrs. Burr, did you in talking to the view-
ers, a A HcClnng and J. H. McClung,
and to a. A Bnrr. Jacob Bays, B. G. Skaggs,
and possibly others, state to them that. If the
road went outside of your field through your
Unds, yoa would not claim any damages on
account of said road going through your
land, or in substance that?" he replied : "Not
in them words. They was Qeorge Burr
brought up a conTersatlon to this effect-
says, *lt any of ns claims damage there won't
be any road.' I replied, and said that so far
as I was concerned there was all the road
I wanted, and If the road went through my
place that I had filed an account for damages
for ^ ; and George Burr says, 'If yon claim
damage, we will claim damage,* and I told
blm I didn't care who claimed damage, that
he could (dalm all the damage he pleased, and
In the conversation I remarked something
Uke this: That if I didn't have to build the
line [lane] fence through my place that I
wouldn't care so much, but if I had to make
a lane fence plumb through my place there
was going to be a big thing on me. Be con-
tended that they had lanes through their
place, that I had Just as well bnllt lanes as
them, and I told him as well as I mind that
they was done built, or something to that ef-
fect; but I said In the talk that if it would
go along the outside of my land that I would
l^ve the land along the ontslde of my line,
so I wouldn't have to build a lane fence.**
While, In his answer, he uses the words "out-
side ot my land," he evidently Intended, and
by the parport thereof assuredly did Intend,
to say and mean, on his land along the oat-
side line. The answer, taken as a whole, is
susceptible of no other reasonable construe-
tlon. He could not give, and presumably
made no <^er to give, laQds not owned or
controlled by him.
His claim that he filed with defendant or
Its clerk a claim for damages is without sat-
laCactory proof In Its support, and Is clearly
T^ted by proof deemed soffcimt for that
purpose. Besides, hot calling as a witness
the attorney or agent by whom the claim
therefor was prepared or presented, accord-
ing to his testimony. Justifies the presump-
tion that, if produced, such witness would
not only not support him in that respect, but
would testify to the contrary. Cooper t. Up-
ton,60W. Va. 649,654.648.ILS2S»aiid
cases cited.
£1] The testimony quoted, tending as it
does, although apparently evasive, to show
plaintlfTs consent to the estabUshmeut of. the
road through his land, without damages or
claim therefor, accords with the poaittve
statements of defendant's witnesses that he
did 80 agree. But be now asserts and in-
sists that the agreement is not legally con-
clusive against a subsequent right to with-
draw therefrom and require payment for
such damage, and that, until such payment Is
made or the road otherwise legally establish-
ed by the county court, he may obstruct it, ■
and by injunction prevent the defendant
from removing the obstruction and reopen-
ing the highway to public use. The author-
ities do not, under similar circumstances,
warrant any such pretensions. The rule an-
nounced by them Is to the contrary, as the
following cases, those dted therein and in
16 Cyc. 768, clearly show : Railway Co. v.
Perdue, 40 W. Va. 443, 21 S. B. 755 ; Railway
Co. V. Railway Co., 70 W. Va. 227, 73 S. B.
726; MyUus v. Koontz, 69 W. Va. 621, 73
S. E. 819; 1 E^lliott on Boads and Streets,
H 139. 146, 147 ; 2 ElUott on Boads and
Streets, SS 733-737; 1 Lewis on Eminent Do-
main, U 494, 495. As stated in Railway Co.
V. BaUway Co., 70 W. Va. 227, 73 S. B. 726,
the principle applicable to the facts of this
case, and that generally stated. Is to the ef-
fect that if an owner of land, with full
knowledge and without protest, permits an-
other, under a bona fide daim of right or
agreement therefor, to expend money in fit*
ting It, or any part thereof, for public use,
or for a nee public In its nature and pur-
poses, his remedy Is limited to an action at
la^Y to recover compensation for the land ao
taken and used. In the absence of an agree-
ment not to claim such compensation, and be
cannot, by the Injunctive process of the court,
prevent the use of the land for the purpose
80 intended. Under such circumstances, the
constitutional provision inhibiting the taking
or damaging of private property for public
use, without compensation paid or secured,
has no application. The entry and Improve-
ment on the lands, under an agreem^t waiv-
ing the amount and not fixing any basis for
compensation, or in case of dedication, or
with the knowledge and acquiescence of the
owner, operate as a waiver of the benefit ot
that provision. Its benefit is Intended for
those only who desire to retain title and poe-.-
session thereunder until compensation la fix
ed and paid or secured as therdn and others
wise provide^ and not for those who other-
wlae agrees "It a landowner mm Ot to
Digitized by VjOOglC
361-
78 SOtTTHOASTEBN' BSPORVBB -
(W.Va.
iwniilt ah tntry upon tils lands by a xall'
war company or an adjoining landowner,
under some sort of an oral agreement, and
la^ ezpenditares npon the talth of snCh
agreement or permission, carrying an as-
surance of a convince of the tltie to the
land or an easement thneln, bis situation is
sindlar to that of a vendor by verbal con-
tract, wboi the vendee has entered Into pos-
session and made substantial Improvements."
70 W. Va. 2S1, 78 S. Bl 728. Nor Is the
amount or character of Oe work material,
if It Is done on a public highway under the
dlrectl<A of the county court or Its proper
representatives, and Inures to the benefit of
the general public. Campbell v. Elklns, 58
W. Ta. 800. 52 S. B. 220, 2 Ii. B. A. (N. S.)
160.
. ' But plalnttff denies both permission to
enter and acquiescence on bis part to an
entry on his land, or any part of ft, by de*
fendanf s agents tax the purposes of prepare
Ing it for public use. But tike eWdence tends
to prove, and does snflidaitly prove, not
only that he assisted In promoting the estab-
llshment of the rosd, and si^gested <3iange8
In the location thereof on his lands, which
were thai made as so somiated, but also
that he knew the road was in fact opened
and used by the pilbUe whenever necessary
or convenient, and ttiat work thereon was
continued from time to time under the order
and direction of Uie proper i^cers and
agenfai of the county court from tlie aprtng of
1006 nnta obstructed 1^ him in IQOO, during
whliSi time It does not appear that he ob-
jected tttereta AlthouiAi he says, and by
Iffoof seeks to show, that he was absent from
file county when the work began, and that
he first observed the worii: on Us return
home In February, 1006, he admits that he
was present while ttie bridge across lAurel
creek, on lands claimed by him and a part
of the road so used, was In course of con-
struction, in fhct almost completed, and sub-
sequently when It was being r^lred, both
constmcUon and repairs being, as he also
then knew, by and under tibe authority and
direction of the defendant's road surveyor
having diarge ot the prednct wherein the
road Is located. The evidence tends to show
his presoice near and within the unobstruct-
ed, view of the road, while other and later
repslrs tiiereon through his lands were In
process by defendant's i^ientB acting under
its authority, althonsft he says he did not
see the men engaged therein — a statement
seonli^y somewhat Improbabla
It, I] Thus It will he observed t3kat from
time to time from spring of 1006 until
1000, without any notice or dissatisfaction
an- tab part, ex without any potest from him,
the county court not only <^ened the road
bf the expendltHire of the amount 'donated
by othw landowno* affected and the addi-
tional county funds necessary fbr that pat-
pose, and dlQ 'Work thereon, and that the
pobUe was using tbe same during that time
in flie manner and for ' the purposes for
whldi tt was Intended. The question then
preeoited for determination 1« whether, un-
der tiiese drcomstanceii and after Cbls delay,
plaiiitUf may restrain and prevent Hie coun^
ty' court from reiuovli^ tboe obstructlona
placed on tjbe road by the plalntlflL The fol-
lowing cases, with those already cited, an-
swer that question' In the negative: Hast v.
Ballroad 0>., 52 W. Va. 806, 44 S. IL 165.
Mann v. Peck, 45 W. Va. 18, 30 S. B. 206;
wher^ It Is said: ''When a party, with full
knowledge, or at least with sufficient notice
m means of knowledge of his rights and of
all material dreumstances of t3ie casc^ fredy
and advisedly dote anything which amounts
to the recognition of a transaction, ot acts
In a manner Incondetrat with Its repudia-
tion, or freely and advisedly, abstains for a
considerable length of time from impeadilng
it, there is acquiescence, and the transaction,
although originally tmpeadiable, becomes un-
impeachable in eqnl^." Fence v. Bryant^
64 W. Va. 268. 46 8. B. 276, Which holds that
■wb&x land has been dedicated ftxr a publle
street; and accepted by long use 1^ flie gen*
enl public as a street, so that retraction
would be hurtful to the public^ the dedica-
tion cannot be retracted, though no munici-
pal order ot action has aco^ted the dedica;-
tton, and it a valid street as between the
dedicator and his alienees anA tbe public;
Despard v. Despard, 63 "W. Vo. 443, 44 & B.
448. wherein It is held that *%cquie8cence la
a transaction may bar a party of relief in a
very short period. Where one has knowl-
edge of an act, or It Is done with hia fall ap-
probation, he cannot undo what has been
done ; and If he stands by and sees another
dealing with property In a manner Inconsist-
ent with bis right, and makes no objection,
he cannot afterwards tiave relief. Where his
silence permitted or encouraged others to
part with their money or property, he can-
not complain that his interests are affected.
Bis silence Is acquiescence, and estops him."
[4^ 11 1 Elliott on Roads and Streets. |
124, says: "The public, as well as individu-
als, have a right to rely on the conduct of
the owner as indicative of bis Intent If the
acts are such as woiUd fairly and reasonably
lead an ordinarily prudent man to infa an
intent to dedicate, and they are received and
acted upon by the public, the owner cannot,
after acceptance by the public, recall the ap-
propriation. Begard is to be had to the
character and ^ect of the <^>en and known
acts, and not to any latoit and hidden pu>
pose. If tbm open and known acts are of
such a character as to induce the bdlef that
the owuOT intended to dedicate the way to
pabUc use, and -fhe pabUe and individuals
act upon such conduct, proceed as If in fhet
there bad been a dedication, and acquire
rigMs which would he lost if the owuot Were
allowed to reclaim the land, tAen Uie law
will not pffftnlt blm to assert that thwe was
Digitized by OOg IC
W.Va.)
Asa T.
365
AO Intent to dedicate, no matter irtiat may*
have been tais secret tn'tent"
Tbe conctusloii Is to rerene tb6 decree of
October ' 25. 1909, dlssolTe thcr ' llijnncUon
awaited June 18, 1909. and dtomlBs the blU,
with coBts and damage as reqidred hj lav.
(71 W, Tfc 238)
ASH et aL t. LYNCH et al,
fliQmim Goart of Appeals (ff West VlTftnla.
Uanhl&iaiS. Behaarinc D«bM
llaar 29, 19iaj
(Byllabut the Court.)
L BqpiTT (S 181")— ANBwift-TniB or Filinq
— "FiHAi. DECwnt."
A decree appealable as one adjtidfcatinsr the
Erinciplea of a cause la fioal, within the mean-
ig of section 03 of chapter 125 of the Code.
[Ed. Note.— For other cases, see Equity, Cent.
Dig. S 417 : Dec. Dig. | 181*
For other definiHona, see Words and Phrase*,
Tol. 3, pp. 2774-2798 ; ToL 8, p. 7663.]
2. EQniTT (1 181*) — AirswEB — TniK or FiL-
IKO.
Although a decree has heeo prononnetdt
signed, and directed to be entered, aa answer
ma; be filed in the cause, if it has not been
actually entered in the order boot
[Ed. Note.— For other cases, see Eqnitj, Gent
Dfg. S 417; Dec. Dig. | 181>1
8. EqmTT Q 181*)— AnawBBr-TzHK or FiURO
—Final Decbei. '
That, in such esse, the defendant prerent-
•d entry of the decree by taking It and the pa-
pers In the cause froqi the clerVs office of the
conrt, does not juMlfy rejection of the aeiwer
or denial of leave to file IL
[Ed. Mottr-For other mam, m» Bqnlty, Cent
Diig. I 417; Dec. Dig, 1 181.*]
4. Eoum <| 184^)— Amwu— SumciBNOT.
In aniver denying tbe contract alleged by
the Mil, hot in affirmative or negative terms, hut
by statement of the same contract with condi-
tions or limhatlonB not mentl<Hied in the blU, ii
defensive and anffident, If the tmth of its aver-
ments would preclude relief sought by the bilL
[Ed. Note.— For other cases, see Equity, Gent
Dig. is 422-^; Dee. Dig. f 184.*]
fi. Eourrr ({ 186*)-'An8web— SurpiciENcr.
Such an answer cannot be rejected for mere
omission of admission or denial of other por-
tions of the bill not conclusive of the case.
[Ed. Note.— For other caeea. see Equity, Cant
Djf. II 426, 427; Dee. DigTl m*]
Additional Bytlahtu by B^toriaS Blaff.)
0, Appeal and Ebhos (| 194*)— Objection
Below — Necessitv— Infobmautt in Ah-
BWEB.
Objections to mere informaiitieB ia an an-
swer will not be reviewed, when not presented
below.
[Ed. Note.— For other cases, see Appeal and
Error. Cent Dig. H 1241-1246; Dee. Dig. ft
194.*]
Appeal from Orcnit Court, Harrlaon
Cbunty,
^Action by Lutber G. Ash and otiiers against
V. S. I^nch and others. From Jadgmeiit for
plaintUFs, defendants Lynch and Broadwater
appeaL Rercmed and remanded.
•For ettiw oases see nma teplo and seotioa NUMBBR In Deo. Dig. A Am. Dig. Key-IfiiiggMM*}^ '
Cbas. B. "Hogg, at Ht^rgantbim. F. O. Sot-
ton, of Clarksburg, and Howard A Blnganmh,'
for aplpellants. George M. HofEbelmer, of
Clarksburg, for appellees.
POFFENBAB6BR, P. Rejecting tlte an-
swer tendered by tbe defendants and ref na^
Inff to pennlt tbem .to file It, on account of
delay in the tender thereof and Inanfflclency
In form and sat«tance, tbe conrt entered a
decree against them, tegnlrlng the aaslgn-
ment to the plalntUBs ot an nndlylded one-
eU;hth Interest In a certain leas^old estate
and a gaa vtSi thereod, together wlth tiie
casing, taUng, plpeo, and fltttnga thereof,
and farther reaoMng tbe defendants to pay
to the plalntlfls the aqm of 92,066JJ8, whkh
was adjudged to be a lien apo& the residue
of the le^a^old estate, gas wdl, casing,
pipes, and fitting, under the mecbaalc'a Usd
Btatato, and ordering a sale of that interest
to satisfy tbe lien In case of default in pay-
ment
Process In the cause had been made re-
turnable to June rules, 1911. On the 26th
day of Aognst; 1911, tiie pWntUb uecnted
and delivered to the defendants a written
proposal of settlement on the basis of pay-
ment of $2,100 and the conveyance of the
one^^th interest In tbe leasehold estate,
within 80 days from the date thweof. On
the eiidcatl<m of ttiat tbne, September 37*
1911, paymoU not havlag been made nor the
assignment executed, the plaftntUb pr^iared
a decree Which tbe ooort approved, signed,
and directed to be ratered. On the same
day the defendants withdrew from the
clerk's office all the papers In the causes In-
cladins Che taift of the decree^ and retained
the aame In tbelx possession untQ the 8d day
of Oetotter, 1911. at which time the^ tender^
ed and asked leave to file th^ joint and
s^Mrate answer to the bll^ and sai^orted
their motion by the affidavit of «ie of tbe
d^cvdants, setting forth, by way of enruse
for delay, the pendency of negotiations fbr a
compromise of the matters In difference,.
The plaintifTa objected to the filing of the
answer and moved the court to reject It. on
the ground of its having been tendered too
late, and as being Insufficient Tbey also
filed an affidavit denying the statements con-
tained in the one filed on behalf of the de-
fendants. On this Issue of tact, the court
found for the plaintiffs, rejected the answer,
and entered the. decree.
[Il As the decree Is undoubtedly one set-
tling the principles of the cause, it Is final
within the meaning of the terms of section
S3 of chapter 125 of the Code, permitting
the defendant to file his answer at any time
before final decree. This conclusion Is the
logical result of principles declared In Bar-
bour, Stedman ft Herod v. Tompkins, SS
Va. 572, 82 S. B. 707, 8 L. R. A (N. S.) 7l5.
[2, S] As the decree, though pronounced,'
signed, and directed by the cdnrt to be' en-
866
78 SOUTHEASTERN KEPOBTBB
(W.Va.
tered upon the record, bad not actually been
entered tbereon, when tbe answer waa ten-
dered, the case Is governed, in tbla respect,
by tbe decision In Bean et aL t. Simmons, 9
Grat 889, unless tbe conduct of the defend-
ants. In taking tbe papers and decree from
tbe clerk's office and tbereby preventing the
flntry thereof, couBtltntes ground for an ex-
etpOm from tbe rule declared therein. It
does not; for tbe reason that the answer
might bare been tendered on tbe very day
on which tbe court pronounced the decree, If
tbe other method of prerention of entry had
not bem adopted. If the answer was insuffl-
drat In substance, ahowlng no defense, the
court was Jnstifled In rejecting It, although
tendered before the entry of tbe decree.
W Most of the grounds ot objection set
forth In the argument here go to the form
rather than tbe substance of the answer,
and presnmptlTely were not brought to the
attention of the court below; for no excep-
tions are indoraed on It, nor does the decree
show any apedflcation of defects as grounds
of objection. The course of prooeduie in
such cases, approved In Bogras t. Terlander,
ao W. Ta. 619^ 6 & B. 847, was «t obserred.
Hoice obJectloiiB as to matters of form were
waired.
14, 1] The daim of tbe plalntUCa aaserted
by the blU was for compensation for the
drilling of a gas well at tbe mice of flM a
foot, on account of which they were to take,
In part payment, an aarignment of a one-
elc^th Intwest 1b the leaseboUL To compel
tbis assignment, and mforoe an alleged me-
dianlc's lien upon tbe leasehold for the res-
idue of the demand, tbe salt was brought.
Then was an additional Item of ISMJiO, the
nine of 780 ftet of toMng at 70- cents a
foot, which the bfll aUegss the defendants
agreed to pv. In ease It should be neces-
sary to leaTe tbe tubing In tbe wall, and
such necessity is allied In tbe bllL The
depth of tbe well is allied to be 2,406 feet,
and tbe contract provided for tbe drilling of
a well at least 2,600 feet deep, unless oil or
gas should be discovered In paying quantities
at a lesser depth. Neither denying nor ad-
mitting in express terms the entire state-
ment of the bill as to the contract respect-
ing the depth, tbe answer says the weU was
to be drilled Into the oil and gas sands, or
until oil or gas should be discovered In pay-
ing quantities, but avers the inability of the
respondents to ascertain definitely the depth
of the well, and calls for foil proof as to it
It Is argued that although the answer may
contain in other portions thereof matter of
defense sufficiently averred, the court could
reject it for want of an express admission
or denial as to the depth of the well, and
tbe amount ot compensation due. Granting,
for tbe purposes of argument the right of
plalntltfa to an express admission, or denial
as to tbe dopth oC tbe well, the extensive
consequences claimed In tbe brief do not
follow. None of the authorities relied upon
for the proposition go so far. They say such
failure as Is charged subjects the answer to
right of exception; but the ezceptiott would
not wholly destroy It, if it contains matter
of defense sufficiently averred. Such an ad-
mission, if unavoidable, would dispense with
necessl^ of proof of the allegation, and the
plaintlifs are ottliled to be so relieved; but
failure to deny the allegation relieve from
necessity of proof, and thns fully effectnates
the plalntifTs' right in that respect
Admitting an agreement to assign an eighth
Interest in the leasehold in part payment of
tbe contract price for drilling the well, the
answer sets forth as part of the contract a
condition or limitation not mentioned in the
bill. The bill says the Interest In the lease-
hold was to be taken upon a valuation of
$1,000. The answer says it was to be taken
at a valuation of ¥1400, If tbe well should
turn out to have a productive capacity of 4,-
000.000 feet per day ot more» and then avers
that it has such capacity, and that the plaln-
tiffs have declined to receive an assignment at
a Talnation of 11,100. The sufficiency of
this averment Is challenged, because It does
not show when the agreement was made,
nor that the defendants were willing to as-
sign at a valnatloa of $1,100^ ai^ says dis-
agreement as to this was one reason for not
having made the assignment Fairly read,
the arerment makes tbe condition a part of
the original contract, and substantially states
the controversy as to tbe capacity of tbe well
prevented the assignment An agreement not
to assert a medumlc'B lien Is set up by the
answer, and also an agreement to allow the
defendants a reasonalile time In which to
sell a portion of the leasehold for sufficient
money to pay what should remain due after
the application of the value of the one-
elgbth interest There Is also a denial of
liability for the casing, accompanied by ad-
mission of liability for the use of it at 10
cents per lineal foot As to the claim for
casing, tbe answer admits the portion of the
contract, as stated in the bill, but varies from
It' as to the residue No affirmative relief is
asked. All the matter of tbe answer is pnre-
ly defensive, and we have no doubt whatever
of its sufficiency, though it may be subject to
exceptions for formal defects.
With this answer In, no decree should have
been entered, because the bill was not aus*
talned by any proof. If its allegations bad
been supported by proof, the denial of the
answer, had It been filed, would not have'
prevented a decree, in the absence of good
cause shown for a continuance. CFpcm tbe
bill, answer, and general replication, without
any evidence, there could not liave been a
decree for the defendants. The plaintiffs
could hare prevented this by taking a con-
tinuance; but the dtfendants could nut have
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DANSETa T. DOKB
367
bad a continuance, without discloslnK good
cause therefor, If tiie plalntUEs bad 1)een
ready to Bubmlt tbe cenie.
For the reasons stated, the decree com-
plained of will be rerersed, and the canse
remanded, with leare to the defendantB to
lUe tSielT' answer.
at W. Va. OS)
DANSGR r. DOHa
(Snprsme Goart of Appeals of West Yl^taia.
Uaj9, UKLS.)
(SpUalu* by the Court.)
1. CoirpoRATioHB (f 80e*>— OmCKBft— PnsoN-
AL LlABILTTT.
The president and general manager of a
corporation, who, witbout antboiitj nom his
company to do so, directs a servant, employed
to perform certain work for tbe company, to or-
der audi material aa fai needed for tbe work. Is
personal]/ liable to tbe seller for tbe price of
goods ordered b; snch servant in tbe inairtdaal
name of the president, notwithstanding tbcj
are need In tbe work of the oompany.
[Bd. Note.— For other cases, see Corporations,
Cent Dig. %% X4C7, 1468; Dee. Dig. 1 306.*]
2. Tenct (I 16*)— Pboctbi 0 ei*)— Biaat to
Eleot^bbticb.
If a cause of actlmt arises in ona county,
and tbe sole defendant resides In another, plain-
tiflF may sue in either. Bat if he SDSS where
the cause of action arose, defendant must be
serTfid with process in that county.
[Ed. Notft— For other cases, see Venae, Cent
Dig. ii 23, 25-27: Dec. Dig- S 16 Process,
Gsttt Dig. I 69; Dec IHg. | 6L*]
8. Sales (i 80*)— Vbnub (| 16*)— Placb of
PATUEin^AcnON TOB Pbiob.
If goods are sold and shipped npon order
which states no place of payment, It Is the. daty
of the purchaser to pay at tbe teller's place of
bosfness, if In the state. The failure to pay
glTcs the seller a right of action, which he may
assert either In the county where the nl« was
made or where the porchaser resides.
lEld. Note.— For other cases, see Sales, Cent
Dig. I 228: Dec. Dig. | 80;* Venue, Cent Dig.
H28, 28-27; Dec. Dig. | la*]
4. Affeaz. and Ebbob (IS 1026, 1039*)— Hash-
LESS Ebbob— Plea to teb Jdrisdiction—
Betersal.
If the jnrisdictlon of the trial court suffl*
dently appear from any part of the record, this
court will not Tevene a final Judgment rendered
upon tiie merits, on aceoont <w error committed
in the trial of an issue m a plea to tbe juris-
diction. . ,
[Bd. Note^For otfaer cases^ see Aimeal and
Error, Cent Dig. H 4029, 4030, 407S-4088 i Dea
Dig. II 1026, 1«)9.*]
6^ Tbial n 417*)— MonoR to Bxoludb Bvx-
DKNCE— WAIVra.
Defendant waives the benefit of his mo-
tion to exclude pleintilFs eridenee by hereafter
introducing his own.
(Ed. Note.— For other cases, see Trial, Gent
Dig. I 980; Dec Dig. I 417.*1
Error to <SrcnIt Coort, Lewis Ckranty.
Action by W. C Danser against C P. Dorr.
Judgment fbr plaintiff, and defendant tnlngs
error. Affirmed.
Brannon & Stathers, of Weston, for plaiiH
tiff in error. E. A. Brannon and Cbas. P.
Swln^ both (tf Weaton, fttr defendant in ar>
ror.
WILLIAMS, 7. Action of asanmprtt fi>r
ttie price of goods alleged to have been sold
and deUvered by plaintiff to defendant Jndff-
meut In favor of plaintiff for |577.02, and
defendant obtained this writ of error.
Suit was brought In Lewis county and pro-
cess served on defendant in that connty.
Defendant pleaded want of Jurisdiction. Is-
sue was joined, and at the March term, 1909,
a trial by jnry resulted in a verdict uphold-
ing the Jurisdiction. Defendant then plead-
ed the general Issue. At tbe November term,
1909, a trial was had npon the merits, and
a verdict returned In favor of plaintiff,
[4] Counsel for defendant admit that there
Is but one Question In the case, viz.: Did
defendant purchase, or authorize the pur-
chase ot the goods £rom plaintiff, for the
price of which tbe action Is brought? This
question arises both upon the plea In abate-
ment and upon the trial npon the merits.
Therefore it Is only necessary to consider
the evidence in relation to the question upon
the merits, for the character of the case Is
such that, If plaintiff Is entitled to recover
in any event, his action la maintainable In
Lewis county; and, if any error was com-
mitted in the trial of the Issue on the plea In
abatement, It would be harmless, unless there
Is also error In the trial upon the merits.
This court will not reverse for harmless er-
ror. Nichols V. Camden Interstate By. Co.,
62 W. Va. 409, 59 S. B. 968; State t. Davta,
68 W. Va. 142, 69 S. B. 639, S2 L. B. A. QX.
S.) 601, Ann. Cas. 1912A, 996.
[1, 2] Tbe plea in abatement avers that
def^dant resided In the county of Webster,
and was served with process in Lewis coun-
ty, and that the alleged cause of action did
not arise tat the latter county. Jurisdiction
depenfls npon whether the cause of action,
or any part of it, arose In Lewis county. It
It did, tbe creditor could elect to sue in that
connty, or in the county of Webster, the
place of defendant's residence. Section 2, e.
128, Code (1906). That the goods were ship-
ped 1^ plaintiff, consigned to defttidant at
Webster Springs, and were received by one
H. J. Bragg, who claimed to be acttng tat
deteidant, is not denied. Then Is also eri-
denee tending to prore that the goods were
shipped npon a wrltteo order given therefor,
signed **0. P. Dorr, by H. J. Bragg." Hence
boUi the jurisdiction of the court and the
morlts of the case depend upon the agency
of Bragg. There is conflict in the testimony
of witnesses on tlds point; and, unless there
is a great pr^nderance of eridenee against
the verdict, the court would not be Justified
in setting it sslde. Tlie goods oonststed of
plumbing material, and were used in a wa-
•For otlttr cum nm* topic sad aeeUOD HUHBKR la 1>m. Dig. 4 Am.
78 SOUTBSl&SXERN RE^KTEB
terworks' plant at Webster Springs, which at
one time appears to have be^ owned bs dfr-
tendant, and later by the Webster Springs
Water ft Electric Light Company, a corpo-
ration, of which defendant was president and
general manager. The goods were shipped
In the fall of 1904, and. defendant t^tlfles
that the plant was then owned by the cor-
poration, and that he did not order the goods
or authorize any one else to order them. He
moreover testifies that be "had no authority
to authorize any one to buy." But be Is con-
tradicted by two witnesses, H. 3. Bragg and
X O. Cricher, both of whom did work on
the plauL Brasc testifies that defendant
told him to order whatever material- was
needed for the work, and Cricher says he
was present and heard defendant give that
direction. He also aaya that he did not
know that the plant was owned by a corpo-
ration, and that defendant practically gave
orders for all work." . Bragg says he knew
that the plant was owned by a company, but
did, not know any stockholders or pfflcers
other than defendant The Jury were the
Judges of the disputed fiict concerning
Bragg'a agency. There is no evidence tend-
ing to prove whether defendant told Bragg
to order the goods in defendant's name, or
in the name of Ms company. Bnt, in view
fit defendant's testimony that he had no au-
thority from bis company, it Is not material
^ whose nam^ or whether in'any particular
name, he was directed to make the order.
Because the lecAl effect. Is the same as If h«
bad aothorlsed Bragg expressly to order the
goods In bis (deftodant*^ namsb Fox, If he
gave direction .to Bragg on behalf' of his
'^oanpanri witbont Iti antboritar, it would
present the case of an agent acting in ezoesa
of his authority, In which event the law
holds him personally liable. In view of the
conflict in the testimony, the court did not
err in orerrullDg the motion of plaintiff to
set aside the verdict
[S] Defendant waived his motion to ex-
clude plaintiff's evidence, made when plain-
tiff rested bis case, by thereafter introducing
his own evidence. This question has been
so frequently decided that we deem it un-
necessary to elaborate on it Core v. Rail-
road Co., 88 W. Va. 4S6. 18 S. B. <!96; Poling
v. Ohio River R. B. Co., 88 W. Va. 646. 18
S. E. 782, 24 L. R. A. 21G; Tramp v. Tide-
water Coal 4 Coke Co., 46 W. Va. 238, 32
a R 1035; Bwart v. New River Fuel Co^
68 W. Va. 10, 69 S. a 800.
[9] Plaintiff's place of buidness is In Wee-
ton. Lewis county; and if the 0>od8 were
purchased by order, and no {dace of payment
agreed upon, it was the duty of the pur-
chaser to make payment at the place of pur-
chase. Tbe fallnre to pay would constitute
a breach of the implied oontxaet, and would
^ve cause of action, where the breach of
duty occurred, which was In Lewis county.
Harvey v. Parkersborg Insurance Co., 87 W.
Va. 272. 16 S. E. 680. "A debtor must seek
his creditor to pay him, unless the creditor
be out of the state." Galloway t. Standard
Fire Ins. Ca, 40 W. Va. 287, 31 & B. 969; S
Elliott on Evidence, { 2679; 80 Cyc 1185.
The rulings of the court upon InstmctitHUi
are conststent with tbe law as herein oe-
pressed. Finding no oror, we affirm the
Judgment
Digitized by Google
W.Ta,)
IfEUTOH ▼. 0HS8APEAKE * O. ILT, CO.
869
m W. TBI)
iisLTON, shwu: T. chbsafhakb * a
ET. GO.
iSaprcBW Court of Appeali of Welt Ybgliiis.
Vab, 4t 1913. Rebeanng DwM
May 29^ 19ia}
fSvItebM frr the OowrU)
1. BAmtOADS (I 800*)— AOOIDBMT AX OSOSV-
MO.
A partial bat antotantial e<iaipiiient hj a
railroad company of a portioo of ita track
tiirouBh a ei^, bnra, or tUI^ in the manner
usually adopted at- puMic croeBlncs, and as a
euav«nieut means access to and from a near-
by, public highway, operates as an implied in-
vitation to the poblic to so ose sacb crossing;
and if so generally used by it that the company,
through its employ^ most be cognisant thereof
the company is thereby charged with the duty
of exercising the same degree of cata as the
law imposes at a public crossing.
[Ed. Note. — For other cases, see Ballroada,
GenL Dig. S 955; Dec. Dig. { 800.*]
X RULBOAM CI 8iO*)-ACX)IDBllT AT Omom-
IHG.
Propelling a train of ears by an eoctne In
mid-train over such frequented crossing on a
dark nigbt, without signal or warning, or Hght
m vr about the fonrard car, is negligence, and
if injury result* the operatinc company is lia-
ble therefor in damages to the perscm so injur-
ed, in the absence of negligenee on Us part con.'
tributory thereto.
(BA. Note.— For other cases, see Railroads,
Gent Dig. H 962-987.; Dec. Dig. { Sia*3
1. KsouauniB (| 122^— Ooktbibutobt Itao-
UaENC»— BUBDBK OT PBOOF.
Wbere' plaintiff haa shown negligence on
tiie pbrt of defendant, if the latter relies on
contributory negligence of plaintiff to defeat r*-
flOTery, the burdui is oa defendant to prove
such negligence, unless it Is disclosed by plain-
tilTs eridence, or may be fairly inferred from
all the circumstances; and in the absence of
such proof or inference the person injured putst
be presumed to be without fault
[Ed. Not&r-For other cases, sea Negligenca,
Gent Die U 221-223, 220-234; DeeTDiiri
122.*]
4. Raxlaoads <| 290*)— Acoidsnt At Cbobs-
nfCH-NEOLIOBNCE.
A case holding the railroad crossing at
which tlie Injury ooeurred to be of sudb pub-
lic character as requires the operating compa-
ny to exercise reasonable care to prevent in-
jury, and the company liable in damages for In-
jury caused by its n^ligence in that respect
[Ed. Note.— For other cases, see Railroads,
Cent Dig. li 954, 058; De&Dtg. | 299.*]
Error to Circuit Court, Eauawha County.
Action by J. J. Melton, Sh^ff, against the
Cliesapeake ft Ohio Railway Company,
jndgmant fin plalntlgi defend^t brings er-
ror. Afflrmefl.
Uiulow, FltqiatridE, AiaCTWo ft Baker» of
Unnttngton, ftor i^alntlfl in error. A. M.
Belcher, of Gbarleaton, for defendant In er-
ror.
LYNCH. J. This action wag brought to re-
cover damages lor the negligent killing of
Samuel Ganterbory, plalntlCTs . intestate. A
verdict and Judgment In favw of tbe plaln-
tur were obtained In the drcnlt court. . The
case In now before us oa writ of error.
Three gnmiida of -enw ate rtiled oa Itt Hi*
defendant's 1>rief : First, that Improper tB»
tlmoajt was altowed to go to the Jury ; second,
that- the Jury was Improperly instraeted;
third, **that upon the merits tbere dioald
have been a verdict for the defauXant"
Oanterbnry was killed tn Marmet, a vUlage
of 800 Inhabitants. His mangled body was
found oo deftendnnf B track, 10 fbet from a
crossing, a short time after one of its freight
trains bad passed. Competent proof suffl-
dently attcUotes the cause of his death to
a colUtfon with defteidani^ train. VbiM tact
the defendant only formally denies.
The evidence of which ttie defendant com-
plains rdates to the duracter of the cross-
ing. It is true no talgbwa^, established un-
der the forms preserLbed by law, crossed the
ri^ of way at that ptrint Rut the proof
sbows a long-contlnDed use <^ Oie place
wbere tbe acddCTt ocenrred as a crossing.
Tbe railroad mns throagfb and divides the
town. The reatdents of the village used tbe
crossing from 15 to 20 years in all respects
as If It were in tact a pnbUo crossing. Tme
a fence waa maintained by tbe def«idant
along Its txwk ; bat it also constructed and
maintained a gateway through the fence to
the crossing. A driveway extaided from dif-
ferent parts of the vUlage direct to tbe gate-
way. For years prior to and at the time of
the accident, It had been end was adopted by
the pnbllc and in constant use aa a ready
means of access to and from the county road.
The defendant placed heavy planks on each
A6e of tbe ontside rails, filled op wltb bal-
last tbe space betwera tbe ties, and kept the
crossing In repair. Oanterbnry was killed
some time about 7 o'clock in tbe eveidng. He
left bis brother at Wells' store, located 200
feet east of the crossing, about an hour be-
fore his death, and was last seen, immedi-
ately after be left tbe store, approaching tbe
crossing, where be had arranged to meet bis
brother, after going to the post office. The
nlgbt w^s dark^ No oob saw the ac{d4ent
The engine was mld-traln. It carried a head-
light, but other cars preceding the raigtaie
obstructed tbe light His body was found
between 7 and 8 o'clock. Uls toes, frag-
ments of clothlnfe and bloodstains were found
on tbe croesing. Tbe proof la abundant to
show that bis death vras caused by tbe de-
fendant's train ; and It Is liable for tbe In-
jui7, provided tbe public character of tbe
crMslng was such as to reqoire ordinary dili-
gence ajD(d care by Its agents, in order tn
avoid injury to persons and propoty using
It as a public crossing.
[1,4] We think tbe eiddence Is affirma-
tively suffUdent to support tbe finding of the
jury, as virtually it did find, that the place
of Injury was to the extant public that It
became and was tbe dutj: of tbe defendant,
In tbe operation of its trains, to exercise a
reasonable degree of care and diligence for
•#orvth«reu« we ums tople sad sMtlon' MXWBBR In DM. Dig. * Am. Dig. K«y-Ko. SwtM
78 8.B -24
Digitized by
370
78 SOUTHEASl^BiBN BBFOBOTKIl
tbe wkMj ot the ponmis vring It m a croas-
ing^ and that It was nvHgence on the part ot
the defendant to aniroaeh the croselng In
the manner we have stated, in darkness and
without signal or warning of any Und. In
Bowles T. Ballway Co., 61 W. Va. an. ST
H. B. 131, It Is said: "The precaution mast
salt the circumstances, and be adeqoate un-
der the drcnmstancee." Bowles was killed
at a public croselng; but the defendant
sought to siVotA UablUty becaose he had ap-
proached the crosslnc by walUng thereto on
the track. This, it uif:ed, was negligence on
Ub part; but the court decided otherwise.
In Bay t. Railway Co., B7 W. Va. 333, 338.
60 3. E. 413, 415, Judge Brannon, quoting
from Elliott on Railroads, says: "In order
to Impose npon the company the duty to treat
a place as a public crossing, those who use
the place as a crossing must either have a
legal right to so use it, or must use It at the
inrltatlon of the company; and *neltber
sufferance nor permission nor passive acqui-
escence is equivalent to an Invitation.* If,
however, the traveler uses a place as a cross-
ing by invitation of the company, it must
use ordinary care to prevent injury to him,
as where the company constructs a grade
crossing and holds It out to the public as a
suitable place to cross. Where, by fencing
off a footway over Its tracks, it induces the
public to 80 use it, by building to the track
plank bridges for foot passengers, or by con-
structing gates in the railroad fence for the
use of pedestrians who habitually cross the
track, it thereby holds out the place as proih
er for them to use. Such Invitation as im-
poses on the company the duty of ordinary
care Is Implied, where by some act or desig-
nation of the company persons are led to be-
lieve that a way was Intended to be used by
travelers or others having lawful occasion
to go that way, and the company Is under
obligation to use ordinary care to keep It
free from danger."
In RaUroad Co. v. Carper, 88 Va; B57, 14
8. U. S2H, it is held that If "the tracks where
lAalntlff's Intestate was killed had long been
used by the public with defendant's knowl-
edge and acqulescrao^ then deceased was
not on the track as a trespasser, but as a
licensee." The same case is authority. If
sodi be necessary, that a railroad company
roonlng Its trains through a town must nse
greater care and dlUgence to prevent Injury
to penons and property than is required In
less frequented localities or populous dis-
tricts; and "the fiact that pedestrians were
accustomed to travel on the tratft at a par-
tienlar place, in the knowlei^ of the oom-
pany* niade It its duty to use greater care In
operating Its road at that place." The opin-
ion states that "the ttack of the railroad lies
through tile town, and from lots 'fronting on
the railroad the company had constructed
plank bridges for fbot passengers, leading
from the lot to the track, over and across
the usual ditch found ther^ as In oth« rail-
roads; and there were three traCks-^naln,
BooQi and north—altmg In that part of the
line; and between the two first named a
good, wide walkway hod been constructed*
upmi wUdi posons might safely walk be-
tween moving trains. If these things are
true, was not the pnbUe in^ted to walk
there? And if so bivlted, were they trespass-
ers? (Nearly not** So In Railroad Co. v.
Surge, 84 Ta. 68, 4 a B. 21, it is said that
a company, running its trains on city streets
must use greater care than in less frequented
localities; uid "It is required of them to re-
sort to spedal precautions, dq^endlng upon
the particular locality and the drcumatances,
to avoid accidents, and any neglect of such
precautions as are proper, under the pecul-
iar surroundings and circumstances of the
locality, constituteB negligence."
Greater care and prudence Is required of
a railroad company in the operation of its
road at places where pedestrians are accus-
tomed to travel on or across its railroad at
any particular place than la required at
places where the tracks are not so used. A
difference exists between the degree of care
due from a railroad company under ordinary
circumstances to a trespasser and licensee;
yet if the company, through its agents, knows
that its right of way at a certain point is
constantly In use as a footway In a village,
town, or dty, and that people pass over it
dally and at all hours, the railroad company
cannot without fiinlt, proceed In a manner
which must necessarily be dangerous to such
persona, whether trespassers or Uccnaoee. U
Bncyc. Dig. 682, and cases dted.
The doctrine laid down In Huff v. Rail-
way Co., 48 W. Va. 45, 35 S. B. 866, does
not militate against the views above express-
ed and the authorities cited. In that case
the accident occurred in defendant's yards
and npon Its switch tracks — a place to which
persons resort at their peril; the company
being liable to them only for reckless and
wanton Injury.
[2] We think the character of this crossing
was such as to require the defendant to use
a higher degree of care than it did use on
the night of the accident No signals or
warnings statutory or otherwise^ were given
of the a^iroadi of the train. There was
no light at or near the front car, nor iffoof
of any, except the statement of the brake-
man that he was walking on the ground with
a lantern; but he did not see' the deceased.
None of .the tralnmtti saw Um; nor did they
know he had been struck and killed until
after the discovery of his body. We are of
the oplidon, thnefore that the evidence of
which the defendant complains was proper,
and that no error was committed In permit-
ting it to go to the ]nry.
Nor do We think the jury was Improperly
Instructed. The first Instruction on the jdaln-
tilTe hehaU !• snlBdently
Digitized by '
W.TaJ
MOKBIS
T. BAXBD
371
the discussion of the evidence relatlns to
the character of the crossing. It was not
limited to etatatory warnlnss. It employed
the word "warnings" in a general Ben Be ; and
we think It was the duty of the defendant,
not only to exerciser care and caution, but
to ezerdae the further precaution of haTing
a light at the front of the advanclDg car, and
to i^Te some warning of its approach. In
the language of the instmction, "the failure
to give sncih signals or wamli^ was," in
our view, "the proximate cause of the deatli"
of decedent
[SI The giving of the second Instenction
for plain tiff was also free from error.
"Where the plalntUf has shown negligence
on the part of the defendant, if the defsid-
ant relies on contributory negligence of the
plalntm, the burden is on the defendant to
prove It, unless It is disclosed by Uie plain-
tiff's evidence or may be fairly inferred
from all the clrcamstances; and In the ab-
sence of such proof the person Injured must
be presumed to be wlttutut fault" Ballway
Co. T, Bryant, 96 Va. £12, 28 S. B. 188; Kim-
ban v. Friend, 95 Va. 126, 27 S. a 901;
Kallroad Uo. v. Gilman, 88 Ya. 289, 13 B. U.
476; Beyel v. Railroad Ga, 34 W. Ya. 688,
S46, 12 8. W. 632. The langnage of these
cases is practically identical with that of the
instruction itself.
FlaintUTB third iustmction is supported by
the case of McVey t. Railroad Co., 46 W. Va.
Ill, 82 S. B. 1012. Its propriety Is also sup-
ported by Beach on Contributory Negilgence,
31Wi, where it is said that "where there is
no evidence that the part? injured stopped
and listened the court will not presume be
did not stop and adjudge him guilty of negli-
gence, but will leave the question to the
Jury." Also McBrlde v. Railroad Co., 19 Or.
tt4. 23 Pac. 814, holds that, in the at»ence
of evidence, the presumption Is that the trav-
eler looked and listened. To the same effect
are Railroad Co. v. Weber, 76 Pa. 167, 18
Am. Rep. 407, cited In Toung v. Railroad Co.,
44 W. Va. 218, 28 S. B. 932 ; Railway Co. v.
Bryant, supra ; Same v. Hansbrongh, 107 Va.
m, 60 8. E. 68; Railroad Co. v. GrlfBth,
150 U. B. 603, 611, 16 Sup. Ct 105, 40 L. Ed.
274 ; Roberts v. Managers of Canal, 177 Pa.
183, 86 Atl. 723. ' The proof in this case does
not disclose any drcumstance upon which
this court can Impute to Canterbury any neg-
ligence, or, In other words, say that he did
not look and listen for an approaching train
before going upon the crossing where the in-
Jury occurred. There Is also absence of any
evidence tending to show that he could have
seen or heard the train if he had looked or
listened. True Wells says there were l^hts
burning in hid store, about 200 feet east of
the crossing in' the direction of the moving
train, and the brakeman that he was walk-
ing besfde the train with lantern in hand;
but the Jury have virtually passed upon the
question whether Canterbury could see the
train by means of the light from the store or
lantern. One witness for the plaintiff says
that while standing on the platform at the
depot only a few feet tnm the track the
train partially passed him before he obawv-
edtt
Defendant's instructions refused are ei-
ther not warranted by the proof, or incor^
rectly state the law. The Urst Instruction
was mandatory, and was properly refused,
because there was sufficient evidence to carry
the case to tlie Jury. The Impn^riety of the
fourth and fifth instructions snffidenUy ap-
pears from previous discussion. The ninth
was defective in its conclu^mi: "The rail-
road company would not be liable for his
death, unless the Jury find that the agents
for defendant did d<ioover him on track in
time to have avoided acddent" It should
have contained the qualification, "or by the
exerdse of reasonable diligence could have
discovered blm on the track in time to have
avoided injury." The authorities are in ac-
cord in bold^ this qualification essential
to the validity of such InstrucUon.
We are unable to find error In the record,
and therefore affirm the Judgment
(72 W. Va. U
MOmiia V. BAIBD et aL
(Supreme Court of Appeals of West Yizglnla.
Feb. IL 1913. Rehearing Denied
May 20, 1913.)
(ByOaiut iv ih9 OourQ
1. CaKDnoRs' Suit (| 61*)— Biirt ov Lard—
CoA-L in Puce.
The general rule lequlring that a judg-
ment debtor's laada be rented, u the aame will
rent for sufficient in five years to pay his debts.
Is inapplicable to coal in place owned by him,
and having bo rental value.
[E3d. Note.— For other eases, see Creditors'
Suit. Gent Dig. H 181-2WT fiec. Dig. | 61.*]
2. iNTEEssT (I 36*)— Bats— BmoT of Goh-
TBACT.
It is error to decree interest at per cent,
when the notes or other contracts endendng
the debts bear a less rate of interest
TEd. Note.— For other cases, see Interest
Cent Dig. « 76; Deo. Dig. | 36.*]
a DxEDs (I 114*)— GoHBXBDOTion — iHTBanr
CONVETED.
A deed which purports to convey part of a
larger tract, bat which does not attempt to lo-
cate the part conveyed, should be construed as
conveying an undividea interest in the larger
tract Such deed is not void for uncertainty.
[Ed. Note.— For other cases, see Deeds, Cent.
Dig. SS 816-^, 826-8^7388; Dec. I)ig. f
111.*]
4. Vbndob and Pubchaseb (I 285*)— Peop-
EBTT SnnjEOT TO EXECUTION — UHDIVIDSD
Xhibbest— Modi of Saix
Where undivided iotereats In a larger tract,
composed of numerous tracts each subject to a
prior vendor's lien, are so conveyed, and it Is
impracticable in selling the larger tract, or the
several tracts compoaing it, for the purchase
money liens thereon, to respect such undivided
interests, it is not error to order the tract or
Vor Mbsr esMS sm aam* tepM aiUI aeettoB NUHBBR fa Dm. Dli. A Amu Dig. K«y-Ko. Sartw i
. Digitized by
372
78 SOUTHBASTEBK SBFORTEB
tracts solA as an entirety to aatisfy sadi Ten-
AofM lleDS, thonffh cot mibject to tbe judgment
U«ia decreed afiinst other lands of the debtor,
and leave the aubeeQuent alieneei to take their
intereate out of tbe proceeda remaining after
payment of locb vendor*! liens.
[Ed. Note.~ror other cases, see Vendor and
Purchaser, Cent Dis* SI SOO-fiOT; Dec Dig. f
286. *]
6. Veitdor and PtmoKASiB (I 287*)— Pbop-
BBTT Subject to Bxecuxioh — UnDiniwD
iRTEBEaT— Mode of Sale.
And where each nodivided Interests in a
larger traet. eomposed of numerous tracts, so
ctoivered, are subject to such prior vendor's
liens and to tbe liens of prior judgments and
attachments, and it is impracticable to sell tbe
land or interests therein in tbe inverse order of
alienation, or to sell first tbe interests of tbe
debtor therein without detriment to all other
interests, it Is not error to decree a sale of tbe
entire tract, leaving such alienees to take their
interests out of the sorplos fundi, if any.
[Eid. Note.— For other cases, see Vendor and
Purchaser, Gent Dig. K ; Dec. Dig. {
287. *]
Appeal from Gtrenlt Oourt, Doddridge
County.
Bill in equity by Tuaca Morris against Wil-
liam F. Bolrd and others. From a decree
for plaintiff, certain defendants uppeaL Be-
manded for corrections, and affirmed.
MUlard F. Snider and Homer Strosnlder,
both of Clarksburg, for appellants. Neely &
Uvely, of Fairmont, for appellee Morris. J.
Ramsey, of West Union, tor m>p^eea Farr
and otbera
IDLLER, J. [1] In ft JndgmeDt creditors*
suit to subject the cool owned by the debtor
In fee, the flnt point of error In the decree
below which we are called upon to consider
la tha^ as the judgment debtor In bis an-
swer, filed on the eve of invnonnctng the
final decree^ dladMed, A>r tbe first, that he
was the owner when salt was broogtat of
aoo acres of coal In Tyler Ooonty, In addi-
tion to the 6400 acres In Doddridge Conntf
reported by tbe commlsdoner, and adjoining
It, the court should have required plaintiff
to amend his btU^so as to bring in that coal,
and then, as a omdltlon precede to de-
creeing a sale of the coal in Doddridge Coon*
ty, have ascertained whethnr all the coal
would rent for sufficient In fire years to pay
the debts, and if so, fo decree that the same
be rented and not sold.
We see no merit In this point Tbe main
portion of the indebtedness decreed is for
purcbase money on the very coal decreed
to be sold, and on which vendor's liens were
retained. Section 7, of chapter 139, Code
1006, relating to the enforcement of Judg-
ment liens la Inapplicable to the enforcemrat
of vendor's liens. Bat treating this as strict-
ly a suit to enforce Judgment liens, the
point is still without merit The rule re-
Ued on, laid down in Newlon Wade, 48 W.
Va. 283, 27 S. B. 244, Kane t. Mann. 03 Va.
23^ 24 S. E. 938, and ennndated .In Hogg's
Eq. Fr. $ 4SS, la clearly Inapplicable to a
suit to solUeet to sale coal Id place to pay
Judgment liensL That rule, as a reading of
the anthorlttes rdled on and a history of
the statnte refored to on which it Is based
wtU show, la applicable baly to land which
has a rental value, as for farming, graaing,
or other occupancy, and not to coal, or oO,
or gas In place, which wa Jnfieial^ know-
can haTO DO rental ralne. No one would
rent these minerals' In place, on any terms,
that Old not involve the taking of the very
snbstance of the Inherltancft Snch a rait-
ing would anumnt to a sale of the land (jooaX)
itself, which vnmld be wholly incongruous
with tbe purposes ot the statute. This in-
congruity is so apparent that we think no
further elaboration ot the question, or <dta-
tlon of authority Is required.
[2] The n^ asslgnmoit of error deserving
consideration Is that six per cent Interest Is
decreed on certain d^ts, when 1^ the note
or contracts th^ bear only five per cait
These creditors, and appellees, at onoe eon-
cede this error, and the toUowli^ authorities
cited seem to fully support the proposition.
Pickens v. McCt^, 24 W. Ta. 844; Brooke t.
Boane, 1 Call (Va.) 205; Beot v.. Patten, 1
Rand. (Va.) 26; Shlpman v. BaUey, 20 W.
Va. 140; CecU v. Hicks, 20 Orat (Va.) 1.
26 Am. Rep. 891; Bank of Marietta t. Fin.
dall, 2 Rand. (Va.) 46B. Bat appellees eon-
toid that these errors, not having bsMi call*
ed to the attention of the eonrt below by
exceptions to the commlBgloner's report, , <ur
otherwise, do not constitute reversible er-
ror, but error which may and should be cor-
rected hare by sectkm 6, chapt» 18^ Cods
1906, and If no other error be found there-
in, the decree should be affirmed. We UilBk
this a proper construction of the statu te^
But as we have fotmd no othw vtnr In the
decree prejudicial to ai^Kllants, and to.make
the ewreetlMis here would reqnlra niany cat-
cnlations of interest, with which tiie time of
the court ought not to be consumed, we am
disposed to order the error corrected In the
lower court and when the decree Is so amende
ed there, that it stand afllrmed. Appellants
need not have come to this court to correct
this error In the first instenoe.
[3] The noct point of error iriildi we will
notice Is that the court eironeonsly decreed
the sale ot the alleged Intereste of I^dla M.
OalcB, and Ollvw F. Markle and Isadore
Frank, in 2447.951 acres known as the "Sa-
lem Syndicate" coal, when the Judgments and
attachments decreed were subsequent in date
to the deeds conveying those interests, and
which were not subject to said liens. As
already noted, the debto decreed ore in the
main for purchase money. But this fact
may not be important A pertinent inquiry
is, what is the nature or character of the
estates or Interests which these appellante
took by their dee^s from Balrd? The deed
to Lydia M. Oaks, purports to "grant, with
general warranty, onto the said party of the.
•Tor otfew eaais aas aasM tcvie and switiaa NUUBBR io Dae. Dig. ft JM. Dig.
W.Vai
MORRIS
T. b aird
873
second par^ ber heirs fuid .assipu, an the
undivided thirty (30) acres Of the Fittalnirg
vein or stratum of coal wlUi the mlnlDg
rights, priTll^ea and other rights, etc., sit*
nate In Doddridge <5onnt7» West Virginia,
* * • In a Held of coal known as tract
Ka 2 «f tile Salem Syndicate as was con-
veyed to W. V. Balrd by the followti^ re-
cited deeds," some aixt^ In number. 'A
later clause^ further descrh>tlT« ot tbe coal,
says : "The tract herein eonreyed Is an un-
divided interest In tract No. 2 of the Salem
Syndicate containing 30 acres^ which la a
part ot tha same trace ot land which hu
been eonreyed to tike said W. V, Balrd by
deeds aforesaid." Tbe deed from Balrd to
Uarkle and Frank purports to grant "all the
undivided two hundred (2(W acroB of the
Flttabnrg rdn or s^tnm of coal** in the
same "Salem Syndicate," eonreyed tQ Balrd
by the deeds recited In tbe deed to LydU M.
Oaks. A later clause la as follows : "The
tract of coal her^n eonreyed la an undivid-
ed 200 acres, being a part of the same tract
of coal which has been conveyed to tbe said
W. F. Balrd by deeds aforesaid." me deed
from Balrd to L. Louisa and Uargaret F.
Hamilton, puxporta to conv^ "all the undi-
vided seventy fire (719 acrea^ of said coal by
substantially the same language as the deed
to Uarkle and Frank.
The decree appealed from, as we Interpret
It, adjudges that Lydla K. Oaks by her deed
took a 80/2447.951 undivided Uiterest; L.
Lonlaa and Margaret F. Hamilton a 76/2447.*
(KU. undivided Interest; and Uarkle and
Frank by their deed a 200/2447.951 ondlrld-
ed Interest in said Salem Syndicate, compris-
ing sixteen several tracts or parcela of land,
and that Balrd held tiie runalnlnc undirld-
ed Interest thertfa.
Api>ellee8 contend tiiat . these deeds are
void tor uncertainty, and rely on 4 Am, &
Eng. Ency. Law, 802, and Shackleford
BaUey, 86 IlL 887. We tUnk tbe court
prop^Iy interpreted these deeds, however,
for reasons to be tfrw. The authorities
seon almost unanimous In holding that a
deed which conveys part of a larger tract,
but which does not locate the part conveyed
should be construed as conveying an undi-
vided Interest In the larger tract, distinguish-
ing deeds of that class from those which at-
tempt to describe a specific portion, desig-
nating the number of acres, and as a part
of tbe larger tract, but the calls of which
do not describe the tract Intended to be con-
veyed, and held void for uncertainty. Some
cases dtatlngutsh deeds of the former class
also from deeds which by otber descriptions
the grantees are held to take the interests
couveg^ed as tenants In common. 2 Devlin on
Deeds, I 1010; 13 Cyc. 055. dtiog among
many other cases. Buchanan v. King, 22
<3rat (Ta.) 414. Anno. Ed. 154 ; 1 Jones on
Beal Prop. S 404, and numerous cases dted
In notes. All our cases, so far. as we hare
•bserred CaU'wltiila the dlstlngsldied- class
above referred to. ' See Smith v. Peterson,
76 S. k 804; Beger V. HcAUlster, 70 W.
Va. 82, 78 S, E. 48; Harding f.'Jennlngs,
68 T?. Va. 854, 70 S. B. 1; Oil Oo. v. Mc-
Gomdcfc, 68 W. Va. 005, 70 S. B. 871, and
Crawford r. Workman, 04 W. Ta. 10, 63
& B. 819) and cases dted.
[4] Sndi being the Interests ' of ttiese ap-
pellants vrtiat rule should go*vani In mder-
Ing a sal^ partlcnlaviy with respect to the
nndivlded' Interests of Oaks, and Maikle and
Frank, not subject to the itens ot the Jndg-
mmta and attachments decreed? The wbola
of Balxd's original Interests In the' several
tracts comprising the Sal^ (indicate IXo. 2,
are subject to purdiaae moncQr liois aggn-
-gnting amounts exceeding the prices likely
to be obtained at a Judicial sale there<A An
attempt to sell Balrd*a iiodlvlded Itoterests
would likely affect Injurlonsly those Inter-
ests, for they would not likely sell to as good
advantage when sold separately as If sold as
a whole. True the interests of these alienees
are not subject to the llena of the Judgments
and attachments recovered subsequently, but
they are subject to the purchase money liens,
and. If necessary to satisly those liens, tbe
whole of the coal, subject thereto, will neces-
sarily have to be sold to satisfy tbe sama
As noted, sixteen different - tracts are In-
volved, subject to distinct purchase money
liens on each. How would it be practicable
to respect the undivided Intwests jof appd*
lants In a sale of these tracts separately, as
they have been decreed and must be sold?
It may be said that tbe Interests of Balrd
In each tract might be first sold or offered for
sale, and if necessary, then to sell tbe whole.
This Is the only pcwsibte way we can conceive
In which it might be done. But would this
manner of sale likely result satisfactorily?
Some of the tracts are small, and it the In-
terests of Balrd should sell for enough to pay
a particular lien oh tbe several tract very In-
slgniflcant portions would be partible among
ai^IIees. Belated as these interests are we
think the only practicable way to partition
tbem Is to sell the whole, and If more than suf-
ficient Is .realised to pay the prior llena let
these alienees take their shares In the pro-
ceeds of sale. Tbe point ot error should bs
overruled.
CBJ. Lastly, it is said that even If the In-
terests of the Uarkle, Frank, Oi^ and ths
Hamlltons oould be sold, as decreed. It was
error not to have decreed that Balrd's Jn-
terests be first sold, and thai It they should
not sell for suffldent to pay the i^lor debts
to sell the Interests of ths subsequent alien-
ees. .. ,Sedl<xt 8, ot diapter ISO. Code 100% and
Handly v. Sydenstrk&er, 4 W. Va. 605. and
UcOiaskey r. O'Brien, 10 W. Va. 791« are
dted and reUed on in mspport of this prop-
osition. Much of what ,has been said In
disposing of the Isst preceding assignment
of error, is applicable here. The. sectiob of
the statute tefersed to, relating /to «of
Digitized by VjOOy IC
374
78 SOUTHEASTEBN BBFOBTBB
(W.Vt.
forcement of Judgment Hens, as does a cor-
responding statute of Virginia, provides that
"Where tbe real estate liable to the lien of
a judgment le more than sufficient to satisfy
the same, and It, or any part of It, has been
aliened, as between the alienees for valuer
that which was aliened last shall, In equity,
be first liable^ and so on with other suoces-
slve alienations until tbe whole Judgment Is
satisfied. And as between alienees who are
Tolnnteers under such Judgment- debtor, the
same rule as to the o^er of liability shall
prevail. But any part of.snch real estate re-
tained by tbe debtor hlms^ shall be first
liable to tlie Batlsfactlon of the Judgment."
Tbls statute la little more^ If anything, than
dedaratory of an old and well settled rule
of eqoityt applied not only In tbe enforce-
maat of Judgment Uens, but also In suits to
enforce mortgagea and deeds of trust Clark
T. Timber Co., 70 W, Ya. 81% 315, 78 S. B.
919, and cases cited. In Virginia a recent
case constmlng the statute holds tttat If an
alienee Intends to rely cm tlila rale be should
allege in bis answer, or establish proof,
Uiat the real estate liable to the liens is more
than sufficient to satisfy the same. Bank t.
Preston, 97 Va. 222, 226, 33 S. IC The
fiict is alleged In the answers of the several
alienees In this case; but to each of these
answers there is a general replication, and
there is no proof of the fact But we doubt
tile construction of the Virginia court We
are disposed to hold that the statute as well
aa the old rule In equity confers a sabstan*
tlal property right, and that In all cases, where
It has practical application, the rule ougbt
to be adhered to. But where, as In tbls
ease, It cannot be applied so as to do equity
as between all tbe parties, and where un-
divided interests have been conveyed In nu-
merous tracts, and those interests are so small
as to render it practically impossible of ex-
ecution tlie rule should not be applied. Such
an exception to tbe general rule finds sup-
port, we think. In 2 Jones on Mort I 1582,
and cases cited.
A point of error, plainly a derlcal error,
In. drafting the decree is made upon behalf
of Sheridan B. Griffin and Uldiael A. Rrast
The commissioner reported due each of them,
916,9(^.67, purchase money, for which a ven-
dor's lien was retained on coal conveyed to
BainL There was no exception to the com-
missioner's report on this finding. In draft-
ing the decree appealed from they were de-
creed jointly, Instead of each, the sum of
(16,002.67. We are of opinion the decree
sbould be corrected In this respect, also
making It read that said Grlffln and Brast
eadi recover tbe sum of $16,902.67, vrith In-
terest as recited in said decree. And as thus
corrected and after it has also been corrected
in other particulars herein directed, that
tbe decree stand affirmed.
m W. Ta. 181)
BENT V. BARNBS et aL
(Supreme Court of Appeals of West Virginia.
March 11, 1913. Bebearlng Denied
May 20, 1013.)
(SyOaltut ly tk9 OotutJ
1. EtQuirr (i 210*)— JuaisDicnoif— OaouRDS.
In coDMaeraUon that J. B. would build a
good road across a trfangnlar piece of C. B.'a
land, C. B. agreed in writing to grant to blm
the small triaogte eat off by the road, which, as
stipulated in the agreement, was to be located
seven rods from the apex of the triangle, thus
forming a small trlai^le, estimated to contain
about 17 square rods. J. B., without the knowl-
edge of C B., built the road at a place much
farther than seven rods from the apex of the
trianffle, and thereby cut off a triangle contain-
ing more than 60 square rods. After the road
had been built, but without knowledge of ita
location, C. B. conveyed to T. the entire tract
of land, describing U by metes and bounds, and,
by express reference to the agreement, except-
ed from the operation of the grant the part that
he was bound to grant to J. B. Tbe agreement
between C. B. and J. 3. was not recorded, and,
at tbe time of his purchase, T. had not seen
it, but knew where the road had been bidlt by
J. B. Being thereafter advised that the road
had not been built in the place agreed uiran,
T. closed up the road; whereupon J. B. sued
him, and oMained an injnnctiou, perpetually en*
Joining T. from dosing up the road, and com-
manding him to remove tne 4^rncnons which
be had placed in it. 0. B. was not a party to'
that suit. Continuing to claim title to all of
tbe triansle cut off by the road, bat not In-
cluded in the aforesaid agreement, T. took pos*
■esaion of tlie sani& and J. B. then brought this
suit against both C. B. and T., to compel G. B.
to convey to him the legal title to all the tri-
angle of land cut off by the road, and to en-
J<^ T. foora prosecnting a threatened action of
dectment, and from committing numerous, con-
ttnuons, and petty alleged acts of trespass on
the land. Held:
That the bill was good on demurrer.
[Ed. Note.— For other cases, see Equity, Cent
Dig. IS 406^ 408-600; Dea Dig. f 210.* j
2. JuDomiiT (I 786*) — GoROLiraivxifus —
MATTUS COHOLUinD.
That tbe former adjudication does not estop
T. from claiming title to a part of the triangu-
lar piece of land.
[Ed. Note.— For other caSes, see Judgment,
Cent Dig. IS 1264v 1266; Dec. Dig. | 736.*]
8. VKITDOB AMD POBCHASEB 0 66*) -~ COK-
ascBVcnov or Oohtbact -~ Looanoif of
BOUNDAST.
That the written agreement, and not the
actaal location of the road, must determine what
is the dividing line between the land conveyed
G. B. to T., and what he had previously
agreed to convey to J. B.
[Ed. Note.— For other cases, see Vendor and
Purchaser, Cent Dig. S| 03-96; Dec Dig. S
66. •]
4. TXNDOB AffD PUBCHASBS (| 65*) — CON-
flTTBDOnON OF CoHTBACnt — LOOATIOK OF
BOUNOABT.
That C. B. is bound to convey to J. B.
only Bo much land as b Included In the writ-
ten agreement
[Ed. Note.— For other cases, see Vendor and
Purchaser. Cent Dig. If 03-06; Dee. Dig. S
65.*1
6. InjTTNcnozT i% 48*>— Subjects of BELiEr~
Tbesfass.
That, as a general rule, equity vrilt not
Oijoln a mere naked trespass to realty; yet,
I sss asm* tsple sad ssotte mnCBBR la Dsa. Uft. * AiB. DlS' i^-Ns.
Digitized
BENT T.BAmnES
376
if tbB acta an repeated and eontlnaoTu, and ao
trifling In character tbat the dama^ recorer-
able at law for each act would be small when
compared with the ez^enee of proeecutlng sepa-
rate actiong, equity will enjoin their threatened
commission, bwlns to the inadeqaacj of legal
remedy.
[Bd. Note.— For other cases, see Injunction,
Gent Dif. { 101; Dwi. DIk. $ 48.*]
Appeal from drcnlt Oourt, Randdpli
Ooonty.
BUI In eaoity hj James A. Bent against
P. Clarence Barnes and anotiter. From a
decree for defendants, platnUffl ajveala.
Affirmed.
Harding & Harding, of Elfins, fOr appel-
lant W. SL Baker, of BlMns, foe appellees.
WIUJAMS. J. James A. Bent was the
owner of two tracts of land, reetangnlar In
form, which touched at their respectire
northwest and southwest angles. P. Clar-
ence Barnes was the owner of an adjoin-
ing tract, which terminated In a sharp tri-
angle haviog Its apex at the comer common
to the two Bent tracts. One of Bent's tracts
bordered on a public highway callM the
Seneca Road, and the other was separated
from It, and also from the road, by the
abore-described triangle, across which a way
was necessary for Bent to reach one of his
tracts from the Seneca Road. In rlew of
this situation, Bent procnred from Barnes
the following writing, tIz.: "It Uf agreed by
and between P. Clarence Barnes, of Alle-
gheny county, Maryland, and Jatnes A. Bent,
of Elklns, West Virginia, that in considera-
tion of the said James A. Bent making a
good substantial public road between his
land and the Seneca Boad, through the
lands of the said P. Clarence Barnes near
the stream, that the said P. Clarence Barnes
hereby agrees to convey to the said Bent
the triangular piece of land lying on the
west end of his land, seven rods long and
five rods wide where it adjoins said road
to be constructed ; the same containing
about seventeen square rods. The said
James A. Bent agreeing tliat the said road
shall be constructed within one month from
the date hereof, and that It shall at all
times be open to the said P. Clarence Barnes
and the public generaUy. Witness our
hands and seals this 26ttL day of March,
180S. P. Clarence Barnes. [Seal.] James
A. Bent [Seal.]"
Within the time spedfled. Bent crastmct-
ed a road across the triangle, bnt located
it at a much , greater distance fnnn the
apex of the triangle than seven rods. The
triangle cut off by the road contained 60^ or
mor^ sqaare rods, Instead of 17 as In the con-
tract stipulated. Barnes never srw the land
aftw the road ma made^ The ifontract was
ezecoted at Combarland^ Md.*. the idace of
Barnes' resldwofe On Jnne 22, . 1903,
Barnes and bis wife conveyed bis tract of
land to the defendant Vtnceno TrlmboA,
describing it by metes and bonnds, but made
the following aception, viz. : "Save and ex-
cepting therefrom a narrow atrip triangle
in form on the western end of said land
which by agreement between James A. Bent
and tbe grantqrs hereoC executed in March,
1903, was granted for a public road to be at
all times open to the proprietor of this land
and the public generally." It appears that
Trimboll knew where the road was, at the
time he bought; but the contract between
Bent and Barnes had never been recorded,
and he had not seen it before he bought and
paid fOr the land. Later, however, he seems
to have been advised that the Bent road
cut off more of the apex of the triangle of
his land than the agreement authorized;
and be then asserted claim to all of tbe tri-
angle except the part described In the wri1>-
ten agreement, and closed up the road.
Bent then brought a suit to enjoin Trimboll
from Interfering with the road and to com-
pel him to remove the obstructions which be
had placed In it A tenqK>rai7 Injunction
was awarded, but later dissolved by tbe cir-
cuit court of Bandfdph county, and bis bill
dismissed. Bent thai appealed, and obtain-
ed a TCFmrsal of tbat decree, and a decree
by tbia court perpetually enjoining Trim-
boll frmn Interferlnir tai any manner wltb
bis use of tbe road, and requiring Trimboll
to 'remove all obstmctimu which be bad
placed. In it 61 W. Va. COD, 66 S. B. SSL
Barnes was not a pariy to tbat salt Not-
withstanding the result of that suit, Trim-
boll,. still claiming, tbe greater part of tbe
trlan^e cut off by tbe road, continued to
make ose of so much of it as lay betweoi
the road and a line parallel to It, seven rods
from the apex of the triangle; and Bent
brought the present snit to comp^ Trimboll
to remove structures and material from the
land, which he had placed upon It, and to
enjoin bim from prosecuting a threatened
action of ejectment against plaintiff, and
from committing other threatened and petty
acts of alleged trespass. The bill alleges
that plaintiff was in possession of tbe land,
and that Trimboll, "violently and wronj^
fully, and secretly In the nighttime, attempt-
ed to take, and did take, possession of said
land, and then and there tore down the
plalntttrs said fence, bars, and gates, on
said land"; and further alleges that Trim-
boll Is threatening to Institute sn action of
ejectment against plaintiff, and is now build-
ing houses and shanties on the land. Barnes
Is made a party, and the bill prays tbat
he be compelled to convey to plaintiff all of
the triangular piece of land west of tbe
road. Trimboll and Barnes both answered,
and geneijal replications ttiereto were made,
and dep<^tioiis were teken and filed by
Bent and Trli^boU, The bill also exhibits
•Fof othsr^etassaunetople ind seettos HTOHBBR la DsO. Dig. * A«l Dl» K«r-^,f^g^^ig*p(^)l@^^
379
78 SOinniSASTBBN BKpORTBB
(W.Va.
ttie record. In fonam nit Tt» ennse
flnftlly heard oq tbe Kth of Februair*
1910, and a flpaldeoraemad^ whereby Barnes
was reqinlr«d to. execute to Bent a d^ed Cor 17
BQnare rods at the apex oc the triangle, de-
acrlblng It; dissolvlns the preliminary In-
junction restraining; TrlmboU from trtspaaa-
1ns npon the land, which had been granted
tn tbe meantime; and dlrnnlwilng th« blU,
BO far as it sought relief against Trlmboll.
Bent has appealed from that decree.
[1, i] It Is urged that the demurmr to tbe
bill Bhovld have beoi sustained. Tbe courc
did not directly pass npon it, bat it was, in
eCtect, orermled 1^ the final decree. Dlm-
madc T. Wheeling TracUtm Go., 68 W. Ta.
226, fi2 S. B. 101; McQraw t. Bank, 64 W.
Va. m 68 & B. 888. The UU Is good on
demnrrer. Bait*s only relief was in equity.
He <ilaimed the land by Tlrtne of bis agree-
ment with Barnes, which gave him only an
equity In the land; and hft could ntfthro
successfully prosecute nor defend an action
of ejectment on bis equitable claim. Uis
suit was to get In the legal tiUe from Barnes,
and Trlmboll was a necessary party, because
he daimed tbe same land deed from
Barnes, and was slipped to be in possession
of it HsTlng Jurisdiction of the cause and
tb» parties, equity could administer full nd
complete rellet It eonld iverent, injunc-
tion, (he conunlssi<m of such acts of trespus
npon the land for wbich tbe law does not
afford an adequate remedy. And while it is
true; as a general rale, that equity will not
enjoin a mere naked treqwss to realty, yet
If tbe acts axe repeated and continuous and
are so trtfllng In character that the damages
-reooTwable at law for each act-would be
small when compared with the expense of
prosecuting a^iarate actions therefor; equity
will grant relief by Injunction, owing to the
Inadequacy of the legal remedy. 1 Ht^ on
Injunction (4th Ed.) H 687, 7Q2a; Ifiller t.
Wills, 9S Va. 887, 28 S. B. 337; Oaihtway T.
Webster. 98 Va. 7B0, 87 B. E. 276; Lembeek
T. Nye, 47 Ohio St. 386. 24 S. B. 686. 8 I*
B. A. 678, 21 Am. St Rep. 628 ; Edwards t.
Haeger. 180 IlL 99. S4 N. B. 176 i MUU r.
New Orleans 8. Cki.. 65 Miss. 891. 4 South.
298. 7 Am. St. Bep. 671 ; New York. N. H.
& H. B. Oa T. SooTlU, 71 Conn. 136, 41 AtL
246, 42 L. R. A. 107. 71 Am. St Rep. 169 ;
Boston ft Maine B. B. t. SuUlvan, 177 Mass.
230. C8 N. B. 689, 83 Am. St. Rep. 276; Pohl-
man t. Evangelical Lutheran Trinity Church,
60 Neb. 364, 83 N. W. 201; and McClellan t.
Taylor, 64 S. Q 430, 82 8. E. 627.
[2-4J The principal question is: Is Bent
entitled to a conveyance from Barnes for all
tbe land west of his road, or Is he entitled
to only 17 rods at the apex of the triangle?
If be Is entitled to all west of the road. It
follows that the decree is not only erroneous
In that It fails to compel Barnes to make blm
a deed for that much, but it is erroneous In
that it dissolved the preliminary Injunction
agslfist Trimbott to tfrevuit bis.rw^ated acts
oi trespass i^on It But If l)e,Is entitled to
only so mudi as court bc^w found him
oititled to, then the decree Is rii^t tn all
respects, and must be affirmed. ■
It is evidoit that'Bames conveyed all of
Us land to Trlmboll exc^ what be bad pre>
Tionsly agreed to convey to' Bent. It there*
fOTe follows that Barnes has legal title to
only wo mucb as Bent has eiialtabla title to,
by virtue of his contract witb Barnes.
Bamea has parted with all hie interest In
the land, either to Trlmboll or to Bait And
It la imdsted by appellant that the decree in
the former suit la an adjudication of the
qnesttona In tbe presttit suit But we do
not think so. Looking to the bUl In the
former suit, we And that tbe title to the
land was aot involved. Only tbe right to the
free and unobstructed use of the road, where
Bent had cfmstmcted it, was there litigated.
Barnes was. not made a party, and no relief
against him was sought Therefore the de-
cree in that snit la. In no weaao, an adJudlca-
ti<m against Baxnea. Bnt, having parted
with aU beneficial interest In the land. It Is
now Immaterial to him where the road la in
fact located; but, in no view of the case,
can be be compelled to do more than he
■agreed to do. At the time he oonvei^ the
land to TrimboU, he did not know where
Bent had built the road, bvt he' was careful
to except from the operation of the deed the
small piece that he had prevlonsly agreed to
convey to Brat- for a public road. Having
now no tnteiiest In tbe land, Barnes can have
no Interest In the location of the road, fur-
ther than It may serve as mattw d^crlp-
tlon. to determine the line by wbtcb he sbonid
convey to Bent There Is no effort by de-
fendants In Uils suit to have the road re-
located, nor could It be done If they desired
It It Is now only an evidendary matter.
But Barnes stands upon tbe written agree-
ment, and Bent could not change its effect,
without his consent, by building bis road In
the wrong place. He could not thus compel
Barnes to grant him more land than he bad
agreed to grant him. So that notwithstand-
ing the iocatlott of the road Is res Judicata,
it still does not define the easteru boundary
line of the triangle which Barnes should con<
rey to Bent, unless located according to the
agreement Barnes can only be compelled to
comply with his written agreement; it must
control. By it he bound himself to convey
to Bent the "triangular piece of land lying
on the west end of his land, seven rods long
and five rods wide where It Joins said road to
be constructed; the same containing about
seventeen square rods." As between Bent
and Barnes, this contract must determine
where the road should be; and, when that
is ascertained, It necessarily becomes the
property line between Bent and Trlmboll;
for Barnes conveyed to TrlmboU the land up
to that line, and not the land up to the road
located at any place Bent may have seen
atto i««Mtt. It ta H-f^^
m
the road very much farther from Hie apex
of Um triangle than 7 rods, and thereby cut
oft more than 60 square rods, Instead ot
atwut IT. as provided in the contract. There
Is mnch conflicting evidence, and It would be
a useless, taali^ to -review It in this opinion.
It sniBces to say that we have, carefully read
and considered tt, and we think it Is fdUy
proven that the road was hot located where
it should have been. Two Important facta
are clearly proven, and not denied. One la
that when Trimholl bought from Barnes he
knew of an agreement between Bent and
Barnes, and knew whtte Bent had built the
road, but he had not seen the agreement,
and therefore did not then know whether
Bent bad violated It or not The other is
that, at that time, Barnes did not know that
the road bad been buUt Hence he referred
to tbe agreement with Bent, Instead of the
road, to define the boundary ot the l&nd
which he excepted from his grant to Trim-
boll. So that, even if TrlmboU then actual-
ly believed be was getting the land only up
to the road, he is not thereby estopped from
claiming title to all his deed actually gives
him. That Is a matter between Trimboli
and Ms grantor, and not a matter of which
Bent can claim any advantage, for he has
right to only so much land as his contract
with Barnes gives blm.
Finding no error In the decree^ tt will be
affirmed
Cn w. va. 04)
STBTENS V. JOHNSON «t at
{Supreme Court of Appeals of West Vlnginla.
Ifay e, 1913.)
/BuOahiu by tht CoHrtJ
1. RaroKiunoN ot Jntrrmmwm (i 46*) —
MiSTAKX— REi-DEP—Paoor.
Eaulty will relieve against a mntaal mis-
take in tbe execution of a deed only where the
mistake is clearly established, by proof that
Isavoi no feasoaable doubt that the writing doea
not correctly embody tbe real intoitioa of Uw
parties.
[Ed. Note.— B'or other cases, see BefotmatloD
of Instmrnents, Cent I^. Q 167-m; De&
2. APPBAL Airs Ebbob <| lOOD*)— Txiriiziro—
Coifrucnira Bvidknob— ©QTrirr.
A finding in equity tnmk cmfitetlac
dence, not contrary to a plain pr^Moderanoe,
will not be disturbed on appeaL
[Ed. Note. — For other cases, see Appeal and
En«r^^Gent Dig. H 8970-^3978; Dea Dig. |
Appeal from Clrcoit Goiurt, Greenbrier
County.
Bill In equity by Joseph W. Stevens
against L. B. Johnson end others. From de-
cree for defendants, plaintiff appeals. Af-
firmed.
J. 8. McWhorter, of Lewisburg, for sibi-
lant Bmry Gllmw, of Lewlsburg, and T. N.
Bead, of Blnton, tat appellees.
ROBINSON, 1. Stevens conveyed to Uly
a tract of land. No vendor's liea was retain'
ed In tile deed, for deferred 'purchase money
to be paid in one year. JtAoson, a banker,
fnmtshed - the cash payment, and Ely Imme-
diately conveyed a one^half ' iDtereat In the
land to blm. Later, Ely, who had become
Involved financially -within the year, convey-
ed the remaining one-half iaterest te John-
son. So it was that Johnson protected him-
self as to Ely's indebtedness to his bank, for
which indebtedness Jolmson, as an officer
of the bank, bad become liable by reason of
permitting Ely to overdraw. But Stevens
was left wholly unprotected as to the pur-
chase money due him. Thereupoh he brought
this suit, seeking to set up and establish that
the omission of a vendor's lien in his deed
to Ely was a mutual mistake of the parties,
and that Johnson took conveyances of tbe
land with knowledge of the mistake. In tbe
alternative, Stevens also alleged that the
conveyance to Jotmson of the latter one-half
Interest was wholly voluntary and fraudu-
lent If tbe deed could not be corrected as
to the alleged mistake, Stevens sought to
have the last conveyance to Jolmson set aside
as for nau^t, so that the property conv^ed
thereby might be Impieaaed wlA the pur-
chase money debt Upon a hearing, the court
dismissed the blU.
[1] The evidence does not establish that
by a mutual mistake the retaining of a ven-
dw'a iioi was omitted from the deed of Ste-
vens to Ely. Such a mistake In a written
Instniment as plaintiff asaarts can only be
corrected in eQUlty by clear and satisfactory
evldenca Jnatiee Story aaya: "If the i^roofs
are donbtfnl and misatisf actory, and Cbe mis-
take is not made eatSitety plain, equity win
wltblu^ rdlef, np(m' the groniid th^ 'the
written paper on^t to be treated as a fnU
and oorreet coEpreHden of the lnt»t nntll
the contrary la batabllahed beyond reasonable
controveny." Eq. Jnr. sec: 1B2. We have
cases annouscinc th{s almost elementary
mie. JarreU v. JarreU. 37 W. Va. 748: Eoen
T. Kema, 47 W. Ta. 6TS, 85 S. & 902; BoUn-
son T. Bralden. 44 W. Va. 188, 28 S. B. 798,
and othdrsL Equity will relieve against a
mutual mistake In the mention of a deed
only where the mistake is dearly estabHsh-
ed, by proof that leaves no reasonable donbt
that the writing does not correctly embody
tbe real Intmdon of (he parties. It anfflcoa
to say that the evidence In the record before
ua does not plainly show that, at the time
the deed was executed, botti parties thereto
intended It to contain reservation of a ven-
dor's lien. And evoB if a mutual mistake In
this particular were shown, the evidence is
not sufflcient to charge Johnson with notice,
when he took conveyances for the land, that
the parties had been mutually mistaken In
not writing a vendor's Uen in the deed of
Stevena to Ely.
qpor oOw eaaw ■•• mum te^ and MOtlfla NUHBBft la Dm. Dig. a Am. Dig. Kq-BteifliBliW)'
378
78 BODTHEASTBBN BEPORTBB
(W.Va.
12] Nor Is the diaige ot rploatarlneflB and
fraud In tbe last conTcgranee of Bly to Jolm-
8on aoBtalned. Job&wm provea tbat be took
tbe ooBTeyance tm tbat which la a consider^
atton deemed Taluable In law. True, some
admlaidmiB of JoIuuHm to tbe conttair are
shown, but on Oils conflict we can not by
any means say tbat the chancellor was maui-
festly wrong. A finding In equity from con-
fllctlng evlden<», not contrary to a ^aln ive-
ponderance, will not be disturbed on appeaL
Bradshaw T. nunawortb. 65 W. Va. 28» 63
S. IIL756.
It la submitted on cross assignment tbat
defttidant's demurrer to the bDl shoold bare
been sustained, on tbe i^und ot Inconsis-
tency in the altematlre features thereof.
But our ctmclnsion that the blU was proper-
ly dismissed at the bearing precludes neces-
sity for a consideration of tbe sufficiency of
the blU.
An affirmance of the decree wlU be ordered.
(71 W. Va. nS) mt^^m
SMITH T. WHITE et aL
(Supreme Court of AppealB of West Virginia.
Jan. 2L, 1818. Kebearbig Denied
May 29, 1918.)
fSyllabu* bjf tht Oovrt.)
1. TailDOB AKD Pdrchaseb (| 174*)— Abatx-
mrr or Paion— BanACH or Govbhant.
In a suit to enforce a vendor's Uen, equity
has jarlsdictloD to award relief to the grantee
by abating from tlie purchase price any dam-
age reaalting from a brea<^ of liia grantQi's
coTenanta; and the damage may be ascertain-
ed either b; directing an issue quantum damnt-
ficatus to be tried 07 a jury, or by reference
to a commisaiooer.
[Ed. Note.— For other cases, see Vendor and
Purchaser, Cent. IMg. |i 308» 8S9; Dec Dig.
i 174.*]
2. C0TBIVA11T8 (i 9^ — PasroBicANOB os
BBBAOH— GOVBKART AOAinST IKOUSCBRANC-
B8.
A covenant against incumbrances Is one
in present!; and, if broken at all, is broken
the instant it Is made.
[Bd. Note.— For other cases, see Covenants,
Gent Dig. i| Ul-129; Dec Dig. | 96.*]
8. GOVKNAKTS (I 96*) — PiBFOBlUnOB OB
Bbeaoh— Covenant Aqainsi Inouubbanc-
B8.
Such a covenant is broken by the exist-
ence, at tbe time of executing the deed, of a
continuing right of way over the land granted,
in favor of a third person; and if ancb ease-
ment materially affects the value of the land,
it entitles the covenantee, at once, to sub-
stantial damages, \riietber the easement be in
actual use, or be only potentlaL
[Ed. Note.— For other cases, see Govensnts,
Cent I»g. IS Ul-129: Dec Dig. | 96.*]
4. COTXNANTS (I 127*) — FXBIOBlEARaB OB
Bbbach— GoTBRAicT AoAiNBr Incdkbravo-
The tme roeasare of damages, in sudi
case, is the difference between the market
value of tbe land subject to the easement, and
its market value if the easement did not exist
[Ed. Note. — For other cases, see Covenants,
Cent Dig. M 238-242, 258; Dec Dig. {
127.*]
5b Ybndob and PtracHABEK (I I'RS*)— Bbbach
op Govbnant—Abatement or Pbick.
A covenant of general warranty is so far
broken the failure of plaintiff's title to a
portion ot the land granted, even though the
grantee's posaeasion has not been actually dis-
turbed, as to authorize a court of equity to
relieve the grantee against the payment ot
the purchase price pro tanto.
[Bd. Note.— For other cases, see Vendor and
PuKhaaer, Cent Dig. y 800-868; Dec Dig.
6. VXNDOa ARD PUBCHASEB (f 175*>— RiOHTS
OF Pabtibb— Abatekent or Pbicb.
Xd case of the failure of plaintiff a title
to a particular portion of the land granted,
the amount to be abated on account thereof
,i8 not ascertained by the average price per
acre for the whole tract but Is the rdative
value of the land lost
[Ed. Note.— For other cases, see Vendor and
Purchaser, Cent Dig. %% 860-363 ; Dec Dig. f
175.*]
(AMiUonal BvUahitt by Editorial Staff.)
T. BquiTT (I 39*)— JuitiSDicnoR— Rbtehtion
lOB Oomfi:.ete Relief.
Where a court of equl^ has jurisdiction
of the subject-matter and the parties. It will
administer complete relief; and, where the
defendant's cross-bill avers facta entitling it
to relief though there may be an adequate
remedy at law, the cross-bill should not be
dismissed.
[Ed. Note.— For other cases, see Egnitr*
Cent Dig. $| 104-114 ; Dec Dig. i 39.*]
AHwal from Oircnit Court, Mlngo Goun^.
Suit in equity by WW M. Smith against
U. Z. Wlilte and others. From a decree ftv
Idaintiff, defendants appeaL Reversed and
remanded.
Edward O. Lyon, of New York City, Brown,
Jackson & Enlght, of Charleston, and Sh&p-
pard, Goodykoontz & Scherr, of Williamson,
for appellants. Stokes & Bronson, of Wll'
liamson, for appellee
WILLIAMS, J. This suit is brought by
WUl M. Smith against M. Z. White and the
United Thacker Coal Company, a corpora-
tion, to enforce a vendor's lien reserved la
a deed for 688.5 acres of land. The deed waa
executed by Smith to White August 7, 1907,
and contained the following covenants, vis.:
"Tbe parties ot the first part covenant to anft
with the party of tlie second part that tiwy
will warrant generally the said lands and
property her^y conveyed, and Uiat said
lands is free from all incumbrances." The-
conslderation was 942,000, and the suit is to-
enforce the last deferred paym^t, being $14,-
000 with interest from date. The suit was-
brougbt orlj^lly against M. Z. White alone.
White answered ttiat t3ie land was purchased
by him for the United That&er Coal Cbm-
pany and that it furnished the money with
wblcb to make the cash payment and to pay
the first deferred purchase-money note, and
averred that, Immediately iqwn receipt ot
the deed to blm, lie had execateA to said
*For otlisr eases
see same topic and seetlon NUUBER In Dee. Dig. a Am. Dig. Kejr-Nc SerlaiLft.R«p'r !&<!«••
Digitized by VjOOglC
W.Taj
8HITH T. WHITS
379
compaoy a wrttten declaration ot trust
Thereupon plaintiff amended Ua bill bringing
In the coal company. It answered the bill
and amended bill, setting up the defenses
that plaintiff's covenants were broken, In
that Ms title to 60 acres, a part of the land
conveyed, was fatally bad, and that there
existed upon the land, at the time of the
conveyance, a rl^ht of way la favor of the
Logan Coal & Timber Association created
by deed executed by iJacob Smith, plaintiff's
devisor, In the year 1900. That deed grant-
ed to certain named trustees for the Logan
Coal & Timber Association, a right of way
along Mate creek, over the 688 acres of
land "for the construction and use or roads,
roadways, tramways, railways, and bridges,
for the purpose of transporting coal, gases,
salt-water, oil and minerals, luga and lumber
and every description to, from and over a
certain tract of parcel of land lying on Mate
creek in Mingo county, West Virginia, and
adjoining a tract conveyed by the said trus-
tees to the said Jacob SmlQi upon certain
trusts, etc, by said above-mentioned deed,
together with full mining privileges and the
rlgbt to erect tipples, and other bttUdings or
atrucCnrea necessary for mining and maAet-
Ing aald minerals and lumb»." The defend-
ant company in its answer alleges that said
trustees are asserting the rights conferred by
said deed of November 1. 1000. and are
threatening and fully Intending to use all of
the rights conferred by that deed* and that
said rigbts materially affect the value of re-
apondaiCs laud which was purchased on ac-
count of its coal; that the valley of Mate
creek is narrow and the mountain aides steep,
and that the only practicable way of 6sfwtSaSh
ing respondent's coal Is by means of a rail-
road and coal tipples, along Mate creek,
wUdi may be wholly occupied by the claim-
ants of the aforesaid easemoit; and aTened
that It had snfEerod damages by reason of the
^istoice of said easement to the amount
of $20,000.
The court sustained a demurrer to the al-
legations of def^dant's cross-bill answer
relating to the breach of covenants and claim
for damages, and gave a personal decree
against the defendant M. Z, White for
Sffl, and, in def&nlt of Its payment, decreed
a sale of the land. From that decree de-
ftadauts have appealed.
[7] It is a settled principle of equity that,
liaving Jurisdiction of the subject-matter and
the parties. It will administer complete re-
lief to all parties. If defendant's cross-bill
avers a state of facts wfalcfa entities it to
relief, even though it may have an adequate
remedy on account thereof in a court of law,
its cross-bill answer should not have been
dismissed. The chancellor evldentiy dismiss-
ed it because be thought equity had no ju-
risdiction to administer relief, for he did
so without prejudice to the right of defend-
ant to institute another suit. But it has long
been the settled rule of practice, boQi in
Virginia and in this state, that a court of
equity, when once it has acquired Jurisdic-
tion of the cause of action and the parties,
will determine all questions Involved, and
settle the rights of all the parties, even
though it should necessitate the ascertain-
ment of unliquidated damages. W. Va., etc.,
Land Co. v. Vlnal, 14 W. Va. 637; Mason v.
Bridge Co., 17 W. Va. 396; Forsyth v. City
of Wheeling, 10 W. Va. 318; Bettman t.
Harness, 42 W. Vft, 438. 28 S. B. 271, 36 L.
R. A. 666; Hotchklss v. Plaster Co., 41 W.
Va. 857, 23 S. E. 676. "Equity having ac-
quired jurisdiction of a cause for one pur-
pose, although the relief sought be finally
denied, any relief, legal or equitable, justi-
fied by the pleadings and tending to end llti-
gattoh between the parties, will be granted."
Evans t. Kelley, 40 W. Va. 181, 38 S. E. 497
(Syl. pt 3); Grubb v. Starkey, 90 Va. 881,
20 S. E. 784; Miller r. Wills* 05 Va. 337, 28
S. E. 337.
In Mason t. Bridge Co.. supra, plalntUt
was owner of an interest in a ferry franchise
on the Shenandoah rtver, and tiw defendant
was about to erect a toll bridge across the
river in dose proximity to tiie ferry landliv:
he sued in equity to enjoin the erecti<n of
the bridge; he also alleged that stone bad
been taken from bis land, by defendant, for
the abntmfints of Uie midge^ and prayed for
an accounting for the value of the sterna so
taken, and for damages done to his land, as
w^ as for an injunction. On the hearing
the drcDit oonrt dissolved the injunction
wbidi had been awarded by the oonnty oodit,
and at a later day disndssed plalnUlTB UlL
On BH>eal this court reversed the decree of
the drcult court in par^ and continued the
injunction in force, so far as it restrained the
bridge company from constructing and using
its bridge until compensation was paid or
secured to be paid plaintiff on account ot
the damages to bis ferry ttandiise, and re-
manded the cause to the circuit court for
the ascertainment of damages by directing
an issue quantum damniflcatus.
In Forsyth v. Wheeling, supra, Mrs. For-
syth brought a suit to enjoin the dty from
opening and using a street across her lot
without her consent, and without any pro-
ceedings to ascertain what would be a just
compensation to her for the land to be tak-
en therefor. She also claimed damages tor
the trespass already committed before suit
brought The circuit court perpetually en-
joined the city from opening tiie street, but
failed to give damages for the trespass. On
an appeal taken by the dty, plaintiff crosa-
assigned as error the failure of the court
to award her damages for the trespass. This
court sustained the point, and reversed so
much of the decree as failed to provide for
ascertaining plaintiff's damages, and remand-
ed the cause with Instructions to refer it
to a commissionet to
380
78 S0UTHB4^TEW BBPOBTSB
Am fartber lUiutntloc oqnlt? Jnrisdlctioa
In racb matten, fUa court bu liel.& that,
where .t^ere has been a conveyanee of land
with corenanta of general warranty, which la
a covenant real running with the land and
Is never considered aa brokoi until an ouater,
equity has power, neTertheless, to oUoln the
collection of the purchaaa money before act-
ual ou8t«, U it be clearly Aown that tbe
Kr8ntor*B tltie la defectlTe. Harvey v. Byan*
59 W. Ta. 134, S3 S. B. T, 7 B. A. CN. SJ
445» m Am. St Rep. 897.
[1] The purpose of the present suit being
to enforce a Tender's lien, It is clear that
the Tffiidee has the right to set op, as a mat-
ter of defense thereto, the brea<di of any cove-
nant contained in the deed, which would en-
title him to damages in an action at law
therefor. It would be Inequitable to require
the vendee to pay the purchase money when
be has a present right of action against his
covenantor for breads of covenant, and take
the risk of bis Insolvency U be should there*
after sue at law. The cov^uintor is In de.
fault and baa no night to demand the pur-
chase price until he makes good his covenant,
either by removing the Incumbrance or ro-
qtonding la damages.
[2] A covenant against Incimibrancefl la a
personal, not a real covenant; It Is a cove-
nant tn preesenti and is broken the instant
tbe deed la executed, if the incumbrance isx-
Ists. And It Is a general rule of law aubject
to tew. If any, exceptlouB, that a broken cov-
enant is not technically assignable; l^t Is,
It does not pass by grant of the land. An-
^otber rule, universally recognized by the
courts, la that a breach of covenant affords
immediate right of action. Consequently,
there ia no qneBtlon that defendant^ In this
case, coold have sued on the broken covenant
the instant the deed waa ddlvered.
[t] The <»ily onestlonB In tbe case whldi
have given na any aerlons trouUe are; U)
Has defendant Buffered substantial damages,
dnce it appears Oiat the claimant of the
aasonent has not yet actually occupied Its
land; and (2) If entitled to sobstantlal dam-
ages what, is the mroper rule for aseertain-
ing 0iun1 On these points titme ia some
flonflict in the dedsiona of tbe various courts
of the country; some of them taking the
view tba^ until the eoraiantee has either
been put to the expense of rmmvlng the
incmnbrane^ or has been dlstnrbed in his
poBBession by an actual adwae oocnpadon,
his damage is only nominal. On the other
hand, a number of courts hold that^ it the
easement la a ctmtinning and irremovable
one, the covenantee is entitled to substantial
damages r^ardless of whether his posses-
sion has been actually dlaturbed; and it ap-
pears to us that the latttf is much the more
equitable rule, and Is more in harmony with
other well-eatabllahed principles of law.
Using the present case aa an Illustration, the
statute of limitations nnauestlonably began
to run against the covenantee from the ex-
ecution of the deed, and If it be' not entitled
to substantial damage until the railroad and
tipples are actually buUt on its land, and
tf this should not be done within ten years,
and should be done thereafter, it would be
remedlleas. But it alleges in its answer,
which la in' Its nature a cross-bill, ttiat It pur-
chased the land on account of the coal It
contained, and for the purpose at opening
and operating coal mines upon it; that the
valley of Mate creek is so narrow and the
mountain sides so steep that It Is not prac-
ticable to build more Uian one railroad in
said vall^ ; that It Is the only place furnish-
ing acoesa to Its property for developing It
and marketing the coal; and that the occu-
pation of the creek by the existing right of
way In &vor at the Logan Goal ft Timber
Assodatlon vlrtnally destroys the value of
defendant*a property. In view of these fftcts
and drcnmstances, wbldi def^dant was not
permitted to prove, but which upon the de-
murrer must be taken as true^ Is it not ap-
parent that defendant has suffoed substan-
tial damages, even befbre the right of way
baa been actually made use cfl There can
be no doubt that the mere exlstmce of sudi
an easement does materially dlTpinlrti the
market value of the servient estate. Isnotttw
Jus dlsponoidl essential to the complete oi-
joyment of land, and Is it not a matter of
material interest to the owner to have . It
cleared of any -incumbrance that substantial-
ly ^Unlnlshes its value In the market? How
can an owner of land be said to have full
and complete adoyment of it, it he Is not
able to . sell it for a fair and reasonable
price because of the distance of an incum-
brance on it? Again, suppose defendant
should desire to develop its land, by building
a railroad, opening coal mines, and erecting
tipples; could it safely erect a single tipple,
or build a yard of railroad, without risk of
disturbance in the enjoyment Uiereof, by the
Owner of the enpolor right? So that, wheth-
er defendant desired to sell or to develop
Its coal land. It would be materially embar-
rassed. It is therefore inequitable to deny
defendant substantial relief; Its Injury Is
material, and its relief should be substan-
tial and complete.
[4] In case of a permanent, Irremovable
easement, the rule for measuring the dam-
ages suffered by the owner of the servient
estate Is the difference between tbe market
value of tbe land with the easement upon
it, and its market value it the easement did
not exist And tills difference in value would
seem to be Just as easy of ascertainment,
whether the easement Is actually used, or ia
only potential.
[C, I] This court has frequently held that
equity has Jurisdiction to abate from the
purchase price of land sold by the acre, be^
cause of a shortage. Butcber v. Peterson, 26
W. Va. 447, 58 Am. Hep. 89; CrlsUp, Guard-
ian, T. Cain. 19 W. I'^^.^l.^i^J^^
W.Taj
81CITH T. WHITS
881
6 L«lc!i (Vb.) 606; Smltb «. Ward, 00 W,
Ta. 190, 66 8. X. 234, 83 K R. A. (N. a)
103a And the general rnle tot determining
the amount to be abated Is the average price
per acre mnltlpUed bj tbe number of acna
wanting. But this rule Is subject to tbe ex-
ception that, it tbe abatemmt Is on account
4tf tbe lOBB of ft particular part of the land
which has been conveyed, because of the
failure of grantor's tlfle thereto, the amcmnt
to be abated Is not tlMiti the avoage price
per acre^ but is the relatlTe ralue of the
particular land lost Bntdier r. Peterson,
enpra: Smith t. Ward, 66 W. Vs. 190, 66 8.
E. 234, 88 Lu B. A. <N. S3 1080. Such an
abatement Is no more certain of ascertain-
meat than are the damages In the present
case:
• K&logg T. IfftUn, 02 Ma 429, was an ac-
tion at law for breach of a coTonant against
iDcumbrancea; but it serres well to illustrate
the rule for the aacertalnmait of damages In
the case of a continuing and Irremo Table In-
cumbrance. In that case the Incumbrance
was a railroad right of way. only part of
which was actuaUy occupied by the railroad
track; tlie unoccupied part on eatdi side of
the track being occupied and cultivated by
the corenantee under pennlssion from the
railroad. The trial court, Its inslrac-
tions, authorised the Jury. In estimating the
danages, to consider not only the land actu-
ally occupied by the railroad* but also to
take into consideration the perpetual right
of the railroad company to occupy a strip
SO feet in wUlth on either side of the center
of its track; and those instructions were
held by the Supreme Court to state the law
correctly.
The opinion In Funk t. Vonelda, decided
by the Supreme Court of Pennsylvania In
1824 and reported in 11 Serg. & R. 109, Is In-
Btructive, because of tbe able discussion of
the question which we are now considering.
Funk had sued Vonelda and another, as ec-
ecutors of Wm. Beditoll, deceased, for breach
of covenant against Incumbrances. Prior to
the conveyance to Funk in 1814, fiecbtoU had
executed a mortgage upon the land, payable
in Installments, the last of which was to
become due In April, 1830. Flalntlfl had
failed to allege any special damage, and the
court below Instructed the Jury that he was
not entitled to recover anything. But the
Supreme Court reversed the Judgment, Snd
held that he was entitled to recover at least
nominal damages. And, notwithstanding the
opinion in that case Is purely obiter, so far
as it relates to what plaintiff should have
recovered, if his declaration had contained
the proper averment as to damages, it is
nevertheless worthy of consideration because
of the force of its logic. On pages 114 and
115 of 11 Serg. & R., I>nncan, J., says: "On
the whole of this case, my opinion Is that the
charge of the court was erroneous, as the
plaintiff liad a cause of action, without proof
of actual damage, on the breach which in-
stantly arose, st least, fbr Dondsal dsiBSgwi.
And alth^ui^ tbe ground is untroddoir it Is
the <vinion of my brother Gibson, as well
M myssllf, the Chief Justice giving no opin-
ion, not Imvlng been present at the argument,
that the plaintiff, by assigning q>ecially tJw
conssQuential damages arising from the
tveadti oC covenant, acoordlng to thci evidence
aavnO. by bim, stating that the land was of
less value, by reason of the incumbrance
and that he was prevented fnnn selling It as
advantageous^ sa he mtglit have done, and
that in Csct it was sold 1^ process of law ftir
so much less, would be entitled to recover
tbe full value of the mortgage. Whether
a grantee could no^ by calling on the grantor
to mnove the incumbrance recov^ this val-
ue where tbere had been no sale, no evic-
tion, and even before the mortgage money be-
came due, is another question, which it is
not necessary now to dedde. But in tracing
this doctrine, both in courts of law and
equity, it is by no means clear that in our
mixed administration of law and equity, he
oui^t not It would be very inconvenient if
he should not Transfers of land are so very
Crequrat ; lands are so contiLnually changing
owners; the policy of our laws is so mudi
In favor of removing ev^ Impedlent in the
way of alienation; and the hardship Is so
great on the grantee, who Is entitled to the
full benefit of his covenant — that I would
fed a strong desire to relieve him, If by anal-
ogy to any principle of the common law,
or any rule of equity, it oould be done. For
the grantee to wait until he is evicted, locks
up all property ; suspends all improvements ;
for who would be wlUlng to make Improve-
ments, and wait till he Is evicted ; and when
he, tIe., the grantor, may be unable to make
any compensation. The arguments ab Incon-
venlenti are unanswerable. And wtiy Should
he not be obliged, isunedlat^, to perform
his covMiants?"
Mitchell V. Stanley, 44 Obnn. 812, was an
action for damages for breach of covenant
against incumbrances. The Incumbrance
there was a right of way along and over
plalntiCTs land, within ten feet of a canal,
for the purpose of cleaning and repairing tbe
canal, upon paying the owner of the land
reasonable damages. In the action it was
found that the actual damage for the exer-
cise of the right, up to ttie time of bringing
the suit, was $10. but tliat the land was
worth (760 less because of the existence of
the Incumbrance. The court below rendered
Judgment for |10 only. But on appeal the
Judgment was reversed; the Supreme Court
holding that plaintiff was entitled to recover
$750.
The rule Is thus stated by Washburn, In
his work on Resl Property (6th Ed., vol. 8.
I 2411): "If the incumbrance be of a per-
manent character, such as a right of way or
other easement which impairs the value of
the premises snd cannot be removed by the
purchaser, as a "natter^f^^^ij^^^j.
882
78 SOUTHIDABTIIIBN BBPOBTBB
(W.T«.
wlU be measured by the diminished valne of
the premises thereby occasioned, to be de-
termined by a Jory." To the same effect Is
the text In IS A. & E. B. L. (2d Ed.) 179.
See, also. Lamb r. Danforth, 59 Me. 322, 8
Am. Rep. 426; Fagan t. Cadmus, 46 N. J.
Harlow v. Thomas, 15 Pick. (Mass.) 66.
was an action for breach of coToant against
incumbrances. The breach there consisted
In the existence of a right of way over plaln-
tlfTs land. In favor of a third person. The
court held that he was entitled to recover
substantial damages.
The fact that the deed, grantlDg the right
of way in question, was recorded, or that de-
fendant's agent. White, may have had knowl-
edge of It, cannot affect its right of recovery
for breach of the covenant Such evidence
Is not admissible to vary or contradict the
express covenant that no Incumbrance edst-
ed. Barlow v. Thomas, supra.
Defendant is also entitled to an abatement
from the purchase price to the extent of the
valne of the 50 acres, part of the 688.G acres
provided it can prove the allegation In Its
answer in respect to plaintiff's defective title
thereto. Butcher v. Peterson, 26 W. Va. 447,
63 Am. Rep. 89 ; Harvey v. Ryan, 69 W. Va.
134, 5S S. E. 7, 7 L. R. A. (N. S.) 445, 116
Am. SL Rep. 897.
It was plalntlfTs duly to remove the in-
cumbrance, and to perfect bis title to said
50 acres, if defective, or answer to defendant
In substantial damages therefor. And, in
case of the easement, such damage is the
difference in value of the land, subject to the
easement and its value If the easement did
not exist The drcult court erred in failing
to ascertain the damage and in not giving
defendant an opportunity to prove the al-
legation mmceming the defect In plaintiff's
title to the 60 acres. The decree appealed
from will be reversed, and the cause remand-
ed to the circuit court of Mingo county for
further proceedings therein to be had ac-
cording to the principles herein announced.
Reversed and remanded.
tnw.Ta.4M)
STATE T. HASSIB.
(BoprHDe Gonzt of Appeals of West Virginia.
May 6, 1913.)
(BvHoIiu by the Court.)
1. HlOHWATS (S 164*)— Obbtbuction— CaiM-
IWAI. PEOSEOtmON— iNDICnatNT.
An indictment, under sectiOQ 1615a80, Code
Supp. 1900, for obstructing a public road,
which charges that defendant "did knowingly,
wilfully and unlawfully obstruct a certain road
and pass way, to-wit, the road and pass way
leading from the land of S. A. Parker, in Jump-
ing Branch District, adjoining the said W. J.
Masde, over the landa of said Massie, where he
now resides, in said district, to the public coun-
tr road, leading from Jumping Branch to Flat
Top, by tben and there unlawfully locking a
gate over and across said road and pass way and
continuing the same from said time hitherto.
In consequence of said unlawfully lodcing of
said gate by the defendant, W. 3. Massie, said
road and pass way was rendered impassable for
all the time aforesaid, said road and pass way
being lawfully owned by and used by uid A. S.
Parker, at the time aforesaid, against the peace
and dignity of the State," omitting the words,
"and to woich road the public has the right of
or is not denied the use," employed in section
1616al, defining a public road, is bad on de-
murrer, the road so described being a private
road not covered by the statute.
[Ed. Note.— For other cases, see Highways,
Cent. Dig. §S 447-^55 ; Dec Dig. { 164.*]
2. Indictment and Infobuation (S 110*) —
Language of Statute — Debcbiptivb
Words— SUBPLDBAaE.
Though as a general rule an indictment for
a statutory offense is good if the offense be
charged in the language of the statute, and the
indictment In this case would have been good,
if it had been confined to the language of said
section 1616a80, nevertheless, as the prosecutor
undertook to include, therein descriptive matter
ahowing the road alleged to have been obstructed
to be a private and not a public road, thereby
effectively negativing the offense meant to be
covered by the statute, and showing the prosecu-
tion not maintainable, the descriptive language
cannot be rejected as surplusage on demnrrw,
and tiie indictment shoald be quashed.
[Ed. Xote.— For other case& see Indictment
and Information, Gent Dig. || 289-294; Dec
Dig. S 110.*1
Error to Circuit Court, Summers County.
W. J. Massie was convicted of unlawfully
obstructing H road, and he brings error.
Judgment reversed and entered here.
B. F. Dnnlai^ of Hinton, for plainUff in
error. A. A. UUy, Atty. Owl, for the Stat&
MILLE^R. J. The indictment charges that
defendant on the 15th day of February, 1911,
in the County of Summers, "did knowingly,
wilfully and unlawfully obstruct a certain
road and pass way, to-wlt the road and pass
way leading from the land of S. A. Parker,
in Jumping Branch District, adjoining the
said W. J. Massif over the ^ds of said
Biassie^ where he now resides, In said dis-
trict, to the public connty road, leading from
Jnmpliis Branch to Flat Top, by then and
there unlawfiilly loctEing a gate over and
across said road and pass way and continu*
Ing the same from said time hitherto, in
consequence of said unlawfully locking
said gate by the d^endant, W. J. Massie,
said road and pass way waa rendered im-
passable for all the time aforesaid, said road
and pasa way being lawfully owned by and
used by said A. S. Parker, at tbe time afore-
said, against the peace ai^ dignity of the
State." The sole question presented Is, does
tbe Indictment charge an offense under the
statute, or should the demurrer or motion
to quash have been sustained? .
[1] Prior to chapter 62, Acts 1809. sections
IBlSal and 1516aS0. Code SuppL 1009, we bad
held, in State v. pry Fork R. R. Co., 60 W.
Va. 285, 40 S. B. 447, and State t. C. & O.
R. B. Co., 24 W. Ta. 809, that "to sustain
*rer otber easM ■•• laow toplo and tsetlon NUBIBBR In Dm. Dig. * Am.
W.Va.)
383
RB Indtctmeiit ftir obBtracUng a pnblle road.
It must be abown Hiat the road Is a public
not merel7 a priTate road." Section
IfilSafiO^ on wblch the Indlctmoit in Oils case
was finmd. provides: "Any perun who shall
* * * obstmct or Injive any road * * *
diall be guilty of a misdemeanor and vjpan
conviction be flned not less tban ten nor
more than fifty dolIaTs." Section UWSal,
defines public road as follows: "A puUle
road, wltbln tbe meaning of tbts chapter,
Includes any rosd leading from any other
pabUc road over one or more person's land
to another person's land and which has been
estabUsbed for the convenlenoe of one or
more residents or land owners, or persons,
or corporation owning or occupying or desir-
ing to use or occupy lancls which cannot be
reached by any other public road and to
which road the public has the right of or
Is not drailed the use."
It Is to be observed of course that section
1515a80, does not use the word "public road";
neither did section 45. chapter 43, Code 1S99,
Involved in State v. Dry Pork R. R. Co., su-
pra. Nevertheless, that case and prior cases
said the road intended was a public road.
Moreover, section 1515al, uses the words,
"which cannot be reached by any other pa6-
lic road," implyii^ that the road Intended to
be protected must Itself be a public road.
But the gnestion here is does the indict-
ment describe a public road within the mean-
ing of said section 1515al? We think not
The road there described is charged to be
lawfully owned and used hy A. S. Parker,
the prosecuting witness, and it Is not charg-
ed, in the language of the statute or In equiv-
alent words, to be a road "to which * * •
the public has tbe right of or is not denied
tbe use." The road described Is plainly a
private road. If, as the indictment alleges It
Is lawfully owned and used by Parker, pre-
snmably it Is not a road which tbe public
had the "right of or 1b not denied the use."
[t] It Is argued, however, and as the cases
dted hold, that when an indictment for a
statutory offense follows the language of the
statute It Is generajly good. Johnson v. Com.
84 Orat <Va.) S6S; Helfilck Gom^ 29 Grat.
(Ta.) 844; SUte t. Jones, 68 W. Ta. <US, 45
S. B. mat Smith T. Oom., 85 Va. 924, d S.
B. 148. And so In this case, it the pnblte
prosecutor bad confined himself to the lan-
guage of section 15l5a8(^ char^^ defmdant
simply with obstrn^lng a road, sufficiently
locating It ft)r the purposes of Identification,
that nn6er fbe authorities woold have been
anffldent, and proof that the road was of
the kind and description covered by sectira
ISlSal, would have been admissible. State
V. Dry Fork R. R. Co.. smnra; State T. <X ft
O. R. B. Co., supra. 7he word ."road" a4
used in section 46, chapter 43, of the Code, In
force at the time of those decisions was held
to mean public road, and not to apply to a
private road but to public roads wly, and
that the proof iqnn fibs trial nmst be fliat
Uie road obstracted was £a fact a public
road.
But it is said the court may properly treat
the additional words of descilptioa as sur-
plusage, and as the evldraee Is not brought
np, we must assume the proof sustained the
Indictment This Is a correct proposition it
the words msy properlar be treated as sur-
plusage. State T. Hall, SKI W. Ta. 236; State
T. Pendergast, 20 W. Ta. 672; Boyle v. Ooul,
14 Orat (Ta.) 674. Anno. Mon. Note, 630.
But what words or matter of an Indict-
ment may be properly treated as mrplnssge?
In State v. Hall, the indictment, otherwise
sood, was held not to be vitiated, because
its condnsion contained surplus matter not
necessary to be proved. State v. Pendergast
is not much In point, though dted for the
proposition in State v. HalL The point pre-
sented here is rather a nice one^ but never-
theless vital, and should have proper con-
sideration. Joyce on Indict section 26S,
says: **It is a general rule that an indict-
ment will not be vitiated by matter whldi is
mere surplusage and Uiat sudi matter need
not be proved." But In section 267 he says:
"The prlndple of law whldi permits unnec-
essary and harmless allegations in an Indict-
ment to be disregarded as surplusage, does
not authorize the court to garble the Indict-
ment regardless of Its general tenor and
scope, so as to oitlrely chuige the meanhig.
And while Immaterial averments may be re-
Jected, there cannot be a rejection as sur-
plusage of an averment which is descriptive
of the identity of that which Is legally essrai-
ttal to the claim or charge and this Indudes
those auctions which operaia by way of
description or limitation on that whldi is
mat^lal." See^ also, same book, section 421.
Mr. Bishop ^ Bishop's New Or. Pro. section
482) soys: "Unnecessary mattw, of a sort
or so averred as to negative the offense
meant, or otherwise to show the prosecution
not maintainable^ cannot be rejected as sur-
plusage." In 6 oom. Dlft (Bd. 1826) Chapter
29, page 61, It la said: "Surplusage does not
hurt" "Tet» If a man. tbe allegation of
a thing not necessary, shows that he had no
cause ot action, this, though surplusage,
shall hurt; as. In assize, U the plalntUt
makes a tuie^ whldi he need not, and the
title is not good, the whole shall abate."
See, also, other illnstratlons there given. In
Oom. V, Atwood, 11 Mass. 93, we find this:
"We cannot reject as surplusage, what may
have been the ground the conviction." In
State V. Gopn 16 M. H. 212, It is held, that a
descriptive averment must be laid as proved,
and as applying to the case theo before the
court it is said: "In an Indtctmrait for re-
sisting a d^nty sheriff In the dlsdiarge of
his duty, an averment that the sheillt was
'legally appointed and duly qn&llfled'. is de-
scriptive, and must be proved." Again in
State V. Ganney, 19 N. H. 136, the Indictment
384
78 SOnTHBAdTBBN BBIOBTBB
(W.Ta.'
tlie store' of <hdA UottfU** and 'certain gobda
•Mn the shop aforesaid, then and there being,
ttien,and there In the shop aforesaid, f^nl-^
00817 did steal, take and carry away." It
was hdd that the words "store" and "shop,"
as In sectitm 9 of chapter 21S, Berised, Stat-
ntes, were not synonTmons, that the word
"shop^* being descriptive of the place where
the larceny was committed, conld not be re-
jected as surplusage and that the demnrrer
was wdl taken. In Lewis t. State, 113 Ind.
69; 14 N. B. 892, the Indictment was nnder
sectitm 17S0, Ber. St 1881, for the larcoiy of
mon^. The conrt held, that in such an In-
dictment it was only irecesaary to describe
the money stolen simply as money, bat that
If a particular description was given. It
must be prored substantially as <Aargetl, or
a verdict of conviction could not be sustain-
ed. In Pnlford v. Georgia, SO Ga. 593, the
conrt considered the question, "When do
averments which might have been omitted
become material — or, at least, so enter Into
the Indictment aa framed that they cannot
be stricken or rejected as saiplusage?" The
court answered the question In part, as fol-
lows: "StarUe on Bvidenc^ volume 8, page
1639, says It Is a most general mle that no
allegation ioMeh i» deioripHoe of the tdentUv
of that which it legallv e»»mtiai to the claim
or ckat-ge, can ever be rejected; and on page
1542, same volume makes it more spedflc
by restating the mle tlins: The position that
descrlptlTe averments cannot be rejected, ex-
tends to all allegations which operate by toav
Of description or limitation of that whldi is
material* BbAiop says: 'If the indictment
sets out the offense aa done In a particular
way, the proof must show It so, or there will
be a variance And where there Is a neces-
sazy allegation whldh cannot be rejected, yet
the pleader makes it nnneoessarily minute In
the way of description, the proof must satis-
fy the description as well as the main part,
since the one is ess«itlal to the Identity of
the other:' 1 Bishop's a P. sees. 284. 235.
If the prosecutor state the offense wfOt un-
necessary partlcnlarity, be will- be bound by
that statement; and most prove it as laid:
United States v. Brown, 8 U^<ean, 233 [Fed.
Oas. No. 14,666]; Bex v. Dawlin, 6 T. B.
811.** The principles of these authorities are
covered in the text in 22 Cyc; Vn^ with dfk-
tlon of other decisions in note
The principles laid down in the text books
and court decisions referred to we think
raider the Indictment In this cass bad on de^
mnrrer, and in our opinion the demurrer and
motion to quash should have beoi sustained.
It may be said that the evidence sdtiowed the
road to be a public road within the defbil-
tlon given in the statute; but assume that It
did, was It admissible und«> the IndlcUnent,
which dearly described a private road; was
there not a fatal variance? We think so.
Defmdant was entitled Mi his trial to stand
on the Indictment and the offense charged as
laid, tkavli^ charged fiie obstmetlon of a
private way or road <Aearily tlie State was
not entitled to prove the obstruction of a
public road. The record in this case sbongly
evinces, what Is probably the fact, that the
controversy ifavolved waa one between ndgh-
bors over a purely private way or zoad, In
which the public had no Interest fludi ca»*
es have no place In Uie criminal conrta.
We are of opinion for flie reasons 'given to'
reverse the Judgmrat and to enter socb Judg-
ment here as we think t3w cirealt court
^ODld have entwed, quashing (he indictmenfi
and discharging the prisoner from further
prosecation.
(72 W. Va. U»)
WINDINO GULP OOLUSRT Cav. CAMP-
BELL et aL
(Supreme Conrt of Appeals of West -inrginla.
Hay 6t 1918.)
fSyUa&vt by the Oovrt.,
1. Pabtition (S 110*)— Pabtitiow Dkkd—
Pmdicaxi.
As the basis for the introdnetion of a
deed made in execution of a decree of parti-
tion as evidence of title, It suffices to show, by
the orders made and entered in tbe cause, that
the coart rendering the decree and authoris-
ing the deed had before It tbe sobject-mattsr
of tbe suit and the parties.
[Bd. Note.— For other cases, see PartiOca*
Cent Dig. H 898-400; Dec. Dig. 1 110.*]
2. JuoQioGnT <| 497*)— BnaxALB— Pbbsuhp-
noN OF Reottiabitt.
Recitals by the orders, Jadgments, snd
decrees of courts of general fnrisdietioD that
tbey have Jurisdiction of the parties and the
subjeet-matter are sustained by presumptions
in lETor of the regularity of their proceedings.'
[Eld. Note.— For other cases, see Judgment
Gent Dig. H d37, 8B8; De& f>ig. | 497.*]
3. Pabtitioit (f 110*) — CoioaBBxoiin*!
DiEEi>— SumcrawcT.
A deed of parties to a partition salt, mada
for and on their behalf by a commissioner
appointefl for the purpose, need not show for-
mally tbe signatures' of die grantors by the
commissioner, if the deed recites tbey acted in
mafatng the deed by tbe commisBioner under
the decree aotborizing him to execute tlM
same, and that acting as aforesaid, they had
set their hands and seals to the butromeat
[Bd. Note.— For other cases, see- PutltloBf
Gent; Dig. ft 898^; Dec. Dig. | 110.*]
4. PBIKOIPAL Alhl AOBHT {% 141*)— BXXOa-
TioK or Dbs—Powo w AnoainT-- Sio-
MATVSES.
An agent execnting a deed nnder a power
of attorney, and affixing his own signature as
agent and attorney in tact for his prindpals*
togetiier with their seals, need not affix the
signatures of his prindpals.
lEd. Note.— For other cases, see Principal
and Agent, Cent. Dig. I 497; Dec Dig. ff
14le*]
6^ Pbincipai. Awn Aosnr (| 141*)— Exbott-
TioN or Deed— PowKB or ATToanBr- Ri-
crrAiA
Such agent, being a coheir with bis prin*
cipals, may execute the deed for and on be-
half of himself and Ma principals without des-
ignatins his principals' by name. A recital in
tagleaa4seoUonNUMBBBlaI>eo.Dis.*Aai.IMK.Ke^^|^^^^^^|fJi^^
•For etlier csess see same
wiKDiNCh anur cox^liebt pp. t. cakpbell
885
the deed that h« conveys for and on belialf
of himself and tbe "other heirs** w theii agent
and attorney In fact suffices.
[Sd Note.— For other cases, spe Priacipsl
and Agent, Cent. Dig. | 497; Dec. Dig, 8
«. DsBDs (838«)-^D«3CBipnow— StrmciBHCT.
A deed reciting the subje'l-matter of a
cobveyance as twn lots assifcned out of a
larger sarvey in a designated suit for piirtl-
tion thereof, subject to numeroos undefined
prior conveyances of tbe same, giTing the
Dumbers of the loti, If not void for nncer*
tainty.
[Bid. Note.— Tor oft«r easeh ace Deeds,
Gent Dig. H 6^-70; Dec Dig. | >&•)
7. EJEcncBNT (I 90*)— ETttdkncb— Debd.
Such a deed la a^minftible In eridrnco In
ao action of ejectment, without prior proof of
tbe location of the ezceptioua and reserra-
Qonji.
[£d. Note.— For other cases, aee SSectmait,
Cent Dig. H 254-X77: Dec. Dig. | 90l*1
8. Wnxs (I ZOa^')—ADvnaaiovt to Bkoobd—
FBOOV— 89B8CUBtH& WlTNEeS.
A wUl may be admitted to record apon
proof of tht; due execution- thereof by one of
the attestinff witnesses and proof of the sig-
nature and handwriting of the other; the lat-
ter bdng a^iseDt fmu the state.
[Bd. Note.— For other eases, see WOm, Cent
Dig. il m-728;- Dee. Dig. | 303.*]
9. Wilis (| 803*>— Pnoor — < DBPOsmoir C9
SUBSCBIBINO WITNTtaS.
The statute authorizing the taking and nse
of a deposition of an absent witneas in such
case Is permlssiTe, cnmulatiTe, and tiot ex-
clusive
[Bd. Note.— For other cases, S4>e Wills, Gent
Dig. SI 7U-723; Dec Dig. | fe*]
10. PABtmoH <t 108*) ■— OoMiauxoiaB'B
Deed— Vauditt-^ubisdictio w.
A deed by a special commissioner for land
sold nnder a decree In a cause institated by
a part owner of tbe land, seeking a sale there-
of lorstead of partition aa against infants, hav-
icg inte/ests therein, is not void for want of
jurisdiction, because the bill prays a sale of
tbe land, after alleging tntAsceptlbUity of <U>
vision thereof In Und.
Bd. Nots^For other eases, aes Partitioo,
Cant Pig. II 875-^: Dtc Dig. 1 100.*]
11. OviwcNGi (H 470, 474*)— EIxPKBT Onn-
lOR — ADUISBIBIUTY — BODKDABXIS —
Ejbctuent.
The opinion of a snrreyor, irhcbas had
sztenslve experlenca -wUh uis Unes, comers,
and boundaries of an andsnt patent as to
tbe identity of one o( its comers, which he
has examined and tested, is admissible in,' ev-
idence.
fBd. Note.— For other cas#s, see Bvldence,
Cent mg. II 81«&-2218; Dec Dig. U 470,
474.*!
12. BOTFKDABIM ({{ 3, 40*)— BdlABUBmOOIT
— SVIDBn CB— InSTBUCTION .
A line -of surrey described in a patent as
commencing at one natural object such as a
tree, and mnning without farther locative calls
to another object, bq4^ as a tree. Is governed
in its location by tbe monnmenta called for, if
they can be found, althoiig:b an uucalled for
marked line different therefrom is disclosed by
eztrBDeooa. evidence; and, if there is aofficient
evidence pt the identity of the monuments
called for as tbe termini .of the line, the trial
court may property submit to the Jury the
location at the Hne by the monuments called
for or t^.tbe marked line, according to their
jadgmeut as to tht weight of Uie evidence
tendiDc to prove the respective , locations
claimea.
[Ed. Note. — For other cases, see Boundaries,
Cent. Dig. IS 3-41, 19&-204; Dec Dig. fi| 3,
40.»1
13. BoTTNDABlXa (| 8*)— DESOBIPTTOIf— COH-
8TBUCTI0N.
A line deslgna^ in a deed or other glv^
en muniment of title by its course and distance
only must yield to an inconsistent marked line,
run as the line intended by the parties; but
if the deed calls for a line by monuments as
well as by course and distance, such marked
line not referred to In the deed must be i^
nored, if tbe monuments called for ara asear-
taioable.
[Ed. Note.— For other cases, see Boundaries.
Cent Dig. S| 3-41 ; Dec. Dig. | 3.*]
14. DiCBDS (I 111*)— CONSTBCOKOV — IlfOCW-
SIBTBNT DbSCBIPTIUNB.
If a deed contain a general description of.
proper^, conforming to the manifest inten-
tion of the parties, as shown by tbe situation
and circumstances sorrouoding them and the
purpose they bad, in view, and also another de-
Bcriptlon, dearly Inconsistent with such dr^
ramstances and purpose, sndi latter descrip-
tion must be rejected as fslae and' aa having
been inserted In the deed by accident or mis'
take.
[Bd. Note.~For other cases, aee Deeds,
giot^Dlg. H 30&-31G, 334, 83&; Dec. Dig. 1
15. Deeds (| 115*) — ConffTBUonoN — Dx-
scBiPTioH— PanuMPnoN.
The grantor in a deed, apparandy Intend-
ed for conveyance of all of his land or all of
a tract, is presumed not to have intended to
retain a narrow strip thereof, and, upon this
presumption, ' calls In a deed mas be disre-
garded as being errooeoos. If the deed, viewed
in the light of extraneous evidence, is am-
biguons in its terms.
[Bd. Note. — For other cases, see Deeds,
Cent Dig. 1 325; Dec Dig. % 116.*]
16. Ejectmbrt 110*)— IwBTBTJcnoN— Evi-
dence.
If, in an action of ejectment the title pa-
Jiers of the defendant under findings of fact
□stifled by tbe evidence, trace back to the
same title under which the plaintiff claims, the
court may properly direct kn Inguiiy In Its In-
stmetioBS as to whether the dalaa «f title
onginated In a common soarce.
[Bd. Note.— For other cases, see Sjectment*
Cent. Dig. 11 819-326: Dec Dig. I Il0.*l
17. EJEonam (| IS*)— Psoor or Tma—Os-
A wen recognised and established excep-
tion to the mle regoiring the plaintiff in eject-
ment to trace his title from the state Is the
estoppel In law ulslng oat «f « ecounra
source of title. In such case, the plaintiff
need not; trace his title to the state.
[Bd. Note.— For other cases, see G^eetment
Cent Dig. K 50-62; Dec Dig. f 16.*]
18. E.TECTMEITT (S 86*)— LOOATIOK OT EXCSP-
TIOT^B AND REBEBTATlUnS — BuBDBN' OF
Paoor— Pbziia Facte Case.
A claimant of land, und^ a deed falling
under thv-. rule of inclusive surveys as to the
burden of proof, may establish a prima fade
case of locadon of the exceptions and reserra-
ti<ms outside of the land in controversy, by
proving in a general way that none of the ex-
cerptions are '^'itbln tbe bounds of the land in
controversy, and, in tbe absence of evidence in
rebuttal, he need not show die locations of
*For other eases ses same 'tople sad ssctloa NUUBiat la Dee. Dig. * Am.
SS6
78 SODTHEASTERN REPORTER
(W.Vii.
the ezceptlotu hf erldenc* <tf the location of
the lines thereof.
[Ed. Note.— For other eaiei. tee Ejectment,
Cent Die. 11 238-246: Dee. Dig. | 86.*]
Error to Circuit Court, Baleigh Oonntr.
Action bj the Winding Onlf Colliery Com-
pany against J. A. Campbell and others.
Judgment for plalntUT, and defendants bring
error. Affirmed.
A. P. Farley and John M. Anderson, both
of Beckley, for plaintlfTs in error. McCreery
& Patterson and McGlnnis & Hatcher, all of
Beckley, and Brown, Jackson & Knight, of
Charleston, for defendant In error.
POFFENBARGER, P. The tract of land
recovered in this action of ejectment con-
tains about 150 acres, part of a larger tract
of 765 acres, demanded In the declaration
and treated and sought to be recovered by
the plaintiff, the \Vlndlng Gulf Colliery Com-
pany, as part of a tract of 19,761 acres,
known as lot No. 4 in the partition of the
Ifoore and Beckley survey of 170,<^ acres,
patented on Jane 20, 179S. Disdalmers re-
duced the area described in the declaration
to about 150 acres. The principal issue of
fact in the case was whether the land in
controversy Is within the boundaries of the
Moore and Beckley patent, and that resolved
Itself Into questions as to the location of the
southwest comer of the Moore and Beckley
survey and the character of the western line
of that survey, whether angular or straight.
On this, as well as other Inue^ tlie Inry
found for the plaintiff.
An assignment of orror charging lack of an
Issue has been abandoned.
Endeavoring to make out a complete cbaia
of title from the state, the plaintiff offered a
great deal of documentary evidence, nearly
all of wblcb was objected to by the defoid-
anta but admitted l>y the oourt These docu-
ments include a deed from Alfred Beckley
and others to Samuel McD. Moore, ttie recOTd
of a suit In chaneery by Stuart's executors
against Moore and others, a power of attor>
n^ from Andrew Moore to 8. M<d>. Moore,
a deed from S. Hd>. Moore to Morris Harvey
and W. T. Miann, a copy of the will of W. T.
Mann, a copy of a deed from James and
Matthew Mann, ezecatmn, and others, to
Blffe and others, the record of a suit by B. D.
Oole J. N. Cole and others.
As the defendants Campb^ and Curtis
claim under a deed tnun 8. W. Fftrl^, who
doived all the title he had from a convey-
ance made to him by B. D. Cole, the purchas-
er, at a judicial sale In a partition suit, of
land conveyed to Adallne Cole to whom it
had, been convey^ by Riffe, Ford, and Mc-
Creery, as a part of the Moore and Beckley
land, the plaintlfl Insists that the parties
hereto claim title from a common source, in
consequence whereof the latter cannot be
heard to object to the admissibility of the
title papers, or, at least, that It was not
Incumbent upon the plaintiff to trace its title
beyond the deed to RiCfe, Ford, and Mc-
Creery; and that the admission of the docu-
mentary evidence objected to was harmless
error. If error at all. Farley had but the
surface and timber of 80 acres of land under
his deed from Cole, according to the specifi-
cation of quantity therein, but It had con-
veyed probably three times as much by Its
metes and bounds, which, however, did not
go beyond the bounds of the Moore and Beck-
ley patent as claimed by the plaintiff. Hav-
ing this, he executed a deed. May 31, 1899,
purportliag to convey to J. A. Campbell a
tract of about ICO acres, including part of
bis 30 acres, but reser^g and excepting
from the conveyance part or all of the sur-
face and timber he actually owned. This
deed went far beyond the metes and bounds
of the deed from Cole to Farley, but not
beyond the limits of the Moore and Beckley
patent as claimed by the idalntlff, nor at lot
No. 4 thereof as so claimed. Campbell ctm-
veyed to Curtis an Interest in his purdiase
from Farley.
The land conveyed by Farley to Campbell
Is a strip about 1,000 poles long, 70 poles
wide at one end, and 82 poles wide at the
other. Within its boundaries Ilea the tri-
angle sued for by the plaintiff, 40 or 60 poles
wide at the southern eoA and running to a
point at the northeast comer of the Farley
survey. It ilea aluHMit entirely east ot the
straight weeton line of the Moore and Beck-
ley survey as Its location Is claimed by the
plaintiff, and thwefbre within ^at boundary,
but weat of the line as idalmed by the de>
fendants and outside of the boundaz7< With*
in this triangle Farley bnllt a smaH bouse
after his conveyance to Campbell, which the
defendants claim Is on the land conveyed to
them and outside of the SO acres reserved
by Farley. But the plaiaUff claims this
house is on the 80 acres, and that poasssslon
and occapancy thereof by Farl^ does not
constitute possession under the deed made by
him to Campbell, nor on behalf of the de-
fendants Campbell and Curtis.
The Farley drad to OampbeU does not de-
scribe the land ^braced in it as bdng part
of the Moore and Beckley survey, nor par-
port to convey It as such. Nor does tlie deed
from Colo to Farley. Whetho: any of it Ifl
within the Moore and Beckley survey Is a
vital Issue In the case. Another Is whether
only a portion thiureof lies within It The
western Une ot each of these oonv^aneeB
coincides vritb the western line of the Moore
and Beckley survey, and the Cole deed de-
scribes its b^lnnlng comer as the "north-
west comer of lot No. 4 of Moore and Bed^ley
line," and proceeds, "near the Maxwell place
and with Brltton and Oray's patent line,
south 16^* west," while the Farley deed
starts with the same beginning comer as
Dig. Kfr^e^«^^«k@^t@^
•VoroOeri
I M* Msu te^c and wotlDB NUHBIIB. la Dee. Dig. * Am.
WINDING OUUr COLLIEBT OO. V. OAUFBBLL
887
being on tbe Brltton and Gray patent Une
find nios with the same, but does not say
the comer la a comer ot said lot No. 4. It
calls for the Moore and Beckley patent line
as being on the opposite side of the tract It
conv^s. The deed to Adalloe Cole from
RlCTe, Ford, and McCreery, about ten years
prior In date to that of Cole to Farley, calls
for the northwest comer of lot No. 4 of the
Moore and Beckley tract, as the beginning
comer, describes the closing line as coincid-
ing with what U known as the Bray line,
leading to a point east of that corner, as
located by the plaintiff, aboat 32 poles, a
place known aa the elght-notdi diestnat
comer.
[11 The patent to Moore and Beckley Is
unquestioned. Their title, however, about
15 years after the acquisition thereof, became
the subject-matter of a partition suit,
brought by one Charles Stuart in the county
court of Greenbrier county. Claiming an
equitable Interest therein, Stuart, In the
year 1810, brought this suit He alleged, as
the basis of bis claim, the following matter:
One Ward, his debtor, had assigned to him
Virginia land warrants for large areas of
land, after he had arranged with Hoore, a
member of Congress, to dispose of the lands,
when surveyed and patented, to eastern pur-
chasers, in consideration of a share in the
proceeds. Moore associated with him Beck-
ley, the clerk of the House of Representa-
tives. The patents having been Issued to
them, to enable them to make the sale, they
endeavored to sell to Robert Morris and
one Nicholson, but, for some reason, failed.
Stuart sued for partition. Though begun In
the county court of Greenbrl«r county, the suit
ended In tiie superior court of chancery of
Augusta county. The process in the county
court of Greenbrier county and tbe bill filed
in that court and the decrees entered In the
circuit court of Augusta county, showing an
adjudication of the right to partition and
the execution of the decree of partition, In-
duding the report of the commissioners, dis-
closing a division of the survey into 12 lots
for the purpose, and a decree confirming the
partition and assignment of the lots, were
introduced. The final decree empowered and
ordered the marshal of the court to execute
proper deeds of partition to the parties. The
objection to the admission of these portions
of the record Is based upon the absence of
any order showing how the cause was trans-
ferred from the Greenbrier county court to
the Augusta county court of chancery. Tbe
recitals of the decrees as well as th^ find-
ings and determinations show the subject-
matter, the land, and the Interested jHirlles
were before the court It was a court of
general Jurisdiction. To sustain the deeds
of con'^eyance made under the decrees, it was
unnecessary to introduce tbe entire record.
It sufficed to show tbe parties holding the
title to the land and the land Itself were
before the eourt* tbe land divided, the parti-
tion confirmed, and authority given to exe-
cute the conveyances. Wilsim v. Braden,
48 W. Va. 200, 8« S. BX 367 ; Waggoner v.
Wolfe, 28 W. Va. 820, 1 8. R 25; Bonk t.
Hlgginbotham, 64 W. Va. 137, 46 S. B. 128.
These requisites, as defined by the decisions
of this court, omit the process, ^milarly
it would be unnecessary, when the suit ap-
pears to have been commenced In some other
court, to show how It was transferred.
[2] The superior court of chancery being
one of general Jurisdiction, its recitals of
Jurisdiction of the parties and subject-matter
are sustained by a presumption in favor of
the regularity of its proceedings. St Law-
rence Co. V. Holt et al., 51 W. Va. 352, 866,
41 S. E. 351; Hall v. Hall, 12 W. Va. 1;
Smith V. Hennlng, 10 W, Vh. 596.
[3] The marshal of tbe court having failed
to execute the deeds, as directed by the de-
cree above referred to, the court, by another
decree entered June 23, 1835, redtlng his
failure and the abolition of the office of
marshal, substituted Samuel CSark, Esq., for
him as a commissioner to execute them. As
such commissioner, he executed a deed on
behalf of Alfred Beckley, Charles Stuart and
Lewis Stuart to the heirs of Moore, who
was then dead, redtlng the decree of parti-
tion and direction to the marshal to execute
the conveyances and his own appointment
as a commissioner to make the deeds in the
place of the marshal, and then proceeding as
follows: "Now therefore this indenture wit-
nesseth that the said Alfred Beckley, CSiarles
A. Stuart At Lewis Stuart by the said Samuel
dark acting under the decree ft order
aforesaid for and in consideration of the sum
of one dollar to them in hand paid by the
said representative of the said Andrew Moore
dec'd, the receipt whereof is hereby acknowl-
edged have granted bargained and sold and
by these presents by the said Samuel Clark
acting In pursuance of the authority afore-
said do grant bargain and sell unto the said
Samuel McD, Moore Andrew Moore Mary
Moore Magdelane Moor^ William Moore
ft Sarah Moore th^ hdrs and assigns
the following tracts or parcels of land" — de-
scribing them, one of which was lot No. 4
of the Moore and Beckley survey, assigned
in the partltitm to the heirs of Moora The
attestation ciause says: "In testimony where-
of the said Alfred Bediley diaries A. Stuart
and Lewis Stuart by said Samuel Clark act-
ing under the authority aforesaid have here-
unto set their hands and seals the day and
year first above written." The deed does
not bear the signature of dark as commis-
sioner or otherwise^ The only signatures are
those of Alfred Beckley, Charles A. Stuart,
and Lewis Stuart If the commissioner had
signed his own name under the name of
each grantor with the addition of commis-
sioner and placed the preposition "by" be-
tween the name immediately preceding and
his signature, he would thereby have formal-
ly delineated on tiie papeor the diaracter of, .
^ Digitized by\IjCfKJWl<^
S88
T8 SOUTBHASTERN rkfobtibb
the act done t>j Um and the eapadtr <n
wtaldi he actedL He would have thas shown
In form what the deed aays he did In fact,
for It repeated]^ dedarea the parties exe*
cnted the deed tbrongh him, or, whl(A la
the same thluft that he executed the deed In
thcAr namea and fw and on th^ behaU^
and the attestation dense says they, by him
acting under the authority confored upon
him, set thdr handa and seals to the deed.
The omlatf on of his own name is dearly Im-
materlaL
[4} In ifflndple, the deed li the same as
one executed by an agent under a power of
attohi^, and 11a form has been api»oved in
cases of that Und. Shanks t. Lancaster, 6
Orat (Va.) 110, SO Am. Dec 10&
The heirs' of Andrew Moore seem to have
bem seven In number: Samuel McD. Moore ;
Sarah Moore^ widow of Andrew Hoor^ de-
ceased; D. n. Moore; Mary Moore; Magda-
llne Mowe; fniUam Mooie; and Sally a.
'Moore. The tast six of these ececated to
-Samnd Mc^, Moore a iwwer of attomey,
dated April 30^ 1890, authorizing him to sell
and oonv^ all of ttieir right, title, and In-
terest in lands which bdonged to their an-
cestor, Andrew Moore, In the counUes of
Fayetteg Logan, Nicholas, Jackson, and any
ether TnunhAlWieny counties In the state
of Vli^lnia^ and all his lands in the states
of Ohio and Kentucky. Andrew Moore exe-
cuted to him a power of attorn^, dated Au-
gust 12, 1850, red ting the execution of a
fotmer one on a» day of May, 18S8, and
the adstence of a doKibt tu to whether the
latter conferred snflBdent power upon the
agent to execute sales and conTcffances pre-
viously made 1^ htm and the intention and
■desire to r^nore all soch doubt, ratify and
conflrm all each sales and conveyances, and
vest foil power and authority in the said B.
McD. Moore to convey all the parcds of land
theretofore sold by him and also all the
right, title, and Interest of the aald Andrew
Uoore In and to the residue of ttie landed
estates of his ancestor, Andrew Moore^ d^
ceased, and appdntlng and conatltatlng him
his true and lawful attomey tor the pur^
posa The objection to t3ie Introduction
thwebf Is that It is a ooi^ of a «opy. We
do not understand it to be so. !Die fiirmer
one and its supposed defedt an referred to
and redted only to show the reason for the
uecution at the subsequent one, conferrii^
greater powers and more authority, to the
end tiiat the agent ndght execute his conunl*-
don more expedltlonsly and snceessfully. It
bears two certificfttes of recordation, one in
Nldwlas county and another In Raleigh
county; but lids drcnmstance affords no
bads for the inference relied upon.
[I] The deed executed by 8. McD. Moore
for and on behalf of hlmsdf, and as agent
and attomey In fiiCt of the other hdrs of
Andrew Moore, to Morris Harvey ahd Wm.
ft. Mann, Was objected to npon five gronnds:
Wlure to name fb» other helra of Moore;
faUnfe to sign their names to the deed ; omis-
sion of thdr names from ttie certificate oi
acknowled^ent; unoortaln^ in the descrip-
tion of the land ; and failure to locate cer-
tain reservations in the deed or exceptions
Qnrefrom. Tbe first three objections are of
the same duuaeter as that made to the in-
troduction of the deed from Alfred Beekley
and Charles and , Lewis Stuart by Clark as
commlsdoner. It redtea that. In die execn-
don Oiereof, S. McD. Sfoore acted tor him-
self and as agent and attorney In fact for .
the other hdrs of Andrew Moorb Moore
affixed bis own signature and then affixed his
signature as agmt and attomey In fact for
the hdrs of Andrew Moore. He acknowl-
edged It In hla Individual capadty and as
agent and attorney in fact for the hdrs of
Andrew Moore. Under the authority of
Stlnchcomb v. Marsh, 15 Orat (Va.) 202, 209,
this was sofildent In that case Judge Lee
Bald: "To bind the prindpal every deed
should be executed for and In ttie name of
his prindpal, though It was not material
whether the attorney sign the name of his
prindpal with a seal annexed, stating it to
be done by blm as attorney for the prin-
dpal, or whether he sigh his own name with
a seal annexed, stating it to be done for the
prindpal." The phrase "other hdrs of An-
drew Moore" was broad enough to Include
all of the hdrs except hlmsdf, and, as they
could be ascertained, the deed was In thia
respect certain. The recorded powers of at-
torney made a matter of record the power of
dispodtion of the Interest In the land of the
persons who had executed them. Having
power to dispose of these interests and his
own as an hdr, he executed this deed, de-
daring it to have been done for and on be-
half of hlmsdf and the other heirs.
The following legal propodtion asserted
In Walker v. Moore, 95 Va. 729. 80 S. £. S74,
ia entirely sound and accurately applies In
the construction of ttds deed: "Where a per-
son who has a power ot dbo>odtlon over
^operty, and also owns an int^^t in U,
executes an Instrument by wbldi he disposes
of the property without expressly referring
to the power, the Incftmment will be deemed
to have been intended as a diwodtton oC
his Interest, and not as an sxefdae of the
power, If the transfer of his Interest will
satisfy the tszms ct the Instroment; but if
be has no liderest In tlie propmty, or, thoof^
he lias an intweet in It, yet if tiiO instru-
ment conv^ a larg» Intorast than be owns,
thai, inasmuch as the instrument would not
take effect at all in the one oaae unless le-
ferred to the powei^ and would not he satiB-
fled In tlie other by the transfer of his mere
interest, tt win he constened to he an esecur
tlon of the power for the reason that It Is
necessary to satiety I9ie ^ms of tte Instru-
ment, and the apparent Intoitlon of the
party. It Is only where the words of the
Instrumdit may be satisfied
Digitized by
■889
tantion to execute the power that It 1« sot
to be deemed an execution thereof. The
subsequent acta and conduct of the donee of
the power may also be looked to, for the pur-
pose of Bhowlng that the donee regarded
tlie Instminent as an execotlom of .the power
conferred."
[ft] The objection of uncertainty Is unten-
able. The deed, read in connection with the
partitlim proceedings, decrees, and .conrey-
auces, to which It may be said to refer In a
general way, since It saya the two tracts
conveyed are parts of a tract of 170,000
acres divided among the heirs ot Moore,
Beckley, and Stoart, Is readily and definitely
applicable to th« two lots assigned and ccm-
Tvyed to the Moore bslrs.
C'} The deed was obrlondy not tnadmls-
dUe because It made leawTaOons and «e-
c^tlons from tha two lots U conveysd sal>-
Jeet thereto It was norttrthtfess a deed
coDT^liig land wiain the botindariea of tbe
two lots; As In Qie case of ai^ other deed.
It bad to tw Bondemented with oral testimo-
ny for pvrposes of Identtflcatlon of Its 8ab>
Ject-niatter and aniUcatlon tiiereto^ The lo-
catlMi of the reservations and cxoeptlonB
was matter of proof by oral testbnony.
Stockton V. Morris, 88 W. Va. 4S2, 19 S.
SL 581, Pennington UnderwoM^ 60 W. Ya.
S40, S3 S. B. 465, and Mills r. BdgeU, 69 W.
▼a. 421, 71 S. E. 674, do no more tAan place
the burden of ptoot as to locatloh npon the
claimant under the deed. They do not vary
the rule as to tiie admissibility of the deed
Its^
[I] Though sulwcrlbed hy two witnesses,
the will of Wm. T. Mann was proved for
admission to record by only one; the other
having left the state and his residence being
utibuown. The handwriting and signature
of tlie absent witness were proved by two
witnesses, the other subscribing witness and
another person. The sufficiency of this proof
has been Judicially declared. "A will must
be subscribed bnt need not be proven by two
attesting witnesses." Webb v. Dye, 1$ W.
Va. 376; Coffman v. Hedrick, 32 W. Va. 119,
128, 9 8. B. 65 ; Davis v. Davis, 43 W. Va.
800, 27 S. E. 323.
[t] Section 27 of chapter 77 of the Code,
allowing the deposition of a witness to a will
residing out of the state to be taken, has
been impliedly construed by these decisions
as not prescribing an exclusive mode of proof
in such case. Read In the Ught of these de-
cisions, it is permissive, allowing proof by
means of a deposition, when It Is, for any
r^son, necessary or desirable to prove it in
that way.
[10] Harvey and Mann's executors con-
veyed the 765-acre tract to BifTe, Ford, and
McCreery, who conveyed the surface and
timber thereoi; to Adaltne Cole. After her
death, her husband, Bartley D. Cole, claim-
ing to have become the owner by purchase of
several of the interefita of her 17 chlldient In-
stltut«d a suit In <diBn<iery in which such
proceedings were had that said surface and
timber were sold under a decree and por-
diased by said Cole. According to the ad-
missions of the UU, nine of said ehlldiw
weffe then infants. It charged insnsceptlba-
Ity of division of the iand In kind, on acr
count of its character, and Inability of the
infant defendants to pay the taxes on their
shares, if It could be divided. For these rea-
sons, the bill prayed a sale thereot A guard-
ian ad litem was anwlnted for the infant
defendants who filed his answer and a decree
of sale was pronounced. Cole's porchase
thereunder for the som of $1,000 was con-
firmed, and the pnrdiase money, when fully
paid, was apportioned between him, as owner
of the interests of the adult heirs, and the
infants; the share of the latter being or-
dered paid to him as their guardian. Tbls
having been done, a deed was directed to be
executed, conveying the land to Um. Lack
of Jurisdiction of the court to decree a sale
of the land upon tlie Ull filed by Oola is
diarged as the bads of Qua objection to at
Introductlfm of the reeoid. me argnment
to sustain Oils contmtlim treats the bill as
one lUed by him In his Indlvldiul capad^
for the sale of the lutereatt of the infanta,
nnder the statute permitting salee of sudi
interests In proceedlnga Instttnted by their
guardians.
Assuming sneb to have been the purpose
or effect of the bill, counsel for the defend-
ant say it could not be converted into a
bill iot partition. This argnment proceeds
upon an nnsoond premise. Cole filed the
bill in bis ovrn right as part owner of the
land. He had a right of partition and the
court Jurisdiction and power, under its gen-
eral equity procedure, to grant him relief,
by way of partition. His bill may have been
defective, since it is usual and tegular to
pray for partition primarily and sale of
the land alternatively. In case it Is found
Insusceptible of partition. The case Is m-
tlely different In nature from that of Ho-
back V. Miller, 44 W. Va. 635, 29 S. B. 1014,
in which the decree was held void for want
of Jurisdiction. There the widow, plaintiff
in the suit, had no cause of action at alL
Here the plaintiff did have a cause of ac-
tion and set It up In bis bill. He may have
done this unsklUfully and defectively, but
his bill contains enough to call for the judg-
ment and opinion of the court as to Its suffi-
ciency and brings before the gourt the par-
ties and subject-matter of a cause of action
within Its Jurisdiction. The decree may
have been voidable at the Instance of the
Infanta because of errors in the proceedings,
but It was not void for want of Jurisdiction.
Stewart V. Tennant. 62 W. Va. 659, 44 S. B-
223.
[11] Slxc^tion was takco to the action of
the court In permitting a witeess, G. F.
Wilson., a surveyor, tOD«tflif» t9 Wju^bC
390
78 SOUTHBIASTBBN RIDFOBTBa
(W.Ya.
opinion as to the identity of a certain cor-
ner, claimed by tte plaintiff to be the true
comer. This witness had done much survey-
ing in which it was necessary to ascertain
and locate lines of the Moore and Beckley
patent, and In which those lines, or some of
them, were InvolTed. He was entirely fa-
miliar with the character of the marks on
the lines and knew their peculiarities. The
comer in qnestlon was the southwest comer
of the survey, described la the patent as
being at a white oak and chestnut oak.
also a number of other blazed trees, stand-
ing on a high ridge on the headwaters of
Guyandott For a long time nothing could
be found ui>on the ground which seemed to
answer or correspond with this call, and
the witness, after a considerable search,
found trees, on a high ridge, but not on the
top thereof, which, in his opinion, are those
called for in the patent One of them, the
chestnut oak, was staodlng and the annula-
tions counted well up to the age of the
survey. Near It was a depression indicat-
ing the site of a tree that bad disappeared.
Around it were other trees apparently mark-
ed as pointers. The question propounded to
him was as follows: "As a surveyor, state
whether or not that Is, In your opinion, the
true corner — the southwest corner— of the
Moore and Beckley survey." His answer
was: "Yes, sir; I do." This opinion re-
lated to Uie identity of a particular comer,
or rather trees, monuments, called for in
the mnnlment of title, determinable by cours-
es and distances, the character of the ground
and marks on trees. One of the lines of
which the corner was the terminus was 3,-
380 poles long and the other 1,650 poles.
Tested by the courses and distances, the
trees accord very well with the call of the
patent, except in one respect To make
them do so, It was necessary to change the
course of one of the lines from southwest
to northwest on the assumption of a mistake
In the patent call, indicated by attempts
to locate It The opinion was not as to the
location of a line dependent upon general
evidence In the case, nor of the location of
a boundary of land. The test as to tbe ad-
missibility of nonexpert opinion evidence,
aa declared by this court is whether the
nature of the subject-matter of the opinion
is audi as' to make it reasonably convenient
or practicable for the witness to state to
the Jury all the facts and circumstances
within his -own knowledge and upon which
the opinion is founded. Walker t. Strosnl-
der, 67 W. Va. 39, 71, 67 S. R 1087, 21 Ann.
Gas. 1 ; Ennst t. Grafton, 67 W. Va. 20, 67
S. B. 74, 26 L. R. A. (N. S.) 1201. In this
instance, the witness bad had large expe-
rience, in his work, with the lines of the
Moore and Beckley, Welsh, and Nicholas pat-
ents, all made by tbe same man within a
year of one another, and was familiar with
tbe peculiar marks made to indicate tbelr
Unw and cornera^ the evidence found in the
marks of the character of the Instruments
with which th^ were made, and their rela-
tion in general to the description thereof in
the survey. As the Identity of certain trees
called for as monuments or their correspond-
ence with calls of tbe patent was the sub-
ject-matter of the opinion, it was obviously
Impossible for tbe witness to detail to the
jury all the facts, circumstances, and pe-
culiarities upon which his Impression was
based, and bis opinion was admissible under
this rale. The admission of the opinion of
a witness as to tbe location of a line was
held erroneous In Myllus v. Lumber Co., 69
W. Va. 846, 368, 71 S. B. 404 : but the loca-
tion of a line, dependent upon general evi-
dence, differs materially from the identity
of a monument Doe v. Fields, 62 N. C. 37,
76 Am, Dea 480, Insurance Co. v. Cotheal,
7 Wend. (N. T.) 72, 22 Am. Dec. 667, relied
upon In the brief, and HoUeran v. Meisel,
91 Va. 143, 21 S. E. 668, are distinguishable
upon the same ground.
[12] Aa the location of the western bound-
ary line of the Moore and Beckley patent
is the principal issue in the case, and In-
stmctions given at the instance of the plain-
tiff over the objection of the defendants gave
the Jury mies and directions for their guid-
ance in tbe ascertainment thereof, a state-
ment of this evidence in a general way is
necessary to the determination of the proprie-
ty of tbe action of the court respecting the
Instructions. The northwestern comer of
the Moore and Beckley patent known in
the record as the Calfee corner, is not in
dispute. From this comer the call of the
patent Is "thence S. ten degrees W. 3,380
poles crossing a number of streams and
ridges to a white oak and chestnut oak also
a number of other biased trees standing on
a high ridge on the headwaters of Guyan-
dott'* The location of this comer is one of
the storm centers of tbe controvert. From
this point the call of the patent is "from
thence N. 85 B. 1,660 poles to three chest-
nuts marked I. S. on the flat top mountain
in a fem break." This comer is not in
dispute. On the long line from the Calfee
corner to the southwest comer, straight as
contended for by the plaintiff, to the chest-
nut oak and other trees, not on top of the
ridg^ but 176 feet from the top, on tbe
slope, there are no marked trees. From
the Calfee comer, to a point 40 or 60 poles
east of this line and slightly more than a
third of the way down, there is a marked
comer called the "eight-notch chestnut"
On a line from the Calfee comer to It some
marked trees are found corresponding in age
with the patent and other such trees are
found south of that comer on a continua-
tion of the line from the Calfee comer
through it This "eight-notch chestnut" was
marked as the comer of the WeLsfa and
^ncholaa patents, subsequent to the date of
the Moore and Beckley survey, but wtthip a
year thereafter. Tti^,^^^%^JO^^@t
W.VoJ
WINDING OUIJP OOLI.IEBT 00. t. CAMPBEUi
891
in the llDe of tbe Moore and Beckley sur-
vey, and call for lines running with the
Moore and Beckley survey to it. One con-
tention of the defendants Is that the west-
ern line of the Moore and Beckley patent
begins at the northwest corner and runs
straight to the "eight-notch chestnut," and
thence by the sajne course to intersection
with the line from the Flat Top comer, at
which point there seems to be nothing to
indicate the existence of a comer. Another
contention la that said western line must
begin at the Calfee comer, run to the
"dght-notch chestnat," or to the end of the
marked line b^nmd it, and thence to the
Bonthwestem comer as claimed by the plain-
tiff, so as to make aa ai^ular line conform-
ing to the comer and also to the marked
trees. This would exclude a portion of the
triangle in controversy. The other location
would exclude all of It
OomndBflloner Snidow, In his dlvlalini of
the Moore and Beckley mrny' for the pur-
poses of the partltlcm, treated the "eU^t
notch 0168111111" «i a marked monument
In the westexn line of the snrv^y, thon^ no
moimment la called fbr In (3ie patent at that
point, nor aiiTwbere on ttie line exe^t at
ttie tmnbd. The streams and rU^gea men-
tioned In the deacriptlcm of that line are not
loeattve calla. Snidow treated ttie "eight-
notch chestnut" as the comer of lots 8 and 4
of the sorv^, as divided by him. Plaintifl
dalms the land In contromsy is a part of lot
Ma 4 of the parUtlon, notwithstanding a por-
tion of it lies west of the line run from the
"eight-notch chestnut" to the southwest cor^
ner as claimed by it In his report of the
division of the survey into lots, Snidow did
not call for the "eight-notch chestnut" by
name, but did call for other timber found
at that point, describing it as follows: "A
white oak marked O S and maple marked
I S and gum In the fork of a drain." He
made this the comer of lots 3 and 4. Speak-
ing of that comer, he uses the following ad-
ditional terma: "On a line of said survey
and on the south side of a flat comer to
lot no three and leavii^ the line of said sur-
vey." In describing adjoining lot No. 3, he
designates the comer as follows: **A gum
and maple and wlilte oak the white oak mark-
ed G S and the maple marked I S on the
patent line of said survey In the forks of a
drain that runs S. 10* W. and on to the south
aide of a flat and with the patent Une." The
Beckley and Stuart deed conveying lot No. 4
to the heirs of Moore does not describe the cor-
ner so minutely, but follows the general de-
scription of the survey, given In Snidow*8
report
In this state of the evidence, the court,
at the instance of the plaintiff, told the jury
that, if they believed the straight Une mn-
nlng from the Calfee com^ to the trees
claimed by the plaintiff as the southwest
oomer, shown on the map used in the trial
as the lower and broken line, was the trae
west line of the Moore and Beckley patent,
the call in the deed from Samuel Clark, com-
missioner, to 8. McD. Moore and others, run-
ning N. 10' E. 2,020 poles should be taken
as running with said lower and broken Une
to its intersection with a continuation of the
line between lots 3 and 4 of the partition suit
of Stuart V. Moore and Beckley, and that
if they believed the trees claimed by t3ie
plaintiff as the southwest comer of the Moore
and Beckley patent, as shown on the plat
used in the trial, were the trae southwest cor-
ner of the Moore and Beckl^ patrait, and
that the Calfee comer was the northwest
comer of the patent, the straight line, shown
on the map, as the lower and broken Une
running from the Calfee comer to said trees,
was the tnie line.
These two instmctions, directing the Jury
to make the deed from Clark to Moore con-
form to the locatfon of Qie western boundary
line of the Moore and Bet&ley tract, as dalm-
ed by the plaintiff, in case they should find
It to be the true line, notwithstanding the
northwest comer of lot No. 4 conveyed by
it was described as being In that line and
also at a point some poles to the east there-
of, submitted a sln^e question, the location
of the line. They left open for jury deter-
mination only the ascertainment of the
northwest comer and the southwest comer.
If they found these as claimed by the plaintiff,
they were directed to establish, as the west-
em boundary line, a straight line between
the two points and then make the deed from
Clark to Moore conform to it
Conceding this to be the interpretaUon of
the instractiona, the argnment against their
propriety denies the sufficiency of the evi-
dence for submission of an inquiry as to the
location of the line elsewhere than along the
course shown by the marked trees. The line
Is not described In the deed as following the
direction of certain trees or any trees mark-
ed for identification thereof. In other words,
the trees relied upon here as conclusively
establishing the line to the southwest cor-
ner are not mentioned in the patent Nor
does it say the boundary follows a marked
line from comer to comer. If it did, it would
be impossible to disregard such line, for,
as monuments, the trees would be of equal
dignity with these marked for the termini oi
the lin& But not having been so called for,
courts and Juries are allowed more latitude
in respect to th^r probative value. If the
patent called for a straight line and a mark-
ed line between said points, there would be
conflict and a latent ambiguity. The theory
set up in opposition to the action of the
court, In giving these instmctions, applied
here, would adopt a marked line In pref-
erence to an unmarked one. The descilp-
tion of the Une Involved In the deed would
be so altered as to make It a crooked line
Instead of a straight ooigiiilM/Mld^t^C
892
T8 SOIJTIUDiUBTEIEUI BEFOBTEB
InTotre only alteration of courses and dla-
tanees, It Is true, and the proposition thus
apparentl7 tells wltUa a well-^stabUsbed
rule, namely, tbat marked lines prevail over
mere courses and distances. It does not
do ao, bowever, because the statement of that
mle In the argument of the case as well as
In some opinions is too broad. Only marked
lines or corners mentioned or called for in
the deed or other muniment of title prevail
over courses and distances.
In Smith v. Davis, 4 Grat (Va.) 60, the
deed called for a stralgbt Une between the
termini; it t>elng a division line between
two parts of a larger tract. The termini
were undisputed, but the division Une, as
found on the ground, was a curved one, white
the deed called for a straight line which was
not marked. The trial court was requested
to instruct the Jury that, unless they should
Delleve from the evidence the parties had
consulted to the running of a crooked line
and taken possession with reference thereto
and bad held It for a period of 15 years,
they should find the straight line as called
tot In the dee^ to be the true division line,
provided they further jwlieved the commis-
sioners Intended the Un« to be stral^L
The Instmctlon was refused, and the appel-
late court disapproved the mUngr set aside
the verdict, and remanded tbe cmo A>i^ ^
new trial. In Bfarlow t. Bell, 13 Grat (Va.)
027, 630, Judge Allen, speaking for the oonrt;
said: "It Is not controverted In argument
tbat where notorious landmartts, as ovner
trees or natural objects, are called fbr, tbey
are to be regarded as tnmlnl, and a straight
Une Is to be ran from one terminus to the oth-
er, without reapect to course or dlatanca
The case of Smith t. Davis (4 Grat (Va.)
603, recognizes this as a general nil& But
though this be the true rule where no other
call la ft>nnd In the grant but the call to run
ftrom one termlnna to another, there certainly
may be other calls which show the Une was
not Intended to be a straight Une; as where
a call Is to run with a river or a pubUc road
froiq one terminus to another, the stream
or road, if It leads to the other terminus,
must be followed, though it may diverge from
a direct Une between the two points. The
same mle would apply to a marked line, If
there was enough to show that such line,
though not a direct Une, was Intended as the
boundary; provided by foUowing the marked
line the other terminus can be readied." In
the lUustratlon he Inserts the essential ele-
ment of a call for a straight marked Une.
not merely a straight line. As In the case
of a call for a straight line and a river or
road, the deed by Its caU or otherwise mnst
show Intent to foUow a straight and marked
line. Then the marked Une, if crooked, may
control. Creating a latent ambiguity, such
conflicting calls let In extraneous evidence,
or, to be more accurate, the extraneous evi-
000.09, pCQperly and neeeasarUj let In to ap-
ply the Instrument to its 8atiject*niatter, dis-
closes the ambiguity, and then, as in other
such cases, the question of lutentlau, arising
out of the extraneous evidence as weU as the
document, mnst be determined. Armstrong
V. Ross, 61 W. Va. 38, 55 S. E. 895.
Judge Tucker stated these two pn^xisltlons
aa follows In Dogau r. Seekrlght, 4 Hen. &
M. (Va.) 125, 131: "If a patent or deed
refer to any notorious landmarks or natural
boundaries, whldi cannot be mistaken, and
are not liable to change or decay, as tlte
comers or angles of a plat, such notorious
landmailcs are to be regarded aa termini,
from whence straight lines are to be run
from one to the other, without regard to the
correspondence of either coarse or distance^
which may In such cases be mistaken In
the d^ed, • • • Where courses and dis-
tances, with marked lines and corners, are
referred to In a deed. In such case lines and
comers correi^ndlng most nearly with the
courses and distances, Unee, and conieBs men^
tioned In the deed, are to be regarded as
the tme courses." In that caa^ the monu-
ments called for- In the deed were i>ermltted
to control courses and distances. In Her-
b^ V. Wlse^ 8 GaU (Va.) 230, decided In
1802, Judge Pendleton said: ^To pursue thfr
proper desorlptionB of our land boundartea
would r«der mn's titles very i«ecarioni^
not only from the rarlatlona of the oompas^
but Oat old anrreya wen often iiiaccn»te;
and mlstakea cttm made, In et^ying tlielr
^ecrlptlona Into tb» patents; leaving -out
IbMs, and patting north for Hmtta, and eaaft
ft>r west; and In copying tluae deBcrlptl<wu
Into nbsequent oonveyancea: Whereas, Uie
marked trees upon the land r«Baln invarla-
ble, accordtaig to whldt neighbors hold th^
distinct lands. On this ground our juries
have anifonnl7t wisely, never suftored
such llnes^ when proved, to be departed from*
because thcgr do not agree exactly with de-
scriptions In conveyances." While the caso
involved a question of tKnmdary, it was one
of law and not of &ct. The wlU contained
two descriptions ; one particular and the
othw general; one by metes and bounds, and
the other by words Indicative of intent to
dispose of all the residue of a large tract,
portions of which had been previously dis-
posed ot The general statement In the opln<
Ion must be read In the light of dedslons
defining It and marking its UmUationa
In Baker v. Seekrlght, 1 Hen. A U. (Ta.)
177. decided In 1806, a deed described a line
by courses and distances only. Parol evi-
dence was offered and admitted showing a
marked llu^ differing somewhat from the
line as ascertained by following the courses
and distances. As to this line, tbe deed call-
ed for no monuments, and the marked Une,
corresponding In age with the date of the
deed, was found on the ground not far from
where the courses and distances located the
Uv» Onawrito^^p^J^^^^JAdig^
wiNOiKa atrUF coIiLIGrt oo. t. Campbell
893
founded npob Qw mftrtrad Une, tbe «oiirt beld
the evidence had been prop^y admitted.
Of these two esses, Roane said In
Dogan T. Seekright, they "shew the sense
of the conrt In favonr of marked and reput-
ed bonndaries, when tn oiq^osltkm to mis-
taken descriptions In deeds or sorreys, or to
mere courses and dlstencee." Speaking of
Baker t. Seekright, he said: **In that case,
parol evidence was admitted to aetabUsh a
narked line, whUdi did not eravespond with
that mentioned In the deed either as to
course or distance. It was so admitted, on
the ground that the deecrlptlou in the deed
may have been mistaken ; whereas the mark-
ed and fepnted line, being more stable and
perman»t, ouc^t to preTall, or, at least, be
SDbmitted irtthont prejudice to the consider-
ation of the Jury." In his analysis of the
erldence in IXHPm Seekiight, Judge Tuck-
er shows one of the lines contended for was
not Indicted by any monuments found upon
the ground, while the other was indicated by
monuments answering reasonaUy well Oie
descrlptton thereof In the patent It ms a
case of choice between courses and dis-
tances, on the one hand, and spedfled mono-
men ts, on the other. TbB Instroetlon he
framed for the purposes of a new trial made
the location a qnestlan for the iorj, it they
■should find both of tSiese U>catlw supported
amdsnt marked lines, run either by the
commlsslonerB who divided the land or the
parties to whom the lots had been Mslgned,
but not ofherwlaa By the refersnoe to a
subseQuebt snrrey, he applied another rale
stated by bim as followB: "Where, In a
grant ttr deed, eonmes and dlatanoee only
an ' mmtloned, beginning ftom a certain
point, bnt not referring to-any «ertaln point
foi* the termination, otherwise than by rvfer-
enoe to tbe distance, acotnding to the conre-
ce prescribed ; in anch eaae^ courses and dis-
tances, as expressed in the deed, are only to
be re^tfded,- unless an a^ual surrey, duly
authorised, be proved to have been subse-
quently made, according to the courses and
distances i^reeeribed the deed." -
[IS. 14] Undv these prlnc^ries, marked
lines, though not called for In the deed, if
shown to have been actually run for tbe
purposes of tbe deed, prevail over caUs for
mere counes and distanoes. But they do
not aut^rlze variation of a call for a
straight Use, between monuments called tot
and found, by proof of a marked line not
called for, so a* to mate It an angular w
crooked Hn& In that css^ a straight Une
from monnm»t to monument CfKtforms to
the description in the deed and is sustained
tty natural monuments.- The Mleed upressee
Intent to establish a straight Unci; and the
mcnntittents described as termini fix the loca-
tion with certainty. A marked line fannd In
<!k)ee proximity to such a line, punaiag from
"monoment - to moMment, oorrespondlinr in
age with the date of the survey, may be sof-
Jldent proof of an actual sorvar of ttiat
Une for tbe purposes of Oie cOftviyance ) bat,
as the deed expressly establishes a stral^t
line, the Intent expressed In the Instrument
logically and justly prevails over a mere In-
ference of a different intent raised by the
existence of the inconsistent marked line.
The repugnancy Is attributed to mistake in
the marking of the line, not In draft of the
deed, for its expreeeed intent must control.
When both the straight line and the marked
line are called for, and the latter is crooked,
conflicting Intent is expressed In the deed.
Then courts and Juries are at liberty to say
which shall prevalL
This propositloa Is asserted by the deci-
sion In Smith V. Davis, dted, and the opinion
of Judge Tucker In Dogan v. Seekright, and
later in Pasley v. Bngllsh, S Grat 141, 102.
In that case Judge Baldwin said: "But there
are no cases decided by this court to coun-
tenance the Idea that a claimant of the legal
title to land under deed or conveyance can
disregard the calls of his deed, and rely mere-
ly upon parol evidence that, at or about tbe
time of his purchase a division line was run ^
and between him and hla vendor, without any
evidence to prove that the marks are found
upon the ground and correspond reasonably
with tbe date of the deed, surv^, or divUdoo,
or that they were once so found, and have
been lost by decay or destractlCHL" In a
fonn^ porticm d hla opinion,- he said: "Some
of the American eases iHLTa held. In oon-
formlty wiOi what a rigid- adherenoe 1»
iwlnciple would aeem to reqntie, that tbe
monuments whidi are to control otmrte and
dMame must be called for In the biatni-
ment: but others assert that- where a deed
deecrUwe the land tjioovrtu and eHstonoes
flniy, and. old marks axe found on the ground
eorreiOMmdtng in age, as nearly as cab be
ascertained, with the date of the deed, and
BO nearly agreeing with couraos and distances
that Itey may well be siqqiosed to have been
B»de tor Ita boiindaries, the marks shaU be
taken aa the termini of tbe land. • • *
The Virginia cases seem to have gone stUl
farther, and to have given much wel^ to
marked lines of such a description, tound on
tiie ground, though comer trees^ not lo be
foimd or owerfoinod by evidence, ere ooOed
for 4n the imtimment, or though inconslstettt
with points lo a plat referred to, espedally
if comporting with natural objectt nittition-
ed." This be states as the Umit tf itiaza^
tlon of the strict rule. To warrant the estab-
lish ment of a marked line difEerlng from the
calls of a deed, the calls must be tat course
and dlstanciB only, or the corner monnmehte
called for must be nnascertainable from ihe
evidence or not found. If th^ are foond,
and Incfmslrtent maifced Unee are sought to
bO established, the monnaente are control-
ling, and such Inconsistent line not called for
must be . rejected. These observations har-
monize perfectly with those of Judge Tndcer
in the earlier <am^ ot Doghn v. Seekright
atad tbe .latee eases of Smith t. Dsiia ud.
Digitized by VjOO^?lt.
391
78 SOUTHEASTERN REFOBTEB
(W.Va.
Marlow t. Bell. Tbe principle Is reasserted
and applied in the comparatively recent case
of Jackson v. Land Ass'n. 51 W. Va. 482, 41
S. E. 920, holdlns: "A line should not be de-
flected except in order to conform to the in-
tention of the parties. And if possible, a
line should be constmed to mean a contin-
nons line." See, also, Tompkins t. VIntroux,
3 W. Va. 148. 100 Am. Dec. 735, In which a
call for a line to be so located as to cooTey
a certain qnanttty of land, but described as
a straight line, was held Insusceptible of
change from a straight, to an angular or
crooked, one, so as to include the quantity
intended to be conveyed.
The statute requiring sarreyors of public
lands to be patented by the commonwealth
to bound the same by marked lines, where a
water coarse or an established marked line
shall not be the boundary, is relied upon as
denying the application of this role in the
ascertainment of the lines of the patent;
but the observations of Judge Baldwin in
Pasley v. English exclude this contention.
Having mentioned the statute as the cause
for relaxation of the strict rale, he says:
"It thus being made part of the surveyor's
duty to mark the llnee, If such marked lines
are fonnd on the ground, his omission to no-
tice them In his report, or notldng their
termini inaccnrately, may be placed on the
same footing with other omissions or Inac-
curacies of description in regard to courses,
distances, etc. Introduced into the patent
from the certificate of sorrey. And this re-
laxation In regard to patents would naturally
extend to deeds consequent npon, or growing
out at, them, as la the case with all our coa-
T^ances." Properly construed, this statute
was necessaiUy directory and not mandatory,
in the sense that an erroneous but certain
description of the patent would be so broad-
ened by extraneona evidence as to Intrude all
tbft land enrv^ed for It or so narrowed as to
exclude a portion of it The statate con-
tains no sncii provision, and. In the wilder^
nefls in vrbiA those early sorr^ were made,
It waa practically Imposalble to avoid mis-
takes. Some of the difficulties Incident to
running long lines and rradetlng mistakes In-
evitable are pointed out in the oi^lon ta
State V. King, 64 W. Va. S40, S79, 6S & B.
468.
In giving these instmctlons the court
treated the evidence as to the Identity of the
southwest oi»nm as inctaudnsive and xalslng
a question for Jury determination. It also
treated the evidence of the existence of a
marked line from tlie southwest comer to
Oa *^ht-notch ehestnnf * aa being inoon-
ststent with the evld«u» offered by the
plalntUf to establish the soitfhwest comor,
and tending to prove the claim of the de-
fendants as to the location of the western
IbWi Inoonslstait with idatuttlFa claim as to
the locatitm of that corner. Under them, the
Jury were at liberty to cstabUsh the south-
wast eomer by the evldenoe reUad npon
the plaintiff as to Its location, or, iqton the
evidence of the inconsistent marked line, to
reject that location and treat the corner as
unascertalnable except by course indicated
by the marked line and the distance call.
The propriety of this ruling by the court Is
a proper and logical conduslon dedudble
from the authorities here analyzed.
(IE] PlalntlfTs instruction No, 1 bound the
jury to make the deed from Clark, commis-
sioner, to Moore, conform to the line from
the Calfee corner to the southwest corner as
located by the plaintiff, and so withdrew that
question from the Jury as one of law for
court determination. The Clark deed calls
for that line aa w^l as for the "eight-notch
chestnut" It was made In execution of the
decree of partition, plainly intended by the
court for division and conveyance of the en-
tire Moore and Beckley tract as disclosed
by the facts and clrcumstaDces and the pur-
poses of the parties as well as the deeds
made In execution of the decree. This being
true, the call for the trees some distance
east of the western boundary line must nec-
essarily have been a mistake It Is plainly
contradictory of the general purpose and
Intent of the conveyance. A grantor In a
deed, apparently intended for conveyance of
all of his land or all of a tract is presumed
not to have intended to retain a narrow strtp
thereof, and, upon this presumption, calls in
the deed may be disregarded as being errone-
ous. Clayton v. County Court 58 W. Va.
263, 62 S. El 103, 2 U B. A. (N. 8.) 688;
Adams V. Alklre, 20 W. Ta. 480. If a deed
contains two descriptions, one gsieral and
the other particular, the general description
will prevail, if shown by the terms of the
deed, Its purpose, the situation of tiie par-
ties, and the circumstances, to accord better
with the Intent of the parties than the par-
ttcnlar description. Herbert v. Wise, 3 Call
(Ta.) 239; MyUns v. Lumber Oa. 69 W. Ta.
346, 351, 71 S. SL 404. Of the Intention of
the parties to the partitiui sntt and of Qark,
commissioner, to make ooaveyances of the
entire Moore and BecUey survey* there can
be no doubt This bdng true, the calls for
trees west of the Une as the comer of lots 3
and 4 is Just as cleariy a mistaken call.
Under such drcum stances, the court may
treat the quesUen of Intoit as <nte of law
and need not submit It to the Jury. Myllus
V. Lumber Co., dted; Sno<du v. Wingfleld,
52 W. Ta. 441, 44 8. EL 277. The call Is
for .the line <xCithe patent aa well as the
trees, eataWlshtng a case at ambiguity in
the terms of the instrument permitting In-
qtdry as to tbe Intentloa In Uatheny v.
AUoi, 68 W. Ta. 443, 60 & D. 407, 129 Am.
St Bepk 984, the call was few a tree near a
comer, not for tlie tree and the comw, or at
the corner. The phnae **wlth Freda's
Use** was uncertain. It may have meant
parallel with the line or by the oonrse of
the Una
[111 An; Instruction. 8Dbroltted>to£bB.
m, submitted^ to the Jury
Digitized by V^OOQlC
WIMDXNG 0mjf CX>LLIEBT CO. t. CAMPBELL
395
whether the patties elalmed titlee from a
common aonm, Rlffe^ Ford, and McOeery,
whether either plalatlff or defendants had
had actual posseBilon ot the land In contro-
versy or any part thereof, whether plaintiff
and 11b grantoTB were prior to defendants in
the acqnlsition of its title and had paid all
taxes on such lands from the date of sudi
acquisition, and authorized a verdict for the
plaintiff, even though U had not traced title
to the state nor had actnal poesesslon of the
land for ten years, if all the Inquiries should
be answered afilrmatiTely. The sabmlsslon
of an Inqnliy as to a common source of title
Is (Hie ground of objection to it The piu^r
UUe of the defendants, as has beoi shown,
runs back to BarUey D. Cole, whose title
came mediately from Rlffe, Ford and Mc-
Creery. Its call for the Bray line, running
diagonally across the strip between the two
alleged locaUoos of the western line of
the Moore and Beckley survey, limited it to
about one-half of the section of that strip,
corresponding with Its l^igth, but excluded
none of the surface or mineral recovered by
the plaintiff. Cole's deed to Farley. iuErtead
of conveying the triangle thus formed by the
deed under which be held, calted for the
northwest comer of the Moore and Beckley
patent as being 32 poles farther west, on the
division line between lots 3 and 4 conttnued,
and, when Farley conveyed to Campbell he
started at the same point This point la in
the western line of the Moore and Beckley
survey, as located by the plaintiff, and the
paper title of the defendants traces back to
It. If it is the true line, a question submitted
to the jury, these deeds call for land within
that survey, . in terms recognized by them.
Thus connected, their paper title goes on back
to the state by the same course as that of
the plaintiff. The defendants were not bound
to rest their defense on this title alone. De-
clining to show any at all, they could put the
plaintiff on proof of Its own Utle, or use
their deeds as mere color of title or as evi-
dence of good title under the Moore and
Beckley patent, just as readily and effect-
ually as the plaintiff conld rely upon that
title, or show superior outstanding title in a
stranger. All the title papers being in evi-
dence, It was competent for the Jury to de-
termine the relation thereof and the true
status of the titles and claims. Hence no
error In the submission of the inquiry as to
sources of title is perc^ved.
[1 7] *Sba effect of proof of a common source
of title Is not neoeBsarlly to estabUdi good
title In the plaintiff; Us being prior in time.
It works an estoppel against the dtfendan^B,
and so dlspmses with necessity of proof 'of
perfect tlt3e In the plaintiff. Summerfleld
White, 04 W. Va. Sll, 821, 46 8. B. IM.
Tbe nde Is ^ recognized exception to the gen-
eral rnle, requiring the plaintiff to trace his
title to the 8tat& Wltten t. St Glalr, 27 W
Va. 762; 10 A. ft B. Ency. L. 401; Newdl
on Etiect 678; Herm. Bst | 668. These eoa-
elusions overrule the excepOtm to plalntUTs
Instruction No. 6 also-
PtalntllTs instruction No. B. sobmitttais an
inquiry as to whethw the possession relied
upon by the defendants was within Farley's
Nservatlfm under Ids deed to Oampbell and
exdndlng the statute of Umitattons, In the
evoit of an attlmiatlve answer, was proper
ly given, since the evidence as to whether
such possession was within the reservation,
or beytmd it and on the land claimed by
Campbell and Curtis, was conflicting.
The evidence relating to the location of
the western line of the Moore and Beckley
snrvey, hereinbefore set out in substance, sus-
tains the finding as to it Most of the ar-
gument against Its sufficiency is founded up-
on the untenable views as to the law al-
ready disposed of. The propriety of the
alteration of the bearing of the 1,650-pole
line, as being a mistaken description there-
of, was a question for the Jury, as In other
similar and like cases. The practical agree-
ment of that line, so run with the variation
allowed, with the marked trees, dalmed ar
the comer, and with the line from those trees
to the Calfee corner and Its calls for course
and distance, was proper evidence for the
Jury on that question. It is admlsfdble and
forceful under the recognized rule, authoriz-
ing the closing of surveys, one of the tests of
the identity of lines and comers.
[11} On the locations of the lexceptlons
from the Moore deed, the testimony of a
witness was adduced. Reciting his knowl-
edge thereof In a general way, he declares
positively that the land In controversy Is
outside of all of tbem. He said he had ex-
amined all the deeds for land In lots 3 and 4
of the Moore and Beckley survey, had been
at the houses of many of the owners and
on the land, and knew nobody other than
the defendants claimed the land in contro-
versy. This, in our opinion, makes a suffi-
cient prima fade case of location outside of
the exceptions, under the rule, and nothing
was adduced in rebuttat If rebuttal evi-
dence had been adduced. It would have
been necessary to show and establish the
lines; but In the absence thereof, we do not
think the rule requires such exact and defl-
nlto proof of location.
The verdict does not extend b^ond the
western line of the survey as found by the
Jury; and it excepts all of the surfhce^ con-
veyed to Farley by Cole, beyond the lines of
Farley's conveyance to Meadowy aoquitvd by
the plalntifl. In this respect, the verdict
accords with the dlsdalmer and the proof as
acc^ited by the Jury.
The Judgment Is without arm and #111 be
afflxmed.
'Digitized by Google
396
78 SOUTHEASTERN B^PORTEB
(W.Va,
(n W. Ta. M)
FINDLET T. GOAL ft COKB BT. GO.
(Sapr«nw Conrt of Appeal* of West "l^ri^iiia.
April 15, 1913. BeheariDs Denied
Mas 20, ISia.)
fByUalMt hp tk« Com*,)
1. TSiAL (I 139*)— DisicnoN of VEBDIOr—
EviDEItCX.
If plaintUTs evidence Is nffideiit to mr^
nut the jury in finding ■ Terdlct upon It, it
ie error to exclude it.
[Ed Note.— For other cases, see Trial, Cent
333, 338-341. 360 ; Dec Die. {
2. Habrb Aire SEETAmF <H ass, 270*)— Iir*
JTTBT TO RAIXBOAD EkPLOTI— NEOUOBNCB—
ETVIDENCK.
In an action for damages resnltins from
tbe ezptosioD of a locomotiTe boiler, the mere
fact of explosion raises no presamption of
negligence; bat testimony that the broken
ends of a large number of stay bolts were
mated and corroded. Indicating that they were
bnAen off aome time before the exploalon, is
erldence tmding to prove negligeiiee, and the
jorj are entitled to consider it.
[Ed Note.— For other cases, see Master and
Servant, Cent. Dig. H 8n-©08, 913-927, 932,
956; Dec Dig. H 266, 270.*]
3. Mastes and Sebvaut ft 108*)— Xhjubt to
BaILKOAO BUPLOTt — LlABltm OF HAB-
TEBr-NOSASBlOirAaLB DVTT.
A railroad company is liable for injury
resnltlog from the explosion of one of its lo-
comotive boilers, if the explosion it due to tbt
negUffeace of iu semnta intnwtad with the
dtttj of keeping it Id repair.
[Ed Note.— For otlier case*, aee Muter and
Servant, Cent Dig. | 175; Dec Dig. S 103.*]
4. WirintBSEs (i 399*)— Ihfbaohubnt— Right
TO EXFUklN.
A witness, whose impeadiueirt is aooght
hj the prodaction of a paper, adaittedlr sign-
ed bjr aim, oHitalning a statement of facts
concerning which be has testified, and incon-
sIstHit with- his testimony, is entitled to ex-
plain the cireumstaiiees under whleh he s^-
ed it aad hit motiTe for doing to. in order
that the jury naj falrlj Judge of hta credibil-
ity.
[Ed. Note.— For other cases, see Witnesses,
Gent Dig. 1261-1264; Dec Dig. | 396.*]
5. Btidbncb (S 483*)~Injubt to Railboad
Bmflot£— Opinion Bvidbrcb.
A nonexpert witMtt, who taw the broken
stay bolts of a boUer immediately after it had
exploded, may testify that tbe broken ends of
the bolts appeared to him to be "old and
rusty looklnjr;" but he cannot state that, 'in
hit opinion, they were broken before the
explosion, or that they appeared to him to be
*1n bad condition."
[Efd. Note.— For other cases, see Evidence,
Gent Dig. || 225»<226e; Dec Dig. | 483.*]
6. New Tbiax. (f 160*)— AmoATiT-Sunn-
onnoT.
An aAdavit tendered in support of a mo-
ti<m for a new trial on the ground of after-
discovered evidence, which is mtide on infor-
mation only, and wbich assigns, no reason for
failare to procure the affidavit of tuch wit-
ness, is not sufficient . ,
[Ed. Note.— For other cases, see New Trial,
Cent Dig. U 306-310; Dec. Dig. | 150.*]
ErroF to jOlrcnlt Courts Randolph Gonnty.
Action by Lerl J. Findley, administrator,
etc, against the Goal A Goke Railway Gom-
•rereUMi
pany. Judgment for defoidBnt on ^UrecteA
verdict, and plaintiff bringB vioB. Beww»
ed, and new trial granted.
0. H. Scott and H. G. Enmp. both of El-
kins, for plaintiff In error. Price, Smith,
SpUman A Clay, of Cbarleston, for defend-
ant in error.
WIUJAMS, X ActiOD of trespan on
the case to recover damageB tot Oib wrong*
fol deatti of plalntllTB Inteatate, allied
to have been caused by the negligenoe of
defendant. After plaintiff had introduced
all bis erldeno^ the eonrt Bnstalned a motlim
to exclhde It, and directed a verdict fin-^the
defendant, and plaintliE obtained this wiit-
of error.
[1] The principal question Is: Is plaln-
tlfTs evidence snffldent to support a verdict
In bla fovor, if the Jury liad so found T If
it Is, the court shoald have allowed tbe case
to go to the Jury.
Plalntltrs intestate, Frank J. Findley, d^
ceased, was employed as fireman on defoid-
ant's railroad, and had made two or three
nms befoi^ bis death. On tbe SOth October,
1909, tbe boiler belonging to engine No. 10,
which deceased was firing, exploded near
a statlbn called Yankee Dam, on Elk river,
as tbe englbe was making a nortb-bound
trip, drawing a train of freight cars. Plain-
tiff's intestate, the engineer, and another
fireman were instantly killed.
It Is averred that defen^nt was negligent,
in that it did not use due and proper dili-
gence to keep itt engine and boiler In a rea-
sonably safe condition; that It "negligently
and carelessly permitted and Buttered the
said boiler to be wea^ niua^ and Inanlli-
dent, the sheeta of tbe Bald boiler to be and
remain insuffldent to withstand tbe stresa
and strain to wbich thegr neoeBSamy
subjected, and it negligently, careleBsljr, and
knowingly permitted the bolts and Btity bolts
of the said bolter to be and ronaln' weak, un-
safe, and Insnfflclent, .brcAen off, rosted, and
corroded, so that the same were not snU-
clent to bold -tbe said boiler together, and to
resist tbe stress necessarily placed upon
them in tbe t^ration of tbe said twller."
The facts averred, If proven, would cnnstl-
tnte negligence, because the master's duty to
his servant requires blm to provide bis serv-
ant with reasonably sate macbtnery with
which to work, and to use reasonable dili-
gence to maintain It In a safe condition.
The degree of diligence necessary to pre-
serve a locomotive boiler in a reasonably
safe condition Is a mixed question of law
and fact for jury determination, and must
be determined from tJie experiences of men
familiar with the construction and proper
treatment ojF^such powerful and dangerous
madilnety, when In use — ^men who have
I see same tepie and ssetletf KUHBBR la Deo. Ms. * Am. Dig. Ksr-Na gsrlSB
Digitized by
W. Vfc)
FINpLEY T. pOAIi A COKE RT. OO.
397
knowledge of the parposes and duraMUtr of
its sflveral parta.
[2] law Imposes the burden of prov-
ing negligence on i^tntlff; and Uie erldenpe
by wUcb he se^ to prore It la wholly dr-
cnmstantlal, oooBlstlng of teetlnumy of wit-
nesses ooncernlog the appearance of the stay
txitM which held together the Ore box and
tlie malh portion of the bolltf. A number
of witnesses teetlfled that tbey saw the brok-
en stay bolts Immediately after the es]do-
Blon, and that the hrolten ends of tbtrn were
rusted and corroded, thos indlcatliig that
they were broken some time before the ex-
plosion. Such evidence Is not only proper,
but apparently It Is the only available evi-
dence to support plalntllTa allegatlona. No
living witness knows the amount of steam
pressure on the boiler at the time of the
explosion. Bnt a witness who fired the
engine about a month before the explosion
testified that the safety valve was set to a
pressure of 180 pounds. It Is also proven
by a witness who saw the engine from across
the river, when It exploded, that it was mov-
ing at the rate of eight or ten miles an hour.
While It la true that no presumption of neg-
ligence arises from the mere fact of the ex-
plosion of the boiler (Hanley v. Bailroad
Co., 58 W- Va. 418. 63 S. B. 625, and Velth
T. Salt Co.. SI W. Va. 06, 41 S. B. 187, S7
Ih R. A. 410). still h^llgence may be estab-
lished by proof of facts which show that the
boiler was allowed to become onsafd befinre
It exploded.
tl] It was the duty of defendant to pro-
tect Its employte against the duigers of an
explosion by having its bollw omtlnuoualy
Inspected, and repaired when necessary, by
competent machinists. If Its Inspector was
negligent, and bis negUgMice was the proxi-
mate cause of the death of plaintiff's Intes-
tate then defendapt Is liable; the duty to
maintain the machinery In a reasonably
sale condition being a daty which defend-
ant could not delegate to another, so as to
r^leve it from liability. It is what the law
denominates a nonassignable duty. John-
son v. Railway Co., 86 W. Va. 78, 14 S. R 43Z
Harry Branard, who had had several
years' experience In making and repairing
boilers, testified that it was a good practice,
and the general custfmi. to wash out k»co-
mottve boilers and test the stay bolts once a
month. Stay bolts have small holes, about
one-eighth mcb In diameter, drilled Into
tbem. longitudinally, far enough to pass be-
yond the Inner surface of the sheets forming
(he Are box, and when one breaks, which
appears to be not an unusual occurrence,
the water and steam In the boiler ts forced
through the bole. In a large locomotive
boiler there are about 800 of these stay
bolts, placed in rows about 4% Indies apart,
each way. t!he Are box la bunt fiitb the
rear end of the boiler; tin dieeta of metal
forming It being held In place and strength-
ened by the stay bolts extending to and con-
necting with the sheets forming the barrel
of the boiler. The space between is flUed
with water and steam.
Witness Bernard teetlfled that If one stay
bolt is broken more or less strain is shifted
to the ones next to It; Uiat a bolt does not
break off suddenly, but begins to crack, and
breaks gradually; that^ the breaking Is
caused by the vibration, omtractlon, and
expansion of the metals ; that one bolt may
be found broken off and another next to It
only cracked; that if a broken bolt Is not
removed the broken ends will become cor-
roded; that the custom Is, when replacing
a broken bolt, to take out the one next to
it also, and. if It Is found to be cracked, to
continue to remove them successively, in that
row of bolts, until a. sound one is reached,
and that when a sound one Is found it Is an
indication that the remaining ones in that
row are sound; that the bolts usually start
to break in the corners of the fire box.; that
they are liable to ruat, but that they usually
break off before they are much affected by
rust; that, as a rule, they are not allowed
to remain long enough to be weakened very
much by rust; that a broken bolt is not an
Infrequent occurrence, and does not Indi-
cate that the boiler Is unsafe; that If a bolt
breaks while the engine is on the road It la
usual for the wglnew to ping the test h(Ae
ia the bolt by 4rlTlng « wire nan into it to
vtmmt the flow of mter and steam; .that
stay boiti are tasted at the machine ahops
by getting inside tho Ore box and tapping on
tlw end of the bcdt with a hammm, lint
having removed the Ore and washed out the
boiler and allowed it to oool ; that a tnoken .
bolt Is eaaily detected; that good practice
requires such tests to bar made every 80 days,
if a Nrtln ia constantly used ; and ttiat, it
iROper repairs are made, he dM not thinik a-
suffldent number ot stay bolts would break
off In that length of time to weaken a bollw
to such an extent as to cause it to exploda
J. li. Peters, a machinist who used to
work In defendant's railroad shops, testllled
that he knew engine No. 16, which was the
engine that exploded; that it had' been In
use on the road since 1906 or 1806; tbAt
some time in the winter of 190S or 1009,
while working on the night shift, he r«n em-
bers to have corked some of the broken
stay bolts in the boiler by riveting the ends
so as to dose up the test holes ; that he knew
of no other workman stopping the holes in
tliat way ; that he was not told to close tiie
leak in that way, but Tolunteered to do It;
that tbe last general overtuullng that he
remembers engine No. 16 to have received
was In 1906; that the locomotive boilers In
use 1^ defendant were supposed to be wash-
ed out and the bolts Inspected every 12
days; that defendant ke^ a man at ita
■ -■■ - ■ DigitizedbyV^OOglC
398
78 SOUTHEASTERN REPORTER
(W.Va.
shops for tbe purpose of making the teats;
and that be has seen him do It by getting la
the fire box and tappli^ <m the ends of the
stay bolts with a hammer.
H. O. Droddy testified that he fired engine
No. 16 about a month or so before the ex-
plosion; that some of the stay boltd leaked
then "on the left side Inside of the cab, and
some leaking on the outside, and some on
the right side" ; that wire nails were driven
In the holes to stop the leaks. Droddy saw
the broken parts of the boiler on the day of
the explosion, and In his testimony In rela-
tion to the appearance of the broken stay
bolts says: "Some bad the appearance of
old breaks and some new. • • ♦ Several
of them were rusty, very corroded over the
ends ; while others were fresh broken."
That of the number that were corroded over
the ends, as near as he could tell, there were
"12 or 15 — something like that" He also
testified that when he was firing engine No.
16 he saw Mr. Rogers, the engineer, try to
cork some of the leaking stay bolts- on tbe
road, at daiy Courthouse, but does not state
when that was.
' J. W. Boggs also saw the broken boiler
shortly after the explosion, and In his testi-
mony concOToing the broken bolts, which
had nails or metal in the test holes, said:
**I never examined them all. I counted some-
where In 2a' I would not say posttlTa. I
dldn*t count near all of than.**
Thefe la other eridence^ stmilar in char-
acter. But all of idalnttfl*s evidence was «-
eluded, on the ground that It did not prove
neglig^iee. This was emv. Beli« nnex-
plained and tmocHitrftdlcted, the evidence was
sufficient proof to warrant tbe Jury in be-
lieving that the oploslon was due to the
large number of broken stay bolts, which
It waa the doty at d^endanf s employes In
the maddne shops to have r^laced with
sound ones. If they were negllgttit in tbaX
req>ect, defendant is liable, it matters not
bow skillful they were; or how frequently
the engine was overhauled, if tbe explosion
ts due to the failure to make proper repairs,
because the duty to provide reasonably safe
machinery is an obligation from which tbe
law does'not relieve the master; it is one
ot his nonassignable duties.
In view of the testimony of Bernard that
a broken stay bolt can be easily detected,
the testimony of other witnesses as to the
large number of stay bolts that were plugged
with nails, and the broken ends of which
were corroded and appeared to be old, signi-
fies n^llgence .of the Inspectors, and tends
to prove suoh a defect in the boiler, exist-
ing before the explosion, as could have been
discovered and remedied by the exercise of
reasonable diligence.
[4] On cross-examination of witness Drod-
dy defendaqt's counsel produced two papers
which, being admitted by Droddy to have
been signed by him* were read to the Jury
for the purpose of Impeaddng his testimony.
Tbe papers were in the form of questitms and
and answers thereto made by the witness
shortly after the acddent, relating to what
he knew concranlng it ; he having fired the
engine a month or so before tbe explosion,
and having seen the explosion from his
&ther-in-law*s home on Uie opposite side of
the river. The statements were not sworn
to; nor does It appear who propounded to
Droddy the questions. But it does appear
that at the time tbe paper was signed Drod-
dy was in the service of defendant as fire-
man ; that John Emmert was assistant gen-
eral manager of defendant's road, and that
Mr. Kalbaugh was superintendent of its mo-
tive power; that Mr. Emmert had written
to the witness, a short time after the acci-
dent, to come to his office In Gassaway ;
that he did so, and on that occasion the
written statements referred to in the follow-
ing question, which the court refused to al-
low witness to answer, were dgned by him :
"State what. If anythli^, was said there by
Mr. Emmert, at the time yon had the talk
with him, or by Mr. Kalbaugh, at the time
you had the talk with him In the private car,
in regard to a statement of what you might
know about that explosion. What, if any-
thing, was said in the way of advice, caution,
or direction about your statement?" Coun-
sel for plaintiff stated that If wttneaa was
allowed to answer he would say "that he was
told that trouble was apt to grow out of
this accident, and that he had better be care-
ful about the statement that he had made
and was going to make, and that, as he was
In the employ of the company and had a
family to care for, he had better be careful
as to his statements and conduct" The
court should have permitted witness to an-
swer the question. The paper was offered
to Impeach his testimony, and witness had
a right to explain his motive for signing It
The matter related to his credibility, a mat-
ter of which the jnry were the Judges; and
before they could ftdrly pass on It tb^ were
entitled to bear witness' explanation for hav-
ing signed a previous statement so apparent-
ly inconsistent with his testimony.
It was also error, for the same reason, to
refnse permission to answer the following
question, relating to the same matter: Q.
State whether yon made the answers, or
any of them, which ore written in typewttto'
upon this paper?"
[S] Bill of exceptions No. 6. Witness W.
H. Belknap, who saw the breken parts of tbe
b(rfler after it had been brought to Gassaway,
on the day after tbe ei^losion, was asked
what was the appearance of the ends and
sides of tbe broken stay bolts, and replied:
"Well, tbe appearance of them were old and
rusty looking to me." The court struck out
this answer, on motion of defendant's counsel.
This was erron True this witness was not an
expert, but the appearance of broken iron tliat
has been long exposei^.^.J^j^^qeg^^i^i^
PIKDLEY T. COAL A COE£ RY. QO.
399
water, as compared to Its appearance when
fresh broben, la a matter of common knowl-
edge. How it appeared to witness Is how It
really was, so far as It concerns the value
of his testimony. And If his answer In-
volved the expression of an opinion by the
witness it was in relation to a thing which
he saw and was trying to explain to the
Jury, The rale is that a nonexpert witness
may be allowed to express hla opinion in
connection with the facts on whidi It is
founded, when the matter concerning which
he has testified cannot be reproduced and
made clear to the minds of the Jury, "In
such case the witness testifies as to the pres-
ent conviction of his own mind as to an ac-
tual fact, though deduced from circumstances
which cannot be made palpable to others."
12 A. & E. E. L. (2d Ed.) 488. In State v.
Welch, 86 W. Va. 690, 15 E. 419, a non-
expert witness was allowed to state that, in
his opinion, a stain seen by blm was a blood
stain. The app^rance whtcb the broken
bolts presented to witness was, necessarily,
bis opinion of their actual condition; and.
In view of the common knowledge of all men
Id rem>ect to such things, he could not better
explain to the Jury what he saw than by tell*
Ing how It appeared to him. It would appear
to others as It did to him. This Identical
question arose in a similar case, decided by
the Supreme Court of IlUntds (IlUnols Cent
B. Go. V. Prlckett, 210 111. 14(K 71 N. E. 486),
and It was there that : "NoD«pert wit-
nesses, in an acOtm for damages caused by a
boiler explosion, may be allowed to testify
whether or not breaks in tin stay bi^ of
tiie boiler had the appearance of old or new
breaks. In connection with the facta, so lax
as tiiey can be described la wwdiB^ on whidi
thdr eonelndona are based."
The court likewise erred, and for the same
reason, in refusing to allow answers to be
made to similar questions asked of the same
witness, set forth In plalntHTs bills of excep-
tions Nos. 6 and 7. He was also asked it
he was "able to determine if .the bolts were
recently broken, or if they, or some of them,
had been broken before the explosion." An-
swer to this was properly refused, becanae
it called for witness' conclusion or opinion
In regard to the very Issue to be tried by the
Jury.
The court properly excluded the following
answer by witness Belknap to a question In
relation- to the number, location, and condi-
tion of the broken bolts that he saw, viz.:
"Well, they looked In bad condition to me."
This answer Implies that It was witness*
opinion that the bolts were in bad condition
before the explosion. It could not refer to
the condition of them, produced by the ex-
plosion, because that was not germane to the
point that was then the subject of inquiry.
For the same reason, the court properly
struck out the following answer, made by
vitneaa J. W. Boggs, to a aimllar qneatloii
relating to the appearance of the broken
bolts, viz, : "Well, there were several bolts
broken or msted ofC, or burned off, or some-
thing. I don't know how they got off; but
they had been oCC for some time." Witness
could describe the appearance of the broken
ends of the traits, whether msted or fresh
broken; but It was the province of the Jury
to determine how long they had been broken.
It was also proper to strike out the same
witness' answer, set out In plaintiff's blU of
exceptions No. 12, In which, speaking of the
bolts, witness says they "were badly bro-
ken"; they "had been badly rusted and
burned off." The language implies that. In
the opinion of the witness, a large number
of bolts had been broken off for a long time.
He was not an expert, and It would seem
from hla statement that some bolts were
burned off that be had but little knowledge
of the construction of a locomotive boiler.
The qiace through which the bolts passed
was filled with water and steam, and it was
not possible for them to burn off. His testi-
mony that some of the bolts were plugged
with nails was proper evidence. It suffi-
ciently appears that the purpose in driving
nails In the holes in the bolts was to stop
a leak, and that a leak Indicated a broken
or cracked bolt It Is therefore a natural
and fair inference that all the plugged bolts
were broken before the explosion.
It was proper not to permit Bernard, the
upert witness, to answer the question wheth-
er or not it would be "exerdslng reasonable
care" to weld or ping the test holes In the
stay bolta. That was a matter for the Jury
to decide upon proper Instructions hy the
court It was one of the very lasnes In-
Tolred.
There are a numba of other exceptions
taken to the nillng of the court upon similar
Questiona of evidence ; but we think what we
have already said amounts, practically, to a
decision of all ancb questions raised, end
will enable the court, on a retrial of the case,
to av(dd the commission of error.
[I] There la, however, another assignment.
Involving the question of Aftn-dlaoovered evi-
dence, which deserves consideration. Plain'
tiff moved tor a new trial on the groond of
aftw^scovered evidoice, and in support
thereof tendered his affidavit in which he
states that on the day of the trial, and after
the verdict was rendered, he "was Informed"
that two other witnesses, naming th^
were present shortly after the explosion, and
examined the broken parts 9f the bcdler. He
then states what he is advised those wit-
nesses will state. Affiant does not produce
the affidavit of dther of the witnesses, or of
his informant ; no cause is shown for faltnre
to produce affidavlta of the wltnesaea them-
selves. Moreover, the newly discovered evi-
dence is only cumulative. The affidavit was
dearly not sufficient State v. Stowers, 66
W, lOa 60 S. B. 823; Stat* i^ Qebhart
Digitized by VjOOglC
iOO
78 SOUT&EASTERN BBPORTEB
(W.Va.
70 W. Ya. 232, 73 S. E. 964 ; and Jacobs v.
WllHainB, e? W. Va.. 878, 67 S. E. 1113.
Wq are of the opinion that the evidence
was sufficient to entitle the jury to pass on
the questLpn of defendant's negligence, and
that It was error to direct a verdict to be
found In Its favor. We therefore reverse the
Judgment, set aside the ver(K(^ and remand
the canae for a new trial.
cn W. Va. »)
CIT7 BANK OF WHBEIiINO et aL T.
BRTAN et al.
(Supreme Court of Appeals of West Ttr^nia.
Feb. 18, 1913. Behearing Denied
May 29, 1913.)
(BgOabua by the Court.)
1. PBIHCZPAX. AMD AOKHT (| 109*)— BiQBTB AB
TO Thzbd Pasties— Autbobitt of Aoekt—
. "PaoMiBsoaT Notes."
Power of attorney, pven an agent to pur-
chase shares of stocli Id corporations, ''form-
ed or to be formed," and to pay for same by
"promissory notes," payable at sach time and
place as the agent may determine, aDthorizea
such agent to purchase stodt tn a newly form-
ed corporation, and to execute bis principal's
commercial notes therefor.
[Ed. Note.— For other cases, see Principal
and Azent. Cent. Dig. |i 318^22, 360, 861,
365; Dec. Dig. { 109>
Fok- other definltlone, see Words and Phras-
es, voL 6, pp, 5670-5681; vol. 8, p. 7767.]
2., Bills and Notes (I> 870, 873*)— Bights
ok inoobskubnt to bona flde holdebs. .
Such notes are collectible by an indorsee
for valne and without notice, who, relying up-
on the agent's authority, purchased tiiem be-
fore maturt^, notwithstanding the authority
of the agint was procured by the fraudulent
mfsrepresentatlons of a third person, ' and the
stock for which tiiey were given wiu wbrth*
less.
[Ed. Note.- For other cues, see Bills and
Notes, Cent Dig. || D63, 966-070; Dec. Dig.
8. CoHPOBATIONg (I 92*)— FUNOTIORS AVD
Deaxinos— IirDOBsmxifT or Neootiablb
InSTBUMENTB.
A corporation owning negotiable notes
made payable to Its order, m consideration for
capital stock to be issued to the maker of the
notes, has a right to sell theuL
[Ed. Note^For other eases, sea Gorpora-
tions. Cent Dig.! 366; DeoDlg. » 92.*]
4. BzLU AHD Notes Q 463*)— Defenses— To
Wboic Available.
In a suit by the Indorsees of such notes
against die maker, it is no defense that Uie
treasurer who indorsed them for his corpora-
tion, lacked authority, the corporaU<m itself
not complaining, and navlng no right to com-
plain, of his act.
[Bd. Note.— For other cases, see Bflla and
Note^ Gent Dig. ft m4-1351 ; Dec Dig. |
St Bills ard Notes (M 453*) -Motions— De-
nNSEB.
'Neither can he defend on the ground that
one bank, without authority to do se, indorsed
them for ^ aceoidinodatim of m>tter that
discouted them.
[Ed. Note.— Fw. otfier cases, see KUs and
Notes, Cent Dig. » UM4-1351; Dea Dig. f
453.*]
•B^'oCbir eases
6. Banks and Bankiivo ft 116*)— Forvcnom
ANo Dealingb— NonoE to Ofiicbb OE Dt* .
BECTOB.
Knowledge of tfae inflrmlt^ of commercial
paper, acquired by an officer or director of a
bank ontside of his official duties, who is per-
sonally interested in having the paper dis-
counted, is not attributable to the bank.
[Ed. Note.— For other cases, see Banks and
Banking, Cent Dig. ft 282-287; Dec Dig. {
116.*]
7. Fbinoipal ahd Agent (1155*)— Aitthobi-
TT OF AGENT— Effect of Wbonqful Acts.
PromisBory notes executed by an agent
pursuant to anthority, but wliich contain a
providon that the agent is not uithorized to
make, empowering any attorney at law to ap-
pear in any court of record in the state where
payable, and waive issuance and service of
process, and to confess judgment against the
maker, are not void because of such onauthor*
ixed provision.
[Ed. Note.— For other oases, see n^ndpal
and Aeent. Cent Dig. U 674-682; Dee. Dig.
I 155.*]
8. Biixs AND Notes (| 161*>— C^BXinaAns
OF Deposit— Nbootiabilitt.
Certificates of deposit, payable to the or-
der of the depositor, are negotiable, and are
governed the law apidicable to conunerdal
paper.
[EU. Note.— For other eases, sat BOls and
Notes, Cent Dig. H 88(^W; Dec; Dig. f
161. *!
9. Bills akd Notes (I 337*>— Bights oirlir-
DOBsiatENT— Bona Fide FtiBCHASEBS.
Mere silspidon of . its infirmity, by the
purchaser tor value and in due course of com-
mercial papwf, is not evidence of bad faith.
IBi. Note.— For odier cases, see BOls Eod
Notes, Cent Dig. U SIS* 856-868; D«l Dig.
I 387.*]
10. Af FBAL AKD BBBOB <i 197*)— PBE«lfT>
xsa. Question in Trial Coubi^Vabiancb.
A variance between the a^egation. and
proof, not called to the attention of the lower
court by any means, if not so great as to show
distinct causes of suit, will be treated by this
court as having been waived.
_[Ed. Note— For other eases, see Appeal and
Brror. Dec tNg. | 107.*]
11. FBAunuxJBNT ■ Conveyances <l 96*)—
Tbansactions lNVAtii>— Inadeqoact OF
GONSIDEBATIOlf — CONVETAlfCB BETWEEN
Pabbrt and Child.
A sale and conveyance by one greatly in-
debted, of a material portion of his property,
to a child for a consideration so grossly in-
adequate as to shock the knoral conscience, Is
evidence of a fraud np<»i the ereditora attack-
ing such conveyance.
[Ed. Note.— For other eases, see FraudnleDt
GoDveyaoces, Cent Dig, H 289-322; Dec
Dig. I 96.*) "
1^2. FbAUDULBHT ConVBTANCEB ({ 96*) —
Tbansactions Invalid— I^adxqoact or
Conbidebatiqn — GotrvnAHOB Between
Parent and GHtLo.
A conveyance of property worth $300,-
000. yielding an income of $2,000 per month,
made to his daughter by a father largely in-
debted, in consideration of only $20,000, held
to be ^bandident and void 'as to. creditors at-
tacking It for inadequate «{nisi((e)»tion and tor
other reasons.
[Ed. Notev— For other eases, see Fraudulent
Conveyances, Cent Dig. M 289-322: Dec
Dig. } 96.*] -
> ss^ tople asd seetfbn MOUBBa in1>se. Dig. * Am.' Xf!g. Kay-He. Serres
Digitized by
W.Va.)
CZTT BANK OF WHEELINa T. BUTAK
ioi
Appeal ftom drcnit Conrt, Marlon GountT'
A bin IQ equity by the aty Bank ot Wheel-
ing and othen against W. J. Bryan and otb*
en. From a decree for defiendants, plaln>
tiffs appeal. ReverBed and remanded.
Alfred Caldwell. T. 8. Riley, Henry M. Bm-
aell, Jobn J. Coniff, and Ersklne A AUlaon,
all ot Wheeling, for appellants. W. S. Mer-
edith, of Fairmont, J. Howard Holt, of
Moundvllle, P. M. H<^e, of Fairmont, and
t>. S. Walton and W. A. Hook, both of
Wayneeborg, Pa., for appelleea.
WILUAMS, X This appeal Is by the
First Citlsens* Bank of Cameron, City Bank
of Wheeling, and the Merchants* A Mannfao-
torers* Natimial Bank of Oolombna, Ohio,
from a decree rendered on the 22d of Jan-
nary, 1910, by the drenlt c«nrt of Marlon
county, In four several suits brought
them, reepectlTely, against W. J. Bryan and
others, for the purpose of eoOecting a nnm-
t>er of notes held by th«n as Indorsees, ag-
gregatlng $99,000. The several suits were
consolidated and heard together. Two of
tbun are hy the First Citizens* Bank, some
of the notes h^ by It not being due at the
time It bionght Its first suit, and one snlt each
by the other two banks. All of them are
attadtment suits in equity, attaddng a coo-
Teyance made by W. 3, Bryan to bis daugh-
ter, Mrs, Limle B. Loller, on the alleged
ground that It was made to hinder, delay, and
d^iaud plaintiffs in the collection of their
debt Mr. Bryan's nonresldency is also aver-
red. The suits were brought In the latter
part of 190S and 'oirly part 'of Jantiary,
1004. During their pendency W. J. Bryan
died, and they Were' rerlved Aigftlnst his ad-
ministrator.
W. J. Bryan was the owner in fee of
474 acres of Talnable coal land In Marlon
coun^, W. Va., whidi was being operated
for coal, under a lease from him to the FaUv
mont Coal Company. ' That company was
garnished aa Us debtor, and it appears from
its answer filed in the suits that the roy-
alties accruing to Bryan on account of coal
being mined amounted to f 2,000, or more, per
month.
As to one note for $6,000 sued on by the
First Citizens' Bank, on which . there Is a
balance of $1,000, exclusive of Interest, there
is no controversy. The conrt gave a de-
cree for this balance and its interest, but
dismissed the suit as to the otiier notes
sued OB, and also dlamlseed the suits -of the
other two banks. All the notes, except the
«6,000 note and th« $3,000 note held by the
First Citizens' Bank, were executed by S.
W. Loller, attorney In fact for W. J. Bry-
an. Loller is Bryan's son-in-law, and the
power of attorney clothed him with power,
among other things : "(8) To indorse In my
name or negotiate all checks, drafts, I^lls of
exchange, notes or other negotiable paper,
payal^ to me or 'my order, or wMkb may
78&E.-26
reantatt my Indorsemimt, and to deposit Oie
proceeds In my' name in said First CitUens*
Bank ct Cameron. W. Ya., or In any other
bank* or banks, trust company or companies
wherever located that my said attorney may
from time to time select; and to make, draw,
or sign in my name any iwomissory notes
which my said attorney sliaU In Ills absolute
discretion dean requUAte in or about my
business. * * * To subscribe for or pur-
chase In my name shares <tf the capital stock
of any company or companies, formed or to
be formed, and to pay for said ahares of
stock in eaah or by promissory note or notes
payable at sudi time and in sndi mannw as
my said attorney shall In Us absolute dis-
cretion determine.**
One who deals with an agoit is bound to
take notice at the extent of fals authority.
There la no question, bowevOT, that Iitdler
was empowered to execute promissory notes
tot Mr. Bryui, for the purpose ot buying
stock In corporattons Uien existing, or there-
after to be formed ; and it la clearly estab-
lished by the proof that all 0ie notes in
<2nestion, ekoept one for $3,000, hdd by tlie
First Gitlsentf Bank, were executsd In ood-
stderatlon for stock pnrdiased for Bryan
in certain corporations. Fifty thousand dol-
lars In notes were executed on the 10th June,
leOS, payable to the lioUer Manufacturing
Company, for stock In that ctnupany. It
had been chartered by the Secretary ot
State of West Virginia «ix days before.
Notes aggr^atlBg $47,000 were executed on
July 16, 1003. wable to B. A. linglehard
for stock in the American Bfanufaeturing
Company, a tlien existtng corporation. One
other note for $S,000, held by the Flriit Citlr
ze&s* Bank, btf ongs to a class of notes Sff*
gregating $90,000, which were executed on
the 10th of August. lOOS, by W. J. Bryan In
person. The $8,000 note was paj-able to &
A. Englehard; the others were payable to
Benednm and Fox, and were 'ficecnted for
the purchase of stock held by A. BL Fox, Di
0. Fox, his brotter, and M. L. Benedum In
the American Manufacturing Company. This
$3,000 note is the only one at that class Id-
volved In tills suit
Following Is a brief history of the trans-
actions leading up to the execution of the
not^: One K. Ascher had invented a tank
and valve for use in water-closets, to be op-
erated under low-water pressure, and bad
applied for a patent. In January, 1903, a
plumbing company, the Fox Tank & Valve
Company, was chartered for the purpose of
exploiting tbis device, and W. 3. Bryan was
induced to take $12,000 of stock In it The
$1,000, not controverted. Is the balance of
ttiat- subscription. At the time that subscrip-
tion was made the Fox Tank ft Valve Com-
pany owned nothing but the right to the lu-
veatiou, ' which Ascher had assigned to it.
■The patent was later issued to said company.
W. J. Bryan was the pre^dent of that com-
402
78 SOUTHEASTERN KEPOBTER
(W.Va.
pany was cliartered for the purpose of takli^c
over the stock and business of the Fox Tank
& Valve Company and enlarging the business
of manufacturing and selling the device. S.
W. LoUer was made president, and A. B.
Fox, treasurer, of that company. The |47,-
000 of notes were executed In consideration
of stock In the American MaDO&ctnrlng Com-
pany. It owned a plant, located at Middle-
port, Ohio, and had been engaged in manu-
facturing plombing fixtures. S. A. Englehard
owned and controlled nearly all the stock of
that company. It appears ttiat the American
Manufacturing Company was then Insolrent ;
it owed debts amounting to $56,000, and its
plant was sold some time after, under decree
of court, and brought about $17,000. On the
15th of July, 1903, A. E. Fox and M. L. Ben-
edum met S. A. Engleliard at Pomeroy, Ohio,
and took from him an option on the property
and stock of the American Manufacturing
Company, at $96,000, out of which the debts,
estimated not to exceed $56,000, were to be
paid. They agreed to pay cash, or to execute
satisfactory notes for tlie remaining $40,000,
In the event the option was closed. On the
day following A. E. Fox and M. L. Benedum
went to Mlddleport, Ohio, and met S. W.
LoUer. who had gone there before them to
look over the plant Notwithstanding they
thai held an option to buy the property at
$96,000, they made Loller bellcTe that it was
worth $160,000, and combined and conspired
with linglehard in selling it to LoUer and
themaelTes at that price. The debts, $50,000,
were aasumed. imd the balance of $9i|000,
was settled for by LoUer executing Bryan's
iwtes for $47,000, payabls to 8. A. Engle-
hard, and A. K. Fox, BL 0. Fox, Us broth-
er, and M. Benedum giving their pretoid-
ed checks tor $47,000, whldi were inuDedlatB-
ly thereafter returned to thorn by Englehard.
Loller knew of tiie d^ts owing 1^ the Ame^
lean Manufacturing Company, bat evidently
be bad no knowledge of the valoe of its plant
Indeed, It aKtrars from the record that he
had little^ if any, bu^ness qnallQcationa,
and seems only to hare beoi an unwitting
tool in the hands of Fox and Benedum In cap-
rying ont their scheme to dtiCraud the old
man, Biyan. The court below found, and
we think rightly so, that all of these notes
had bem procured by fraudulent means, and
would not be collectible if still in the hands
of the payee. It Is unnecessary to state the
evidence in support of this condu^on. The
record abounds with it The facts already
stated indicate the duracter of the transac-
tions. But the notes ars commercial paper,
and have lieen negotiated by the payees to
the several plaintiffs, who claim to hare ac-
quired title to them before maturity, in due
course, and without notice ot tlielr infirmity.
If sndi is the case, tbtfa they are not sub-
ject to the equltieB In tevor of ttie maker.
The Fint CItlsras* Bank Iiolds sevoi notes,
asgregatliv $26,1000, as to all of which Mr.
Brjan 4sBied liabUlty. skc^ tl» balan«e
due on the $6,000 note^ for which, togeOi-
er with accrued Interest, a decree was given.
Four of the contested notes are for $5,000
each, and bear date June 10, 1903, and are
payable at the Merctiants' & Manufacturers'
National Bank, to the order of the Loller
Manufacturing Company, one note for $2,000,
dated July 16, 1903, payable at the Middle-
port Bank to the order of S. A. Englehard,
all signed by W. J. Bryan, by S. W. Loller,
attorney in fact, and one for $3,000, dated
August 10, 1903, payable at the First Citi-
zens' Bank to the order of S. A. Engl^iard.
and signed by W. J. Bryan in person.
Two principal defenses are made to all
those notes, viz.: (1) That S.' W. LoUer was
not authorized to execute them ; and (2)
that the notes were procured to be executed
by fraud, and that the banks had construc-
tive knowledge of it at the time they pur-
chased them, and are therefore not innocent
holders. The tonka were bound to take
knowledge of the extent of LoUer's autfawl-
ty, because he was only an agent and an
ageat cannot bind his principal by exoeediog
his autliorlty. But the power of attorney
antlioriaed LoUw to buy sto^ in any cor^
poration, formed or to be formed, and in
consideration thereof to execute W. J.
Bryan's promissory notes; and it is clearly
provoi that all the notes executed by LoUer
were given In consideration for stock in
corporations. The ^000 of notes, executed
on the 10th of June, were tor stodc in the
Loller Manufacturing Company, and the $48,-
000 of notes now held by the Merdianttf ft
Manufftcturtfs* National Bank wore givoi
for stock of the Amwlcan Manufacturing
Company.
[1 ] It Is wged tluit LoUer had not power
to execute negotiable notes. But to so inter-
pret the power of attorney would be to give
a restricted meaning to the word ♦promis-
sory" not warranted by anything contained
in the writing, and clearly not warranted in
law. A promissory note may or may not lie
negotiable but a n^tlaUe note Is necessari-
ly a promissory not^ and the same note
might be negotiable tn one state and not
tflchni«lly negotlaUe in another. Its quaUty
as commratiUil paper would depoid upon tlw
law of the place of paymait The word
"promissory," as aivUed to notes, is used In
a generic B&iBa, whUe the word "negotiable"
simply defines a particular class of that
genera. The greater term necessarily In-
cludes ibe less. ThB power autbwlaed Lol-
ler to execute ^^nmUssory note <» notes
payable at such time and in ench manner as
my said attorney ahaU in his absolute dls-
cretim d^ermine" This langnaffs Is cora^o-
hoiBive enough to give him poww to oecnte
any kind of a promissory note and make it
payable anywhwe. AU the notes in question
were either dated at MeOtaxSaa, Fa., or at
Mlddleport Obiot and most of them were
payable In the latter states so that as to
their neffotiabUity, most of '^'^^{^^gf^
W.Vm.)
CITT BANK 07 WHEBLIXa t. BRTAJX
403
ed bs the laws of Ohio. 4 Mln. Inst ^4.
Are the several plaintiffs innocent holders?
That they purchased the notes before maturi-
ty and paid value for them is clearly proven.
Bnt were they ignorant of the fraud perpe-
trated on Mr. Bryan by M. L. Benedum, A.
E. Fox, and Englehard In procuring them to
be executed? If not, then they are not In-
nocent holders, although they paid full value.
First, as to the notes held by the First
Citizens' Bank: Four of them, aggregating
^,000, are a part of the $50,000 of notes
that were made on the lOtb of June, payable
to the order of the Loller Manufacturing
Company. They were Indorsed by .that com-
pany by A. E. Fox treasurer, and were taken
by him to the Bank of Wheeling for discount
That bank would aot discount them until in-
dorsed by the First Citizens' Bank, which
was done, and the funds were placed to the
credit of the Loller Manufacturing Company
in the First Cltlzais* Bank, and were later
checked out by A. B. Fox as treasurer of
said company. The notes being payable at
the Merchants' St Manufacturers' National
Bank were forwarded to It for collection,
and, not being paid, were protested. They
were thm taken up by the First Citizens*
Bank.
[6] M. U Benedom and A. B. Fox were
president and ckshier, respectively, of the
First Citizens' Bank, and it Is Insisted that
because of their official relation to the bank,
it Is affected with constructive knowledge of
their participation Id the fraudulent procure-
ment of the notes, and is tnerefore not au
innocent holder. The officers and Olreetorv
of a bank are its agents, and, as a general
rule, knowle^e acquired by an agent in
respect to matters pertaining to the agency
la attributable to his prlncIpaL But there
Is an exception to this rule in respect to an
officer or member of a board of directors of
a corporation who has acquired knowledge
outside of his official duties, which tt is to
his personal interest to conceal from his
corporation. When such is the case, his
knowledge will not be ascribed to the cor-
poration of which be Is an officer. This ex-
ception is especially applicable In the case
of an officer of a bank who has a personal
Interest to be served in having paper dis-
counted by It This point was decided by
this court in Bank v. Lowther-Kaufman Oil
& Coal CO., 66 W. Va. 605, 66 8. E. 718, 28
L. R. A. (N. 8.) 511. m which we held that:
"Notice to one of the directors of a matter
affecting the interest of the bank which it is
to the Interest of such director to conceal
Is not notice to the bank." The aame prin-
ciple was again announced in the more re-
cent case of Bank of Bluefield v. Ritz, 70
W. Va. 409, 74 S. E. 67», 40 L. R A. (N.
8.) 166. We deem it Ufinecesaary to repeat
the reason for the rule, but simply refer
to the opinions in those esses. Po<x and
Benedom were both stockholders In the Lol-
ler MamsCacttiring Company, and were per-
sonally Interested In baring the notes dis-
counted, and for that reason the law does
not attribute th^r knowledge to the bank of
the infirmity of the notes, acquired by them
while acting for the Loller Manufacturing
Company. There are other stockholders is
the bank, Innocent of any wrongdolni^ whose
rights deserve to be protected.
[B] It Is u^ed that t^e First Gltlzenb'
Bank did not negotiate the notes to the Bank
of WheellDg, but that it only Indorsed them
for accommodation, that It had no power to
make such indorsement and is not bound
thereby, and that It purchased the notes aft-
er they became due, and Is therefore not
entitled to claim protection against the equi-
ties In favor of the maker. But the transac-
tion between the two banks was treated a«
one of sale and purchase; the Bank of
Wheeling turned the funds over to the First
Citizens' Bank, and It placed them to the
credit of the Loller Maaufactoring Company.
It was evidently regarded by the two banks
as a rediscountlng of the paper; and, being
so considered by them, the maker of the
notes has no right to complain. It was a
matter between the banks. Our conclusion
Is that the First Citizens' Bank U not affec^
ed with notice of the Infirmity of the four
$5,000 notes. The same argument applies In
support of the bank's title to the $2,000 note.
It was one of the class of $47,000 notes,
dated July 16, 1903, and was discounted by
the Merchants' & Manufacturers* National
Bank after having been indorsed first by
Englehard, the payee, and then by the First
Citizens' Bank. After being protested, It
was taken over by the First Citizens' Bqnk.
The other note for $3,000 was discounted
by the First Citizens* Bank for Englehard,
the payee. For the reason above givMi the
bank Is not affected with notice of its In-
firmity. It is one of the class of $90,000,
and the only one of that class involved In
these suits. Those notes were made by Mr.
Bryan in person at the solicitation of Mr.
Englehard, and were given for the purchase
of Benedum and Fox's Interest In the Ameri-
can Manufacturing Company, Some of those
notes were signed in blank by Mr. Bryan and
were filled ont afterwards by Englehard.
Benedum and Fox agreed to give £3Dglehard
$8,000 for selling their interest to Mr.
Bryan ; and this $3,000 note was taken by
him as a part of bis c(Hnmission for the
Valuable services he had rendered In assist-
ing them to unload upon old man Bryan, at
the price of $90,000, their interest in the
American Mannfactfirlng Company, which
they had shortly before acquired, through
the machinations of tbemsehres and Engle-
hard, for nothing, by giving ttieir pretended
checks to Englehard for $47,000, bnt which
he immediately returned to tiiem, aft^ Lol-
ler had executed Bryan*B notes for a like
sum. Of coune Benedmn and Fox were 1d-
tereated In concealtng the infirmity of the
note from the Dank. ^i^,|^;TO^J^g^e
m
78 SOUTHHASTEiBN BBPORTBR
dlsdiargBk In part, Qielr own obTlffttom to
Btaglehard.
[7] As totbeanlt bytbe Merchants' &Man-
nfactnrers* National Bank: We bare alreedr
mentioned the circumstances nndw which
the of note* held by this bank were
executed. Th^ are of the dasa of $47,000
which were executed by Bryan, his at-
torney In fact, for the pnrdiaae of Ebgle-
hard's stock in the American Hannfiuftnrlng
Company at Mlddl^rt They were all made
payable to the order of Englehardat the Mld-
dleport Bank. They were n^otlable notes
executed In consideration of stock In a cor-
poration, and we have said that Loller bad
power to execute commercial notes for aucb
a purpose. But these are what are known
as Judgment notes; that Is, they contained
a provision anthorlzlng any attorney at law
to appear for Bryan, In any action on the
notes, in any court of record In the state of
Ohio, and to waive issuance and service of
process, and to confess judgment in favor of
the holder. It is Insisted that this provi-
elon, inserted In the notes, was In excess of
authority, and that It avoids the notes. It
Is clearly witbout authority, and renders the
provision in question void. But does it
affect the promise to pay the note' Itself?
We think not It does not follow that, be-
■cause some provision in a written instrument
is void, the whole Is thereby rendered nuga-
tory. The power to confess Jndgm^t, irblch
Loller attempted to confer, was not to be ex-
■erclsed unless the note was not jHitd at
maturity. It has nothing to do with the
-consideration or the promise to pay. It re-
iates wholly to the collection of the notes,
to the remedy, and may be r^arded as harm-
less snrplusage.
. The legal proportion here proBented was
-decided In Robinson t. Lowe, SO W. Ta. 75,
40 8. E. 4S4, In that case the afent was
■authorized to execute a qnlttdaim .deed for
land, and Instead be ocecated a deed of con-
veyance; with general warranty. It was
•ui^^ that the deed was void because It was
In tfcceas of the agents authority. But the
-court held that, notwithatandlng the agent
had exceeded bis anthorlty, the deed should
be given the ^ect of a quitclaim deed, and
waa void only as to the' warranty.
In Tost V. Barney, 103 Va. 117, 48 S. B.
862, It was held (SyL pt. 2) tliat: "Where an
attorney In fact la authorized to sign his
principal's name, as surety for an executor,
to the 'bond required by the court' of the ex-
-ecutor, and be signs Uie name to such bond,
whlcb contains some provisions not required
by law, which conditions are severable and
void, this is not in excess of the attorney's
vowen, and his principal Is bound."
The notes in gneBtlon are not rendered
void by the provision authorising any at-
teaney at law to confess Judgment on them.
'The unauthorized provision only is void.
(I] At tba tlina tbsa* natm wan negotiated
to Cbe UP»cbants' ft MaBafbctontr^ National
Bank, certificates of deposit, bearing 8 per
cant Interest, were given to Benedvm and
Fox, respectlvdy, amounting in the aggregate
to f4O,O00, payable when the notes thon-
selves became doe. The notes bore 9 vet
cent interest It is argued that this trans-
action indicates a suspidon on the part of
the bank that the notes were defecttve. We
do not think ao. Benedum and Fox repre-
sented to It tbat the transaction with Bngle-
hard was a caab on^ and that tb^ could use
the cwtiflcates of deposit as cash, and the
bank saw a chance to make 3 per cent In a
legitimate manner. But even admitting
tbat the bank was suspldons of the notes,
mer6 suqildon Is not enough; the bank la,
nevertheless, to be considered a bona fide
holder, in the at»ence of actual or construe*
tlve knowledge of any defect in the notea.
Bank V. Ohio Valler Furniture Co., S7 W.
Va. 625, 50 B. B. 880. 70 U B. A. S12.
[I] The oertlflcates of deposit wer« ne-
gotiable Daniel on N^tlable Instruments,
S 1703, and aatborities dted in note), and
had beoi indorsed by Fox and Benedum,
respectively, to Innocwt holders. The bank
was therefore In the same sltnaUtni as If ft
had paid the ca^ It waa twmul to redeem
its certificates.
Granting tbat the rule of law is that pnttl
of BUdk facta by the maker of negotlabla
notes as would render it uncollectible In the
hands of the payee casta the burden upon tbe
Indorsee to prove that be is a bolder for
value and without notice, still we think this
burden Is discharged by the plaintiff bank In
this case. It proved tbat It purchased the
notes before due, and paid value therefor,
and that It had no knowledge of any fraud,
or of any facts which burdened It with the
duty to make any further Investigation in re-
gard to the execution of the notes than it did
make. The power of attorney from which
we have quoted was filed for record in the
recorder's office of Franklin county, Ohio,
on the 9th of June, more than a month before
these notes were executed; and It appears
that, before discounting the notes, an otttcer
of the bank inquired of the recorder concern-
ing the power of attorn^. But it matters
not whether the bank's officers actually saw
the power of attorney. They had a right to
rely upcm the representation that such power
of attorney existed; and. while their failure
to ftyftTtii^io further into that matter might.
In a proper case, be evidence of negligence of
official duty, it still would not be evidence of
bad faith. Ttiere Is no evidence which Im*
porta an intent on the part of the bank to
do wrong. Benedum and Fox, It Is true,
were residents of West Virginia, but they
were both officers In the First Citizens' Bank,
and it Is Very natural tbat the officers of
another bank, having business relations with
their bank, should trust tbeir r^resenta"
ttona.
m It appear, tl^^d !7C^^!9U^
GETT BAMK Of WHBBLINO t. B&TAN
405
executed by Mr. Bryatt glring power of at--
tomey to bis Bon*iit-law, destgnated In the
record and In twlefa of eoonsel as "No. 1" a&d
"No. and that the aecond (me, although
bearing the eame date as the first, to wtt,
Mardi S, 1903, and purporting to be aAsowl-
edged b«tOre a iuBtloe of the peace In Fmnsyl-
vanla on the aame date, yet waa In tect
signed and acknowledged some time In June^
190^ Loller dalms to have had no knowl-
edge of this second paper, and Mr. ^ran
swears that A. EL Fox Induced him to give
It by frandnloit repreaentatlona. There la
conflict between Fox imd LoUer as to whetber
the latter actually knew of It or not But
we do not regard' It material whether he
knew It or not Because he ertdeiitly ezbcot-
ed the notes thinking he had potoer to do so,
and the power having been glten before
the botes were made end discounted.' the
bank could rely on either, or both, of the
writings. There was ttotblng to put It on In-
qolry-concernlng the fraudulent procurement
of the second writing, and It cannot be atfeet-
ed thereby. It may be that the first wrltiiig
conferred power upon Loller tb execute the
ilotes In questioii, as well as the second. But
It is unnecessary to decide this, Inasmuch as
the bank bad a right' to rdy npea the second
and seems to have done so.
[9] The chancellor denied relief to the
City Bank of Wheeling, not because of any
knowledge, actnal or constrnctlve^ of fraud
In the making ot the notes, but on the ground
that Loller was not authorised to execute
notra for any other purpose than In payment
for shares of stock In corporations, and that
the notes held by this bank were not execut-
ed for that purpose. He also held that, If
the bank had been diligent to Inquire, It
could hare ascertained that the notes were
executed simply to be placed upon ttie
market and sold. But we do not think this
view Is sustained by the record. We think
the proof fully establishes the fact that the
¥90,000 of notes held by this bank were
given Id consideration for stock In the Loller
Manufacturing Company. Tbey are a part
of the $50,000 of notes executed June 10,
1903, payable to the order of that company.
Upon tbelr execution Bryan became entitled
to the stock, and the company to the notes.
Neltber was It restricted In the use which It
oonld make of tbem. It had a rl^t to sell
fiiem. They were negotiated to the Olty
Bank after being Indorsed by the payee and
by the First Citizens' Bank. And the City
Bank Is a6 much an Innocent holder of these
notes as either of the other two banks are of
tile notes which they hold. The same reasons
for boldlng the First Citisehs' Bank to be
an Innocent holder of the f20,000 notea ap-
plies to snstalQ the title of the City Bank
to the $30,000 of notes. They are notes of
the same class.
[4] It Is suggested -that Fox, as treasurer
of the X^IIer Manufacturing Company, was
not shown to have antlMrirltj' to n^ottate Um
noteSi but that la a qneitlon between flwt
tompeny end the ludder of the notes* and
It la not con^lalnlng. It waa made a party
defendant m both the aoit by the City Bank
and in the snU tty the First attEOH' Bank,
and tt failed to anawer elttier bUL Both
bills allege that, before the notee were due
and payable, they were indorsed and trans-
ferred by Oe Loller Mansdhctorimr Gompmy
to^th« First Oitliena* Bank, and tty It to the
other banks, respeetl'r^, and Its failure to
deny those auctions must be taken aa an
adndaidon of the treasnrer^ anthnlty to in-
done the note*, or.aa a ratlflcatlon of ble
act MordvTW, it appean that the funds de*
rffcA from the aalee ct thfsse notea w«e
placed to the credit of said company in tiie
First adaem^ Bank, and were checked ogit
by It It would thei^ore be e>tOH»ed to
^ny 'the Anthoilty of Ita treasoreir to matas
the transfer ot the notes, and certainly no
<me else Is in' a position to complain If the
corporation directly affected Is not '
[10] It is Insisted Oiat there U a fatal
variance between the'ded<Tlptlon given In the
bill filed by the^Flrst Citizens' Bank as to
two of the notes sved on and the notee otter*
ed in evidence^ The Ull desoribea flie 90,000
note as being payable at the Middleport Na-
tional Bank, whereas the note offered in
proof shows Hiat'lt la payable at the "Mid-
dleport Bank." The note for «S,000 Is de-
scribed' as having been signed "by W. J.
Bryan S. W. L(dlw, Us att(Mmey in fact,"
whereas tlie note offlered In proof appears
to belslgned by W. J. Bryan in person. The
bill ptsrporta- to exhibit these notes along
with It but as a matter of fact they appear
to have been died with depositions. It Is a
well-established ininctplev both In oovrts'of
law and In coortn of equity, that the allegata
and probata nmat correspond. 18 Ekic Dig.
Va. A W. Ya: 478, and numerous casesidted.
If the variance la so material aa to make the
case prova wholly diflerrait from tte one
alleged In the pleadings, relief cannot be
gtven. Campbell v. Bowles, 80 Grat (7a.)
652; Grigsby v.' Weaver, 5 Leigh (Ya.) 187;
Doonan v. Glynn. fiO W. Ta. 22ti; Bier v.
Smith, 25 W. Va. 8S0. The variance In this
instance Is not so great, however, as to show
that the cause proven Is wholly dlfteroit
from the cause alleged, and It is unnecessary
to decide whether the variance is so- matwial
as to require an amendment of the plead-
ings to cure it if hppllcatlon therefor had
been made at the proper time, because ot
another rule of practice which we think
should be- ap^ed In thla ease; that la, if
advantage of a variance betwew the i»oof
and the pleadings, la not taken in some man-
ner in the court b^w, and that court's at-
tention is not called to the question. It can-
not be ralsed-for the first time In this court
It win be consldwed aa waived. l%sre waa
no exdeptioB tak«B to the deposition of A.
£>: Fox, vrtio' filed the note as a part of his
depesmon. and ne-exosp^^^ fl^^A^l
406
78 SOUTHBAfiXBRM BBPOBTBB
(W.V«.
tton -of flie uotew It Is' now too bte to lalae
the objection Plaintiff was entitled to an
oi^rtnttlty to amend Its bill, in the event
Its evidence liad- been erduded for a vari-
ance. Hill V. Proctor, 10 W. Ta. 00; Tana-
coy V. Stlnchconib, 3» W. Ta. 263. U S. E.
827; Long V. Perlne, 41 W. Va. 814, 28 a IL
611.
[11, II] W. J. Bryan and wife conveyed to
hie dangtatw, Llnle B. Lolla, wife of S. W.
Loller, 474 acres of coal land in Marion conn-
ty, W. Ta., for a cash conMderatlon, redted
In the deed, of «20,00a The bills attedc
that deed on the gronnd that it was made
with intent to hlndo; delay, and defraud
plaintiffs, and the other creditors of W. J.
Bryaot ^ the coUeetton of their debts. W. J.
Bryan, In his answer, denies die finnd, but
Mrs. Loll«r makes no answer to the Ull.
Tbe deed bears date April 8, 1908, and the
certiflcatd of a<ifcnowIedsment of D. H. Brew*
er, a Justice of the peace in Pennsylvania,
porpturts to have been made <ni Qie same
data Bat It la proven by, Thomas B. Ander-
son, who was proeont when tiie Jastlce drew
np ttte deed and certified Qie acknowledge
meat, that the deed was wrlttoi, signed, and
acknowledged on tba 12th of October, 1903.
Ur. Bryan admita It It Is also prov«i by
BIr. Jacobs, derk of the county oourt of.
Marlon county,. that the date In the certifi-
cate ot aclcnovrtedgment had been changed
before the deed was presented for recorda-
tion ; that the aW>revlatlon "Apr." had. been
changed to "Oct," and the flgore *'B" was
written over the flgures **1 and 2." lir. An-
dersoD remained at Mr. Bryan's house fhe
Digbt foUotrIng the evening the deed was ex-
ecuted, and be tesUfles tiiat, after Qie deed
had been signed and a<^owledged, it waa
left lying on the table, and he did not know
what became of it that night, that on the
next morning It was delivered to him by
Mrs. Loller, to be carried to Fairmont, W.
Va., for recordation, and that be was not
aware that any change had been made In
the date of the certificate. There was cer-
tainly opportunity for Bome one at Mr. Bry-
an's house to have made the change that
nl^t Mr. Bryan testifles that the deed was
made pursuant to a written contract of sale
between himself and daughter, made on the
3d ot April, 1903, and that the deed was
drawn up to conform to this written agree-
ment as to Its date He is corroborated to
]<eapect to that by Mr. Anderson, who says
he heard Mr. Bryan and the justice dis-
cussing some such contract, and heard toe
Justice tell him that the deed should be
drawn according to the contract But no
reason appears why the Justice should have
certified to a false date, if such was the
fact The Justice is dead, and his testimony
was not token. The contract of sale is not
In the record. The deed makes no reserva-
tion of royalty accruing from the eoal oper-
atiou on the land, and Bryan collected roy-
altlM monthly, np to September 1, 1908.
Tbm lUrmont Goal Gcnnpany received its
first notice to pay royalties to Mrs. IJolIer
(m the Uth ot October. 1906, whidi appears
to have been before the royaltiefl for the
numth of S^itember wxe payable. In this
notice^ given by W. 3. Bryan, he stofea that
be had stdd 1^ property to his daughter
about the 1st of April, 1903, but that be bad
raerved the royalties until the 1st of 8^
tember. There appears to have been no no-
tice to plaintiffs o£ this sal^ elttier actual
or constructlvB^ until tlie recordation <tf the .
deed on toe 18th of October, 1908, Umg after
all ttie debta sued on had been contracted.
Mrs. littUer made her home with hw fiither
to tlie oonntry, (m his farm in Pennsylvania,
and his testimony as to how his dan^tor
accnmmnlated t3ie $20,000, irtiidi she paid
him tar this valuable property, is very un-
satisfactory. He supposes she made it by
managing his farm, which he permitted her
to do. It also appears that, some time after
tbia pretended sal^ Mr. Bryan had loaned
to his daughter $6,000 to be used by her bus*
band for toe benefit of toe plant at Middle-
port, Ohio, whidt was toen being <H>erated
by the L(dler MaBufacturlng Oompany, and
tliat he hdd hw note Cor that sum wlun bis
testimony was token. BIrs. Loller has not
given the court toe bmefit of hex testlmimy.
Mr. B:^an'8 testimony «mcemtog toe dls-
podtion he made of toe ¥20,000, whidi he
siys his daughter paid him, is also vwy un-
satisfactory. Ttie property conveyed Is prov-
en to be worto from |260,000 to $300,00a
It was yteldtog to royalties on coal, then be-
ing mtoed from It, by the Fairmont Goal
Company, from ^000 to 92,600 per month.
The last report filed to this suit by toat
company shows that there waa in ito hands,
at toat tlme^ royalties which had accrued
pending this suit amounting to $167,417J!0.
The royalties tor one year only Is more tonn
ttte consideration claimed to hare t>een paid
for the entice property. That Is a considera-
tion so small as to shock the moral con-
science, and Is evidence of fraud. Bieme v.
Bay, 37 W. Va. 571, IS S. EL 804; Wood v.
Harmison, 41 W. Va. 376, 23 8. E. 660.
While it Is true that toe relationship of toe
parties is not, of itself, a badge of fraud,
yet close relationship between parties to a
conveyance, which is attecked ou toe ground
of fraud. Is a matter to excite suspicion, and
requires a less amount of proof to esteblish
toe fraud than If toe transaction were be-
tween strangers. Blerae v. Bay, supra;
Knight V. Caplto, 28 W. Va. 639; Oolston v.
Miller, 66 W. Va. 400, 47 a E. 268. When
tola deed was executed, there were notes
outstandtog against Mr. Bryan a^^regattog
nearly $200,000. $90,000 of which he had him-
self executed and delivered to Englehard.
Finding himself to tola embarrassed sltoa-
tion, he attempta to convey toe bulk of his
property, worth at least $300,000, to> Itls
daughter in consideration of $20,000. Tht
deed having been attacked as fraadulent.
CHAMBERS T. CITY OF ROANOKE
407
tb« barden waa upon the grantee to prove
that the conslderatloa was adequate, and
that It was paid. Bank t. Danser, 70 W.
Va. 529, 74 S. a 623. Yet Mrs. LoUer takea
BO little Interest In the matter as not to give
her testliaony. We have no hesitation in
pronooncing the conveyance fraudulent in
law, and void as to the attaching creditors.
Mr. Bryan no doubt felt that he had been
greatly wronged by Fox and his associates,
In whom he seems to have had childlike con-
fidence. He was well stricken with years,
and, realizing that he had not much longer
to live, he was actuated by a strong desire
to make provision for his own child rather
than let his property fall into the hands of
those who had defrauded him. There is
much to be said In palliation of his act We
do not adjudge him guilty of a moral wrong.
But the rales of law are inflexible. The
banks are Innocent holders of the notes which
were executed, tither by Mr. Bryan or by
bis aathorlzed agent, and pnt Into drcola-
ti<Hi. and It is essential to the commercial
life of the country that the law should pre-
serve Invtolate fhe ri^ts of tamocant holders
of commercial paper. The banks have part-
ed with th^ m(»uy, and th^ ue as hmo-
cent €t wrong as Mr. Bryao. It waa and
not tbey, who made fhe mnoomt mlatake of
Intrusting power In tba bands <tf those vfho
have used It to hie hurt,' and It la he, and
not they, who must suffer the consequoioes.
The decree <tf tJae drcnit conrt will be i»-
versed. and a decree entered hen noting
atfde the conTOyance from W. J. Bryan to
Mrs. lissle B. hoMa In ao Car on^ an It
interferes wlQt the rU^ts U plalntlfle in the
collection of Qteir debts, and decreeing in
fiivor of each of said plalntllb against ihe
seveml d^^dants to their respeetlTe bills,
who ore liable on the notes sned on, for the
reqtectlve amounts thereof with intweet, and
decreeing said debts to be liens upon the
funds in the hands of the Fairmont Coal
Company due the estate of W. J. Bryan, 6e-
ceased, in the order of the aeevlce of gar-
nishment process upon it; and the cause
will be remanded for the enforcement of snch
order, and fbr audi farther proceeding as
may be necessary to the administration of
the relief here granted.
014 Vs. IK)
CHAMBERS v. CITY OP KOANOKB.
(Supreme Court of Appeals of Tir^ia. Jan.
16, 1913. Bebeariuff Denied Joae
14, im.) ■
1. IiICENBES <| 8*)— Pboducb Venojebs— Cubb
Tax.
Act March 8. 1896 (Laws 1895-96, c. 625
[Code 1904, { 1042a]), declaring it unlawful
for any city to -"-ax any one selUnK their farm
produce outside the oiarket square, is qualifiedly
AmeDdc^d by Act Feb. 9. 1898 (Laws 1897-^
c. 257). amending tbe ciiarter of the dty of
Roanoke, ao as to allow a curb tax tu that
city.
[Ed. Note. — For other caeee, see Licensee.
Cent Dig. H 16. 17 ; Dec. Dig. i &•]
2. LiCENSBS (I 8*)— MABKBT8— Cobb Tax.
Acta 19(K^^. cc. 269, 666 (Code 1904. H
1013a~104%, amending and repealing in part
chapter 44 of tbe Code in relation to cities and
towns, do not repeal by implication amendment
of Roanoke City Charter. J 23, by Act Feb. 9.
1898 (Laws 1^7-98. c. 257), reUting to moi^
kets, curb taxes, etc., since chapters 269 and
566 both declare that nothing in either shall
repeal any charter provision, unless expressly
referred to.
[Ed. Note.— For ether easea, see Tiwinsm
Cent Dig. H 16, 17; Dec. Dig. 1 a*]
Error to Corporation Court of Roanoke
J. W. Chambers was fined for violating an
ordinance of the City of Roanoke by the
police Justice, The corporation court af-
firmed the Judgment of tbe police Justice,
and the defendant brings error. Affirmed.
S. Hamilton Graves, of Roanoke, for de-
tendant in errw.
WHITTLE, J. J. W. Chambers, tbe plain-
tiff in error. Is a farmer residing upon his
farm in Roanoke county upon which he
grows and produces farm and domestic
products. On December 30, 1911, he brought
a wagon load of produce from his farm to
the dty of Roanoke for sale, and drove his
wagon uiHm market square, stopping on the
side of the street next to the curb and out-
side the market bouses and sheds. On his
refusal to pay the curbage tax demanded
ondMT a city ordinance, ha was fined |5 by
the police Justice, whose Ju^ment waa af-
firmed on appeal to the corporation court.
The case Is before ns on writ of wror to
the latter Judgment
[1] An act of the General Assembly, ap-
proved March S, 1896 (Laws 1895-96^ c. 625
[Code 1904, S 1042a]), declares "that It shaU
be unlawful for any dty or town of this
state, or for any agent or officer of any sudi
dty or town, to Impose or collect any tax,
fine or other penalty upon any person sell-
ing their farm and domestic products with-
in the limits of any such town or dty out-
side of and not wittitn the regular market
bouses and sheds of such dtles and towns."
On February 9, 1898 (Lews 1897-98, C
257), the General Assembly amended section
28 of the charter of the city of Roanoke,
80 as to read as follows: "No. 28. To estab-
lish a market or markets In and for sakt
dty, and to ai^lnt officers therefor, to pre-
scribe the time' and place for holding the
same; to provide suitable bnUdii^ and
grounds therefor, and to. enforce snch r^-
ulatlons as shall be necessary to prevent*
huckstering, forestalling and regratli^, and
for the purpose of regnlatli^; and control-
ling the sale of fresh meats, fresh fish, farm
and domestic products In said dty. the com-
mon coundl shall have authority to confine
*For oUmt oasM im aam* topU and msUob MOICBKR la De*. ZM» A Am. filg. K^-Ne. gtrtw
Digitized by
m
the sale of nicli aitldes or ptfodncte to tbe.
public market and evbllc squares provided
by the dty tor tbat purpose, and shall have
authorl^ to levy and collet a license tax
IbT the sale of ftesh meats and fresh flsh,
and may Inquse a cnrbage tax, not ezceedr
luff twenty cents for each fragon. cart, or
other vehicle containing farm and domestic
products brought Into aald cdty and oStseA
for sale."
Thereapon the common conndl passed the
ordinance imposing the cnrbage tax avthor-
Ised by the amendefl ^rter. The former
statute and the snbseqoent amendment of
the dty diartw touching the same subject-
matter are irreconcilably repugnant The
prior statute Is general In Its terms and ap-
plies to all the cities and towns of the com-
moDwealth, while the latter Is limited in Its
operation alone to the city of Boanoke. In
such case the later statute must be construed
to be a qualified amendment of the general
law, and controlUng In the locality to which
it applies. This U clear from the terms of
the amended diarter; and, besides. If It had
not been the purpose of the General Assem-
bly to confer upon the city a taxing power
that it did not previously possess under the
graeral law, the asMndment would be mean-
ingless,
[2] Subsequent acts of the General Assem-
bly (diapter 269. p^ 412, and chapter 666,
p. 886 ; Acts 1002-a-4 [Code 1901, 81 1013a-
1048]), amending and repealing in part chai>-
ter 44 of the Oede In- relation to cities
and towns, retain substantially the provi-
sions of the act of March 8, 1896 <secti(»l
10^ of the Oode), and that circumstance
as evidencing the last vxpresslDn of the
legislative will on the subject might be con-
strued as a repeal' by ImplleatioD of the char-
ts amendment But chapters 269 and 666,
supra, both declare that nothing contained
in either "In conflict with any provision of
Oie charta: of any dty or town i^ll be con-
strued to repeal such provision," unless ex-
pressly referred to. This leaves section 23
of the charter intact, and the ordinance
passed in pnrauance thereof imposing the
cnrbage tax was a' valid exercise of munici-
pal power.
- For theee reasons, the Judgmmt is af-
firmed.
Affirmed.
GEU. KNITTING MILLS v. THUBMAN.
(Sopxeme Oeort of Qeoigla. May 14. ms.)
(Sifllalut th« Cowrt.)
*1. GOBFOBATIONS (J Stffl*) — OTFICEBa — Ao-
ttoBs Foft OoifPSNSATioiT— Evidence.
In an actt«o by as officer of a corporation
for salary allied to be due him, wbere tb*
defeudanC corporatton pleaded tbt^t no corpo-
rate action had ever been taken fixing any sal-
nry for the plaintiff during tbe time for which
fOa.
he claimed It, the court did not err, on tha
trial of the case, in excluding evidence offered
by the corporation to tbe effect that no salary
had been fixed or pud to the plaintiff's pred^
cessor.
[Ed. Note.— For other esses, see Oorporatlons,
Gent Dig. II lSS4r-1848; Dec Dig. | 80&*]
2. OonpOBATioifs (S 806*) — Otfiobbs — Ac-
tions TOB OmcpsNsanoif — DocnmsKTART
Bviokucb.
Where Uie defendant also ideaded accord
and satisfactiott, and <rifered in evidence a writ-
ten inBtrument purporting to be an agreement
whereby all differencei and contentiona between
plaintiff and defendant the terms being suffi-
ciently broad to Include the claim for salary by
plaintiff, were adjusted and satisfied prior to
the iOBtitation of the suit which writing, how-
ever, was never signed by the plaintiff, but
where there was evidence tending to show that
he accepted and acted upon such sgreement;
and tbat all of its terms were carried out both
by himself and by the defendant the court erred
in refusing to permit the writing to go In
evidence, althoogb plaintiff testifiied that he
never accepted It nor carried it oat See Kidd
V. Huff. 105 Ga. 209(2), 81 S. E. 430; Gold-
soUtii T. MaicuB, 7 Ga. App. 849. 68 S. B. 462.
[Ed. Note.— For other cases, see Corporations,
Cent Dig. II 1384-1349; Dec Dig. | 806.*]
Error from Superior Court, Pike Oounty;
R. T. Daniel, Judge.
Action by J. P. Thurman against the Gem
Knitdng Mills. Judgmoit for piwi^ttw, and
defendant brlnga error. Berersed.
Hardeman, Jonea, Park ft Johnston, of
Macon, and E. F. Dupre^ <tf Sebnlon, for
idalntlff In error. J. F. Bedding and H.
O. Farr* both of BamesvUleb for defendant
In error.
FISH, a J. JU^ment reversed. All tbe
Justices concur.
(UOfia. TO
OROUOH Y. GBOUCB.
(Supreme Court of Georgia. May 16, 192&)
(8yUabu9 \y (As Court.)
DiVOBCB (I 216*)— AXUCONT PxNDiiro AO-
now.
An alimony deoree, awarding a given sum
cf money for the sup^rt of the wife and
daughter pending an action for divorce. Is not
to be construed as awarding half of tbe amount
In severalty to each. Such a construction. In
a charge on the sabject of ratification of a
subsequent decree, modifying tbe original Judg-
ment by giving half of the amount in the orig-
inal judgment to tbe wife for the support of
the daughter, was harmful error.
[Ed. Note. — For other cases, see Divorce,
Cent Dig. » 630, 636; Dec Dig. | 216.*]
Error from Superior Court, Pnlton Coui^
ty; Geo. Lt Bell, Judge.
Action by Georgia Crouch against George
G. Crouch for divorce. Verdict for plain-
tiff, and defendant brings error. Reversed.
Mrs, Georgia Crouch instituted a Uhel for
divorce against her husband, George G.
Grouch, and In copnectton therewith she ask-
ed for an allowance of temporary alimony.
At the hearing for temporary alimony, on
78 BOUTHBASTEBN BHPOBTEB
^leratMr
mm» ta»lt waA ssMlea HVMBmia Bw. Die. * An. Dig. I^-N^^^^grt^,
0«.)
May 20, 1910, tbe court rendered the follow-
ing decree: "It is hereby ordered and ad-
judged that tbe defendant, George O. Grouch,
be and he Is hereby required to pay to the
plalntUTs attorney, B. B. Chnrch, (60 per
month as temporary alimony for the support
of his wUe, Mrs. Georgia Orouch, and his
minor dan^ter, Bemlce Crouch, until this
case is finally disposed of, beginning June 1,
1910, and that said George G. Crouch, de-
fendant, be required to pay B. B. Church,
mamtlirs attorney, ^25 attorney's fees and
[on] account, tb be paid $S per month, be-
ginning on the l8t day of June, 1910." On
the 2eth of May G. G. Crouch filed his
motion to modify the decree awarding ali-
mony, alleging that the plaintlfE waa possessed
of considerable proper^, largely In exceu of
property owned by him and ample for her
own support, and that he waa unable to pay
the amount awarded by the court. On June
lat the attorneys for Mr. and Mrs. Crouch
entered iirto an agreement to the effect that
bur dlvorea .petition should be amended, so
as to make it a suit for permanent and tem-
poraz7 aUraony, and to strike therefrom the
ivayer. for diTorce, and that the order for
temporary alimony be modified, so that the
husband abonld par Mrs. Crouch, "for the
•opport ' of Bemlce Onmdi, his daughter,
$25 per month for two yeara, beglmilng June
1, 1910, untU June 1, 1912, and $20 from
June 3^ 1912, until the aald Bemioe Crouch
becomes of age. This agreonent for the pay-
ment of temporary alimony to be in Ueu of
any alimimy ttwt aald partj ttf the second
imrt [Mrs. Grouch] may hare right to reoor-
er of party of the first part until aald Ber-
nlce Crouch becomes of age^ but not to predn-
dice any rli^t of party of the second pact to
■ue for a recovery of any alimony wUch
par^ of the first part should pay after ttuit
time, and not to prejudice any right that aald
second party may now-bave or hereafter
hare to sue for and obtain a divorce." On
the day the agreemrat was executed the or-
der of alimony waa modified to conform with
It, and on July 13th the petition for divorce
was amended by striking therefrom the pray-
er for total dlTorcoL
Subsequently Mrs. Crouch filed her motion
to set aside the judgment modifying her de-
cree for alimony a^d the striking of the
prayra for divorce in her libel, alleging that
these Judgments were taken pursuant to an
agreement made in her behalf by her attor-
ney, who entered Into the agreement without
her knowledge or consent, and that there ex-
isted no reason for the modification of the
aUmMiy decree. In hfs answer the defend-
ant set up that the agreement waa made
with plaintlirs attorney in accordance with
her expreds direction, and that she had rati-
fied the same, and had received the several
payments provided for In the modified decree,
with the knowledge that they were made
Chttennder. He further aet op that at the
40»
time the original decree for allmonr was
made he was prevented by a serious accident
from appearing In the court, and that it was
entered ex parte, and that the proviBkm for
his wife^ for the support of their daughter,
was a proper allowance In view of ail the
circumstancea of the case. The case came
on to be tried at the January term, 1912, of
the superior court, aind a verdict was ren-
dered in favor of the plaintiff. The court
refused a new trial, and the defendant ex-
cepted.
Napier, Wright ft Cox, of Atlanta, for
plalntifl in error. B. D. Thomas and Jj. Z.
Uosso', both «f Atlanta, for defendant in
error. *
BVANS, P. 3. (after stating the facts a»
above). The case waa fought out largely upon
two pKHKwdttona of tect, as to which there
was a moat serious conflict of testimony. The'
wife flatly denied her attorney's authority to
consent to the modified Judgment, or any
knowledge that he had made such an agree-
ment until shortly before filing het motion
to vacate Ihe Judgment On the other hand^
the husband submitted testimony tending to
slKnr that tha agrMment waa autborlzeA hy
the wiffe, and t^t the alimony judgment waa
modified wlh her full fcnowMdge and approv-
al. It appeared that beginning June 1, 1910,
Mr; QrowA niailed to his wife IS monthly
checks for ^ atch. Each of theaa checks
contained the atatemott that It waa for the
support of the daughter for the past month.
Tb^ chetfka were payabl* to the order of Mrs.
Crouch and collected her. Ctaie ctf tlie io-
snes in the ease was whether the acceptance
of these several checks waa In pnrsuane* of
the original or' the modified decree. It was
the contention of Mrs. Grouch that they were
paid pursuant to the original alimony decree,
and her husband eontoided that they dis-
dOBOd on their teoe that thcgr were given in
pursuance of the modified decree, and were
aec^ted with the full knowledge of that
tact, and that, evoi if his wife's attorney
entered into the agreement and modified the
alimony decree without authority from his
wife, after the decree had been modified the
wife had accepted these several payments
with knowledge that it had been modified, and
that such acceptance amounted to a ratlflcar
tion or acquiescence on , her part
Several exceptions are made to the charge
of the court upon this subject, the general
tenor of which was that the court erred in
construing the original decree as separating
the amount to be paid to the wife from the
amount to bo paid to the daughter. Thus,
the court charged: "I charge you that if
Mrs. Crouch had a decree against her hus-
band for $25. per month for the support of
her daughter, and same sum for her stipport
and her attorney without her consent modi-
fied said decre«^. so as to give her a decree
onU for the siwport oS,|^e(?%P«y©iJ^t:
OROUCH T. dtOUCH
410
78 S0I3THBASTBRM REPOBTBB
I cbarge yon. tbe reception each month by
Mrs. Crouch of $25 tor tbe support of ber
daughter, being the exact sum allowed for
tnat purpose under the original decree, if
there was such, would not be a ratification
by her of her attorney's act modifying the
original decree, unless In receiving It Mrs.
Crouch intended thereby to ratify the modi-
fied decree." A reference to the original
decree will disclose that the court allowed
$50 per month for the support of Mrs. Grouch
and daughter pending the lltlgatioQ. and the
decree did not undertake to dlrtde this sum
In equal parts between the mother and
daughter, but it was allowed In gross for
th^r JolDt Bumiort, *The court erroneously
construed this decree as providing $25 for the
support of each, instead of $60 for tbe sup-
port of both. Tbe modified decree provided
for the monthly payment of $26 for tbe sup-
port of tbe dau^ter. and nothing tut the
wife.
Perhaps the most Important fact relied up-
on by the husband to ahow acqolescehce in
and knowledge by the wife of the modified
decree was that she accepted 16 monthly
payments of $26 each, remittance being by
check, with a notation thereon that It was
sent for the support of the daughter, with-
out protesting or complaining during this
whole time that the full amount of the orig-
inal decree was not remitted. When the
judge erroneously construed the decree as
awarding to the daughter $25 monthly for
her support, and instructed the Jury that the
reception of this sum monthly by Mrs.
Crouch for tbe support of the daughter, as
being the exact sum allowed her for that
purpose under the original decree, would not
be a ratification by ber of her attorney's un-
authorized act modifying the original decree,
unless la receiving the money the wife in-
tended thereby to ratify tlw modified decree,
be took amy a substantial defense which
tbe defmdant urged against the vacation of
tbe judgment attained. For tbla reaatm ve
tbink a new trial should be bad.
Except In tbis respect, the otb«r crlttelsnis
upon the charge ore without merit
Judgment reversed. All the Justices con-
cur.
a« Oik- n>
THSATBIGAL CLUB t. BBBNABD.
(Supreme Court of Georgia. Hay 16. 1918.)
fByUabu* the Court.)
AfPEAL AND Ebbob <J| 1006. 1088*)— BXTIKW
—Sufficiency of BviDBrfCK.
Tbe evidence was sufficient to autborUe
the verdict The motion for a new trial was
based onlr on the grounds that the verdict was
contrary to law and evidence, and the weight
of the evidence, and without evidence to sup-
port it The presiding judge approved the
finding, and this court inll not interfere.
(a) Although the evidence for the plaintiff
might have authorised a verdict for a greater
amount than that found, under the facts of
the case, thia will not necessitate a reversal,
on motion of the defendant
[Ed. Note. — For other cases, see Appeal and
Error, Cent Dig. U 8860^6. ^48-8»60,
4062-M82; Dec.T>l|. f| 1006. 1083.*]
Error from Superior Court, Fulton Coun-
ty; W. D. Bills, Judge.
Action between tbe Theatrical Club and B.
Fi. Bernard, Jr. From the jndgmoat, tbe
Club brings error. Affirmed.
Jaa. U Key, of Atlanta, for {OaintUt In
error. Tbos. L. Bishop of Atlanta, tor de-
fradant in error.
LUMPKIN, J. Judgment afllrmed. AUtba
JostloeB concur.
a« O*. 74>
McLENDON et aL v. SEIDELL
(Supreme Court of Oeorgia. May 16. 1913.)
1. Bbokbbs (I 40*)— Vbndob ANn Pubchasbb
— OfFTB to BKLL — CONTBACT OF SaLB —
BlOHT TO O>iaaBai0N— E^LOTMSlfT OON-
TBACT.
By the terms of a will of a married woman
it was provided that a certain lot should not
be sold, if possible, during the lifetime of ber
husband, except by the. united consent ot ber
executors, and then only when, in their Judg*
ment such sale shonld be necessary. The hus-
band and one son of the testatrix were ap-
pointed executors. After her death, the hus-
band wrote to a firm of real estate agents a
letter coitalning the following: "Under the
terms of my wile's win, my son [naming him]
and myself are the executors, and any proposi-
tion you may make I have to submit to him for
his approval and signature. I have suggested
to make tbe total price $6(^000, $7^100 or
$10,000 cash, and tbe balance In five parents
tor five years, at 6 per cent interest per an-
nom." This was stsned in the individual name
of the husband. Seld, that this was not on
its bws a direct offer to sell the property at
the amount named, or an authority to the real
estate agents to do so. The agreement of one
desiring to purchase to pay $60,500 for tbe
proper^, tbe payment to the real estate agents
of $200, and sn entry on the back of tbe
letter above quoted In these words, "Beeeived
of [naming the proposed purchaser] $200 part
payment of the purchase price, $50,500, for tbe
Stafford Apartments on Carnegie Way, under
Mr. G. W. Seidell's proposition on opposite
ride of this sheet" (that being the name of
the person signing the paper above quoted),
which receipt was signed by the real estate
agents, did not make a valid and Undinx con-
tract of sale of the property, so ss, mthont
more, to authorize the reel estate agents to
recover of such person commlssionB on the
basis of having effected a sale, if he dedlned
to proceed farther.
[Ed. Note. — For other eases, see BrokMS.
Cent Dig. H 88-40; Dec Dig. | 4a*]
2. Bboeebb (i 40*)— yxNDon Ann Pubobu-
EB— OfFEB to SBLL— ConTBACT of SALfr-
BlOBT TO ColfiasaiON— EVPLOTUBNT CON-
TEACT.
Outside of what sppears on tbe face of
such paper and tbe receipt Indorsed thereon,
the endence was conflicting as to whether the
person signing such paper authorized the real
estate agents to sell the property, or mc
•Fw other eases M* same topla and sseUon NUHBBR In Dm. Dts. A Am. Dig. K^3Nse64i^iL*k^
OEOaaiAp F. * A. RT. OOw T. NOXUCAN
411
to obtain an offer therefor and mbndt it to
him. There wai alio testimony tending to
show that, before the attempt on the part of
the real estate agents to close the traniactloB
by accepting the payment of S200 and giving
the receipt, the person who signed the paper
qnoted in the preceding headnote had revo ked
any anthorlty given to snch agents and with-
drawn their power to negotiate further in re-
gard to a sale of the property, although the
employe or representative of sach agents who
was negotiating with the proposed pnrchaBer
may not have l>een aware uereof. There was
also no evidence to prove that the coexecutor
wonld have agreed to the sale, except certain
testimony that the person who signed the in-
strument, and who was the- defendant) ez-
pteMed the opinion tliat his son would concor
in what he might do. Eeld, that there was no
error oa the part of the presiding judge, to
whom a suit by the real estate agents i^ainat
the person signing the instrument above quot-
ed to recover commissions was submitted for
determination on Isanes of law and tact with-
out a jury. In rendering judgment In favor
of the defendanL
{Ed. Note. — For other cases, see Brokers,
Cent. Dig. H 38-10: Dec Dig. | 4a*]
Error from Superior Oonrt, Fulton Ooqb-
t7; Oea I* Bell. Judge.
Actlm J* 3. MtiLendm and otbers
egainst O. W. SeldelL Judgment for defend-
ant, and jAilntUb bring error. Affirmed.
Etherldge ft Etherldge, of Atlanta, for
plalntUCs In error. Jno. L. Hopkins ft Sons,
of Atlanta, for defendant In oror.
LUMPKIN, J. Judgment affirmed. All
tbe Justices concur.
(M Oa. 41)
G&ORQIA, F. ft A. BT. CO. T. NOBHAN.
(Supreme Court of Georgia. May Iff, 1918.)
(SvUmhiu In/ the Court)
1. BnincNT Domain (I 222*) — CoiinBMirA-
TION PKOCEBDINOS — IHSTBVCTIONS — DAM-
AGES.
The conrt did not err In charging tiie jury
as follows: "If yon dcdde that hf the man-
ner in which this railroad is boilt through
that lot, or that by the operation of it through
tiiat land in the way it is located, damages
result to the other land not taken, then find
from the facts what that damage is, how mnch
H is In dollars and cents, and then inquire and
determine whether any benefits seemed to the
owner of this land, Norman, under the same
rules that yon get the other information, from
the witnesses, the testimony in the case. Will
die owner of this land get any benefit, will it
benefit him, by this road going through there,
by the operation of its franchise, the operation
of its trains, the carrying on of its business,
or anything of that kind, will he receive benefit
to that land in that respect?"— the court hav-
ing given in another part of the charge the
correct rule as to the assessment of conse-
quential damages In case the consequential
benefits equaled «r exceeded the consequential
damages.
[Ed. Note.— For other cases, see Bmineat Do-
main, Cent Dig. IS 002-067; Dee. Dig. |
222.*]
2. RiTLiNOS OR TEsnifoirr.
There is no merit in the objections raised
to the admission of testimony, the ruling in
regard to whidi is comidained oC In certain
grounds of the motion.
S. SumcnnsoT or BvinsHOB.
There Is evidence to sustain the verffiet.
Error from Superior Court, Stewart Oonn*
t7: Z. A. Uttlejohn, Judge.
Condemnation proceedings by the Georgia,
Florida ft Alabama Ballway Oompauy
against ComeUne Nonnan. From the award
of damages and denial of new trial, the Ball-
way Company brings error. Affirmed.
Tbls case grew oat of condunnatlon pro-
ceedings brought by tbe Georgia, Florida ft
Alabama Ballway Company against Oomell-
us Nonnan. The assessors found a certain
amount in faror of Norman against the rail-
way company, and Norman, being dlssatis-
fled, appealed the case under the proTlalons
of the statute. The Jury trying tbe case on
the appeal returned a verdict for $650 In
flavor of Norman. The railway company
made a motion for a new trial, and excepted
to the overruling of the same. Beddee the
general grounds, complaining that the Ter-
dlct Is without evidence to sni^rt It and
contrary to law, the motion contains three
oth» grounds, two rating te rulings as to
the admissibility of evidence, and one oom-
plalnlng of a portion of tbie oourfa diarge
to the Jury.
T. S. Hawee, ot Balnbrldge, T. Fort, of
Roswell, N. M., and G. Y. Harrell, of Lump-
kin, for plaintiff In error. Hatcher & Hatch-
er, of Columbus, and Frank Hoopw, of At-
lanta, tor defendant in error.
BECK, J. (after stating the facts as
above). [1] L Brror Is assigned upon the
following charge of the court: "If you de-
cide that by the manner In which this rail-
road is built through that lot, or that by the
operation of it through that land In the way
It is located, damages resnlt to the other
land not takeoi, then find from the facts what
that damage is, how much it Is in dollars
and cents, and thai Inquire and determine
whether any benefits accrued to the owner
of this land, Norman, under the same rules
that you get the other Information, from the
witnesses, the testimony In this case. Will
the owner of this land get any b^eflt, will
It benefit him by this road going through
there, by the operation of Its franchise, the
operation of Its trains, the carrying on of Its
business, or anything of that kind, will he
ree^ve benefit to that land In that respect?"
This charge was objected to on the ground
that It is argumentative, and that it does
not correctly state or define what are con-
sequential benefits, but restricts them to
limits that are too narrow; movant contend-
ing that the real question Is whether the
valne of the land wonld be Increased by tbe
location of the road and its operation, and
not whether the operation of the road will
benefit the owner. Subsequently In his
charge the court gare to the Jury elaborate
•Fw other cases ••• sane topla and ssetlo^ NtJUBSJl In Dee. XHv. A Am.
n 'SOOTHBASTEBN EBPOBXBB
Instrnctkms, whlob are not eompIalDed of
In the motion for a new trial, by wblcb they
should be guided In thdr Investigation of the
question as to whether or not the conse-
quential damages would be equal to or ex-
ceed the consequential beneflts, and embodyr
Ins the rale as to deducting the consequen-
tial beneflts from the consequential damages.
The charge as given la not open to the crit-
icism that It la argnmentatlve, and when
considered In connection with other portions
of the 6baxgt, to wlddk we have referred, it
to not too restricted or limited in any re-
qtect In fftct, a oomparlB<m of the langaage
of the charge excepted to with the prori-
siona of eeetloa 6225 of the Code will show
that the oonrt followed snbstantlaUy the
role tot tbe asseesment of damages therein
laid down.
[I] 2. The erldoioe of certain named wit-
nesaee was objected to ()n the groonds stated
In the motion for a new trial. There la no
merit whatero in the objections ralaed to
the testimony.
[S] 8. There li evUttitoe to sustain Uie
Ter^cL
Jndgmeiit affirmed. AUtiie Jnstlces concur.
a40 Oik 40
PABBN T. PHCBNIX PLANING MILL.
<8npreine Court of Georgia. May 16, 191S.)
(ByOabtu by ih« Court)
1. MoBTOAGBs (t 218*) — Dno ABsoLun zir
FoBM— Action bt Grantee.
The grantee in a deed conveying land to
secure a debt, on refusal to pay by tba grantor,
may mamtaiD an action for the recovery of
the land, and in tbe absence of appropriate
pleadings on tbe part of the defendant asking
eQuitable relief the plaintiff niy have a judg-
ment for the recovery of the land.
^a) A general demurrer was properly over^
ruled.
[Ed. Note^Wrr other cases, see Mortgages,
Gent Dig. » 482-481, 1570; Dee. Dig. I
ai8,«j
2. MoBTOAOU Q 21St) — Dbu> Absoluts xh
FoBM— Acnon.
While the deed which was the ba^s of tbe
plaintiff's action In the present case recited
that tbe debt to secure which tiie deed had
been ezecoted was evidenced by notes, it was
competent on the trial for tbe plaintiff to prove
that as a matter of fact the debt bad been cre-
ated, but that the defendant had failed to give
tbe notes which It was intended that be should
giv&
[Bd. Note.— For other case% see Mortgages.
Cent Dig. U 4S2-491* 1676; Dec Dig. J
2i3.ri , .
8. MoBTOAOES (I 213*) — Dbkd Abbolutb in
Form— AcTiOH bt Gbantu.
-By defending the action the defendant ad-
mitted posscBsion, and no evidence of this was
required. '
[Ed. Notftr-For otlter cast*, see Ibrtgagea.
Cent. Dig. H 48!M91, 1OT3; Dee. Dig. |
213.*]
4. DlBECTINO TEBDICT.
The judge did not err 1b directing a ver-
diet
Error from Superior Oovrt, Fulton Conn^
ty; Geo. h. BeU, Judge.
Action by the Phoenix Planing Mill against
h. W. Faden. Ju^ment for plaintiff, and
defendant brings error. Affirmed.
The Phoenix Planing Mill, a corporation,
brought complaint against L. W. Paden to
recover possession of a certain tract of laud.
It was alleged In the petition that tbe plalu-
tlft "claims title to said land, being seised
thereof In fee, as per abstract of title and
deeds hereto attached, marked 'Exhibit A'
and made a part hereof." The deed referred
to as constituting an abstract of title was one
In which the grantor is the defendant In tbe
case and the plaintift tbe grantee, and con-
veys tbe land In controvereor to the grantee,
"Its snccessors and assigns, forever." It Is
redted in tbe deed that It 'is given nnder
and by virtue ot sections 2771-2776 of the
Code of Oeorglft (tf 1890 to secure the pay-
mmt by the said first party to the said seo-
ond party of the sum of eight hundred dol-
lars • • • In nuMitUr Imtallmente ct
910 eadi, beginning <m or befon April 8»
1906; and running regularly forward tm or
before the 3d of each sacceeding month, with
interest from dat^ • • • mevldanced by
eighty (8^ notes execntefl ^d delivered 1^
the said party of the first part" And It is
farther stipulated la tlie deed that "if the
party of the first part [Uie graiitw] shall
well and truly keep and perlorm all and
singular the covenants, conditions, sttpala-
tiona, and agreements herein contained, then
the property hereby conveyed shall be re-
conveyed by said party of the second part
to the said party of the first part, his heirs,
executors, administrators, and assigns, by
quitclaim deed or by satisfaction and can-
cellation as provided by law." By amend-
ment to the petition It was alleged that tbe
debt to secure which the deed was given had
not been paid, was past due, had been de-
manded, end payment refused. The evldrace
sustained the allegationa of the amendment
Jas. li. Key, ot Atlanta, for idai'ntlfl In er-
ror. Geo. B. Rush, of Atlanta, for defend-
ant in error.
BBCK, 3, (after stating the fftcta m
above). II] 1. The court did not err in re-
fusing to stistain the goieral demurrer to the
petition as amended; the demurrer being
baaed upon the ground that the petition as
amended did not state a cauee of action. The
allegation in the petition that tbe plaintUC
was stfsed of the land in fe^ as shown by
tbe deed atta<died as an exhibit Indicated
clearly the title r^ed upon by the plaintiff;
and title of this character, supplemented with
proof that the debt after it t}ecame due re-
mained unpaid, authorized a recovery by the
plaintiff ot the iHMsesslon of the land, in the
abswce of equitable or other pleadings show-
Dig- KArgH^e
•For outer fSMs-M* bmm topM aad mhIob HUHBaR la Die. XHg. * Am.
COOPER T. BOWEN
413
luff Out plaintiff was only entitled to a
verdict ftiid decree or Judgment for the
amount of the debt and making this a spe-
cial lien upon the land. Wofford t. Wyly*
72 Ua. 863; PolhlU r. Brown, 64 Ga. 888,
10 S. E. 921.
I2-4J 2-4. The second, third, and fourth
headnotes require no elaboration.
Judgment affirmed. All the Justtcea ccm-
cur. ^ ^
a«> Os. nj
OIABE BAIiLEW.
(Supreme Court of Georgia. May 10, 1918.)
(BpUabiu hy the Court.)
Affeal and Ebbob (H 1005, 1038*)— BiTUW
— Refdbal or Nbw tbiax.
While the evidence waa cooflictlaK. and
the jury might have been warranted in finding
for the defendant, it tres sufficient to support
a finding for the plaintiff. The credibill^ of
witoesBes vas for the Jury, and the presiding
judge having overruled a motion for a new
trial, which complained only of the finding of
the >jury, and assigned no error npoa aor
diarge or ruling of the court pending the trlsl,
this court will not reverse the Judgment
(a) Aithoagh the evidence for the plaintifl
might have authorised a verdict for a greater
amount than that found, this will not necessi-
tste a reversal, on modop of the defendant,
under the facts of this case.
[Ed. Note.— For other eases, see AppesI and
Error. Cent Dig. H 8860-3876, 3948-3060,
4052-4062; Dec Dig. » 1000, 1083.*]
Error Superior Conrt, Fnlton Ooiin>
ty: W. D. ElUs, Judge.
Actlcm between T. C Qartc and a U Bal-
lew. From the jodgm^t, Olaik brtnga «•
ror. Affirmed.
Moore ft Brandi, of Atianta, for plaintiff
In error. J. G. Hatpins, of Atlanta, for de-
fendant tai ertts. ■
LUHPEIN, J. Judgment affirmed. AU
Hie Jnstlces concur.
UONTOOHBBT t. ALBXANDIDB LT7MBBB
00.
(SupMM Ooart of Georgia. Hay 11^ 1018.)
(B$lUbu4 »v the Court.)
1. Fbaxtds, Statute op (| 148*)— Prnxioii—
SUFFICIENCT— DeITCRBEB.
Under former rulings of this court, «hich
are binding, where a contract Is required to
be evidenced by writing under the statute of
frauds, and a petition sets out the terms of a
contract, but does not allege that it Is in writ-
ing, aucn petition is not demurrable for that
reaxon. ' Allen & Holmes t. Powell, 120 Qa.
438, 04 S. B. 137.
[Ed. Note.— For other case& see BVaudih Stat-
ute of, Cent Dig. U S{i3. 864; DeeTDig- 1
148.*]
2. Dauages 18*V-BbeaoS jOF OdHTBAOT—
COPrSEQUENTIAL DaUAOES.
Remote or conseqnential damages are not
generally allowed, when, th^ caianot be traced
solely to the breach of the contract, od unless
they ase capable of exact compntatloD, sudi
as the profits frhich are the Immediate fruit 4^
the contract, and are iodepeodeat of any collat-
eral enterprise entered into in contemplattwi
of the contract GlvU Code 1910, | 4394.
IBd. Note. — For other cases, see Damsges,
Gent. Dig. | 37; Dec. Dig. | 18.*]
8. DAMAGBB a 147*)— PUADXNQS— PbOFTTB.
Where !t Is sought to recover damages on
account of loss of profits of a contract, under
the rule that damages recoverable for a breach
of contract are such as arise naturally and ac-
cording to the -usual course of things from
such breach, and such as the parties contem-
plated, when the contract was made, as the
frobable result of the breach (Civil Code 1010,
4396), or on the ground that the c(Hitract
was broken with the knowledge and for the
purpose of deprtvtng the party injared of Its
benefits (Civil Code 1010, S 4S11), the plain-
tiff should allege facts showmg that the special
daaiages claimed fall within one or the other
of such rules.
[Ed. Note.— For other cases, see Damages,
Cent Dig. SS 410, 412; Dec. Dig. | 147T*]
4. Aonoif (I 47*)— JoiNDBB— Beeaoh or Oon-
IBACT— TOBT.
A petitioB seeking to recover damages fw
a breach of contract, and also for a tort, is
subject to demurrer.
r lEd. Note.—For other cases, see Action, Cent
bi^. IS 460, 470; Dec Dig. i 47.*]
6. DlSHIBSAL AmOTBO.
The allegations as to damages were gen-
eral in character, and' f^led to show a n|bt
to recover the special damages alleged. The
petition wss also demurrable because It sought
to recover both for a tort and on a contract in
the same action. A demurrer was filed on the
ground of snch misjoinder of catisu of actloa,
and there were, also specif demurrefa to the
paragraphs of the petition alleging damages.
The court sustained the demurrers, with leave
to the plaintiff to amend ; but npon. failure
of the plaintiff to do so, the action was dis-
missed. Seld, that Uiis was not error.
. Error from Superior Court, Pulton Coun-
ty; J, T. Pendleton. Judge.
Action by N. D. Montgomery against the
Alexander Lumber Company. Judgment for
dofendant, and plaltatlfl brings »TOr. Af-
firmed.
Copeland ft White and A. O. Corbett, all
of Atlanta, for plaintiff In error. Watklns ft
Latimer, of Atlanta, for defendant In error.
LUMPKIN, J. Jodgment affirmed,
the Jnatloea concnr.-
All
OM a*. 4B>
GOOPEB T. BOWBN.
(Supreme Court of Georgia. May lO; 101&)
(Byttabut by the Court.)
1, Action (S 67*)— ComouDATZon— ^DMna^
Equitt.
A plaintiff, alleging herself to be the snr-
vtving partner of a partnership, brought a snlt
in trover to recover property as belonging to
the firm. Subsequently the same plaintiff filed
a suit in equity against the same defendant to
recover other property of the partnership, pray-
ing an ' actounting, a receiver, and a merger
of the trover suit In the eqnitable action.
*Far etbsr essss sm ssms topto sod ssotia HtniBaR in Dso. Dig. ft Am, Dig. Kst-No. Bartss ft
Digitized by
414
78 S0UTUUA83?BIBN BBFOBTBH
(Oa.
Held, tiuit it waa not error to ewiBoIldata the
former salt with the eQuitable Mtion.
[Eld. Note.~For other cases, see Action, Oent-
iHg. S8 632-676; Dec . Dig. S &7.«1
2. Tbiai. ^ 834»)— Vkediot— Validitt— OoN-
0TBUCnON.
A verdict rendered in the eqnit; >uit in
favor of the ^aintiff for "$750, with interest,"
is not void. There being no specific allesations
in the pleadings for the recovery of anj partic-
ular Bum, with interest from a particnlar time,
which would serve to impress Uie verdict as
having relation to fixing interest on the amount
recovered from a particular date, the verdict
will be construed as a recovery of interest from
the date of the verdict,
[£Id. Note.— For other cases, see Trial. Cent.
Dig. i 785; Dec Dig. { 384.*]
3. Appkax and Gbbob iS 1033*) — Habuijss
Eebob—Vebdict .
A defendant cannot complain that the
plaiatiFs verdict la for a less amount than
authorized by the evidence.
[Ed. Note.— For other cases, see Appeal and
E^r^^Ceat Dig. H 4052-1062; Dec Dlff. 1
4. SUFFXOIIHOT OF EVIDENCE.
The verdict is supported by the evidence.
5. Appeal and Bbbob (S 1078*) — Assion-
HENTS OF Ii>BBOB— AbANDONUENT.
Assignments of error upon the rulings on
demurrer and the allowance of an amendment
were not discussed in the brief, and will' be
treated aa abandoned.
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. ft 4266-4261; Dec Dig. |
1078.*]
Error from Superior Court, Dodge County;
J. H. Martin, Judge.
Action by Mrs. N. B. Bowen against O. W.
Cooper. Judgment for plalntiflF, dtfendant
brings error. Affirmed.
W. M. Clements, <a Eastman, and W. L.
A Warren Orlce, of Hawklnsvllle, for plain-
tiff In errcff. W. SC. McoTism, of Eastman,
and Bschol Graham, of M<^lae, for deCoidant
In error.
EVANS, P. J. Judgment affirmed. AU
tba Justices concur.
on Oa. 17)
DZLXABD T. EOI/rZENDOBF.
(Supreme Court of Oeorpa. May 14, 1913.)
(Syilabiu &v tft« Oourt.)
1. BiLu AND Notes (SS 602, 517*>— Evidence
({ 142*)— Plea oe Son Est Factdm— Cib-
CUMSTANTIAL EVIDENCE— SlULAB FAOIfr-
Value.
A plea of non est factum may be estab-
lished bycircumstantial as well as direct testi-
mony. Where the payee and maker of a note
are brothers, and the suit is by the former
against the administrator of the latter, and it
is admitted that the maker did not aign the
note, but that the payee signed the name of
the maker, and where it was contended by the
payee that the maker acknowledged ita execution
in the presence of the payee's son-in-law, and
that the consideration of the note was for med-
ical attention given to the maker by the payee,
a physician, while hi« brother was on a viait
to him, it was competent to show tiiat the val-
ue of the medical service alleged to have been
rendered was groasly disproportionate to the
amount of the note as one of the circumstances
tending to show that the maker, who was lit-
erate and not shown to have been inj»pacitated
from aigning his name, did not authoriie or ae-
knowledig;e the execution of the note. Teati-
mony that physicians In the locally of the
venue of the suit were accustomed to charge
certain fees for visits to patients was not in-
admissible on the ground that such testimony
was irrelevant and immaterial ; no point being
made that it did not appear that tbe charges
in the two locations were similar.
[Ed. Note. — For other cases, see Bills and
_ „ 1807-1815;
Gent. Dig.
2. Vebdici Sustained.
The evidence was snffldent to soitain Oe
verdict
Error from Superior Goort, Qljau Ooont;;
0. B. Conyers, Jndge.
Action by J. B. Dlllard against a D. Holt-
zendorf, as administrator. Judgment for de-
fendant, and plaintiff brings error. Affirmed.
Hatton Lovejoy, of Id Grange, and Boiling
Whitfield, of Brunswick, for plaintiff in er-
ror. J. D. Sparks, of JacksonTlUe* Fla., foe
defendant in error.
EVANS, P. J, Judgment affirmed. AU
tbe Jnatloes conciir.
attoa. m
rUI/rON et aL v. PABKEB at aL
(Supreme Court of Georgia. May 16, 1918.)
(Syttalm hv tkv Oowi,)
1, Pabtttion (I 63*)— EvinENCE — Title of
Pasties.
The evidence was sufficient to support the
verdict
[Ed. Note.— For other cases, see Partition,
Cent Dig. iS 183-186; Dec Dig. | 63.*]
2. Pabtition (I 70*) —iNBTBucnoNS— Divi-
sion or Estate.
Under the facts of this case, there was no
error in giving the charge dealt with in the
second division of the opinion.
[Ed. Note.— For other cases, see Partition,
Cent Dig. ( 193; Dec Dig. t 70.*]
8. Witnesses (| 139*)— CoHprrsNOT- Teans-
A0TI0N8 WITH DECEDENT.
Where by will an undivided interest in
Sroperty Is left to S. and to B., with remain-
er to her children, and S. and B. divide the
property between them, and after the death
of B. her children, as remaindermen, bring suit
for a portion of the property assigned to S. in
the division, against iiis grantees, one of such
grantees is not an incompetent witness to tes-
tify as to communications bad between him
and B. in her lifetime. The facta stated do
not make a case falling within any of the ex-
ceptions contained la Civ. Code 1910, | 5868..
[Ed. Note. — For other cases, see Wltnesaes,
Cent Dig. H 582-597; Dec Dig. | 189.*]
Error from Snperior Courts Uorion Gonn*
ty; Z. A. LlttleJohn, Judge.
Action by B. A. Fulton and others against
B. 8. Parker and otliers. Judgment for de>
fendants, and plaintiffs bring emw. Af-
firmed.
■For other cases ••• same topie and Beetlon HPUBOB In Deo. Dig. 4 Am. Dig,
OaO FULTOK T.
J. E- Sbeppard, of Americas, and W. D.
Crawford, of Bnena Vista, for plaintiffs In
error. S. B. Hatcher, of Columbas, and W.
B. Short, of Bnena Vista, tor defukdanta In
error.
HILL, 3. [1] 1. The plaintiffs In error,
who were also plaintiffs In the court below,
filed their petition for partition of certain
lands described therein against the defend-
ants, who were In the exclusive possession
under a chain of title from B. A. Story, who
was the grandfather of the platntlff& B. A.
Story died leaving a will, by which he devised
certain described lands to his wife, Emily J.
Story, his son S. B. Story, and hla daughter
Mrs. D. A. V. Belk. The plaintiffs here are
the (^Udren of Mrs. Belk. By Item 3 of bis
will the testator devised a one-third Interest
In certain described lands to bis wife dar-
ing her natural life. The lands sought to be
partitioned were a portion of this land. By
the fonrth Item of his will the testator devis-
ed an nndlvlded one-half Interest In remain-
der in the lands described In Item 8 of bis
will to his son S. B. Story. By the flftb
Item of bis will the testator beqaeatfaed an
undivided one-half Interest In the lands de-
scribed in item 3 of his will to bis daughter,
Mrs. D. A. V. Belk, for and during her nat-
ural life, with remainder over to her chil-
dren. Tbe sixth item of the will provides
that the property "contained in the three
last articles above be equally divided be-
tween my son, S. B. Story, and my dangh-
ter, DIcy V. Belk, bo tbat In no wise to
Interfere or to be detiimoital to tbe one-
tbird interest bequeathed to my wife, Bmlly
X, whlcb Interest la only to exist for and
during her natural Ufe and then to pass to
and become tbe property of my son, S. B.
Story, and my daugbter, D. A. V. Belk, In tbe
manner aforonentioned.'' The son, S. B.
Story, and the datuhter, Hri. D. A. V. Bdk,
wen nominated aa executors of tbe will and
qnalifled as sncb.
Tbe testimony tended to show that tbe
lands dewribed in items 3, 4, and 6 were di>
Tided between tbe two children named and
tbelT mother Emily J., each taking possession
tbe portion devised. About a year tliere-
aftor the widow of testator, lira. BJmily J.
Story, died. The two dilldren, S. B. Story
and Mrs. D. A. V. Belk, divided and entered
into possession of the remainder portion of
the lite estate lands of Mrs. Eknlly Stoi7'
The evidence is somewhat conflicting on tbe
question of division and possession, but It Is
sufficient to sostain the verdict to tbe effect
tbat they did so divide and take possession,
as will be seen later. S. B. Story died a
number of years after tbe division and poa-
session, having conveyed In bis lifetime the
lands In controvert to T. E. ^anchard, as
tbe BurvlTlng partner of Blanchard St Burros,
who in turn conveyed it to tbe defendants.
Tbe daughter, Mrs. Belk. remained In pos>
lewion of a portiUm of tbe land sat apart to
. PABEEB 416
her for a number of years prior to her deatii.
After her death her children took possession
of the land as remaindermen, and bad pos-
session at the commencement ot this suit.
On the trial of the case, according to the cer-
tificate of the trial judge, both sides stated
to the court that the right of Mrs. Emily J.
Story, S. B. Story, and Mrs. D. A. V. Belk
to divide the lands in which Mrs. Emily J.
Story had a life interest, after her death,
was not contested, and cmly issue was
whether or not S. B. Story and Mrs. D. A.
V. Belk had divided the one-third Interest of
Mrs. Emily J. Story after her death.
The contention of the plalntlfTs was that
there was no division made of the share of
Mrs. Emily J. Story, tbe grandmother, be-
tween S. B. Story and Mrs. D. A. V. Belk,
and that th^ were entitled to an undivid-
ed one-half interest In the land as tenanto in
common wl(b the defendants, who held under
title from S. B. Story, and who, under the
terms of the will, could only convey Ms un-
divided one-balf interest In the same. On the
other band. It is Insisted by the defendant
that there teat a dlvlslcm of the grandmoth-
er's share after her death between S. B. Story
and Mrs. D. A. V. Belk, the mother of i^ln-
tiffs, and that the plalntUfs are now in pos-
session of the portion assigned to their moth-
er, and that by virtue of the division and pos-
session under it the portion of S. B. Story
vested the title In him, who subsequently con-
veyed the title to Blanchard, who conveyed
it to tbe defendants. The issue of fact Is
thus sharply drawn; tbe plalntlfb contend-
ing that **there is no evidence that D. A. V.
Belk ever took possession of any of tbe land
after the death of Emily J.** As previously
steted, there Is some conflict In tbe evidence;
but there Is evidence tending to show tbat
after the death of Mrs. Ebnily Story ber one-
third Ufe interest in the lands were divided
between S. B. Story and Mrs. D. A. V. Belk,
and tbat eadi took possession of bis part un-.
der tbe divlBlon. Tbe testimony of J. T.
Belk. the bnsband of Mrs. D. A. T. Belk,
toided to show tbat bis wlfS and S. B. Story
told bim of the division, and tbat each held
possession of the portion assigned them in
tbe division of Emily J. Story's share after
ber death. "After Mrs. Story's death, she
[D. A. V. Belk] got the second division. I
rec^n Mrs. Belk had something to do witb
tbat division." **My wife or tbe heirs are
now in possesslcm of it. She never was in
possesdmi of it nntU Mrs. Story died." Tbe
testimony of Pierce Belk tended to show
that be liad purchased a portion of the land
assigned to S. B. Story under tbe division
of Mrs. Emily J. Story's share, and later
wanted to borrow mon^ on it, and upon
the d«nand of the loan association from
whlcb lie negotiated the loan he applied to
and obtained a quitelalm deed to the land
from Mrs. C A. V. B^ A copy of the quit-
claim deed iras In evidence. MnBTSi^k ala>
told the witness tbat di»tjud twK-chl&^liC
416
78 SOUTHBASTEBN BEfPOBTBB
(Gm.
of tbe land held by S. B. Storr. Tbts wit-
ness also testified that his aunt, Mn. D. A.
v. Belk, after the death of Mrs. Bmlly Story*
went into possession of a portion of Mrs.
Story's lands, and S. B. Story went into pos-
session of the other portion. One of the de-
fendants. B. S. Parker, testified that S. B.
Story told hlni that he and Mrs. Belk had di-
vided tbe Bmily Story lands after the death
of Mrs. Story. We think the evidence of the
defendant Is sufficient to support the verdict
of the Jury, which was to the effect that
there had been a division between S. B. Sto-
ry and Mrs. D. A. V. Belk, after the death of
Mrs. Smily J. Story, of the latter's share
In tbe estate of B. A. Story, tbe testator,
and that the land sought to be partitioned
by the plaintiffs went Into the possession of
S. B. Story, and he repialned in possession of
it until he conveyed it to T. E. Blanchard,
who conveyed It to tbe defendants.
[2] 2. Exception is taken to tbe following
charge of tbe court: "If you find from the
facts pf the case that there was a division
Djade between S. B. Story and Mrs. D. A. V.
Belk after tbe death of their mother, and
that there is no evidence In this case that
the division was fraudulently made, it would
be binding on tbe parties; and if you find
that it was divided, the interest held by Mrs.
Emily J. Story, the mother, 8ubseq,uent to
her death, these parties, S. B. Story and Mrs.
D. A T. (Belk, divided tbe land, then that
would be binding on them, and It would also
be binding on the plaintiffs, the children of
Mrs. D. A. V. Belk." One ground of com-
plaint against the charge Is that it errone-
ously states the law, in that the heirs could
not by agreement bind the remaindermen
who did not participate in tbe division. It
is unnecessary whether remaindermen would
be bound by an agreement as to a division
made by the heirs, for the reason that a
certificate of the trial Judge appearing on
the amended motion for a new trial was as
'follows: "At the trial of this case it was
stated to the court by both sides that the
right of Mrs. E>uily J. Story, S. B. Story,
and Mrs. D. A. V. Belk to divide the estate
of B. A. Story, or the right of S. B. Story
and Mrs. D. A. T. Belk to divide the one-
third interest of Mrs. Emily J. Story after
her death, was not considered; but the only
Issue in the case was whether or not S. B.
Story and Mrs. p. A. V. Belk had divided
the one-third interest of Mrs. E^lly J. Story
after her death, and the case was tried on
this issue."
Under these ftcts, there was no error In
giving the charge complained of. The other
assignments of error with reqiect to this
charge are without merit
[)] 3. Tbe only remaining special assign-
ment of error Is' because the court allowed
X. \V. Parker, one of the defendants, to tes-
tify, over objection, that Mrs. <Belk, the
daughter oC the testator, who was dead, had
told the witness tbajt the lands devised to
her mothw, Mrs. St<ay. tor life, and at lur
death to be divided betweoi herself and
brother, bad been so divided after her moth-
er's death, and each remainderman had en-
tered into possession of his respective share.
The court did not wr la admitting this tea*
tijnony. The defmdants* title did not come
through Mrs. Belk, bat through S. B. Story.
The defendants were not Indorsers, assignees,
transferees, or personal representatives of
Mra Belk, and did not come within any of
tbe exceptions laid down In Ovll Code, |
6858. Nor did ttie plalntifEs occupy any re-
lation towards Mrs. Belk which would ren-
der the witness incompetent to testis. They
were not datmlng under her. but as legatees
of a remainder Interest nnder the will of
their grapdfiithw, B. A. Story.
Judgment affirmed. All tbe Jnstlces
concur.
0W4ia> ■>
WOOD T. WOODl
(Sopreme Court of Georgia. Hay 18, lOlSJf
(Syllabut ly the Court.)
Nsw Tbux. (SS 138. 154*) — Grant — Mo-
tion TO Vacate.
Where a defendaat in a cause moved to set
aside a verdict and the motion was not served,
and DQ steps were taken to perfect service un-
til after tlie lapse. of several years, when an ex
parte, order for service of the plaintiff by pab-
llt^ati'on was granted at tbe instance of the de-
fendant, and the plaintiS promptly moved to
vacate such order tor service on the groond of
the defendant's lacbea, and on the hearing the
judge who granted the order vacated it as hav-
ing been improvtdently granted, this court wiU
not reverse the jodgmentr ttc^ It be made to
appear (which was not done in this case) that
he abused his discretion.
(a) In such a case it is not erroneous to fo^
ther direct that the defendant's motlni be
stricken from the courf ■ files.
[Ed. Note.— For other cases, see New TiiaL
Cent, Dig.,H 280, 281 ; Dec. Dig. H 138, 151^
Error from Superior Cour^ Fnltm Ooon-
ty; Geo. L. Bell, Jadg&
Action by Capltola L. Wood against W. 3.
Wood. Judgment for defmdant, and plain*
tiff brings error. Affirmed.
Qea F. Oober. of Atlanta, 8. 7. Garline-
ton, of Augusta, and Albert E. Mayer, of At-
lanta; for plaintiff in error. Rosser A Bran-
don and B. 3. Conyers, all of Atlanta* for
defendant In error.
EVANS, P. J. The exception Is to a Judg-
ment vacating an order to perfect service
on a nonresident defendant as having been
improvidently granted. On December 14,
1907, Mrs. Capitola L. Wood filed a petition
In the superior court of Fulton county against
W. J. Wood to set aside a verdict rendered
in a divorce case on June 15, 1905. On
May S, 1912, application was made by her
to have service perfected on the defendant
by publication. An order was granted. The
4te othsr ofts« se* rnsM iwle and BsotloB NIMBBR la Dm. XMg. * Am. Dig. K«i
Ga.)
SOUTHERN CEtmTT STONE CO. T. LOQAN COAL A SUPPLY 00.
417
defendant made a special appearance and,
vltbont admitting the Jurisdiction of tbe
court, moved to vacate the order to perfect
service on him and tbat the proceeding in
which the order was taken be dismissed. In
bis motion it was represented to the court
that at the time of the flllng of the proceed-
ing to Bet aside the verdict he was a resi-
dent of the state of Florida, and had resided
there continuously up to the time of making
bis motion ; that a return of. non est inven-
tus was made by the sheriff of Fulton coun-
ty prior to the January term, 1908, of the
court, and no attempt was made to perfect
service of the proceeding to set aside the
verdict until December 26, 1908, when the
plaintiff procured an order directing that
service of the petition and process be per-
fected by publication twice a month for two
months, and that the case be made returna-
ble to the March term, 1909, of the court
This order vraa not carried out, and, not-
withstanding Fulton superior court has six
terms each year, the applicant in that case
took no further action until May 3, 1912,
when she procured an order from one of
the Judges of Fulton superior court directing
that service of the petition and process be
perfected by publication; that the case be
made returnable to the September term, 1912,
of the court; that the order was obtained
ex parte, and his first notice was the re-
ceipt of a paper containing a marked copy
«f the adrertieement of the order on July
9, 1912; and thereupon he promptly moved
to vacate the order and to dlamisB the pro-
ceeding on acconnt of the appUcanfs laches
In applying for an order to serve her mo-
tion, and because that since she first filed
her motion a final verdict and decree bad
been rendered In the divorce suit granting
a total divorce to the movant and awarding
applicant $1,000 as permanent alimony,
which verdict and decree had been affirmed
by the Supreme Court of the state, and the
amount of the alimony paid to her attorney.
On the bearing the court vacated the order
for the service of the proceeding to set aside
the verdict and ^smlssed the proceeding.
Exception Is taken to this Judgment
It l8 witliln the power of a Judge of
the superior court at the appearance term or
at a Buhseqaent term, where due diligence is
shown, to grant an order authorizing a new
process to Issue, and that tbe defendant be
served. Allen v. Mutual Loan Co., S6 Oa.
74, 12 ,9. B. 265; lASSlter v. Carroll, 87 Ga.
731, 13 S. E. 825; Rowland v. Towns, 120
Ga. 74, 47 S. E. 681. Tbe plaintiff must be
diligent in looking after liis case. If with-
out excuse be allows several terms of the
court to pass before applying for an order
to perfect service. Ills laches ordinarily will
be good groand for denying his motion to
revitalize bis suit by the grant of an order
to have the defendant served. In Bruns-
wick Hardware Co. v. BIngbam, 110 Ga. 526^
35 S. B. 772, no steps were taken to perfect
service until tbe seventh term after the dec-
laration had been filed and tbe plalntUFs mo-
tion to have service perfected was denied;
In that case the court said: "To allow a
plaintiff simply to file his suit In the clerk's
office on a cause of action which would with-
In a few days become barred by the statute
of limitations, to let It lie there for several
years without taking any steps to have it
served, and then to perfect service, would be
virtually to repeal tbe statute of limitations."
This remark is especially applicable to the
facts of the Instant case. A motion to va-
cate a Judgment must be made within three
years, and yet a longer space of time has
elapsed since the filing of Mrs. Wood's peti-
tion in this case and her application to have
service perfected by publication. The mo-
tion to set aside the order was made to the
Judge who passed It Upon being pnt In full
possession of the facts, he was of the opinion
that the order was Improvldently granted,
and there Is nothing In the record to show
that he abused his discretion In so holding.
It Is further contended that the Jndgmoit
complained of is erroneous for the reason
that the court was without Jurisdiction to
dismiss the cause upon a special appearance
of tbe movant. It is true tliat one who
makes a special appearance for the purpose
of protesting against an illegal service can-
not Join Issue with the plaintiff on the mer-
its of the case ; bnt where a petition has been
allowed by a plaintiff to rmain without
service t>elng perfected on the defendant for
many years before aiiplying for an order to
liave the defendant served, and the order
Is granted ex parte, and Is afterwards aet
aside as having been improvldently granted,
the court may give direction to have the
same stricken from the flies. The substan-
tial effect of an order striking the case from
the files of the court is the same as dis-
missing the action. Tbe Judgmoit wlU not
be revised.
JadgmoLt affirmed. AU the. JnatlesB con*-
cor.
cuo Oa. n)
SOUTHERN CEMENT STONE CO. T. L0-.
GAN COAL & SUPPLY CO.
(Snpreme Court of Georgia. May 10.
(BylUbmt »v tt« Courts
MumCZPAI. GOBPOBATIONB (f 82^*) — POBUO
lUFBovBuim-CoHTBAor— BiOBT to En*
Jom.
There was no error in granting a nonault
in this case.
[Ed. Note.— For other eases, see Municipal
Corporations, Cent Dig. %% 842-846; Dec. Dig.
8 328.*1
Error from Superior Court, Glynn County;
C. B. Conyers, Judge.
Action by the Southern Cement Stone Com-
pany against the Logan Goal k Supply Com-
1» Dec Dig, a Am. Pig. K^-NBaa»»»'<' IM^j C
«nr otbtf aaMB ■•• sasw topia sad wettOB NUHBBB
78S.a-S7
418
78 SOUTHEASTERN REPORTER
(Ga.
pany. JudgmeDt for defendant, and plaintiff
brings error. Affirmed.
F. H. Harris and R. D. Header, both of
Branswlck, for plaintiff in error. Boiling
wmtfi^ of BnuwwlclE, for defradant in
error.
LUMPKIN, J. A contracting company
soaght to enjoin another contractor from lay-
ing certain sidewalks In the city of Bruns-
wick. The plaintiff claimed that it had the
right to do such work by reason of contracts
with the property owners In front of whose
property the sidewalks lay. The defendant
claimed the right under an award of the con-
tract by the city. On the hearing of the
application for temporary Injunction by the
presiding judge, he granted it as to certain
parts of the sidewalk and refused it as to the
balance, but required the defendant to give a
bond to pay the plaintiff any profits It might
lose^ and which on the final trial It m^ht
be shown to be entitled to rwover. The case
was brought to this court, and the writ of
error dismissed. 136 Oa. 475, 71 S. SI 916.
The plaintiff then amoided Its ideadlngs, so
as to seek to have a reooTor oa the btmd.
On tile trial, at the dose of the evidence
Introduced by the plaintiff the court granted
a nonsuit and the plaintiff excepted.
The fallacy which underlies the entire con-
tention of the plabitUt Is that It seeks to set
up various grounds of c<Hnplalnt wbldi possL*
biy the property owners might have made*
but did not, and whldi do not give to the
plaintiff any right of recovery. Under its
charter, power was conferred on the mayor
and aldermen to require property owners to
pave sidewalks in front of their property.
By the act of 1005 (Acts 1905. pp. 680, 685)
it was provided that If the owner should re-
fnse to begin the work within 80 days after
he shonld be served with a copy of the order
requiring it, or, after havlDg begun such
work, shonld fail to complete It within a
period of time to be designated by the mayor
and aldermen, unless they shonld grant fur-
ther time, they could have the work done and
collect the cost thereof by execution. It pro-
vided that the notice should be served on the
property owner "by the marshal or any
other officer of said dty." On December 12,
1907, the mayor and council adopted an ordi-
nance requiring the sidewalks to be paved,
and provided that the work should begin
within 30 days, and be completed in 10 days
thereafter. Nothing further was done until
1909. On April 8, 1909, a resolution was
adopted requiring notices to be Issued and
served on property owners, requiring them
to proceed virlth the work. Notices were
Issued, and were served by a special officer
attached to the police department The
property owners did nothing, except that
a number of them (perhaps all) had a
verbal understanding with an office of the
plaintiff that, whenever the dty required
the work to be done, the plaintiff would
do it The city had already required It,
but no work was done. In 1910 the mayor
and council proceeded to let out the work by
contract The plaintiff was a bidder, and
failed to get the work. Its officer testified
that the dty attorney, in a conversation with
him, advised blm that he could go on with
his private contracts without regard to the
letting out of the work by the dty, If such
contracts were made before the awarding
and signing of the city contract This seems
to have been an unofficial expression of opin-
ion by the city attorney in the course of a
conversation, and was not binding on the
city. In bis brief the dty attorney says that
It "appears to have been 'obiter dictum,* as
It were." While the dty was advertising for
bids and preparing to make the award,
plalntifTs officer went to the property owners
and obtained an agreement that they "have
contracted with the Southern Cement &
Stone Company to pave abutting such prop-
erty In accordance with dty spedficatlons for
and at the same price that has to be paid for
the Norwich street paving {the street In^
volved In the omtroversy] when contract is
awarded 1^ the dty." Thus the plafntlfl
was to look to the award of Oia cUy to fix
the prlce^ but not to fix the successful bidder.
The plaintiff attached the ordinance as
unreasonable, and the notice as not having
been served by « ^oper officer, and as al-
lowing more time than the ordinance sped-
fled. A vital trouble with this contentim la
that the property owners made no objection,
but recognised the notice and acted on it as
valid, and the idalntUTs bill of exceptkma
states that each of them testified that, "it
becoming necessary by requirement of the
munidpal authorities of the cStj of Bruuh
wl(^, by notice served by the mayor and
counsel of the dty ct Brunswick under provi-
sions of the dty diarter and dty ordinance
of December 12, 1907, • • • to that end
the witness made and entered into a con-
tract with the plaintiff," etc. Thus the prop-
erty owners raised no objection to the notice,
and it was recognized as suffident to require
them to have the pavement laid. The plain-
tiff claims to have obtained the contract bj
reason of the notice, but now attacks it
Again, the only evidence tending to show
that the time allowed was unreasonable was
that of the president of the plaintiff. He tes-
tified that 'it would be practically Impossible,
considering the fact that It takes 80 days,
after cement tiling has been placed in mold,
for them to cure suffidentiy to lay ; that no
cement tiling contractor anywhere in this
part of the country has a force sufficient to
complete all such work In 10 days after start-
ing It nor is t^e labor skilled in sndi work
to be obtained, so as to do the same In said
period.** It will be seen that be seeks to
measure the time within which a munldpal-
Ity may require dtlsens to pays sldewAlks
Digitized by Lj OOg IC
THOBfPSON T. H. H. SIMMONS A 00.
419
by the ooDTenlence or needs of a single con-
tractor, who may obtain agreements from all
of the property owners, and without previouB
preparation as to materials or labor. If be
should obtain promises from substantially
all of the property owners of the city» be
might not be able to perform the contract
in months or years. But this Lb not a proper
test The plaintiff did not begin work on the
sidewalk at all until advertisement for bids
by the city and shortly before the award of
the contract to another.
It la useless to discuss the other points
raised. They are equally without merit
The plaintiff made out no prima fade ease,
and the award of a nonaolt waa proper.
Judgment affirmed. All the Justloee oon-
cnr.
4. Kefusaz, to Dismiss AppBOTxn.
The Other groands of the motion to dis-
miss the writ m error are without merit
5. ImoxzOATxiTo Liquou (t 260*)— iHJimo-
noN— DanNBES— "BuiTD Tiqeb.^'
It is no defense to a proceeding brotight
under CIt. Code 1910. SI SSSS-^ivto abate
and enjoin a "bUnd tiger* as a nnlsBnee, that
the sale of aplrituonfl, malt or intozicaling
liqaor was In open violktiou of law.
[Ed. Note.— For other cases, see Intoxicat-
log Uqaors, Cent Dig. { 399; Dec Dig. |
260.*
For other definitions, see Words and Phras-
es, ToL 1, pp. 808. 809.]
Error from Superior Court Chatham Coun-
ty; W. G. Charlton, Judge.
Action by W. B. Thompson and otbers
against H. H. Simmons & Co. Judgment for
defendants, and plaintiffs bring error. Re- .
versed.
W. R. Hewlett Wm. L. GlgnllUat and a
J. Orr, Jr., all of Savannah, and Seaborn
Wright, of Rome, for plaintiffs in error. Os-
borne & I«wrence, Edmund H. Abrahams,
and Bouham ft Henoi^ all of Savamiah, fw
defendants in wror.
EVANS, P. J. Several citizens of Chat-
ham county brought a petition under Civil
Code, K 5335-6337, against the defendants,
to abate and enjoin the operation in their
neighborhood of what is commonly known as
a blind tlgw, where aidrituoua, malt or in-
toxicating liquors are sold. The jury re-
turned a verdict for the defendants, and the
court refused a new trial, whereupon the
plaintiffs sued out a bill of exceptions.
[1-4] 1-4. We do not think the motion to
dismiss the bill of ezc^itlons should be sus<
tained. The rulings made thoreon are atated
in the headnotes.
[S] 5. The controlling question in the case
is the correctness of the court's instmctitm
that a "blind tiger" Is a place where spirit-
uous, malt or intoxicating liquors are sold
In violation of law "on the sly," not openly
sold, but sold "on the aly," and that If the
defendants sold spirituous, malt or intoxi-
cating liquors In their place of business, but
did not sell It "on the sly," the plaintiffs
would not be entitled to a rerdict The stat-
ute involved U codified in CIvU Code^ H 0885
to 6337, as follows:
"Any place commonly known aa a 'blind
Uger,' where spirituous, malt or intoxicating
liquors are sold in violation of law, ahall
be deemed a nulsanc^ and the same may be
abated or enjoined as such, aa now provided
by law, on the application of any citizen or
citizens of the county wham tlie same may be
located."
"If the party or parties carrying on said nui-
sance shall be unknown or concealed, it shall
be sufficient service. In the abatement or in-
junction proceedings under the preceding sec-
tion, to leave the writ or other papers to be
served, at the place where sudi liquor or
liquors may be sold, and the caa»--may pror
"Tor otliar eua urn nm* toplo uA wetlon NUMBER In Itae. Dig. * Am. XHg. Ker-l^lil^i^& WC^i^S"*^
(U9 Oft. H5)
THOMPSON et al. T. H. a. SIMMONS & CO.
(Supreme Court of Georgia. May 18, 1913.)
(SvUaltui by the Court.)
"L Affsai, and Esbor (I 654*)— DlSHZSaAL—
Absenci or Bill or {jXceptions.
Where it appears from the bill of axcep-
lioDs that the judgment excepted to Li the
refusal to grant a motion for new trial, tiie Mil
of exceptions wQl not be dismissed because
of the omiseion to specifr Che brief of evidence
aa part of the record; but if the omitted rec-
ord is necessary to the proper adjudication of
the case, this court of its own motion irill
cause a certified copy of it to be transmitted to
the derk of the Supreme Court
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. |S 2819-2822; Dec Dig. {
654.»]
2. Afpkai. and Ebmou (i 637*)— ExcKPnoMS.
BlXJ. or (f 69*)— AHKKDUKNT— DiSlUSSAL.
Where, in the caption of a bill of excep-
tion^ the case la stated as "W. E. Thompson
et aL V. H. H. Simmons & Co^ a firm com-
posed of H. H. Simmons and H. F. Myers,"
and it is recited therein "that at the Jane
term, 1912, of the snperior court of Chatham
county, Georgia, to wit on August 8, 1912,
before hie honor, Walter G. Charlton, Judge
presiding, there came on to be heard the above-
stated case, the same being petition for io-
Jonction," etc., a motion to amend the biU
ot exceptions from the record, by supplying
the names of all the plalntiffB named in the
petition, will be allowed, and upon tfae al-
lowaiiee of the amendment a motion to dis-
ndss, on the ground that the bill of excep-
tions does not state all of the parties to the
cause, will be denied. Grossley r. Leslie. 130
Ga. 782, 61 S. E. 851. 14 Ann. Cas. 708.
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. U 2784, 2S29; Dec. Dig. S
687;* Exceptions, BiU of, Cent Dig. H 1^)6-
Ul; Dec. Dig. i 69.*]
S. Atpbal and Ebkos <| 637*)— Bill or
Bxceptiorb—Clebical Ebboe.
A bill of exceptions wiU not be dismissed
because in the as^gnments of error it is stat-
ed tiiat "the defendant excepted and now ex-
cepts/* etc, where from the whole bill of
exceptions it is apparent that the word "de-
fendant" waa Inadvertently used for "plain-
tiffs."
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. H 2784. 2829; Dec Dig. |
687.*]
7$ SOUTHKASTICBN REPORTEH
oeed against 'parties unknown,' u defend-
ants."
Tbe court aliaU bava anthoiitr to order
■tbe officers to break c/pwi socb 'blind tlg»'
and arrest tbe bunates Ouxeot, and seise
tbeir stock In trade, and bring ttiem before
Mm to be dealt with as tbe law directs."
T*e statute reflects a l^dslatlTe intent to
extend to dtizens in a county wbere a "blind
tlgex^ is located an addltl(»ial remedy to sup-
press the Illegal sale of spirituous, malt, or
Intoxicating Uauora. The scope and nature
of tbe remedy Is apparent, wboi we consider
tbe punwse of the statute. At the tlm^ of
Its passage the sale of Intoxicating liquor
was prohibited by law In the majority of tbe
counties in this state, and In others was per-
mitted only under stringent regulation. In
tbe dry counties especially this. prohlbltlTe
legislation did not oitlrely Bn^ress tbe sale
of Intoxicants. In some Instances; fbr vari-
ous reasons, the vendors of Intoxicating Uq-
nors escaped prosecution or conviction, and
yet tbe demoraUstng effect of the illegal busi-
ness was 80 apparmt that the need of a
dvll remedy tar tbe protection of the people
in the vicinity of tbe place wbere intoxicat-
ing liquors were bdng unlawfully sold came
under the notice of the legislature. Tbe
evil to be corrected was the illegal sale of In-
toxicating liquors; the remedy supplied by
tbe liCgfslature was a dvll suit to abate or
enjoin tbe sale of such liquors as a nuisance.
Ij^ v. Anderson, 116 Oa. 401, 42 8. B. 720.
U we look to the title of tbe act (Acts 18d9,
p. 78), wUch is **to dedare as a nuisance any
piece where spintnous, malt or IntoxicaUng
liquors are sold In violation of law," etc.,
there can be no donbt of the legislative pur-
pose that the act is applicable to any place
wbere Intoxicating liquors are unlawfully
sold, irrespective of the manner of sale^
frtiether emiducted secreUy or opeily.
Ifudk stress Is laid upon tbe use of the
words "blind tiger," as indicating a restrlo-
tlon of the act to places where Intoxicants
are furtively sold, and tbe eulusion of places
wiKxe intoxicating liquors are sold In open
defiance of law. We do not think that tlie
use of the term "blind tiger*' in tbe body
of tbe act narrows the scope of tbe tltie.
The term "blind ttg^ Is a colloquialism, or
dang expresdon. In some instances it is
applied to the vendor of the liquor ; in others
It Is used to describe tbe place of sale; and
In still otber Instances it is wa^loyeA to dmr^
acterice the device of the vaidor in dfecUng
tbe sale. In our statute tbe term is used in
Its generic sense. If tbe applicability of tbe
statute was confined to places where intox-
icants were secretly sold, why the language
of the statute that !t applies to "any place
(fommonly known as a *bllnd tiger,' where
spirituous, malt or intoxicating liquors are
sold in violation of law"? Tbe descriptive
words after tbe term "blind tiger" are defln-
fttve of the meaning of the slang expresdon.
And as said, by Cobb, 7., In Legg v. Ander-
son, sapra, In discussing this statute: "A law
having' for its 'purpose the sni^resslon of an
acknowledged existing etil, whldi is destruc-
tive of the public peace and order as well as
the welfore and happiness of individuals,
should not, of all laws, be frittered away
by construction." In that case tbe provision
of tbe act was held to apply, so as to enjoin
the detodant from maintaining a blind tiger
upon tiie premises used by him as a livery
stable^
The trial court's construction of the stat-
ute was predicated upon certain expresdons
appearing in tbe majority opinion In Cannon
V. Merry, 116 Oa. 291, 42 8. B. 274, as ap-
pears from his opinion overmllng the mo-
tion for new triaL In that case a dlspCTsary
for tbe sale of intoxieating Uquors was be-
ing operated under an ordinance <tf the town
of Pelham. The mayor and conndl contend-
ed that tbe diartw of the town authorised
the enactment of (lie wdlnanoe. Certain
dttzws denied the legality of this contention,
and brought their aetlCHi nndw tbis statute
to enjdn the mayor and eonncU from <verat-
ing the diapoisary. It is true that, is the
dlscnsdon of the an>llcat^ty of the act to
tbe facts in the case, the Justice delivering
the opinion quoted fhun the Stiudard DIo*
tionary a deOniUon <hC a 'Wind tiger" as a
place where intoxicating liquors are sold on
the sly; yet it Is apparent from tbe context
that no precise definition of the torn was in-
tended, for he says: "Whatever a Wind
tiger,' as 'commonly known,* may be^ we are
quite sure that the dicvensary in qnestlrai,
which was being openly and publldy operat-
ed in the town of Pdham, in pursuance of
an ordinance of the town, which those en-
gaged In opetaUhg the diqtoiBary evidently
thought to be valid, was not sndL a idace as
Is commonly known as a blind tiger." The,
ground of decision, as made munifftift in the '
syllabus, is tiiat a pidtlic dlspoisary, (derated
under color of law, by public officials, in
the honest belief of the l^iity of their ac-
tion, was not subject to abatemmt under
the blind tiger act This was the point de-
dded, and the definition from the Standard
Dictionary was simply used as an illustration
in the course of tbe argument
In view of the foregoing dlscnsdon, the
Instruction was erroneous; and, as it re-
lated to a vital pcAnt in the case, a new
trial must be ttad.
Judgmoit reversed. All the Justices con-
cur.
Oa. 44)
PARRISH V. O'NEAL.
(Supreme Court of Georgia. May 15, 191&}
(8i/Ual%B &v the Court.)
BouNDASiEs (§ 52«) — Pbocessionino — Rs-
TUBN— Dismissal op Case.
On the application <a J. B. O'Neal to have
the lands adjoining his entire tract of land
•For etlMr msw m* nme topio mad MeUon NUKBBR la Dm. BIm. A
STAXXHra T. 80CTHEBN BT. <X>.
421
(describing it) lurTcyed and maAed anew, the
processionerB. with the coantr surveyor, traced
and marked certain lines and made their re-
tom. Attached to the retarn was a plat al-
leged by them to have been made b; the county
Burreyor, and duly certified by the latter, and
which plat and certilicate the report alleged
"correctly represents said tract as marked out
by said processioiiers and said surreyor." On
Uie pJat were written the words "Mrs. O'NeaL"
The certificate of the surveyor accompanying
the plat was as follows : "I hereby certify that
tbis plat correctly shows tbe lines marked anew
and established around the land of Mrs. Helen
O'Neal by the processloners appointed by the
ordinary (or that pnrpowB, surveyed ta m« this
Aacmt — , 19ID. A. J. Stanaland, Ooanty
Surveyor, Thomas County, Ga." On the trial
of the case, the applicant offered the return of
the processiotwra, iDcluding the plat and ear-
tifleats of the larveyor, In CTidence. Tbe pro-
tsstants Objected to the rttom as eridence, and
moved to dismiss It upon various grounds,
among others, "that the return of the proces-
sloners does not show that the lines around the
entire tract <ft 3. B. O'Neal's land as applied for
in. Ilia application were run at all and <dd Unas
marked anew around the whole tract" Held,
the plat and certificate of the surveyor showing
ralr that lines around tbe land of Mrs. Helen
O'Neal wars mn, and nOt riiowii« that any lines
WHS ran aroand the land of tbe applicant, the
coart erred in not snatainins the motion of pro-
testant to rule the ^tani ont of evidence and
to dismiss the case;
[E^ Note.~For other caaes, see Boandaries,
^at. Dig. M 3&3-260, 202,^ ; Dec. Dig. {
Error from Superior Court, Thomas Coun-
ty;. W. E. Thomas. Judge.
Application by J. B. O'Neal to bare lands
surveyed and marked anew, and B. BL Par-
riah protested. Judgment for applicant and
Protestant brings error. Reversed.
W. O. Soodgrass, Roscoe Luke, and Louis
Moore^ all of Thomasvllle, for plaintiff In
«Tor. Tbeow Titus, of Thonuurllieh for de>
fendant In wnv.
HILL, J. Jadgmant feversed.
Justices eonmr. .
AU tbe
OM Oa. 68)
STALLINS T. SOUTHERN BY. CO.
(Supreme Court of Georgia. May IS, 1913.)
fBvUahtu H the Oourt.)
1. Tbiai. (I 2S5*) — iHSfBUOvxoMB— Dnrr to
BKQUS8T.
Where there is confllctiog evidence as to
the issue in the case, and one party also intro-
duces a written statement made out of court
by a witness who bas testified on belialf of the
other party, not as evidence of the truth of
such statement, but for the purpose of impeach-
ing the witness, it will not require a new trial
if the court omits to charge that die statement
so introduced should be considered bj the jury
scdely for the purpose of impeaching the wit-
ness, in tbe absence of a request for sucb an
instmction.
[Bd. Note.— For odier cases, see Trial, Gent;
Dig. H «27-«41; Dec. Dig. f 256.*]
3. Tbiax. (I 807*)— Delibkbatior of JVKt—
Taking Papbbb to Jubt Rook.
Where a written statement made out of
eonrt by a witness was admitted hi e^ridenoe
for the purpose of impeaching such witness,
and counsel for the party on whose behalf the
witness had testified mistakenly objected to the
allowing of sndi statement to be carried by the
jury to tbeir room, when they retired to con-
sider the case, on the ground that such paper
had not been introduced in evidence, permitting
the paper to be carried oat with them by the
jury, "over such an objection, fornishea »
ground for a new triaL
[Ed. Note.— ror other cases, see TriaL Gent.
Dig. as T32-737; Dec DigTlSOT.*]
3. Vebdict ahd DxnxAL or Nbw Tbial Af-
PBOVED.
The evidence was conflicting, bat was snffl-
cient to support the verdict, and tliere was no
error in overraling the motion tat a new trIaL
Blrror from Superior Court, Fulton Ooon*
tf; Geo. L. Bell, SnOge.
-Action by E^braim StollSos against tbe
Soutbem Railway Company. Judgment for
defendant, and idalnUff brings error. At-
flnned.
A. H. Davis, of Atlanta, for plaltitifr in
error. McDanlel ft Black and Edgar A
Neely, all of Atlanta, for defendant In error.
LUMPKIN, J. 11] L The plaintUT claim-
ed that, while in the service of tbe defeid-
ant, be bad been bnrt by reason of a sudden,
negligent Jerk given to what was called **a
transfer car," which he waa in tbe act of
leaving. The defendant oontraided that tben
was no such Jerk, but that tbe injury oc-
curred reason ct tbe careless manner in
which the plalnUff stepped from the car. A
witness was introduced by the plalntlfl, and
testlfled as to the manner in whl^ the
transfer car was being operated, and On
occurrence <a tbe jerk when the plataittfl
waa injured. To Impeach this witness, the
defendant offwed In erldanee a wiittoi
statement wtdch had bean made by an-
other person, who was working with the
plaintiff when he was injured, togetbw with
a writing signed It the wltnasa for the
plaintifr, entered on the same paper as the
BtatemtfU above menttwed, and adx^tlDK it,
ezc^ In certain specified particulars. It
conflicted with' his testimony. When this
paper was offered, objecticm Vas made to It;
but upon the explanation of ooonsel for the
defendant that tbe paper was not offered as
the statement of the person who first signed
It, but as the statemoit ttf tbe wltneM who
b&A testified for tlie i^lntlif, counsel for
plaintiff said: "For that purpose I think
it Is admissible. I object to any statement
made by any other person In that paper."
The statement waa thereupon admitted. Er-
ror was assigned because the court did not
give Instructions to the jury, limiting them
to considering the statement in so far as It
might tend to impeach or contradict tbe oral
testimony of the witness, and in his charge
gave DO Instruction to that effect One
ground of the motion for a new trial waa
based on this alleged error.
*Ito athsr esses ssa ssau topla sad ssetlen NUHBBR la Ds*. Sic * Am. Dig. XsyfK^igstMf
422
78 SOUTHEASTURN REPORTBS
It lias frequently been held by this coart
that, If evidence Is admissible for any par-
pose, the tact that It Is not admissible for all
purposes fnmlBhes no ground for its ezcla-
fllon. Nngent t. Watklns, 129 Ga. 382, 58 3.
BL 888; McCommons t. Williams, 131 Ga.
313, 319, 62 S. Q. 2^; Becker r. Donaldson,
133 Ga. 864. 67 S. K. 92. Where there Is
conflicting evidence as to the lasne In a case,
and certain evidence Is also admitted for
the purpose of Impeaching a witness, it has
been held not to be error requiring a rever-
sal for the court to omit to charge on the
subject of imi>eachment Brown t. McBrlde,
129 Ga. 02 (7), 68 S. SL 702. Under such
drcumstances, where statements of a wit-
ness, not a party, made out of court, were
Introduced to Impeach such witness. It has
also been held not to require a reversal if
the court omits to charge that the impeach-
ing evidence should be considered by the Jury
solely for that purpose, and not as direct
proof, in the absence of a request for that
purpose. Long v. Stete, 127 Ga. 860 (4), 66
S. E. 444.
The cases relied on by counsel for plalntUI
in error to support the contrary contention
are not in conflict with the decision last
cited, when considered In connection with
the facts involved. In Watts v. Starr, m
Oa. 392. 12 S. B. 685, U was held that,
though declarations made out of court by a
witness (not a party to the case, or one whose
admissions could affect the parties) may be
used to Impeach such witness, they cannot be
treated as substantive evidence to establish
the facts which they affirm, and a charge of
the court so treating them, whether express-
ly or by necessary implication, is erroneous,
and that mxtb a charge is vidona, as based
on an assumed state of fftcts, where this
daie of declaration Is the only evidence to
whldi it oonld apply. In Geutral Railroad
A Banking Co. r. Ualtaby, 90 Ga. 630 (4), 16
S. B. 993, a Bimllar roUng was mad& In
each of those cases there was no evidence as
to a material fact, TOdees the statements of
a witness made out of court, and which
were admlssiUe solely for the purpose of
impeaching such witness, could be consid-
ered as direct proof of the tact There was
therefore no legal evidence of the fact in
question, and it was error for the court to
charge the jury on the assumption that
there was such legal evidence, or in a man-
ner to lead them to believe that this evi-
dence, which was admitted solely for the
purpose of Impeachment, should be consid-
ered by them as afnrmatlve proof of tbe
fact In controversy. It will be readily seen
that this la a very different proposition from
holding as a general, rule that an omission
on the part of the Judge to charge as to
certain evidence admitted for purposes of
impeachment, and the extent to which the
Jury could consider 1^ will require a rever- 1
sal, In liie absence of a request fur that pur-
pose.
In the case before us the defendant Intro-
duced evidence to show that there was no
Jerk, and no such negligence on its part as
the plaintiff allied. In addition to that,
it Introduced a written statement, made out
of court by a witness who had testlfled on
behalf of the plaintiff, conflicting with some
of his testimony. The charge of the Jadge
did not direct the Jury to confdder the state-
ment of the witness out of court as being
direct proof of the snbetanttre t&ct in is-
sue, nor was It so expressed as to lead the
Jury to believe that they should so consider
It, as in the cases above (tod. Gounael for
the plaintiff at no time requested the court
to Instruct tbe Jury aa to the extent to whidi
th^ could consider the Impeaching evidence.
In Jones t. Harrell, 110 Ga. 373. 85 S. E.
600; it waa said that, where a witness de-
nied making certain declarations, evidence
tending to show that be did make them
was admissible, not for the purpose of ee-
tabllahii^ the fact to which ttuy related,
but only to contradict him, "and tbe trial
Judge should so inatmct the Jury.** On tam-
ing to that part of the oi^nion deaUi^ with
this subject aiO Oa. 381, 85 8. B. 690), it
ajq;>ears that a witness was asked If he bad
not told cortain persons that he was the
agent of his wlf^ and denied having done
so. A witness was later Introduced to show
that he had so steted. Objection was made
to this evidence. The objection was over-
ruled, and the evidence was admitted for
the purpose of contradicting the witnees;
"the Judge remarking at the time that he
would charge the Jury as to the effect of it"
This, however, he failed to do, and such
failure was held to be error, which might
have affected the finding, as the existence of
the agency was a material fact In the case.
It will be seen that the iwlnt as to tbe limita-
tion upon tbe jury in considering this testi-
mony was brought to the attention of the
court, and that he recognized It, and stated
that he would give the Jury a proper instruc-
tion on the subject It was accordingly un-
necessary to further request that he should do
so. The objecting party no doubt relied upon
the statement of the court and therefore did
not make any request on the subject The
difference between that case and the one
under confederation is plain.
It is the better practice for the presiding
judge to instruct tbe jury as to the purpose
for which evidence admitted solely to im-
peach a witness, such as statements made
out of court conflicting with his testimony,
may be considered. But it cannot be laid
down as a general rule that an <Hnisslott to
do BO will necessitate a reversal.
[2] 2. A written statement having been ad-
mitted In evidence for the purpose of im-
peaching a witness, there was no error In^al-
towing the jury to [t||?ielty*t_ttȤ4e.
SMITH T. MURPHS^
42S
when they retired for the purpose ot con-
sidering the case Cotinsel objected to this
■on the ground that the paper had not been
Introduced In evidence; but, as he was In
error tn that position, the overruling of the
objection furnished no ground for a new
trlaL
(I] S. The evidence was conflicting, bnt
was 8ufl3clent to support the verdict, and
there was no error In overruling the motion
for a new trial.
Judgment affirmed. All the Justices con-
cur.
a« Ga. 71)
BAILEY T. FREEMAN.
(Supreme Court of Georgia. Ma? 16, 19ia)
(Svtlabut by the Court.)
ItHdTATioN OT Actions (i 180*)— Pludino
(S 34") — CoNSTBDcnon— Deuubbkb.
This case la aubstantiall? controlled hy
the decision! In Bennett v. Bird, 76 S. E. 568
(November 18, 1912), and Spence v. Queen,
77 S. E. 820 (March 1, 1913). The demands
songht to be asserted were barred by the stat-
ute of limitations; and, where not expressly
BO appearing, the pleadings must be construed
most strongly agouist the pleader. While the
word "fraud was freely used, no soch facts
were alleged as showed fraud preventing tbe
discovery of plaintiff's rights by the use of
the slightest diligence on her part, or the
bringing of suit by her within the statutory
period. There was accordingly no error in
dismissing tbe petition on demurrer aettins up
tbe bar of the statute.
[Ed. Note.— For other cases, see limitation
of Actions, Cent Dig. M 670-6?:^ 681; Dec
Dig. 1 180;* Pleading, Cent Dig. H 6%, 66-
74; Dec Dig. { 34.*r
Error from Superior Court, Lanrens Coun-
ty; K. J. Hawkins, Judge.
Action by fi^ma Bailey against B. B.
Freeman. Judgment for defendant, and
plaintiff brings error. Affirmed.
R. E]arl Camp, of Dublin, for plaintiff in
error. J. S. Adams, M. H. BlactEshear, and
R. D. Flynt, all of Dnblin, for defendant In
error.
LUMPKIN, J. Judgment affirmed. AU
the Justices otmcnr.
(146 Ga. 7D>
FOUNTAIN r, HAQAN OAS ENOINB *
MFG. GO.
(Supreme Oourt of Georgta. May 16, 1018.)
(BvUabttt bjf the Court.)
1. Etidbncb (S 450*)— Saus (I 279*)— Pa-
BOI. GOHTRAOT Of BAUB — OOHSnUOTIOll —
"BUCOTEIO OtJTHT."
The defeiiaant sold to the plaintiff, un-
der a written contract, an engine, pump, tank,
"electric outfit" certam piping, and a grinder
and bbUer. In the contract It was provided
that "the material and workmanship of the
above is guaranteed to be good, and the en-
gine, when installed and run according to your
hhi seller's] Instmctions, shall develop the
horse power named above. This guaranty Is
good for six months, bot dees not appfy to
batteries." The purchaser afterward sued Ote
seller, alleging that tbe latter bad sold to him
a storage battery, claiming that it had a ca-
pacity of 15 lights for 3 hours, and that tbe
plaintiff paid therefor; that after tbe battery
was put to work it was found that it only bad
a capacity of 6 lights for 8 hours. Tti» plain-
ti£E accordingly brought salt for damages, on
the ground that the property was not of the
character which be bought Beld, that tbe ex-
pression **electric outfit" as used In the writ-
ten contract was ambiguous, and was subject
to explanation by parol. It was accordingly
error to reject parol testimony offered for the
purpose of showing what the parties to the
contract Included in that expression.
(a) Tbe statement that the guaranty of the
engine was good for six months, but did not
apply to batteries, merely exduded the sppll-
cation of the six-months ^aranty from apply-
ing to the batteries, and did not mean that the
seller could install different batteries from
those which he contracted to sell.
[Ed. Note. — For other cases, see Evidence,
Cent Dig. li 2060-2082, 2084: Dee. Dig, t
450;* Sales, Cent Dig, » 78^792; DecDlg.
S 279.*]
2. Affeal aitd Ebbob (| 843*)— Disposmo]*
or Oattbb— DiBEcnoK of Vbbdict— Exclu
Bion or EvTdkncb.
Having ruled out evidence, wbldi was ad-
missible and material, offered on behalf of the
plaintiff, it was error to direct a venUct
against him.
(a) Inasmuch as the court rejected material
evidence, which was essential to the proof »f
the case by the plaintiff. It Is not decided
whether a prima facie case would have been
made, bad the plaintiff been allowed to in-
troduce all legitimate evidence, or whethei
it would have been subject to a motion for
nonsuit
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. |i 2990, 8011; Dec. Dig. {
843.*]
Error from Superior Court, Taylor Coun-
ty; a P. Gilbert, Judge.
Action by T. J. Fountain against the Ha-
gan Gas En^e & Manufacturing Company.
Judgment for def^dant, and vlalntUf brings
error. Berersed.
O. W. Foy, of Butler, and Jere M. Moore,
of Montezuma, for plaintiff in error. Car-
son & McCutchen, ot Columbus, tar defend-
ant In error.
LUMPKIN, J.
luBttcea concur.
Judgment rerersed. AHflie
a4» Ga.<0)
SMITH T. MDRPHBT.
(Supreme Court of Georgia. May 10, 1018.)
(Svtlaiua (y the Court,)
ExECTTTiON (j 171*)--lNJUNcnoiT— Grounds.
An equity petition does not lie to enjoin
{iroceedings under a levy, where tbe defendant
Q execution has a complete and adeqoate rem-
edy by iUegality. or where the defendant's
homestead rights In the property levied on may
be as completely asserted In a statutory claim.
[Ed. Note.— For other cases, see Execution,
Cent Dig. H 497-518; Dec. Dig. { 171.*]
Error from Superior Court, Floyd County;
John W. Maddox, Judge.
*War otbsr eases see issit topic and ssetlon NUHBBK Ui Dso. Dig. A An.
424
78 SOtJTHBASTBBM BBFORTBR
fiolt by H- U- Murphy against J. M.
Smith. Jadgmoit for plaintiff, and defend-
ant brlncB error. Bereraed.
M. B. EnbankB, of Some, for plaintiff In
mot. Jobn W. Bilfl^ ot Borne, for deCend-
ut In error.
nVANS, p. J. A fi. fa. IsBnlng on a jndg-
loent obtoiqed by John' H. Smith against
IRiry Miller and Rosa Hillor was lerled on
a lot of land as the 'property tit Mary MUler
(now Mary BCnzpfaegr), and she sought to en-
Join Us farther prognress. The grovnds as-
signed for equitftble Interfetenca were: That
she alone was served with process in the
snlt (a return of n<m est inventiis having
been made as to tiie other d^mdant); that
her cDdefendant has died, and that by virtue
of ttte deed nnder whlidi she hf^da the land
the Interest of her codefukdant upon her
death vested In petitioner; that she has
bem dlschai^ed in bankruptcy from the debt
sought to be Qiforced; and that the land
levied on was duly set apart to her* over the
creditor's objection, as an exemption by the
bankrupt court
If the Judgment debt of the moving cred-
itor has been discharged in bankruptcy, this
defense can be met by affidavit of Illegality.
Monroe v. Security Mutual Life Insurance
Co., m Ga. 560, 56 S. E. 764. The moving
creditor contends that the debtor's discharge
in bankruptcy did not affect his Judgment,
which was a foreclosure of a materialman's
lien on the land; that, though his Judgm^t
was obtained within four months of the ad-
judication of bankrui>tcy, nevertheless the
materials were furnished and his claim of
lien recorded more than four months before
the adjudication. To this contention the
petitioner replies that a debt for materials
furnished for the Improvement of properly
subsequently set apart as a homestead, when
reduced to Judgment, wUl not subject the
homestead estate (Wilder v. Frederick, 67
Oa. 669) ; that an exemption set apart by
the bankrupt court Is no more subject to be
levied on than if the exemption liad been al-
lowed as a homestead by the ordinary of
the county (Ross v. Worsham, 66 Oa. 624;
Bvans v. RounsavUle, 115 Oa. 684, 42 8. S.
100); and that, moreover, it had been adju-
dicated by the United States court that the
exempted property was not subject to the
creditor's Judgment Evoi if the exemption
the land from levy and sale could not be
set up by illegality, it certainly could be as-
serted by a statutory claim. Brantley t.
Stephens, 77 Oa. 467.
The rule is that equity will not entertain
a petition to enjoin the levy of a fl. t&.. If
the defendant has a full and adequate legal
remedy. Booth v. Mohr, 122 Oa. 333, 60 S.
B. 173; Hitchcock v. Culver, 107 Oa. 184,
38 S. B. 35. It was therefore erroneous to
grant an interlocutory injunction restraining
the creditor from further prooeedtng wiOi
the levy of his execution.
Judi^nent revetsed. AH the Justices con-
cur.
(U Oa. App. m)
LIXAM et aL v. ANDICRSON (two cases).
(Nos. 4,450, 4,615.)
(Court of Appeals of Georgia. Hay 20, IBIS.
Behearing Denied June 10, 1913.)
(BvUahua fty the Court.)
L PLUDxNa (I 20B*) — FRxnon — Svm-
OIENCT.
The demurrer to the pstltitm, was without
merit
[Ed. Note.— For etiier cuhs, see Pleading
Oent^D^I^ 491-403, 486^ 480, 48&-OI0; Dee.
2. Bills Ann Nom Q 128*)— PmuTOn Ao>
HON— Waivse.
Where a note ctntalns a condidon that a
tailnre to pay any installment of Interest when
due clTes to the holder thereof the rUht, at hb
election, to declare the note due ana payable
the acceptance of a payment on the principal of
the note before du note Is due does not without
an agreement to that effect prevent the header
from subeeqnently ezexcislDx the option above
stated.
(Ed. Note.— Vor othw caaeo, see BlUs and
Notes, Cent Dig. H 283-^; Dml Dig. |
129.*]
8. BzLU AHn NoTBB a 126*)— CojTSTBUonoir
— Attobnit Fn.
Where a note provides for the payment of
10 per cent on principal and Interest as attor^
ney a fees In the event the note is placed fn the
hands of an attorns for collection, on giving
the statutory notice the pl&lntlff would have the
right to recover this amount as attorney's fees,
althoa^ the note bad not matured by lapse of
time, but bad been declared due by the plaiudfE,
according to Its terms, on Callnie to pay an In*
stallment of interest when due.
[Ed. Note— Fm- other cases, see Bills and
Notes, Cent Dig. H 372, 2^; Dee. Dig. |
126.*/
4. PLKADINO ($S 205. 223*)- DEHUBBEn-JCDG-
lanr— GoNSTHUonoiT— PiXA in Abatkmbnt
— SuvnouncT.
When a plea In abatement is demurred to
on both general and special grounds, and the
trial court renders a judgment thereon to the
following language : "This demurrer Is sustain-
ed and the plea in abatement is stricken"— this
judgment wiU be conBtmed as applicabie only
to the questions faised hj the general demurrer,
and the questions raised by the special demur-
rer will be regarded as not adjudicated. The
allegations of the plea in abatement setting up
that the plaintiff had made an agreement witn
defendant, in cimMeration of the payment by
them of foOO on the note before the same wa>
due, to waive the condition of tihe note giving
the right at the ejection of the holder to declare
the note matured upon a failure to pay auy
Installment of Interest when doe, were sum-
dent to wtthstmnd a general demurrer.
- [Ed. Note.— For other cases, see Pleading,
Cent Dig. H 401-403. 486. 404^ 408-SlO. 068;
Dee. Dig:iraOS,223.<]
6. Bills and Notes (S 136*)— Constructioii
—Conflict Bbtwebn Note and Dkeu.
A condition in a promissory note that, In
the eveot any of the *interest coupons, or any
part thereof, remain unpaid for the space «
tliirty days after the same shall have become
due and payable, then the entire principal, with
•ror ettaar esses some topis and awiUoB NUlteBB m Deo. Dig. * Am. Dig. K4F>^ttM«ri^^^
I.INAH T. ANDEBSON
426
all arreara^ of intereat, shall immediately In-
come due and collectible, at tbc option of the
bolder of this note," and a condition In a deed
given to secure tbe payment of tbe note tlMt 'if
any of aaid interest coopooa ahotild not be
promptly paid at its maturity, or should any
tax or asBeBstnent accniinc agalnat said prop-
er^ become d^inquent or liable to have execu-
tiMi laancd therefor, tbeo and in either of said
events aaid principal note, together with all
arrearages of interest thereon, snail at once be-
come due and collectible at tbe option of tbe
bolder thereof," are not in conflict. But even
if ao, the condition of tbe note would prevail,
and in t;he present case the principal note was
declared due and collectible under the condition
above referred to as set oat in tbe note.
[Ed. Note.— For other cases, see Bills and
Notes, Cent Dig. | 3S2; Dec Dig. I 186.*]
6. FLEADIIfO (I 1M*>— DkMVBBIS TO AnSWBB.
The all^tioua made by the answer were
wb<^ irrelevant and immAterial, setting forth
no defense whatever to tbe suit on the note, and
therefore the answer was propexlj stricken <m
demurrer.
[Ed. Note.— roT other casea, see Pleading,
CenL Dig. U 444, 44S, 446. 440-403; Dec. Dig.
I 1»4.*J
7. JUDOUKIfT (I 25S*)— GORFDUUTT TO FUAD-
UTO—AHounr Dkhahokd.
Tbe evidence demanded the verdict at di-
rected ; and the judgment entered thereon, both
in form and subetanoe, was in acoordanee with
the pleading and the proof.
[£d. Note.— For oth« cases, sea Jtidgmant,
Gent. Dig. M 443, 444; DeeT^. f 2B8?T
rAdWMoMl SyllabM hy BittoTial Btuff.)
8. Abateimnt akd Setxtal (J 81*)— TncB of
FiLINO.
A plea ia aliatemenC alleging that the snit
was prematurdy brought, being a dilatory plea,
was too late when not filed onol after the lapse
of three terms.-
(Ed. Note.— For other eases, see Abatement
and Revival. Cent Dig. i| 10,22, IVhin* 2^
499-504, 606 ; Dec I>Ig. | 8L«]
9. PATVEIfT (I Q0*>— PLBASinO.
A ptea 91 payment, which falls to allege
when, how, and to whom ' payment was made is
demurrable.
[Ed. Note.— For otbet cases, see Payment;
Gent. Dig, H 144-148; Deo. Dig. t 60.*]
Bnasell, 3^ diaseiUlni In ease Mo. ^lOB.
Error from Cdty Court of Atlanta ; B. M.
Beld, Judge.
Two actions by Laura D. Anderson a^ftlnat
O. W. Liuam and others. Judgments for
plaintiff, and defendants brlns error. Re-
versed In part, and affirmed in part, with
directlona
T. O. Hatheock and 3. BL OoUghtly, both
of Atlanta, for plalntllfs in error. Moore A
Fomenty* W. W. Hood, and B. Jona^ all
of Atlanta, tot dafandant In wmr.
HIIX. <1 3. Tbfs was a ndt 'brought toj
Mn. Laora D. AndenNnt agaliut tbe defeoil-
ants a« makers of a prondasory note ; It be-
ing alleged in tbe petition that the defend-
ants were indited to tbe petitioner on aald
note In tbe principal aom oi HOJKM), tbat the
erlglDal prlndpal sam of tbe note was fbr
bat Oiat defendanta had paid $500
of the principal, v^bUh pa^nent was credited
on the note, leaving the balance ot the prin-
cipal due fUMSOa It was also alleged tbat
the defendants were Indebted to the petition-
er In the sum of $420 as Interest on said
principal sum iq> to Febroair S8, 1912 ; that
defoidants had ucecated and d^Tered to
petitioner interest coopon notes rcgiresentlng
tbe Interest to be earned upon the principal
note ; that the coupon note tor $^ sued on
was originally for the sum of $440, but tbat
the payment of $600 on the principal bad re-
dnced the interest represented by this coupon
note to tbe sum of $420. The principal note
with tbe conpon note are made a part of the
petition. It Is also aU^i^ that, according
to the note and the deed to certain real es-
tate therein described, which was given to
secure the payment of the note, and the In-
terest coupons, time was of the essence of
the contract, and that a failure to pay any
of the Interest conpon notes when due, or to
pay the taxes when doe on the real estate
described In the security deed, would result
In tbe holder of tbe note having the option
of declaring tbe whole principal due, and
that tbe defendants had failed to pay the
Interest conpon note maturing February 23,
1912, and had likewise failed to pay tbe state,
and county taxes on tbe property described
in the securit7 deed referred to, for which
reascuis the- principal note became due and
was payable ; and therefore suit la brought to
recover the prindiial and the coupon note
due February 23, 1012, and also 10 per
cent of tbe principal and Interest as attor-
ney's fees, under the stipulation of the note
and the deed alleging that tbe statutory no-
tice bad been duly given as to attorney'a
fees. A demnrrer was filed to tbe suit, whidi
being overruled, exceptions poidentq lite
were preserved. . Defendants also filed what
was called- a plea In abatement. This plea
In abatement was demurred to generally and
UpedaUy. Tbe trial Judge sostalned the de-
murrer and struck tbe plea* and this jods-
meat was excepted ta The rulings in the
lower court on the demnrrer and on tbe plea
in abatement were brgugbt to this court by
direct bill of exceptions. BnbseaaentlT tb»
case was reached for trial on the merits la
the lower court A motlao was made t»
strike the answer, and (Oiere being no otEsr
to Amend after time had been allowed for
amendment) the motion was sustained and
tbe answer striken; and thereq^n a wdtet
was allowed against tbe deflsndanta and ia
favmr of the idalntUi; and Judgment entered
according tat the varloos smns sned tat.
To the Judgment striking the answer and te
the final Judgment ottered in the case, a
writ of error was sued ont to this eoort
Both cases are here now for review, and
will be considered together.
We will aideavor to take np the questlOBS
raised by both records end decide them -la
> see earns tspts ap4 seeUon HUMBSR la Owi. Dig. 4 fsou pIs. K«rn>i|§,M^9yA£f^ (9^1c
426
78 SOUTHOASTBHN BSFOBTBB
th« order In whlcb tbey were made In the
court below.
[1] First, a« to the demorrer. The first
srouDd of the demurrer Is that the petition
sets forth no cause of action. This being a
plain snlt on a promissory note, and coDtaln-
Ing all the allegations essential tn such a
snlt with copies of the note and of the se-
curity deed (a part of the same contract) at-
tached to the petition as exhibits, it Is man-
ifest that this ground ot the demurrer Is
without merit.
[2] The second ground of the demurrer Is
that there was a change In the contract he-
cause $500 had been paid on the prlndpal
of the note; In other words, that the pay-
ment of the $500 on the principal changed
the original contract to the extent of elimi-
nating therefrom the right to declare the
principal due on a failure to pay any of the
coupon notes when due. This ground of the
demurrer is manifestly without merit. We
fall absolutely to understand why, as a mat-
ter of law, payment of any part of a note
before due, by mutual consent of the parties
thereto, in any manner affects or alters the
terms of the original note or the character
of the contract The only effect such pay-
ment could have would be simply to reduce
the principal of the note In accordance with
payment made thereon ; and In the present
case the imyment of $500 reduced the princi-
pal of the note from $11,000 to $10,600 and
also necessarily reduced in proportion tbe
amount of the outstanding coupon notea
The third ground of the demurrer Is that
the Interest coupon due February, 1911, has
been paid, and no Judgment Is prayed against
defoidants on aaid conpon note. We do not
see the relevancy or materiality of this
ground of the demurrer. It is true that the
coupon note due February, 1011, had been
paid, and therefore no judgment Is asked for
as to this, bnt why this fact should furnish
any reason in law why the plalntUT would
not bare the right to declare the principal
due npMi the failure to pay a snbsequent
coupon note according to the contract is not
apparoit
[3] Tbe fourth ground of the demurrer Is
tliat attorney's fees are recoverable only
where the defendants fail to pay the note at
maturity, and that the condition of the con-
tract relating to the failure to pay interest
represented by the coupon notes in giving
the option to declare, for soeh follnre, the
principal amount of the note to be due,
would not auttaorlEe the recovery of attor-
n^'s fees, bat tliat such failure would only
authorize the recovery of the principal and
arrearages of interest The note expressly
provides : **It this note Is not paid at maturi-
17, and la put Into the hands of a lawyer for
collection, we severally and jointly agree to
pay ten per cent on principal and Interest
as attorney's fees." Undw this clause of
tbe contract, upon giving the statutory no-
tlce^ the plaintllt woold have a xlght to re-
cover attorney's feee, whether tbe note abb-
tured by lapse of time or bj election of t3ie
plaintiff to declare it matured by fitUore to-
pay the interest as therein provided. In
ther event, if the plaintiff was con^Ied to-
bring suit to recover the amount ct the note
and interest, she would be oitltled to at-
torney's fees. In other words, tbe right
to recover attorney's fees depoided entirety
upon a ftillure to pay tbe note at matori^,
whether that maturity was by lapse of time-
or at the election of the bolder of tbe note,
according to its terms. We therefore con-
clude that there was no error In ovwmllng^
the demurrer^
[4] The plea In abatement te based vpon
the Idea that the suit was brought prana*
turely. It being alleged: That "the plaintiff
in this case has waived her right to sue on
the note before maturity in this : that ahe did
agree, on the 9th day of October, 1911, to re-
ceive, and did receive, not only $440 and in-
terest, the interest coupon note then due,
but she received from these defendants $50&
in cash, which sum paid the lnt««st on said
note for over six months, and paid the in-
terest due on February 23, 1912; and, hav-
ing agreed with these def^dants to waive
the original condition of the note, and recdv-
Ing the money In advance, she cannot now
sue and recov» on the note before its ma-
turity, and she cannot recover especially on.
this note for the reason that all interest was
duly paid October 0, 1911, and not only the
interest paid to maturity, but $500 was paid
on the note 4% months before the coupon tn*
terest note due February 23, 1912, became
due, and because the plaintiff knew at the
time these payments were made that they,
the defendants, so believed, that no suit
would be filed on this note until its final
maturity, and this they did believe, and she
knew they did believe it, and, acting on
this belief, she accepted this snm of $600.
and she did not intend, at the time she ac-
c^ted the $500, to ev^ sue on the note be-
fore its maturity, and she did not at that
time intend to claim a right to sue on the
note by reason of the failure to pay the ad-
diUonal $440 on February 23, 1912." Gen-
eral and special demurrers were filed to the
plea In abatement, and the trial judge pass-
ed an order thereon In the following lan-
guage:- "This demurrer is sustained, and
the plea In abatem^t la strldcoL" It Is
inferable from this order that only the ques-
tions raised by the general demurrer were
decided. Simpson v. Sanders, 130 Oa. 271,
60 S. E. 541. Placing this constructltm upon
the order, a majority of the court is of tbe
opiolon that the striking of the plea In
abatement was erroneous, that the allega-
tion therein made that. In consideration of
tbe payment by defendants of the sum of
$500 on the note before the same was due
(whether this payment was to be ai^Ued
on the principal or In paymmt of the cou-
pon note to become «|$tl^M^i«SI<^0^^
Ga.)
UK AM T. ANDKRSOK
427
the plaintiff agreed to waive her right to
declare the whole note matured upon a fail-
ure to pay any sabseqaent installment of In-
t^st when doe was snffldent as against a
general demurrer. The writer does not con-
mr In this opinion. He thinks that the
allegations are wholly Insufficient to show
any agreement, express or implied, to waive
this condition of the note, and that the judg*
ment dismissing the plea in abatement was
correct It may be that the trial judge dla-
mlssed the plea in abatement upon a con-
sideration of all the questions raised by the
demurrers, special and general. But In view
of the general language of his order, and the
absence of any evidence of an opportunity
to amend, this court, following the decision
In the Simpson Case, supra, must conclude
tliat be struck the plea on general demurrer,
and did not consider the questions raised by
the special demurrers. This being true, we
have no Jurisdiction to pass upon these ques-
tions, and leave them for the determination
of the trial court
[t] The next ground of the plea, in abate-
ment Is that: "The conditions In the note
and the one set out in the deed are repug-
nant to each other, and there Is no expressed
condition in the entire contract making the
note suable before maturity. The note and
the security deed together not stating that a
default in payment of interest or taxes would
authorize a suit thereon — one stating that
a suit might be brought at once, and the
other in SO days, and as they are In conflict
with each other, these conditions In the note
and deed are void, and will not anthorize a
salt before the maturity of the notd.** If
there were any conflict In the conditions re-
lating to this subject, the condition recited
In the note would govern, for the ifflnel^le
is that where a deed la glvm to secure the
payment ot a note or bond, the two tauttnt-
mrats being made at the same time, they are
to be read and ccmstmed blether as parts of
the same transaction, and b«Dce the terms
of the one may explain or modify the terms
of the other, and a stipulation of eondltlon
Inserted In the one Is an effeetiTe part of
the oontract of the parties, althoiu^ not
found In ttie other, provided there Is no nec-
essary inconsistency; but In respect to the
terms of the debt Interest, or the time
for Its payment, If the note and mortgage
contain omfllctlng iHrovIslons, the note will
govern, as being the principal obligation. 27
Gje. 1185. We do not think, however, that
tl^we Is any necessary conflict between the
terms of the note In this case and the terms
of On deed made to secure the paymmt of
the lufte. If tbe defendants sustain by proof
the allegation of the plea In abatemrait, re-
lating to the waiver of the plaintiff of the
condition of the note, this would result In a
dismissal of the suit because prmnaturely
bronght If the plea la not sostalned, the
dlspooltlon made of the case b7 the trial
court on the merits, and the Judgment ot this
court on the questions raised In that record*
should end the litigation. We wUl now con-
sider and decide these questions.
[I] First, the court disallowed an amend-
ment to the plea which alleged. In substanco^
that the suit was begun prematurely. In that
the coup(Hi note for M20, claimed as Intw^
est, and doe February 28, 1912, on default
of payment of tritlch the principal had been
declared dos^ had In fact hem paid beft»r»
the notloe was served, and that thwe was
no Interest due on the note at the time same
was sued on, and that the defendants were
not ddlnqnent in the payment of taxes or
Interest, as all^d In Repetition. The mat*
ter of this amendment related to a plea in
abatanent; and should have been made a
part of that idea irtien the same was before
the court on demurrer. It was a dilatory
plea which went, not to deftet the right of
the plaintiff to recover, but merely to the
right of the plaintiff to file sntt at tiie time
she did, and this plea should have been filed
at the first term. It was not filed at the first
term, but after a lapse of some three terms,
and therefore It was too late. Realty Go. v.
ElUs, 4 Oa. App. 402, 61 8. O. 882; Jcdinson
V. Dodge Mfg. Co., 7 Ga. App. 231, 06 8. BL S48;
Kilcrease v. Johnson. 86 Oa. 600^ 11 8. SL
8T0.
[I] Considered as a plea to the effect that
the Interest had been paid, as well as the
taxes, the allegations are too vague and in-
definite, and it was Incumbent upon the
pleader to relate when, how, to whom, and
by whom the payment was made. Thomas
V. Slesel, 2 Ga. App. 663, 68 8. BL 1131. A
plea which falls to allege wben, how, and
to whom payment was made is properly
stricken on demurrer. Wortham v. Sinclair,
98 Ga. ITS, 25 S. E. 414.
[«] The writ of error further challenges .
the correctness of the striking of the defend-
ants' answer on demurrer. This answer is
quite voluminous, and the demurrer thereto
is even more so. We have examined the
answer and the demurrer very carefully,
and we have come to the conclusion that the
answer set up no defense, that the averments
thereof are wholly irrelevant and Immate-
rial, and that there Is no error In the Judg-
ment striking the answer. The answer was
clearly amUguous, uncertain, evadv^ Irrele-
vant, and Immaterial, going largely into
transactions which had no pertlnmcy to the
suit on the note, or any dirfeuse thereto;
and for these reasMia the court did right In
striking it A. C. L. R. Co. v. Hart Lumber
Co.. 2 Ga. App. 88, 68 8. B. 816; Brlnson r.
Blrge. 102 Ga. 802, SO 8. B. 261. ;
[7] Error is next assigned upon the Judg-
ment, because It is said that the Jud^ent
Is for $10,920 principal, while the amount of
the principal alleged In tiie petltliHi was <mly
flO,600L It will be seen, by reference to the
petition, Qiflt the salt is fbr a principal note
wblfih WAS oliglnally tax 111.000^ but that
Digitized by VjOOglC
42»
78 BOtTTHEASTBiRII BBtPOKTEE
a pftyment of $600 bad been made on tbts
principal, which reduced It to fl0,500, for
which salt was bronght; that In addition to
this, snlt iB also brought upon a coupon note
ot the denomination of $440. This note
nads: "On the 23d day of February, 1913,
we, jointly and severally, promise to pay to
0ie order of Lanrle D. Anderson, four hun-
dred and forty dollars, at Atlanta, Georgia,
Mth interest at the rate of eight per cent,
per annum after maturity," etc. The amount
of this coupon note was reduced, by the
payment of the $500 on the principal, to the
$420 which was sued for. It follows, there-
fore, that the plaintiff claimed the principal
of $10,500, which had matured, and which bore
interest from February 23, 1912, and like-
wise claimed the amount of the coupon note
of $420; which matored on the same day,
also bearing interest from that date at 8 per
cent per annum, or a mm total of $10^20,
upon whidi principal sum the plaintiff was
entitled to future interest at 8 per coit. per
annum. It la wholly immaterial whether
the sum represented by the $420 coupon note
be called principal or interest It Is all the
same to the defendanto whether called prin-
cipal or interest We think, under these
tacts, that the verdict and Judgment in faror
of the plaintiff was correct Union Savings
Bank v. Dottenheim, 107 Oa. 606, 614, 84
S. E. 217; Smith v. Champion, 102 Ga. 92,
29 8. B. 16a In view of the fact, however,
that the Judgment striking the plea In abate-
ment is reversed, the affirmance ttt the Jndg
ment striking tiie answer and directing a
verdict and uttering np Judgment for the
lilalntlff will not be effective or made the
Judgment of the court below, unless the de-
fendants faU to prove the allegattona of the
pin In abatement If the plea in abatement
iB sustained, the suit will be dismissed as
having been prematurdy brought; if the idea
In abatement is not sustained, then the Judg-
ment of affirmance in striking the answer
and directing a verdict ft>r the plaintiff will
be made the Judgment of the trial court
Judgm«3t reversed Sn part, and affirmed In
part, with directions.
RUSSELL, J. (dissenting). This conrt con-
sidered together the two writs of error in
the same case. Id the first bill of exceptions
error was assigned upon the ruUng on the
plea Id abatement After the trial Judge
had stricken the plea In abatement the case
proceeded to trial, and the. trial resulted
in .a Judgment In favor of the plaintiff, and
the defendants aied their bill of exceptions,
complaining, among other things, of the over-
ruling of th^ motion for new trial. A ma-
jority of this court is of the opinion that
the Judge erred In striking the plea in abate-
ment, and I concur In this Judgment Tbla
ruling disposes of the first of the write of
error. 1 cannot agree to the condlttonal
Judgment of affirmance rendered upon the
second writ of error. I think It perfectly
well settled that since the trial court erred
in striking the plea in abatement all aub-
sequent proceedings In the trial were nuga-
tory, and that the second bill of exceptions
should be dismissed as having been prema-
turely brought In my opinion, nothing Is
better settled than that where a plea In
abatement which would entirely bar a re-
covery has been filed, the issue therein rais-
ed must be legally determined before there
can be an adjudication upon the merits of
the case, unless, under the peculiar clrcum-
stences of the particular case, the plea in
bar and the issue upon the merite can legally
be tried together.
In a case such as the one before us this
court cannot know what would have been
the result if the issue formed by the plea
in abatement had been tried. If upon the
plea in abatement the defendante bad pre-
vailed, the result would have been that the
suit would have ended. Since we cannot
know what the result may be in the hearing
which we now order upon Uie plea In abate-
ment we should not In my opinion, pr^
Judge, and perhaps prejudice, the righto of
the plaintiffs in error In the aecond bill oC
exceptions, by denying to them what I coin
alder they were legally entitled to— a trial
upon the merits, after a legal adjudication
upon the plea, which we bold ahonid have
been mbmitted to a Jury.
(U Ga. App. 80B)
SMITH V. CITY OF ATLANTA (No. 4,846.)
(OouTt of Appeals of Georgia. June 10. 1919J
(SyUahiu fke CourtJ
StrmoiKifCT or Bvxnxiroe.
No error of law Is complained of, and the
evidence authorised tibe Ju^nnent of conviction.
It was therefore not error to overrule the cer-
tiorari.
Slrror from Superior Oouit; Tnlton Ooun-
ty; Gea L. Bell. Judge.
W. O. Smith was convicted of an offense^
and from denial of esraorari he brings error.'
Affirmed.
John T. Smith, of Atlanta, for plaintiff In
error. J. L. Mayson and W. D. Ellis. Jr«
both of AfUmta, for defendant in ernn.
POTTLJB, J, Judgment affirmed
(U CMl App. To)
HOLUIB£AN f . OBOBOIA & ft F. RT. CO.
(No. 4,719.)
(Ooart «f : Appeals of Georgia. June 10;
fSyltabut by thv Court.)
Cabbikbs (I 320*)— Injubt to pAasEnaxn^
BVIDENCB.
A passenger was unable , to obtain a teat
On a oar on account oC its crowded oondltiott.
•Pbr«tlMr«aMS *• mu tt^a ftoA NotUn NUIfBBB iii Dm. tilg. 4 Am. Dig. SwIm A B»'e jmluw >
Digitized by
MCGAIX T. OALLOWAT
m
B« aak«d the conductor tor a soat, and the
coodnctor replied that there was no seat for
him. The car was so crowded that he conld
get only a "little piece" in the door. While he
was ataodiof near the door, which was open,
the car gave a sadden jerk, more severe than
the onSnary jerk and harder than, the ordi-
narr jerk, and by reason of the jerk he lost
his balance, and in endeavoring to regain it,
and to keep from falling outside the door, be
caught with his hand the fadng of the door,
which, by reason of the sadden jerk, slammed
against the fingers of his hsnd, causing the
iOjuries complained of. HOd, these facts rais-
ed a presumptioQ of negligence against the
company, ana in order to exculpate itself it
should show that the jerk which was the
proximate cause of Uie injury was ^ther in-
cident to the ordinary and usual operation of
the train, or was the necessary result of its
operation at the particular time. The ooort
erred in granting a nonsuit.
[Ed. Note.— For other cases, see Carriers,
Gent. Dig. « lUS, 1126, 1149, 1168, 1160.
1167, IITO, 1190, 1217, 1233, 1244, 1248, 1315-
1325; Dec. Dig. & 320.*]
Error from City Court of Macon; Bobt
Bodges, Judge.
Action by C. H HoUeman against the
Georgia Southern & Florida Railway Compa-
ny. Judgment for defoulant, and plaintiff
brings error. Beversed.
O. 0. Haneodtf of Ifteon, tor idalntiir tn
nror. J. B. Hal^ of Maoon, for defendant In
WTor.
HILLs a J. Jndcmrat reroMi
at Ga. App. 766)
DOUQLAS T. MOOB£. (No. 4,7210
(Court of Appeals of Georgia. -Jnna 10,
1»13.)
Btidbnok (I 265*)— ExxcunoN (| 194*)—
CuiK BT Thibd Pxbbon— ADMiasioM or
PossEsaiON— Effect— BuBOEN of Pboof—
SttFFICnSNCT OF EVIDENCE.
In a claim case, where the claimant ad-
mitted that at the tune of the levy the pos-
session of the personal property levied upon
was in the defendant in execution, she there-
by prima fade admitted title in the defend-
ant, for possession of personalty indicates ti-
tle thereto. By this admission the burden was
cast upon the claimant to overcome this pos-
sessory title, by showing that the title to the
property was in her before the judgment was
obtained, and waa still in her when the levy
was made. In the presetU case this burden
was successfully carried by the claimant, the
nndispoted evidence showing that the property
levied npon was bought and paid for by ber
before tne judgment was obtained, and that,
while possession at the time of the levy waa
in the defendant, this possession was not in
his own right, but that ne h^d possession for
the claimant The verdict finding the prop-
erty "not subject* was demanded by the ev-
idence, and any error in the chfuge or In tho
admission of testimony waa immaterial.
[Ed. Note.— For other cases, see EJvidcnce,
Cam. Dig. » 1029-1060; Dee. Dig. | 265;*
Bxecution, Gent Dig. || 671-{!74; Dec. Dig.
IIW.*]
Error City Court of Golombna; G.
T. Tlgner, Jndge.
Claim caae by D. D. Hoore against J. BL
Douglas, administratrix. Judgment for
claimant, and the admlnlatratrix brings er-
ror. AQrmed.
McCutchei A Bowden, of Golumboa, for
plalntift In error. T. T. Miller, of Oolomtnu,
for defendant In error.
BILL, OL J. Jndgnmt ftfBxmed.
(U Ga. App. 798)
COLEMAN T. KEA. (Mo. 4,796.)
(Court of Appeals vt Geor^ June 1<^ 191&)
(Byttabua by the Ooitrt.)
1. DviDlKCK (I 450*)— Sales ({ 179*)— PA-
BOL EvioiNCE— Ambiguous Contbaof— Ao-
CEPTANCB.
A written contract to fun^h "lumber
enough to build one dwelling house" is arobig-
uoui; and It is competent to show by parol
that the parties had In mind a particolar dwell-
ing house, which they estimated would require
not exceeding a given quantity of lumber. If
more than this quantity la delivered and ac-
cepted, the party recemng It is bound to pay
for the excess.
[Ed. Note.~FoT other cases, see Evidence,
Cent Dig. H 2066-2062. SOSi; Dec Di|^ 1
460:* Salea, Cant DkTu 4D6-468; Deb Dig.
S 179.*]
2. VSBDIOT AITD DBITUL OF NeW TWAT. SUS-
TAINED.
The evidence fully authorlaed the ■ verdict
rendered, and there was no error of law re-
quiring a new trial
Error from CAty Ooort of Swalnrtraro; XL
S. Danl^ 3u6ge.
Action betweoi A. D. Ooleman and W. Q.
Kea. Judgment for Kea, ud Odunan Mngg
error. Afllnnedi
Williams A Bradley, of Swainsboro, for
plaintiff in error. S. J. Tyson and F. H.
Saffold, bofb of Swainsboro* for defendant'
In error.
POITI^ J. Judgment affirmed.
Ott N. a ist)
HcGALL V. GAIXOWAT.
(Supreme Court of North Carolina. Hay 38,
1913.)
1. Afpbaz. and Bbkob (I 213*)— Pbbsxnta-
TION OF QKODffDS OF RXTItW IIT OOUBT Bx-
LOW— ItaoBBgm.
If the issoes framed are defective or in-
sufficient, the party exceptbig must lay the
£ roper foundabon for an appeal by saggest-
ig proper corrections at the time.
[Ed. Note. — ^For other cahea, see Appesl aad
Error. Cent Dig. H 1148; 1166^ im-130B;
Dec IMg. I 213.*]
2. mnnaOD and Wm (| 848*>— OBDinrAn
CoHTBunoir- AonQiT»— BTiDmcB.
In an action for criminal conversation,
evidence of acts of intimacy between defendant
and plaintiff's wife subsequent to the time the
action was brought la admissible in corrobora-
•Vor other eases ass ssms tople aad ssetlea NTOBBl la Dee. Dig. * Am. Dig. KsT'
430
78 SOTTTHEASTBRN REPORTER
tlon of the proof of the relatiotiB prior to the
commencement of the action.
W'Ed. Note.— For other cases, aee Husband and
ife. Cent. Dig. U 1132, 1133; Dec Dig. {
348.*]
S. WiTNzssBaff 68*) —Compitenot"— Hus-
band AND WIFE.
Under Revisal 1006, | 1636, providins
that nothing shall render aor hnsband or wife
competent to f^ve testimony in any acdoa on
account of criminal converBation, the wife is
incompetent to teatiCr against her hnsband in
such an action.
[Ed. Note.— For other eases, see Tntnesses,
Cent Dig. || 159^-162. 164; Dec. Dig. |
6a*]
Appeal txmn Superior Oonrt, TraiuylTanla
Oonnty; iMogf Jadca.
Action bj 3, B. McGaU against M. W. Gal-
loway. From a Jodgment for plaintiff, de-
fendant appeals. Afflrmed.
The case was tried upon these Issues:
"(1) IMd the defendant. M. W. Galloway,
unlawfully entice the plalutUTs wife from
him and unlawfully and licentiously debauch
and carnally know her, as alleged In the
complaint? Answer: Yes.
"(2) What damages. If any, has the plain-
tiff sustained by reason of the defendant's
allied wrongful acts? Answer: $500."
From the Judgment rendered, the def^d-
ant appealed.
Welch Galloway and W. W. Zachary. both
of Brevard, for aj^llant Geo. A.'Shaford,
of AstaeTille^ D. Lb EogUsb, of Brevard, and
Uannlng & Kttdiin, of Baldgh, tax appellee.
BROWN. J. There Is evidence In the rec-
ord sufficient to be submitted to the Jury
tending to establlah the allegations of the
complaint It is unnecessary ftnd will serve
no good purpose to set it out
[1] The def^dant excepted to the Issues,
bttt'tendered no others. If the issues framed
by the court are deemed Insufficient to de-
velop the cate, the party prejudiced thereby
must lay the foundation for an exception
and appeal by suggesting the proper correc-
ttona at the tlmb Moore r. Hill, 86 N. 0.
2X8; Robinson v. Sampson, m N. a 99, 28
S. EL 189. The defendant, having failed to
tender such issues as he deemed essential,
cannot now aadgn as error tiia tailure of
tlu court to submit such. Issues. Clark's
Code, I 391, and cases cited. The Issues sub-
mitted by the court are the real issues raised
the pleadings and were properly submit-
ted. Under them the defendant had oppor-
tunity to submit any evidence pertinent and
cmnpetent in Us defense.
[2] Exception Is tafcoi to the ruling of his
honor in admitting the testimony of Tom
Loftts, a witness .tor ths plaintiff, ae to
acts of intimacy betwe^ plalntlfrs wife and
deftodant sabaeqnent to the time tho action
was brought This evidenee yri» admitted
only as corroborative of the principal alle-
gation and to be considered by the Jury only
as it may tend to corroborate tbe proof as
to the relations of the defendant and plain-
tiff's wife prior to the commencement of the
action. We see no error in this.
[8] The defendant contends that tlie court
erred In excluding the following evidence
contained in the deposition of Mrs. J. P.
Malley: "Did you ever hear Mrs. Etta Mc-
Call, wife of J. B. McCaU, while In the pres-
ence of her husband, make any statement in
regard to the suit pending between her hus-
band and M. W. Galloway? Answer: Yes."
The plaintiff in apt time objected to the
foregoing question and answer. The objec-
tion was sustained, and the defendant ex-
cepted.
Question 20 In said deposition was as fol-
lows: "Please give, as nearly as you can.
what the conversation was and all that she
said In his presence to you about this case?
Answer: Mrs. McCall told him in my pres-
ence that she was not going Into court and
swear to any pack of lies for him or any-
body else; that she had heard all about
swearing for him that she wanted to hear;
and that she would die before she would be
made to do su^ a thing. She said further
that he had made her go before the clerk of
the court and swear enough to send her
soul to hell, If she had been held accountable
for it" Of course the declarations and con-
duct of the defendant are competent against
him, hut as we construe this it Is intoiided
solely to put In evidence the declarations of
the wife as against the husband, and It Is
therefore Incompetent This court said In
Grant v. Mitchell, 156 N. C. 15, 71 S. B.
1087, Ann. Cas. 1912D, 1119, that, in an ac-
tion brought by the husband for damages
for criminal convorsatlcai with his wife, "the
wife was incompetent as a witness for or
against the husband at common law. The
statute [Revisal, f 1636] removes this dis-
ability in certain actions, but speclfles those
actions In which she cannot testify, and as to
the one under condderatlon, 'on account of
criminal conversation,' says; 'Nothing here-
in shall render any husband or wife compe-
tent or compellable to give evidenee for or
against the other, tn any action or proceed-
ing on account of criminal conversatton.' "
There are several other asslgnmentB of error
which It is unnecessary to consider.
We have examined the entire record and
find no error.
(162 K. C. 384)
DIXIE FIRE INS. GO. v. AMICRICAN
BONDINO GO.
(Supreme Oonrt of North Oandlna. Ifay 28,
1918.)
1. TBIAL (I 860*)-^BCIAL ISSUKS— SUFFI-
CIENCT.
Where the Issues submitted embraced the
controverted facts set out in the pleadings and
afforded defendant an opportunity to make
*Fof otbw cases sm ssms topio aad ssotioa NUMBBB la Das. Dls. * Aau XHg. Ksr-Na SsrlssAJUp'r iBflwt
■ • ' ' ■ ' DigitizfedbyCiOOgTe
N. C.)
DIXIX FIBB INS. CO. r. AMERICAN BONDING 00.
481
vrerj poaslble defsDse, Uity wen not rabjeet
to ezceptioD.-
[Ed. Not«.— For other cases, see Trfal, Gent
D^ H 828-833; Dec. Dig. | 36a*]
2. IVBuaAHcx <| 147*)— CoNBTBUonoN— Law
QOVEBNINO.
Where, as required bj a coDtract between
an Insnrance company and its general agent
In Illinois, he procured from a bonding com-
pany a bond indemnifyiog the ioaurance com-
pany against loss through his embezzlement or
default, which when executed was iDtendecl to
be transmitted and deUvered to the insurance
company for Its approval, and which was ap-
E roved and accepted by it at its home office
I this state, the bond was to be construed
and enforced under the laws of this state, and
h«Dce in an action thereon It was immaterial
whether there had been any breach under the
laws of XlUnois.
[Ed. Note.— For other cases, see Insurance,
Cent Dig. | 293; Dec Dig. { 147.*]
3. EUBB^ZUIOENT (| 14*)— AOIS GOIfBTITUT-
INO.
Fraudulent and felo'nioas conversion of a
principal's money by an agent to his own use
constitutes "embezzlement^ under the laws of
this state.
[Ed. Note.— For other cases, see Embezzle-
ment, Cent Dig. fg 13-15; Dec. Dig. S 14.*
For other definitions, see Words and Phras*
es. voL 8, pp. 2350-2358; voL 8, p. 7649.]
4. IifscBAncB (I 668*)— Notice to InoEUia-
TOB— QtiBsnoNB or Jjaw OB Fact.
Whether a delay of fire days by an em-
ployer in giving notice of an employe's em-
bezxlement to a company which bad agreed to
indemnify it against such embezslement after
the employer learned thereof was an nnreason-
aUe delay was a question of lav ftw the court
[Ed. Note.— For other oaaea, see Inanrance,
Cent Dig. H 1S56. 1732-1770; Dee. Dig. S
668.*]
0. IKBUBAHOB (I 539*)— Nonoi TO IsDxiun-
TOR^-FaILUBE to GiVB— ElTECT.
Where a bond given to indemnify an em-
ployer against the embezzlement or default
of an employ^ expressly provided tliat the fail-
ure to comply with some of its provisions
should render It void, but did not so provide
with reference to a provision re(ruiring imme-
diate notice by telegraph and In writing of the
discovery of any defaut or loss, and such pro-
vision was not made a condition or express
warranty, the failure to give immediate notice
by telegraph did not rdieve the indemnitor of
liability, where written notice was given five
days after discovery of the default
[Ed. Note. — For other cases, see Insurance.
Gent Dig. |{ 1328-1336; Dec Dig. S 639.*]
6. InsTOANCB (! 622*)— ConxBAOi LnoTA-
Tioss— Statdtobt Pbovibions.
Where a bond given to an insurance com-
pany in this state to indemnify it against the
embeszlement or default of an agent provided
that no suit or proceeding at law or in egoi-
ty should be broaght sgainst the surety after
toe expiration of six months from the end of
the lime during which, under the bond, the em-
lOoyer's claim might be filed with the sorebr,
and also provided that the em:^oy6 should
iiave 30 days within which to make good any
loss sustained by the employer, an action on
the bend was properly brought within- one year
and 30 days after the discovery of the em-
ploye's default, under Bevisal 1906, | 4809^ pro-
viding that DO insurance company authorized
to do business in this state shall make any
randition or stipulation io Its contracts lim-
iting the time vnthin which suit or action may
be commenced tbereon to less' Iftaa one year
after the cause of action nnsiiea.
[Ed. Note.— For otiier cases, see InmruM
Cent Dig. H X640, 1644-16S0; Dee. Dlgn
622.*]
7. InSUBANCB ({ 616H*) — CONCLUSIVKKSaa
or JVDQHENT AGAINST PBINOIFAL AS
AOAiitsT InnuanxoB.
In an action on an emi4oyer*B Indemttlty
bond against the indemnitor, a judgment against
the employ^ for the employer's loss due to
the employe's embezzlement or default was
admissible but was prima facie evidence only
of the amount of the indemnitor's liability and
might be impeached by it for fraud, collusion,
or mistake.
[Ed. Note.— For other cases, see Insurance,
Dec Dig. f ei6H;* Judgment, Gent Dig. I
1224.]
a Evidence ({ 252*)— Adusbxons— Pbihci-
PAL AND SCBETT,
In an action on a bond ^veo to indem-
nify an employer against the default or em-
bezzlement of an employ^, the declarations of
the employ^ after the employment was termi-
nated were not admissible against the Indem-
nitor, since they were not part of the res
gestn, and the admissions of the principal are
receivable against a surety only when made
during the transaction oiE the bnaineM lor
which the surety Is bound so u to become n
part of the res gestae.
[Ed. Note.— For other cases, see Evidence,
Cent Dig. 989-993; Dec Dig. { 262.*]
0. TbIAL (} 191*)— iNSTBUCnONS— AssuiaiTO
Facts to Have Bbbiv Pboven.
In an action on an employer's indemnity
bond, where the fact of the employtfB embes-
element was not admitted, and there was only
prima facie evidence of the amotmt the court
erred in charging tliat there was no contro-
versy abbnt the Met oi embenlsraent, and th«
only question was vkether It was with a fraud-
nlent intent
[Ed. Note.— For other cases, see TiiaL Gent
D^. II 420-431, 435; Dec Dig. | 191>]
Appeal from Superior Court, OuUtord Coun-
ty; Peebles, Judge.
Action by the Dixie Fire Insurance Com-
pany against the American Bonding Com-
pany and another. Judgment for plaintlfF,
and the defendant named appeali. Mew trial
ordered.
The indemnity bond provided that the em-
ployer Ahonld, at ttw ■orety'B expense Im-
mediately five tlie surety noUce by t^epaidi
addressed to the mrety at its office In the
city of Baltimore, and in writing by regis-
tered letter addressed in like manner, of the
dlseovery of any default or loss theieonder,
and should give full partlcalan tfaweof «■
soon as practicable.
Civil action trlsd at Jurauy tenn, 1911^
upon these issues:
"(1) IHd the defendant U S. MacBnaney,
while acting as general agent of the plain-
tiff, collect and receive as sndi agent, for
and on behalf of fba plain tUf, the sum of
$5,007.21 between the 1st day of February,
1909, and the Ist day of Febroary, mO, and
fraudulently omvert the same to his own
use as allied in the complaint? Answer;
Yes.
"f2i Was the defendant L. S. MacBnaney
•yw oUMr oasss ass sams tople and seoUen NUHBBB la Dee. Dl^ * Abu XHg. Key
78 SOUTHEASTERN BBPORTEB
(N.a
follty of larceny or embezzlement under tbe
laws o£ the state of Illinois by reason of the
aets and things alleged In the complaint?
Answw: No.
"(8) Is QieidalntUrscaaae of action barred
b7 tbe statute of Umitattons? Answer: No.
"(4) What amonnt. U any, la the plalntUT
entitled to recover of the Anwrican Bonding
Oompany of Baltimore on acconnt of its gen-
eral fldeUty bond her^ sued upon, ezecot-
ed and delivered to the plaintiff on the 24th
day of April, 1909? Answer: $0,007^ and
interest from Mandk 4, 1910;"
From the judgment reiulered, the defend-
ant American Bonding Company appealed.
Alfred S. Wyllle and Thos. J. Shaw, both
of Greensboro, for appellant. Brooks, Sapp
& Hall, of Greensboro, tor aroellee.
BBOWN, J. The facts, briefly stated, are
that on the 28d day of April, 1909, L. S. Blao-
Bnaney, a resident of the dty, of Chicago,
entered into an agreement with the Dixie
Fire Insurance Company, of Greensboro, N.
C, whereby he became the goieral agent for
said company in the states of Illinois and
Indiana for the purpose of writing and ef-
fecting fire Insurance and collecting premi-
nms and remitting same to the Dixie Fire
Insurance' Company at its home office in the
city of Greensboro. In said written contract
of agency it was provided that the agent
MacEnaney furnish to the Dixie Fire ipsur-
ance Company a bond In the sum of $10,000
in some guaranty etunpany aoosptable to the
said Dixie,. Fire Insurance Company for the
faithful performance of bis duties under tiie
contract UacEnaney applied to tbe Amer^
ican Bonding Company of Baltimore for a
fidelity bond, and tbe same was executed by
said bonding company and delivered to Mac-
Enaney to be tnuismitted to the Dixie Fire
Insurance Company, at its home office In
the dty of Greensboro, for its approval,
which said bond the Dixie received, inspect-
ed, and approved. The bond covered a pe-
riod from the Ist day of F^nroary, 1909, to
tlie 1st day of Febmarr. 1910^ and provided,
among other tilings: *Hiat if the employe
shall in tbe position of general agoit In the
employer's service make good to tb» raiployer
within 80 days any lose sustained to the em-
ployer by larcmy or embeaslemait committed
by the emptoyft during the term commsndng
on the 1st day of Febnary, 1800^ at 12
o'dock noon, and ending on fb» 1st day of
February, 1910, at 12 o'clock noon, this obli-
gation shall be null and void, otherwise in
full fbrce and effect"
Tills action Is brought to recovw fiir a
breach of the bond. We will not consider
seriatim the S5 assignments of error, bnt
only sndi as wis regard as pertinent in de-
termining the real points of controversy.
[1] 1. There Is no merit in the exception
to ibe issnes. Those submitted embrace the
controverted facta set out In the pIeadiQffi»
and under them the defendant had oknAs
tunity to make every possible defense. ISo-
GaU V. Galloway, 78 S. SL 429» this term;
Clark's Code, | 301.
[2] 2. The indemnity bond la a contract
solvable in North Carolina and is to be con-
strued and enforced under the laws of that
state. The bond was a secies of Indonnity
Insurance in which the lAalntlff was the
boieficlary, taken out for its benefit, and
not for the benefit of its agency. It may
have beoi taken out by MacBnaney in Cbl-
cago bnt it was intended by defendant that
it should be transmitted and delivered to
plalntUf at its general offices In Greensboro^
N. a
It Ifl provided in the written contract creat-
ing MacBnaney an agent of tba Dixie Fire
Insurance Company tlat MacEnan^ shaQ
furnish a general fidelity bond sfttiafactory
to the company, and tin evidence is undis-
puted that MacSnan^ obtained the bond
from defendant and eott it to the Dixie Fire
Insurance Company, at Its hnne office in
the city of Greensboro, whm and when it
approved and accepted same;
This state is therefore the locos pro solu-
tione and tbe locus celebatlonlfl of the con-
tract Pritchard v. Norton, 106 U. S. 124,
1 SupL Ct 102, 27 L. Bd. 104; BeU t. Pack-
ard. 08 Me: 106,81 Am. Bepu SSI; DicMnsMi
V. Edwards, 77 N. Y. 578, 88 Am. Bep. 671 ;
American Mortgage Go. v. J^erson, 68 Miss.
770^ 12 South. 464, 80 Am. StBep.6S7; Seott
V. Periee, 88 Ohio Bt 68, 48 Am. Bep. 421;
Mllllfceir T. Pratt 125 Mass. 874, 28 Am. BePb
241; HIU T. Chase, 143 Maas. 129, 8 N. a
SO; BeU t. Packard, 68 Mei lOB, 81 Am. BepL
251,
lOIUken t. Pratt supra, la a ease whicta
we think is dlrecOy in pttfnt; the facts In
this case brtng that the plaintiff resided In
Portland, Me., and the defendant was the
wife of Dani^ Pratt and resided with her
husband in Massachusetts. TI» (Daniel Pratt)
asked credit of the plaintiffs, and tb^ re-
quired a guaranty, wfal«& he procured, and
had the defendant his wife, to execute the
same at her home in Massadmsfetts, and
there delivered It to her hwAand, who sent
It by mall ftom Massachusetts to the plain-
tiff in Portland. The plaintUb ncelved it
from tbe post office in Portiahd. Chief Jus-
tice Gray, in discussing the locos cdebrar
tioniSk used the following language: "Tb»
contract between the defntdant and plaintiffs
was complete when tbe guaranty had beak
received and acted on by them at Pwtland,
and not before; * * * It must ther^ore
be treated as made and to be performed In
the state of Malntf' — citing cases to sustain
this poMtton.
In Minor on Cfmfllct of Laws, p. S72, this
rule is laid down: "Notes, deeds and other
contracts of that character do not become
completed and binding contracts merely by
the fact of the promisor's signing them.
"»« «'» »» Tg^^^yemjgP^
DIXIE FIBB IN& 00. AlCEBIOAN BQNDINa OO.
488
sigDliig oocara .In one BbLtei wUle tlw 4ft*
hv&ty takes place In another, the latter state,
not the former, Is the locus ctidmtlonls.''
HsTing condnded that this state Is the
place where the contract Is to be construed
and performed according to the plain inten-
tion of the parties, it necessarily follows that
It is Immaterial to inquire whether under the
laws of ItUnoifl a breadi of the bond has
been proven.
[t] There is evidence soffldent to be sub-
mitted to a inrr that idalntiflrs agent Bfae-
Euaner fraudulently and f^niously convert-
ed to his own use the sum of |Q,007^ of
plaintiff's money, as found by the Jnry under
the first issue. This constituted embezzle-
ment under the law of this state. State r.
McDonald. 133 N. a 682, 46 S. B. 682.
[4. S] 3. The cause of action is not barred
tot failure to give notice to defendant un-
der section S of the contract The evidence
was nndiaputed that the first information
plaintiff had of the defendant's having col-
lected the amount In contrevengr for and on
behalf of the company and refused to nuke
good to It the amount ao collected was on
the 20th day of January, 1910, and that on
the 25th day of the same month the bonding
company was notified by letter of the de-
fault of the agent MacEnaney. The facts
being nndleputed, it became a question of
law to be passed upon by the court as to
whether or not the delay of five days In
notifying the trandlng company was nnrea-
eoDabl& Hay on Ins. f Joyce on Ins.
8229.
In Perpetual Building, Mc., Oo. t. Fidelity,
etc., Co., 118 Iowa. 729, 92* N. W. 680, It >s
held that: **A delay of six or tight days in
notifying a surety 'company of an employe's
defalcation, where no prejudice resulted, was
not, as a matter of law, a rlolatfon of -the
conation of the bond requiring Immediate
notice." Employers' liab. AsS'n r. Heat &
Power Co., 28 Ind. App; 437, 68 N. E. 54;
American Fire Ins. Oa v. Hazen, 110 Fa.
030, 1 AtL 006. This prorlsion of the con-
tract stating that the employer shall give the
surety Immediate notice Is not of a char-
acter to avoid the entire contract, unless
performed literally. It Is not in the form of
a cimdltlon or an express warranty, and
therefore fftlhire to strictly comply will not
always prevent a recovery.
An examination . of this bond shows that
by Its express terms a failure to comply
with some of its provisions renders It void.
But failure to give Immediate notice by teie-
gratdi is not ezpreesly made a ground of
forfeiture. The maxim, *'expres8io nnins est
exclnslo alterios," appUesL Ostrander, i 223 ;
Gerringer v. Insurance Go;, 13S N. a 412, 46
8. E. 778; Dixon v. State Hut Ins. Oo^ 84
Ofcl. 624. 126 Pac 704.
It is declared In Joyce on Insurance, |
3282, referred to in this opinion: "If a
policy of insurance provides that notice and
proofs of loss are to be furnished within a
certain time after loss has occurred, but does
not impm a forfeiture for failure to furnish
them within the time prescribed, and does
impose forfeiture for a failure to comply
with other- provisions of the contract, the
Insured may, it Is held, maintain an action,
though be does not furnish proofs within the
time designated." Northern Assurance Co.
V. Hanna, 60 Nebu 29, 82 N. W. 07; Kenton
Insurance Go. v. Downs ft Oo., 90 Ky. 286,
18 S. W. 882; Steele v. German Ins. Co., 98
Mich. 81. 63 N. W. 514, 18 L. B. A. 86.
[I] 4. This cause of action la not barred
under section 9 of the contract which pro-
vides that: "No suit or proceeding at law
or in equitx. shall be Inrought against the
surety after the expiration of six months
from the aid of the time during which, un-
der the term of this bond, the employer's
claim may be filed with the surety." As
this contract Is governed by the laws of this
state, it is subject to the statutes of North
CaroUna (Reviaal. | 4800), forbidding the
time for bringing suit on contracts of this
character to less than one year. This bond
contains a clause "that If the employe
shall in the position of g«ieral agent In the
employer's service make good to the enQ>loy-
er within SO days any loss sustained by the
employer by larceny or embezzlement com-
mitted by the employe," eta
The undisputed evidence shows that the
first intimation of loss as contemplated by
the bond was on the 20th day of January,
1910. and under the terms of said bond the
agent, MacEnaney, had 30 days within which
to make good to the company, to say noth-
ing of the 90 days allowed the agent to make
good under the contract of agency. The ac-
tion was commenced February 1, 1911. HU
honor correctly held that the action, accord-
ing to all the evidence, was not barred by
lapse of time before February 20, 1911.
[7} 6. it is contended that the court erred
in admitting In evidence the duly certified
record of the municipal court of Chicago, a
court of record, of the Judgm&nt of this
plaintiff against the agent, h. S. MacEnaney,
for $5,007.21. It must be admitted that the
admission of this Judgment record in an ac-
tion against the surety company cannot be
Justified under our Revisal, { 286. We must
resort to the precedents, and we admit they
are In hopeless discord. In a learned note
to the case of Charles v. Hosklns, 83 Am.
Dec 380, the annotator. Judge Freeman,
Bays: "The question how far a Judgment or
decree Is conclusive against a surety of a de-
fendant, or against one who Is liable ow
to. a defendant, and who was not a party to
the action. Is Involved In the greatest confu-
sion. Between the intimate relations which
exist between such a person and the de-
fendant In the snlt. on the one side, and the
fundamental principle that no one oui^t to
be bound by proceedings to which be was a
stranger, on the other, the oourU|iave ftnmd
it dlfflcutt to steer,- ^-^-^^^^^ GoOglC
484
78 SOtlTHBASTBBN BKFOBTEB
<K.a
It seems that onr predecessors in office
upon this bench have Intimated, and In one
case held, that such Judgments, unaided by
Che statute, are inadmissible In evidence
against the surety. Moore v. Alexander, 96
N. C. 36, 1 S. G. 636. Bat an examination
of the question has convinced us that the
decided trend of modem authority is to the
effect that such a Judgment against the prin-
cipal prima facie only establishes the sum
or amount of the liability against the sure-
ties, although not parties to the action, but
the sureties may impeach the Judgment for
fraud, collusion, or mistake, as well as set up
an lndet>endent defense. Charles r. Hos-
klns, 14 Iowa, 471, 83 Am. Dec. 379, and
notes. In the noCes to this case all the au-
thorities are carefully reviewed. In that
case It is said: "When one is responsible
by force of law or by contract for the faith-
fal performance of the duty of another, a
Judgment against that other for tellure In
the performance of such duty, if not collu-
sive, is prima fade evidence in a suit against
the party so responsible for that other."
[I] 6. His honor erred In admitting the
declarations of MacEnaney, as the defendant
MacEnaney was no party to this action, and,
if he had he&x, his dedaradons would be
competent only against hlmselt They were
made some time after his agency had been
terminated and were no part of the res
gestae.
The general rale is well settled that the
admissions of the principal can only be re-
ceived as evidence against the surety when
they are made during the transaction of the
business for which the surety is bound so as
to become a part of the res gestee. Admla-
slons and declarations made after the em-
ployment has ceased are not competent to
bind the surety. U. A. F. Ins. Co. v. Am.
Bonding Co., 146 Wis. S78, 131 N. W. 9M, 40
L. B. A. (N. S.) 662, and cases cited.
[I] His honor further erred in instructing
the Jury that "there is no controversy about
the fact that he converted $6,007J21 of the
plalntdfTs money to his own use. The only
question tor yon to decide upon is whether
be did that with a franduleot Intent" We
find no sntdk admission In the record. The
Judgment of the Chicago court was only pri-
ma fade evidence of the amount It remain-
ed bUU a contested bma.
NewtrlaL
(Ul N. G. m)
HDRST V. SOUTHBBN HT. OO.
(Supreme Court of North Carolina. May 28,
1913.)
1. Beuoval or O&usBS ({ 27*)— Divxbsitt
or CiTlZENSHIF.
A suit againBt a purchasing corporatioD
CBDQOt be removed from the state to the fed-
eral court upon the ground of diversity of
dtisenahtp by the purchasing corporation,
whidi was a fordgn eorp«raa<«i pnrebaslng
under mortgage fore<dosaTe, by rtrtae of Code*
I 697, which provides that upon the convey-
ance being made the seUing corporation mSL
ipso facto t>e dissolved and the pnrduuMr be
a new corporatioiL
[Ed. Note.— For other cases, see Bemoval of
Causes, Cent Dig. SI 64-68; Dec. Dig. | 27.*]
2. Behotax. or Caubkb (| 89*)— Tbiu. or Im-
BUXB.
While the Ibsum of fact made upon a p«-
dtioo for removal of a case to the federal
court must be tried in the federal court, the
state court may determine for Itself whether
on the face of the record a r«BOval had bew
effected.
[Ed. Note. — For other cases, aee Bemoval of
Causes, Cent Dig. {{ 162, 165, 189, 192-195,
197, 200, 201: Dec Dig. t 89.*]
Walker and Brown, JJ., disaeoting.
Appeal from Superior Court, Swain Gomi-
ty; Long, Judge.
Action by George W. Hurst against the
Southern Ballway Company, a Virginia cor-
poration. On defendant's motion to remove
the action to the federal court From an
order allowing the motion, plaintlET at^teals.
Beversed.
Frye. Gantt & Frye, of Bryson City, for
appellant Martin, BoUlns ft Wright, of
AshevUie^ fo; appeUe&
AI<LEN, 3. The Vlalnttff hu followed th«
allegatloiis ot the conqOali^ In Carolina
Coal ft Ice Co. T. Southern Ballway Go^ 144
N. a 732,. 57 & B. 444, and the aUegatknu
in tbo petition remoTal are Bob^ntially
as those made in a aimUar p^tUm filed in
that caaei Tlie qneBtlon bow preanited is
not, therefor^ a new one^ bat was fully con-
sidered in the caae rtferred to, In a learned
and ochanstlTe Ofdnlon by Justice Connor,
concmraed tn by all ttie numbva of the court,
and decided in fftvor of 0ie oontention of the
appellant, and we hare no dtspoaltloA to
dlBtnzb that dedslon.
CI] It Is aUeged In the complaint tliat the
defendant became the pnrdiaaw of the West-
on North Carolina Ballioad Company tmder
foredosnre proceedings, and the condnaltm
readied 1^ the court in the Go«l Co. Gaae
was: "A suit cannot be removed from die
state to the federal court upon the ground
of diversity of dtlzenshlp by a corporation
of another state which became the pnrdiaaer
of a corporation of this state under a sale
made pursuant to a deed of trust or mort-
gage, by virtue of the Oode^ | 687, providing,
upon the conveyance b^ng made to 'the pur-
chaser, the said corporation shall Ipso facto
be dissolved and the said purdiasm shall
forthwith be a new corporation, by any name
which may be set forth in the oonTeyanoe,*
etc"
[2] The case of Herrick Ballroad, iS8
N. C. 810, 73 S. B. 1009. Is not In conflict with
this view. It was there held that "all issues
of fact made upon the petition for removal
muet be tried 1b the drcnlt conrt, but Uie
•Tor etliar eu« suae topic and aMtlen NTJHBBB la Vto, Dig. * Am. Dla> Kwei^ J(Wttiy >
HURST T. SOUTHERN RT. 00.
436
state court Is at liberty to determine tor
Itself whether, on the face ot the record, a
removal has been effected," and that the
theory on which the mle as to remorals rests
Is **that the record doses, so far as the ques-
tion of removal is concerned, when the peti-
tion for removal Is filed and the necessary
security furnished. It presents, then, to the
state court a pure question of hiw, and that
is whether, admitting the facts stated In the
petition for removal to be true. It appears on
the face of the record, which includes the
petUlon and the pleadings and proceedings
down to that time, that the petitioner Is en-
titled to a removal of the suit That ques-
tion the state court has the rl^t to dedde
for Itself."
Applying this mle to the record before us,
It appears that there' Is no dispute as to the
facts, and tliat the real controversy Is wheth-
er, upon these facts, the defendant is, as
matter of law, a North Carolina corporation
under our statutes, by reason of its purchase
of the Western North Carolina Railroad
Company, and this question the state courts
can decide.
Rerersed.
CLARK, a 7. (conenrring). The state
courts are certainly competent to try a con-
troversy arising over 6^ bushels of Irish po-
tatoes, and as to the damages claimed there
is no reason to believe that the state courts
will be less fair to either side than the fed-
eral court On the other hand, though the
Constitution does not guarantee to every man
a trial by "jury of the vicinage," this 1b
reasonable, and while a Jury In the federal
court may be called such, still it Is a great
inconvenience, and usiully an Imposition of
considerable expense, to require a plaintiff,
by removal to the federal court, to litigate
his case over 100 miles away possibly, at
AshevlUe, or Charlotte, or Greensboro, when
other defendants find a Just trial in the same
county In whldi the transaction occurred. It
Is not unnatural that our people should prefer
to try their causes before their neighbors as
jurors and before Judges selected by them-
eelves, and not before judges appointed by a
distant authority and with the enormous
cost attending trial at a distant point Of
course, when the statute grants a removal
to another Jurisdiction, it must be compiled
with. Bnt whether It does so, being in der-
ogation of common right and not applying to
resident defendants, nor to nonresident de-
fendants where the amount does not exceed
$3,000, the courts will not be astute to find
ground for removal unless the statute la
clear.
In this case, so far fi'om being clear, the
statute was held by the unanimous decision
of this court not to confer this right upon
this defendant Coal ft Ice Co. v. Railroad,
144 N. a 732, 67 S. B. 444. That optnion
was written with great care, and, after
thorough examination of the federal de-
cisions, by Mr. Justice Connor, now the ac-
complished Judge of the United States fed-
eral court for the Eastern district of North
Carolina, and was concurred in by the other
four Judges, all of whom are still on this
bench, and now by Mr. Justice Allen, who
occupies the seat then filled by Judge Con-
nor. Such a decision so carefully considered
and so ably and fully discussed. If reversed,
should be set aside only by the United States
Supreme Court The inconvenience to the
public of reversing this decision will be so
great to the people along the line of this
road and throughout Western North Caroli-
na that we should be slow to questlcHi its au-
thority.
The defendant itself has recognised the
justice of that dedslon, and has been act-
ing upon It, by exercising the right of emi-
nent domain which it could not do unless it
possessed that power as a North Carolina
corporation. This la not the question of
"domestication,'' as In the Allison Case, 190
U. S. 326^ 23 Sup. Ct 713, 47 L. Ed. 1078,
but the defendant here bought the franchises
and pnqperty It now uses, knowing that by
the terms of the statute its purchase would
be invalid, and its title void, unless, by ilie
terms of the statute and of the deed it ac* -
cepted Ipso facto aa purchaser, It became a
North Carolina corporation. Solely by vir-
tue of being sneh has It exercised any cor-
porate or other functions, in operating the
Western North Carolina Railroad.
There is the Southern Railroad of Virginia,
which as lessee operates the North Carolina
Railroad, and there is the Southern Railroad
of North Carolina, which Is ab initio a North
Carolina corporation and by virtue thereof,
only, operates the former Western North
Carolina Railroad franchise. It is not un-
usual that there should be two individuals of
the same name, bnt that does not make them
Identical. The same is true of corporations.
We have the Atlantic Coast Line, a North
Carolina corporation, as we held In Staton
V. Railroad, 144 N. C. 148, 66 S. B. 794.
There is the Atlantic Coast I^lne of Virginia ;
the Atlantic Coast Line of Georgia ; the At-
lantic Coast Line of South Carolina; the
Atlantic Coast Line of Connecticut This
court held that this did not entitle the At-
lantic Coast lAne to remove a case to the
federal court when the cause of action arose
in this state, for the Atlantic Coast Line of
North Carolina was responsible and properly
sued here. This is sustained by Patch v.
Railroad. 207 U. S. 277, 28 Sup. Ct 80, 62
L. Ed. 204, 12 Ann. Cas. 618, which holds
that If a railroad is incorporated in two
states, If sued In that one in which the
cause of action arose, the case is not remov-
able.
The subordinate federal courts are created
and have been abolished at will by statute,
and tbslr Jurisdiction also has heeaxaatenef
• ■ ■ • ■ digitized by^OOglC
486
78 SOtrrHBASTEikN RB^POBTEB
and modified fn»n time to time, wlihlu the
limits ' anthorlzecl ' by the Gonstitutloii, b;
acts of Congress. The primary fancUoii of
these courts is to aid In the execation of t3ie
federal laws. So far as jortsdlction is gtren
them by reasoo of .*'dlTase dtlzenshli^" this
was based on the prejudice oTHfrt^^s In 1787
(when the Gonstttntlon was formed), but now
oatworn, between different sections, and the
limit has been raised from |Q00 In the Sn-
dlclary Act of 1789 <Act Sept 2i 1789, c
• 20, 1 Stat 73) to $3,000. By uniform de-
cUtoim it was held by the United States
Supreme Court that "corporations" were not
"citizens" within the meaning of this section
until the court overruled Itself in Railroad v.
Letson, 43 U. S. (2 How.) 497, 11 L. Ed. 353,
in 1842. Certainly there can be no reason to
exempt from the Jurisdiction of the state
courts a corporation that is living, acting,
and doing business here, under the dally pro-
tection of the state government and Its
courts. Beyond question a corporation like
this, which has been created and given ex-
istence and Its franchises to do business by a
state statute, cannot exempt Itself from the
Jurisdiction of this state, its creator aa a
"foreign corporation."
The oplotons of this court, rendered by
Judge Connor in Coal & Ice Co. v. Rail-
road and Staton v. Railroad, both above
dted, are so fully discussed and so clearly
«q?re8sed that nothing can be added thereto.
WALKBSt, X (dlssentine). WhUe besl«at>
log always to disagree wltb my Brethmi of
the majority, whose opinion I entertain
the most deferential TeesfeeU my mind la so
thoroughly convinced of the mot in this
4»M' tliat I cannot wlthludd my dissent to
their view. The action was broo^t to re-
cover accumulated penalties to the amount
of 914,060, for failure to lecelve and ship
'6H bnshelB of Irish potatoes teota Wesser
€reek statloD, N. a, to Bnshndl, N. a
We are not concerned now with the merits
of this dunand, as the amount stated, if re-
coverable, la certainly sntBclei^ to Justify a
removal of the ease if the defendant Is others
wise entitled to it
The potion fbr ranoval all^^ that the
•defendant In this case, whose agent was
served with process, is a Vli^tlnla ccHiwra-
ition, and so far as this court may consider
that allegation It must be taken as admitted.
If there lA any controversy about it, we can-
not settle it here. -Stone v. Sooth Carolina,
117 U. S. 432, 6 Sop. Ot 799. 29 li. Sd. 9«2 ;
Carson v. Hyatt, 118 U. S. 279, 6 Sup. Ct
1050, 30 Ia Ed 107. In. the case last dted.
Chief Justice Walte said: "The state court
is not bound to surrender its Jurisdiction un-
til a case has been made which, on its face,
shows that the petitioner for rsnoval has a
right to the transfer; but It may also be
said that 'all issues of fact made upon the
petition for removal most be tried In the
drcnit conrt* The state court it only at
liberty to inquire vbsOim, on the fnoa of
the record, a case has been made which re-
quires It to inoceed no further.** This fea-
ture of the case will be referred to again.
The petition further alleges that the South-
ern Railway Company of Virginia is author*
ized, by its charter, to acquire property and
operate railroads in other states.
I think the decision of this court is wrong,
and that of Judge Long, who presided at
the hearing of this motion, is right, upon
two grounds. Let me say in the t>eglnnfng
that there is an essential difference, in my
opinion, between the facts In this case and
those presented by the record In Carolina
Coal & Ice Co. v. Southern Railway Co., 144
N. C. 732, G7 S. E. 444. upon the authority of
which the court alone bases its Judgment
First There are two propositions which
cannot be gainsaid at this time: (1) That a
corporation has g^eral power to hold prop-
erty in states other than the one which in-
corporated it, in the absence of statutory
prohibition in such states, la firmly establish-
ed. United Lines Telegraph Co. v. B. S.
Dep. & Trust Co., 147 U. S. 431, 13 Sup. Ct
396, 37 L. Ed 231. (2) A corporation cannot
change its residence or citizenship, but must
have its legal home only at the place where
it Is located by or under the authority of
its charter ; but It may, by its agents, trans-
act business anywhere, unless {vohiblted by
its charter or exduded by local Iaw& Ex
parte SchoUenberger, 96 n. S. 369. 24 L Ed.
853. There is another proposition, which
naturally follows from the other two Just
stated: (S) A corporation created by the
laira of one state may carry on business in
another, either, by virtue of being created a
corporation by tbe laws of the latter state
also, as In RaUroad Co. v. Vance, 96 U. S.
450, 24 L. Ed. 752, or by virtue of a license,
permission, or authority, granted by the
laws of the latter stat^ to act in that slate
Muier Its charter from the former state.
Martin v. Baltimore, etc., B. Co., 151 U. &
673, 677, 14 Sup. Gt 633. 38 L. Ed. 8U.
Other cases Illustrating the difference be-
tween "incorporation" and mere "license"
will be found In 6 Sue. of U. S. Supreme
Court Beporta, at page 308, note a Justice
Miller said, for the court, In Pmnsylvfuiia
R. Go. T. St ifonla, etc. B. Co, IIS U. a
290^ 6 Sup. Ct 1004, 80 1« Ed. 83. tbat It does
not seem to admit of question tbat a corpora-
tion of one state, owning property and doing
business in another state by its permission,
express or Implied, does not thereby become
a dtlzen of the latter state.
With these general, principles before us,
let us look at the facts of this case. It ap-
pears that the. Southern. Railway, which
purchased the frandilse and proper^ of the
Western North Carolina Railroad Company,
exc^t Its right to be a corporation, is itself
a fordgn corporatiin^^^^^-
HUBST T. SOUTHERN B.T. Oa
137
cbarter from the state of Virginia. It Is so
alleged In the petition for remova.!, and the
original process Issued in this case was serv-
ed upon an agent of said corporation, be
having verliied the petition, Id which the al-
legation of such service upon him as agent
of the Southern Railway Company, the Vir-
ginia corporation, is plainly and distinctly
alleged. It Is also alleged that the Virginia
corporation purchased the said franctilse and
property at the sale, which, as we know, was
made under a decree of the United States
Circuit Court for the Western District of
this state.
Upon the admitted, or at least nncontro-
Terted, facts of this case, the Southern Bail-
way Company has never become a resident or
citizen of this state by virtue of Its purchase
at the said Judicial sale of the franchise
and property <d the Western North Carolina
Railroad Company. The case of St Louis &
San F. Railway Ca v. James, 161 U. S. 545,
16 Sup. Ct 621, 40 I* Ed. 802, it seems clear
to me, is a direct authority against any such
contention, it appeared In the James Case
that the state of Arkansas irarmitted a for-
eign railroad corporation to lease or pur-
chase any railroad in that state upon filing
Its charter with the Secretary of State,
whereby it should become a corporation of
the state of Arkansaa With regard to a
controversy in that case of substantially the
same nature as the one In our case, and re-
ferring to the James Case, the same court
said. In Southern Ry. Go. v. Allison, 190 U.
S. 326, 23 Snp. Ct 713, ^7 L. Ed. 1078:
"There was a corporation originally incor-
porated In the state of Iflssouri going into
the state of Arkansas and operating a rail-
road In that state by leasing a portion of
it therein and complying with a statute
which provided- that, upon flllog a certified
copy of its articles of Incorporation with the
' Secretary of State of Arkansas, it should be
regarded as formally incoriwrated in that
state, and It should thereby become a domes-
tic corporation, and yet it was held that de-
fendant could not be sued by a .citizen of
Missouri in the federal court In the state of
Azkansas; that, although to some extent and
for some pttrpoaes It might be regarded as a
corporation of Arkansas, it was for purposes
of Jurisdiction in the federal courts to be re-
garded as a corporation of the state of Mls-
Bonrl. The case, it will be seen, ,was not de-
dded upon the ground that the cause of ac-
tion had arisen In the state of Missouri. It
was admitted that the cause of action was
transitory, but the broad question was decid-
ed that the company was a corporation of
Missouri and a citizen of that state; and
could not be sued by another cltizeii of that
state in the federal conrts of Arkansas.'*
And in the same connection, the court In
the Allison . Case referred with approval, and
ftf strongly supporting Its view of the James
C^se, .tQ what was isaid by Mr. Justice SlUr-
Ut in the'latter 'caae, aa follows: "^le p»-
smnption that a corporation Is composed of
citizens of the state which created It ac-
companies such corporation when it does
business In another state, and It may sue or
be sued In the federal courts In such other
state as a citizen of the state of its original
creation. We are now asked to extend the
doctrine of indisputable dtlzenahlp, so that
if a corporation of one state, indisputably
taken, for the purpose of federal Jurisdic-
tion, to be composed of citizens of such state,
is authorized by the law oil another state to
do business therein, and to be endowed, for lo-
cal purposes, with all the powers and privileg-
es of a domestic corporaUon, such adopted
corporation shall be deemed to be composed of
citizens of the second state, in such a sense
as to confer Jurisdiction on the federal courts
at the suit of a citizen of the state of Its
original creation. 'We are unwilling to sanc-
tion such an extension of a doctrine which,
as heretofore established, went to the very
verge of Judicial power. That doctrine be-
gan, as we have seen. In the assumption that
state corporations were composed of citizens
of the state which created them; but such
assumption was one of fact, and was the
subject of allegation and traverse and thiis
the Jurisdiction of the federal courts might
be defeated. Then, after a long contest in
this court, it was settled that the presump-
tion of dtizensblp Is one of law, not to be
defeated by allegation or evidence to the
Goatrary. There we are content to leave it' "
And in LouUvUle, N. A. & C. it Co. v.
LoulsviUe Trust Co>, 174 U. S. 652, 19 Sup.
Ct 817, 43 L. Ed. 1081. the court, upon a
state of facts not materially different from,
and certainly not. stronger for the corpora-
tion which was seeking a removal than, those
In this record, thus stated the law: " 'But
a decision of the question whether the plain-
tUf was or was not a corporation of Ken-
tucky does not appear to this court to be
required for the disposition of this case, ^-
ther as to the Jurisdiction, or aa to the mer-
its, As to the Jurisdiction, it being clear
that the plaintiff was first created a corpora-
tion of the state of Indiana, even if It was
afterwards created a corporation of the state
of Kentucky also. It was and remained, for
the purposes of the Jurisdiction of the courts
of the United States, a citizen of Indiana,
the state by which It was originally created.
It could neither have brought suit as a cor-
poration of both states against a corporation
or other citizen of either state, nor could it
have sued or been sned as a corpor^tton of
Kentucky, in any court of the United States.'
So it se^s that a corporation may be made
what Is termed a 'domestic corporation,' or
In form a domestic corporation, of a state
in compliance with the legislation thereof,
by filing a copy of its charter and by-laws
with the Secretary of State; yet such fact
does not affect tlif^. char.icter of the original
corporation. It does, not thereby become a
dtlsea oif the state liiDl|M^ij|>Cgnr)el^C
438
78 SOUTHEASTERN BBPORTEB
CN.a
charter Is filed, so far as to affect tbe Juris-
dlctlbn of the federal courts upon a question
of diverse citizeiisliip."
Tbe case of Memphis & G. B. C& v. Ala-
bama, 107 U. S. 581, 2 Sup. Ct 432, 27 L. Ed.
&18, was distinguished In the Allison Case
from It and the other cases, because it ap-
peared in the Alabama Case that' there nas
not only a separate corporation created In
Alabama, bat also a real one in law and in
fact; there having been a full organization
under a provision of law for that purpose,
and not merely a declaration of corporate
existence. There had been, In other words,
a genuine Incorporation of two distinct com-
panies In tbe states of Tennessee and Ala-
bama. Spealclng of this view of that case,
the court, In Allison's Case, said: "This
court held that, by reason of the particular
language used In the act, there was a sepa-
rate original Alabama corporation formed;
tbat the sections, taken altogether, made It
a corporation created as well as controlled
by the state of Alabama." The two railroad
companies were, in fact, separate corpora-
tions or entitles, though they connected at
the state line and had Joint traffic arrange-
ments. Each had control and Jurisdiction,
so to speak, over distinct railway systems.
While I am entirely unable to perceive any
practical difference between the James or
the Allison Case and this one. It seems to
me that the question as to what corporation
was the purchaser at the judicial sale of the
franchise and property of the Western North
Carolina Railroad Company Is completely
foreclosed by the decision of the Supreme
Court of the United States In Julian t.
Central Trust Co., 193 U. S. 93, 24 Sup. Ct
399, 48 L. Bd. 629. That wUB a writ of cer-
tiorari to the United States Circuit Court of
Appeals for the Fourth Circuit to review a
Judgment which affirmecl a decree of the Cir-
cuit Court for the Western District of North
CBrollDa. enjoining a sale of the franchise
and property of the Western North Carolina
Railroad Company, purchased by the South-
em Railway Company at the foreclosure
sale, under certain Judgments and executions
obtained by certain persons In the state
courts against said Western North Carolina
Railroad Company. It was then determined,
upon a full review of all the records and
facts in the case, that the purchase at the
foredosore sale was made by the Southern
Railway Company, tbe Virginian corpora-
tion, which was protected by law against
any sale of the same by the Judgment credi-
tors. In the course of Its opinion by Mr.
Jnattce Day, the court said: "It Is true the
sections of the Nortli Carolina Code herewith
glTen clothe the purchaser with the right
and privilege of organizing a corporation
to operate the pu^hased proper^, but we
find no requirement that he shall do >o. The
language of the last paragraph, of section
1936 Is: 'Such purchaser or purchasers may
associate with him or them any number of
persons, and make and acknowledge and file
articles of association as prescribed in this
chapter; such purchaser or purchasers and
their associates shall thereupon be a new
corporation, with all the powers, privileges
and franchises, and be subject to all the
provisions of Utls chapter.' This confers a
privilege, but does not prevent the purchaser
from transferring tbe property to a company
already formed and authorized to purchase
and operate a railroad. People v. Brooklyn,
F. & C. I. R. Co., 89 N. T. 75. The Southern
Railway Company was authorized by Its
charter, among other things, to purchase or
otherwise acquire the property of any rail-
road company organized under the laws of
another state. We have been cited to no
statute of the state of North Carolina for-
bidding the purchase of a railroad at fore-
dosnre sale by a corporation of another
state." In that case the court reviewed the
decision of this court In James v. Western
N. a R. Co., m N. C. 523, 28 S. E. 537, 46
L. R. A. S06, In which it was held by unani-
mous decision that the Southern Railway
Company, a Virginia corporation, purchased
the franchise and property of the Western
North Carolina Railroad Company and had
gone "into possession and control of the
same, and has been running and operating'
the same ever since, under said purchase
and deed." This is a clear and unmistak-
able decision by this court upon the very
question, in favor of the correctness of the
order of removal made by Judge Long In this
case, because if the Southern Railway Com-
pany, of Virginia, owns and operates the
road, it follows, by all the authorities, that,
being a citizen of another state sued In one
of the courts of this state, it has the right
to a removal of the case to the United States
court
In discussing questions of this kind we
are very apt to lose sight of the well-marked
distinction between legislation of a state *
which domesticates a corporation to the ex-
tent of subjecting it to control and regnla-
tlon of local laws, and legislation which at-
tempts to create a domestic out of a foreign
corporation In such a sense as to make It a
citizen of a state other than that of its ori-
gin, and thus deprive It of the right of re-
moval to the United States courts of a suit
brought against It by a citizen of the state
where it is claimed to have been domesticat-
ed. When tbe question involves the Juris-
diction of the federal courts, the distinction
Is an Important one; Its subjection to the
Influence and operation of local laws being
generally conceded.
Second. This brings me to the consider-
ation of my second proposition. If the facts
in this case are not practicallr admitted or
undisputed, then there roust be aa Issue or
question of fact as to tbe diverse citizenship
of the parties to tbe record, and as that dis-
puted question can only be tried by the feder-
al conrta wbJcb tixut dstermlnerU to its ami
Digitized by VjOOg IC *
THOMPSON ▼. EQUITABLI! LIFE AfiSUXL 80CXBTT
489
Jurisdiction, the removal by Judge Long was
proper In order that It might be tried la the
only forum designated by law for the pur-
pose. Bea T. Mirror Co., 158 N. C. 24, 73
S. B. U6; Herrick v. Railroad, 158 N. C. 307,
73 S. R 10(^. The petition filed in this case
alleges facts entitling the plaintiff to a re-
moral. If they be true. If they had been con-
tested, the issue thus raised would have been
fKie to be settled by the federal court alone.
As said In Bea t. Mirror Co., sapra: '^That
court, being charged with the duty of exer-
dslng Jarlsdictlim in such case, most have
the ipower to consider and determine the
facta upon which the junsdletion rests"— dt-
Ing namerons cases to support the position.
In any view, therefor^ the case, was inop-
erly ranoved by Judge Long.
It may be observed, In concliultHi. that no
railroad corporation has erer been recogniz-
ed by this state. In its leglalatlve or execu-
tive d^rtment, as the owner o< the Western
North Carolina- BaUroad, except the South-
ern Railway Comp&iv of Virginia. No such
corporation has ever been organized In this
state, nor has It ever bten recognized by the
North Carolina Corporation Gommlsdon in
any way. On the contrary, that Commission
has always considered it as a part of the
system of the Southern Bailway Company of
Tirgiuia, and has fixed tranaiwrtation rates
over tt and assessed it tor taxatton, and oth-
erwise dealt in respect to it upon the basts
of that understanding. Sudl a corporation
Is therefore of a most anomalous character^
existing only In the imagination, or at most
on paper, and so fiu is it from Iwvlng any
tangible or l^al existence that it is entirely
mythical If it be contended that the South-
ern Bailway Company of Vlr^nla has no
right to hold the franchise and own, use, and
operate the property of the Western North
Carolina Railroad Company, the conclusive
answer Is that the state alone can complain
of the wrongful exercise of corporate rights
and privileges, or of sudi ultra vires action
of the railroad company. Barcello v. Hap-
good, 118 N. a 729, 24 S. B. 124; Bass v.
Navigation Co., Ill N. C. 449, 16 S. R 402,
19 L. B. A. 247, and cases dted, and especial-
ly Asheville Division No. IS v. Aston, 92 N.
C. 578. This Is familiar learning. The court
held, In the case of Ashevllle Division No.
15 V. Aston, that for an abuse of powers and
franchises by a corporation or for usurpation
of powers not granted or for nonuser of such
as may have been granted, the only remedy
Is In the name of the state, as such a cause
of forfeiture or a n^rpation ot corporate
rights not granted by the state shonid not be
questioned collaterally, but by a direct pro-
ceeding, so that the corporation may be
heard by answer. The court said, quoting
from EUswbeth City Academy v. lindsey,
28 N. C. 478. 45 Am. Dec. 600: "The sovereign
alone has a right to complain, for. If it is a
usurpation, it is upon the rights of the sorer^
elgn, and his acquiescence is evidence that
all thii^ have been rightfully performed,"
citing Atty. Gen. v. Bailroad, 28 N. C. 466,
wtilch Is very pertinent to the facts of this
case, for there it la said: "If the soverdgn —
with us, the lawmaking power — with a dis-
tinct knowledge of the breach of duty by the
corporation, a knowledge declared by the
Legislature, or so clearly to be Inferred from
its own archives that the contrary cannot
be, thinks proper by an act to remit the pea-
alty or to continue the corporate existence,
or to deal with the corporation as lawfully
and rightfully existing, notwithstanding such
known default, such conduct must be taken,
as In other cases of breaches of condition, to
be intended as a declaration that the forfei-
ture Is not Inslsted'^n, and thereforo as a
waiver ot the previous default"
The "archives" and statutes of this state
nowhere sanction the view now taken by the
court of the rights of the Southern Railway
Company of Vii^lnla; but, on the contrary.
It appears from them that it has been fully
and continuously for many years recognized
in all branches of the government, having
dealings with It, as the owner ot the frali-
chlse and property of the Western North Ota-
olina Railroad Company, and this recognition
is in strict' accordance with the legal rights
of the deffflidant, as declared by the court
of last resort, which has supreme Jurlsdle-
tlon to flnally pass upon and .determine the
question.
BROWN, ooncars In the dtemt
TBOHPSON T. EQUITABLB LUTB ASStTB.
SOCIBTY 07 THE UNITE3> STATES.
(Supreme Court of South Carolina. May 28;
1913.)
1. InstTBAifcE (H 558*) — PBoor or Loss —
Waives— Aduission or Liabilztt.
Where an inaurance company in an action
upon a policy of life insurance by Its answer
admits hability and alleges that It does not
know to whom to pay the money, it cannot
raise tfae question that there was a f^lnre to
furnish proof of death tiefore the commence-
ment of the action.
[Ed. Note.— For other cases, see Insurance,
Cent Dig. Si 1882-1390, 1405; Dee. Dig. 1
558.*]
2. INSCBANCB (§ 207*)— AaSIOmfEKT OF Poi>
lOT— CONSKNT BT INSITKEB AflXB DEATH OV
Insured.
Where a life laBOrance policy showed on
Its face that it had been assigned in compliance
with its requirements, the fafit that the aa^gn-
ment was indorsed thereon by the ooi^pany after
the death of tbe insured, bat before it bad
knowledge thereof. Is no equitable reason why
the court shonid set aside the indorsement; It
not appearing that the rights ot the company
will be prejudiced in any way hy tb» indorse-
ment.
[Ed, rfote, — For other cases, see Insurance,
Cent IMg. §! 475-477 ; Dec. Dig. { afiT.*)
^ror etbw oasM Stmt te^ sad sseUsB KUMBBR U Dsa. IMS. A Ab. Dli. Kqr-Mfi'M^
78 SOUTHBAUXHiUM BBPOBTSB
(8.0.
3. iNBuuNCi (i a07*)— AsnaniCEHT of Lav
IireuBANCs— Obal AsBioirMBwi^VAiiDrrr.
When a life insunnee policy, payable to
^ peraonal repnaentatiTCi of tlie imared, was
ddivered by him to Ua brother with the latent
to vest the title In fatm. the rlEhts of the brother
were paramoant to those of the representatiTee
of decedent, even thoo^ the aeaisnnieBt was
not compietM by the onapany'a indorsement nn-
tn after the death of the Insnred, dnce it was
bindini; befdre indorsement upon the insarea
and Ute representatives stand on the aama
gronnd.
[Bd. Note.— For other caees, see Insntanoa,
Cent. Die H 476-177; Dec. Dig. I 207.*]
4. EZSOUTOU AND ADKUrXKUlOSS (I 438*)
— NB0E88ABT PABIin — AonOH OV IRBUB-
ANCE POLIOT.
In an action by the assignee npon a me
insnrance pc^cy originally payable to tba per-
sonal representatlTes <rf the insnxed, tlu court
wUl not reqnire the representatives to be made
parties when sndi requirement woald serve no
astfnl purpose:
[Ed. Note.— For oilier cases, see Ezecntors and
AdministratorB, Cent Dig. U 17«6, 1766, 1770,
1771, 1774, 1786; Dec. Dig.| 430.*1
ApDeal from Oommon Fleas Oircntt Court
ot Richland 0oimt7; Thoa. H. Spaiiit Jndge.
'TTo be officially reported."
Action by Biclmrd A. Thompson againat
tbe Bgultable life Aasorflnce Society ol the
United Sttttea. Judgment for Uw plaintur,
and dtf endant appeala. Afflnned.
Helton & Belser and B. B. Oarwile, all of
Columbia, for appellant Frank Q. a^Dmp-
ktau, of Columbia, for respondent
6ABY, 0. J. This la an action off a policy
of life insurance: By consent of tbe partlee
to the action, his honor the circuit judge
beard tAe' case without a jury, and rendered
Judgment in favor of the plaintiff, for the
amount of the p(41cj, wbeFal^mn the defend-
ant appealed.
Tbe-drcnlt Jndge thus stated tbe facts:
TTbla 18 an action brought for the purpose of
recovering $1,000 on an insurance policy and
for aU additional aanw due tbereon. The
convlalnt aUeeaa tbat tbe Inaorcd, Joseph J.
ThompfloD, aaidgned the poller to bi* brother,
Uchard A. Thompson, aa beneficiary thereof
or as aaalgnee; tbat the said Joa^h J.
ThiHnpaon la dead; and that hla brother,
Blchard A. Tluunpacm, la entiaed to recover
fbB money due under the policy. Tbe de-
fendant admita that the polk? waa delivered
to tbe said Joseph J. Thonspson, and that he
la dead; admita that the poUey ma indorsed,
aa required by said policy, to Bictaard A.
Thompson, bnt contenda that it was done
tlirangh misapprehenslan of Ita oBtoen, as
the policy did not reach them before tbe
death of tbe aald Joa^ J. Tbompeon; ad-
mits Hut tbey retained poeseselon of tbe said
policy, for 1^ benefit of the person or per-
sons titled thereto. I find the following
facta: Tbat tbe defendant Insured the life
of Joseph J. Tbomvatm for Uie anm <tf ^000,
and that the poUey waa duly delivered to
bim, and that tbe money was made payable
to the executors, adminlstratora, or assigna
ot. the said Joaepb X lAompson, and tba
policy contained tbe flawing prorislona:
'Promisee to pay at tbe home office of the
aodet7> in the city of New York, to Joaepb J.
Thompson, of Georgetown, county of Qeorge-
town, atate of South Carolina, herein (»lled
the insured, on the twenty-ninth day of
December, nineteen hundred and twen^-
eight, if the insured be then living, or upon
receipt at the said tunne ofilce of due proof
of tbe prior death of the insured, to the ez<
ecntora^ administrators, or asalgna, of said
Joseph J. Thompaosi, benefldary, with the
right of revoeatlmi, one thousand dollars,
less any indebtedness tbereon to Om sodety
and any uiqtald portion of the premium for
tlie corrwit year, npcoi snrrender of this
policy properly receipted. Change of Bene-
fldary.—When tlie rlgbt of ittVDcatlon has
been reserved, or in tbe case of the death of
any benefldary under either a revocable or
Irrevocable designation, the insured, if tbete
be no existing assigntnent of tbe policy, made
aa hoeln provided, may, while the policy la
In force, designate a new benefldary with ot
without reserving right of revocation by fil-
ing written notice thereof at the home office
of the sodety, accompanied by the policy
for suitable Indorsement thereon. Such
change shall take effect upon tbe Indorsement
of the same on the policy by the sodety- If
any benefldary shall die before tbe insui^
ed, the interest of such benefldary shall
Test in tbe Insafed. No assignment of
this policy shall be binding npon tbe soci-
ety unless It be filed with the sodety at
its home office. Tbe aodety assumes no
responsibility as to tbe validity of any as-
signment' That on the 18th day of August
1910, Joseph J. Thompson delivered said
policy to his brother, Richard A. Thompson,
along with the following paper: 'Declara-
tion. Georgetown, S. C, August 18, 1910.
Tbe Equitable Life Assurance Sodety of the
United Statea of America, New York, N. X.
— Gentiemen: Policy No. Ilt80047, $1,000.00^
J. J. Thompson. I hereby and herewith au*
thorlze and regtieat yon to assign the above
policy No. 1580047, issued In my name on the
20th day of Deoamber, 1908, to my brother,
Blchard A. Tbompeon, as the sole beneficiary
in tbe event of my death. Hla address is
Georgetown, South Carolina. Witness my
band and seal this 18tb day of August A. D.
1810. Joseph J. Thompson. Wltneases: St
J. Tucker. T. B. Dennlson.' OSut in accord-
ance with Instructiona, the said policy and
reqittst were mailed to the defendant and
tb^ readied the aald borne office on tlie 22d
of August on the IBtb day of
Augnat 1010, the said inaured died, and on
tbe 24th day of Avgnst 1910, the name of
Blchard A. Tbompeon was Indorsed on aald
policy aa boiefidaiy. That tbe said insured
intended that the legal t^tle to said polKgr
•Ite^w«M<isaMsam^^
B.OJ
PABBT T. SOtm^ASnEBN USlG INS. 00.
441
Bbould -rest in hia said brother, and that
proof of death was waived by said defend-
ant"
[1] The first assignment of error is bft-
cause there was a failure to furnish proofs
of the death of the Insured before the com-
mencement of the action.
The circuit judge oyerroled this defense,
on the ground that the answer of the defend-
ant admitted the death of the Insured, and
also admitted Its liability, but alleged that
It did not know to whom to pay the money;
whether to the plaintiff or the representatives
of J. jr. Thompson's estate. We do not deem
It necessary to dte antfaoriUes to show that
the exceptions raising this aaestton cannot be
raatalned.
[2] The next qneistlon for consldemtUni is
whether there was enm on the part of the
elrcnlt Judge In ruUng that tlie deUTery of
the policy, tt^etber with the paper called a
"declaration,** 1^ the fauured to Blchard A.
Thompson, was effectual as an assignment
of the policy. It appears upon the face of
the policy that there was a compliance irtth
the reqtdrements thereof, In regard to its
assignment
When this fttct appeared. It was incumbent
on the insnrance company to satisfy the
conrt that there were good reasons why the
assignment should be declared a nnllity. It
undertook to do this, by prorlng ttmt the in*
dorsement was made, after the death of the
insured, and before It had notice ot siu^
fact It failed to adduce any testimony tend-
ing to show that Its rlghta would be prej-
udiced if the indorsement was not declared
to be null and void. On the contrary, It ap-
pears from the admitted facts that the de-
fendant has no Interest in the proceeds of
the policy, except, practically, as a stake-
holder; for, as just stated, the answer ad-
mits its liability and that It Is holding the
policy, because it does not know whether pay-
ment shonld be made to the plaintiff or to
the representatives of the Insured's ^tate.
Therefore there is no equitable reason why
the court should grant the defendant relief
by setting aside the Indorsement
[3] There is another reason why the court
should refuse to grant the defendant relief
tn this respect Bven If It should be held
that there was a failure to comply with the
requirements of the policy, in regard to the
assignment thereof, the rights of the plaintiff
whether regarded as legal or equitable, are
paramount to those of the executor or ad^
mlnlstrator of J. J. Thompson's estate. As
between the plalntiS and the representa-
tives of the Insured's estate, the delivery of
the policy to Richard A. Thompson, with the
intention that the legal title should vest
in him as found by the circuit judge, had
the intended effect A policy of Insurance,
like any other chose In action, may be trans-
ferred, even by parol. Barron v. Williams,
58 S. O. 280, 36 S. E. 681, 79 Am. St Hep.
840; N. T. life Ins. Co. v. Flack, 8 Ud. 841,
66 Am. Dec. 742.
A failure on the part of the insured to
comply vrtth the requirements of the policy
does not defeat the rights of the assignee —
whether legal or equitable — jto the proceeds
of the policy where they are paramount
to those claimed in behalf of another. In
the present case there can be no doubt that
the rights of the plaintiff are paramount to
those of the insured's Mtate, and there is no
good reason why tbls court should grant re-
lief to the defendant that would be of no
practical benefit to it, but would only delay
the plaintiff In the collection of the amount
due him under the policy.
If the insured bad previously assigned the
policy, Kicbard A. Thompson would not be
entitled to the proceeds; nor would he be
entitled to the proceeds. If a beneficiary had
been named when the policy was delivered to
him, unless there was a change of the bene*
flclary In the manner provided by the policy.
Holder T. Insurance Ca, 77 S. C. 299, 57
S. B. 853; Deal t. Deal. 87 S. G. 395, 60
8. B. 886. Ann. Cas. 1912B, 1142. The
executor or administrator of the Insured,
however, does not stand upon higher ground
than the Insured, and any act that would
estop htan would be binding upon them. As
the delivery of the policy, together vrith the
writing executed by tlie insured, empowering
the insnrance comi»ny to make the neces-
sary changes, so as to assign it to Blchard
A. Thompson, wontd be binding upon the in-
sured if he were now living, it also estops
his representatlveB from aiming the pro-
ceeds.
[4J The cases of Fogle t. Church, 48 8. O.
86, 26 B. B. 09, and Grant v. PoytB, 62 S. O.
41i6, 40 B. B. 801, show that the court wUl
not require an executor or administrator to
be made a party, when soch requirement
would subserve no ns^ol purpose.
These Ttews practically iSaooM of an the
»oeptloDa,
JndffUMit aflrmed.
WOODS, HYDBIOK, WA!rrB, and FBA-
SBB, ooneor.
(H 8. a i>
PARBY T. SOUTHBASTBBN UFS INK -
CO.
(Supreme Oowt of South Okirolina. Ap^ 28,
W1& On Behearlng, May 28, lOlS.)
1. Inbubawcb (I 349*) — Lm Insubahcb —
NONPATUBITT- Of PBIUnnCS— FOBIXITUBK.
A life policy, stipulathig that falling to pay
at maturity any premiam or installment there-
of, or any note given as a lien asaiost the pol-
icy, win render the contract void, is forfeited
for nonpayment at maturity of a premium note
reciting that the policy dudl be void on fallun
to pay at maturity; the receipt given by in-
surer declaring that it is subject to-.the cor "
442
78 SODTHBASTERN REPORTER
tioDs of any notes which havo heau glvtn for
the premium.
'[Ed. Note.— For other cases, see Insurance,
Gent Die U 881* 895-002^ fllS; Dee. Diff. f
849.*]
2. Insubanoi ^ 392*) — Lm IirnTKA,KOB —
nonfayiunt ot pbucntk — fobritdbx —
Waiver.
An insurer issuing a life policy stlpnlatinc
for forfeiture for nfmpayment at maturity of
any renewal premiam, and accepting a premium
note declaring that the policy sliall be void on
failure to pay the note at maturity, does not
waive a forfeiture for nonpayment at maturity
of the DOte by writing to iDmued a letter atat-
iug its diBappointment at iDBared'i talluze to
pay and requesting hfm to request time with-
in which to pay.
[Ed. Note.— For other cases, see Insurance,
Cent. Dig. || 1041-1058, 1068-1070; Dec Dig.
I 392.*]
Ap[)eal £rom Common Pleas Clrciiit Court
of Newberry Orntnty; B. W. Memmiiiger,
Judge.
Action by Julia O. F. Parry against the
Southeastern Life Insurance Company.
From a Judgment for plaintiff, defendant ap-
peals. Reversed, and new trial granted.
Haynswortb & Baynsworth, of Oreen-
▼UlOb and Hunt, Hunt ft Hunter, of New-
berry, for appellant F. H. Dominlcli; of
Newbmy, for respondent
OABT, C S. This Is an action on a poli-
cy of Insurance. On the 10th day of March,
1907, tbe defendant Issued a policy of in-
surance on the UtlB of J. W. Parry, wbereln
his wife, tbft plaintiff, was namod ut the
beneficiary. One of the conditions contain-
ed In the policy was as follows: "Falling to
pay when due any renewal pronium or in-
stallment thereof, or any note or other ob-
ligation glTen aa a lioi against tbls policy,
will render UUs contract nvll and void.
• • •" Tbe receipt glren by tbe Cfun-
imny for the premiam contained this clause:
"This receipt Is subject to the condltlonB
of any and all notea, which have been giv-
en or may be given for the amount of
said premiam, or any part thereof." The
insured delivered to the company his prom-
issory note whereby he promised to pay
three months after the date tbereof 123.40.
being the premium on said policy, due
March ID, 1907. Said policy, indndiug
all conditions therein for surrender of con-
tinuance as paid-up term policy, to be null
and Told on the failure to pay said note at
maturity." The Insured failed to pay said
note^ and on tbe 17th of July, 1907, the com-
pany wrote the following letter to him: "We
are so disappointed at not hearing from you,
about your premium note and interest of
$23.88 past due since June 1st, tbat we are
inclosing self-addressed stamped envelope for
reply from you, saying why yon have not at-
tended to same. If we can help you by ac-
cepting part cash and extending note, or
make It easier for you In any other way.
please be tree to express your rlews, and we
will give yoor prompt r^ly." The insured
made no response. The case was heard by
his honor the presiding Judge without a
Jury, and he found as a fact that "a con-
clnsiTe case of waiver of forfeiture tar non-
imyment at maturil; of premium note Is es-
tablished," and aocordln^y rendered judg-
ment in favor of the plalntUt for the amonnt
of the policy, whereupon the defendant ap-
pealed.
13ie lettw was the only testlmimy Intro-
duced by the plaintlfC to show that there
was waiver of tbe right to Instet upon the
fortdtur& Tbe question presented by the
exceptions la whether there was any eridmce
tending to show waiver.
[1] The anthorltleBcltedt^the apptiUmfB
attorneys unquestionably sustain the propo-
sition that Qiere was a forfeiture of tbe
policy, when the Insured tailed to pay the
note at maturity.
[2] There is nothing in the letter mani-
festing an intention on the part of the com-
pany to waive the forfeiture. It was the
intentiott of the company that tbe letter
should be prospective In its operation; that
it was merely intended to afford the Insured
tbe opportunity of entering into negotiations
that might culminate in a waiver of the
forfeiture, if the insured compiled with the
terms and conditions upon which they might
agree. It cannot be successfully contended
that the ignoring of the letter by tbe insur-
ed was as beneficial to him as If the parties
had entered into an agreement and had per^
formed the conditions upon which the tcse-
feiture was to be waived.
Judgmoit reversed, and a new trial grant-
ed.
WOODS, BTDRIOE, WATTS, and FRA»-
BR, JJh concur.
On Rehearing.
PER CURIAM. After careful considera-
tion of tbe petition herein, tbe court Is satis-
fled that no material question of law or of
fact has either been ovalooked or disre-
garded.
It It therefore ordered that the petition be
dismissed and that the order heretofore
granted staying the remittitur be revoked.
OSS. a ci>
OUBBIDNOB SOYEBBION OAHP WOOD-
MEN OF THE WORLD.
(Supreme Court of South Carolina. Hay 28.
1913.)
1. imtnuurca (f 825*)— Mctoal BEKBrrr Iv-
SITBANCI^-RGIIfCTATEMENr—WAIVBB 09 OB-
JECTIONS—EVIDERCE.
Evidence held sufficient to warrant sub-
mission to the jury of the question of waiver
of the pronsions of the constitution and by-laws
of a fraternal benefit aasociBtioD, requiring a
•ror ottaer cuw h« umt topic sad swtloa NUHBSB In Deo. Dig. 4 Am. Dig- Kay-No. B«rlM A
Digitized by Vj
8. 0) OUBREKGE T. SOVEKEiaN GAMP WOODiSXS OF rTHB WOItliD 443
certificate of good health as ft condition of re-
inrtatement after forfeiture for nonpayment of
dnet.
[Ed. Mote.— For other caaes, lee Inaorance,
Gent Dig. { 2000; Dea l^Ti 82S.*}
2. Afpbal and E^ob (S 8e9*>--KBViBW— Oon*
OLuaivENme or Vbbdict— Fraud.
Where the gaestion of fraud on the part
of an iosured in procuring relnatatement in a
fraternal benefit aasociation la properly sabmit-
ted to the jury, their verdict is not subject to re-
view by the Soprema Court
[Ed. Note.— For other cases, see Appeal and
Error: Cent Dif. H 891^^021. ioSSTsOZi;
Dee. Dig. f 909.*]
Appeal from CHrciilt Qoart, Ywk Gonnty;
Thos. S. Sease, Judse.
Action by B. 3. Currence, u administrator,
against the Sovereign Camp Woodmen of the
World. Judgment for the plalntUf, and de-
fendant appeals. AtHrmed.
A copy of the answw Kferred'to in the
opinion is as follows:
"The d^endant answering the complaint
ot the plalnttft respectfully shows to the
court:
"(1) The defendant denies each and erery
allegation In plalnOtrs said complaint con-
tained not hereinafter spedflcally admitted.
"(2) This defendant admits it is a Crater-
nal beneficiary association incorporated nnder
the laws of the state of Nebraska, and duly
antborlzed to transact business In Sonth
Carolina as such, and during all the times
mentioned In tbe complaint was doing bnsl-
nau in Sonth Carolina acting under the ao-
morltr of the statnte law of this state. The
dtf aidant also admits that It lua subordinate
lodg«s or campa and that it has sndi in
Sontb Oazollna, one of which is and was
known as 'Black Jack Camp No. 247,' of
irtdch W. M. Jo7 became a member In An-
gaat, 180T; bat ttaia defendant alleges that
membership In said order and the Boapenslon
of monbers from said order and ttum res-
toration of menriiers to said order, and tbe
benefictary certificates iflsned to tbe mem-
bers of tbe order, and whether the same
shall be of force and effect or not, are all
governed aqd controlled by the constitutlan,
laws, and by-laws of tlie Sovereign Gamp
of the Woodmen of this WorM, as weSL as by
the statute Uws oC the state of Sontli Caro-
lina relating to fraternal ben^dary asM>cia>
tlona. *
"(8) Further answering, ttils defendant
shows to the court: IbMt wbll9 plaintilTs
intestate was accepted as a member of the
defendant corporatkm through inltiaticvi in
one of Its subordinate camps tm the 27tb of
August 1907, and on said date a beneficiary
certificate was issued to plaintlfTs intestate,
yet the defendant alleges that plalntlCTs lor
testate was suspended on the Ist day of May,
1911, for not paying his monthly assessment,
which said suspension was authorized and re-
quired under section 109 of the constitution
and by-laws of the defendant corporation.
which said section reads as follows: *8ee.
109. (a) Every member of Oils order shall
pay to the derk of hla camp each month one
asseanOHit payment, as required In section
66, which shall be credited to and known as
"Sovereign Camp Fund," and be shall 'also
pay such camp dues as may be required hy
the by-laws of his camp. He shall pay any
additional assessments for the Sovereign
Gamp fund and camp dnea, or either, which
may be legally called, (b) If he falls to
make any such payments on or before the
first day of the month fdlowing, he shall
stand Buwoided, and during such suspen-
sion his beneficiary cerfiflcate shall be void.'
"(4) That section 115 of the constitution
and by-laws of the defendant corporation
contains the following provisions: 'Sec. 1X6.
(a) Should a suspended member pay all ar-
rearages and dues to the clerk of his camp
within ten days from the date of his sus-
pension, and If In good health and not ad-
dicted to tbe excessive use of Intoxicants or
narcotics, he shall be restored to member-
ship and his beneficiary certificate again
become valid, (b) After the expiration
of ten days and within three months from
the date of suspension of a suspended
member to reinstate he must pay to the
clerk of his camp all arrearages and dues
and deliver to him a written statement
and warranty s^ed by himself and wit-
nessed that he is in good health and not
addicted to the excessive use of intoxicants
or narcotics as a condition precedent to re-
instatement, and waiving all rights thereto
If such written statement and warranty be
untrue, (c) Any attempted reinstatement
shall not be efFective for that purpose unless
the member be In fact in good health at the
time, and If any of the representations or
statements made by the said applicant are
untrue, then said payments shall not cause
his reinstatement nor operate as a walvw
of tbe above conditions.'
"(S) That on the 4th of July. 1911, one Uol>-
ert Saye Blddle, the clerk of subordinate
camp Mo. 247, of which W. M. Joy had been
a member, attempted to reinstate the said
W. M. Joy into membership in said corpo-
ration by remittlnc to said defendant corpo-
ration the sum of $3, the same being some
two months after his suspension, and the said
W. H. Joy not having given the clerk of said
camp a written statement and warranty sign-
ed by himself and witnessed that he was in
good health, and so on, and the defendant
here alleges that at the time of the attempt*
ed rdnstatement, on the 4tb day of July.
1911, the said W. M. Joy was sick of typhoid
fever, dying of said dnad disease oa the
21st day of July, 1911. And this defend-
ant further alleges that under section 7 of
sn act of the General Assembly <tf South
Carolina entitled 'An act for the regulation
and control of fraternal 'benefit
Liigilizgd by..
•For otbsr oasts am ism* topic aad ssotlon NUUBBB in Dso. Dig. * Am. Dig- Ksy-No. Series * R^'r 1
.444 „ 78 SpUTHBASTiaUl BBPpRTBB (8.a
apjwored FebniaTT 28, 1910. tt 1> piorldea,
'No eabordlnate body or any ot Its offlcen
or members sball hare tbe power or author-
ity to waive any of the jHrorl^ns of tiie
laws ' and constltatlon of tbe association,
and the same shall be Unding npon the as*
80<^tlon, and each and every member tbere-
of and their beneficiaries,' and therefore this
defendant pleads as a matter of law that
the clerk of the subordinate camp, of which
W. M. Joy had been formerly a member,
conld not by accepting dues from a man then
sick unto death reinstate him In the deffend*
ant corporation.
"(6) That plaintiff's Intestate having been
snspended legally under the constitution,
laws, and by-laws of the Sovereign Camp of
the Woodmen of the World on the 1st day of
May, 1911, for nonpayment of monthly as-
sessments, and his certificate of Insurance
being void under tbe constitution, laws, and
by-laws of the defendant company during the
period of suspension, and said intestate hav-
ing died without being restored to member-
ship in said order, the beneficiary certificate
issued to plaintiff's intestate by the defend-
ant is and was at the death of the intestate
null and void and of no force and ^ect
"(7) But still further answerli^, the de-
fendant shower to the court that, after his
suspension, plaintiff's intestate solemnly de-
clared to the officers of the subordinate camp
of which he had been a member his intention
of forever severing tils connection with the
Woodmen of the World, and defendant al-
leges that said Intestate died without know-
ing of the efforts made by his friends to re-
store him to membership; and the ¥3 that
the trloids of the said intestate raised and
paid over to the clerk of the subordinate
camp (when they knew that the Intestate
was sick with the fever whereof he died in
a short time thereafter was forwarded by
the said clerk to the Sovereign Gamp, but
with no information as to the dckness of the
Intestate, and as soon as the Sov»elgn Camp
was Informed of the facts snd that said
clerk biul no certificate of the good health
of OxB Intestate signed by him and 'witness-
ed, the Sovereign Gamp promptly returned
the 93 to the derk of the subordinate camp,
Bobert Saye Blddle, who paid it over to Hie
parties who paid It to him In the first in-
stance, and t}ie same was rec^ved and ac-
cepted by them. '
"(8) The defendant does therefore especial-
ly deny ttiat It is Uable to plaintiff as admin-
istrator In the snm of $1,000 and interest
thereon from July 21, 1011, and does especial-
ly deny that It Is liable to plalntlfl as ad-
ministrator In any sum whatsoever.
"Wherefore defendant prays that tbe eon^
plaint t>e dismissed wltii costs.**
J. S. Brice, at ToAvttl^ for appellant
John R. Hart and Hart * B»xt, aU U Xork-
vlUe^ tvt nspondBOt
6ABT, OL J. In order to understand the
fkcts and tbe Issues raised by the pleadings^
it will be necessary to set out a capf of the
answer in the report of the case.
[1] The first question that will be consider-
ed Is whether there was any testlnwny tend-
ing to show waiver on the part of the de-
fendant
It waa the duty of the d^k of the local
camp to make collections for the camp. Sec-
tion 03 of the constitution and by-laws of
the Woodmen of the World provides that *it
shall be the duty of the cl&^ to have charge
of the records, attend to the corree^ndence,
accounts and literature of the camp, and all
miscellaneous matters pertaining to its wel-
fare." (It was admitted that this has refer-
ence to the clerk of the local camp.) Sub-
division "c": "He shall remit all funds due
and belonging to the Sovereign Camp to the
Soverdgh Clerk as by law provided." It
was Che duty of the local clerk to make his
report to the clerk of the Sovereign Camp
and to state whether the Insured had deliver-
ed to him a written statement that be was
at that time in good health. The clerk of the
local camp wrote the following letter to the
Sovereign damp: **01over, 8. C, No. 2.
Camp No. 247, S. a Located at Oak Bldgei
BIr. Jno. T. Tatee— Dear Sir: Find P. O. of
der for f3.00, tot r^nstatement of Sov. W. M.
Joy, Ger. No. 18S23. He was suspended on
assessment No. 247 and now wishes to be re-
instated, and made payment to me this morn-
ing, and I made my reptnrt yestorday, so I
told him I would mall same to yon, and if
you accepted It It would be O. K., and if
yon didn't he could take the mattw up with
you. Hoi^g to hear from you In regard to
this, at your earliest convenience, I beg to re-
main. Yours very fraternally, Robert Saye
Riddle, Clerk. This July 4, 1011." This let-
ter shows that the clerk of the Sovereign
Camp knew that tbe certificate of good health
had not been delivered; or at least gave to
him sudL notice, which, if pursued with due
diligence, would have led to knowledge of
the fact that the cutiflcate had not been
delivered, which ia egialvalent to notice. It Is
true that under the provisions of the statute,
the local cierk did hot have the power to
waive compUanoe with the requirements of
the constitution and l^-lawa ; but tbe tssti-
mony tends to Show that there was waiver
by the SovMslgn Gamp.
[t] Tbe otbw gnwtt<[m Is Aether the In-
sured waa guilty of sndu fraud as rexidered
the poll^ null and void. Even If ftt should be
conceded that the anestlon of fraud waa
made an Issue the plesdings, it was,
however, property submitted to the Jury, and
tbelc finding la not subject to review 1^
tfato court
Judgment afflnned.
HYDBIGK. WATTS, and FRASER, JJ,
codgqe; WOODG^ in concon lartha reuilL
Digitized by VjOOglC
'6. Gi
446
(94 & 0. ««)
OSTEIEN at ftL T. BT7LTMAN et aL
(Smprcms Contt of Sootli Candlna. BCtj 27,
1918.)
1. Apfsai. ard Erbos (S 1009*)— Law ot ths
Case.
A determiUBtloD on appeal that defendant
was not entitled to a jurjr trial la conclaiiTe
on a subseqoenC appeaL
[Ed. Note.— For otlwr caaee, lee Appeal and
Error, Cent DJc |f 4870-1379; Dee. Die I
1099.*]
2. Appeal and e^ob Q 119!^}— Rixaud—
ISeUBS FOB JUBT,
A determination <m appeal tiiat defendant!
were not entitled to a Jury trial did not con-
clude tbe rigbt of the trial Judge to refer ia-
snes to a jury for hiK own enlichtenment
[Ed. Note.— For other caaea, lee Appeal and
Krror, Cent. Dig. H 4061-4666; Dwi. Dig. 1
1195.*]
a. Pabit Walls (I 9»)— Lm Pbhdbhs (I 24»)
— BlOHTB AHD LlABIUTIEB 07 PUBOHAaSBa
—PBO VISIONS OT DBKD— LUEN.
A grantor, by tbe terms of bis deed, was to
have the right to join to any wall constracted
on the side of the Ipt by the grantees, or If
tbe grantees did not build on such line before
tbe grantor desired to use the wall, the grantor
and .bis assigns might enter and constract a
wall sufficient to support a tbree-atory bailding,
and join to the same, for which the grantees
would pay the cost, which was to be a Ilea on
the lot convey^ as long as it remained tbe
property of the grantees, or if conreyed before
payment, the lien was to continue until the
wall was paid for. After tbe conreyance the
grantor erected a bnHding, built a party wall,
and demanded the cost of the grantees, who
refused to pay, and thereafter conreyed to a
third person, who had both actual and con-
BtroctiTe notice of the agreement. Held, that
tbe building of the wall during tbe ownership
of the grantees vested the Hen in favor of the
grantor, and such lien was not discharged by
tin conveyance, and the commencement of an
action to foreclose it, and the filing of a lis
pendens fixed the rights of the parties, so that
the BttbseQuent grantee took snbject to the lien.
[Ed. Note.— For other cases, see Party "Walls,
Cent. Dig. U 42-68; Dec Dig. | 9;* Lis
Pendens. Cent Dig. H 88-40, 42-46; Dec
Dig. i i4.»]
Appeal from Common Pleas Circuit Court
of Sumter County; S. W. G. Shipp, Jndge.
Action by C. P. Osteen and another against
F. A. Bultman and another. Judgment for
plalntUfB, and defendants appeal. Affirmed.
See, also. 90 S. O. 462, 73 S. B. 874.
Lse * Molse and J. H. Ollfton, all of
Somter, for a^eUanta. S. D. of Sum-
ter, for respondents.
BTDRICE, J. On May 8, 1900, plalotlfls
conveyed to defendants a lot In tbe dty of
Sumter. Tbe deed of conveyance contains
tbe following recital: "Whereas, tbe gran-
tors herein convey the lot of land hereinaft-
er described for tbe consideration hereinaft-
er stated, and as additional consideration for
aald conveyance, the grantors shall have the
light to join to and connect wltb any wall
constructed on the eastern edge of tbe lot
hereinafter described, by tbe grantees, tbelr
helrB or assigns; but should tbe grantees,
fh«jlt heirs or aaslgng, not build the wall on
tbe eastern edge of said lot, befbre Ot» pran-
tors or their belis or assigns desire to use
such wall, then the graiUx>rs, thdx heira or
asslgos iriiBll have the right to bdUx on ttie
eastern edge of aald lot and move any ob-
structions and construct a wall on tbe east-
ern edge of said lot, sufficient to support a
three-story bnlldlng and Join to the same,
and the grantees herein agree to pay to tbe
grantors or th^ hdrs or assigns the cost
of said wall. The cost to he ascertained
from the contractor who constructs said wall.
The cost of said wall to be a lien on the lot
conveyed as long as the same remains the
property of the grantees or if before said
wall Is paid for tbe grantees, should convey
said lot to any corporation for the use of
the Elks Club or to the Elks Club, then tbe
lien shall continue until said wall shall have
been paid for. Tbe acceptance of this deed
shall be conclusive evidence of tbe grantees'
agreement to the foregoing."
A abort time after the delivery and accept-
ance of the deed, plaintiffs erected a three-
story building on their lot adjoining and east
of the lot conveyed to defendants, and, for
the purpose of Joining to tbe same, they
built along the entire eastern edge of tbe lot
which they bad conv^ed to defendants a
tbree-stoiT wall, . sufficient to support their
building. On September 20, 1900, the wall
having been finished, platntlfts demanded of
defendants payment of the sum of $1,684.93,
tbe cost thereof. Their demand having been
refused, they brought this action to recover
said sum, and to foreclose the Hen therefor,
stipulated for in tbe recital of their deed to
defendants above quoted. At the commence-
ment of the action, plalntiffB died a notice
of the pendency thereof. Thereafter and be-
fore Judgmmt, to wit, on March 4, 1911, de-
fendants conveyed tbe lot to one W. T. An-
drews, who had both actual and construc-
tive notice of tbe agreement between these
parties relative to the wall and of the pend-
ency of this action. By supplemental an-
swer, defendants set up their conveyance to
Andrews, and assert that, under tbe terms
of the deed above recited. It had the effect of
discharging the lien on the lot therein pro-
vided for. In tbelr original answer defend-
ants had set up cutain othu claims or de-
fenses, to wit, that there was an agreement
between the parties, in addition to and inde-
pendent of that contained In tbe recital of
the deed, to the effect that the wall to be
built for the benefit ot plaintiffs should be
only 80 feet long and two stories high, though
strong enough to support a three-story build-
ing; that it should not cost over $760, and
that It was not to be. paid for unttl It was
used by tbe defendants or their auocessoza
In title, and, finally, that even if they are lia-
ble for the cost of the wall, tbe alleged cost
thereof to plaintiffs was excessive and unrea-
*7ar etiwr asms m* nme topic and MctioB NUHBBB In Dw. Dls. A Am. Dig. Kcr^e^^S^^
446
78 80UTHEASTBBN REPORTEB
<B.a
sonable. After the case had been referred to
the master to take the testimony, defendants
moved to be allowed to file a mpplemental
answer, setting np, as a defense, their con-
veyance of the lot to Andrews, hereinbefore
mentioned, and their motion was granted.
Upon the filing of their supplemental an-
swer, they moved to discharge the reference
and demanded trial by Jury, and, falling in
that, they moved for the snbmlaslon of cer-
tain issues to a Jury. The court held that
they were not entitled to a trial by Jury as
of right, and that they had failed to com-
ply with mle 28 of the circuit court relative
to the submission of Issues in equity cases
to a Jnry, and refused their motion. On ap-
peal to this court, that order was affirmed.
90 S. G. 452, 73 S. B. 874. The case was
then heard 'On the testimony taken and re-
ported by the master, after the refusal of
another motion for a Jury trial, both as a
matter of right and for the submission of Is-
sues to a Jury. The court found against the
contention ot defendants on all their grounds
of defense, and gave judgment in tavor of
plalntlflb for the amount dalmed by them
and for the foreclosure of their lien therefor.
From this Judgment, the defendants have
appealed.
[1, 2] Those exceptions irtildk question the
rulings of the dtcuit court upon the contoi-
tlon of the defendants for a trial by Jury,
and, for dielr submission of Issues to a Jury,
will' not be considered, for the matter Is res
Judicata, having been concluded by fb» for-
mer dedslon of the drcult court and the
decision of this court thereupon. Of course
that dedslon did not conclude the right
«C the trial judge to refer Issues to a ju-
ry for bis own enlightenment, and there Is
no Intlnuftlon In the refusal of defendants*
motion that tiie drc^t judge so construed
the previous order. The submission of any
or all the laenes of Act in an equity case to
a jury for Us own enlightenment is the priv-
ily of the judge who hears the cause, and
not a right of the parties. Upon Oie defenses
of the defendants which involve questions of
fact, we concur in the findings of the circuit
court
[3] We concur also on the holding that un-
der the terms of the redtal In their deed to
defendants, plaintiffs bad a Hen upon the lot
for the cost of the wall erected by them, and
that the conveyance of the lot to Andrews by
the defendants did not discharge the lien.
The only reasonable construction to be giv-
en to the recital is that It was the Intention
of the parties that, if the plalntlfTs, their
heirs and assigns, failed to exercise their
right to build the wall while the defendants,
or the Elks Club, or any corporation hold-
ing for the Elks Club, owned their lot, they
should have no lien thereon, but that they
should have such Hen, If the wall was built
during the ovrnershlp of the lot by any of
said parties. The building of the wall, tbtxe-
fore, during the ownership of defendants
vested the lien In favor of plaintiffs, and the
commencement of the action to foreclose It
and tlie filing of lis pendens fixed the rl^ts
of the parties so that the subsequoit convey-
ance to Andrews ms subject to those ilghtik
Affirmed.
OARY, a X, and WOODS, WAISTS, and
FBASEB, JJ., ctmcnr.
(K 8. C SS)
BRAND SHOB CO. v. WOBIBN'S WDAB
SHOP.
(Supreme Omirt of South Carolina. Ifay 28^
1913.)
1. Afpxai. and Ebeob ({ lOS*)— Oanmu Av^
FKALABUC— RDLinaa ON PuUDENOa.
An order rafaalag to strike out an answer
for fiivolottsness is not appealable
[Ed. Note.r-For other cues, see Appeal and
Error, Cent Dig. H fO^iWihtic. Dis.Tl03.*]
2. Plbadino (i 123*) — Oenbui. Denial —
FOBH.
An answer that defendant lor a flrrt de-
fense alleges that it denies every allegation in
the complaint c<mtained and tberdUi stated was
sufficient as a general denial and was not fatally
defective In "alleging that debndant denied** In-
stead of denying in terms.
[Ed. Note.— For other cases, see Pleading.
Cent Dig. 1 266; Dec Dig. | £28.»}
Appeal from Common Pleas Circuit Court
of Barnwell County ; Thoa H. Spain, Judge.
"To be officially reported."
Action by the Brand Shoe Company against
the Women's Wear Shop. Judgment for de-
fendant, and plaintiff appeals. Dismissed.
Tbos. M. Bonlware, of Barnwell, for appel-
lant James M. Patterson, of AUaidaK
respondent
OARY, 0. J. This Is an action on account
for goods, which the complaint alleges were
sold by the plaintiff to the defendant and
the appeal is from an order refusing to
strike out the answer as frivolous.
The answer is as follows: "The defend-
ant Women's Wear Shop, answering the
complaint herein, and for a first defense
thereto, alleges that It denies every auc-
tion In said complaint contained and there-
in stated." His honor, the circuit judge,
refused the motion to strike out the answer
as frivolous on the ground that it Is a gen-
eral denlaL
[1] In the first place, an order refusing to
strike out an answer on the ground of frlv-
olousness Is not appealable. Bank v. Wit-
cover, 77 S. C. 441, 58 S. B. 146; Harbert
V. Atlanta, etc., Ry., 74 S. C. 13, 63 S. IL
1001. But, waiving such objection, the ap*
peal cannot be snstained.
[2] The defendant concedes that the an-
swer would have been sufficient if the de-
fendant bad denied the allegations of the
O
•ror etiwr csms am nm» teple anid Mctloa HUH BBR la Dm. DIk. A Am. Dig. K^gNo^fiMi^
BROWK T. BBOWN
447
complaint, wltbont aU^lns tbat it did so.
We do not deem it necessary to cite author-
Itlefl to show that the dUterenm In form ia
wholly ImmateriaL
Appeal dismissed.
WOODS. HTDRICK, WAITTS, and FBA-
SEB^ J3^ cmeor.
(H S. C. 492)
BROWN et ui. T. BROWN «t aL
(Supreme Court of South CatoUdju Mmy 27,
1813.)
1. DowEB (I SM) — "Inchoate Riobi or
DOWKB."
An "inchoate right of dower." while It
cannot be properly deuomlnated an estate In
laodfl nor a vested iuterest therein, Is a sub-
stantial right, posse Baing the attributes of prop-
erty to be estimated and valued as such, a
right attaching by implication of law, and
which, from tha moment that the fact of mar-
riage and of seisin have concurred, is so &zed
on the land as to tiecome a title paramount to
tbat of any other person claiming ondsr the
husband by a subsequent act; it is such a
right as equity will protect.
[Ed. Note.—For other cases, see Dower, Cent
Dig. IS 85, 86 ; Dec. Dig. | 85.*
For other definitions, see Worda and Phraaes,
ToL 4, pp. 3493, 3494.]
2L DOWKB (i 85*)— ViXUS— STATUTKB.
Under the express provision of Glv. Code
1912, S 8491, relating to proceedings for allot-
ment of dower to widows, the value of land
aliened in the lifetime of the husband at the
time of alienatl<«, with interest from the death
of the hndtand is the value upon which to as-
sess dower.
[Ed. Note.— For other casefe, see Dower, Cent.
Dig. H S25, 826; Dec Dig. | 86.*]
3. DowxB (§ 32*)— InoHoan Biohx of Dow-
Value.
The proper rule for computing the present
value of the wife's contingent right of dower,
during the life of the husband, is to ascertain
the present value of an annuity for her life
equal to the interest in the third of the pro-
ceeds of the estate to which her contingent
right of dower attaches, and then to deduct
from the present value of the annuity for her
life the value of a similar annuity depending
upon the joint lives of herself and her husband,
and the differMiee between these two sums is
the present value of her contingent right of
dower.
[Ed. Note.— For other cases, see Dower, Oent
Dig. { 84; Dec. Dig. | 82.*]
4. DowEB (I 35*)— Inchoate Rioht of Dow-
EB—PBOTKCnon BT iNJDHCmON.
While equity will protect an inchoate right
of dower, it should do so in such a way as to
discourage the Improvement of estates as little
as possible, and where it appears that the al-
leged waste will not snbstantiaUy impair the
value of the land, an injunction should be re*
fused.
[Ed. Note.— For other cases, see Dower, Cent
Dig. 11 SB, 86; Dea XHiTl 85.*]
6. Do WEB ({ 8S*)— IRCHOATB RiOHT Of DOW-
EB — Right of Obanteb — Valuation -or
Do WEB.
The owner of land to which an im^ate
right of dower has attached may Implead the
contingent dowress to have the value of the
right jndicially ascertained, so that he may
make improvements upon the estate without
fear of losing them by having them asrigned to
the widow as part of her dower, or in enhance-
ment thereof in the event that her inchoate
right should become consummate.
• [Ed. Notow— For other cas«i,Bee Doww, Ont.
Dig. SI 8S, 86; Dec. Dig. I 86.*]
Appeal from Oommon Pleas CSrcnit Oonrt
ot Chesterfield Oouatr; Thoa, W. Svaln,
Judge.
Action for Injonctloa by. J. H. Brown and
Nancy A. Brown, his wife, against Jesse O.
Brown and another. From an OTder refnaing
to enjoin the defendants from committing
waste on land in which the wife oC the
plaintlfT had a mere inchoate right of dower,
plaintiffs appeaL Reversed and remanded.
Miller & Lawson, of HartsrUle, for appd*
lantB. Dennis ft TIsra, of ^rtsrlUe, tor le-
spondents.
HTDRIOE, J. This is an appeal from an
order refusing to enjoin the defendants from
eonuoittlng waste, on the ground that the
wife of a grantor la not »itltled to the equi-
tat^e aid of the court, in the protection of a
mere Inchoate right of dower.
In substance, the complaint alleges: ^lat
the plaintiffs were lawfully married; that
dnrlDg coverture the plaintiff J. H. Brown
conveyed the land described in the complaint
to Jesse 0. Brown ; that the plaintiff Nant^
A. Brown has never relinquished her dower
in satd lands ; that Jesse C. Brown has sold
to the defendant A. M. McNalr all the timber
on said lands, without which they would be
rendered almost. If not altogether, worth-
less ; that the defendants have already com-
mitted acts of waste, and threaten to con-
tinue to do so, unless enjoined, to the Irr^M-
rahle Injury of the plaintiff Nancy O. Brown ;
tbat the d^endant Jesse C. Brown Is insol-
vent ; and that the plalntlffli lutre no odier
adequate remedy.
[1] In the consideration of this question,
It will be necessary to determine the nature
of the Inchoate rl^t of dower, which la thus
described In 2 Scrlbner on Dower 5: "It is
difficult to state with precision the nature or
qualities of Inchoate dower interest, when
considered as a right of property. A certain
vafueness of expression uniformly charac-
terizes the discussions of the subject, and
these discussions are commonly attended
with unsatisfactory reBults"-^nd after con-
sidering the cases In which the nature and
qualities of this right have been discussed,
the author concludes In these words: "Al-
though, therefore, an Inchoate Eight of dow-
er cannot be properly denominated an es-
tate in lands, nor indeed a rested intetat
therein, and notwithstanding the difficulty
of defining with accuracy the precise legal
qualities of the interest, it may, nevertheless,
be fairly deduced from the authorities that
It is a substantial right, possessing, in con-
templation of law, the attributes of property,
and to be estimated and valued as such."
«For ether esses see same topic and ssettaa HUMBSB la Dee. Dig. A Am. Dig. K«y-Ne. Series i
Digitized by
After quoting the forgoing laogoaco wltb
ai^iroTal, Hr. Justice Mclver (afterwards
Chlet Justice), In the case of SheSl v. Dun-
can, '31 S. C. M7, 10 S. E. B30. 5 L. B. A,*
821, sayB : "The Inchoate right of dower has
been treated as such a substantial right of
property as will afford a basis for an action
to protect It • • • Its present value
may be judicially ascertained and protected."
He dtee authorities to sustain these prop-
ositions. In Parb on Dower, 237, It Is said
to be "a right attaching by Implication of
law, which although It may possibly never be
called into effect (as where the wife dies in
the lifetime of the husband), yet from the
moment that the fact of marriage and of
tetsin have concurred i* «o flwed on the land
as to become a title paramount to that of
any other person claiming under the hus-
band by a subsequent act" This language
is quoted with approval In the case of Guu-
ningham t. Shannop, 4 Rich. Eq. 135. In
the case of McCreery v. Davis, 44 8. C. 195,
22 S. E. 178, 28 L. B. A. 655, 51 Am. St Rep.
7M, the court, in speaking of the right of
dower, says: "Although it la inchoate, yet
it Is a substantial right of property." From
the foregoing citations of authority, it la
clear that the circuit judge erred In holding
that equity would not protect an Inchoate
r^ht of dower.
[2-4] But while the court wlU protect the
right. It should do so in finch a manner
as to discourage the improvement of es-
tates as little as possible. In a case like
this, where the land has been aliened In the
lifetime of the husband, the statute (Civil
Code 1912, { 8491) fixes the value of the
land at the time of alienation, with lnter>
est from the death of the husband, as the
value upon which to assess dower. No fixed
rule has been adopted In this state by which
the present value of an Inchoate right of
dower may be ascertained. In some cases,
after the death of the husband, one-sixth of
the value of the land has been assigned to
the widow absolutely as a fair equivalent of
one-third thereof during her life. Clearly
this cannot be adopted as an invariable rule,
because the value of the dower deprads up-
on other elements besides the value of the
land, such, for example, as the age, habits,
constitution, and health of the widow, while
the value of the Inchoate right depends not
only upon these as they affect the wife, but
as they affect the husband alsa In Payne
Vi Melton, 68 S. a 870, 48 8. Bl 277, the
court held that one-sixth of the value of
the land was too much to be reserved by a
purchaser to protect himself against the
in<dioate right of dower of the wife of his
vMidor. The rule which seems to be baaed
npca at tiMfc xeum is Uut umoiuiosd fajy
Chancellor Walworth In Jackson t. Edward^
7 Paige (N. T.) 383. 408. It Is thiere said
that "the proper rule for computing the pres-
ent value of the vrlfe's contingent rlj^t of
dower during the life of the husband Is to
ascertain the present value of an annuity for
her life equal to the interest in the third
of the proceeds of the estate to which her
contingent right of dower attaches, and then
to deduct from the present value of the
annuity for her life the value of a similar
annuity depending upon the Joint lives of
herself and her husband, and the difference
between tliose two sums will be the present
value of her contingent right of dower."
This rule was adopted by the Supreme Court
of Alabama in Gordon v. Tweedy, 74 Ala.
232, 49 Am. Rep. 813, and bnpUedly by
this court, by the dtatlon of that case in
Shell V. Duncan, 31 S. C. 666, 10 S. E. 330.
5 Lb B. A. 821, as authority for the proposi-
tion that the preseit value of the right may
be Judicially ascertained and protected.
When the present value of the inchoate
right of dower shall have been ascertained,
the court will be In better position to make
adequate provision for Its protection, which
may be done in various ways, according to
the discretion of the court, depending upon
the drcumstances of each case. W anna-
maker V. Brown, 77 B. G; 64, 57 S. E. 666;
Jackson v. Edwards, supra. If it should aih
pear that the alleged waste will be so incon-
siderable that the value of the land will not
be substantially l^npalred, injunction should
be refused: for Instance, the destruction of
a body of timber on a plantation might be
waste from a 1^1 standpoint, yet if it la
done for the purpose of bringing the land
Into cultivation, it might result in materially
enhancing its value, and to enjoin it ndght
prev^t a substantial improvement
[I] As It may be difficult, if not impossible^
after the lapse of many years, to prove the
ralne of the land at the date of alienation,
either the owner of the land to which Uie In-
choate right of dower has attached or the
contingent dowress may implead the other—
the one, that the value of the right may be
judicially ascertained, so that he may make
improvements upon the estate without fear
of losing than by having them assigned to
the widow ae part of her dower, or in en-
hancement thereof in the event that her In-
choate right shoold become consummate ;
the other, that her right may be protected.
The order appealed from to therefore re-
versed, and the case remanded for further
proceedings not Inconalstat with the views
herein announced.
OABY. a J., and WOODS, WATTS, and
FBASBB, JJ^ eoneow
98 SOUTHBAiSTflBN BBIMbTBB
Digitized by Google
BBNFROB T. CUT OP ATLANTA
ii9
BENFBOB at iL T. CITX OT ATZANTA
•t ak
(Sainmne Court ot GvorsU. May 28, ISU.)
(BvOabu* t9 the Cwu)
1. MuHiOiPAi. C0BPORATION8 (S 863*)— Liui-
lATiOH oir Indebtedness— Effect.
Bt artlde 7. I 7, par. 1, of the Coiutita-
tka 0! Oeorgfa (GIt. Oode 1010, | 6668). it li
declared that no nmnicipaUtr uuul incur aoy
new debt, except for a temporary loan or loans
to supply casual defidencies of revenue, not to
exceed one-fifth of 1 per cent of the assessed
value of taxable property therdn, withont the
assrot of two-thitda ol the qaallflod voters there-
of, at an election for that pnrpoM, to be held
as may be prescribed by law. It further pre-
scribes a limit upota the amount of indebtedness
which can tinM' be inenmd.
lEd. Note.— For other caass. tee Muni^jal
Corporations, Cent. Dlfr H 1824-1827; Dec
mg:% 863.^
S. -Municipal Gobpobattons (i 863*)— Lxmi-
TATioH ON I HDEBTEDHiBft— Effect.
By article 1, S 4, par. 2, of the Constitn-
tkm (CiT. Code 1610, 1 6892). it is provided
that "leslBlative acts in vlolatioa ot this Con-
stitution, or the Constitatlon of the United
States, are void, and the jndlclaiy diall ao
deolare them."
[Eld. Note.~For odier case, see Monicipat
grporat^ Cent. Dig. {| 1824-1827 ; Dec
8b MumciPAK GoBPOBATXom a 864*)— Lna-
TATIOIf on INDEBTBDNMS — CONBTBUCnON
OF COWTBACT— "CbEATIOW OF D«BT."
A contract waa entered into by the city ot
Atlanta and a private corporation, whereby
the latter agreed to erect a crematory tor the
former, for a total price of |376,800, of which
it was agreed that an Installment of $00,000
should be paid in the year in which the con-
tract was made, and that the balance should be
paid in Installments ot $75,000 each, except the
last, extending through a series of yeara; that
the inataUmeDtS'to be paid annoaUy should bear
interest at the rate of 6 per cent mm the time
when tbey fell due; that the city pledged its
good faith for their payment, and the term "good
BBitb" was understood to mean tiiat tiia dty
could not bind itself to pay beyond the cttnrent
year, but the mayor and general council of
that year by resolution recommended to the
mayor and general council of succeeding years
to make appropriatimis to cover the deferred
paymeots specified in the contract; and that,
If a default In the payment by the dty of any
future installment of tne purchase money should
be made, this should, without any legal process
whatever, transfer the pOBsessIon of the plant to
the contractor company, and that the company
should "immediately become vested with the ti-
tle, possession, and control of said plant, exclu-
■ire of the land, as against the city of Atlanta,
and said company shall have the right to operate
the same free of rent, for Its own account, for a
griod of ten years from the date d such de-
alt" fleM, that such contract sought to
create a debt within the meaning of the con-
stitutional provision on that subject set out in
Hie first headnote, and, bring entered into with-
out BubmittiDg die qoeatlon to a preliminary
vote of the i>eopIe, it was invalid.
[Ed. Note. — For other cases, see Municipal
Corporations, Cent Dig. tt 182&-1S3S; Dec.
Dig.^ 864.*f
4. Municipal Cobpobations (i 093*) — II-
iboal ConTKAOTB— Injunction— Pabtieb.
Taxpayers of the city have such an interest
in the municipal funds arising from taxation
that they may Mjoin tb» crsattoii of Illegal
debts by, the corporatipn, or their payment
[Ed. Note.— For other eases, aee Manlclpal
Corporations, Cent Dig. || 21S8-2161; Dee.
Dig. S 098.*T "
6. Municipal Cobpobations (i 867*)— Pow-
EBS— Creation of iNDBBTKONBsa
Nothing In this decision prevents the mhyor
and council ot the city lif Atnnta from erecdng
a crcDutory in such manner as will not violate
the Constitution, or from submitting to the
qualified voters the question of whether the
dty shall Incur an lnd^>tedaaBS for tha purpoaa
of erecting a crematory, or from Inenrring spdi
indebtedness If duly authorized by the voters In
the manner prescribed by the Constitution. But
the dty and the cootiactor must be enjoined
from creatiBg a debt on the part of 'the dty
without the authority ot the qnalified votera,
and from carrying out a contract entered Into
without such lawnl anthority wUdi will have
that effect
[Ed. Not&^For other cases, see llnnidpal
OorporatloiH, Cent Dig. { 1841: Dec: Dig. 1
867.*]
Error from Snpertor Court, Fulton Comir
ty; Geo. Ll Bell, Judges
Action by J. N. Renfroe and others agalnat
the City of Atlanta and others. Judgment
for defendant^ and plalntHBi bilng error.
RevcKMd*
0. P. Ooree^ of Atlanta, for plalntifts In er*
ror. J. L. Mayson, W. D. Ellis, and Evtna,
Spence & Moor«h all (tf Atlanta, tor defestdr
anta In error.
FISH, a J. Certain dtlaena and taxpay
era of the dty of Atlanta, , in bebaU ot tbon-
■elves and such others stmilarly Mtuated a>
might desire to become parties tdalntifl',
brought a petition against the dty and cer-
tain ikamed officers thereof, and the Destruc-
tor Company, a corporation, to tba
defeudanta from carrying oat a contract en-
tered Into between the dty and the Destine
tor Company for the erection of a crematory
by the company for the dty, on the groimd,
among others, that the contract was void,
for the reason that It waa an effort to areata
a debt against the dty without complying
with the oonstitatioDBl provlalona rettulrlag
the assent of two-Udrda of the qoalifled vot*
era of the dty, expressed at an Section iield
for the purpose of determining whethw the
debt should be created. An Interlocutory In-
junction waa refused, and tba plalntUts ex-
cepted.
Bo much of the contract as is necessary to
be considered In deddlng th* case will be
hereinafter aet forth.
The first section of oar GItU Oode anu-
merates the laws of general operation whldi
are of force In this state. After reftarlng
to the ConatLtution of the United States,
the laws of the United States passed In pui^
suance thereof UMl treaties made under
the authority of the United States, the next
Item enumerated Is with referaice to the
local laws of the state, and the Constltotlon
•Ver other cues see same toplo and seeUoa NQMBBa la Deo. XMg. 4 Am. Dig. Key
. 78SJ1.-28
450
TO aOTTSBBABTEBN BEPORTEB
of OdB itate la declsreA to be the mpreme
Iftw tberdn nut In order. Tlnu, at tite Teqr
threshold of ttie Code of Qeov^^, the Con-
Btltntlon and Ito provlsiona are dedared to
be the anpreipe law, to whldi other laws
must yield if they are In conflict therewith.
At the ctoae of the Ci^ Oode are placed the
Constitution of Om «tate and that of the
United States. It Is significant that the be-
ginning and the «id of the law ft>r the pro*
tectlon of tt» dtlzena, as onbodled In the
OlTll Code of the state, are Its constltnUonal
provisions; and that at the b^lnnlug and at
the endr-^he Alpha and Om^ — of the Code,
stands the declaration of the supreme law
of the Constitution as a safeguard and funda-
mental guaranty of the rights of person and
pnvwtf. Once let it be understood that the
Constltntion can be violated or evaded at
will, and no law of lesser force can be safe
from a similar fate.
[1, 2] By article 7, 1 7, par. 1, of the Con-
stitution of this state (avil Code, | 6S63), It
Is declared: "The debt hereafter Incurred
by any county, municipal corporation, or
political division of this state, except as in
this Constitution provided for, shall not ex-
ceed seven per centum of the assessed value
of all the taxable property therein, and no
such county, municipality, or division shall
incur any new debt, except for a temporary
loan or loans to supply casual deficiencies of
revenue, not to exceed one-fifth of one per
centum of the assessed value of taxable prop-
erty therein, without the assent of two thirds
of the Qualified voters thereof at an elec-
tion for that purpose, to be held as may be
prescribed by law," etc. By section 10, par.
1, of the same article (Civil Code, § 6567),
it la declared: "Municipal corporations shall
not incur any debt until provision therefor
shall have been made by the municipal gov-
ernment" In article 1, | 4, par. 2 (Civil
Code. S 6392), It is declared: "Legislative acts
in violation of this Constitation* or the Con-
stitution of the United States, are void, and
the judiciary shall so declare Uiem." Here
we have in the fandamental law, where
rights and llmitattons are deUberatdy de-
clared, not in tl» heat of political ezdte-
Tomt, or the haste of mass meetings, or the
like, bnt In the calm consideration of the
people's representatives, formulating funda-
mental regulations for the protection of their
persons and property even against hasty leg-
islation or Inconsiderate action by the Leg*
Islatores or municipal antfaorities^ a limita-
tion upon nmniclpalitles In regard to the cre-
ation of debts, and municipal conndls are
prohibited from creating debts without the
consent of the taxpayers duly expressed.
This constitutional provision is not a mere
arbitrary or technical declaration of a rule
of procedure, but It is a substantial protec-
tion to the taxpayers of a community against
the action of municipal authorities, who are
at last bnt the agents and servants of the
people. If they seek to impose Inddvtednasi
npon the taxpi^ers without thdr consrait.
This provision of the Constitution was not
hastily declared or based on mere theory, but
it grew ont of the sad experience of the
past; and was Intended to prevent a repeti-
tion of It In the fature. In Walsh v. Glt7
Oonndl of Augusta, 67 Ga. 29S. Oiief Jus-
tice Jackson said (page 299): "What was On
evil? It was the evil attendant v^on all
people who handle money not their own.
The dties of the state incurred a very heavy
indebtedoess — some of them became insol-
vent To levy taxes enough to pay them
would work the ruin of the dtlzens and
blight the prosperity of the dty. Not to
levy and pay them would be to destroy credit
and soil honor. The dties are the arteries
of the body politic. With them destroyed or
sluggish, the heart, the very life, of the re-
public would cease to beat, or pulsate with
feeble supply of vital fluid. So that In their
health is involved that of the entire common-
wealth, and to suffer thdr honor to be tar-
nished is to soil that of the state." See,
also, the remarks of Mr. Justice Cobb on the
same subject In C^ty of Dawson v. Dawson
Waterworks Co., 106 Ga. 696-704. 32 S. E.
907, et seq.
It is well to mention, as a part of the
history of the adoption of this constitutional
provision in its present form, that In the con-
stitutional convention of 1877 a committee re-
ported the paragraph with a provision con-
tained therein giving to such corporations
the power to increase their Indebtedness to
an amount not exceeding 2 per cent npon
the amount of taxable property therein, with-
out the assent of two-thlrda of the qualified
voters thereof. Mr. Mynatt, who was a mem-
ber of that convention, one of the represent-
atives for the county of Fulton and the dty
of Atlanta as a part of that county, opposed
the Inclnslon in the section of any such pow-
er, and offered a substitute therefor which
prevailed* and the paragraph was adopted
as It now appears In the ConsUtnOon. In
the course of his argument on the subject Mr.
Mynatt said : "Now, sir, we have ¥15,000,-
000 of p^<qiert7 In the dty of Atlanta* and
2 per cent on it wonld be 9300,000, wbldi
the dty council can Involve us in every year.
Th^ can ruin na without asking permission.
1 move to amend by striking ont In the fourth
line the words, *or Increase ita indebtedness
to an amount eneedlng 2 per cent,' and in-
serting in lien thereof the following words:
*Except for a temporary loan or loans to sup-
ply casual defidendes of revenue not to ex-
ceed one-fifth of 1 per cent' The one-flfth
will amount in the dQr of Atlanta to $80,-
000, the amount which the dty council may
borrow for the purpose of supplying casual
defidendes in the collection of taxes. I
think they should not be allowed to borrow
any money whatever, unless It is for this
purpose, and tiien, ^|?,the^i^^^s,^
ed, tt la to b« ptid bacSc Let hb not empower
them to InTolve ns In any Increased indebted
nen at alL I pnvow to stop the dtj conn'
dl at tbat point, and not allow thorn to cre>
ate a debt upon the people^" A member of
the otmrentlon asked the afpeakmr: "Does
not your city charter restrict the council In
this matter ai Inamdng the pnUlc debt?"
Mr. Mynatt repUed: "It does, dr." Bla in-
terlocntor then asked: ''Under that restric-
tion, then, can they .borrow any mon^ at
aur* Mr. Mynatt reipUed: "I think not,
but I want it passed here In this convention
that It BhaU not do It at aa" Small's De-
bates of the ConstltatLonal Convention, p.
It will thus be seen that not only was it
deliberately considered by the cmutltatlonal
convention, representing the people of the
entire state, that this restriction should be
put upon mnnlcipal conncUs, bnt that a ro
resentatlTe of the people of Atlanta and Ful-
ton county emphasized and indsted upon the
importance of making this a constltuttonal
limitation, and not leaving it to the legls-
lative prohibition contained in the diarter of
the dty. That convention and those r^re-
sentatives knew full well the conditions to
whl<di Chief Justice JTat^son referred In the
excorpt from his opinion above quoted, and
tbey determined to place It in the fnndameo-
tal law that such a situation should not
again be brought, about by a municipal coun-
cil. It Is unnecessary to discuss here the
meaning of the words "casual deficiency,"
farther than to say that they are not involv-
ed In the present question, and that they
hare received a fixed construction and dec-
laration as to what they mean and what
can be done under them. The constitutional
plsn was to pay carrent expenses ea^ year
from funds belonging to that year. Butts
County V. Jackson Banking Co., 129 Ga. 801,
60 S. B. 149, IS L B. A (N. S.) 667, 121 Am.
St ReP^ 244.
The condition (tf affairs above mentioned,
and the placing of constitutional limitations
upon the power of municipal corporations to
contract Indebtedness or impose liabilities up-
on the taxpayer, were not confined to Georgia;
but similar condlttona occurred in a number
of states, and constitutional limitations upon
mnnlcipal councils were correspondingly Im-
posed.
[3. B] Let it be distinctly understood, and
let there be no mistake^ that the question be-
fore this court is not whether a crematory Is
desirable for the dty of Atlanta, or whether
a crematory can be built This court In no
manner declares that the dty of Atlanta
cannot have a crematory. On the contrary,
it can have a crematory, and can contract an
indebtedness therefor, If It Is deemed desir-
able, by pursuing the method pointed ont in
the Constitution. The question is not wheth-
er the dty can have or should have a cre-
matory, but whether the munldpal council
can Impose on the taxpayers an Indebtedness
451
to pay for a* crematory, -wllAoat tha coiuent
of the ta:q)ayer8 expressed In the manner re-
quired by fha Constitution of the state, and
whether the city council have undertaken to
do this in substance. It must not be for-
gottm that the people are the sovereigns, and
tbat the mayor and coundlmen are but their
agents elected to represent them. The former
are the masters; the latter, the servants.
The sovereign people have seen fit, not only
to prohibit the mnnlc^ittl council of Atlanta,
but those of all other dtles of the stat^
from incurring indebtedness except In the
manner whldi the Constitution provides. To
allow munldpal coundls directly or by In-
direction to violate these constitntlonal re-
strictions, made by the people for thdr own
protection, would be to exalt the agent above
his principal, the servant above his masta.
It was claimed that there was a necesdty
for a crematory in order to protect the public
health, and that prompt action was required.
But this argument loses Its force in the light
of the facts tiiat the contract now under
consideration was proposed in the spring or
early summer of 1912. After consideration
by couodl, the contract was floally made in
July, 1912. There was litigation in the ef-
fort to prevent the crematory, which the dty
formerly had on the property where this one
is sought to be erected, from being removed,
and it appears from the record that the work
was not begun on the new crematory for
some time, and that only $26,000 out of a
total contract price of $376,800 had been ex-
pended by the contractor when the present
litigation was instituted. The petition in
tills case was filed February 25, 1913, the or-
der of the judge of the superior court was
passed on March 11, the transcript of the
record was filed in the office of the clerk of
this court April 10, and (neither side request-
ing an advancement of the hearing) it waa
argued on May 9, 1913, in this court
From this brief recital it will be seen that
the matter has been pending before the coun-
cil and the courts for more than a year.
Section 403 of the ClvU Code provides for
holding an election to determine whether a
munidpallty will incur an indebtedness, oth-
er than a bonded debt, upon giving notice for
80 days preceding the date of the election.
It is apparent tlut 12 ttmes the requisite
time for ^ving the notice and holding Uie
election has elapsed. wUhont the slightest
effort to do 00. In the meantima it appears
that the nu^or and certain members of ttie
council and certain taxpayers have oontlnu-
ously insisted that the contract was vtdd,
and both the municipal council and the con-
tracting parl7 have acted with full knowl-
edge ot this fact of the fact that the
mayor vetoed the action of council In mak-
ing the appropriation to carry out the con-
tract So that it is perfectly clear that there
has been ample opportunity to submit the
question of incurring an ind^tednflu f or
Digitized by VjOXJ^Ii
BXETFBOB r. CITT OF ATLANTA
n S0IITHB1A.S'11BBH SBPOBTBB
(Oft.
dils pnTpOM to fbe peopto, that it oniM bave
been done long ttgOt and tbat any delar oc-
eonlnff la not to be dia^eA to a want of
time to main BDeh a sabmlacdon, bnt to the
determination of flu eonncU and the con-
tractor to make the contract without the
sabmlsslon. It camwt, therefore, be placed
either on the ground of the necessity of hasto
to protecting the pabllc health or on the
ground of lack of time for submitting the
question to the people; but the case presents
the bald question of whether the municipal
council bare the right to make this character
of contract without submitting to the people
the question of incurring the debt, or wheth-
er to do so la In violation of the constitution-
al provision above quoted.
Taking up the question, then, not as a
matter of municipal health or of municipal
necessity, but as a question of the power of
the municipal council to make this contract
without a anbmlssioh to the people, we will
now consider the question whether the con-
tract so made creates an indebtedness within
the meaning of the constitutional prohibition
on that subject Numerous definitions of the
word "debt" have been made, some of them
quite restricted in meaning, and some of
them quite broad. In determining whether
or not the contract violates the provisions
of the Constitution on the subject of indebt-
edness, the question is not to be determined
merely by prescribing any exact, exhaustive
definition of the word "debt," ooveriog all
cases, and applying it as a verbal yardstick
to the particular contract, but rather by
considering the great benefidal purpose of
the OonatitotiDn and the totent of that in-
strument in making the provlalons. It Is not
00 much a matter of nicety lo definition of
words aa of substance in obeying the Constl-
tntlon. May we not, without aententlons-
nesa, say: Let him who stondeth confidently
upon a definition toke heed lest be fall, since
It has been wisely said: "D^nitton, simple,
positive, hard and fast aa it la, never tdls
the whole truth about a eonceptton." In a
dote to Superior Mfg. Go. t. School Dlat
Na a S7 L. S. A. (N. 8.) 1054, at pages 1060,
loei, the annototor says: "In intermetlng
debt limit provislona in the Gonstltatlons of
file states and local statutes and diarters of
munielpal corporations, the conditions which
CKlated prior to Oielr enactment, which th^
were designed to remedy, should not be tor^
SfXtUn: It yna not imtU taw people to many
states fbund themsdTea carried al«ig a
wave of pabllc extravagance whldi was like-
ly to bring tbem to bankruptcy that they
detenntoed to put an end to the danger by
setting a limit to expenditures to the Constl-
totions themselves. The evil was one of ex-
treme seriousness. The debt limit provisions
were written to the fundamental law to be
abeyed. * * * In the mato the courts
have shown a dlaposftion to uphold the debt
limit proTiatonB lii the q^iilt In which thegr
w«re nacted, alttumgh vailoaa adiemss bave
been devised to evade tboa." In Walsh
City Obnndl of Augusta, 07 Qa. 206, aupra;
Gblef Justice Jadison, to dealing urtth tUa
very clause of the Constltotlon, said Q;>age
207): "In order to arrive at the true con-
stmctton of all stetote law, whether oigante
and fnndamentol, or le^slattve, the cardinal
rule, if there be ambiguity to the words,
la to consider the old law, the mladdef or
evil, and the remedy."
In Pennsylvania the same conditions arose
In municipalities as those above mentioned,
and It was found necessary to place to the;
Constltotlon a restriction upon the power of
dtles to Contract debts. An effort was made
to evade this provision of the Constitotion
by making a contract which to some of Ite
importont features was remarkably similar
to that under consideration. In the case of
Brown v. City of Corry. 175 Pa. 628, 34 AtL
854, It was held: "A contract by which W.
was to construct a system of waterworks
for a city, to be delivered to and operated
by it when completed, requiring the dty to
pay him f6,000 annually for 20 years, and to
deposit $3,000 annually for that time, to be
given to him, with accrued interest, at the
end of that period, and transfer of title to
the waterworks then to be made to it, creates
an Indebtedness, within Const art 9, S 8,
providing the debt of a dty shall never ex-
ceed a certato limit, though the contract pro-
vides that the paymoite and deposits are to
be made from the curroit revenues of the
dty, and not otherwise, and that If said
revenues are tosuffldent to meet the pay-
ments and deposits, the toterest of the dty
to the works shall revert to W. and the con-
tract be terminated." This was declared to
a state to which it was held that a contract
pertaining to ordinary expenses, but extend-
ing through a series of years, might be made;
but it was said that ai^ ruling did not ap-
ply to a c<mtract of the cturacter of that
mentioned. In City Council of Dawwm t.
Dawson Waterworks Co., 106 Qa. 606^ 82 8.
SL 907, it was hdd to this state that, "with-
out the preliminary sanction of a popular
vote as required by the Constitotion, a mu-
nlc^ial corporatloi cannot contract fior a
snpply of water, on the credit ot the dty,
for a loiter pwtod than one year." So that
the dedslMi just above dted was made to a
state to which a more liberal constmcti«i Is
given to regard to' contiacte fOr water or
light, extending through a series of year%
than that declared to this state.
In Maryland It was dedared hy the Consti-
totion of 1867 that "no debt shall be created
by the mayor and city ooundl of Baltimore^
unless it be authorized by an act of the Gen-
eral Assembly, and by an ordinance of the
mayor and dty coundl of Baltimore, submit-
ted to the legal voters of the city, and ap-
proved by a majority of the votes cast"
The mayor and coaacU so
Digitized
Oa.)
BENFROB T. CITT OT ATLAKTA
463
restriction quoted by pledging certain rail*
road Btocka, with the agreement that the
pledgee should look for the payment of the
money ezchulTdy to the stock pledged, and
In no erent was the eUj to be liable for
the retnm or payment of any part thereof,
even though the stock pledged should prove
Insufficient It was held that the reetrictlTe
proTlston appUed to such a contract, that it
could not be thus evaded, and that the ordi-
nance making provision therefor was void.
Mayor and Gil7 Council of Baltimore v. GUI.
81 Md. 87& In the opinion Bartol, G. J.,
said (page 287): "We hazard nothing in say-
li« that no one can read It [the ordinance]
without being impressed vrith tba conviction
that the dt7 council must have been sensible
of the difficuHlea wUdi the Constitntlon
Interposed In the way of such legislation,
and that its phraseology was ingenloQaly
<^osen for the purpose' of avoiding the re-
■trlctlotts Imposed by tliat Instroment But
In consuming It we must not fo^et that
we are dealing with snbstance, not with
form. It Is the thing done, or Bought to be
accompllcihed, whldi must determine the
question of the power of the mayor and dty
oooDcll to pass the ordinance. This depends
vptm the true constnictlon« operation, and
effect of the whole ordinance, not upon the
form or mere phraseology of some of Its
parts. • * • Thon^ in tlie title and body
of the ordinance the word Invest is used, and
it purports to be a mere change of invest-
ment, it Is Impossible to shnt our eyes to the
fact that the whole scheme of the ordinance
Is to borrow the sum of $1,000,000, and to
secure Its repayment by hypothecating stock
of the Baltimore & Ohio Bailroad Company
held by the dty. * * * It has been ar-
gued that no debt Is created by the ordi-
nance, because by the second section it Is
provided that the parties loaning the mon^
shall look for its repayment exelnsively to
the stock pledged, and that, in no event is
the dty to be liable or reeponslble for the
return or repayment of any part thereof,
even though the stock pledged should prove
InsufBdent This provision was doubtless
adopted for the purpose of avoiding the re-
striction imposed by the Constitntlon. We
ttilnk It alt^etfaer Ineffectual for that pur-
pose. A debt Is money due upon a contract,
without reference to the question of the rem-
edy for its collection. It is not essential to
the creation of a debt that the borrower
should be liable to be sued therefor. No suit
can be maintained against the state by one
of Its dtlzens. and yet debts are created by
the state whldi it is bomd in good faith to
pay.**
In Browne v. C^ty of Boston, 179 Mass.
821, 60 N. B. 934, the facts were these: The
dty authorities of Boston desired to at^nire
certain land adjoining land of the dty used
for a hospital The price of the land was
$226,000. The borrowing capadty of the dty
under Bt 1880, c. ITS, limiting its Indebted-
ness, was but little over $24,000, and it had
no mooey in Its treasury available for the
purchase of the land. It was arranged with
the owners of the land that they should
nwrtgage it to third parties for $202,000.
and the dty should buy it subject to the
mortgages for $24,000. The mortgages were
to be payable three years after the convey-
ance to the dty, with a privilege to the own-
ers, their grantees and assigns, to pay them
off before maturity. The dty was not to be
mentioned in the mortgages and, the deeds
to the dty were to contain the statemoit
Otat the dty was not to be held liable In
any way for the payment of the mortgages
or the Intwest thereon. Uptm a petition of
taxable free^lders of Boston to mjoin the
dty from carrying out the transaction, it
was held ttkat tlie proposed action of Ute
eUy must be enjoined as an attempted eva-
sion of the statute of 1S80. and within Its
pnrtilMtlon; that ttie transaction was In
substance and efEect a purchase of the land
by tbB dty (or thB sum of $228,000, of whldi
it was to pay $24,000 in cash and the rest in
Qaee years with interest, with the privilege
of paying sooner, and this notwUbstandlns
ttie fact that Uie dty could not be sued for
the balance of the purdiase nxmcy; tiie man-
ner in which the indebtedness was created
bdng immaterial, if the result was to subject
the dt7 to a presoit liability, direct or in-
direct, which the taxpayers eventually would
be called upon to meet
In Ironwood Water Works Oo, v. City of
Ironwood. 09 Mich. 454, 68 M. W. 371. it was
held tbat "munidpal corporations cannot
av(dd restrictions upon the amount of Indebt-
edness they may incur by purchasing proper-
ty for public purposes subject to Uens." In
the opinion Grant, J., said (99 Mich. 400, 68 N.
W. 373): "Obviously the dty of Ironwood will
have no way to protect the property thus pur-
chased except by payment of the lien thereon.
* * * The dty must pay the mortgage,
or lose all the beneflts to be derived from the
purdiase. It Is expected and understood that
It vriU pay It and the interest on it. Sudi
was the evident intention of all parties."
See Rodman v. Munson, 13 Barb. <N. Y.) 63;
Newell V. People, 7 N. Y. 9; Earles v. Wells,
94 Wis. 286, 68 N. W. 964, 69 Am. St Rep.
886; Reynolds t. WatervUle, 92 He -292, 42
Atl. 653.
These authorities are suffld^t to show
that, in dealing with constltutlonBl limita-
tions upon the power of munldpal corpora-
tions to Incur Indebtedness, courts incline to
look to substance rather than to form, and
not to allow the mandate of the CaoBtltntion
to be evaded, either by mere plausible devices
of language or by refined and halr-splltting
definitions of the meanings of words support-
ed by references to dictionaries or to w^es-
aions of Judges in dtacnsalng caves b«fc«e
DigitizedbyLiOOgle
4B4
Connael for defendants In error rely much
apon the case of Hay t. City of Springfield,
64 III. ^p. 681. It Is nnecessary to dlscnss
that case at lengtlu But It may be remarked
that in the opinion it is said: "It la perfectly
plain that It was not Intended to bind the
city to take the light for any i>articular time
or to take the plant" In the case before na
it Is perfectly plain that It was the Intention
to bind the city to take the plant or to suffer
loss. Again, that decision was not rendered
by the highest court of the state, but by the
Appellate Court Its reasoning does not
seem in harmony with ttiat of the Supreme
Court in City of Joliet v. Alexander, 104 la
4C7, 62 N. S}. 861. In any event It does not
accord with the decisions which we have
dted above, and which we believe to an-
nounce sound principles of law.
In the light of the foregoing discussion, let
us see what were the provisions of the con-
tract here Involved, what was its real mean<
ing and intent, and what did It undertake to
accompllsti. The Destructor Company made
a prt^sitlon to the city of Atlanta to erect
for the latter a refuse incinerating plant or
crmatory. The price stated for the com-
pleted plant was $376,800. On the 3d day
of June^ 1912, a reaolution was adopted by
the mayor and goieral council which con-
tained, among other things, the following
expressions: "That the proposal of the De-
structor Company of New York for the erec-
tion and completion, of an. incinerating plant
and plants for the generation of electric cur-
rent as . Iter plans and specifications filed
herewith and folly oorcred by item 1 of said
pnqneal, at a omt of 9870,800, payable not
exoeedlDg 160,000 dnrlng the year 1913, pro-
vided that any saving In the cost of the con-
Btrnctton of the baUdbv from the amount
provided therefor In said proposal shall Inure
to the benefit of the dty, be and the same la
hereby accepted. Besolved, farther, that the
<ity of Atlanta ha«by pledges its good faith
to pay the balance of the cost of said con-
■tmctlon as follows: $7S,000 In eadi of the
yeara 1818, 1914, 191S, and 1916, renuluder
In the year 1917, dtfwred paymento to bear
Interest from date same are due under esti-
mate at not exceeding 6 pa caxL per annum.
The city reserves the right to pay one or all
of said deferred payments on or before matn*
rity. Resolved, forthor, that bis honor the
mayor be directed to execute a contract In
the name of the dty upon approval of the
dty attorney as to form." On July ICth an
amendment to this resolution was approved,
which contained, among other things, the fol-
lowing statement: "The deferred payments
which the above-described resolution pledges
the good faith of the dty of Atlanta to make
in the years lOlS, 1914, 1916, 1916. and 1917
are hereby recommended to the mayor and
graeral oonndl of said years to be made on
or before the 16th day of February In eadi of
the aforesaid years, provided same are Hm
(Oa.
I under approved estimates. All deferred pay-
ments to bear Interest at 6 per cent per an-
num from the date of approved estimates, as
provided in said original resolution and bid.
* * * Resolved, that the Destructor Com-
pany shall retain title to any and all material
or other things of value furnished by said
company to the d^ of Atlanta In accordance
with its contract, before and after the same
is erected Into an Incinerating or electric
generating plant upon a site furnished by the
dty of Atlante, with the right of supervision
over the operation of said plant by the
board of health, until the city has made the
final payments therefor. The Destructor
Company shall be given no further remunera-
tion for such supervision. The dty shall
pay all labor and operating costs of the plant
in the same manner and method as though
the Destructor Company did not have such
supervision. • • • Resolved, further,
that after the dty of Atlanta has accepted
said plant, as having been built in accordance
with the spedflcatlona and as fulfilling all
guarantees as to capad^, cost of operation,
etc:, and the operation of said plant has been
taken over by the board of health, nndor
the supervision of the Destructor Company,
a default In the payment of any future In-
stellment of the purchase money by the dty
shall ipso facto, without any legal process
whatew, transfer the possession ctf the
plant to the Destructor Company, and said
company shall immedlatdy become vested
with the title, possession, and control of said
plant, exdusive of the land, as against the
dty of Atlanta, and said company shall have
the ri^t to apenta aama, free of rent, fbr
its own account for a pcxiod of ten years
from the date of such deffcvlt" The ooa-
tract entered into between the company and
the dty embraced these resolutions and
they contracted accor^ngly. It ooDbUned
the following provisions (after providing for
the payment of 900,000 in the year 191^:
"As to the remainder d the cost, nndw the
plans herein provided for, the dty of Atlanta
hereby pledges Its good faith to pay said eon-
tratAor for same as follows, to wit: Sevoitj-
flve thousand (975,000.00) dollars on or before
the 16tii of Fdiruary in eadi of the years
1913, 1914, 1915, and 1916, and the remainder
on or before the 16th of February, 1917, and
recommendation has been made to the mayor
and general council of said several years to
make ainu^opriatlons to cover said amount,
provided same are due under approved estU
mates. All deferred paymente to bear inter-
est at the rate of six (6%) per omt pee
annum from the date of approval of esti-
mates as provided In original resolution and.
bid. The term 'good faith' is her^y under-
stood to mean that the dty cannot bind It-
self to pay beyond the current year, but the
mayor and general council of 1912 by said
resolution does hereby recommend to the
mayor and general <^<u>^3,<f,1^^»^^^
78 BOUTHBASTBRM BSFOBTEB
BENFROK T. CITT OF ATLuAlTTA
455
years to matte at^roprlatlons to cover the
■aid deferred payments as above provided."
It ia impossible to read this contract and
these resolntions without seeing plainly that
the Int^tlon of the parties was for the cUy
to contract for the baildlng and equipping
of a crematory at a fixed price, a part of
which waa to be provided for and paid In
1812, and much the larger part of whtdi was
to be paid in Installments in subsequent
years, and that it was sought at least to
pledge the good faith ct the dty for the pay-
ment of the future Installments. It went
even farther. . It provided that, if any in-
stallment should not be paid, the company
should at once be vested with the title, pos-
session, and ootttrol (except as to the land),
and that it should have the right to operate
the plant ft>r ten years for Its own account,
free of rent Thus the ^ty might iwy every
Installment but the last <aie, but if the coun-
cil in that year conscientiously and correct-
ly believed that the contract was Illegal, and
refused to violate the law as they saw it, the
city would have neither Its money nor a
crematory. This would be to apply, not only
moral, bnt pecuniary, coercion to future
councils to force them to pay or lose, and to
take from the city Its crematory and put it
in the hands of the other party, by virtue of
the terms of the contract To say that this
creates no debt within the meaning of the
Constitution is simply to Juggle with words.
We know of no law which authorizes a city
council to pledge the good faith of the dty
for the payment of money in future years,
any more than to mortgage the city hall for
the same purpose. The city's good faith Is
a great asset, and no council has the right to
pledge It to evade the Ck>nstltution. Certain-
ly no conncil has the right to admit that It
cannot bind future councils, and yet to fix
payments for future councils to make, and so
arrange the contract that, if the future coun-
dls do not make the payments, moral and
pecuniary loss will automatically fall upon
the city, and tt will be put to serious incon-
venimoe.
Moreover, this contract bristles with other
earmarks of creating an indebtedness. It
distinctly contracts for binding the dty as to
the manner of operation of the crematory In
future years, and until final payment Fu-
ture conndls are left no discretion on the
subject It is liberally Interspersed with
such words as "Installments," "deferred pay-
ments," "when due," and the like — ^words
peculiarly applicable to debt It provides
that the installmeots shall bear Interest from
the time when they are due, at 6 per cent
per annum. Who ever heard of a snm of mon-
being due by one person to another, and
bearii^ Interest from the date when due, and
yet not being a debt? Does any one think for
a monent that this company contracted to
take $S0,000 for its crematory? If not, ia It
not palpable that it was understood that the
balance should be paid in other yean^ and
that It vras sought by a sklllfally drawn con-
tract to so provide as to force future conn-'
dls, by arguments of morals and money, to:
pay them? If the city coundl should Incur
a debt. It would be none the less a debt by
solemnly dedarlng that it was not such, or
by resolving that It was constltntionBl.
If this coDstltutiODal restriction does not
apply, thai there Is no restriction, and the
coundl can purchase millions of dollars
of pr(q)erty, drain the treasury to make the
first payments, provide for future payments,
and coerce future coundls to make them
under penalty of losing both the good faith
of the city and the Installments already paid;
and this is equally true of every munldpallty
in Georgia. Then the taxpayers in future
years must be burdened with taxes to meet
these deferred payments, in the c(mtractlns
for which they had no voice, as the Constitu-
tion declared that they should. Besides;-
improvements in future years from regular
Income must be postponed to these lAymaits,
lest the dty suffer in reputatloit or purse, or
else the process of idling up Inetallmenti
which are not debts, but wbldi must be paid,
must be continued indefinitely. It was Just
such conditions wbldi the Constitution
sought to prevent
When read In the light of the facts of the
case then under discussion, there ts noth-
ing in the decision In City Conncil of Daw-
son V. Dawson Waterworks Co., 106 6a. 696,
711, 82 8. E. 907, 913. or other cases preced-
ing or following it, decided by tills conrt on
which counsel for defendants In error rely,
which conflicts with what la here held.
Much stress was laid upon the following
statement In the opinion of Mr. Justice Cobb
in that case: "'Debt,' therefore, as used
in the Constitution, is to be understood as a
liability which is undertaken and which must
be discharged at some time in the future,
but which Is not to be discharged by a tax
levied within the year Im which the UabUtty
is uttdOTtaken. The purpose of the framera-
of the C<mstitution was to prevent an ac-
cumulation of liabilities upon munldpal cor-
porations which could be enforced against
such corporations In the future by the com-
pulsory levy of taxes. • • • If the char-
acter of the undertaking Is such that he who
deals with a municipal corporation can, un-
der the contract, in the future, of his own
volition, and without the consent and over
the protest of the authorities of the munici-
pality, place upon it a liability which must be
discharged by the levy of a tax in the future,
such an undertaking creates a debt within
the meaning of the Comitltution of this state,
and one of the very classes of debts which the
constitutional provision was made to guard
against." The learned Judge who wrote that
opinion declared that, If a contract could be
made by which a contracting party had the'
right from year to year by simple perform-'
ance to put himself In a position where he
could demand of the aBl|ff;9||ts^ ^ij|gQ@|gbe
MM
of fh* obUgaUoD, ihm tbe tnmm of the
ConatltntlQn did a vain and Idle thing In
Idadng In tbe fnodamental law of the land
ttte dauBe nnda consideratlini. A Ailr
reading of that opliilon will sbow that Mr.
Justice Oobb was demonstratliig the fact that
an agreemrat of the character then before
him did create a debt, bat that he never In-
tended to hold that ancb an agreement was
the only one that would create a debt The
expression that an<3x «n nndertakli^ was
"one of the rerj classea of debts which the
constitntlonal provision was made to guard
against" shows that he did not consider that
the Oolifstltntlon was confined to the particu-
lar dase which he was then discussing. We
have already undertaken to show that it is
not essential that one should bare the right
to sue in ordm to create a debt ; otherwise,
the state would never be a debtor as to in-
dividual bondholders^ though It has millions
of dollars worth of bonds outstanding. It
Is not the remedy that creates the debt, but
the remedy is generally a method provided
for collecting the debt The substitution of
the contractual remedy in lieu of the ordi-
nary remedy by suit does not operate to pre-
vtoit the amount which Is to be collected
from being a debt Futbwmore, we have
already undertaken to show that this con-
tract did se^ to make the dty liable In the
future to make payments, to place future
councils in the position where they must
make the payments spedfled or must sacri-
flce for the city its good name, and also cause
It to suffer pecuniary loss and embarrass-
ment This Is probably quite as efficacious a
mode of enforcing payment as a mere com-
mon-law salt
The position of the defendants In error is
not sustained by the rulings in the Dawson
Waterworks Case, and other similar cases in
this state, that where water had been far-
nished under a contract for one or more
years before any question of its validity bad
beea made, and where it was held that in eq-
uUt and gfwd conadenee tbe dty should pay
for Uie watd? aetnally used while the con-
tract was supposed to be valid. In some
states contracts like 0iat Involved In the
Dawson Waterworks Case an held valid on
the theory that a manldpaaty could ctmtract
for water to be fornlsbed year by year, tbe
famishing of water being a matter of annual
e]Q>enditure and the dty not exceeding the
limitation vgon sudi expendltnre, and ttuit It
could therefore within that limit contract for
more than one year. In this state, as al-
ready mentioned. It has tteen held that a mu-
nldpal corporation could not contract for a
supply of water on the credit of tbe city for
a longer period than one year, witlxout the
preliminary sanction of a popular vote as re-
quired by the Constitution. In the case last
mentioned, and others like it where the dty
could have contracted for a sopply of water
Sox one year at a tlm^ though the contract
(Ga.
provided toe more than one year, yet when
the dty actually used the water by the year,
and all parties were In good faith, there was
strong equitable ground for holding that dar-
ing tbe time the water was so used, and be-
fore any question was made as to the validi-
ty of the contract the water used should be
paid for. From the time when the point was
made that the contract for a aeries of years
was invalid it was held not to be binding as
a contract Had the point been made in limi-
ne, it would doubtless have been then dedar-
ed invalid, Just as it was so declared when
the pdnt was raised. In the case now before
us there has been no fumisblng of water or
lights or similar matters of munidpal use,
which could have been procured as a part of
the ordinary annual openses for the year,
but a contract for a iHant at a bulk price,
payable In Installmenta The point in regard
to tbe illegality of the contract was made In
the beginning, before the dty bad received or
used anything, and before the dty had paid
anything. In fact It can be drawn from the
record that there has been a constant fight
to prevent the contract from being carried
Into effect and an effort on the part of the
Destructor Ck>mpany to proceed wltii the con-
tract and to enforce payment of the amounts
provided therein, In spite of objectdona on the
ground that the contract was Illegal, in spite
of the refusal of the mayor to sanction any
payment under it and in spite of the ftict
that dtizens filed a proceeding to enjoin it
In other words, it has not furnished the dty
with water or light or any similar thing of
dally use by the dty, and then had the point
made that the contract was Illegal. On the
contrary, the company entered into a con-
tract wbldi we hare endeavored to Sbow
bore on its face an effort to evade the Gon8ti*
tution and to make an illegal contract with
tbe dty, whldt would create a debt wiOioaft
submitting the question to tbe qualified vot-
ers as the Oonatltatlon requires. Tbe differ^
ence betweoi Uie situation of tbe Dawsm
Waterworks GDQpany, as to water wldch it
had funiiahed for the nae of the d^ before
any qnestton was raised as to the validity of
the contract and the position of this compa-
ny, which has entered into a contract illegal
on Its fiice and has penlstently insisted on
its execution, la manifest Nae is this like
the Butte Gounl7 Oaae, supra, where the
original warrants were considered legal, and
though tbe contract to loan money to pay
them was invalid, the bank which took them
up and held them was treated as acquiring a
spedes of equitable assignment
[4] It was argued that the contract had al-
ready been dgned, and that Uie taxpayers
who were plaintiffs had no right to an in-
junction. The Injunction cannot stop the
signing of the Illegal contract but It can stop
the carrying of the contract Into effect the
illegal imposition of an indebtedness upon
the dty, and the illei^l^^^^e^^fj^^
TB SOUTHEASTERN BBFORTBR
BEEWABT AKDIGB80N
467i
iBdetrtedmn. It ti too woU ostttea 1^ tor-
mer Aedatona to require arsajsent that, a
tupayw bao andi an Interest In the mmilcl-
palitT and Ite funds that be may enjoin ttae
unlawful uae of soidt funds. Mayor and
Oonndl of Amwlcns t. Perry, 114 Oa. 871 (0),
40 S. a 1004. 57 L B. A. 280; Mayor and
Council of Macon r. Hm^es^ 110 Ga. 705. 86
S. B. 247; Tinker t. City of Union Point. 132
Ga. 568. 64 8. B. 648. The argument that.
becauBe the dty ml^t make annual appro-
prlationB for the disposition of filth or refuse
matter, It might make annual aN>roprlatlons
without r^ard to the contract, and therefore
could make api^oprlatlona under the con-
tract, Is Ingenious, hut unsound. The right
to make annual appropriations for the dis-
charge of municipal fonctionB dnrlng the
current year is an entirely different thing
from the appropriating of money annually to
pay an illegal Indebtedness, contracted in
bulk, but to be paid in annual installments.
The entire case hinges npon the question
whether the contract under consideration at-
tempts to create an illegal indebtedness on
the part of the city; and we have sought to
show that it does.
It foUowB from what has been said that
the presiding Judge erred In refusing to
grant interlocutory Injunction. Such an in-
junction does not prevent the municipal coun-
cil from submitting to the qualified voters of
the dty whether or not the dty shall incur a
debt for the purpose of erecting a crematory.
It enjoins the dty and the Destructor Com-
pany from carrying into effect an illegal con-
tract seeking to Impose a debt upon the dty.
Judgment reversed. All the Justices con-
cur.
aw Oft. m
STIOWABT, Ikx OoOeeler, v. ANDBBSOIY
et aL, Coffl'rs. etc. ABHISTBAD, Tax Be-
criver, T. BAMa WILKINSON, Ordlaazy,
V. SAMK
(Snprone Court of Georgia. Blay 14, 1918.)
(Bt/ttahut &y tha Court J
SuTUTu ^ 76k 163*)— Bbpul — Omens
—Salamieb.
The act of August 22, 1011 (Aeti 1011.
p. 186), toacbing the salaries of certain coonty
officers, wbile employing certain feneral terms,
is so bedged about with provisions, restrictions,
and limitations that it Is In reality a special
act, and, b^ng in n^ard to a subject for wjileb
{provision bas previoosiy be«i made by an ex-
stinsjreneral law, It is invalid.
(a) The act being unconstitutloDal, it was er-
ror to grant a mandamns to compel certain of-
ficers « Fulton coanty to file i^wrts with the
oouno commlsrimiers, ss therein provi^d.
TBd. Notsi— For o^er cases, see Statates.
Cent. Dig. H 77^78% 288; Dee. Dig. H
163.*3
Error from Superior Court, Fnltoo Ootm-
ty; J. T. Pendleton, Judg&
Three actions by C li. Anderson and oth-
ers, as Gommisslonmrs .of Boads and Rev-
enueo— one against A. P.' Stnrar^ as TU
Collector; ono against F. H. Armlstead, as
lax Becrtw; ai^ the othw against J. B.
wiimmmi, u Ordinary. Judgmrati for
^alntfffli^ ud deteodanta teing error. Bo-
veiaed.
The commissioners of roads and revenues
of Fulton county Instituted three separate
actions against A. P. Stewart, tax collector,
J. R. Wilkinson, ordinary, and T. M. Arm-
Istead, tax receiver, of Fulton county, seek-
ing the writ of mandamus to compel uch,
respectively, to file detailed statements of
the number of assistants needed and the
amount necessary to be expended for depu-
ties, assistants. bookkeep«*s, clerks, and other
employes of his office for the year 1918, as
provided in section 6 of the act of August
22, 1911 (Acts 1911. p. 186). The defendants
severally answered, setting up that the act
of the Legislature requiring such statement
was unconstitutional and void, and spedfical-
ly setting forth wherdn It was contended
that the act was unconstltatlonaL On the
hearing the cases were presented In such
manner as to make the ruling dependent up-
on the constitutlonaUty of the act In eacb
Instance the judge granted a mandamus ab-
solute as prayed, thereby holding in effect
that the act was not subject to any of the
attacks made upon it The defendants sev-
elrally excepted to the Judgment and all the
cases were beard In the Supreme Conrt to-
gether, and will be considered together.
J. D. mipatrick and UtUe ft Powell, aU
of Atlanta, for plaintiffs in wror. L. Z.
Roaser and Hooper Alexandeft both of At-
lanta, for d^oidants In error.
ATKUISON, J. (after atatbg th» facts as
above). It ia declared lu article 1, f 4, par.
1, of the Conatttntlott (Civil Code^ 1 0801),
that "laws of a general nature shall have
uniform operation throughout the state, and
no special law shall be eiiacted In any case
for which provision has been made Iqt an
existing general law." A g«eral law may
be repeal^ or modlfled by anothu general
law, but it cannot ba r^waled or modified
by a apodal or local law. If Uie act under
consideration la a general law. It la valid
as against the cratentlon that it violates the
section of the Constitution above quoted-
If It la a special or local law dealing with
a subject as to which provision has already
been made by an existing general law, then
it Is in conflict wfth that section and In-
valid. The auestlcm, tbexeton, la whether
the act under considaiition Is a general or
a apodal law. Bas It onltorm operation
throughout the stateT It does not irarport
to apply to all coimtieB In the state, tmt only
to such as meet a certain description. . The
Legislature may make daaslflcatlon fiff pur^
pose^ of leglalatioq aud pass gene^l laws
yilth reference to such classes They may
^^othsri
I ss* SBSH tspla and ■wtton MOTIBBR 1b Dm. Dig. a Am.
458
78 SOUTHEASTBBN BSPOBTBB
ctaaAty counties. The basis of dasslflcatloii
must bave some reasonable relation to the
subject-matter of the law, and must furnish
a legitimate ground of differentiation. Mere
arbitrary discriminations are not i>ermlssl-
ble under the Constitution. If a legitimate
classification Is made with respect to per-
sona, the law must be applicable to all per-
sona within the class, or coming within the
class. If the classification Is sought to be
made with reference to counties, and the
basis of clastdfication Is legal, the law must
apply to all counties within the class, or
whldk may come within the class. The Leg-
islature could Dot constitutionally classify
one county by itself. There must be some
reasonable basis of classification, so that all
which fall within tlie class may come within
the scope of the provisions of the law. Al-
though the act may purport to make a
classification of counties for purposes of leg-
islation, yet if the so-called class Is so hedg-
ed about and restricted that the act applies
to only one county, and that other counties
coming within the class provided caonot also
come within the purview of the law, it Is
in fact a local or special acl^ and not a gen-
eral one. See Worth County v. Crisp Coun-
ty, 139 Ga. 117, 76 S. E. 747; Vaughn v.
Simmons, 139 Ga. 210, 76 8. SI 1004; Futrell
T. George, 135 Ga. 265, 69 S. B. 1S2.
. In the Worth County Case the act omsid-
ered by this court purported to be a general
one in r^rd to dumglng tho dividing line
betwera two counties, as to which snhlect-
inatter a graeral law already existed. The
act provided that, where there are two cod-
tlgnoos counties, and according to the last
United States census one of them has a pop*
ulatlon of not less than 16,422 nor more
than 16,424, and the other has a population
of not less than 19,146 nor more than lfi;148,
the dividing line between them may be
changed in the manner therein pointed out.
According to the last United States cotsus,
before the act was adopted, (miy the conn-
tlea of Worth and (Map had such popula-
tions aa would render it applicable to them.
It will be perceived tb&t the aet allowed a
maigln of only three as to the population ot
each county. While shaped in the form of
a general act, it was palpable Uiat the po»-
siblUty of there b^g two other contiguous
counties which would ever have populations
respectively within those limitations were
80 remote as to fbrm no basis for a reason-
able classification, and that in effect the
act applied to those two conntiea alon& It
was accordingly held to be a special act, and
unconstltntlonal. In the dase of Vaughn t.
Slrnmons, an act which sought to create a
special school district; where there was a
general law providing the manner of such
creation, was held invalid, altbongh it sou^t
to accomplish that purpose by de<Aaring the
school district to bb an tacorporatlon. In
the case of rntiell t. George^ thov was an
attempted idasslfication of oountleB having
a population of between 7,000 and 8,000, or
of between 13,700 and 14,000, or of between
16,000 and 21,000, as shown by the United
States census for 1000, and it was sought
to vary the general road law by such an act.
It was patent that the description Included
only a few counties under the coisns of
1900, and that other counties which might
at any time thereafter have a population
within the limitations stated could not come
within the provisions of the act It was ac-
cordlngly held unconstltuttonaL
Applying these tests to the pres«it act,
could it properly be called a general law, or
la it a local or special one? The sole basis
of classification mentioned in the act is that
of population. It purports to make a class
of all counties having a population of 100,-
000 by the last census or any future census.
We think that the population of a county
bears such a legitimate relation to the
amount of work which county officers do and
to the compensation which th^ receive by
way of fees therefor as to furnish a reason-
able basis for a classification relative to
the constitutional requirement ot generally
wbldi is now b^ng considered. But, having
spetdfled a population of 100,000 as the basis
of the dassiflcatlon, the L^islature did not
stop there, but proceeded to he<^e the act
about with so many provisions, restrictions,
and limitations that it not only excluded
counties whldi might possess the alleged
basis ot classification by some future census,
so that the act could not apply to them, but
practically restricted Ite arolicatlon to Ful-
t»n county. Whoa it was declared tbat the
class should consist of all counties having
100.000 inhaUtants by the last or any future
federal census, with no otlier basis of classi-
fication than this, In ordw to be a general
law it was neoeaury UiSt it should be open
to let in any county which by any future cen-
sus might have that population, and to be so
framed as not to exclude such a county, but
to apidy to it It Is not so shaped that this
could be done. No more conclusive evidence
of this fact could be produced than by re-
ferring to the offl(» of solicitor general.
There are 28 judicial drcuita In the stat^
each having a solicitor gmeraL In only two
of these does one county constltnto sn enOn
circuit In all otbera a dreuit contains sev-
eral counties. There was existing, prior to
the passage of this act, a general law rego-
latlxig the fees of solicitors general through-
out the state. TUs act declares that In any
county whidk may hereafter have a popnla-
tlon of 100,000 the solicitor general shaU fall
wilhiln ite provisions, and receive a salary,
instead ot fees, as at present Take the
Augusta drcnit wsy of illoatraticm : It
contains fbnr countlea. Suppose that at
■ome time In ttaa future Richmond county, in
which Augusta Is located, should have a
population ot I00,00a Bow eonld this act be
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8TBWAKT T. ANDSIiaON
469
Applied to It? Woold It be said that ^ covn-
tj of BIdunond ehovld pay tbe Bolldtor gen-
txal a salary In aceonSauce with the act, and
In tbe other three countlee be ahonld con-
tinue to collect fees? If b<s tiben the solici-
tor general In the AUante drcnit, which is
composed of bnt one county, wonld be paid
in one way, and the solicitor gmoral ot tbe
Ansnsto drcoit wonld be paid partly in one
way and partly In another. This wonM not
be uniform. On the other hand, could It be
contended that the comity of Richmond
should pay the entire salary provided by this
act, and that the other three counties In the
circuit should pay nothing to tlie solicitor
general, and he ahonld collect no fees there-
in? If so, it would again be lacking in uni-
formity, by seeking to Impose upon one coun-
ty the payment of the 8oli<dtor general for
services rendered In the entire drcult <onilt-
tlng the small salary of $250 paid by the
state), while there would be nothing paid In
the other counties, either by way of salary
or fees. So the Macon judicial circuit In-
dndes three counties. If the county of Bibb
should in the future have 100,000 Inhabit-
ants, how could the provisions of this act
apply to it, and how conld there be any uni-
formity in r^rd to that county and the
others in the circuit?
Again, the act provides for the making of
reports to the county commissioners, and
confers on them very extensive antborlty in
regard to the salaries of the officers named
in It It haivens that Fulton county has a
board of county commissioners; but there
are a number of counties in the state wbitdi
have no such officers. It is palpable that
the act would not be applicable to them,
whether they should liave a population of
100,000 in the future or not. It could not be
said that In such counties tbe intention
would be that tbe reports should be made
to the ordinary and the authority given by
the act would be conferred on him, because
the ordinary Is himself one of tbe officers
who Is required by such act to make the re-
port and be subject to tbe regulations of the
county commissioners. Still further, accord-
ing to the last census only one county In tbe
state, namely Fulton county, has a popula-
tion of 100,000; and at least until the year
1920, when tbe next census will be token,
the act could not apply to any other county,
so that It was patently the object of the
act that for at least that length of time It
should apply to but one county. It was
passed after the census of 1910 had been
taken, and with knowledge of that fact
Nevertheless it provided that the first state-
ment should be filed with the county com-
missioners on November 20, 1912. While
this alone would not serve to show that the
act was Intended as a local one, it contains
an indication that it was Intended to operate
in only one county for a number of years;
and when tsAea In connection with tlie fact
that It eenld not opnato In Btnne comttleB at .
any time in the fntur^ whether or not tbsy
bad the leqaisite population, deelajred to be
the basle of daselflcatlon, it serves forcibly
to indicate that the L^alatore did not In-
tend that Uie a(A should apply, now or here-
after, to all coontleB having that population,
or, if they did so intend, they framed the act
so It conld not have su^ an arolication.
Thore are also other indicia pointing to.
the tact that this act was Intmded to apply
to Fulton connty, and not In fact to be a gen-
oral law. Thus, In the first sectton it la
dedared that the derk of the snpnlor court
shall rec^ve a salary of $S.000 a year, wbldi
shall be In full of his services as such clerk,
and for services as clerk of the dty courts
or other courts served by him. So, also, it
refers to the solicitor of dty courts, and solic-
itors of criminal courts. These provisions
are applicable to Fulton county, and all of
them are not applicable in other counties in
the state. We know of no other county
where there is a superior court, a dty court,
and a criminal coiu't, and where the derk
of the superior court is ex o£Bdo derk of the
dty court and the criminal court, and where
there is a separate solidtor for the criminal
court If there is any other county having
this combination of officials. It has not been
brougbt to our attentloa While the making
of provisions for sudi a case would not alone
be suffldent to show that the act was in-
tended as a local one, yet as already stated
In regard to other provisions, these things
are all sign posts pointing with fixed fingers
in the direction of Fulton county ; and when
elaborate provisions are made applicable to
Fulton county, many of which are not ap-
plicable to any other county, and in fact
could be applied to no other county, although
it might have 100,000 population, we think
It so plain that he who runs may read that
this is a special law, maWng provision for
Fulton county and for no other. Having,
therefore, held that this act was spedal in
its nature, and not general, and it bdng in
regard to matters for which provision had
previously been made by an existing general
law, it Is violative of the clause of the Con-
stitution quoted In the beginning of this opin-
ion, and is therefore void.
Numerous other grounds of attack are
made upon the act, and some of them ap-
pear to be serious to character. By way of
iUuBtratiOD of some of the questions so
raised, it may be stated that the act pro-,
videa that for any neglect or refusal to make
a report to the commissioners, or for any
willful violation of any of the provisions of
the act. an officer subject to audi provisions
shall be guilty of a Ddsdemeanor, and on
conviction shall be punished therefor, and
that sudi conviction shall work immediate
forfeiture of his office. It was contended
with much force that seme of the officers In-
dnded within tbe provlslonB of this act are
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460
78 80UTHHASTBBN SUFORTDB
coiistltatloiial officvra, bavlnc a. term pre-
scribed 1^ tbat Instnunent; and aie not mb-
Ject to xemoTal tase^ in tbe msnner tfaere-
in preactibed. Th« Oonatltntion oontalna
geneiml proTldons In regard to Impeadunent
(CItU Oods^ MCtlon 0428), and alM In ift-
gard to remoTml of county officers on c<m-
Tlctitm for maUmctlce In ofllce (section 6699).
It ms forcibly nrged tbat tbs Leglfllatnre
could not proTide tot a forMtnre oC the
office of a oonrtltntloiial offloer In any other
manner than that provided by the Gtmstltn-
tlon itsri£ StlU farther, the tax collector
odlects the rerenoe of the atate^ as w«U as
that of the county. For ^UecUiv the taxes
of the state there Is a general law prorldlng
what shall be fala fees. The present act re-
quires these f«es to be paid Into the eonnty
treasury by the tax collector. It was sug-
gested that the fees taken from the state's
revoiae as compensation fW the' fax col-
lector for tbe collecting fit the state's
taxes belong cither to the state or to
the tax collector, and could not be the prop-
erty of the county, from tbe revenue of
wbldi'they were- not tak^n. and for serrlcea
to which th^ were not paid ; that, If these
fieea belong to the state, the Legislature could
not make a donation of them to tbe county,
under the provision of the Constltntlon
which problUts donations (Ovll Code, | 6673);
and tbat if, after they had been received and
s^tarated from the state's funds by tbe tax
collector as his compensation for serving the
state, they belonged to him, audi fund was
bis property, and the Legislature could not
take bis property and give it to the county
without violating the provision of the Con-
stitutiou of tbe state and that of the United
States in r^rd to due process of law ; also,
Uie provision for the appointment of an audi-
tor and his payment from the fees collected
by the officers, at a salary to be fixed by the
county commissioners, whether or not tbe of-
ficers receive the full amount of the salaries
spedfled for them (payable from fees) was
attacked. And other qnestlons were raised.
As we have held that the act was a spedal
one, and therefore unconstitutional, we do
not deem it necessary to enter into a dis-
cussion of these questions, or to determine
whether any of them would have atfected the
validity of the act, had it been a general
one. It is not necessary to decide whether
it might or might not have been valid, had
It been something else than what It Is. We
content ourselves on this subject by simply
mentioning some of tbe more important con-
tentions. It fonows from what we have said
that, as the act is unconstitutional, it was
error for tbe presiding Judge to grant a writ
of mandamus to compel the officers to make
the report to tbe county officers for which
the act inovlded.
Judgment reversed. AU Uie Justices con-
cur.
a4t OS. mi
OONnNBNTAL FEIRTILIZER GO. J. W,
MADDEN * SONS «t aL
(Snpreme Court of Georgia. May 15, IMS.)
1. Mvnoir iq Dnaaaa.
There was no merit In 0» motion to die-
mias the writ of error.
2. Evidence (| 222*>— Admissions— Chattei.
UoBTOAGES—FoBECLosuBB— Disposition or
Pboceeds— Rnu Against SHXBirr— Dvi*
DENCB.
Where a money ml* was brought against
a sheriff, and while it was pending the movant
transferred to another the mortgage fi. fa. un-
der which the property had been ^Id, and such
transferee, by order of court, was substitated as
the movant, this did not. render admissions
made by the original movant prior to the trans-
fer,, when offered in evidence on the bearing
of the mle by contestants for the fund, sub-
ject to objection on the ground that Us adnia-
sions could not alEsct his transferee, and tbat
he should be sworn as a witness.
[Ed. Note.— For other cases, see Evidence,
Cent. Dig. K 786-800, SCeTsOS; Dec Dig
S 222.*]
8. Ohattbl Mobtqaoeb (1 288*)— Foreolo-
8D BE— Disposition of Pboceeds— Right ow
Contestants to Attack Mobtgaoe.
Where a fund was . raised by the sale of
property under an ezecntlon based on the fore-
closure of a mortgage signed by t^e defendants
as a firm, which (as well ai Itt members) was
conceded to be bunlvnit, and iHiere, under a
money rule, aocb fund In tbe hands of the
sheriff was claimed by other contestants wbo
held executions biased on mortgages on different
parts of the property as that of the Individuals
claimed by the first mentioned creditor to be
meml>ers of tbe firm, and by creditors holding
common-law executions against su^ Individu-
als, and where the contestants denied the exist-
ence of the firm or that the property was firm
property, snch conteeting creditors could attack
tbe mortgage held by tbe movant on the ground
tbat it was based on an illegal aud Immoral
consideration, namely, the settlement of a pros-
ecution for a felony, and was not therefore ui-
tltled to the fond.
(a) Tbe pleadings set op this gronnd of at-
tack, and It was admitted by all parties that
the firm and its members were insolvent; and
no objection was duly raised to Ae suffldeney
of tbe pleadings.
(b) Even if the fund In court were to be con-
clusively treated as that of a firm because aris-
ing from a sale under an execution agaioat tbe
firm, yet, as such firm and its members were
insolvent, holders of liens against the partners
could attack a mortgage against the firm, cov-
ering the same property, in order to obtain pri-
ority of payment of their claims.
[EA. Note.— For other cases, see Chattel Mort-
gages. Cent Dig. II 677, 578; Dec Dig. |
288.»1
4. Chattel Hobtgages (| 73*)— 'VALiDirr—
Notes Seodbbd— Iaoai. Considbbation.
The evidence was soffldent to snstain tbe
finding tbkt tlM note which tbe mortgagee join-
ed In giving to the fertilizer company was giv-
en to suppress a criminal prosecution, and was
not binding. If so, and there was no liability
on such note by ths mortgagee, the mortgage
given as a part of the transaction was without
legal consideratlou.
[Ed. Note.— For o^er cases, see Cbattel Mort-
gages. Cent Dig. I 144; Dee. Dig. 1 78.*]
'roT other easss sss same topic sad ssetlOB NUHBaUt la Das. Dig. * Am. Dig. Ksy-No. Swiss A Bsp'r ladsns
Digitized by Google
OOimNSNTAIi FERTILIZEB CO, t. J. V. MADDKN * SONS
5. Evidence Ruurob Imcatebiaz..
This being so, other grouods of fttUck od
it and ruIittgB as to evidence bearing on them
need not be dealt with.
e. Appeal and e:rbob (f 880*)— Soora or
Review— Pasties Not apfeauhq.
The moTBDt not being entitled to any part
of the fund, and no other party excepting, the
manner of its distribution among the other eoo-
testants and for the payment of the cost for-
nlsbed no gcound for a rerertaL
lEU. Note^^or other cawa, we Appeal and
Error. Gent Dig. H 868i-8&0; Dec. Dig. f
880*]
7. No ESBOB.
None of the otiur erron anlgned reqnln
a reveraal.
Error from Superior Ooar^ PDw Conner*
R. T. Daniel, Jadge.
Action by J. J. Bndglha against A. U. ft
J. C. Hudgin& Judgment for plaintiff, ex-
ecution levied and property sold, and plain-
tiff brought rale against the sheriff to re-
quire him to pay over the fund and several
contestants for the fund Intervened. After
rule brought, plaintltTs assignee, the Con-
tinental Fertilizer Company, was substitated
as movant From an adverse Judgment the
Continental FertUlser Gompai^ hrlngi er-
ror. Afitrmed.
3. J. Hodgiiu foreclosed against A. U. A
J. a Hndglns, as a Ann. bj affidavit, a
mortgage on certain cotton raised on two
plantations. Xbe eucntton was lerled an4
the prop«rt7 sold. The plaintiff In iL Cbu
brought a cole against the sheriff to re-
quire him to pay over the fund. After the
rule was brought, J. J. Hndglns assigned the
mortgage fi. fa. to the Continental FerUUxer
Company, and an mdex was takoi snbstltatp
Ing it as Qke movant Sereial oth«r con*
testants for the fond intervened. One hdd
an execution against J. C Hudglns, based on
the foreclosure of a mortgage on Uie dOD
raised on one of the plantations. Another
held an execution against A. U. Hudglns,
baaed on the foreclosure of a mortgage, on
the OOP on the other plantatlott. A tliird
had taken out an attachment agahut A. IT.
Hndglna, based on notes signed by A. U. A J.
C. Hndglo% and caused the sberlCC to be
garnished. This creditor (a Arm) also
brought a commcm-law action on the notes
against J. G. Hudglns. Pending tiie rule
against the sberlff, the firm last mentioned
obtained a Judgment on the attachment
against A. C. Hudglns and also a common-
law Judgment against J. O. Hudglns. StlU
another contestant h^ an execution against
A. U. Hudglns based on the foreclosure of a'
laborer's lien on a part of the crop which
produced the fnnd.
The case was, by consent, submitted to
the. presiding Judge without a iury. All par<
ties conceded that certain taxes, a claim for
rent, and flie Iaborra*8 lien should be paid.
The contestants attacked the execution of
the movant on several grounds, among them
that there was no sach firm and the prop-
ertr was not ttkat €t a Ann, hot of the fn-
dlvldnals, that the only consideration of the
note and mortgage nnder vrhkSh the movant
claimed the fund was to secure the mort-
gagee In slgnlnf a note to axov^en a crim-
inal prosecution against the mortgages by
the fertlllier company, to whidi company
the fl. fa. based on an ex parte forecloeore
of sn<dk mortgage was later transforred; and
that the note given to it was baaed <m an
Illegal and Immoral consideration and ere*
ated no legal liability on the part of ttie
mortgagee.
The court held, among other things, that
the note given ifj the mortgagors to Uw
fertlliier company and signed or Indtnaed
by the mortgagee (who aftwwards tranafiBr-
red to the company the fl. fa. based on a
summary forecloeore of the mortgage given
to him) was baaed on an Illegal and im-
moral consideration and was void ; that the
mortgage transferred by the mortgagee was
antedated and constituted a 1^1 fraud on
other cfedltma; tluit the fund ishonld be
awarded to other claimants, mafcbig provi-
sion for the payment of costs and' expenses
of gathering the crop.
Audersrai, Felder, Rountree A Wilson, of
Atlanta, for i^alntlff in error. B. F. Du-
pree and EL U. Owen, both of Zdralon, for
defondants In enor.
LUMPKIK, J. (after sutlng the fkcta as
above). Ha evidence was tqfllclent to wax^
rant the flndlng that the mortgage under the
foretdosnre of whidi the fnnd arose waa
glvoi as a part of an arrangement to si^
press a crlmtoal proscentlan, whlt9i had hen
btgaa by the transferee of it, and ^t it
was not supported by a Iwal consideration.
Penal Code, H 828» 828; GMl Code, { 4401;
Sonthem Stress Ga v. Dnff^, 48 Ga. 8S8 ;
Godwin V. Growell, S6 Oa. tMO; Wheat<m v.
Ansley, 71 Ga. 36 ; Jones v. Danuenberg Co.;
112Oa. 426^S7S.B.720,S2tfcB.A. STL
It was urged tliat where a fund la
broiq;ht into court by a sale nnder an ex-
ecution against a certain def^dant, the fund
is to be treated as his, whether the property
sold waa in fact his or no^ as the pnrdiaa.
ers bought subject to the doctrine of caveat
emptor; and it was aoagbt to ««dy that
prlnciiAe to an execntton against a firm and
contestanta for the fund holding lloia against
the alleged partners. This argument seems
to ovwlook three things by which it may be
affected: ^niat the alleged XMUtners are not
strangers to the firm and its funds and debts,
and a firm debt is also a debt of the part-
nrasi that the alleged firm and ito members
beMncmceded to be Inaolvut; unless the lien
creditors of the individnala can atta^ the
claim asserted against, the firm, they must
fall to obtain any payment; and .that, on
the trial of a mon^ rul^ equitable prin-
ciples may be Invoked by ideadlng and evi-
dence, avll Code, I 5348.
•Vor otMr a— w ■■• msm tD^ aad Motion NDHBXB la Dee. Dtg. A An.
462
78 sonrramsTEBN b&fobteb
(Ghu
The pleadliigs of the conteetasts set out
tbelr reqpecUve dalms and attacked the
mortgage under which the movant claimed.
No point uras raised on the tiial as to the
snffidency of the allegatlonB, bat on the con-
trary the inaolvent^ of the debtors was ad-
mitted.
The headnotes snffldently state the mllngs
without. further elaboration.
' Judgment affirmed. All the Justlcea eon-
car.
a« Ga. 18)
EEEFEIB T. EEEFEIB.
(SninMU Court of Georgia. Hay 14, 1818.)
(ByVabiu &v the Covrt.)
1. ArroEMKT AND Client (J 190*)— Fkes—
Pbotection Against Dismissal of Action.
Wber« a wife brought suit agaiiut her bas-
band, aUegtog a permaDeot separation on ac-
count of mlscondDct on hU part, and praying
for permanent alimony and for an allowance
as temporary alimon? and counsel fees, and
pending the case, bat before the allowance of
temporary alimony or coanael fees, the parties
adJOBted tbelr differences, resumed cobabitation,
and desired that the ease be dismissed, It was
proper to enter an order of dismissal, and to
refuse to permit the attorneys for the wife to
intervene and become parties to the case, or to
render a judgmeut In that proceeding for at-
torney's fees.
lEA. Note.— For other eases, see Attorn^ and
Client, Gfent. Dig. H 41jM17; Dec. Dig. {
190.*]
2. ArroBNBT and Client (J 190*}— Pees—
Protection Aoainbt DisinasAL— Receiveb-
BBiP— Bpfbct.
The inclusion in the original petition of a
prayer for the amiointment of a receiver to
bold the property of tbe husband within the Ju-
riediction, as a means of realizing on such
jttdgnient as the wife might obtain, and tbe
appointment of a temporary recover, did not
alter the case.
[Ed- Note.— For other cases, see Attorney
and Client, Cent Dig. Sf 412-417; Dec Dig.
t 190.*]
(AddiUonti ByUahiu by Editorial Staff.)
S. Husband and Wife (i 295*)— Action fob
Sbpabatb Haintenarcb— Allowance of
ALIUONT— DiBCBETIOR.
In an action for separate maintenance, the
allowance of temporary alimony, including at-
torney's fees, is within the sound discretion of
the trial court, and not a matter of arbitrary
right
[Ed. Note.— For other eases, see Husband
and Wife, Gent Dig. H 1084-106S; Dee. Dig.
i 296.*]
EiTOF from Superior Gonr^ Fnlt(ni Coon-
ty ; J. Pendleton, Jn^e.
Action by Mrs. Grace Uacy Keefer against
D. H. Keefer and others. The parties settled
thdr differences, and on defendant's petition
tbe action was ordered dismissed, to which
erder eonnael fOr plalntUh acepted, and
bring error. Affirmed.
On January 20, 1912, Mrs, Grace Macy
Keefer filed In Fulton superior court her pe-
tition against D. H. Keefer and others, al-
leging in subatance as follows : On April 11,
1006, she was married to D. H. Keefer in the
dty ctf New Tork. They came almost Im-
mediately to the clt7 of Atlanta, where tb»
defendant had previously resided. Th^ liv-
ed together as husband and wife until a few
months slnce^ with the exception ttiat on
several occasions the plaintiff was compelled
to live s^nite from him on account of his
cruel and Inhuman treatment of her, and
also with the enieptltm that the defendant
several times absented hlms^ from her
without cause or reason. After her separa-
tion from blm, she wait bade to live with
him on the tolth of bis promise to treat her
with kindness and conidderatlon, and at all
times she has been a devoted and faithful
wife to blm. In July. 1909, he left the plain-
tiff and took np his residence in the dty of
New York; and he now daims to be a dtisen
at the state at New Tork, though be main*
tains an office in the dty of Atlanta and
claims to be a member of the bar of that
place. There is no Issue of tbe marriage.
The plaintiff has two dilldren by a former
marriage. Tbe husband and wife are now
living in a bona fide state of separation,
and no action for divorce Is pending in the
state of Georgia. She allies upon informa-
tion and belief that since the separation the
defendant has been guilty of various acts of
adultery. She also alleges npon information
and belief that he owns a large amount of
real and personal property, of the probable
value of $80,000, and has a large Income.
He owns certain real wtate In Fulton coun-
ty, of the aggregate value of at least $30,000,
and also a number of shares in certain named
corporations. Plaintiff owns certain proper-
ty (a description of which fa omitted from the'
record), and other than this she has no prop-
erty which will produce an Income, except
certain shares of stock, from which she re-
ceives $335 a year. She Is dependent upon
the defendant for maintenance and support,
and a reasonable sum for that purpose would
be $250 per month. In order to maintain
this action, It will be necessary to employ
counsel in New York and to take numerous
depositions, and a reasonable allowance for
these expenses and for the employment of
counsel will be $2,000. The plaintiff Is fear-
ful that the defendant may transfer his per-
sonal property and convey his real estate, in
which event she will be completely at his
mercy and without adequate means to com-
pel him to provide for her support and main-
tenance. She prayed for the appointment of
a receiver to take charge of all the property
of tbe defendant to be found within the Ju-
risdiction of the court ; that the defendant
be enjoined from transferring or Incumbering
such property ; that the corporations named,
in which be holds stock, be enjoined from
transferring any of it; that she have Judg-
ment against tbe defendant for $250 per
month, and for $2,000 for counsel fees and
expenses Inddent to this litigation, and that
tbe Judgment be satisfied out of tbe property
HilUBiU in Dm. Dig. « Am. Dig. K^gNia^d»)sC«ll4l(d^^lUM
*For otb«r cmm m« same topic and section
463
oombic Into tlw hand! (tf ttte racetw, mden
the defendant shall sabmlt hlmaelf to the
jQrlsdlcttoo of the court, In which event a
imeral Judgment la also prayed against him,
and for general relief and process.
A temporary receiver was appointed. On
April 19th thereafter the defendant presented
his petition to the court, alleging that he and
bis wife, the plalntlilf la the causes had ad-
justed their differences and ware living to-
gether aa man and wife; that since such ad-
justment, and after the renewed ctdiablta-
Uon, the plaintiff had repeatedly directed her
conned to iHBTnlwi the case^ but sudi counsel
declined to do so. The defendant prayed
that an ordw should be paased calling upon
counsel to show cause why the case should
not be dismissed and the receiver discharged.
An order was grunted accordingly. Counsel
for the plaintiff filed a response to the rule,
alleging In substance as follows : During the
latter part of October, 1911, the plaintiff em-
ployed them to advise and counsel with her
in regard to the differences then eating be-
tween her and her husband. At that time
the plaintiff and the defendant were living in
a state of separation, and the defendant was
residing In New Tork. The plaintiff dedded
that It was best to obtain an absolute divorce
from her husband, and accordingly employed
certain named lawyers of the Mew York bar
to co-operate with these respondents in carry-
ing out her wishes. As the defendant was
at the time a resident of the state of New
York, and the marriage had been performed
in that state, Its courts had Jurisdiction of
the suit for divorce, which was accOTdingly
there filed. The plaintiff and, her two chil-
dren were living In Atlanta, and the property
of the defendant was located In Fulton coun-
ty. In order to procure temporary and per^
manent alimony it was necessary that the pe-
tition should be filed In the superior court of
Fulton county. Accordingly these respond-
ents, as attorneys for the plaintiff, prepared
and filed such a petition, and upon It an or-
der was passed placing the property in the
hands of a receiver. They have faithfully
performed all services required of them by
the plaintiff, and have advised and counseled
her in regard to the suit for divorce pending
In New York; but they have received no com-
pensation for their services, nor has she of-
fered to pay them therefor. On February 6,
1912, the plaintiff wrote from New York to
her counsel, directing them to dismiss her
petition, but declined to state to them at
whose cost the proceeding should be dismiss-
ed, and refused to make any provision for
their compensation. Two thouBand dollars
ifi a reasonable amount to be allowed to
them as plaintiff's attorneys. The report of
the receiver shows that he has abundant
property of the defendant In his possession
with which to pay all court costs and counsel
fees. They prayed that they be made par-
ties plaintiff in the action ; that they be al-
lowed $2,000 as counsel fees, to be recovered
out of the property In the hands of the re-
ceiver ; that the receiver's fees and expensea
and all court costs be paid out of the prop-
erty In his hands; and that the prayer of
the petition filed by the defendant be dmied.
Upon the beazing of the petition for dla-
missal of the action and the response there-
to, the iwesldlDff Judge passed this order:
"It having heea admitted In open court that
Hra. Grace Macy Keefer has, situated In
Fulton county, this states property of the
value of $20,000; and other valuable properly
not situated In the state of Georgia, the val-
ue of which is not stated, It is therefore con-
sidered, ordered, and adjudged that the peti-
tion to dismiss said cause be and the same
is hereby granted, and said case is hereby
dismissed.*' To this or^ the comisei of the
plaintlfl excepted. The judge a^ entered
Judgment against the plaintiff for the court
costs and receiver's fee.
Evins A Spence, of Atlanta, toi plaintiff in
errw. Rosser A Brandon, of Atlanta, for
defendant In error.
LUMPKIN. J. (after stating the facU as
above). The argument in this case has taken
a wide range: It has included, among other
things, a discussion of the marital right of
the husband as to the wifO's property, under
the common law, its effect in leaving her prac-
tically helpless to bring a divorce suit against -
her husband or defmd one Ivou^t by him,
unless "suit money*' were allowed het, thecon-
sequoit treating of her attomcgr'a fees In snch
cases as in the nature at neeessariea, wliere
the attorney in good fiiltb and tm probable
canse prosecuted or defended a wife's divorce
suit wttii her husband, the recognition txt that
theory In this state {S^raybory v. Mark, 80
Ua. 81, 76 Am. Dec. (»r, decided In I860;
disttngnlahed firom a ease involving otiier
facts In Glenn t. Hill. 60 Qa. M, decided in
1878), the question of the efffect of the adop-
tion of the Code, which first became of force
in 186K, and contained express provisions In
regard to allowing temporary alimony and
attorney's fees poidento lite, and of the en*
actment of what is commonly caBed the
Married Woman's Act of 1886, preserving
her separate property to bsie. We do not
deem it necessary to follow counsel over tiie
entire field covered by their argummts. 33ie
case before na is not a suit by the attorneys
for the wlfe against either her or her too-
band, after the termlnattini of the alimony suit
betweoi them ; and it would be ranging Into
the by-paths of obiter dictum to drtermlne
what might be ruled in such an action. Here
the wife sued ber husband for permanent ali-
mony, and prayed for the allowance of tem-
porary alimony and attorney's fees, under
the statute; and incidentally a receiver was
prayed. The parties settied their differences
and desired to dismiss the case. The wife's
attorneys objected, so far as It affected the
allowance o< attorney's fees, and prayed, to.
464
78 SOUTUlfiAl^TBtRN REFOBTEB
be m&de pattlea, and to bare tern awarded
to'tfaem ia that em.
[f;'l] UiKm an applicatloii for tbe allow-
ance of tanporai^ atitnony, Indndlng conn-
ntA feea, pending a salt for dlrorc^ or perma-
nent aUmffiDy, such allowance la not a matter
of arbitrary rlgtit, under onr atatnteB, but a
matter to be detenAined by the nee (tf a
somid dlBoetlon appKed to the facta of the
caaoi the caoaea of the separation, and the
dFcnmstancee of the parties. Civil Code,
IS 2976, 2977, 2979; Parka t. Parka, 129 Oa.
487, B5 8. B. 170. In the opinion In the Parka
Case the expression was used that the allow-
ance of both alimony and coonad feea, or tbe
allowance of one and the disallowance of the
other, la a matter addressed to the aeund
discretion of the Jndge, after examination
ihto the causes of tbe separatlMi and the cir-
cumstances of the partlea. Thia did not
mean that the two things were wholly dis-
tinct,: with the richt to apply for one in the
client, and for the otiier In the attorney, but
that, upon such an application by the wife, the
judge might allow a sum fOr her support and
also for counsel feea, one or both, or neither,
if the evldeuce so authorized. This is made
evident by considering that opinion in the
light of the facts involved, and in connection
With other dedsi^ons of this court and the
language of tbe statato itselt Civil Code,
{ 2076; Sweat r. Sweaty 123 Ga. 801, 61 8.
K. 716; Hughes v. Hughes, 183 Ga. 187, 6S
S. E. 404. It has been said that the applica-
tion for temporary aUmony, including at-
torney's fees, should be made and determined
pendente lite, but that ^ Judgment for such
fees based upon a verdict therefor was not
a ! nullity. Van Dyke v. Van Dyke, 126 Ga.
402^ 64 S. B. 687. In Weaver t. Wearer,
33 Ga. 172, on the hearing of an application
therefor, an order was passed directing a
Husband to pay into court a certain amount
to compensate counsel who represented 0ie
wlf^ and also an amount for the mainte-
nance of the wife. After the case had been
prepared, but before trial, it was dismissed.
It was held that this operated to rescind the
order as to tbe alimony proper allowed to
the wlfa, bnt not as to tbe fees of counsel.
JX waa said: *:'We see no reason for compel-
ling counsel to resort to an independent ac-
tion when hla fees hare been already ad-
judged." In view of this mlinK; it waa held
in Roberts t. Roberta, 116 Ga. 2S9, 41 8. B.
61<V 90 Am. Ht Rep. 108, that when an ap-
plicatfoD was made for tbe grant of aUmony
and attomey'a fees, eonnael for the a^licant
had such a ^eeoniaty intareat la the reaolt
that, onder onr atatnfe^ a Judge r^ted to
him within the fonrUi d^ree waa disquali-
fied from preaidlttg. What was said in the
opinion must be considered in connection
with the question before the eoort
- We are aware that thoe'ts some conflict
Of authorl^ as to whether a court may re-
fuse to dlsBdae-tt' divorce 'Case Without the
payment of attorney*k foes to the wife's at-
torn^, m whether an order for such fsea
may be granted before or In connection with
the dlamiasal. It la mmeeessa^ to diaeoaa
the basis of such dedsiona, or the BugHwh
practice of taxing attorney's fees as costs.
We think the dedalons wldcih rale that coon-
sel tor the wife cannot prolong such a suit
against tbe wiahes of their client are the
sounder and more applicable to the statutory
procedure In this stote for <rt)talnlng tonpo-
rary alimony, including counsel fees, as well
as more in accord wiCh public policy. There
la no law authorfalng attOTneys, pending a
Bult for divorce or permanent aUnumy, to
make application for the allowance of tonpo*
raiy alimony on their own behalf. Such al-
lowance is not a matter of course, but a mat-
ter to be determined upon a consideration of
the facts. After a wife has condoned the
miscondnct alleged against the husband, and
the two have resumed tb^r former relations,
and when they desire to stop tbe legal con-
troversy between tbem, it would t>e against
sound public policy to say that they could
not do so, but must continue their case invol-
unterlly, and display the family akeleton and
parade tbeir for^ven grievances, so as to aid
the judge to determine whether, in his dis-
cretion, be would have granted alimony, and
would still award counsel feea
This public policy In favor of permitting
a. settlement of matrimonial differences baa
been declared In other states. In Jordan v.
Westerman, 62 Mich. 170. 28 N. W. 826. 4
Am, St Rep. 836, the court waa discussing
a contract by a married woman made with
her solicitor, in advance of a decree for di-
vorce, to pay to him one-half of what should
be awarded to her as alimony. Cbamplln, J.,
said: "Public policy is Interested in main-
taining the family relation. Tbe interests of
society require that those relatione shall not
be Ughtly severed, and that famlllea shall
not be broken up for inadequate causes, or
trom unworthy motives; and where dlffer-
encea have arisen which threaten disruption,
public welfare and the good of society de-
mand a reconciliation, If practicable or pos-
sible. Contracts like tbe one in question tend
directly to mmrent sodi recoDCiliation, and.
If legal and valid, toid directly to bring
around alioiatlon of husband and wife, by
olforlng a atrong Indnoement, amounting to
a premium, to Induce and advise the dissolu-
tion fxt the marriage tiaa as a method of
obtaining relief from real or fancied griev-
ances whldi otimwiae woidd pass uuiuh
tioed." In muman r. Blllman, 42 Wash.
S8S. 86 Pac. 61, 114 Am. St Rep. 186, It waa
held that a -Wifa eonld enter into a stipula-
tion for the ^finiMai of her action for di-
vorce and a i>endeute Ute appUcatfon for tem-
porary aOiniwiy wlthont the conatfit al her
attorneys, and 1^ court could not allow than
to' intervene- in the action, ahd thereupon
^tet^a jodghientlit their CaT^^j^^:^(^
ATKINSOK T. KKBia
466
and for costs adrftneed by tbem. Fnllerton,
J., said: "It is the policy of the law to €a-
ctmrage husband and wife to compromlsft
and settle between tbems^Tee tbeir dome«tlc
tronbles, and to dlecoorage actions for dl-
Torce. Actions for divorce, therefore, irtildi
both parties desire dismissed, ahonld not be
kept allre merely to settle ttie claims of conn*
sel for attorney's fees.** In R^nolds t.
Reynolds, 67 OaL 176, 7 Pac. 480, It was
held that 1^ pendi&s: an action for divorce,
the parties thereto admit a condonation and
ask that the action be dismlBsed. the conrt
should order a dismlasal, and could not there-
after enter Judgment against the hnsband
for tbe counsel fees of the wife. Myrick,
tersely said: "When tbe husband and wife
forgave and were forgiven, and abandoned
tb^ criminations and recriminations, the
attorn^s bad but to gather up their briefs
and retire." See, also. Petersen v. Petersen,
76 Nd>. 282, 107 N. W. S91, 124 Am. St Rep.
812; Stover t. Stover, 7 Idaho, 185, 61 Pac
462 ; Garden v. Garden (Tenn.) 87 S. W. 1022;
HcGnUoch V. Mnrpby, 46 111. 2D6, 258.
It may be further mentioned that a fail-
ure to pay alimony is enforceable by attiiidi*
meat, and If connsd fees awarded in such
an application may be enforced in the same
way, we might have the spectade of a fot^
giving wlfb being unwillingly compelled to
proceed to obtain a Judgment and then en-
force it by putting her repentant hnsband in
jail ft>r nonpayment of her attorney's fees.
The exact point as to public policy has mot
been decided in Georgia. In Chastain t.
Immpkln & Wright. 184 Oa. 219, 67 S. Bl
818, after a petition by a wife for divorce
and for pmnanent and temporary alimony
had been filed, but I>efore it had l)een served,
the parties "resumed thrfr relations to each
other as husband and wife," and the plalatlfr
notified her counsel and the sheriff to pro-
ceed no further- in the case. It was held
that her coon/Kl could not thereafter press
the case, over her protest, by having serv-
ice perfected and obtaining Judgment for
-fees. Had the attorneys in the present case,
after service had been perfected, such a Hen
as gave them a right to prosecute the suit
of the wife In spite of her desire to dismiss
it? We tUnk not By CivU Code, i 3364,
snbeec. 2 (tbe only clause here relevant), an
attorney is given a lien upon "all suits,- Judg-
ments, and decrees for money." and It ts de-
clared that no pa*son shall Iw at liberty to
satisfy each suit. Judgment or decree nntll
the llm of the attorney for- his fees is fully
satisfied, and further that attorneys shall
have the same right and power over mth
suits, Judgments, or decrees, to enforce thdr
liens, "as their clients had or may have for
the amount due. them thnwn." While the
language is somewhat broad, we think it
was not intended to. cover an application
for alimony and counsel fees. It refers to
nits "tot mtacv,** and again to "the amounts
dna** the cUenta. Applications for alimony
are in several respects quite dissimilar from
otdlnary suits for money. An order or Judg-
ment for the payment of alimony may be
enforced by imprisonment, though the Con-
stitution prohibits Imprisonment for debt
Cbrlton v. Carlton, 44 Ga. 216; Lewis v.
Lewis, 80 Ga. 706, 6 S. B. 918, 12 Am. St.
Rep. 281. A decree granting alimony la not
a debt "founded on a contract*' within the
meaning of a statute providing for relief
from such debts by a discharge in Insol-
vency. Noyes v. Hnbbard. 64 Yt 302, 23 Atl.
727. 15 L. B. A. 804, 38 Am. St Rep. 928.
Alimony has been held not to be assignable
In advance of Ite allowance. Jordan v. West-
erman. 62 Mich. 170. 28 N. W. 826. 4 Am. St
Rep. 836, supra. Its basis Is a duty on the
part of the husband, rather than an Indebt-
edness. These illustrations will serve to
show that such an action (at least before a
Judgment fixing a sum as an allowance) la
not a suit "for money," or one for an "amount
due" a client, within the meaning of the
statute r^ulatlng attorney's liens. Certain-
ly the Legislature never contemplated that
an attorney could Insist on continuing to
prosecute a wife's suit for divorce after she
had condoned the alleged offense, and re-
sumed cohabitation with h«r husband, and
no longer desired a divorce.
[1] The same reason of public policy aj>-
plies to the cessation of a suit tta alimony
based mi the fact that the husband and wife
were.Uv}ng separate at tbe time of its com-
menconent The more addition of a prayer
for a receiver to h<dd the property of the
fausbapd to be found within the Jurlsdlctloo.
as a means of securing payment of such
amount of alimony as might be awarded,
and the appointment of a temporary receiv-
er, would not change the nature of the action.
The situation of the attorneys in this case is
not so unfortunate as It might seem at a
casual glance. It appwrs that th^r client
and her husband are both amply solvent
and the mling here made only goes to the
extent of holding that the attorneys cannot
intervene In this aolt, or obtain a judgment
for fees ther^ or lurevent Its dismissal.
Judgment afflrmed. AU tbe Justices concur.
ATKIN80K V. EBEIS.
(Snprema Court of Oeorgis. May IS, 1918.)
(SvWahu$ ty like Court.)
1. RxcEXVEBs (i 174*)— Leave to Sue Ba-
CBIVKB— NECEBSITT.
Where a landowner and a railway oompany
contract In writing that in conaideration of the
landowner's relinquiahment of a road oecessary
•to the rajonaent of bta property, which travers-
es tbe track of tiie. railway company, tbe latter
will donate and ■ dedicate for road pnrpOBea a
road opened on its right of way for the benefit
of the landowner and tbe public, and snbeequent-
ly X6' the cloaing of tbe ori^nal road tbe rail-
way company ia placed in the hands of a ce-
5^
•rsr etbn «MMm-aaiartasik wd MBtloa IjHniBBB laJtsa. JD|» * An.>i>lfc Kar^
78&E^-80
466
78 SODTHBASTJDBN BBPOBTEB
(Qa.
ceiver by a TTnited States coart, and the re*
ceiver closefl a part of the substftnted road la
order to fumiBh track {acilitiea to a patron, aa
action for the trespaai against the receiver ii
oiaiataiDable In Tirtae of the act of ConKreM
(Aug. 13, 1888. c. 866, { 3, 2S Stat. 436; 4
Fed. Stat Ann. 887 [U. S. Comp. SL 1901, p.
682]), withoat the previoos leave of the court
in which aadi reeeirer was appointed.
[Ed. Note.— For other caaes, see Bec^veiM,
Gent Dig. IS 333-343; Dec Dig. | 174.*]
2. Easements (i 70*) — Obstruction — M«a».
UBE OF Damages.
The measnre of damages in each a case ii
the difference in the market value of the land-
owner*8 property with the aubatttuted way open-
ed and with it doaed.
[Ed. Note.— For other eases, see Easements,
Cent Dig. ii 14B, 146; Dee. Dig: | 70.*]
3. Easements (6 69*) — OBaTBocnoN — "Evi-
dence.
Evidence to show the marlwt value of the
property before and after the contractnal way
was closed is competent
[Ed. Note.— For other casea, see Easements,
Gent Dig. S 143; Dec Dig. { 68.*]
4. Tbbdiot Sdsiaircd.
The verdict is supported hy the evidenoa.
Error from Superior Goart, Fnlt«m Coun-
ty; W. D. Ellis, Judge.
Action by B. J. Kreis against H. Bi. Atr
klnson, recover. Jadgment for plaintiff,
and deCeodant brings error. Affirmed.
IL J. Krtf 8 U the owner of a tract ctf land
near tbe dty of Atlanta, access to whkh was
over a private roalA from a nearby public
road. In 1808 the Atlanta, Blrmlngbam *
Adantlc Railroad Company deaired to con-
stmct its road across this private way. The
railroad company and the landowner enter*
ed Into a written omtract, which redted
that there was a private way running from
the Garrett Bridge road to the landowner's
property across the right of way of the rail-
way company, and that In the cfmatmctton of
the railroad It became necessary to make a
cat of 12 or IB feet, causing a diversion of
■Qie road at the point of Intersection in order
to make it passable; that the railway com-
pany has opened up a road on its right of
way to a point weat of tbe presoit line of
the private road about 160 or 200 feet, and
at that point have conatructed a grade cross-
ing across the railroad, and from there have
constrticted a road bactoon the right of way
to the line of the original road; and thai
whereas the maintenance of this , road Is nec>
«s8ary to the enjoymrat of tbe landowner of
his property lying north ot the railroad, it
was agreed between the parties that Uie
railway company donated and dedicated for
road purposes the road now open on Its
Tight of way and across its road in perpet-
uity for the benefit of the landowner and the
public; and the railway company oovenant-
•ed to perpetually maintain a grade crossix^
In good order at the point where the grade
crossing was then constructed or at some
other wnvenlent point. Subeeqnently H. M.
Atkinson wan anointed receiver of the rail-
way company by an order of the United
States Gtrcnit Court for the Northern IMa-
trict of Georgia, and the recover went Intc
possession of the railroad property, niere-
after the receiver of the railway company
caused a spur track to be constructed across
tbe road described In its contract in order to
afford facilities to a patron, and Ingress and
^ress thereover vraa rendered impossible be-
cauae of the construction of the side trade.
The landowner sued tbe receiver for dam-
ages alleged to have accrued from the de-
stmcUon of the cimtractual road and recov-
ered a verdict A motion for a new trial
was made and overruled.
Rosser ft Brandon and Stiles Hopkins, all
of Atlanta, for plaintltT In error. Jas. U
Key, of Atlanta, for defendant in error.
ETANS, P.. J. (after stating the facts aa
above). [1] L.The suit was Instituted against
tbe receiver without previous leave of tiie
United States court authodalng IL It Is
insisted that the suit is not maintainable
without such order. This point is not ten-
able. The act of Congress provides that
every receiver of any property apptdnted by
any court of ttie United States may be sued
in respect of any act or transaction of hia
in carrying on the business connected witii
sndi property without the prevloua leave of
tiie court in whidi such receiver was ap-
pointed, but that auch suit shall be subject
to the general canity Jurisdiction of the court
in which such receiver was apptdnted, so tar
as the same shall he necessary to tiie «ids
of Jnatlceu Act Aug. 13, 1888, c; 866, 25 Statr
ntea at Large, 436; 4 Fed. Stat Ann. 887
(U. 8. Cosap. Bt 1801, p. 682K The injury
cfMuplalned of in this case is the destnuitlon
of the landowner's eaaemoit whldi the rail-
way contracted to give him in conslderatlMi
of his relinquishment of an existing private
road essential to the enjoyment of the land-
ownw's property. It was alleged, and proof
was submitted to sustain the aUegati(», that
the Interference of the ccmtractnal way was
the result of the eonatructlon of a trade by
the recelrer Intended to serve a mannfiactur^
Ing plant located on property adjacent to tiie
railway company. The act of the recdver in
making the obstruction was in pursuance
of a transaction of his in carrying on the
business of the company, referred to in flie
act The providon in the act that suit diall
be subject to the general canity Jnrlsdlctlfu
of tbe court in which such recdver was ap-
pointed, 80 far as the same shall be necessary
to the Olds of Justice, applies only to suita
wfaldi seek to interfere with the recdver'a
possesdon of the property, and to process,
the encutton of which would have that tf-
fect DUUn^iam t. Hawk, 60 Fed. 407, 9
a a A. 101, 23 U R. A. fil7; St LonlB
Southwestern R. Co. ▼. Holbrook, 73 Fed. 112,
10 a a A. 888. It does not Int^ere with
••rereta«rsaMassausiapi«aBdSMtioaHUHB>RiaDse.Dls.*An.ois. X^r^^Hrff^l^^^Ogtc
WITT T. SIMS
467
suits against It In respect to any act or trans-
action of the receiver in carrying on the busi-
ness without the previous leare of the conrL
Itl 2. The measure of damages for the de-
struction of the easement of way which the
railway company contracted to give the land-
owner In consideration of his rellnQulsbment
of an existing right of access to his property
Is Its elTect upon the landowner's property.
It was expressly recognized In the contract
between the railroad company and the land-
owner that the contractual right of way was
necessary to the enjoyment by the landowner
of his property; It was treated as an ease-
ment appurtenant to that property. If the
destruction of that eaeem^t affects the value
of the appurtenant property, then the meas-
ure of damages la the dUIerence in the mar-
ket value of the landowner's property with
the substituted way opened and with It clos-
ed. See, in this connection, Mallory v. Mor-
gan Oounty. 131 Oa. 271, 62 S. EL 170.
[l]-3. Certain vrltnesses were examined
with reference to the value of the property
before the way was closed and Its value af-
ter the way was obstructed. Some criticism
is made in the form of the question as indi-
cating that the witnesses were not confined
to the particular road which was closed as
affecting its market value. When the testi-
mony to which objection to taken is consid-
ered In connection with the context, we think
it clear that the testimony of the witness bad
relation solely to the effect of the particular
road described In the contract t)etween the
railway company and the landowner, its ef-
fect upon the landowner's property, If main-
tained according to the contract, and its ef-
fect upon the market value by reason of the
road being rendered Impassable by the con-
struction of the side track over it This evi-
dence was competent to show the market
value of the property before and after the
contractual way was obstructed.
[4] 4. It is contended that the recovery to
for too large an amount, but after a careful
consideration of the evidence we do not
think that the verdict to excessive. The ver-
dict to authorized, and has the approval of
the trial Judge, and no sufficient reason Is
made to appear to reverse the Judgment of
the court refusing a new trlaL
Judgment affirmed. AU the JustloeB ocm-
cor.
(140 Ga. 48)
WITT V. SIMS «t aL
tSapieme Conrt of GeoEgla. May 1S> 1013.)
fSyllahut &v the Court.)
1. Records (S 6*)— CoMtaACT with Bbokbb.
One who bad purchased a lot and tigned
and delivered to a real estate broker an instru-
miot in writing as follows: "I have this day
purdiased through Roff Sima the vacant lot in
Atlanta, Oeoi^ia, from J. F. Leaxy [describing
the lot]. Tfae said Roff Simi, in making the
purchase for m«, was obUged to reduce bis com<
mission on the sale, and In consideration I give
to him the exclusive sale of the property so loDg
as I own it, and agree to pay Dim the regular
real estate commission upon it when it is sold,
either by himself, myaelc, or any other person.
It is hereby agreed that the real estate commis-
sion be fixed for this sale as 2% per cent on
the doUar." Held, that there It no law in this
state authorixing the record of each an instru-
ment by the clerk of the saperior court, nor is
there any law authorizing the record of an ea-
tr; upon it by which the promisee Id the paper
sought to transfer a balz Intezeat in the con-
tract to another.
[Eld. Note.— For other eases, ate Becozdt,
Gent Dig. | 7 ; Dec Dig. | 6.*]
2. Recobds ({ 6*) — RcoOBDABiunr — Am-
DAVIT— SumCIENCT.
Had the agreement tet out In the first
headnote been a recordable paper. If properly at-
tested, it could not be properly recorded on the
affidavit of the promisee therein that he taw
the promisor tign it
[Ed. Note.— For other cases, ett Records,
Cent Dig. I 7: Dec Dig. | 6.*]
3. QuiRXNG TriLK (8 7*)— CSlocd oR Tma—
Bbokks's Eufloyubht Contkact.
Snch a paper was not a cload upon the ti-
de of the promisor. It did not purport to
convey any title to or Interett or easement in
the land, or to create any lien upon It, or to
affect the title thereto; but U was merely a
promise to allow the promisee the excloBive right
to tell such land as a broker to long as it was
owned by the promisor, and to pay the broker
certain commissions, should the land be sold by
him, the owner, or any other person.
[Ed. Note.!— For other cases, see Qnieting Ti-
tle. Cent Dig. 19 14-33; Dec. Dig. 1 7.*]
4. Gancei.i.atioi^ ov iNETBimim (I S*)—
BeCOBDS ({ 11*)— BlOHT.
In the absence of a statutory provision, the
saperior court will not, at the Instance of the
maker of a contract not properly recordable, or-
der or decree the cancellation of tho record
thereof on the deed books by the clerk as mat-
ter of course; but the asserted rigbt to cancel-
lation of the paper and of an nnlawfol record
thereof will be determined under the general
law goTemlng tbe right to have Instraments can-
celed.
[Kd. Note.— For other cases, see Cancellation
of Instruments, Cent. Dig. SI 1, 5; Dec Dig. I
3;* Records, Dec Dig. { 11.*]
B. Cancellation op Instbuments (SS 4. 13*>
— Qtheting Title (5 7*)— Cloud on Tm*—
Bbokeb's Ehplotubnt Contbact.
The petitiOD in this case did not show a
case for the cancellation of the instrument In-
volved, as being ao iostrumeot which had an-
swered the object of its creation, or a "forgel
or other iniquitous deed or other writing, which,
though not enforced at the time, either casts a
cloud over complainant's title or otherwise sub-
jects him to future liability or present annoy-
ance, and the cancellation of which Is necessary
to his perfect protection," under Civil Code
1910, S 5465; nor did the allegations make a
case for tbe cancellation of a -cloud on the
plaintiffs titie, under QvU Code 1910, iS 5466,
64«8.
<a) There was no allegation of fraud or wrong
in the procurement of the instrument by tbe
promisee therein, and tbe only ground of at-
tack upon it was an allegation that It was made
without a present ctHisideratlon therefor. No
insolvency was alleged, no danger of loss shown,
and no reason why want of consideration, if
It extoted, could not be as well set up in defense
■ell set op *° defense
•vwothereutt stttamt to^e and'sttthut MUHBKIt la Dto. Dig. « Am. Dlg.S«y-|trg^^i
468
78 SOdTHBAST^RN REPORTBB
to ft suit Qpon It 88 hf eqnltabl* petition, or why
equitable relief was necessary,
[Ed. Note. — For other cases, see Cancellation
of Instroments. Cent. Dig. if 1, IS; Dec. Dig.
&4, 18;* QoieUnc Title, Ofnt. Die ff 14-33;
e. Die. I 7.*]
Error from Superior Court, Pnlton Conu-
tj; 3,T, Fandleton. Jndga
Suit by Carl Witt ftgaliut Boll Slnu and
others. Decree fbr defendanti, and plaln-
tiff brings error. Affirmed.
Carl Witt brought an equitable petition
agalnat Boff Sims, W. B. Wimpy, and the
clerk of the superior court He alleged in
substance as follows: On the 2d day of Jan-
nary, 1909, the plaintiff entered into a writ-
ing with Roff Sims, which was as follows:
"Atlanta, Oa., January 2, 1909. I, having
this day purchased through Roff Sims the
vacant lot in Atlanta, Georgia, from J. F.
Leary, situated on the northeast corner of
Peachtree street and Bast Harris, being
one hundred (100) feet on Peachtree street
by one hundred and fifty-four (164) feet
deep. The said Roff Sims, in making the
purchase for me, was obliged to reduce his
commission on the sale, and in consideration
I give to him the excIuslTe sale of the prop-
erty as long as I own it, and agree to pay
him the regular real estate commission upon
It when it is sold, either by himself, myself,
or any other peiison. It is hereby agreed
that the real estate commission be fixed for
this sale as 2% per cent on the dollar."
This writing was entered into after the plain*
tiff had purchased the property therein de-
scribed, which property la owned by him;
he having purchased it from J. F. Leary.
It was given for a past consideration, and Is
therefore without consideration, and Is null
and void. It casts a cloud over the plain-
tiff's title to the property, and subjects him
to annoyance and liability. On or about De-
cember 30, 1909, Sims attempted to transfer
to W. B. W^py a half Interest In the writ-
ing above set out, such assignment being as
follows: "AUanta, Ga., Dec 30, 1900. ((750.)
For and in consideration of the sum of seven
hundred and flf^ dollars, I hereby transfer
and assign to W. B. Wimpy, one-half inter-
est in the above contract, the receipt of
which la hereby acknowledged." On Febru-
ary 26, 1911, Boff Stms attempted to probate
the writing first above set out, and for the
purpose of having It recorded on the records
of the clerk of the superior court made an
aflldavlt before a notary public of the coun-
ty, stating that he saw Carl Witt "sign the
abore obligation, dated January 2, 1909, on
said date." On or about February 2S, 1911,
Stms or mmpy filed the writings above re-
ferred to with the derk of the snperlor court
with request that they be recorded. The
cl&tt recorded them on March 2, 1911, In a
book for recording deeds. Thla writing
could not be astdgned, and any attempt to
assign aif interest In It was void. The at-
tempted probate was void. The papers were
not entitled under the law to be recorded In
the clerk's office, and the clerk had no legal
authority to record them. The plaintiff has
no other course to protect his. rights than
the one here pursued. Plaintiff prayed that
the papers herein set out be canceled and
delivered up, that the clerk of the superior
court be required to lezpunge them from the
records, that the attempted assignm«it
Sims to Wimpy be declared null and void,
and foe process. The defendants demurred
to the petition. The judge sustained the
demurrer, and dismissed the petition, and
the plainUff excepted.
Bvlns & Spence and T, B, Badoislctwn, all
of Atlanta, for plaintiff in error, a T. *
L. C. Hopkins, of Atlanta, for defcndawte In
error.
LUMPKIN. J. (after stating the facts as
above). [1 , 2] The paper involved in this
caise was plainly not one which the clerk of
the superior court was authorized to record
on the deed books of the county. It was
a mere agreement between a landowner and*
a real estate broker in regard to giving the
latter the right to sell the land, or paying
him a commission, if the land should be
sold by him, the owner, or any other per-
son. It did not purport to convey any title.
Interest, or easement in the land, or to
create any lien upon It If it had been oth-
erwise a recordable paper, it was not prop-
erly attested or probated for record. What
Is said of the paper Itself applies with
double force to the entry upon it purporting
to transfer an Interest In the fwutract to an-
other.
It was conceded by counsel for the de-
fendants that the paper was not recordable,
and ought not to have been «itered on the
record of deeds. But It was argued that, If
a clerk should cumber the books for the re-
cording of deeds by entering on them papers
which should not be recorded, In order to
obtain fees, the county authorities would
have the right to prevent such a use of the
county's property. Perhaps they would.
But the registration laws are for the benefit
of the public, and the county authorities
have no power to change them; nor la a prop-
erty owner who may be damaged by an un-
lawful record without remedy, upon a proper
case made. In New York there Is a statute
touching the cancellation of any recorded
instrument relating to realty not entitled to
record by law. In Georgia there Is no ex-
press statute on the subject Under some
circumstances, doubtless, an entry of can-
cellation might be required by a court hav?
Ing equitable jurisdiction.
ft, 4] But in this case the allegations make
no case for cancellation either of the Instru-
ment or the record of It They do not bring
the case within ClvU Ck>de, { 6466, touching
*Per «tber cmm i
I noM topio ud MQUon NDHBSB im Dm. Dlfc * Am. Dls. ^*^i^*^^'^^'^^^^1[^^f(^
Q*0
DOZISa T. CBNiaULL OV OaOBOlA BT. CX}^
proceedings quia timet generally: nor do tluy
■how anj dond upon tlie title oC tlw plain-
tUE, giving a right of cancwUatlon nnder
GItU Code. H 6i6a Tbe cases of
Thompson T. Etowah Iron Oo^ Kl Ga. 088,
17 8. BL 668; and Halralnm v. Careon, 111
Ga. 57, 86 S. B. 319, were relied on. WMl©
much that la said In the decisions In those
cases is stlU tbe law, and a part of that
In the one first dted has been codified In
avU Code, I 6468, it nay be well to note, in
eonneetton with this, that the rule that,
where the Inralidlly of an instnunent ap-
pears on Ita face, this alone irill render can-
cellation unnecessarr, has been abrogated by
statute. GlTll Code. I 6466.
[B] Tbe bare aUegation that a promise, to
give a broker tbe excluBlye privilege of sell-
ing property, or to pay -him commlBslons, if
it should be sold by another, ires made with-
out present consideration, does not make a
case for resort to a court having equitable
jurisdiction, for cancellation. Nor do the
sttpetadded auctions of conclusions that
the paper is Iniquitous and the plaintiff has
no other remedy, with no facts to support
such conclusions, make the case one for eq-
uitable relief.
Judgment affirmed. All the Justices con-
cur.
(U OS. App. 7«)
FHiGiaifS' HBAI/TH ft LIFE INS. OO, T.
SCOTT. (No. 4.6ea)
(Gourt of Appeals of Qeorgla. Jane 1<^
1. Appxal akd Ebsob (t 272*)— NBw TBXiX
(I 18*)— Qbouhds— Ambndwemt— N»cBB8irr
or Exception.
The Improper allowance of an amendment
to tbe pleadings cannot be made the snb-
Jeet-matter of a ground of a motion tor new
trial. BaQocb v. Cordele Saih Co., 114 Oa.
627, 40 S. E. 734; Hammond v. George. 116
6a. 792, 48 S. E. 53; Lowery t. Idleaon, 117
6a. 778, 45 S. B. 61. Since no timely excep-
tion was filed to the ruling ivon tbe amend-
ment in the present rase, the amendment
must be adjudged to have been properly al-
lowed.
[Ed. Note.— For other cases, see Appeal and
Error, Cent. Dig. K 1611-1619; Dec. Dig. |
272;* New Trial, Cent Dig. H 24r-29; Dec
Dig. I IS.*)
2l Appeal akd Bbbob ({ 1002*)— VKBDiot<—
' Evidbnc^Insubance.
Under the evidence It was issnable as to
whether the idaintiff (the Insured) voluntarily
surrendered tbe policy, or whether It was
taken from his wife mthoot her ,consent and
without bis knowledge; and eonsequently the
verdict of tiie Jmy upon tiist point is con-
clusive.
[Ed. Note.— For other cases, see Appeal and
Error. Cent. Dig. i| 3935-8937; Dec Dig. |
1002.*]
8. Ihsubance a 360*)— l^NDEB OT PBBimnu
— NEfSSSITT.
After tbe agents of the defendant
paay took up the policy and notified the in-
sured that they would receive no fortiier
Memlnms from him, It was' snnecessary that
he should tender payment of the weekly
premiums. The law does not req^e tbe do*
mg of a vain and useless thing.
[Ed. Note.— For other eases, see Insoranoe,
Cent: Dig. fS 813, 916-022, 024; Dec Dig, (
360.*3
4. Irsubahcx (1 8M*) — Canobllatxoh —
Right or Recovebt.
The evidence tn behalf of tbe plalntiif
authorized a finding that he bad paid In ad-
vance op<m tbe weekly premiums at the time
that he was taken si^ and at the time that
his policy was taken away by tbe agents of
the defendant company; and hence the ver-
dict was not contrary to tbe evidence, nor was
It error to refuse, upon this groond. to grant
a new trial.
[Ed. Note^For other eases, see btsurance.
Cent IMg. II 801, 80&-0(^M8: Dec Dig. 1
849.*]
Error from Siq;»ezi(» Gourt; Floyd Oonnty ;
J. W. Maddox, Judge.
Action by Charles Scott against tbe Pil-
grims' Health ft Life Insurance Gompany.
Judgment for plahitUf, and defmdant brings
error. Affirmed.
Harris ft Harris, of Rome, for plaintiff in
error. Maddox ft Doyal, «f Rome, for de-
fendant In err«.
BU88KJi» J. JndgBMiit SBInnsa.
(IS Oa. App. wt)
DOZIEB T. OENTRAL OF GBOBGIA BY.
CO.
OEKISAI) OF OBOBGIA BT. Oa T.
DOZIEB.
(Mos. 4.702 and 4,708.)
tf3onrt ot Ameals of Oewgla. June VK
1918.)
fSyUahut &tf th» Court.;
1. Railboads (II 318, 817*)— Cbossinq Ao-
CIDBNT— SPKBD— LlABILZTT.
The plaintiff sued to recover damages for
personal injnries caused by the running of
tbe defendant's locomotive and cars. He al-
leged that be was injured without any fault
or negligence whatever on his part, and solely
by the negligence of the defendant; that he
was Injured at a public street crossing by
the negligent conduct of the defendant's em«
ploytfs in charge of the locomotive in ap-
proaching the crossing, without ringing the
bell or giving any other signal, and without
checking speed in compliance with tbe statute,
and in vlMation of a city ordinance limiting
tbe speed of trains at pnblie crosriii«s In the
dty. Btld, tbe allegations of the petition
show a cause of aoti<m. and the demurrer was
proper^ overruled. The allegations of the
petition were substantially proved as laid, and
the court erred In granting a nonsuit.
[Ed. Note^For other cases, see BaOroads.
Cent. Dig. II 100^ 1000; Dec Dig. K
817.*]
2. Bailboads (I 886*)--CB0S8iNa AociDBn
— DEnNSB—BuBDEK or PBOor.
Where the . statutory precautions enacted
for tbe purpose of preventing tojnries by the
operation of railroad trains at public cross-
ings are not complied with, and Injury results
from such noncompliance, a prima fade ease
of liability Is shown, from which tbe offend-
•Ite ether ossas sss aisms lople and saotlea; NUlOn in Dee. IHg. * Ass. X>lt. Eay-V^^R^^
470
TO SODTHOASimN BBPOBTBB
(Qa.
ins eompanj can be reUeved onlj by proving
that the iBjiii7 wai eaaeed solely by the plain-
tiff** own neflrligence, or that by the exercise
of ordinary care ha ooaU hare avoided the
consequeneea of the defendant's negligence, or.
in mitigation of damages, that the plaintiETs
□eg^gence contributed to the injury. Bry-
son V. Soothem Ry. Co., 8 Ga. App. 407, 59
S. a 1124 : C. & W. G. Ry. Co. t. Camp, 3
Oa. App. 232, 69 S. B. 7ia
[Ed. Note.— For other cases, see Baitroads,
Cent Dig. H 1028, 1084, 1080-1088; Dec
Dig. S SS5.*]
Brror from City Oonrt of Swalnsboro ; H.
R. Daniel, Jndge.
Action by J. S. Doder against the Central
of Geoivfa Hallway Company. Judgment for
defendant and [ilalntUF brings error, and de-
fttidant flies erow-bllL Reversed on main
bill, and affirmed on cross-bllL
Frank C. Shackelford and H<aaoe M. Hoi-
den, both of Athens, tor plalntUt In error.
F. H. Saffold, of SwaSnaboro, tor defendant
in error.
HILL, 0. J. Judgment on the main bill
of exceptions reversed. Judgment on the
cross-bill of exceptions affirmed.
OS Oa.' App. no
Lrra^LB T. LAST (two cases). (Noa. 4,71B^
4,716.)
(Ooort of Appeals of Georgia. Jnne 10^ 191&)
(ByUoInu Ay tk« Oomrt.)
1. Lardlobd and Tbwakt a 20S*)—VaaiT—
Right to Distsain.
The landlord Is aathorised to Issoe a dis-
tress warrant for rent before the rent is due,
if the tenant Is seeking to remove his crop from
the rented premises without paying the rent
Civil Code 1910, | 8700; Smith v. Green, 128
Ga. 00, 67 S. B. 98.
[Ed. Note.— For othw cases, see Landlord
and Tenant, Cent Dtg. H 1062-1074; Dec.
Dig. S 266.*1
2. EviDSKoa a 896*) — Paboi. BTionro —
Rent Contbact.
The rental contract being in writing, and
being clear and unambiguous, parol evidence
was not admissible to add to or vary its terms.
CivU Code 1910, % 4268.
[Bd. Note.— For other cases, see Bvidence,
Cent Dig. 8S 1736-1744; Dec Dig. S 3»3.*J
3. Landlord and Tenant (| 266*) — Dis-
TKAINT FOB RXNT— GBOUNDS.
**A tenant, seeking to remove from the
premises any portion of the • * * crops be-
fore the rent is dae, without his landlord's con-
sent," and wfthont paying bis landlord, "is sub-
ject to distraint immediately, no matter what
may be the purpose or intent of such remov-
al.''^ Daniel v. Harris. 84 Ga. 479, 10 S. B.
1018. In the present case tiie defendant con-
tended that the rent was payable in money,
and that he was selling a part of the crop
to raise the money for the purpose of paying
the rent to his landlord. The court instructed
the Jury to the effect that If they believed this
to be true, they shonld find against the dis-
tress warrant Meld, that the charge was more
favorable to die defendant than uie law au-
thorised.
[Ed. Note.— For other cases, see Landlord
and Tenant, Cent Dig. H 1062-1074; Dec
Dig. fi 265.^1
4. Landlord and Tenant (S 266*>— Bbnt—
DisTBEss- Warbant— Sbt-Opf.
A set-off of items entirely Independent of
and separate from the contract of rent cannot
be made against the distress warrant McBla-
ban V. Tys<m, 28 Ga. 43 : Johnson v. Patter-
son. 86 Ga. 726, 13 S. B. 17.
[Ed. Note.— For other cases, see Landlord
and Tenant Cent Dig. H 1075-]^; Dsc.
Dig. I 2m*]
6. Landlobd and Tenant (8 265*) — Lbn
FOB StiPPLiBS— Right to Bnfobob.
A landlord's lien for supplies may be an-
forced twfore the debt Is dne. If the tenant la
removing or seeking to remove his crops from
the premises. Cl^ Code 1910, | 3348(3).
[Ed. Note.— For other cases, see Landlord
and Tenant Cent Dig. U 1062-1074; Dee.
Dig. f 265.*]
6. No BRbob^Tebdict Subtained.
No error of law appears, and the verdict
for the plaintiff, botih on the distress warrant
and on the claim tux supplies, is strongly sap-
ported by the evidence.
Error from City Conrt of Honston Coun-
ty; A. O. Riley, Jodge
Two cases by J. T. Lary against W. J.
Little. Judgments for plalntU; and dtflwd-
ant brings error. Affirmed.
Jere M. Hoor^ of Hontemma, for plalntUT
In error, G; E. BrunaoD, of Parryp for de-
fendant In error.
HIUj^ O. 3. Jodgmenta affltmoO.
(U Oa. App. 7M)
ASHBURN AUTO CO. v, BLACK.
(No. 4,709.J
(Conrt of Appeals of Georgia^ Jone
1918.)
(Syllaliu ly the OowrtJ
1. Motion to Dibmiss.
The motion to dismiss tiie writ «t error
la iritbout merit
2. JuDOiCBNT (fS 106, 138*)— TniE TO Ah*
sweb^Dbfadlt^Motion to Open- Nbces-
BITY.
Where the -statute allows the defendant
in an action at law to appear and answer on
or betore the first day of the term to which
the process Is returnable, and during that
day be does appear and file 'with the clerk
his plea or answer, he cannot be regarded
as in default In the present case the entry
of default was prematurely made, and £d
not deprive defendant of the right to insist
upon the plea and answer which he had filed
in terms of the statute; and it was not neces-
sary to move the court to open the default
though In such a case It Is the better prac-
tice to do 80. Bush V. Butler, 8 Ga. App.
345, 69 8. E, 26.
[Ed. Note.— For other cases, see Judgment,
Gent Dig. I| 160, 162, 1»)-197, 2^-2&l,.
2M; Dec Dig. » ^06. m*]
Error from C3ty Court of Aahtmrn ; B.
T^toUy Jiidg&
Action by J. "U Black against the Aabbnm
Anto GcHopany. Judgment for plalntitt, and
defendant brings error. Reversed.
•For otbff sasss see Sj^ toplo kbA ssctioa NUHBBB ta X]«e. Dig. a Am. Dig.
KELLT T. BUTLER* STXVXara A CO.
471
Jao. B. Butcbeson and A. 8. Buaaey, both
of ABbbnrn, for plaintiff In em». J. A. Omu-
U A^nm, tax deftndant in mot.
HILI4 OL J. Jodsment nvMMd.
(U ChL Aptk 77S)
LONG T. MENDELl (No. 4,75».)
(Court of Appeals of Georgia. June 10,
1913.)
(Svllabut »y th* Court.)
RrvTEw ON Appbai.
The grounda of tbe motion for a new
trial, so fax ae approved hj the trial Jadge,
are wboUy without merit, the evidence de-
manded tbe verdict for the plaintiff, and the
court did not err in so directing. Judgmeot
is affirmed, with 10 per cent, damages tor
soiiiK oat and prosecuting tha writ of error
for delay only.
Error from CUj Oonrt of Umroe; A. OL
Stone, Judge.
Action by H. Meod^ againet J. Long.
Judgment for plalntUF, and defendant brings
error. Affirmed.
3. H. Felfcer, of Hcmroe. for plalntilC tn er-
ror. Walker ft Roberta^ of Monroe^ tm de-
fendant In enoT.
HiLu a J.
damages.
Jndgmmt affirmed, witb
(U Oa. Am. no
KELLT T. BUniEB, STBTIIN8 * 00.
(No. 4.782.)
(Court of Appeals of Georgia. Jons iO,
1913.)
(SpUalnu hp the Courts
FaCTOBS (I 44*)— RjGHT TO COKIflSSIONB.
The evideuce demanded the verdict in the
plaintiffs* favor, and the court did not err in
overruling tbe motion for a new triaL
[Ed. Note.— For other cases, see Factors.
Cent Dig. IS 68, 69; Dec Dig. | 44.*]
Error from City Court of Eastman; J. A.
Neese, Judge.
Action by Butler, Stevens ft Co. against
W. H. Kelly. Judgment for plaintiff, and
defendant brings error. Affirmed.
Boberts ft Smith and W. H. Clements, all
of Eastman, for plaintiff In error. TraTls
ft Travis, of Savannah, and O. W. Atwlll, of
Eastman, for defendant in error.
POTTLE, J. The petition in the present
case contained three counts, bnt, an the jory
found for the plalntUb on tbe second count,
only tbis coont Is material In the considera-
tion of the case. The case made 1^ tba
petition Is substantially as follows:
[1,2] The plaintiffs were cotton factors
and engaged in tbe business of selling cotton
on commission In the dty of Savannah. Tbe
defendant was engaged In the business of
selling cotton, and resided In Dodge county.
•Por othsr esses ass same topic and ssotlon NUMBBB la Dso. Dig. * Am. Dig. Ksr-l!ffgl|i^^Nbf ^
On Angttst 2S. 1900. the defendant nqnested
the plalntlflh to mU fi>r him 60 balM of cot-
ton tor October ddtvery at 12% cents pw
pound. Acting upon this request, the plaln-
tifflls 8(dd to McFadden A Bra for the de-
fendant on August 25, 1909, 00 bales of cot-
ton for 12^ cttits per pound, to be deUrerad
OB or before Oetober 26» 1900, snbject to the
rules of the Savannah Cotton Exchange,
basis, good middling. In order to make the
rale, It was necessary for tbe plaintiff to
guarantee the delivery of the cotton In ac-
cordance with the terms of the contract;
and this tbey did. Immediately after mak-
ing the sale, tbe plaintiffs notified the de-
fendant of Uie sale and the terms thereof
and requested shipment of tbe cotton. The
defendant refused to comply with the con-
tract, and on October 26, 1900, the plain-
tiffs delivered to McFadden ft Bra SO bales
of cotton, the market price of which on the
day of delivery was 14 cents per pound. The
defendant thereupon became Indebted to the
plaintiff in the sum of $441.74, b^g the
difference between the contract price and the
mariiet value of the cotton ; and also In the
sum of $50 additional, as commisslonB for
making the sale. The defoidant answered,
denying that he was Indebted to the plain-
tiffs In any sum, and denying that be au-
thorized the execution of the contract with
McFadden ft Bro. From the evidence It ap-
pears that on Angnst 2S, 1909, the defendant
wired the plalntltEa as follows: "Sell me
fifty bales twelve quarter October delivery."
On the same day plalntUfs wired the defend-
ant: "Sold your fifty bales twelve quarter
basis good mid. October delivery here." On
the same day the plalntMs addressed a let-
ter to McFadden ft Bro. stating that BO bales
of cotton had been that day sold to McFad-
den ft Bro. under imtmctions from the de-
fendant at 12% cento per .pound, to be de-
livered on Octobw 28, 190a The letter fur-
ther stated that Oie contract for the sale
was Inclosed for signature of the buyers, and
that the plalptiffs guaranteed delivoy <^ the
cotton. On the same day the platotffb ad-
dressed a letter to the defendant stating
that the cotton had been sold to Mt^dden
ft Bro., and ttie terms upon which the sala
was made. In this letter was Inclosed a
written contract for sale, to be signed by the
defendant; this contract reciting, among
other things, Uiat "this sale is made subject
to the rulea of tiie Savannah Ootton Dc-
change," with certain modifications which
were noted. The defendant made no reply
to this letter, and failed to sign and return
tbe contract Several communl cations were
addressed by tbe plalntiflb to Qie defendant,
calling his attentton to Ills failure to sign and
return the twutract, and so respoiibe was re-
ceived from the defendant On October 29th,
tbe day before the delivery was to be made,
the ptolntlffa wired the defendant that they
472
78 S0DTHBA8TEBN RSPOBTBB
wooM bnj 60 tMtlea of cotton to ffll hla ooa*
tract; and to tlils Megiam the defendant
replied aa ftoUowe: Tierloin vltaa If yon
bay cotton its iq» to Ton will not antliorlae
same." On October 26tli ttae plaintiffs wired
the defendant that they had boni^t the cot*
ton to flU hla contract, and Indoaed him a
statement of the account ihowtnt the amount
doe the plalntUb on accoont of the trans-
action. The defendant did not deny eending
the telegrams In reference to the transaction
nor comnmnlcatlona sent to blm from time
to time by the plalntlfla. He contended that
he was Justified In refusing to sign the con-
tract of sale by reason of the fact that it
contained a stWlatlon that the sale was
to be made subject to the rules of the Savan-
nah Cotton iffrnhafigo He further contended
that the sale made as evidenced by the tele-
gram was executory, and that the conduct of
the plaintiffs, in sending him the written
contract to sign* was a recognition of this
fact; and, further, that If the original con-
tract was not executory there had been a
novation, by reason of the fact that plain-
tiffs did not rely upon the ttiegram, but in-
sisted upon the execution of the subsequent
contract No such Issue as this was raised
in the defendant's answer, but In his testi-
mony he assigned this as a reason for failing
to execute the contract sent to him by the
plaintiffs. There Is a soggeatlon In the bMef
of counsel for plaintiffs in error that the
contract was a speculation In futures, but
there is nothing in the evidence to Justify
dils argument. The evidence demanded a
finding that (be contract was for the sale and
delivery of actual cotton, and that the plain-
tiffs did deliver to McFaddoi & Bro. 60 bales
of cotton In accordance with' the contract
It Is Insisted, in the motion for a new trial,
that the defendant should have bera allomd
to prove that the plaintiffs considered the
contract executory, and did not rely upon
the telegrams as evidencing a complete con-
tract But the law fixes the status of the
contract It was not executory. The de-
fendant directed the plalntilh as his factors
and agents to sell for him DO bales of cotton
for October ddlvery at a certain prices The
plaintiffB accepted this commission and Im-
mediately made the sale, obligating them-
selves to make delivery for and in behalf of
the defendant in accordance with the con-
tract So llBr as Uie defendant and the plain-
tub are concerned, the contract was com-
pletely oeeated, and nothing remained to be
done but to dellm the cotton In accordance
therewith. The defendant became bound to
make this delivery, and Uie plaintUte, onder
Cheir eoBtraet with McFaddm * Bro^ be-
came obligated to see that delivery was made
the d^Bndant Ttae Callura of the defend-
ant to execute the eiriiaeqiKiit contract la
wholly ImmaterlaL The anlt was not brought
for damages for Us ftdlure to execute this
contract, but the action was ^redlbatod vpon
his failure to deliver tbe cotton In aOeord-
ance with his original agreement and the lose
whidi the plalntUCi had sustained by reason
of belns ccanpoUod to pnrdiase cotton In the
maricet and deliva It to McFadden A Bro.
in accordance wlOi the contract The plain-
tiffs were oitltled to their commission of |50
for making the sale, tids amount being shown
by the evidence and being the usual and
customary commission charged by cotton
factors in Savannah. The rules and by-laws
of the Savannah Cotton Bxdiange were im-
material, and their tutroduction In evidence
was not hurtful to the defendant
[3] The ground of the motion for a new
trial in which complaint is made that coun-
sel for the plalnUCfs were permitted to In-
terrogate the defendant In reference to cer-
tain matters to which he liad testified to on a
former trial, because counsel did not read to
the defendant the testimony which he was
alleged to have given on a former trial, is
too Indefinite to be considered. But aside
from this, it is immaterial, as the result
would have been the same bad the defendant
not been thus interrogated. There was no
error in overruling the motion for a new
triat
Judgment afflrmed.
(UOa. App. tU)
SMITH V. CITY or ATLANTA. (Ne^ 4^)
(Court e( Appeals of Geoigla. June 10^ U18.)
fByBchtu &v the Court.)
1. iNTOXICATIIfQ LiquOBs ({ 236*)^-GBnnNA£
Pbosbcutior — SuFFiciENCT or EvinancB.
The evidence was not legally sufficient to
establisb guilt snd the finding of the recorder
was therefore cooti^ry to law, and on certioraii
should have been reversed by the superior court
[Ed. Note.— For other cases, see Intogdcating
^nors. Cent Dig. IS 800-^22: Dec. DigTl
(AdHtiotl BvIMm BdttorM Btaf.)
2. Cbivinai, Law (i 552*)— Cibcuicstantia]L
Evidence— Probative Effect.
When circumstantial evidence akme Is re-
lied on to convict of violating tlw problbltory
law, the circumstances must be sufficient to ex-
clude every other reasonable Iqvothesls than
that of defendant's guilt
[HA. Note.— For oOux cases, see Criminal
Law, Cent Dig. H 1257, 1259-1263; Dee. Dig.
S 552.*]
Error flrom Superior Court, Fnltoa Coun-
ty; Oeo. Ll Bell, Judge.
Mamie Smith was convicted of violating a
section of the City Ciode of Atlanta, and
from an affirmance on certiorari she brings
error. Beversed.
John S. MeCSelland, of Atlanta, for plalS'
tiff la enor. J. U. Uayson and W. Dl BUla,
Jr., boOi of AUanta, tm defendant In mve,
HILL, 0. J. Mamie Smith, a colored wo-
man, was tried by the recorder of the city
•Air oUur sas« ass same tsfie ana ssetisa NUKUE ta Dse. ug. * Am. IHa, xngj^^ff^^i^ft/fiif^^
▲DAMS 8TATB
of Atlanta for a vlobttloB of section 1489 of
tbe Clt7 Code of Atlanta (1910), which pro-
hibits the keeping on band of Intoxicating
liquors for the purpose of Illegal sale. On
certiorari the finding of the recorder was
affirmed by the saperlor court, and this writ
of ^ror challmges tbe comctaesB of the
Judgment of afflrmanca
(1] No q>ecial error of law Is complained
of ; the contention being solely that tbe find-
ing of tbe recorder was without any evidence
to support It The evidence is as follows : A
police officer went to tbe house of the ac-
cused and found 10 half pints of whisky
concealed In a chimney, In a place where
several bricks had be«i taken out Tbe a&
cnaed, being questioned at the time, first said
that there was no wblsky in ber house, and
when tbe whisky was found she claimed
that it belonged to ber, bat she subsequently
stated that it belonged to a railroad man.
In addition to the whisky a small quantity
of beer was .found.
Tbe recorder admitted in evidence, over
objection of tbe accused, the following testi-
mony of a policeman : "I stay in the station
sei^eant's oflSce, and a woman called me np
and told me her name was Millie Ann Mnt^
phy, and said that she had bought a half
pint of wblsky from Mamie Smith, and if we
would go there we wonld find it In the rl^t-
hand room in tbe closet ; and we w«at there
and found it exactly where she said we
would find it" The woman. Millie Ann
Hurphy, was Introduced as a witness by tbe
state, and she denied that she bad made this
statement to the officer, or had bought any
whisky from tbe accused. Tbe testimony of
tbe policeman may have bera admissible for
tbe purpose of impeaching Millie Ann Mur-
jftoj after iwoper foundation, but it certainly
could have bad no probative value whatever
in provliv the substantive fact charged
against the accused. Indeed, counsel for the
<dty in the briefs submitted to this court do
not even rely upon it tor any purpose. They
rely upon the finding of tbe whisky in tbe
house of the accused and upon the contradic-
tory statements made by ber about It, and
contend that the three conflicting statements
—that there was no wblsky in tbe bouse,
that it was hers, and tliat it belonged to a
railroad man— raised a preemption against
her that it was being kept for an ill^al pui^
pose. While these drcumstances were nn-
qtieetionably sosplcions, it cannot reasonably
be contended that tb^ were sufildent to ex-
clude every other reasonable bypotharis than
that of guUt
[2] In every court of tbia state, Indudlng
tbe reconler's conrt of a municipality, parties
on trial are entitled to the presumption of in-
nocence, and should not be convicted upon
merely sa^ldous drcumstances. When dr^
cnmstantial evidence alone Is relied on to ctm-
yrtet, the ctrcamstances ahonld be sufficient to
CKchide erery other reasonable hypothedc
than that of the gollt of the accusefl; »od this
is true even though the charge be tbat of vio-
laUng tbe pndilbltion law. The rule of evl-
dmae is elementary and protects all persons
in any court on trial for any offense either
against tbe laws of tbe state or against tbe
ordinances of a municipality. We are there-
fore constrained to differ from tbe conclusion
which the recorder came to in bis finding,
and to bold that the certiorari should have
been sustained by the Judge of the superior
court Walker v. City of Dawson, 7 <^
App. 417, 66 S. B. 964; Cain v. Mayor et aL
of Cordele, 8 Oa. App. 48S, 60 a a. S78.
Jodgmeat xvretMd.
(13 Ob. Apf. sm
HAWTHOBNB STATB. (K& 4,8001)
(Court of Appe^ ot Oeoxgia. Jane 11^
1913.)
SnnroiKNCT of Evidence.
No error of law Is complainsd of and tbe
evidence although circumstantial. Is suSdent
to support tbe verdict
Error from Superior Court, Columbia
County; H. C Hammond, Judge.
Tom Hawthorne was convicted of crUne^
and he brings «rror. Affirmed.
J. B. Bnmslde and A. K. Forney, both of
Thomson, for plaintlg in error. A. U Franks
lin, Sol. Gen.,^ vt Augusta, and John U. Qm.-
ham, (tf Atlanta, fat the State
HILL^ a J. Judgment sfflrmsA.
(U 0«. App. 8B8)
ADAMS V. STATE. (No. 4,8SSu)
(Court of Appeals of Georgia. June 10,
1913.)
(ByUabmt hv *h« OosrtJ
IiABcBNT (II 18, 68*)— What Cowbtitdtxs
— iNTim— QlTBBTIOll FOB JUBY.
Tbert Is one view of the evidence for the
state which stronriy supports the eondudon
that the accused, a full^ of any offense what-
ever, intended only to use the prosecutor's
mule without the knowledge or cooseot of tbe
prosecutor; and If tbe jury bad taken this
view the defendsnt riioold have been acquitted.
However, where larcwy is diarged snd a
taking is shown the jury must aeceasarUy be
the exclusive judges of tbe intention which
actuated the accused In the asportation. "It
is not necessary, to constitute larceny, that
the property should be Itself permanently ap-
propriated. It is suffident if the property
be taken and carried away with the mtent to
appropriate any pecuniae right or interest
therein." Slaughter v. State. 113 Ga. 287,
38 S. B. 866. 84 An. St Bep. 242, and dtatkuML
Thoorb the drcumstauces evidencing the ani-
mus rurandi are weak, this court cannot hold
them to be legally Insnfflclctat to have au*
thoriied the jury, in ezerdslng Its right to
pass upon the. credibUl^ of the several wit-
nesses, to conclude that the defendant's in-
tention, at tbe time he carried the mule ai
^ststbwsastsswM
474
78 SOimSBASTEIBN BBPOBTBB
7. BuMLABT a 20*)— ImnoncniT-PucB or
Bunims.
An IndictmeDt for breaking and e&teiioK &
place of buainess need not expressly denooiiiiate
the building a> a "place of business," if descrip-
ttve words ara vbm anflbdent to dwnr that it
ia mdi.
[Ed. Mote^For other caM^ sea Buqtfuy,
Gent. Die SI Dec Difr f 2a*]
8L Gbiuinax, I<a.w (S 1134*)— Affkaz/— Bubov
rOB DECISIOIf.
The reason given hj the trial Jndge for
wlthdrawins a count in an Indictment from the
con^deration of the jury is immaterial, where
the right resnlt in reached.
[Sd. Note.— For other cases, see Criminal
Law, Gent Dig. H 2087, 2668^^S&>299e, 8000,
Brror from Snperior Onirtt Wortb Comi-
ty; Frank Park, Jadga
Alf Jones and John Jeffords were conrtcted
of burslary, and tbey bring error. AfflrmeiL
Perry, Foy ft Monk, of Sylreater, for plain-
ttttB in error. B. C. Bell, Scfl. Guk, of Calxob
for tlie StatSb
waa to BteaL Mo «nor of law bdng complain-
ed of. It iraa not error to refose a new triaL
[Bd. Note.— For other cases, see Larceny,
Cent Dig. II 81. 180, 181; Dee. Dig. |g 18,
6a*
For other definitions, see Words and Fbras-
es, ToL B, pp. 3991-4003.1
Error from Snperior Court, Crlgp Coonty ;
W. F. George, Judge.
Tom Adams was convicted of larceny, and
he brings error. Affirmed.
Cnun & Jones, of Gordele, fl>r ^Intlfl In
error. J. B. Wall, SoL Gen., of Fltsgerald,
and J. W. Dennard, of Oordelfl^ for the State.
BUSSBUi, J. Judgment afllrmed.
OS Ga. App. 8U)
JONBS T. STATU
JBFFORDS T. SAUa.
(Nos. 4,897, 4,809.)
(Goort U Appeals of Georgia.. June 10, 1913.)
(SyllaJnu hy tkt Court.)
t. BuBOLABT (S 4*)— Natubb OF Buii.Dzira—
Wabehousb.
Breaking and eDtering a cotton seed ware-
hoaee, where valuable goods are stored, with in-
tent to commit a felony or larceny, is not bur-
glary, onlees it is shown that at the time it was
entered the warehouse was being nsad as a
place of business.
[Ed. Note.— For other cases, see Bnii^btfy,
Gent. Dig. §i 14^18; Dec Dig. | 4.*]
2. No Ebbob Shown.
The court properly withdrew from the con-
sideration of the jury that count in the Indict-
ment which charged burglary. The evidence de-
manded a conviction of larceny from the house ;
and, if there were auy errors in tlie charge of
the court, they were tanmateriaL
^Additional fiirlls&M by Editorial Staff.)
8. BUBGLABT (S 3*)— ESSIIfTIAL ELEMEHT.
Neither larceny nor the Intent to steal Is
an essential donent in the ciime of bniglary. ,
[Ed. Note.— For other eases, see Burglary,
Cent. Dig. H 24^21; Dee. Dig. | 8.*]
4. BUBQLABT (H 18. 28*)— iNDICmNT— VABX-
ANCE.
A larceny need not be charged in an indict-
ment for burglary, but If chanted tt must be
proved.
TEd. Note.— For ottier cases, see. Burglary,
Cent Dig. H 81, 82. 86. tt7-7tf : Dec Dig. B 18.
28.*]
6. BuBOLABT <| 28*) ~- InDionoeiTC — Sum-
CIENCT.
In an indictment for burglary it Is nffi-
cient to charge that a dwelling, mansion, or
storehouse was broken and entered, without al-
leging that valuable goods were contained there-
in; but if a place of business is broken and
entered, and that place is not also a dwelling,
mansion, or storehouse, tt must be alleged that
articles of value were stored therein.
[Ed. Note.— For other cases, see Burglaiy.
Gent Dig. SI 63-66; Dec Dig, | 23.*]
6. BuBOUBT (i 4*)— Place of BuaiNEsa
The breakhig and entering of a place of
buriness may constitute burglary, though the
place is not in the nature of a storehouse.
[Ed. Note.— For other caaes, sec Burglary,
Cent Dig. H 14-18; Dec. Dig. | 4.*
For other definitions, see Words and Phrases,
vol. 1, pp. 008-911 ; voL 8, p. 7003.]
•For otbsr easss as* ssqw tepie and sesthm KVMBKl la X»ee. Dig. * Am. DIgi Kl^^i^
POTTLE, J. The indictment was in two
count*. The first count charged burglary In
breaking and entertng the cotton seed ware-
house of a named person, need for storing
cotton seed and seed cotton, with Intent to
steal goods therein contained; tbe second
count charged larceny from the house in that
the accused took and carried away from the
warehouse certain goods therein contained,
with intent to steal the same. Tbe eridenoe
demanded a finding that tbe warehouse de-
scribed In the indictment was broken and
entered by the accused and three other per-
sona, and valuable goods stolen therefrom.
Tlie trial judge instructed the Jury to disre-
gard the first count in the indictment, dial-
ing burglary, and to consider only whether
the accused were guilty of a misdemeanor as
charged in the second count. The accused
were convicted of larceny from the house of
goods less than $50 in valne, and their mo-
tion for a new trial was overruled.
The accused were convicted upon the testi-
mony of persons jointly Indicted with them
and who aided and abetted them in the crim-
inal act It is insisted that the evidence de-
manded a finding that the accused, if guilty
of any offense, were guilty of bnrglary, and
that for this reason they could not, under the
evidence, be convicted of larc^y from the
houses If this premise is sound, the conclu-
sion stated la correct Tarver v. Slate, 95
Oa. 222, 21 S. E. 3S1. Unless the evidence
authorized a conviction of larceny from tbe
house, the accused could not be convicted of
any offense, since there was no proof of their
guilt, except the testimony of accomplices.
[S] Neither larceny nor the intent to steal
\fi an essential element In the crime of bur-
glary. The crime of burglary Is complete
wbenevor a hooae which ia the subject-mat-
ter of bnri^y la broken an^^tered vith
dTT OP BOMB ▼. HARRIS
476
Intent to commit a telony or a larceny. Pe-
nal Code. { 146; Betbnne t. State, 48 Oa. 605.
[4] A larceny need not be charged, bnt If
cbarged, mnst be proved. Walker t. State,
5 Ga. App>. 430, 68 S. B. 084.
t1] It the house alleged to have been brok-
en and entered Is not a "dwelUng, mansion,
or storehoTiae," it mnst be alleged and proved
to have been a place of business where val-
uable goods were contained or stored.
[1] It Is sufficient to charge that a dwell-
ing, mansion, or storehouse was broken and
entered, without ailing that valuable goods
were therOLn contained; but If a place of
business Is broken and entered, and that
iriace ci business la not also a dwelling, man-
sion, or storehouse, then It must be alleged
and proved that articles of value were stored
or contained In the place of budness. See
Lee V. State, SO Oa. 478 ; Lanier t. State, 76
Ga. 304.
[I] The itoce of bnalnesB need not be a
place of the nature ot a atorehouBe. Bethnne
T. State, nzpra.
[7] Nor IB It essential that the bouse brok-
en and entered should be expressly denomi-
nated in the indictment as a "place of busi-
ness," if descriptive words are used sufficient
to show that the house vas used as a place
of business of another. Keenan r. States 10
Oa. AjHk. 702, 74 a B. 297. It U essential,
however, that it should appear, &om the
indictment and the proof, that the place
broken and altered was being used as a place
d! bu^eas. The mere tBet that valnable
goods were contained or stored therein is
not alone suffldoit to make the house a place
of business, within the meaning of the sta^
nta McElreath v. State, 65 Ga. 5^. In
that case It was Wd that an indictment
which cbarged the breaking and entering of
a millhouse, with Intent tq steal, but which
did not, tither by description or snbetantial
averment, designate the house as a place ot
business, was fatally defective. Judge Jack*
son dissented upon the ground that, as It
was allied that com. tallow, and tobacco
were stored In the millhouse, tliis was suffl-
deit to authorize the Inference that the mill*
house was being used for the purpose ot
grinding com, and was therefore a place of
business. In Hutchlns v. State, 8 Ga. App.
800. 59 8. B. 848, U was held that a bam and
coinciU), in which com was stored, was not
the subject-matter of burglary, unless it was
within ttie curtilage of the dwelling house
or unless it was alleged and proved to have
been a place of buslnesa In Wright v. State,
12 Ga. App. — , 77 S. B. 657, It was held
that burglary could not be committed in a
nnoke house or meat house situated In a
field between 200 and SOO yards from the
mansion.
The indictment In the present case describ-
ed the liouse broken and enta>ed as "the cot-
ton seed warehouse ot O. J. Charopa«m, a
wardionse used for storing cotton seed and
seed cotton. In the town of Doles, said coun-
ty." It is alleged that valuable goods were
stored in this warehouse, bnt It is nowhere
averred that the warehouse was being used
as a place of busluess. Under the decisions
dted, a conviction for burglary under this
indictment would not have been authorised.
The first count was subject to be quashed on
motion, but the trial judge reached substan-
tlally the same result by instmctlng the jury
to Ignore it, and to consider only whether
the accused were guilty of larceny from the
house In stealing from the warehouse goods
worth less than $50.
[t] The reason given by the trial judge for
withdrawing the first count from the consid-
eration of the jury is immaterial; the right
result having been reached. The accused
made no statement at the trial, and the evi-
dence demanded their conviction of the of-
ttaxae of larceny from the house. We find
no substantial error in any of the chai^
complained of; but, evea If they were erro-
neous, they afforded the accused no cause for
complaint; since there was no theory of the
evidence which would have Justtfled th^ ac-
quittal.
Judgment afflnned.
OS Oil App. TBQ
CITY OF ROMS r. HARRIS. (No. 4.733.)
(Coort of Appeals of Oeor^ June 10, 1913.)
(BpUabua tr Oovrt.)
L MunOIPAL COBFOBATIONS {% 742*)— TOBIl
— NUXSAnOB— EVIDBNCB.
On the trial of an action against a munici-
pality for damages alleged to have resulted from
tile mainteoance by tbe dty of a iwnd of water
upoD the plaintiff's premifles, it Is not error to
admit testimony that the city was notified of the
existence ot the noisance and was requested to
alute it
[Ed. Note^For other cases, see Municipal
Corporations, Gent D^. H 1560, 1663; Dec.
Dig. i 742.*]
2. Appbax. and Brbob (| 801*)— Review— But-
nciENCT or Motion fob New Tbial.
An assignment of error upon tbe adnisai-
blHty of documentary evidence cannot be con-
sidered when the evidence Is not set fortii In
the motion, either literally or in snbstanee, nor
attached thereto as an ezbiUt
[Ed. Note.— For other cases, see Appeal and
Gnror.^Cent Dig. H 1748, lW-1766 ; Dee: Dig.
3. New Tbux (| 169*)— Sutticiknot or Evi-
dence TO Sdfpobt vbbdzot— Evidence Oon-
BIDEBED.
Although a motion for a nonsuit may have
been made and overruled at the cooclusion of
tbe plaintiff's evidence, after a verdict in favor
of toe plaintiff tbe question Is whether, upon
the evidence as a whole, the verdict was au-
thorized.
[Ed. Note.— For other cases, see New TriaL
Cent. Dig. | 819; Dec. Dig. { 150.*]
4. New Tbial (1 29*)— Tbial (S ISS*)— Abou-
UKNT or Counsel — Iicpbofeb Reicabes —
ADlCONmON BT COUBT.
A new trial In the present case is demanded
OB account of Improper remaiks of,,c9uns«l foi
476
tbe pltlntig la his oondodlof uimwnt to th«
[Ed. Not*.— For other cases, see New Trial.
Cent Dig. IS 43, 44; Dec. Dig. 8 2»;* Trial,
Cent Dig. | 316; Dec. Dig. { 183.*]
6. No Otheb Erbob.
Except as above indicated, tiie trial was
free from ezror and the verdict was not lepUIy
exeessiTe.
(A-dditional Byllnbiu &y Bditorial Staff,)
6. DAUAQES (I 2i0*)— INSTBUCTIONS.
In an action fw damages, it is the better
practice to diarge the jary that the amount ot
the verdict is left to "the enlightened oonseiene-
68 of impartial jurors" instead of "the sonnd
discretion of impartial Jurors."
[Ed. Note-— For other cases, see Damages,
GenL Dig. H fitt?, 638; Dec. Dig. 1 210.*]
Error from City Court of Floyd County;
J. H. Reece, Judg&
Action by Mrs. J. H. Harris against tlie
City of Rome. From a Judgment for pleln-
tifl^ defendant brings error. Reversed, and
new trial granted.
Max Meyerhardt, of Rome, for plaintiff in
eiTw. Stubanks ft iMmaa, of Bom^ for de-
ftaidant in error.
POTTLE, J. Mrs. Harris recovered a ver-
dict against the dty ot Rome for damages
for an illness caused by a pond of stagnant
water which had been allowed by the city
to accumulate upon the property ot the
plalntUTs husband, on which she resided. A
Judgment sustaining a general demurrer to
the petition was reversed by this conrt
Harris v. City of Borne, 10 Ga. App. 400, 7S
S. 632. At the trial there was little or
no conflict In the evidence In reference to
the negligence of the defendant In permitting
the pond of water to accumulate and remain
on the premdseB where tlie plaintiff resided ;
this negligence consisting in raising the
grade of the sidewalk in front of the prem-
ises without making suitable provision for
carrying off the water which, by reason of
this increased grade, would accumulate on
tlie premises In time of heavy rainfall. The
issue In the case was as to whether the
stagnant water caused the plalntlfTs Illness,
and on this question a flnifling either way
would have been Justified.
[1] 1. The court permitted the plalntifTs
husband to testify that he made complaint
to the city's superintendent of public works
and requested him to clean out a gutter ex-
tending Into a ditch, so that the water might
be thus conv^ed from the premises, and
that if the city would not do this to permit
the plaintiff's husband to do so, and that
the superintendent refused to permit the wit-
ness to clean out the gutter, saying it was
the business of the sui)eriotendent and not
that of the witness. There was no error In
admitting this testimony. It was admissible
to show express notice to the dty and negli-
gence in maintaining a nuisance after a re-
qtMst to abate It
•Voretbar
(Ok.
[S] 2. Complaint Is made that the court
permitted the Introduction In evidence of the
written demand for damages, served on the
ci^, but, as the demand is not set out in
the motion ' or attached thereto as an ex*
taiblt, the question of its admissibility can-
not be determined.
[I] In passing, however, we may say tlutt
the dffluand, which is set forth In the evi-
dence, seems to be sofflclently full and defl-
nlta It need not contain all the elements
of a complete cause of action, such as is re-
quired to be set out in a petition filed in
court City of SandersvlUe v. Stanley, 10
Ga. App. 360, 76 S. B. 635, and dtatioos.
[3] 3. The plaintiff produced evidence to
support her case as laid in the petition, and
It was not error to refuse a nonsuit Be-
sides, after verdict the question Is whether,
upon the whole evidence, the plaintiff la en-
titled to recover. See Insurance C& t. Qay-
nor, 77 S. E. 1072.
[4] 4. Complaint Is made of several re-
marks made in the argument to the Jury by
Mr. Mebane, one of the counsel for the plain-
tiff. The counsel stated that "Mr. Kinne-
brew, a Juror, had a similar case to this and
gained it" The assignment of error upon
this remark is that it Is without evidence to
support it, was In fact untrue, and tended
to mislead the Jury. The same counsel also
said, "The Conrt of Appeals said tills plain-
tiff could recover in this case." And also,
"Suits are being brought against railroads
ail over Oeorgla for producing foul ponds of
water producing sickness, etc., and the books
are full of such cases." And also, "If it had
not lieen for this big fat Worrill, they would
have fixed this ddewalk and drained this,
pond." And further, *Tbia man Worrill Is
the most contemptible scoundrel I ever knew.
I do not blame blm for being 600 miles away
from here; he ought to be 6.000 miles from
hera A man who liae no more regard for a
person's health ought to have been run away
before he was." At the conclusion of each
of these several statements, the defendant
moved for a mistrial. The court certifies
that, in reference to the first two remarks,
Mr. Mebane was directed to confine himself
to the facts and to proceed with the argu-
ment In reference to tlie third remark, the
court said, "I will tell the Jury to pay no
attention to that, at the proper time." When
the last statement of counsel was madey the
court admonished the Jury to pay no atten-
tion to the statement ot counsel and dia*
miss it from their minds; that they must de-
termine the case from the law and the evi-
dence. We are reluctant to set aside a ver-
dict and order a new trial on account of
remarks ot counsel, but in the argument of
counsel in this case the rule is so flagrantly
violated tliat we have no alternative^ It was
particularly unfair and prejudicial to the
defendant for counsel to state that another
plaintiff had recovered from the city Iq a
iaaiia«ata»laa»dssstiMi|DMBminDaa.iM»AAiehIMg.K%§liar«rtjU^gh^
78 80DTHBASTBRN BEPORTEB
Ga.)
MOBBIB T. fiTATB
477
stmllar case, and that thb Court of Appeals
bad already held that the present plalntifl
was entitled to recover. As a matt^ of
tact, the Court of Aiveals had made no such
mllng, having held simply that the plain-
tiff bad stated a case <»i paper, which la
quite a different tiling from supporting It by
proof. It was highly prejudicial and grossly
lmprcq;>er to go outside of the evldmce and
Inform the Jury that the city had already
been held liable In another cose for damages
resulting from the maintenance of this same
pond or of a similar pond.
There are many cases where the Snprone
Court has pointed cot that, before the de-
fendant will be permitted to assign error in
the rerlewing court upon lmproi)er and prej-
udicial conduct of counsel for the opposite
party, a motion for a mistrial should be
made, and In tbla way a ruling from the
trial court Invoked. The defendant pursued
this remedy In the present case. It la tme
that there are a number of cases where both
the Supreme Court and the Court of Ap-
peals have declined to direct a new trial
where It appeared that the court rebuked
counsel and gave the Jury proper admonition
In reference to the matter; but all these
were cases where. In the opinion of the
court, the action of the trial Judge was
such as to ronove the prejudicial effect of
eotmsers improper argument The conduct
of counsel In the present case was such aa
to demand severe and unmistakable condem-
nation on the part of the trial Judge, in or-
der to impress tbe Jury with the fact that
the argument was improper. We do not
think the prejudicial effect of counsel's lan-
guage was r^ov^ by the mild form of ad-
monition and criticism employed by the trial
Judge; Mr. Kinnebrew was on the panel of
Jurora summoned for the term^ and, when
counsel stated to the Jury tiiat the Juror had
recovered from the city In a almllar case.
It was not enough for the court simply to
direct counsel to confine himself to the evi-
dence and proceed with the argument Such
an admonition was rather calculated to im-
press the Jury with the Idea that the court
did not attach any serious importance to
counsel's Improper stafenient The same, ob-
servation applies to the admonltl<m of the
court In reference to the statement of coun-
sel that the Court of Appeals had already
decided that the plaintiff was entitled to
recover. The verdict was for f 1,600, and it
is apparent that Qie Jury settled in txror
of the plaintiff the Issue In reference to the
proximate cause of her illness. A contrary
finding would have been authorized, and it
cannot be said that the Jury was not influ-
enced to some extent by the Improper re-
marks of counsel. Courts and lawyers fre-
quaitly differ In reference to the application
ct tecbnical rules of law in given cases; bat
there is one thing upon which there ia ab-
mlute unanimity of opinion, both among the
members of the bench and the bar, and that
is that a Utlgant is entitled to a fair trial,
and when he has not had it no verdict
against him ought to be permitted to stand.
Upon the application of tliU fnndamental
principle of our Jurisprudence to the facts
of the present case, a new trial is demanded.
{I] 6. The instruction of the Jodge upon
the subject of the measure of damages was
not altogether accurate, but would not alone
be ground for a new ttlaL Instead of stat-
ing that the amount of the verdict should be
left to the sound discretion of Impartial Ju-
rors, it would be better to use the language
of the statute, to wit "the enlightened oon-
sclencra of impartial Jurors." Except that,
as above indicated, the trial was free from
error, and the verdict was not legally aicoB
slve.
Judgment reversed.
OS OtL. App. 8U>
ETON v. STATU. (Na 4j8dL)
(Court Appeals of Georgia. June IS, 1918.)
(BvUahug by the Court.)
1. Tno a 10*)— Bill of BxoEPnoir*— Fnuxe
— SUROAT.
When the last day for tendering the bill of
exceptioDS is Sunday, the following day is su-
petadded. OvU Oode. J 4 (8) ; Koigan t.
PwUds. M Oa. 86B, 21 s! E. STi
^[Bd. Nota^For ether eases, sse Ttrna^ Oent
Dig. H 84-02; Dec. DigTlia*]
Z CaiicniAL IJaw (|_ 11S9*)~A7PUL ahd
Bbbob — VsBOicr— (^naiTAL ImKn-r— Lab-
OBNT.
The evidence In this case was weak and
barely sufficient to support the verdict The
state proved that the property described in the
isdictment had been stolen and was foand in the
poBsession of the accnsed. His conduct and
statements made by him upon the discovery of
the property in his possession tended to negative
the existence of criminal Intent; but this was
solely a qaestioa for the Jory, and, their verdict
having been approved by the trial judge, this
court has oo authority to interfere.
[Ed. -Note.— For other cases, see Criminal
Law, Cent Dig. {| 80T4-S063; Dea Dig. |
Error from Superior Court, Tattnall Ooun-
ty; W. W. Sheppard, Judge.
John Ryon was convicted of larceny, and
he brings error. Affirmed.
H. B. Elders, of Reldsvllle, for plaintiff in
error. M. J. Nwman, SoL Gen., of Hlnea*
vill€^ for the State.
POTTLE^ J. Judgment afBrmed.
(13 Oa. Amf. tUO
UOBBI8 et aL v. STATB. (No. 4^892.)
(Goort ct Appeals of Georgia. June 10, 1918.)
(Sylldbiu by the CourtJ
HoMicini (I 257*) — SHoonHO — Suitioienot
or EVIOKNOK.
Tlie prosecutor, while sitting in his house
at night, was shot at through a crack in the
window and severely wounded by^e of ti
•m otbw ess« MS ssms toplo sad seeUen HUHBB&lhDee. Dig. * Am. Dig. Kv-HU'llS^^
78 SOUTHBASTEIBN RBPOBTEB (Ga.
men, both of whom fled Inuuediately after the
Bbootiog. The shooting was done with a shot-
gun, one shot being fired. It had been raining,
and trat^ of two meo were found near the
window, and these tracks were clearly and posi-
tively identified by several peculiarities as oar-
ing been made by the shoes of the defendants,
and they led from the house where the shooting
occurred directly to the homes of the accused.
In the house <me of the accused a double-
barreled gun was found, with one barrel, ap-
parently recently fired, empty. The accused
were seen together going towards the house of
the prosecutor about dan with guns, and short-
ly after the shooting two men were seen walk-
ing rapidly from the house where the shooting
took place, though not identiSed as the accused.
The accused were also seen near the house about
the time of the shooting. Held, in the absence
of complaint of any error of law, the verdict of
guilty, under this evidence, will not be dis-
turbed.
[Ed. Note.— For other cases, see Homicide,
Cent Dig. H &43-C&2 ; Dec Dig. S 257.*]
Error from Superior Court, Columbia
County; H. C. Hammond, Judge.
Tom Morris and another were convicted of
shootlUK a person, and tbey bring error. Af-
flmed.
J. B. Bnmside and A. E. Fomey, botb of
Thomson, for plaintiffs In error. A. L. Frank-
lin, 8oL Gen., of Augusta, and John M. Gza-
liam, of Atlanta* for the State.
HILL^ 0: J. Judgment affirmed.
<U Ga. App. SOD)
FLETCHER t. STATE'. (No. 4,891.)
(Court at Appeals ot Georgia. Jane 10, 191S.)
(Syllahua by tht Court.)
1. IifToxioATiNO LdQuoss (f 224*)— Psoascn-
izoN— BuBOEN or Psoor.
"On the trial of an accusation of selling
intoxicating liquors, where the defense relied
upon is that the accused bad no interest what-
ever in the sale, but acted therein simply as
agent for the purchaser, the burden is on the
accused to prove how, when, and from whom he
obtained the liquor; and until this Is done to
the satisfaction of the jury the burden is not
carried."
[Ed. Noto^For other cases, see Intoxicating
^oors. Cent Dig. H 275^^; Dea Dig. |
2. iNTDZIOATIIva LXQUOBS (| 238*)— PltOSVTU-
TioK— SurnciKHCT or Etidbnoil
Where such a defense is relied on, the jury
are authorized to convict, if the evidence war-
rants the inference that the defense is a mere
subterfuge, and that the accused was himself
the seller, or interested In the sale otherwise
than as agent for the purchaser.
[Ed. Note.— For other cas^ see Intozicating
^om, Cent Dig. || Dec. Dig. f
Error from Snperlor Goort, Cobb County;
H. Ia Patterson, Judge.
Will Fletcher was conTicted of Tlolatlng
the prohibition law, and he brings error. Af-
firmed.
Mozley ft Moss, of Marietta, for plaintiff
In error. Herbert Clay, Sol. Gen., of Mariet-
ta, for the State.
POTTLE, J. [1] The state offered testi-
mony that the accused was given money,
went away, and returned with whisky, which
he delivered to the state's witness. This
made a prima fttde case of guilt Cheat-
wood V. City of Buchanan, 9 Oa. App^ 828,
72 S. E. 281 ; McGovem v. State, 11 Ga. Appi
267, 74 S. E. UOL Where such a prima
fade case Is made out, the burdra la on
the accused to show "how, when, and from
whom be obtained the Uquor."
[2] If the state relies only upon the prima
fade case then made, and the evldrace for
the accused demands a finding that he was
acting solely as the buyer's agent, and was
not otherwise Interested In the sale, his con-
viction Is not authorised. Allen r. State, 11
Ga. App. 245, 75 S. E. 11. But If the evi-
dence or the prisoner's statement Justifies
the Inference that tlie defense Is a mere snb-
terfuge^ and the accused was the seller, m
Interested therein otherwise than as agent
tm the buyer, he can be convicted. Cheat-
wood V. Buchanan, supra; Whipple r. State,
10 Oa. App. 214, 73 & a. 27.
One Cames testified that he and the ac-
cused went to a place known aa "Hapiq'
Flat, down back of the old Glover foundry,
to a n^:ro house," and that the accused
bought the whisky from tUa negro. The ne-
gro's name is not given, nor is he odier*
wise Identified. The accused said in bis
statem^t that be and OameB went up the
railroad trai^ and met a negro, who said he
bad some whisky with him, and tibat ttw
purchase was made from the negro thai and
there.
It may be doubted whether Cames* testi-
mony, standing alone^ wonld have dramnded
an acquittal, for be failed either to tell the
negro's name or to give any reason for fUl-
Ing to do 80. But, when his evldoice is con-
sidered in the light ot the atatanait, the
Jury were well warranted in finding that the
defense was a mere sobterfnge. There ««£
too much discrepancy between the testimony
of the defaidanfe vitneas and hia own
statonent— enough to warrant the Jury In
disregarding both, and convicting the ac-
cused upon the prima fade case made by the
Btata
Judgment afllniied.
"""^ (11 Go. Appw «M)
WALKER et aL v. BOTSTEB GUANO CO.
(No. 4,809.)
(Court of Appeals of Georgia. Jone 10^ 1918.)
(Syttahut hjr the Court.}
Jttstices of the Peace (| 205*)— OomoBAXi
— Answm— GoNSTBUonoR.
There wss no error in ovemiling the ov
tiorail.
[Ed. Note^For other cases, see Justices of
the Peace, Cent I»g. || 783-799; Dea Dig. i
20B.*]
Error from Superior Court, Jefferson Coun-
ty; B. T. Rawlings, Judge.
•Vor otliw COMB MS sams toplo and seetloa NUUBER ia Dee. IMg. 4 Am. Dig. Ker-Ne. Series A
Digitized by Vj
Ga.)
OOPBLAND T.
HcCt^LLAND '
A79
ActiOQ by the Royster Gnano Oompany
against F. M. Walker and others. Judgment
for plaintiff. From a denial of certiorari,
defendants bring error. Affirmed.
R. N. Hardeman, of LoulsTllle, for plain-
tUts in ^ror. M. C Barwlck, of Aueustat
tor defendant In error.
BUSSELL, J. The case Is one of a snit
on a forthcoming bond. The only point In-
sisted upon in the brief of counsel for the
plaintiffs In error (the defendants) Is that
the record nowhere shows that the plaintiff
had obtained a judgment in the claim case
finding the property subject Of course, the
plaintiff would not be entitled to a judgment
upon the forthcoming bond unless he had,
precedent thereto, obtained a judgmoit find-
ing the property subject The fact that
counsel for plaintiffs in error a takes his case
upon this point, and challenges the record to
support his contention, is due merely to a
typographical error In the record, for it ap-
pears, from the answer of the magistrate,
that there was a judgment finding tlie prop-
erty subject, anterior to the judgment of
which complaint is here mada ' In the an-
swer it »pDea.Ts that "the transcript Intro-
duced should a verdict and judgment find-
ing the property subject the objection and
my OTemdlng It are true." It is very ai>-
parent, from the exhibits attached to the pe-
tition for certiorari, that this sentence should
read: "The transcript introduced showed a
verdict and judgment finding the property
subject The objection [alluding to the pe-
tltlon] and my overruling it are true." The
transcript from the Justice's docket In the
record does in fiurt show a verdict and Judg-
ment in full ; oonsevnently the Judge of the
superior court jdid not err In overruling the
certiorari for the reason nrged by plaintiffs
In error, nor Is tiie judgment erroneous for
any other reason disclosed by the record.
Judgment affirmed.
Oa Oa. Am. 786)
GOFELAND v. HcOtiEIJAND. (N& ITTS.)
(Court of Appeals of Georgia. June 10,
iSlS.)
(Syllahua Oourt)
1. Pleading (i 9*) — Gonclusiohs nOM
Facts Aixbqbd— Sufficiency.
The amendment to the defendant's answer
set forth a good defense to the action, and
was not ■abject to any of the demurrers filed
thereto.
[Bd. Note.— -For otiier cases, see Fleading,
Cent Dig. I 29; Dec. Dig. | ft.*]
2. PMADINO (§ 260*)— AUKHDllXlTTr-AnTDA-
TIT — SUTPTCIENCT.
An afCdavlt attached to an amoidment
to an answer, in wbicb the affiant avers that
he did not discover the new facts set forth
in the ameodment until after the original an-
swer was filed, and that if he had ^own of
such focts at that time he woald have bead-
ed them, is a substantial compUaoce with the
proTlalons of seetiou S640 of tbt CSvQ Code of
1910.
[Ed. Note^For otber cases, see Pleading,
Cent Dig. | 703; Dea Dig: | 26a«]
3. Bnxa and Notxs (| 498*>— Bubdsn ov
PBOOF— DeFKN BE8.
In a auit upon a promissory note pur-
porting to have been signed by the defendant,
who was a married woman, the burden is
npon her to establish the truth of special pleas
that the note was given in settlement of a
debt of her husband, and that the considera-
tion of the note bad wh(^ failed. Where tiie
evidence is conflicting upon the Issues thus
raised, it is prejudicial error to charge tiiat,
if the evidence in the case is equall; balanced,
the jury should find for the defendant
[Ed. Note.— For other cases, see Btlls and
Notes, Gent Dig. fS 10S2~1662; Dec Dig. |
40S.»]
Error from City Court of Cairo; J. B.
Slngletary, Jndge.
Action by T. S. Copeland against Cora Mc-
Clelland. Judgment for defendant, and plain-
tiff brings error. Beversed.
R. a Bell and J. S. Weathers, both of
Cairo, tor plaintiff In error. J. Q. Smith,
of Cairo, tor defoidant In error.
POTTLB, 3, Salt was brought against
the defendant who was a married woman,
upon a promissory note for $240 principal,
with a credit thereon of (66. The note pur-
ported to have been signed by the defend-
ant with her mark. The defendant pleaded
uon est factum; that she was not indebted
to the plaintiff In any earn; and that she
borrowed from him |00 and gave him her
note for that amount, which she had paid In
full, both principal and Interest By amend-
ment the defendant alleged that prior to
the execution of the note her husband agreed
to trade horses with the plaintiff and give
him 1160 boot, which agreement was un-
known to her,, and that two or three weeks
after the agreement was entered into and
when she went to give the plaintiff her note
for the $60 which she had borrowed from
him the plaintiff Included in the note, with-
out her knowledge or consrait, the $150 due
by her husband; that she is an ignorant
woman and can neither read nor write. She
further pleaded that the consideration of
the note had failed because the horse re-
ceived by her husband was totally worthless,
that the plaintiff took It back and let her
husband have another, which was as worth-
less as the first one, and that the plaintiff
finally took the second one back without
returning the one the plaintiff had rec^ved
from her husband, or allowing him anything
therefor. . Tbe defendant has never owed
the plaintiff but $50, which she borrowed
from him and which she has paid. Annexed
to this amendment was an affidavit verifying
the truth of the allegations in the amend-
ment and reciting that the defendant did
not know of tbe defense at the time the
orli^nal answer was filed; that she knew
•Tor otbsr esses sssw tople asA aeetloa HUlCBBR la Dm. Dig. * Am. Dig. K«y-SibeesayDifr^t«bMiU4iUC
480
T8 SODTHSASTBRN BSPOBTBB
(OS.
tbat ihe had borrowed $60 from the plaintiff
and bad given ber note for tbat amount and
paid it, bat did not know bow tbe note came
to be tor $240. nntil sbe recently fotmd out
tbat tbe plaintiff bad Included in tbe note
tbe amount ber husband agreed to pay bim
as boot in tbe horse trade. Deponent fur-
ther says that, If she had known of these
bets at the time of filing liw original an^
swer, she would have pleaded them. Tbe
plalntur demurred to the amendment on the
ground that It set forth no defense; that it
was not alleged that the plaintiff knew tbat
the debt was a debt of the defendant's bus*
band, and It was not denied that the nota
was read over to lier. Tbe amendment was
further donurred to on the ground that no
affidavit was attached thereto to the effect
that in tbe original plea the new facts set
out In tbe amendment were not omitted for
the purpose of delay, and that the amend-
ment was not oAered for delay.
The demurrer was overruled and the
plaintiff excepted. The plaintiff introduced
in evidence the note sued on, together with
a mortgage given to secure It This mort-
gage was signed by both the i^slnaJ and
lier husband; It b^g recited ther^ tbat
the husband tfgned tlie mortgage for tiw
purpose of rtflnqulshing .wbatercr Intwest
he had in the land described in tbe mort-
gage. Tb» dtfendant testlfled tbat she had
never boui^t a mule from the plalntlfl and
bad never owed him but VSO, *nd bad paid
bim tbat debt; Oat she did not know any-
ttilng about any other transaction, and never
bad any transactltm wltb tbe plaintiff ezcq^
tlie borrowing of the $50; that she did not
know anything about tbe 9240 note until aft-
et the suit was Iwought, wb^ sbe learned
tbat ber husband bad swapped mules wltb
the plaintiff and agreed to pay bim $160 boot
which was Included in the note; that the
note and mortgage were not read over to
her before sbe signed tbem; tbat some time
after tbe note and Qie mortgage were ex-
ecuted the plaintiff and one Johnson came
to her home and left with ber husband tbe
mule described in tbe mortgage; that the
mule bad some kind of disease, end ber hus-
band exchanged It with the plaintiff for an-
otbor mule wbicb was no better able to work
than the first one, and the plaintiff finally
took back tbe last mule without returning
tlie one be bad received from her husband
or allowing him anything therefor; tbat
Johnson came after the last mule, acting as
plaintiff's agent in the matter ; tbat sbe can
neither read nor write. Tbe defendant's
husband testified snbstantially to the same
facts in reference to tbe mule trade, and that
Jobnson came and got the last mule which
tbe plaintiff had turned over to him <the de-
fendant's husband), and tbe latter never got
a mule or anything else in exchange. Tbe
plaintiff testified tbat both the defendant
and her husband came to bim before tbe note
sued oa was given, and tbe defendant stat-
ed to him tbat die wanted to borrow $00 and
trade the old mule tor another mule which
be bad and which her huabaiod bad seen
and selected; tbat she stated that the old
mule was h^ and Iw dealt with lier, and
never knew ber husband in tbe transaction,
except that he was with her when 'tlie papws
were signed and selected the mule wbldi
WSJ wanted; that there was nothing tlie
matter with the mule which be let bar have;
and that Jobnson was not bis agent to sdl
or trade any mules £or him. Johnson tea-
tifled that he was not working for the plain-
tiff at the time tbe transaction with the de-
fendant took place, and tlut ha was never
the plaintUTs agent to sell or trade any
horses or mules ; that the mule Qiat the de-
fendant got from the plaintiff was a good
mule; that he (Jobnson) afterwards traded
with tbe defendant for this mule; tbat be
and the plaintiff and the defmdan^s hua-
band went to an attorney's office to find out
if it would be an right to trade for the
mule .wblle tlie plaintiff bad a mortgage on
it; ttiat be (JohnsoiO then traded an old
wldte mule for tbe one Uiat tbe pUiIntlfl
let the defendant have; that afterwards the
defendant's husband got dlssatlsOed and
told him (Jobnson) that lie could have the
white mule, and he (Johnson) thereupon
vrent and got the mul^ but did not r^iresent
the plaintiff in the transaction. Tbe defend-
ant. In rebuttal, testified that she bad never
traded mules with the plaintiff, liad never
represented to the plaintiff that the first
mule traded to bim was bers, and tltat she
bad never at an/ time had a conversation
with the plaintiff in regard to any mule or
mule transaction. The jury found for tbe
defendant and tb6 plaintiff's mottcm for a
new trial was overruled.
[1] 1. The amiandment to tbe defendant's
answer set forth a good defoise to the action.
It was, in substance, tbat the defendant was
not indebted to the plaintiff, that. If any debt
was owed, it was by ber husband, and that
her husband was not Indebted, for tbe reason
tbat th^ had been a total failure of con-
sideration. Tbe plaintiff contended that tbe
plea was bad because it failed to allege that
the plaintiff knew that It was the debt of ber
husband, and not tbat of the wife. Temples
V. Equitable Mortgage Co., 100 Ga. 003, 28
8. H. 2S2, 62 Am. St Rep. 326. It sufficiently
appears, however, from the plea tbat tbe
plaintiff knew tbat tbe debt was the bus-
band's, and without the knowledge or consent
of tbe wife included it In tbe note wbidi sbe
signed. The principle announced in the Tem-
ples Case, supra, is only applicable when the
wife misleads her creditor into a transaction
cone«rning her separate estate, and he deals
with her In good faith, without knowledge
that she Is attemptlDg to pay her husband's
debts. No such transaction as this Is dis-
closed by tbe answer in tbe present case,
and the prindpla ot that detdi^^ is not ap-
D gitized by GoOglc
BAlIi T. a J. BOEHB A 00.
<81
[2] 2. "Where the defendant in present at
the trial, the court cannot permit a plea' set*
tbis up new facts to be filed wiOiont requlr*
ing an affidavit that the original plea did not
omit sDch new facts for the purpose of delay,
and that the ammdment is not now offmd
for delay." The Code provldeB ttiat, when
"the circnmstanoes of the case or sobstantlal
Justice between the parties require it," the
court has the power to allow the amendment
without the affidavit Civil Code, | 5640.
The court's discretion, however, must be
based upon Acts Justl^lDs its exercise. If
the defendant la present In court and no
reason ai^ars why he cannot make Uie oath,
it Is an abuse of discretion to relieve him
from so doing. Bass Dry Goods Co. T. Gran-
ite City Mfg. Co., 119 Ga. 124, 45 S. B. 980.
The affidavit In the present case was, how-
ever, a substantial compliance with the sec-
tion of the Code. It is not essential that
the exact language of the section should be
used. In the affidavit attached to the an-
swer In the present case the defendant
averred that she learned of the new facts
set up In the amendment after the filing of
the original answer, and, If she had known
them at that time, she would have pleaded
them. This is sufficient to show that the
new facts were not admitted nor the amend-
ment ofTered for the purpose of delay.
[3] 3. The following charge of the court is
assigned as error: "I^ after hearing all of the
evidence in this case, yon find that the
evidence is equally balanced between the
plaintiff and the defendant, then you should
find in favor of the defendant" This charge
was erroneous as applied to the pleadings
and the evidence In the present case. The
burden was on the plaintiff to prove the
execution of ttte note, and this he did by the
testimony of a witness that he saw the
defendant sign the note. The defendant
made no attempt to sustain her plea of non
est factum. The plaintifC having thus made
ont a prima fade case, the burden was on
the defendant to snstain by proof her special
defenses that the note was given for a debt
of her husband, and that the consideration
had failed. On these two issues the testi-
mony was directly conflicting. The plaintiff
testified that the defendant represented to
him that the mule which the plaintiff re-
ceived was the property of the defendant
and that she desired to exchange It for an-
other mule and pay the plaintiff fl50 as
boot; that she borrowed $S0 from the i^lu-
tiff, and these two sums made the principal
amount due on the note. Tlie plaintiff fur-
Oier testtfled that the mule sold to the de-
fendant was sound In every way, and that
Johnson was not bis agent and had no au-
thority to take back from the defendant the
white mule which she took in exchange for
the one which she had received from the
plaintiff. Of course, if the evidence had
required a flndlns that tiie plalqtlfl got the
white mule and «ave the defendant nothing
In exchange therefor, or that JtdwBon was
anthoilzed by the plaintiff to take tiie white
mule, the verdict for the defendant would
have been demanded. But this does not ap-
pear. According to the testimony of the
Idaintlff and Johnson, the last trade was a
transaction betweoi Johnson and the defend-
ant with which the plaintiff had no concetn.
^e defendant denied all this, and the ver-
dict in her favor was fully supported by the
evidence; but. since it was not demanded,
the instruction abon referred to leaoires a
new trlaL The burden waa on the defendant
to establish the truth of ha pleas. If the
evidence on the Issues thus raised was equal-
ly balanced, the plaintiff was entitled to a
verdict npon the prima facie case which be
had made by proof of the execution of the
note. The effect of the instructlou was that
If the jury were In doubt whether to believe
the plaintiff or the defendant they should
find for the defendant whereas the correct
rule was that, if the Jury were unable to
reach a conclusion as to whlcb one of the
parties waa telling the truth, they should find
tor the plaintiff, because In that event the
defendant would have failed to establish her
pleas. Tot this error alone a new trial la
ordered.
Judgment reversed.
(12 An. »n
HALT. V. a J. BOEHB & CO. (No. 4,807.)
(Court Appeals of Geoz^. June 10, 1913.)
(BwUtitmt &y Urn OavrtJ
1. No Matbbial SteOB.
No material error of law was committal,
and the Judgment la affirmed on eonditioa.
(AMUonal SyUaliu by Bii*orial Btttff.)
2. Brokebs (i 10*)— Tkbus or Sale.
Where a jeweler is aothorised to sell rings,
the possesion of which li retained by the pruk*
dpaJ, a sale fox cash li implied in the absenos
of evidence ot authority to grant a credit
[Kd. Notsu— For other cases, see Broteri, Gent
Dig. 114; Dea Dig. 1 15.*]
S. Tboveb ahd ConvEBSion (| 11*)— -Bona
FiDB PUBCHASEBS— "COKVEBBIOIf."
Where one parcbases personal property
with knowledge that the seller has do title, his
retention of uie property, as against the tnia
owner, la a conversion.
{Ed. Note.— F«r othw cases, see Trover and
Conversion, Cent Dig. K 96-^; Dec Dig. 1
11.*
For otiier definitions, see Words and Phraaaa,
VOL 2, pp. 108^1570; voL 8, p. 7618.]
4. Afpsaz. and Ebbob (I 1050*)— Habuless
EiffiOR—AnuiBSiON oT eTvidbnce.
The admlasion of hearsay evideno^ which
is immaterial to the Issaes of the case, la haxmp
less error.
[Ed. Note.— For other cases, see Ajmeal and
Error, Cent Dig. H 10687 1069, fiB3-4167,
4160; Dec. Dig.l 1060.*]
*For otbsr cmm bm
78 8.]C.-^1
■MM topic uut wcUon NUMBBR in D*o. Pig. & Am. Dig. K«r-No. Swl.
Digitized
482
78 SOUTHBASTEBN BBPORTEB
6. Afpeu. and Ebbob (f 11S1*>— Affibuancx
— DiBEcnoN OF BcumiTnB.
In BD action for the conversloD of two
tinn, where the evidence shows the value of
each of the tings, a verdict for the amonnt of
the more valuable ring will be affirmed, though
there was no evidence as to which of the rings
defendant converted, but plaintiff will be re-
quired to remit the amount of his recoveiy in
excess of the less valuable ring.
[Ed. Note.— For other cases, see Appeal and
Emr^^Gent. Dig. f| 4408-^; Dea Dig. S
Error from City Oonrt of Balnbrldge; H.
B. Spooner, Judge.
Action by C. J. Roehr ft Co. against C. O.
HalL From a judgment for plaintiff, de-
fendant brings error. Affirmed on condition.
K. G. Hartsfleld, of Balnbrldge, for plain-
ttS In error. J. O. Hale^ of Balnbrldge, for
defendant in error.
POTTLE, J. [1] Upon tlie order of a lo-
cal Jeweler, tbe plalntUb sent ftwr dUimond
rings to the bank of CUmax for Inspection by
Oliver, a prospective purchaser. Oliver, who
was iffesldeut of the bank and reputed to be
a man of means, took possesion of tiie rings,
and shortly afterwards was adjudicated a
bankropt Hall, the casbler of the bank, had
received the package containing the rings,
and delivered It to Oliver. Two of fabe rings
having been accounted for and recovered, the
plalntlfte brought trover against Hall to re-
co\'er the other two, descrlMng them gener-
ally as diamond rli^ and identifying them
by nnmbeiB. The prot^ shows that one of
the rings was worth 9260^ and the other f280.
The plalnttiEB elected to take a mcmey ver-
dict, and the Jury found in their fiivor a ver-
dict for 9280, besides Interest It soflactent-
ly appears, from the evidence, that tltie to
the riiags never passed out of the plaintiffs.
No sale was ever consummated.
[2] The zings were to be sold the local
Jeweler as aeent for the plaintiffs ; and, there
bting no evidoice that no credit sale was
authorised, be could only sell for cash. It Is
undisputed that Oliver got tba four rings
and never paid for any of them. He gave a
rise to the defendant Hall, who claims that
he did not know where Oliver obtained it,
but the drcumstanoeB strongly Indicate that
this claim of Hall's was a mere subterfuge,
and that he knew (what the evidence abun-
dantly shows) that the rinx belonged to the
plalntUb and had never been paid for by
Oliver, and that Oliver had no light to give
it to him.
[I] If Hall acquired the rlnc with knowl-
edge that OUver had no title, Hall's posses-
sion was wrongful and his retention of it a
conversion. Moreover, there was evidence
of a demand and refusal, as proof of conver-
sion.
[4] The trial Judge admitted some hearsay
evidence, but it was harmless, as it did not
affect the material Issues In the case. A
verdict against Hall was practically de-
manded.
[I] The only trouble about the case is that
the evidence falls to show which of the two
rl&gs sued for came Into possession of Hall.
The Jury bad no right to assume, In the ab-
sence of proof, that he got the more valuable
one. But, as the evidence demands a finding
that the less valuable ring was worth $260,
neither Hall nor his sureties on the ball bond
can complain of the direction which we give
the case, which is that the Judgment will be
affirmed, on condition that the verdict and
Judgment be amended so as to find for the
plaintiffs the principal sum of $260, and in-
terest, as stipulated In the verdict If the
plaintiffs do not within 30 days from the
date on which the remittitur Is entered in
the court below, file in the office of the clerk
of that court a written consent signed by
themselves or their counsel, that the verdict
and Judgment be amended as indicated, the
judgment of the court below, refusing to
grant a new trial, will be reversed. In either
event the defendant in error will be taxed
with the cost of this writ of error.
Judgment affirmed on condithm.
(11 Gs. App. TTI)
HOLLXDAT et al. v. COLEMAN.
(No. 4,765.)
(Court of Appeals of Georgia. June 10,
191S.)
fBvUahu* Iv t\e OotirtJ
Faiab Ixfbibonhent (S 13*)— IfALicions
Pbobecution (} 32* ) — Teesp ASS (I 78*)—
Wbonofui. Ahbest— DaixNsas— Obihiicax,
Bbsponsibiutt.
Under the testimony of the plaintiff, he
was not guilty of any criminal offense, and
bis arrest without a warrant justified an
award of damages against the officer who made
the arrest and the persons who procured him
to do BO. There was no error in the extract
from the judge's charge of which complaint
is made, .and the instruction requested which
the court refused to |^ve was fuuy covered hy
the charge given. ■
[Bd. Note.— For other cases, see False Im-
prisonment Cent Dig. U 6, 7, 81, 69; Dee.
Dif. I 13;* Malicious Prosecatlon, Cent Dig.
f «7: Dec Dig. § 32;* Trespass, Cent Dig.
S 169; Dec. Dig. i 79.*]
Error from City Court of Dublin; J. B.
Hlck^ Judge.
Action by Bl a Coleman against A. B. Hol-
Ilday and others. Judgmoit for plalntlft
and defmdants bring error. Affirmed.
a W. Sturgls, of Dublin, for plaintiffs In
error. T. Ei mghtower, of Dublin, for de-
fendant in error.
POTTLE, J. This was an action for dam-
ages for false imprisonmnent The plaintiff
testified that certain of the defendants, with-
out authority from him, and without Institut-
ing condemnation proceedings in behalf of
a telephone company which they represent-
*For other casss see ssms toplo and stctlon NUUBVR in Dec. Dig. a Am. Dig. Ksr-No. 8«rlM-ft Ssp'r Indexes
Digitized by VjOOglC
BUSTTBiRTW T. STATB
488
ed, began erecting telephone poles on bla
land and strlnglDg wiies along the poles.
He ordered the poles ranoTed, and, wben the
defendants refused to r«noTe than, he began
polling them down. Thereupon a constable
was sent for, and by direction of the other
defoidants, arrested the plaintiff without
a 'warrant, and detained him for about an
hour and a half, and released him upon his
agreement not to cut down the poles, ^e
plaintiff recovered a rerdlct of $75, and the
defendants* motion for a new trtol was ova-
raled.
To arrest one Illegally and detain him for
any length of time is a criminal offense.
Penal Code, | 106. It is likewise a tort for
which an action for damages will lie. Civil
Code, ! 4447. If the imprisonment Is by vir-
tue of a warrant, good faith is a defense.
Ovll Code. I 4448. If the Imprisonment be
the act of several persons, they may be sned
Jointly or severally. Civil Code, i 44^ If
the detention be onder legal process, prob*
able cause for issuing the process constitutes
a defense, both in an action for damages
and in a criminal prosecution. Bad faith
or malice may be Inferred from a total lack
of probable cause. In this state, an arrest
for a misdemeanor without a warrant is il-
legal, unless the crime was committed in the
presence of the officer, or the offender Is en-
deavoring to escape, or for some other rea-
son there la likely to be a failure of Justice.
Penal Code, | 917. King v. Stat^ 6 Oa. App.
832, «4 S. Bl 1001, and cases dted. In the
present case there was no warrant; and
tatce no amount of good faith or probable
cause would excuse the defendants, for the
arrest was Illegal. Under the testimony of
the idalntiff the defendants, and not he, were
guilty of criminal trespass. They were mak-
ing an unauthorized Invasion and appropria-
tion of his premises: He had a right to use
whatever fbrce was necessary to resist this
Invasion. The erection of the telephone
poles was without any lawful authority
whatever, and the plaintiff had a rl^t to
remove than. Being wrongdoers themselves,
the defendants are not In the position to
complain of the method which the plaintiff
onployed to remove the poles from his land.
The trial Judge chained the Jury the princi-
I^es above announced, and there was no er-
ror in so doing. He refused to give a written
request that, if the plaintiff had consented
for the poles to be put upon his land, he
wonid be guilty of a criminal trespass if he
cut them down. Without reference to wheth-
er this request was in all respects sound, it
Is sufficient to say that it was substantially
covered by the general chaise, because the
Judge distinctly instructed the Jury that if
the telephone company had acquired the
right to erect the poles, either by condemna-
tion proceedings or by permission of the
plaintiff, the officer had the right to arrest
the plaintiff while «g&ged In the act of cut-
ting the polee down. The recovery In the
plalBturs tevor vras quite small, and affords
the defendants no Just cause tox cwapialnt
Judgment affinned.
CU Oa. App. 764)
KINO T. STATBL (Now 4,746D
(Court of Appeals of Geoxgia. June 10^ ISU.)
(Sv^hiu }ty <A0 Court.)
Hanslauohteb— EviDBncx.
The evidence anthorind the charge of tiie
court upon the subject of voluntary manslaugh-
ter, and rapports the verdict finding the da-
fendant guilty of that offense. There was no
error In refusing a new triaL
Error from Superior Court, Lowndes Coun-
ty; W. E. Thomas, Judge.
Jim King was convicted of voluntary
manslaughter, and he brings error. Affirmed.
B. O. DtdceraoD, of Hfunerville, and U
Ooodloe^ of Valdostet for plaintiff In errw.
J. A. Wilkee. 8oL Gen., of Moultrie, for the
State.
KUSSBIA 3. Jndgment affirmed.
(U Oft. App. WS)
BESHEREB v. STATE. (No. 4.8S4.)
^Oomt of Appeals of Geor^a. June
1918.) ^
(Syllalua &y the Courts
Labcent (J 64*)— Cbiuinal Law (jH 561,
823*)— SUFFICIENCT OF EVIDEJTCE— POSSIS-
8I0N or Goods— BsASOKABUE Doubt— In-
BTBUCnOHS.
No error of bw wo committed, and the
evideDce authorized the verdict.
[Ed. Note.— For other caseB, see Larceny,
Cent Dig. fs 170-178; Dec. Dig. f 64;* Crim-
inal Law, Cent. Dig, M 1267, 1992-1990, S168;
Dec. Dig. H 661, 823.^
Error from Superior Court; Oobb Oonn'^:
H. K Patterson, Judge.
Dewey Besberes was convicted of breaking
and entering a railroad car and stealing cer-
tain artldes, and he brings error. Affirmed.
N. A. Morris anQ Geo. D. Anderson, both
of Marietta, for plaintiff In error. Herbert
Clay, Sol. Gen., of Marietta, for the State.
POTTLE, J. The accused was convicted ot
the offense of breaking and entering a rail-
road car and stealing therefrom certain ar-
ticles of merchandise. He excepts to the
overruling of his motion for a new trial. It
is contended that the evidence Is not suf-
flclent to authorize a conviction, because
there is no proof that the car was broken, or.
If so, that the accused was the perpetrator
of the offense, or that the goods described
In the indictment were taken from the car
by him. The evldenice shows that the freight
car alleged to have been broken and entered
was carried from Atlanta to Marietta ; that
it was sealed before It left Atlanta and was
examined at a station between Atianta ant
•For flttw OWN wtm MUtw toplo and McUon NUMBER la Dae. Die. * Am. Die. Kejr-Nlx^'iii^ W
I
184
78 SOUTHEASTERN REPOBTER
(Ga.
Marietta, wbem tiw seal was found to be
Intact; and Qiat from tbat point on to Mari-
etta there woe no atops. Bills of lading and
taivotces were Introdaeed, dwwlng tbat goods
Cfffreapondlng to tbose alleged to have been
stolen were consigned to certain persons In
Marietta In tbe car alleged to have been
bitdca. Abont 11 o'dodc on tbe nigbt npon
wUcb-the oOeiaae Is alleged to bare been
committed, tbe aceosed, together with Tom
Brans, iirocured one Warrat to obtain a
hack and go to a railroad crossing in the
dty of Marietta for the purpose of carrying
away certain goods. The hack was stopped
at tbe railway crossing, and tbe accused and
Brans wait In the direction of tbe freight
car and twongfat ba^ to tbe back boxes of
mercbandlae ewrespondlng to those described
tn tiie indictment and which were shown by
llie Invoices' Introduced In evidence to have
been consigned to the persons whose names
are set forth In tbe Indictment Abont tbls
time Boau persons unknown approadied the
hade, when tbe accused. Brans, and, Warren
ran away. Subseqoratly Warren met the
accused and Brans In another part of Mari-
etta. At tbls ttme Warren was driving the
hack and had In It tlw goods whldi bad been
put there by tbe accused and Brans. The
goods wwe afterward found In a racant
lot In Marietta. According to tbe testimony
of Warren, tiie accused and Evans were seen
with the merchandise, coming from between
the box car 'alleged to bare been broken and
a coal car. The erldence further slewed
tbat the car had been bn^n and mtered
by somebody, and, from tbe cooslgnrowit of
merchandise as shown by the Inrotces, goods
corresponding to those which had been seen
In tbe possession of tbe accused and his ac-
complies Brans were F^<«iF)i>g-
We think tbls wiOfaaee was anfllclent to
authorise a conrlctlon. While tbe accused Is
entitled to the benefit of erery reasonable
doubt, the law does not require mathemaUcal
certainty. It Is true that there Is no direct
testimony that tbe goods seen in tbe posses-
slon of tile accused were actually loaded In
tbe car, nor is there any direct and posi-
tlre eridmce by an eyewitness that the car
was broken after it reached Marietta. The
drcumstanoes proved, bowevet, wwe Bttf<
fldent to authorize a finding against the ac*
cnsed aa both of these questions. The car
was broken and entered by somebody, and,
under the evidence, tbe only reasouaMe
hypotheslB is that this was done after the
car had been stopped In Marietta. There
is, of course a bare possibility that some-
body else may have broken the car and taken
the goods out, and that the accused and
Bvans were guilty merely of larceny of the
goods after they had been taken from the
car; but, under all the evidence, this Is not
A reasonable hypotheaU. The accused left
the hack, went In the direction of the car,
was seen coming from betwerai tbe car and
a coal car with tbe stolen goods In his posses*
slon. There was ample evidence to sustain
the conviction.
The motion for new trial contains several
assignments of error npon extracts from the
charge of the court We have carefully read
tbe entire charge, and, taken all tt^ether, It
Is as fair a charge to a defendant on trial
for crime as we have ever examined. No-
where in It Is there tiie slightest sugges-
tion that the trial Judge leaned toward the
state; but. on the contrary, the charge la
that of an upright, impartial magistrate,
seeking to hold tbe scales of JusUce between
the state and the accused evenly balanced In
conformity with the rules of law ai^llcable
to the case, and contains abundant proof
that the trial Judge was honestly seeking to
aid the Jury tn arrirlnjg at the truth of the
case. Complaint Is made that the Judge, in
referring to tbe testimony of Warren, in-
structed tbe Jury that in passing upon the
credibility of a wltnesi they should de*
termlne whether he was an accomplice^ but
that the tect that be was an accomplice was
no ground for imiieacbment This was an in-
accurate expressloa, ai^ if It stood alone^
might hare been prejudicial; but the trial
Judge Instructed the Jury in detail that tbe
accused could not be convicted upon tbe tes-
timony of an aeoompU{» alone, that mwe
proof of the corpos ddictl would not be suf-
ficient corroboratlonv that corroboraUng evi-
dence which merely case a suspicion upon the
accused would not be suffldent, and that the
evidence, . Independently of tbe testimony of
tbe alleged accomplice, must bare connected
the accused with the ofFense. Taking the
charge as a wholes there is nothing In the
extract exo^tted to which would authorise a
new trial As a whole, tbe chaxi^ on tbe sub-
Ject of the testimony of an accomplice was
not erroneous, nor do we find any ezpr^slon
or intimation <tf opinltm tbe trial Judge
in reiference to the guilt of tbe accused. In
certahi extracts from the charge wbidi are
claimed to be subject to thla crmdsm.
Complaint Is further made that, In diarg-
Ing the Jury on the subject of leaaonable
doubt, tbe trial Judge stated tiiat tbls doubt
must grow out of the erld^use^ and that the
jury should n(^ go outside of the erlAoiee
for the purpose of raising a doubt It la
contended tbat tUs instruction practicaUy
withdrew firom the consideration of tbe Jury
the statement of tbe accused. This vscep-
tioD, like some of the others, might be well
taken If we should look only to the extract
complained of, but, when considered in tb«
light of tbe ei))tire diaive. Is not cause ft>r a
new trlaL Th^ Judge distinctly told the
Jury that they bad the right to believe the
statement of the accused In preference to the
sworn testimony in the case, and tbat it was
exclusively for the Jury to determine what
weight should be given the statement Tbe
request to charge. In so far as It was legal
and pertinent, was fully covered bar the
charge given. C^r\r\r%]t>
Digitized by VjOOQ It
485
Further complaint is made of an Instruc-
tioq :tbat If the Jury were satisfied that the
car had been broken and entered by some-
body, and that, very Boon after the commis-
sion of the offense, a portion] of the goods
which had been In the car was shown to have
been In the possession of the accused, and
that be did not satisfactorily explain such
possession, this would be a drcnmatance to
be considered by the Jnry In determining the
guilt or innocence of the accused. In tbis
Instruction there was no error of which the
accused can Justly complalnu
The exceptlfHk to the charge oo the sub-
ject of allM l8 Jiot InalatBd on In Qw Inief
of conned.
Jndgnwnt ifflrmwl
(M N. C. 460)
TADKIN LUMBER GO. r. BE31NHARDT.
<8iipreiiie Court of North Carolina. May 22,
1913.).
L BouNDASiKa (S 40*)~Tebuini— LooATion
— QuEOTioNS OF Law jlVd Fact.
What are the termini or boundaries of a
grant or deed la taatter of law, but where the
termini are located is matter of fact.
[Ed. Note.— For other cases, see BouDdaries,
Cent Die. |{ 196-201 ; Dec. Dig. i 40.*]
2. BotrnoARiES {I 3*)— Cousras aud Dzbtaho-
x»— Calls ob Objects— Effect.
Where there is a call for natural objects
in a desfulptioD, and oounes and distances are
also given, the natural objects constitute the
termini, and the course and distance merely
point or- guide thereto, so that when the natu-
ral object called for u unique, or has proper-
ties peculiar to itself, course and distance are
disregarded, but, if there are several natural ob-,
Jects equally answering the description, course
and distance may be examined to ascertain
wUch Is the true object, in which case tbey
do not control the natural boundary bat only
serve to explain a latent ambiguity.
[Ed. Note.— For other cases, see Boundaries,
Cent Dig. ii 3-41; Dec. Dig. | 3.*]
8. BouNDABiEs <| 3*)— Galls— Line ros Dir-
RBEIfT TbAOT.
Where the line of another tract is definite-
ly called for as one of the termini of a call
in a grant or deed, &uch line will be dealt with
as a natural object and will control a call for
ooorae and distance; the line being run straight
■» as to strike the line called fbr, making as
sligbt a departure as may be from the course
or dlstaDce called for in the grant.
[Ed. Note.— For other caseg, see Boundaries,
Cent Dig. U 3-11 ; Dec. Dig. { 3.*]
4. BomDABiEs (S 8*) — Galls — DnTEBEHT
ijnES.
Where there are two lines answezinc a call
In a deed, the jury, in determinlog wnlch is
meant, may consider the circumstance that
lines were ran by the surFeyor and comers
made at the time tl the snrT«y leading to one
of them.
[Ed. Note^For other cases, see Boundaries,
Cent Dig. H 66-76; Dee. Dig. | &•]
Clark, 0. J., and Brown, J., dissenting.
Appeal from Superior Court, CaldweU
Coonty; Lyon, Judge.
Ejectment by the Tadkin Lumber Com-
pany against John M. Bernhardt Verdict
for plaintiff, and dCHfendaiit excepted end
peals. New trlaL
Plaintiff Introdnoed two grnnte oovwlng
the land in controvert, bBorlng ante Deoem-
bet 29, 1S75, end as to encti land cmneeteil
Itsdf by mesne oonvejanoes wltb the gran-
teee and offered evidence further tendinc to
show tre^MBses on the same by defendant
"Plaintiff forther adduced erldmce tending
to show thatt at the time the 100-acre grant,
No. 666, was taken out bj William Cottrell,
Jamee Oottrtll bad a 2S«cre grant isunedi-
ately east of the mtttbem Une of si^ grant ;
also a Q&aere grant Inunedlatdy east of
grant No. 8,890! also that WUUam CottieU
bad land sonth of No. 8^ and that tbe
same William Cottrell had a SO«ere grant
lying to tbe sonth ot grant Now S66L BtI-
dence was also addticed toidlng to prove
that an extension of the nortb line ot grant
No. 066 from figure 2 by way ttf B east, as
called for In that grant, woold strike tbe
James GottreU 254(xe grant and not tbe Wil-
liam GotlxeU 6(^«cre grant"
Defmdant offored In evidence entry No.
1,883 as foUows: "William Cottrell, Sr..
enters and locates 100 acres of land on tbe
Long Ridge braneb, waters of Buffalo cred^
beginning at or near bis comer of bis ICO-
acre tract, Indudlng alt tbe land between the
ISO and 60 acre tracts. November 6, 1854.**
And the warrant of survey on said entry
formally stated and certified as follows:
"Xou are hereby directed and required, so
soon as may be, to lay off and survey for
William Cottren 100 acres of land on the
Long Ridge branch, waters of Boffalo creek.
Beginning at or near his eomer of his 160-
acre tract, entered November 0^ 1854." And
the certificate of ennrey on said warrant,
with plat attached to state's grant No. 666,
contslnlng the description: "B^los at a
white pine and two chestnut trees by the
falls of Pounding Mill branch, and runs
north 10 poles to a white pine, comer of a
150-acre tract the same course with the Une
of said tract 86 poles to two white oaks on
the east side of a hill, then east 167 poles to
a stake in the line of a SO-acre tract, thence
south with that line 00 poles to a stake In a
line mnning east from the beginning, then
with that line west to the beginning." And
grant No. 566, containing the following calls :
"One handred acres lying and being in tbe
county of Caldwell, on the waters of Buffalo.
Begins at a white pine and two chestnut
trees by the falls of Pounding Mill branch,
and runs north 10 poles to a white pine, cor-
ner of 150-acre tract, the same course with
tbe line of said tract 86 poles to two white
oaks on the east side of a hill (then east 107
poles to a stake in the line of a 60-acre tract) ,
thence south with line 96 poles to a stake in
a line mnning east from the banning, then
with that line west to the beginning. Bn-
tered 6th day of November, 1854." Plaint
•rer otlisr esMs see same tovle and sectkn NCHBBK la Om. Die. * Am. Dig. Ker-M«g8aW« R«jk
486
18 80UTHBASTKBN REPORTER
or. a
tben Introduced a grant to WlUiam Gottrell
for 60 acres. No. 8,390, lying entirely east
from 666.
In order to a bett» understanding of the
Questions In controversy and the admissions
of the parties, the will be Inserted as
fbUom:
NS Z5l M> 33^0 I .
Ane» CoTTMi ws CoTTffeu.
t5 40)tu so ACRB Tmcr
* 51
Admissions were thm made as follows:
"That the beginning comer of the grant (No.
666) la marked on 0ie coort map at the
point 1 with the bdhd polntli« towards It,
and that each Is the beginning corner of said
grant It is farther admitted thet the sec-
ond coma in said grant Is at the point
marked W. P. on mai^ 10 poles north of 1,
and that sndi point is a corner of a 160«cre
tract It is further admitted that the third
corner of grant No. 666 is at the point mark-
ed 2 W. O., with the hand pointing towards
the flgnre 2, as shown on the coort map, and
that each point is 86 poles ninth of the white
l4ne and 96 poles north of tiie beginning cor-
net the white pine and two chestnuts by the
fiUls of 'Pounding Mill branch,' and that the
two white oaks at the flgare 2 are on the
east aide of a blU." And further: "That the
William Gottrell, Sr., who obtained a grant
for lands rq>resented on the map as grant
No. 666k was the same person as the Wil-
liam CottreU who obtained a grant of lands
shown on the map as grant No. 3,390 for 60
acres. ^Intlff farther admits that grant
No. 3,380 Is correctly located as shown on
the map^ Plaintiff further admits that the
defendant holds proper mesne conveyances
fcom William Gottrell that constitute a good
paper titles nothing else appearing to sudi
lands as are properly covered bj grant No.
566."
It win thus aK>ear that locus In quo, as
r^resented on the above plat, Is Included
within the letter and figures z, 3, 4, 6, and.
If the grant 666 under which defendant
claims Is "to be correctly located In exact
accord with course and distance. It would
be represented on the map by the figures 1,
2, 5, 6 and would not Include tUs land, but,
if it may be and is properly extended to the
William Cottrell 60-acre grant No. 3,390
making the northern line 306 Instead of 167
poles, it would then Include the land In con-
troversy and be represented on the plat by
the figures 1, 2, 3, 4. On the facts In evi-
dence,' the court held and so charged the Jury
that, in locating the defendant's grant No.
566, the course and distance would control,
and the defwdant's title, more especially In
reference to running the call east 167 poles
under the same, would stop where the dis-
tance gave out and go where the course car-
ried It, regardless of the additional call 'to
the line of a 60-acre tract' ; the court hold-
ing that such addition to the call Is too In-
definite to affect the location," etc.
There vras verdict for plaintiff establishing
the lines at 1, 2, 6, & Judgment on the ver-
dict, and .defendant excepted and appealed.
lAwrence Wakefield and Blark Sqnlies,
both of Lenoir, for appelant Coun^ ft
Yount, of Hickory, and Edmund Jonea^ of
Loiolr, for app^ee.
HOKE, X (after stating Oie facts as above).
[1,2] In Tatem ft Baxter v. Paine ft Saw-
yer, 11 N. a 64, 16 Am. Dec. 607. it was
held: "What are the termini or boundary
of grant or deed Is matter of law; where
these termini are is matter of fact The
court must determine the first and to the
iury it belongs to ascertain the second.
Where there Is a call for natural obiects, and
course and distance are also given, tike
former are the termini, and the latter merely
points or guides to it ; and therefore^ when
the natural object called for is unique or has
properties peculiar to ItseU; course and dis-
tance are disregarded, but where there are
several natural objects equally answering the
description, course and distance may be ex-
amined to ascertain which is the true object
fOr in audi case they do aot crattrol a natural
boundary but only serve to explain a latent
amblgnl^." The principles embodied in this
statement have bera frequently approved in
our decUions as in Lumber Go. v. Button,
169 N. a 446, 74 & BX 1056; Sherrod v. Ba^
tie, 154 N. a 346, 70 S. E. 834; Mitchell v.
Welbom, 149 N. a 847, 63 S. B. 113 ; Whlt-
aker v. Cover, 140 N. C. 2S0. 62 S. R SSI ;
rincannon t. Suddertb, 140 N. C. 246. 62 S.
B. 579 ; Bonaparte v. Carter, 106 N. G. 634,
11 S. £L 262; Murray v. Spencer, 88 N. C.
357; Com v. McCrary 48 ^-(Ot ^QiCaLm^
bell V. Branch, 48 N^iCpltliitVjOOQ LC
N. a) TADKIN LUMBER
[S] Tsom Oiese and many ottier cam on
the subject It wUI appear farther that in ref-
erence to coarse and distance the call In a
deed for tlie line of another tract at land la
toi be considered and dealt with aa a natural
object and» applying the doctrine It may be
taken as a folly established position in our
law of boundary "that where the Hue of
another tract la definitely called for as <me
of the termini of a call in a grant or deed,
and this line Is fixed and established, it will
control a call by course and distance;** Lum-
ber Go. V. Button, supra ; Whitaker t. Cover,
140 N. a 280, S2 8. m 681, supra; Flncan-
non T. Sndderth, 140 N. a 240, S2 S. K 679.
It will be noted that. In order to the proper
application of this principle, the line called
tor must be "identified, fixed, and establish-
ed," or the pmition does not govern; but,
whoi the conditions exist which call for Its
application, it is then not a question of
whether the writer of the deed or the parties
to It intended to take In so much land or to
extend the line of the principal deed to so
great a length ; bnt In the language of Hen-
derson. Judge, in Tatem t. Sawyer, supra:
"Where there la a tnU for natural objects,
and course and distance are also ^ven, the
former are the termini and the latter merely
points or gnldes to it** And If the line is
properly "fixed and established" pursuant to
reci^nized rules. It makes no ditference
whether it was marked or nnnuurked. Com
T. McCrary, 48 N. C. 4d6.
The learned Judge who tried the cause was
no doubt famlUar with the principle to which
we have referred, but held that it should not
prevail in this case, being of opinion that the
call of defendant's grant and deeds, to wit,
"thence east 167 poles to a stake on the line
of a 50-acre tract," was too indefinite to per-
mit the reception of parol testimony either
to Identify or place the comer. But the
authorities more directly relevant do not
sustain this view. Thus In Lawrence v. Hy-
man, 79 N. O. 209, the call of the deed was,
"Beginning at the north comer of the store,"
the store standing equally east and west and
having two north comers, held that the case
presented a latent ambiguity to be explain-
ed by parol testimony.
[4] In Oraybeal v. Powers, 76 N. G. 60, the
call in dispute was, "Thence south 33 west
100 poles to a stake in Simeon Graybeal's
line;" and it was held among other things:
"(1) A call for the line of another tract of
land is 'a natural boundary* and controls
course and distance." "(3) In running the
call, the line must be run straight so as to
strike the line called for. making as small a
departure as may be from the course and
distance called for In the grant (4) Where
there are two lines answering the call, the
jury, la determining which is meant, may
consider the circumstance that lines were
mn by the surveyor and corners made at the
time of the surrey, leading to one of them."
And speaking more directly to the facta,
00. T. BIEBN^BDT -487
Pearson, O. J., deUverlng flu oplnloB, said:
"In our case t^isn la a natural Umndary,
•Simeon OraybeaTs line,' bnt it so happaia
that Simeon Gtaybeal owned two tracts, one
a txypcre tiftct, which I wlU caU tmet No. 1,
and another tract which I will call tract No.
2, lying west of tract No. 1, and distant from
it some 80 or 40 poles. It Is evident from
that plat that the SImson Oraybeal linC
called tor is ^ther the north or south line
bounding tract Na 1 <m the west and mark-
ed CD, or it is the north and south Unai
bounding tract Na 2 on the east and marked
PE." Which of these two lines ts the one
that is called tot la "the governing fact in
the location of the defendant's grant and
ought to have beoa distinctly left to the Jury,
with InstmctionB to consider all the evidence
and the surroundings of the cas^ including
tbe marked lines and corners,*' eta
Again In Topping v. Sadler, 60 N. G. S6T-
369, tba call waj^ "Thence southerly 80 poles
to the patent line, thence with the patent
line," etc, and It was held : "Where one of
the calls in a deed was for a patent line, and
there was (me patent proved, a line of wtAcb
would be reached by extending the line in
question t>eyond the distance called tot, and
no other patent was alleged to be near the
premises. It was held that the call was suffi-
ciently definite to allow the extension of the
line to the patent line."
The former comers of the William Cot-
trell 100-acre grant. No. 666, having been fix-
ed, a proper application of the principle of
these decisions will require that on the call
of said grant, "then east 167 poles to a stake
In the line of a 50-acre tract," the question
be submitted to a Jury to determine what 50-
acre grant was Intended, and where the same
is properly placed, and. on considering the
qnestion, the fact that the same William Got-
trell had a 60-aere grant to be reached bj
a slight deflection of the course and extend-
ing the line from 167 poles to 308 poles, and
that both on the entry and warrant of sur-
vey of grant 666 for 100 acres as part of the
description, "Beginning at or near the cor-
ner of his 150-acre tract, including all the
land between the 160 and eo-acre tracts,"
are circumstances relevant to the inqniry.
If the jury are unable to identic the 50-acre
tract called for or to satisfactorily place the
same, the courses and distances as given In
the grant should prevail.
For the error in excluding the testimony,
defendant is »ititled to a new tzial, and it
is BO ordered.
New trial.
GLABK, C. J. (dlssentlDEd. Grant No. 666
contains the following calls; "One hundred
acres lying and being In the county of Cald-
well, on the waters of Buffalo. Begins at
a white pine and two chestnut trees by the
falls of Pounding Mill branch, and rans
north 10 poles to a white pine, comer of a
leo-acre tract the Bam^-c^^^jl^^^
488
78 BOXTTHBASTBBM BBFOBTEB
CN.a
d Mid tract 86 XKfles to tiro wblte oaks on
tbe east side of a hiU, tben east 167 poles
to a stake Is ttie Une of a 6(Mu» trad;
Uunco sonth vlfb Hne 06 poles to a stake In
a Une mOnlxig east from the b^lnnlnft tben
wltli tbat line west to the beginning. Sin-
tered eth day of MoTember, 1854."
It was admitted thai the beginning corner
<tf the grant No. 666, as marked on the map
at tbe point 1, Is tbe tme beginning, and
ttiat tbe second comer te at tbe point mark-
ed W. P. on the map 10 poles north of 1*
and that such point is the comer of the ISO-
acre tract It was further admitted that tbe
third comer of grant 066 Is at the point
marked 2 W. O., and that each point la 86
poles north of the white pine and 96 poles
north of the beginning corner, the white pine
and two chestnuts 1^ the falls of "Pound-
ing MUl branoh.** and that tbe two wblte
oaks at tbe flgore 2 are on tbe east aide of
a hUL There was no difflcnlly "wbateTtt In
locating the grant according to course and
distance eepeclally with these p<dnts adndt-
ted. The court properly charged that under
these drcomstances "course and distance
control, and tbat tbe defendant's title to
Oie 100-acre grant would stop wherever the
distance gave out and would go where the
course carried It, regardless at the addition-
al call to the Una of a tKMicre tract,' the
court holding tbat that addition to tbe call
was too Indefinite, and the jury should find
as a fiict on tbe oTldenoe tbat the coma
was where tbe distance gave out and wh^
tbe course went to.** Surely this cannot be
error, wb«i to consider the additional call
"to tbe line of a 00-acre tracf* would make
tbe call indefinite and uncertain and Indeed
rmdtf uncertain tbat which before was cer-
tain.
It has been unlTersally held by this court
in a line of decisions beginning as far back
as Harry v. Orabam, 18 N. C. 76, 27 Am.
Dec 226, and continuing to the present, that
*the course and distance called for must
control unless there is another call more
definite and certain than oourte and dis-
tance."
Tbe additional call here Is 'to a stake in
a 60-acre tract" This could not possibly be
made more indefinite nor uncertain. It Is a
call for an unfixed and unmarked point and
bi no particular grant The grant Is not
even designated by the name of a grantee.
There Is evidence tbat there are three 60-
acre tracts near this grant One is east,
though it is marked 2B aoes. Another a
little south of east which the defendant
wishes tbe Jury to guess Is the one intended,
and another nearly southeast Indeed, "50-
acre" tracts in tbat section are known to be
as thick as the traditional blackberry. Be-
sides, there is no evidence whatever that the
Unes of tbe 60-acre tract which the defend-
ant "guesses" is tbe correct one had been
surveyed at the time tbat grant No. 568 was
takm out It was stated on the argument
tbat in fact it bad not been, bat Cbat mere-
ly the east Une Hiereof bad been laid down
on a plot As tbe first line of said grant
was on tha east side of it, the west line of
tbat tract, which would be tbe Une tat which
the "stated* would necessarily b^ could not
be designated, and there was nothing to
show tbe shape of said tra<i^ or where the
west Une would be found. It Is Impossible
to find, a more uncertain caU than for a
stake. In the unsurvf^ed west Une, of a 60-
acre tract, which is not identified, whose
owner is not even knpwn* and the shape of
whldi was not indicated. The west line,
when finally surveyed, might be nearer or
farther from the east line of said tract Tbe
owner of tbe tract is not named, the west
line is not located, and "a 60-aae tracts* Is
common in that section, and three of them
are shown In this evidence to be somewhere
more or less east of grant Na 666.
It is true tbat In Cherry v. Slade, 7 N. O.
82, the court held that, when tbe boundary
of another tract is called for, It would be
considered a natnnl boundary and more
certain than course and distance, "provided
It be sufficiently established.'* In Lumber
Co. V. Hutton, 162 N. C. 637. 68 a E. 2, the
court held that when tbe course, distance,
number of acres, and plat are more definite,
and tbe appUcatton of the caU for the bonnd-
ary of anottier tract was inconsistent the
latter must give place to the former for
"the reason for tbe rule had ceased." The
rale In Cherry v. Slade is not a statute;
neither Is there any sacredness attaching to
it It was simply a Judicial expression of
the opinion that when under the circum-
stances the boundary of another tract offer-
ed more certainty than the oth& descrip-
tions, tbe call for the boundary should gov-
ern.
In Lumber Co. v. Button, 159 N. 0. 446, 74
S. E. 1056, it was held that the call for the
boundary should govern because additional
evidence bad been offered on tbe second
trial which showed that the boundary of an-
other tract was *'a well-recognlzed and es-
tablished line," and was ao found to be
by the Jury. But even then there were two
dissenting opinions, for tbe result bad been
to give tbe grantee 14 times the acreage
named in his grant and plat Tbat surely
should have been the ultima thule of the
doctrine; but if we are now to hold that
notwithstanding definite courses and dis-
tances and admitted comers, the call for a
stake In tbe unmarked boundary of an un-
located tract of an Indefinite owner is to
govern by the force of attraction, then In-
deed we are on a boundless and uncharted
sea, without course and distance, and with
the compass diverted from its direction by a
power without limit and an attraction be-
yond calculation.
The general rale has always been that
land must be located according to the pri-
marjr call, of tbe ^^,^^^y^f^
IA4>YI> T. NORTH OAROIJNA XL 00.
489
others more certain, and that an uncertain
description should yield to one which Is cer-
tain and less liable to disappoint the inten-
tion ot the parties. In the case at bar the
call for a Btfi.ke unmarked In the line of
"a 60-acre tract** is not a more certain call
and does not bring this case within the ex-
ception to the well-known general rule that
course and distance will govern, unlett the
line of another tract, which la "known and
established," is called for. To grant the de-
fendant's contention gives him 200 acres Isr
stead of the 100 acres which the state grant-
ed him and which he paid for.
Cherry t. Slade is not a general rule, but
It la OA eaoeption to the ifenerol rule and is
only to be applied In those cases In which
such exception Is called for by reason of its
furnishing greater ceiitalnty. The exception
should not destroy and swallow up the rule.
The description about which there Is the least
liability of error should be adopted to the
exclusion of the other. Oanipb^ y. Branch,
49 N. C. 3X8.
There was no evideDce by which the Jury
could locate "a" 60-acre tract called for in
the defendant's grants nor any evldeooe that
the west line of sndi tract, nor any line
thereof, had been nm and marked. The
course and distance in grant No. 066 were
not only the most certain mM.ns, but Indeed
the only means by whl<^ said grant could
he located, and his honor properly told the
Jury to follow the definite eouraee and dls-
tanen ther^ gtren.
BBOWK, eoBcnn in dIflHnt
ou Vr a. tf»
LLOYD T. NORTH CABOLINA B. Ca
et at
(Supreme Court of North GaroUna. Uay 28;
1913.)
1. Rbuotal or Gaubes (i> 3*)— Riobt ot Be-
KOVAL— STAtOTORY PROVISIOMS.
l^e purpose and effect of the RmeDdment
Mf 1910. [Act AprU 5, 1910, c. 143. 86 Stat
291 [U. S. Comp. St. Supp. 1911, p. 1325])
to the federal Employer's liability Act (Act
April 22, 1908, c. 149, 3S Stat. 65 [U. &
Comp. St Supp. 1911, p. 1822]), providing
that DO case arising thereunder and brought
Id sdv state court of competent jurisdictioD
shall ne removed to anj court of the United
States, waa to withdraw the right of removal
in cases arising nnder that statute when the
action has been institoted in the state court
and to require litigants desiring to have the
results of the trial reviewed by reason of
the presence of a federal Questlcni to proceed
by writ of error to the state court making
final disposition ot the cause In Its jnrisdic-
tL<m.
[Ed. Note. — For other eases, see Bemoral of
Causes, Cent Dig. H 4, 6; Dec. IMg. | S.*]
S. Rehotaz. OF Causes (t 86*)— Pbtxtioii
Showino Fbatjdulekt Atteupt to Pbe-
VENT RsnoVAL.
On an appUcation to remove a cause to
a federal court, plaintiff Is entitled to have
his cause of action considered as presented by
him in his complaiut, and, while a case may In
proper Instances be removed on' the ground
of false and fraudulent allegations of juris-
dictional facts, the petltloaer must not only
allege bad faith and fraud but such tacts
and circnmBtancea as are aaffldent, It true, to
demonstrate that plaintiff Is making a fraud-
ulent attempt to impose upon the court and
deprive the petitioner of bis right of removal,
notwithstanding the rule that, where the peti-
tion for removal contains sufficient facts to
require a removal, the state court cannot pass
upon or decide the issues of fact so raised,
this applying only to such issues as control
and determine the right of removal,
[Ed. Note.— For other cases, see Removal of
Causes, Cent Dig. U 132, 166~17ft; Dec. Dig.
i 86w»]
3. Removal of Causes (| 86*) — Vmnon
Showing Fbauduzjcnt Atixicft to Psb-
VEMT Bemotai.
Where sltboogh a petition by a foreign
railroad corporation to remove to a federal
coort an employe's action against It and a
domestic corporation whose road it leased al-
leged a fraudulent Joinder of the domestic
oorporatioB, and denied that plaintiff was en-
?:aged in interstate commerce, it appeared
rom a perasal of the pleadings and the ad-
missions of record not ineonslatent therewith
that plaintiff was in its employ as a locomo-
tive engineer, that he had been operating the
engine, detects in which caused the injury
sued for, over a portion of the leaaed road
used as a part of the petitioner's trunk line
and on to a point in another state and engag-
ed in moving interstate freight trains, Biat
the engine having been taken to the shops
for repairs was at the time ot the injury on
a side track connecting with the main hue
<^ the leased road ready for a trial trip to a
point in this state, and that plaintiff was in-
specting and oiling it for the purpose ot tak-
ing Buco trip and with a view of further serv-
ice for the petitioner. It waa not made to
appear sufficient to Justify a removal that
plaintiff Joined the domestic corporation and
based his action on the federal Employer's
liiabillty Act (Act April 22, 3908. c. 149, 36
Stat. [U. S. Comp. 8t Supp. 1911, p^
18221) fraudulently for the purpose of pre-
venting a removal.
[Ed. Note.— For other cases, see Removal ot
Causes, Cent Dig. || 1B2, 160-179; Dea
Dig. i 86.*]
4. COUKEBCE (I 8*)— POWEB TO RsaUUTK—
"INTSBSTATS COHUEBOE."
The term "interstate commerce" tndndes
Instrumeotalities and agencies by which it is
conducted and the power of Congress extends
to the regulation of such instrumentalities.
IndudlQg the right to legislate tor the welfare
of persons operating them.
[Ed. Note.— For other cases, see Oommeree,
Cent Dig. I 8 ; Dec. Dig. ( 8.*
For other definitions, see Words and Phras-
es, vol. 4, pp. 3724-3731.]
6. APPEAL AND ERBOB (| 027*>— BETIVW— AF<
FEAi. TBOM Nonsurr.
In reviewing a Judgment of nonsuit
where It appeared that plaintiff submitted to
a nonsuit in deference to the trial- court's
iotlmatitm that he had not made a case, the
case would be considered as presented by
plaintiff's allegations and evidence, and the
evidence would be Interpreted In the Ugbt
most favorable to him.
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. U 2912, 2917. 3748, 3768,
4024; Dea Dig. { 927.*]
I waiA topis sad ssetton NUHBSB In Dae. lUg. 4 Am. Dig. Key-If^^gii^ ^iL^^^C
*ror etbtf esssB i
n SOWBBA3tEB3it BEPOBTEB
A. MAsm ARD SxBTAnr (| 284*}— Actiokb—
SumomrcT or Etidbhcs.
In a railway engineer's action for in-
joriea agaiost his employer and another rail-
road corporation whose road it leased, where
It appeared that he was assigned for duty,
and had for lome time been engaged In haul-
ing trains orer that part of the lessee's sys-
tem which included a portion of the lessor's
road, that this was being done by the lessee
with the consent of the lessor and while op-
erating under the lessor's franchise, that at
the time of the injury the engine defects in
which caused the injury sued for was on a
siding connected at both ends with the main-
line of the lessor'^ road where it was being
oiled and inspected by plaintiff for the pur-
Eose of making a trial trip which could only
e done by passing over a portion of the
lessor's road a nonsuit aa against the lessor
was improperly granted, it being a permis-
sible inference from the facts that the
cause of action against it was well laid.
[Ed. Note. — For other cases, see Master and
Servant, Cent Dig. 1} 1000-1090, 1092-1132;
Dec. Dig. § 284.«]
7. Behoval of Causbs (| 79*)— Time tob
Applicatioh— Bfivct or Nonsuit as to
Oke Defendant.
While in an action against a resident and
m nonresident defendant. If pending the caoae
Slaintiff elects to discontinue as to the res-
lent party, the nonresident's right of re-
moval by reason of diverse citizenship then
ariacs, Um discontinnaiice must be Tolontary,
and thia nile did not appir whera tba nonaait
waa taken by plaintiff in deterance Co the trial
court's iotims^on that he had not made a
case, plaintiff was loidsting on his right to
have the nonsuit reviewed on appeal, and was
in a position to aaaert it.
[ISd. Note.— For other cases, see Removal of
Ganmi, Cent Dig. » 1% uS, ISB-ieOi Dee.
DIs. I 70.*]
Api>eal from Superior Oourt, Goilfbrd Onm-
ty; Peebles* Judge,
Aetioa b7 W. L, Lloyd against the Nortb
OaioUiift Ballzoad Oompanr and Qie Soutb-
em Railroad. Vrtm a judgment of noiunilt
as to the NorOi Carolliia Railroad and a
indgment removing tbe caose to tbe United
States court as to tbe Sontbem Railroad,
plaintiff appeals. Reversed.
Civil action, heard before Hon. R, B. Fe^
les, Judge, and a Jury, at February term,
1913. The suit originally Instituted against
the North Carolina Railroad, a corporation
of this state, having Its franchise and owning
a railroad property bere, and tbe Sontbem
Railroad, a corpora tI6n of tbe state of Vlr^
ginla, operating tbe road of its codefend-
ant under a 99'year lease, and which, among
other tbli^, prbrldes; "For the liability
of the Southern Railway Company for all
of Its acta and defaults In the operation of
said road" and for a deposit of "not less than
$175,000 in cash, or its equivalent, to be ap-
plied" to the performance of the stlpnlationa
in the contract of lease to be performed by
the lessee, and among them "to pay any
Judgments recovered in any court of the
state or of the United States when finally
adjudicated for any tort, wrong, injury, neg-
ligence^ default or contract, dooe^ made or
permitted by the parties of the second part.
Its successors, assigns^ empIoyCa, agents or
servants for which the party of the first
part shall be adjudged liable whether the
party of the first part Is sued Jointly with
or separately from the party of the second
part" The complaint alleged, and there was
evidence on part of plaintiff tending to show,
that a portion of the Nortb Carolina Railroad
Included in the lease, to wit, from Greens-
boro through Spencer to Salisbury, N. C,
was a part of the trunk Use of the Southern
Railroad from north to south "along and
over which It was and fs engaged by and
with the consent of the North Carolina Com-
pany In transporting Interstate commerce
from Virginia and all points of North to
South CaroUna, Georgia, and other points
south," etc.; that plaintiff at the time was
a locomotive engineer in tbe employment of
the Southern Railroad for the purpose of
transporting freight trains containing Inter-
state commerce from, to, and between "Spen-
cer, N. C, and Monroe, Va., and along the
main line of the Soutbon Railroad, a part
of whiidi said line Included that portion of
tbe North Carolina Railroad from Greens-
boro to Spencer," and had been for some time
prior to the occurrence ^igaged on this mn
with an engine, Na 679; that the mglne had
be«i taken to the ahapB of the Southern at
^)»ieer, and, having been overhauled and
r^ired. It waa on a side track near tbe
shops of the company, steamed up and
ready, and plaintiff waa engaged in oiling
and inspecting tbe same for the purpose of
presently making a trial trip to Barber's
Junction, a point In Nortb Carolina on t2ie
Western North Oarolina Railroad, some dis-
tance beyond Salisbury, and tbus to test
the engine with a view of fnrtbw service;
that while 80 engaged he received serious
physical Injuries by reason of some defects
in the structure or adjustments of the engine,
the same being attributed to the Diligence
of the defendant the Southern Railroad, the
facts as to negligence and the nature and
extent of the Injury being given; that this
particular ^glne had been for some time
engaged In the through freight service from
Spacer, N. C. to Monroe, Va., and since
plaintiff was Injured It had been doing the
same work; that plaintiff was assigned to
the vroA, and had been engaged In it till
his engine was taken to tbe shop for repairs
and during that time the plalntifl bad no
regular run.
On his cross-examination and speaking to
the circumstances of bis employment and
duties, the witness, In answer to questions,
said: "Q. Where you were going or whether
you were to do work running Inside or out-
side of the state you did not know? A. I
was marked on the division from Spencer to
Monroe. I knew I was to do any kind of
work that I stood for, relief work for other
men running on this line I was assigned to.
I was not supposed to mn to Barber*s Junc-
•rer ethsr csmb m same toplo sad smUob KUHBBR la Dm. ZHg. « Am. Dig. ^•rr!^99'if^>^^€t^A
LLOYD T. NORTH
CAROLINA R. CO.
491
aon. My assignment was Apt that way. If
I had been caJUed to go to StatesvUle nnder
the saperrlsion of a competent man, I would
have gone, or to Wllkesbora I would bare
gone anywhere In the state if they had sent
a competent man to carry me there and bring
me back. I didn't know the road. I went
to Selnia occasionally. I think I went to
Goldsboro one trip and carried a switch
engine; that Is in North Carolina. Q. I
ask you If it was not your habit to go any-
where your call was indicated by the com-
pany as an extra engineer? A. I didn't be-
long to go there. It was left discretionary
whether I did go. Q. Wasn't it your habit
to go whererer they called you to go as an
extra engineer? A. No, sir. Q. Did you ever
refuse to go? A. Tes, sir. Q. Where? A.
A good many different places. I refused to
go on the branch road. I refused to go to
the western part of North Carolina, Ashe-
TtUe, and I refused to go to Charlotte. I have
run on the road from Selma to Monroe. That
la on this division.- I mn between Selma and
Norfolk when the division extended there.
All the men had to run Into Tirglnla out of
Selma. At the time I was hurt I was not a
legDlar engineer with a regular mn." And,
speaking of the place of the injury, the wit-
ness said: '^e engine was standing on a
side track at or near the cinder pit of the
company about half way between the ^ops
and the main line of the North Carolina Rail-
road and more than a hundred feet from said
main line and the sAde track connected with
the North Carolina Railroad at the north
end of the Spencer yards and with the donble-
track part of the North Carolina Railroad on
the south part of the Spencer yard leading
to Salisbury, and there was no way of getting
oft that side track and onto the main Une
except over the North OaroUna RallToad."
In apt time, and accompanied by a proper
bond, the defendant the Southern Railway
Company filed its petition for removal, duly
verified, setting forth its position as to Hm
exact nature and proper place of the occnr^
rmce and containing averment that plaintUF
was an employ^ of the Southern Railroad,
and not otherwise, as locomotive engineer, his
du^ being to engage In his work as directed
and at any place on the lines of the com-
pany ; that the exact place of the occurrence
was on the yards of the company near its
shops, the same having been purchased and
owned by the company and the shops bnllt
and used for repair and other work for en-
gines and cars used on all portions of the
company's system; that It was entirely off
the right of way of the North Carolina Rail-
road and formed no part of that company's
property; that the engine In question was
subject to he used on any of the roads of the
Southern and at the time of the Injury It
was on this conymny's proper^ preparatory
to taking a trial trip by Sallsbary and on to
Barber's Junction points entirely within the
state of North CaioUna, and that iio.frelght
was to be handled by said ^glne at said
trip, and no cars of any kind were to be at-
tached thereto; that all these facts were
well known to plaintiff when he Instituted
his suit and 'filed his complaint, and that
said North Carolina Railroad Company had
been fraudulently Joined in said suit, and
the allegation that plaintiff wa^ at the time
engaged tn Interstate commerce had been
falsely and fraudulently made with the sole
purpose of preventing a removal of the case
to the federal courts and with no bona fide
puipose of obtaining the relief against said
North Carolina Company as stated in the
complaint
On this matter the express avennents of
the petition were as follows: "Your petition-
er says that the plaintiff at the time he re-
ceived tbe injuries complained of was an em-
ploye of your petitioner, and not an employ^
of its codefendant, the North Carolina Ball-
road Company, and was not, and never had
been, an employe of the said North Carolina
Railroad Company, and that all the said
facts herein set forth, with reference to the
lease, the location and sttoatlon of the cln-
Aer pit and aide trac^ and the duties which
plaintiff was to perform on the day in qnea-
tlon, were well known to plaintiff when this
action was bronght and complaint filed.
Your petitioner further says that to avtdd
the removal of this case by it to the federal
court tbe plaintiff Joined the North Carolina '
Railroad Company, a North Carolina corpo-
ration, and fols^y and fraudulently alleged
In his complaint that the side tratA upon
whl<A the engine was located at the time he
was Injured was *one of the side tra^s of'
the North Carolina Railroad Company's main
line at Spencer,' and falsely and likewise
fraudulently alleged la his complaint that he
suffered injury whUe aiQployed by your petl- :
tloner In interstate commerce, and falsely
and frandulenOy allies that he was engaged
In Interstate commerce at tbe time of his
Injury, and that said engine was likewise
so engaged, when, at the time eald allegations
were made, plaintiff well knew Hiat they
w»e untm^ or could; 1^ flie exercise of tha
qllghtest diligence, have aac^talned tbe true
facta In connection therewith, and your petl-
tloner farther statea that i^alntlfC did not
and does not expect to establish said all^-
tion^ and did not make th&a tot the purpose
of proving them at tbe trial or sabstantlat-
ing his cause of action therewith, but made
them solely fbn tbe purpose of a^z^ vp a
joint cause of action against the defendants
as lessor and leasee, and to state a cause no-
der tbe lknployer*B X^ral UabUlty Act In
order to make, a case which would not be
removable to the fedend court" Tbe peti-
tion for removal having been denied at De-
cember term, 1911, tbe petitioner excepted
and appealed, but without prosecuting Its
appeal, and, reservihg any and all exceptions
to the ruUngs of the court the defaidanti '
answer a^taltt Mtttnc W tte ucaet aataMy.
Digitized by V^OOQlC
7S SOUTHBASI^tlN BBPOBTEB
and place of tbe occurrence as claimed by
them, and denied any and all liability on the
part of the North Carolina Railroad Com-
pany, and tor both companies denied any
and all negligence and setting up the defense
of contributory negligence, etc The cause
coming on for trial on the Issues so raised at
February term, as stated, at the close of
plalntUTs evidence and by reason chleQy of
the place of the occurrence as described by
plaintiff, the court having intimated "that
there was no case made out against the
North Carolina Railroad Company, the plain-
tiff takes a nonsuit as to said North Car-
olina Railroad Company." See jndgment
Thereupon defendant the Southern Railroad
filed Its second petition for removal accom-
panied by proper bond on tlie ground of di-
versity of citizenship, and renewing its alle-
gation of fraud in general terms, and chiefly
reference to the former petition.
The court entered Judgment removing the
case, and plaintiff excepted and appealed, as-
B^lng errors as follows:
"Plaintiff's exception No. 1. For that tbe
court permitted the defendant Southern Rail-
way Company to file a new petition and
toaA for the removal to the federal court.
"Plaintiff's exception No. 2. For that the
court entered an order removing tbtt cause to
the federal court for trlaL
"Plalntlfl'B exception No. 8. For that tbe
court held that there was no sufficient evi-
dence against the N(»th Carolina Railroad
Company to entitle the plaintiff to recover
as against It, and for that the court dismiss-
ed the action as to the North OaroUna Rail-
road Company and removed the cause to the
federal court for trial as against tbe other
d^endant the Soutbem Ballwrny Oompany."
A. L. Brooks and Sapp ft Hall, all of
Greensboro, for appellant Manly. Hendren
ft Womble, of Wlnston-Balem, and Wilson ft
Ferguson, of Greensboro, for appellees.
HOKB. J. (after stating the facta as
above). [1] The plaintiff In evpress terms
bases his cause of action on tbe federal E&n-
ployer's LlablUty Act April 22. 1908, c. 149,
3S Stat 65 (U. S. Comp. St »app. 19U, p.
1322), as amended by Act April 6, 1910. a
143, 36 Stat 291 (U. 8. Comp. St Supp. 1911,
p. and in bis complaint makes allega-
tion suffictent to establish llablUty on the
part of both of defendant companies. The
statute in qnestloB. confers a ilgbt of action
against all cqnunon carriers by railroad en-
gaged in intentate onnmeree and In Cavor
Of all employte while engaged In sndi com-
merce^ or their r^ireaentatlTe^ when Injor-
ed w Ullsd br reason of the "negligence of
any oflleers, agents^ or employes of sodi ear*
ria>, or hy reason of any defect or Insnffl-
dsocy* due to its n^tffgoice^ In Its ears; en-
glnai.'an>lianees» niacbln«T> toack, roadbed,"
ways or wwks. The law in qoestlon has
leoebrad fun oonildamtloD Owfiou
preme Court of the United States in several
cases reported in 223 \3. 8. 1. 32 Sup. Ct 169,
06 U Ed. 327, 38 B. A. (N. S.) 44, styled
the "Second Employers' Liability Cases," and
It was there held amoflg other things that
the same Is constitutional, tlut its provi-
sions and regulations have snperseded the
laws of the several states In so tax as the
latter cover the same field, and that rights
arising under the regulatioas prescribed by
the act may be enforced as of right in the
courts <Jt the states, where their Jurlsdic-
tlott as fixed by local laws Is adequate. And
the amendment of 1910 contains proviston
that: 'fThe Jurisdiction of the courts of the
United States under this act shall be coo-
current with that of the courts of the several
states," and "no case arising under this
act aiid brought in any state court of
competmt jurisdiction" shall be removed
to any court of the United States. Act
AprU S, 1910. C. 143, 30 SUt 201 <U. 8.
Comp. St Supp. 1911. p. 1S25). It was no
doubt the purpose and effect of tbtis amend-
ment as its terms dearly Ipiport to withdraw
the right of removal In cases arising under
tbe statute when the action has been Insti-
tuted in the state court and to require that
litigants desiring to have the resnlts of the
trial reviewed by reason of the presence of a
federal question, etc, shall proceed by writ
of error to the state court making final dls-
posltlou of tbe ca,use In its Jorisdiction. AU
tbe decisions to which we were referred up-
holding the right of removal in such cases
—Lemon, Adm'r. v. L. ft N. B. R., 137 Ky.
276, 126 8. W. 701; Calhoun v. Ontral of
Georgia, 7 Ga. App. K28. 67 S. B. 274, and
others— were causes disposed of prior to the
am^dment and whldi no doubt gave rise
to its enactment
[2] And li^ as defoidants contend, the same
right of removal exists as in cases of fraudu-
lent joinder of a resident with a nonresident
defendant tbe application should be denied
in this instance On this qaestlon the au-
thorities are to the ^ect that when viewed
as a legal proposltlou, tbe plaintiff is entitled
to have his cause of action considered as he
has presented it in his complaint (Railroad
V. Miller, 217 U. 8. 209, SO Sup. Ct 450, 64
L. Ed. 732; Alabama v. Thompson, 200 U. S.
206, 26 Sup. Ct 161, 60 L. Ed. 441, 4 Ann.
Gas. 1147; Dougherty t. Railroad [C. C.1
126 Fed. 239), and while a case may in prop-
er Instances be removed on the ground of
false and fraudulent allegation of Jurisdic-
tional facts, the ri^t does not exist nor Is
the question raised by general allegation of
bad faith, but only when, in addltton to the
poflltlve allegation of fi«ud, there la fall
and direct statement of the facts and dr-
cnmstancea of the transaction sufficient. If
teaa, to demonstrate "that the adverse part^
Is making a fraudulent attempt to impose'
vpon the court and so deprive tbe applicant
of 'hia right at removal** (Bea ir-Mlrror Osi^
UiOYD t.'MOBTH
CAROLINA B. 00.
493
1S8 N. a 24-2T« T3 S. E. 116. and authorities
died. Dotably Kansas City R. B. tI Herman,
187 U. S. 63, 23 Sup- Ct 24, 47 L. Ed. 76;
Poster V. Gas & Electric Co. [C. a] 185 Fed.
979; Sbane v. Electric By. [C. Q] IDO Fed.
801; Knuth t. Electric By. [C. C.] 148 Fed.
73; Thomai v. Great Northern, 147 Fed. 83,
77 C. C. A. 255 ; Bought t. BaUroad. 144 N. C.
701, 57 S. E. 460; Tobacco Co. t. Tobacco
Ca, 144 N. C. 362, 67 S. E. 5; lU. B. B. v.
Houchlns, 121 Ky, 626, 89 S. W. 530, 1 L.
B. A. [N. S.] 875, 122 Am. St Bep. 205;
So. R. R. r. Grizzle, 124 Ga. 736, 53 S. E. 244,
110 Am. St Rep. lei). True, It Is now uni-
formly held that when a Terified petition for
removal is, filed accompanied by a proper
bond and same contains facts sufficient to re-
quire a removal under the law, the jurisdic-
tion of the state court Is at an end. And In
snch cases It Is not for the state court to
pass upon or decide the Issues of fact so
raised, but It may only consider and deter-
mine the sufficiency of the petition and
the bond. Herrlck t. RaUroad, 158 N. G.
307, 73 S. E. 1008; Chesapeake v. McCabe,
213 U. S. 207, 20 Sup. Ct 430, 53 L. Ed.
766; Wecker t. Natural Enameling Co.,
204 U. S. 176, 27 Sup. Ct 184, 61 li. B. A.
430, 0 Ann. Gas. 757. Bnt this position ob-
tains only as to such Issnes of fact as con-
tnd and determine tlie right of removal,
and on an application for renioval by reason
of fraudulent Joinder, such an issue la not
presented by merely stating the facts of the
occurrence showing a right to remove, even
though accompanied by general avenarat of
fraud or bad ^th, but, as heretofore stated,
there must be full and direct statement of
facts, Boffldent, If troe, to estaUlsb or dem-
onrtrate the firandnlent purpose. Hough t.
Railroad, 144 N. G. 682. 57 S. B. 469; To-
bacco Co. T. Tobacco Co., 144 N. 0. 352. 67
8. E. 5; Shane t. BaUway (a a) 150 Fed.
801. In Bea t. Mirror CO., supra, the prln-
diOe was applied where plaintiff had sued
a nonresident corporation doing a mannfac-
tnrlng business In this state to recover for
physical Injuries suffered hy plaintiff, and
allied to be by reason of some negligence
of the company In the operation of Its ma-
chinery and a resident employ^ was Joined
as codefendant The nonresident company in
apt time filed Its duly verified petition, ac-
companied by proper bond, setting forth
the facts of the occurrence with great fullness
of detail, charging a fraudulent Joinder of
the resident employ^ and containing aver-
ment further that "said employ^ was a mem-
ber of the company's clerical force In the
office of the company, having nothing what-
ever to do with the machinery or Its man-
agement and that he was not present In the
factory at the time of the Injury." ^e peti-
tion for removal was allowed, the court being
of opinion that, if these facts were estab-
lished, it would make out the chaise of
fraudulrat J<toder» and bring the 'case wittip
in the principle of Wecker v. Natural Enam-
eUng Co., 204 U. 8. 176, 27 Sup. Ct 184, 61
li. Ed. 430, 9 Ann. Cfta. 757, but no snch fiuits
are presented here.
[)] While the petitioner alleges a fraudulent
Joinder of the North Carolina RaUroad, and
denies that the plaintiff was engaged In inter-
state conmierc^ etc.. It will appear from a
perusal of the pleadings and the admissions
of record not Inconsistent therewith that
plaintiff at the time of the injury was an em-
ploye of the defendant as locomotive engi-
neer ; that he had been operating the engine In
question over a portion of the North Carolina
BaUroad used as a part of the north and
south tmuk line of the Southern Railway
and on to Monroe, In the state of Virginia,
and engaged in moving Interstate frdght
trains; that this engine, having been taken
to the shops for repairs, was at the precise
time of the Injury on a side trach connecting
with the North Carolina Railroad main Uue,
ready for a trial trip to Barber Junction, and
plaintiff was engaged In Inspecting and oil-
ing said engine for the purpose of taking
said trip and with a view of further service
for the company.
14] It has long been understood that the
term "Interstate commerce" will Include the
Instrumentalities and agencies by whldi the
same Is conducted, and that the power of
Congress will extend to the regulation of
these Instrumentalities, Including the right
to legislate for the welfare of persons oper-
ating the same (Employers* liability Cases,
223 U. S. 1, 32 Sup. Ct 169, 56 L. Ed. 327,
38 L. R. A. [N. S.] 44 ; Interstate Commerce
Commission v. IlL Central B. R., 216 U. S.
452, 30 Sup. Ct 156, 54 Lu Ed. 280); and
from the admitted facts of defendant's peti-
tion and some of the recent decisions con-
struing this statute, and that entitled Safe-
ty Appliance Act (Act March 2, 1893, c. 196^
27 Stat 531 [U. a Oomp. St 1801, p.. 8174]).
said by. an inteUlgoit writer to be oif great
aid to the proper construction of the former
(Thornton on Employer's liahlUty and Safe*
ty and Appliance Act [2d Ed.] p.- 40), there
Is grave reas<m to doubt if plaintiff's allega-
tions as to the character of this transacOcm
are not properly made (Southern By. t. U.
S.. 222 U. 8. 20, S2 Sop. Ot 2; 56 L. Ed. 72;
Johnson v. So. Pac R. B., 196 U. 8. 1* 20
Sup. 158, 49 L. Ed.>863; Thornton [2d
Ed.] p. 60 et seq.), and assiunedly it may not
be said that the charge of ftaud most be
necessarily inferred.
[S, I] As to the Judgmmt of nonsuit inb**
mltted to by plaintiff in deference to an ad-
verse intimation of his honor bere^ we are
required to consider the case as presoited
by the allegations and evldoice of the plain-
tiff and interpret sudi evidence in the light
most favorable to him. Hoaderson v. BaU-
road, 169 N. 0. 581, 76 S. E. 1082, and Deppe
V. Ballroad, 152 N. G. 79, 67 S. E. 262, and,
considering the ncord «B, t!f»t,^^^gg.^J^^
494
78 SOUTHEASTERN REPOBTEB
(N.G.
appear tbat plaintiff at tbe time of the In-
jury was an employs of the defendant tbe
Soathem Railroad, assigned for duty over
that part of the line from Spencer, N. C,
to Monroe, Ya., and had for some time been
engaged on engine 579 In hauling interstate
freight trains over this part of the Soathem
S7stem and which included that portion of
the North Carolina Railroad between Spencer
and Greensboro ; that this was being done by
the Southern road with the consent of the
North Carolina Railroad, and while operating
under the frandiise of that company; that
at the precise time of the Injury the engine
was on a siding, and while ott the right of
way of the state road the siding was con-
nected with the main line of such road at
either end, and the engine was being oiled
and Inspected by plainticr with the present
purpose of making a trial trip from Spencer
to Barber Junctioii, whldi could only be
done by passing over a portion of the state
road, and It was always necessary for en-
gines repaired in said shops to pass over the
lines of the North Carolina road In order
to get on the other lines of the Southern.
Without present and final decision of the
question thus presented, we are clearly of
opinion that It Is a permissible Inference
from these fticts that as to the North Caro-
lina Railroad also the plaintiff's cause of
aetton Is well laid and the order of nOnsolt
must be reversed. Southern t. U. S., 222 U.
S. 20, 32 Sup. Ct 2, 66 L. Ed. 72; Logan T.
B. R^ 116 N. a 940. 21 S. B. 9S9.
[7] Having held that ttie cause h^s been
erroneously nonsuited as to the North Caro-
Uns Railroad Company, thie petition for re-
moval on the ground of divustty of dtlzen-
Mp, tin second petition Is necesBailly de-
nied, and In any evoit tUs would be the cor-
rect view. It Is tme that when a salt has
been Instituted against a resident and a non-
resident defendant, and pending the cause
plaintiff elects to dlscontlnne bis suit as to
tbe resident party, the right of removal by
reason of diversity of dtizensliip will then
arise to the other. Powers v. Railway, 169
n. a 92, IS Stikh Ot 264, 42 L. Ed. sts.
Bat that Is when Hie dlscontluaance is by
the voluntary action of tbe plaintiff and does
not obtain when tbe nonsnit has been taken
In deference to an adverse intimation of the
court and tbe plaintUf is Insisting on bis
vlgtat to bavB tbe same reviewed on appeal
and Is In a position to assert It This we
think la a fair interpretation of the record.
The court having made tbe entry and en-
tered same In the Judgment that the nonsuit
was taken in deference to an adverse Intima-
tion of tbe court and plaintiff having mttde
this as one of his assignments of error. In
such case the ord» of nonsuit must be con-
sidered as having been taken in Invitum.
(Hayes v. Railroad, 149 N. O. 131, 62 S. E.
416 : Hobley v. Watts, 96 N. a 284, 8 S. B.
677), bringing tbe case within the principle
of Whltcomb V. Smlthson, 175 U. S. 636. 20
Sup. Ct 248, 44 Ed. 303, and requiring
that the rl^t of removal should t>e made
to depend upon conditions existent at the
time of filing the first petition.
There is error, and this will be certified
that the order of removal and order of
nonsuit be set aside and tlie cause restored
to the dodcet for trial as originally Insti-
tuted.
Reversed.
(SON. c. 4M)
HOBTON V. 81BAB0ARD AIB IJNB B. GO.
(Supreow Cmrt ot North Carolina. May 28»
1913.)
1. Masieb and Sebvant <| 204*) — iNJuaiES
TO Sebvant— Fedebal Euploxbb's Liabh.-
rrr Act.
Und^r Federal Eknployer's Liability Act
(Act April 22, 1908, c. 149, { 4, 85 Sut 66
[U. S. Comp. St Supp. 1911, p. 1323]), provid-
ing that In any action brought against any
common carrier under this act the injured
employ^ shall not be held to have assumed the
risks ot bis employment in any case where
the Tiolatioo by such common carrier of any
statute enacted tor the safety of the employ^
contributed to the Injury, the term "statute",
means any federal statute, and, in the absence
of such statute, an employ^ may assome the
risk of injury.
[Ed. Note.— For other eases, see Ifaster and
Servant Gent Die 11 644-646; De& Dig.
8 204.*]
2. MASm AKD SKBTAHT (| 204*)— iRflnxBS ■
TO Sebvaitt— Fbdxbal. Emplotbb's Liabil-
ITT ACT—AsSmiPTIOW OP RISK.
In an action nnder the Federal Eknploy- '
er's liability Act (Act April 22, 1908. a 140.
35 Stat 66 [U. S. Comp. StTSopp. 1911, p.
1322]), the question whether the employ^ as-
snmed the risk la to be -determined by construe- '
tion of tbe whole statute under the rules laid '
down by the federal Supreme Court
[Ed. Note.— For other cases, see Master and
Servant Cent Dig. R 644-M6; Dee. Dig. {
204.*]
3. STATirrKs (t ^*)— CoNSTBuonoir.
Statutes should receive sach a constraetlon
as will accord with the legislative intuition, as
gathered from the whole act
[Ed. Note.— For other cases, see Statutes,
Ont Dig. I 282; Dee. DlTl 206.*]
4. UASTEB and SsBVANT (I 288^IVJUBnB
TO BEBVANiv-AssrniimoiT or Rise— Qucs-
TION VOB JlTBT.
In an action against a railroad company by
an engineer whose eye was injnred by the
explosion of an unguarded water range, the
question whether be complained of the absence
of tbe guard and continued to nse it under a
promise of repair held one for the Jury.
[Ed. Note.— For other cases, see Master and
Servant Cent Dig. H 1068-1088; Dec. Dig.
S 28&*]
6. Masteb and SntVAirr m 221*>— Titjttbibs
TO SsBVAnr— AssnHPTiON or Bibk-^^-
fzx>teb's Liability Act.
Id an action under the Federal Employer's
Uability Act (Act April 22, 1908. e. 149. 85
Stat 65 tU. a Comp. St Supp. 1911, p. 1322])
a^inst a railroad company, brought by an ea-
eineer whose eye was injured by the ezplosioq,,
of an unguarded water gauge, the engineer by
using the engine in that condition assumed tbe-
•Ver^tlMr «ss«i SUM topis and sestkm NVlIBBa la XtaSi Plfr ^ Anu Dig. Kf^^er.S^^siUHtw'rlateKM ;
' ' " ■ " ' ■' ' ' Digitized by VjOOglC
EOBTON SEABOABD AIB JJXTS K. 00.
496
risk of Injury, tinleas he complained to the
proper Berrant of the master and was assured
tiiat the defect would be remedied, la which
case he was justified in continuing to use the
engine for a reasonable length of time; conse-
Juentir, a charge to that effect, which also in-
ormed the jury that he assamed the risk of
injury if the defect was so dangerous that a
reasonable man would not continue to use the
engine is more favorable to the railroad com-
fiany than is proper.
[Ed. Kote.— For other caaee. See Master and
Serrant. Cent Dig. i| 68fr-646, 642-645; Dec.
Dig. I 221 •}
9. TEIAI. ({ 261*)— IkSTBUCTIONS— EutONSOUB
Bequests.
Prayers for Instructions directed to the
wrong issue are properly refused.
[Ed. Note.— For other cases, see Trial, Gent,
OflO> ^> 678. 67S; Dee. Dig. i
Brown, 3^ dissenting.
Appeal from Suiwrior Coart, Wake Goanty;
Fergnson, Judge.
' Action by John T. Horton against the Sea-
board Air Line Ballroad Company. From a
judgment for plaintiff, defendant apMls. At-
firmed.
This Is an action brought under the Feder-
al Employer's Liability Act, to recover dam-
ages for Injury to the plalntlCTs eye, caused
by the explosion of a water glass on a loco-
moUre engine. The plaintiff, at the time of
the Injury, had been employed by the 4ef6nd<
ant as ^iglneer for a period of six years,
and as fireman for three or four years .prior
to Us ^omotlon. The engine. No. T62, which
plaintiff was c^ieratlng, was e^alpped wim a
Iiatented water g^ass, called Uie "Buckner
Water Glass,'* which was so oonstractad that
a thick guard glase was placed vnx the
front of the water glass to protect the eyee
of the engineer in the erent the inner glass
Bhonld splode. The engine was also
eQolpped with an altematlTe method of de-
termining the amount of water In the boiler
by means of gauge cockB. The plaintiff was
called on to take this engine July 27, 1910,
and on August 4, 1010, while engaged in
shifting cars at Apex, N. C, the water glass
exploded and Injured his Immediately
after the explosion the fireman cut off the
gauge glass at top and bottom, and the en-
gine waa operated to Balelfl^ with the gauge
cocks as the means at determining the
amount of water In the boUer. The guard
glass referred to as part of the Buckner
eqalinnent Is a thick piece of glass two or
three Inches wide and eight or nine Inches
long, with a thlckuess of a quarter or three-
eighths of an Indi, according to plalntifTs
testimony, and Is detached from the gauge,
being idaced In slots arranged for the purpose
of holding it. The Buckner gauge la a brass
tube, with an opening In front and containing
a small glass tube.
The plaintiff testified that "the shield or
guard glass la Important as a protection to
the. engineer's eyes; that is aU it Is for."
•ror outer eases see same tosls and ssotkm NUIIBHR In Dae. XMs. A Am. Dig. Kt/j-IQi^aaM^
"I knew the shield was gone, and I knew
it was put there for the safety of anybody
on the engine." The plaintiff also testified
that after taking out the engine on July 27,
1910, he returned on July 28, 1910, and then
told the roundhouse foreman of the defend-
ant, to whom reports of defects ought to have
been made, that the shield or guard glass
was gone and he wanted one, and that the
foreman replied that they had none in stock,
to run the engine as It was, and he would
send to Portsmouth and get him one; that
he knew there was some danger In operating
without a shield or guard glass, but that he
was told by the foreman to go ahead with-
out It, and if he had not done so be would
have lost his job. The foreman denied that
any objection or complaint was made to him.
There was evjdence by the defendant tend*
lug to prove that it was the duty of the plain-
tiff to shut off the water glass, when he
discovered the absence of the shield or guard
glass, and to run with the gauge cocks, and
that this could be done without danger and
successfully.
The defendant requested the following In*
structlons on the Issue as to assumption of
risk, and excepted to the refusal to give
them as requested: "(1) The court (barges
you that If you believe the evidence the
plaintiff assumed the risks of the injury from'
tbB explosion of tiie water glass, and yon wDl
answer the second issue, 'Yea.' (2) The Tight
of the plaintiff to reoorer damages In this
action Is to be determined by the provltions
the Federal Slmployw*e IJahllity Act, en-
acted by Col^rtes at tlie session of 1908t and
the court dhargee yon that If yon find by a
preponderance of evidence that the water
glass on the engine on which plaintiff waa
employed was not provided with a gnard
glass, and the condition of the glass was
open and obvious and was fully known to the
plaintiff, and he continued to use' sudh wMer
glass with such knowledge and wittumt eb-
jection, and that he knew the risk incident
thereto, then the ooort charges yon that the
plaintiff voluntarily assumed the risk Inci-
dent to sadi naa, and yon will answer the
second Issue, 'Yea.' ^ If yon find by the
greater weight of the evidence that the water
glass was defectlTe^ and that the plaintiff
knew of the condition of the water glass on
the engine^ and the danger incident to Its
use, and that there was open to him a safe
way of operating the said engine by nslng the
gauge cocks, and that he voluntarily used the
water glass In operating the engine, the court
charges you that the plaintiff assumed the
risk of Injury from the use of the water
glass, and you will answer the second issue,
'Yes.' (4) If you answer the first issue, 'Yes,*
then the court charges you that If you find
by the preponderance of the evidence that
the plaintiff knew of the condition of the
water glass on the engine, and that he could
406
78 SODTHBASTEBN REPORTS
(N.a
ban ahot off the glass and operated Us
engino with safety by using the gauge cocks
oa the said engine, and that the plaintUt
with ench knowledge, failed to shut off the
glass and use the gauge cod^^ then the conrt
charges yon that the plaintiff assomed the
risk of injury, and you will answer the
second Issue, 'Tes.' (S) If you answer the
first issue, *Yee,' then the court charges yon
that If you find by a preponderance of the
evidence that the absence of the guard glass
and water gauge was open and obvious and
was fully known to the plaintiff, and he con-
tinued to use the said glass with such knowl-
edge, and that the plaintiff reported the
defect and was given a promise to repair,
and you further find that the plaintiff knew
and appreciated the danger Incident thereto
and that the danger was so obvious that a
man of ordinary ivudence would not have
continued to use the gauge without the guard
glass, then the court charges you that the
plaintiff assumed the risk, and you will
answer the secoud issue, 'Yes.' "
The Jury returned the following verdict:
Was the plaintiff injured by the negU-
gence of the defendant^ a^ alleged In the
complaint? Answer: Yes. (2) If so, did the
plaintiff assume the risk of injury, as alleged
in the answer? Answer: Mo. (3) Did the
plaintiff by his own negligence contribute to
his Injury, as alleged In the answer? An-
swer; Yes. (4) What damages. It any, is
the plaintiff entitled to recover? Answer:
$7,600.0a"
Judgmoit was entered upon the verdict,
and tJw defendant ezoepted and appealed.
Morray Allen, of Balelgh, for appellant.
Douglas & Douglas, W. B. Snow, J. W. Bonn,
and R. N. Slmms, all ot Ralel^ for appel-
lee.
ALLEN, J. Tbia action la to recover dam-
ages under the Federal lEmtdoyer's Liability
Act; and the prlncW question raised by the
appeal Is as to the appUcatl<Hi of tte doc-
trine of assnmptlcm of risk.
[1-1] The act abolishes contributory negli-
gence as a defense, and Instead introduoee
tike doctrine of comparative negligence, and
It has the following provision as to assump-
tion of risk: "Sec. 4. That In any action
brought against any common carrier nnder
or by virtue of any of the provisions of this
Nct to recover damages for injuries to, or the
<Jeath of, any of its employes, such employe
shall not be held to have assumed the risks
of his employment in any case where the vio-
lation by such common carrier of any statute
enacted for the safety of employes contribut*
ed to the injury or death of such employ^."
It is contehded by the defendant, and may
be conceded, that the term "any statate" in
the section quoted means any federal statute,
and that the assumption of risk Is to be ap-
plied toj a oonstrnctton of the whole statute
and undflt the rules laid down Iqr tito
Supreine Court ot 0» United States. Stat-
ntea should receive such a construction as
win accord with tlie legislative intention, as
gathered from the whole act (UcKee v. IT. S.,
IM U. S. 287, 17 Sup. Ct 92, 41 L. Ed. 487),
and, when the act under conslderatloii la so
construed, It Is at least debatable whether
assumption of risk should be admitted as a
defense In any- action brought under Its pro-
visions. It soys that contributory negligence
on the part of the employe (that Is, negli-
gence which proximately causes the Injury,
because no other negligence Is contributory)
"shall not bar a recovery," and it would ap-
pear to be Incongruous to admit as a defense
assumption of risk which Is based upon the
fiction that the employe has assented to
assume the risk of the particular Injury, and
yrbea the facts relied on to prove assumption
of risk generally enter Into and are a part,
but not all, of those necessary to sustain a
idea of contributory negligence.
Mr. Justice Holmes considers the converse
of this proposition in Schlemmer v. Rail-
road, 2TO U. 8. 1, 27 Sup. Ot. 407, 51 L. Kd.
681, In discussing a statute which abolished
assumption of risk, and admitted conitrlbu-
tory negligence as a defense, and he points
out the distinction between the two and
shows that the latter usually Includes the
former, and be also sounds the note of warn-
ing, which may well be applied here, that
under statutes so framed one plea may be
abolished by name and be reinstated under
another name. He says: "Assumption of
risk in this broad sense obviously shades lUr
to negligence as commonly understood. Neg-
ligence consists in conduct which common
experience or the special knowledge of the
actor shows to be so likely to produce the
result complained o^ under the circum-
stances known to the actor, that he Is held
answerable for that result, although It was
not certain, intended, or foreseen. He Is held
to assume the risk upon the same ground.
Choctaw, Oklahoma & Gulf B. R. Co. Mc»
Dade. 191 U. S. 64, 68 [24 Sup. Ct 24. 48 U
Ed. 96.]. Apart from the notion of contract,
rather shadowy as applied to this broad form
of the latter conception, the practical dif-
ference of the two ideas Is in the degree of
tbelr proximity to the particular harm. The
preliminary conduct of getting into the
dangerous employment or relation Is said to
be accompanied by assumption of the risk.
The act more immediately leading to a
specified accidMit is called negligent But
the difference between the two Is one of de-
gree rather than of kind; and when a
statute exonerates a servant from the former,
if at the same time It leaves the defense of
contributory negligence still open to the mas-
ter, a matter upon which we express no opin-
ion, then, unless great care be taken, the
servant's r^hts will be aacriflced by alm^j
charging him with assumptira^of tJM illk
under another name.- g,^,^^^ GoOglc
I
HOBTOK T. SKA^AftD AIR LIMB |L 00. 497
Iiri the case before us^ to sustain ttie plea
of asBumptloD of risk, tbe defendant under-
took to prove that the plaintiff contlnned at
work, without objection, having a knowledge
of tbe defect and apprehension of the danger,
anU to sustain the plea of contributory negli-
gence It relied on the same facts, and the
additional one that the plaintiff neglected to
shut off the water glass and to use the gauge
CQ^a. But, however this may be, we will
consider the question presented from the
standpoint of the defendant, and as we have
not been referred to any federal statute as to
defective appliances, the violation of which
contributed to the plalntUTa injury, we will
assume that the defendant Is entitled to tbe
betfeflt of the doctrine of assumption of risk
as declared by the Supreme Court of the
United States, and will undertake to apply
that doctrine to this ease.
[4, 1] That court enforces the rule that it
is the duty of the employer to provide rea-
sonably safe and adequate machinery and
appliances for tbe use of the employ^ and to
keep and maintain them in such condition
and that a failure to perform this doty Is
n^Ugence. Gardner r. Railroad, 150 U. S.
349, 14 Sup. Ct 140, 87 L. Ed. U07. It also
holds that tbe employ^ assumes tbe ordinary
risks Incident to his employment, and that if
he continues to work, without objection, hav-
ing knowledge ct a defect and an apprehen-
sion of danger, and Is injured, tliat this is
one of the ordinary risks of his employment
BaUroad v. McDade, 13S U. S. 670, 10 Svp.
Ct 1044. 34 U Ed. 235. But It also holds
that negligence of the emidoyer is an ex-
traordinary rIslE, which the empk>y6 does not
assume ; the court saying In Choctaw B. B.
V. McDade, 191 U. S. «7, 24 Sup. Ct. 25, 48 I*
Ed. 96: 'The servant assumes the risk at
dangers incident to tbe business of the master,
but not of the letter's negligence. • • *
The questloa of assumption of risk Is quite
apart from that of contributory negligence.
The servant has tbe right to assume tbat
the master has used due diligence to provide
suitable appliances in the operation of his
business, and he does not assume tbe risk
of the employer's negligence In iierformlng
such duties." We have It then established
that the employer Is negligent If be tells
to provide reasonably safe machinery and ap-
pliances, and to ke^ them in repair; that
the employe assumes the risk If he continues
to work id the presence of a known defect
without objection; and that tbe employe
doee not assume the risk of the negligence of
the employer.
There is some difficulty In applying these
rules to a given case, because If .it is the
duty of the employer to r^lr, and a breach
of tbat duty is negligence, and If the employ^
does upt assume the risk of the negligence
of tbe employer, it would seem to be oon-
tradlcto}7 to say tliat the anplo^fi' may a»>
aume the risk of an Injury caiyaed by a fail-
ure to repair. Tbia a^iarent oimfilci la,
78's.B.-83
reCQncUed by imposing iqjon the-onployfi, if
he wishes to be relieved from assumption of
risk, the duty of making complaint when he
knows of a defect, or could discover It by the
exercise of ordinary care, and by referrlnig
his conduct, when he does comjAalnf to the
principle of contributory negligence^ at
least for a reasonable time.
The decision In the leading case of Hough
V. Railroad, 100 U. S. 216, 26 L. Ed. 612,
which discusses particularly tbe assumption
of tbe risk of the negligence of a fellow
servant, rests upon this principle. In that
case the evidence tended to show that the
engine of which deceased bad charge, coming
in contact with an animal, was thrown from
the track over an embankmoit, whereby the
whistle fastened to tbe boiler was blown or
knocked out, and from the opening thus
made hot water and steam Issued, scalding
the deceased to death; tbat the engine waa
thrown from the tradt because the cow-
catcher or pilot was defective, and the whis-
tle blown or knocked out because it waa In-
securely fastened to the boiler; that these
defects were owing to tbe n^Ugence of tbe
company's master mechanic, and of the focft-
man of the roundhouse at Marshall ; that to
the former was committed the exclusive
management of the motive power of de-
fendant's line, with full control over all
engineers, and with unrestricted power to
employ, direct, control, and discharge them
at pleasure ; that all engineers were reqaUN
ed to report for orders to those oflioera, and
under their dlrectiim alone could engines go
out upon the road; that deceased knew of
the defective condition of the cowcat<Aer or
pilot, and, having complained thereof to both
the master mechanic and foreman of tbe
roundhouse, be was promised a number of
times tbat the defect should be remedied,
but such promises were not kept; that a
new pilot was made, but by reason of the'
negligence of those officers it was not put
on the engine; and the court, after discuss-
ing the case of Farwell v. Railroad, 4 Mete
(Mass.) 4d, 38 Am. Dec 339, and stating tbat
there aro well-defined exceptions to tbe
general rule as to assumption of risk, says:
"One, and perhaps the most important, of
those exceptions, arises from the obligatloa
of the master, whether a natural powm
or a corporate body, not to eocpose the serv-
ant, when condcLCting the master's business,
to perils or hazards against which he may
be guarded by proper diligence upon the
part of tbe master. To that end the master
is bound to observe all the care which prtt<
dence and the exigencies of the sitnatiw re-
quire, in providing the servant with ma-
chinery or other InBtrumentalitiee adequately
safe for use by the latter. It la Im^led In-
tbe contract between the parties tbat the
servant risks tbe dangers which- ordinarily
attend or are Incident to-, the business in
which be voluntarily mgagea for>compaiHr
tiom; among which jgg j^M^-fflpteh^Holgfag
m
n SO0THBA8IBBN BBPOBTBB
<N.C.
tbrae, at least In tbe lame work or employ-
men^ with vhose habits, conduct, and capad-
ty be has, In the course of his duties, an op-
portunity to become acquainted, and against
whose neglect or Incompetency be may him-
self take sQCh precautions as his Inclination
or Judgment may suggest But it is equally
Implied In the same contract that the master
shall supply the physical means and agencies
for the conduct of his hnslne^ It Is also
Implied, and public policy requires, that In
selecting such means he shell not be wanting
In proper care. His negligence In that re-
gard Is not a hazard usually or necessarily at-
tendant upon the business. Nor Is It one
which the serrant. In legal contemplation, Is
presumed to risk, for the obrlouB reason that
the servant who Is to use the instrumentali-
ties provided by the master has, ordinarily,
no connection with their purchase in the first
instance, or with their preservation or main-
tenance in suitable condition after they have
been supplied by the master. * * * If the
engineer, after discovering or recognizing
the defecUve condition of the cowcatcher or
pilot, had contlmied to use the engine, with-
out giving notice thereof to the proper of-
ficers of the company, he would undoubtedly
have been guilty of such contributory negli-
gence as to bar a recovery, so far as snch
defect was found to have been the efficient
cause of the death. He would be held, Itf
that case, to have himself risked the dangers
which might result from the use of the en-
gine In such defective condition. But ttiere
can be no doubt that, where a master has
expressly promised to repair a defect, the serv-
ant can recover for an injury caused there-
by, within such period of time after the
promise as it would be rea8<nMible to aUow
tor its performance, and, as we think, for an
Injury sufTered within any period which
would not preclude all reasonable expecta-
tion that the promise might be kept' Shear-
man & Redt Negllgenoe, | 96; Conroy v.
Vulcan Iron Woik^ 62 Mo. 85; Patterson v.
P. & a R. W. Co., 76 Pa. 389 [18 Am. Rep.
412) ; Le Clair v. First Division of St Paul
A Pacific Railroad Co., 20 Minn. 9 (Ga 1);
Brabblts v. R. W. Co., 38 Mo. 289. 'If the
servant' says Mr. Cooley. In his works on
Torts <6S9), 'having a right to abandon the
SOTlce because It la dangerous, Teftalna
from doing so in consequence of assurances
that the danger shaU be removed^ the duty to
remove the danger Is manifest and Impera-,
tire, and the master la not In the exercise
of ordinary ' care unless or un£u he makes
his assurances good. Moreover, the as-
surances remove an ground tor the argument
that the servant by continuing the employ-
ment engages to assume the risks.*" And
the court adds, with reference to contributory
neiSlgenoe: "We may add tliat it was for the
Jnry to say whether the defect in the cow-
catOuT or pilot was such that none but a
reckless engineer, utterly careless of his
aftfet7> would ban used the engine without
It being removed. If, under all the drcum-
stances, and in view of the promises to reme-
dy the defect the engineer was not wanting
In due care in continuing to use the engine,
Uien the company will not be excused for the
omlssionl to supply proper machinery, upon
the ground of contributory negligence. That
the engineer knew of the allied defect was
not, under the circumstances, and as matter
of law, absolutely conclusive of want of due
care on his part"
Id Chicago, Milwaukee R. B. v. Ross, 112
U. 8. 883, 6 Sup. Ct 186, 28 Ed. 787. after
stating the rule as to assumption of risk by
the employ^, the court says: "But however
this may be, it la lndlsi>ensable to the em-
ployer's exemption from liability to his
servant for the consequences of risks thus
Incurred, that be should himself be free from
negligence. He must furnish the servant
the means and appliances which the service
requires for its efficient and safe perform-
ance, unless otherwise stipulated; and If be
falls in that respect, and an injury results,
he is as liable to the servant as he would be
to a stranger. In other words, whilst claim-
ing such exemption^ he must not himself be
guilty of contributory n^llgence."
A^ln, in Northern Paa R. R. v. Herbert
lie U. 8. 662, 6 Sup. Ot 595, 29 L. Ed. 755:
"Where the employ^ Is not guilty of contribu-
tory negligence, no irresponsibility should be
admitted (or an injury to him caused by the
defective condition of the machinery and in-
struments with which he Is required to work,
exc^t it could not have been known or guard-
ed against by proper care and vigilance on
the part of his employer."
Rnnning through all the cases Is the Idea
that the employe assumes the risk, when he
continues to work In the presence (k a known
defect only when he fails to object
The latest case we have found Is South
Western Brewery St Ice Co. v. Schmidt, 226
U. a 162, 33 Sup. Ct 68. 57 I* Ed. — , de-
dded by the Supreme Court of the United
States December 2, 1912, in which the court
says: "The first point ai^ed Is that the
defendant was entitled to Judgment on the
special findings, because the fourth was that,
the cooker at the time was not in snch a bad
condition that a man of ordinary prudoice
would not have used the same; But the
eleventh was that the defendant did not use
ordinary care In furnishing the cooker and
in having it rewired, and the sixth that the
defendant promised the plaintiff that the
cocker should be rqtalred as an inducement
for him to continue using it So It is evident
that the fourth finding meant only that the
plaintiff was not negllgat In remaining mt
work. Whatever the difficulties may be wltb
the theory of the exception (1 Labat^ Mast
ft Ser. c. 22, I 421), It is the well-settled law
Uiat for a certain time a master may remain
liable for a tailnre to use reasonable care
in famishing a safe place in whicfa to wmIe.
Iibtwithstandtaig the attV^tffti^dptefikSlxlit
HOBTON T. SEABOARD AIB LINE R. CO.
m
tbe danger, If be tndaces tbe serrant to keep
on by a promise tliat tbe source of trouble
shall be removed (Hough t. Texas & P. B.
Co., 100 U. S. 213, 25 L. Ed. 612).**
The text-books very generally declare the
same doctrine.
"There Is no longer any doubt tha^ where
a master has expressly promised to repair a
defect, tbe servant does not assume the risk
of any Injury caused thereby within such a
period of time after the promise as would
be reasonably allowed for Its performance,
or, indeed, within any period which would
not praclude all reasonable expectation that
the promise might be kept" 1 Shearman &
Bedfield on Negligence, $ 215. p. 372. .
"It Is also negligence for which the master
may be held responsible, if, knowing of any
peill which Is known to the servant also,
he falls to remove It In accordance with tbe
assurances made by him to the servant that
he will do 80. This case may also be planted
on contract, but it Is by no means essential
to do so. If the servant, having a right to
abandon tbe service because it Is dangerous,
refrains from doing so In consequence of aa-
Borances that the danger shall be removed,
.the duty to remove the danger la manifest
and Imperative^ and the master is not in ttie
Bcerdse of ordinary care unless or until he
makes his aasnranoes good. Moreover, the
aasnrancei remove all ground for tbe arga-
njent that tbe servant, by omtlnulng the em-
ployment, engages to assume its risks. So
fitf as the particular peril is cdncemed, the
iinpllcatloQ of law Is rebutted by the gXvtag
and accepting of the assurance, for nothing
is plainer or. more xeasonable than Hat par>
tiea may and should, where practicable, come
to an understanding between ttaenuelTes re<
garding mattes of this nfiture.'* Gooley oa
Torts, p. 1156.
"An obvious corollary from the principles
explained in section 424, subds. %' *b,' su-
TPOL, is that, as long as the period is running
which is conceived to be covered by the
ivomise, tbe defense of an .assumption of the
glv&i risk cannot be relied upon by the mas-
ter. This doctrine is affirmed, or taken for
granted in all the decisions dted at the place
referred ta" Labatt, Master and Servant, {
426. . .
In the note to Miller v. Monument Co., 18
Ann. Cas. 861, there is a very full citation of
authority upon the distinction between as-
sumption of risk and contributory negligence,
•wt^ch it Is not necessary for us to consider
further, as the case is presented, and In :the
note to Foster v. Railroad, 4 Ann. Cas. 153,
the editor, in dealing with the effect of a
promise to repair on dssomption of risk, cites
decisions from 35 states, and others from the
federal courts, InrJudlng tbe ^ough Case, In
support of the statement that : "It Is a well-
settled g«ieral rule that the assumption of
risk implied from a servant's knowledge that
a tool. Instrument, appliance, piece of ma-
tihUasrr, or place of Jir^k, la defecttve or dan-^
gerous, is suspended by the master's promise
to repair, made In response to tbe servant's
complaint, so that. If the servant is Induced
by such promise to continue at work, be may
recover for an Injury which he sustains by
reason of such defect within a reasonable
time after the making of the promise, provid-
ed he exercises due care, unless the defect
renders the appliance so Imminently danger-
ous that a prudent person would decline to
use it at all until it was rei>alred." And this
last conttngency is dealt with in the Hough
Case, supra, under contributory negligence.
Applying these principles to the evidence,
we are of opinion that the charge of his
honor was favorable to the defendant^ upon
the issue or assumption of risk.
The plaintiff took charge of the engine on
July 27, 1910, and was Injured while operat-
ing It on August 4, 1910. He testified, among
other things, that he discovered tbe absence
of the guard glass on his first trip out, 'and
that upon bis return on the next day he told
the roundhouse forenuin, to whom complaint
ot^ht to have been made, and whose du^ It
was to repair, that ttie guard glass was gone,
and asked it he had one, and that the fore-
man replied "they did not keep them in
stock here, that they were made In Ports-
mouth, and he would have to send to Ports- .
niouth to get one; to run her Uke she was.
^e said he would send to Portsmouth and
get roe one;** .that be had the talk with tbe
foreman between 8' and S o'clock and told
him the shield. or gqard glass was gone and
he wanted on^ and that tbe foreman said
he had ntme In ^ock, and to run tb^ engine
as it was and he would send to Portsmouth .
and get him a shield or guard glass; that he
knew there was some danger, but that he
was told By the fbreman to go ahead an^
operate \rithout the shield, and if he had not.
done so he would have lost bis Job. The
foireman doiled that any complaint was made
to him.
In this conflict of evidence it was fbr the
Jury to determine tbe fact, and upon this
phase of the case, his honor, among other
tbiii^ charged on the second issue as to
assumption (tf risk as follows : "On the oth-
er hand, the employer has the right to as-
sume that his employfi will go about his
work in a reasonably safe way and give due
regard to the machinery and .appliances
wblch are in bis hands and under his control,
and if you should And from the evidence, by
its greater w^lit, because tbe burden in
this instance ia on the defendant, that the
plaintiff kniew of the absence of the guard
or shield to the, water gauge- and failed to
give notice to. the dtfendant or to the agent
whose duty it was to furnish the water gauge
and apj^liance, and he continued to use it
without giving that notice, It being furnished
to hini In a safe condition, then he assumed
the risk incident to his work in the engine,
wlt^ the glass water gjiuge in that condition*
alibot^h he m^ht.J^ve hand^<y^^<^j^^^
500
78 SOUTHSASTSBN BEPOHTEB
(N.a
in eTery other Te8[>ect with perfect care. It
it was received In good condition and he
failed to glre notice, and If he did work
with it In Its present condition, without the
shield or guard, he then assumed the risk.
How was that? It is a auestlQn of evidence
for you. IMd he gire the notice? Did he as-
sume the risk bj ftiUlng to give notice, keep-
ing the knowledge of the absence ot the
guard glass within Ids own breast? But if
yon find that he gave notice to the forenuui
of Uie roundhouse, ftnd if you should find
that the use of the water gauge was not so
obviously dangerous that a reasonably pru-
dent man, careful of hlms^ not to get hurt,
while he was about his work, and went on
and nsed It, he would not assume the risk,
but if the danger was so apparent that a rea-
sonably prudent man, careful of himself not
to receive Injury, would see that he was in
Imminent danger and would observe by the
use of It that he was endangering himself by
going on and working with it, and he con-
tinned to work with It, he would be assum-
ing the risk and responsiUlity, anu It would
be your duty to answer that Issu^ 'Yes.'
It It was so obviously tongerous that a
reasonably prudent man would not use it,
and he continued to use it Instrad of using
the oOia, he would assume the risk."
It therefore appears that the defendant not
only had the benefit <tf the rule that the em-
ploye assumes the risk U he wozks in the
presence of a known danger without objec-
tion, but in addition, and as a distinct and
sqjnrate propoeltion, that the plaintlfl as-
sumed the risk, although be ol]Jected, If he
continued to work when a man of ordinary
prudence would see that then was greater
danger of b^ng hurt than othenrise, which
would not be assnmptlon.of risk, bat evidence
of CfMitrlbntory negligence.
Cn l%e third, fourth, and fifth prayers for
Instructtcms were properly refused, because
directed to the secmd issue, instead of to
the ttilrd, to which they were applicable
We have thus far con^dered the case un-
der the decUdlons of the federal court If we
applied the provisions of the Fellow Servant
Act of this state, as construed by our court,
there could be no Issue as to assumption of
risk. Coley v. Ballroad, 129 N. a 407, 40
S. E 195, 67 L. R. A. 817.
We have not been Inadvertent to the other
exceptions appearing in the record, 72 In
number, but have examined them with care,
and find no reversible em».
No error.
CLARK, O. J. <concurrtDg). On the fur-
ther ground that the following paragraph In
section 4 of the Federal Employer's Liability
Act: "Such employ^ shall not be held to have
assamed the risks of his employment In any
case where the violation by such common
carrier of any statute enacted for the safety
of employes contributed to the Injury or
death of 'such eOtployfis" — ^merely emphasizes
the fact that in such cases there Is no aa*
sumption of risk. It cannot be construed
fsiirly, to he an implied provi^n that aa-
sumption of risk is a deftose in all other
cases.
BesideBr assnn^ttlon of risk lies In con-
tract, and under the provision of Bevlsal, I
2646, "Any contract or agreonent, expressed
or Implied, made by any employ^ of such
company to waive the benefit of this section
shall be null and void," it has been repeated-
ly hdd that the doctrine of assniuption of
risk has been eliminated by this section.
Biles V. Railroad, 143 N. a 78, 55 8. E. 612;
Thomas v. Railroad, 129 K. a 892, 40 S. E.
201; Gogdel! v. Railroad, 129 N. a 388, 40
8. B. 202 ; Coley v. Railroad. 128 N. a 634,
39S. E.43.ffri:*.B.A. 817. Such contract
therefore being null and void under our stat-
ute, It cannot be a defmse, which depaids
upon Uie validity of such contract
BROWN, J. (dissenting). The evidence in
this case tended to establish the foUowlzv
facts:
The plaintiff, at the time of the Injury,
had been employed by the dtf endant as en-
gineer for a period of six years, and as
fireman tor three or four years prior to his
promotion. It appeared from ttie work re-
ports, identified by the plaintiff, that he first
made a r^ort on this engine on July 28th,
after his return from a round trip requiring
two days. Tte explosion of the water glass,
of which be complain^ occurred August 4th.
upon his return from the third or fourth
trip to Aberdecai. At the time ot the ex-
plodon plaintiff was looking at the glass. The
engine, No. 752, which plaintiff was operat-
ing, was equipped with a patented water
glass; which was so constructed that a Oilck
guard ^Bs was placed over the front of the
water gUun to protect the ^es of the en-
gineer In the event the Itmer giBm should
explode. The eng^e was also equii^)ed witli
an alternative method of determining the
amount of water' In the boiler by means of
gauge cocks. It was the plaintiff's duty,
upon boarding the engine, to look at his
watOT glass, and test his gauge cocks, the
latter being three cocks placed at Intervals
on the front of the boiler, in order to see
that both were in working order. On the
morning plaintiff was called to take this
engine (he had prior to that time been
operating a passenger train) and use It In
oiwratlng a freight train ^m Raleigh, N.
C, to Aberdeen, N. G., he noticed before
leaving Raleigh that there was no shield
or guard on the water glass. Without
making complaint of the condition of the
glass, plaintiff made the trip to Aberdeen
and return. Upon his arrival In Raleigh
at the end of his round trip, he made a
written report of the condition of his en-
gine upon forms provided for that purpose,
and in accordance with the defendant's re-
qulremeuta he phiced t!»^,«|^^j^ft
N.OJ
HOBTON T. SEABOABD AIB UNB B. CO.
BOL
tlie roundbouae or put them In a box tbere
tor that purpose. This, according to the
plalntUCs evidence, was the way provided by
the company for procuring repairs. George
Stede, plalntifTB witnem, and a number of
defimdant's witnesses, said that Uiese work
reports were required to be In writing; that
tibey were filed and distributed among the
workmen for tha purpose of making the re-
quired repairs,
It appears In erldence that plaintllf made
a written report on this engine at the re-
turn of each round trip, and noted every de-
fect in hU engine except the Obienee of the
guard fflaa§. When asked by the superin-
tendent of the division on which he was on-
ployed why he faDed tx> r^wrt the absence
of the guard, he said that it woe for reasone
beat known to hUnetlf. On August 4. 1910,
whUe engaged In shifting can at Apex, N.
C, the plaintiff testified that the water glass
exploded and injured his eye. Iminedlately
after Uie explosion he cut off tlie gai^ glass
at top and bottom, and the engine was op-
era ted to Baleigh with the gauge cocks as
the mean of detomlning Hie amount of wa-
ter in the boUtt. Tba guard ^ass refwred
to as part of the Bnckner eiialpment la a
thick ideoe of glass two or three inches vide,
and eight or nine Indies long, with a thick-
ness of a quarter or three-Mghths of an Inch,
and is detadied from the gauge, b^g placed
In slots arranged for the purpose of holding
it ^le Budmer gauge Is not a complicated
piece of machinery, but is a bran tube with
an opening in bont and containing a small
glass tube. A thick piece of glass or two
thin pieces of the premier alae could be cat
and placed in the slot and would ssrre the
purpose of a guard glass.
Plaintiff testlfled that, after he returned
from the first trip to Aberdeen, he ran the
engine to the coal chute track, or track op-
posite the turntable, and told Mr. Matthews,
the roundhouse foreman, that the guard
glass was gone, and asked him if he had
one. "He said they did not keep them In
stock here, but tbey were made in Ports-
mouth, and that he would have to send to
Portsmouth to get one; to run her like she
waa. He said he would send to Portsmouth-
and get me one. After Mr. Matthews told
me he did not have any, I went to Charlie
Murray, the glass cutter for the Baker-Thomp-
son Lumber Company, and told him I want-
ed him to make me a guard glass and gave
him the measurements." The conversation
with Matthews, testlfled to by plaintiff, oc-
curred on July 28th. Plaintiff's work re-
ports show that he made two round trips
with this engine after that time and before
his injury. The accident occurred August
4th, six days after the conversatioQ with
Matthews, and during, that time plaintiff was
aware of the defective condition of the wa-
ter glass and knew that It had not been r&
paired. Matthews denied that he told plain-
tiff the guard glasses were kept in Ports-
month and to go atiead and run his engine
and that he would send and get on& He
said he tiad no recollection of having a con-
versation with Horton. PlalntUTs testimony
leaves no doubt of the fact that be was fully
aware of the danger of udng tlie water
gauge without the protection of the guard
glass.
George Steely a wltneas for plaintiff, ex-
plained the duties of an engineer as follows:
"I have beai an engineer on the Seaboard
six or e^ht years. I am famlUar with the
duties of an englnetf. It is Ids du^ to
see that his engine la In proper working or-
der and properly equipped. He reporte 30
minutes beforehand for that purpose. He
Is paid for that time. He Is paid untU he
gets off duty. He Is allowed 15 or 20 or 25
minutes from the time he cuts loose from
his train. Engineers are supposed to inspect
engines before th^ ^ve them up and make
out a work r^rt in writing. It is required
by the. company to be in writing and signed
by the eufi^neer. That work report is filed
in the roundhouse, and the wmk distributed
among dlfftfent ones to have the defects
rwnedied. It Is the ttiglneer'a duty to re>
port defects discovered in bis cab and re-
port than on his work report Wbiea an en-
glneer gets on his engine in the morning, be
tests the gauge cocks to see that they are
working. He teeta Us gauge glass to see
that it is in dtape and In working «der.
The gauge cocks indicate bow mndi water
is in the boiler. You could operate the en-
gine with gauge cocks alone without the
water glass. The wata ^ss Is arranged
so that if anything should happw yon could
cut it off; toQ and bottom ; that cute it dna
out, so that it Is impossible for It to ^jdode.'
But with the steam on and the water «, and
this guard glass gone, that Inner tube Is
nothing but a thin tube of glass. Whatever
pressure the engine eanles is on there.
Those glasses explode frequently. Nobody
can teU when one la going to explode. One
might last 16 minutes and one 80 days. One
has never exploded with me. They buss a
little when tbey are going to explode. The
purpose of the guard glass is to protect
anybody in the cab. It protects the engineer
from explosion. Without the guard glass,
he is liable to be injured by flying glass.
On the line of road, if I discovered the
guard glass was gone, I would report it In
writing on the work report when I got In.
It could be gotten by requisition from the
storeroom. My duty would be to notify the
foreman. It is the engineer's duty to re-
port any defects they see on the engine in
writing."
At. the conclusion of . the evidence defend-
ant moved for Judgment of nonsuit upon
the ground that plalntUTa evidence showed
that he assumed the risk of injury from the.
explosion of the water glass. I think this
motion should have- been allowedt If it is
true, as tesUfled by plaintiff, Uiat^je^^
502
78 SODTHBASTBRN REPORTER
(N.a
the defect and was given a promise to re-
pair, his testimony shows that he continued
to use the defective water glass when fhe
danger was so Imminent that a man of ordi-
nary prudence would not have used it, and
in doing so he continued to aeaiime the risk
of injury.
The federal questions In this case are prop-
erly raised, and In order to dispose of the
appeal. It is necessary that they should be
passed upon by this court The construction
of the National Employer's Liability Act is
Involved, which is in itself sufficient to give
Jurisdiction to the Supreme Court of the
United States If the case should be taken
to that court Railroad v. Wulf, 226 U. S.
670, 83 Sup. Ct 185. S7 Bd. — . In an
action brought by an employ^ against a car-
rier for an injury sustained while engaged in
interstate commerce, the federal act is su-
preme. Congress having acted, the compe-
tency of the state to regulate the matter la
withdrawn, and all state legislation on the
subject is superseded. Mondon v. Railroad,
223 D. & 1, 82 Sup. Gt 169, 166 U Ed. 327.
88 U S. A, (N. S.) 44. The right of acUon
created by this act is exclusive^ and the
employ^ has no rlg^t of action dOuw at com-
mon law or under state statutes regulating
the relation of master and servant Railroad
T. Wtilf, Bnpnu
The plaintiff In the case before us brought
his suit under the federal act, and the de>
fiendont admitted that act to be ocmtndling
and pleaded as a defmae plaintiff's oontribu-
tory n^ligemce and asmmption of risk. The
defendsmt takes the poBltton that assnmptlon
of risk as a. defense la affected by the federal
act only to the otent of being atkOllshed
In casee where the violation by Oie carrier
of some Btatote macted tat ttxe safety of
employes contributed to the Injury; that
in other respects the defense of assumption
at risk is unaffected and is to be determined
by the principles of the common law as in-
terpreted by the United States Supreme
Court Section 4 of the act provides: "That
in any action brought against any common
carrier under or by virtue of any of the pro-
visions of this act to recover damages for
injuries to, or the death of, any of Its em-
ployes, such employe shall not be held to
have assumed the risks of his employment
In any case where the violation by such com-
mon carrier of any statute enacted for the
safety of ^ployCs contributed to the injury
or death of such employe." The legislative
history of this act, which is a proper aid to
Its construction (11 Encyc. U. &. Supreme
Court Reports, 143) shows the clear intention
of Congress to modify the common-law de-
fense of assumption of risk only to the ex-
tent shown by this section. The act of 1906,
which was held unconstltutloDal, contained
no reference to assumption of risk. The act
of 1908, as introduced in Congress, provided
In eectioii 6 that the employe "shaU not be
held to have assumed the risk of his employ-,
ment in any case where the violation of law
by such common carrier contributed to the
injury or death of such employe." Before
the passage of the act, thla broad language
was changed to read "where the violation
by such common carrier of any statute en-
acted for the safety of employes contributed
tc the injury or death of such employe."
By incorporating this section in the act,
I think Congress indicated clearly that it did
not regard the defense of assumption of risk
as having been abolished by the other provi-
sions of the act, and did not Intend the act
to have such effect
In Freeman v. Powell (Tex.) 144 S. W.
1033, it Is expressly b^d that assumption
of risk is a defense to an action brought
under this act, and the language of the Su-
preme Court of the United Statra (223 U. S.
at pages 49 and 60, 32 Sup. Ct. 169, 56 U Ed.
327. 38 U R. A. [N. S.] 44) leads me to con-
clude that in the opinion of that court as-
sumption of risk will bar the right of a
plaintiff to record unless the ne^igenee of
the master consists in the violation of a
federal statute enacted tot the servant's
safety. The fact that contributory negli-
gence is aboUahed as a compete defense
by section 8 of the act can have no effect on
the defense of assnmptiwi of risk. The two
deftaues are separate and distinct In the
case of Schlemmw v. Bailroul, 206 n. S.
1, 27 Snp. Ot 407. 61 U Ed. 681, quoted by
Mr. Justice Allen as Jounding a note of wam- .
ing that one plea msj be abollsbed by name--
and reinstated under another name^ fbur
Justices dissented, and, when the case again
csme before the court, Mr. Justice Day, who
had formerly dissented, wrote the opinitm
of the court, holding that a statute aboliA-
Ing assumption of risk did not affect the de-
fense of contributory n^Ugence. The con-
verse of this proposition sustains the view
that a statute which abolishes contributory
negligence has no effect upon the defense of
assumption of risk.
It is not contended in this case that the
defendant has violated any statute enacted
for the safety of employes, and therefore
assumption of risk. If established, would
operate to defeat the plalntlfTs cause of ac-
tion. The court below accepted this as a
correct construction of the federal act and
submitted the following Issues: (1) Was the
plaintiff injured by the negligence of the de-
fendant as alleged In the complaint? (2) If
so, did the plaintiff assume the risk of in-
jury, as alleged in the answer? (3) Did the
plaintiff by his own negligence contribute to
his injury as allied In the answer? (4)
What damage, If any, Is the plaintiff entitled
to recover?
Having submitted an issue of assumption
of risk, his honor was confronted with the
question whether such assumption of risk
should he determined by the mindples
Digitized by LjOOg IC
HOBTOK T. SEABOASD AZB LINE B. ca
603
nounced hj this court or by the decisions
of the Supreme Court of the United States.
It ia clear that the decisions of the two jurls-
dlctloQS are In conflict The trial judge fol-
lowed the decisions of this court, and, how-
erer correct they maj be when applied to
a cause of action arising under the state
law, I think our decisions are contrary to
those of the Suprrane Court of the United
States and are not controlling In this ac-
tion. The charge ' cannot be read without
reaching the conclusion that his honor re-
garded the law of North Carolina as con-
trolUng. He said: "Plaintiff has brought
tills suit under the United States statute,
and where Congress enacts a law within the
Umits of its power, that law should be en-
forced uniformly throughout the entire United
States. If it Is in conflict with the state
law, the state law Is superseded ; bnt» where
there is no conflict expressed by the stat-
ute of the united States^ then the rule of the
state prevails. And in this act under which
tills suit is brought. It is provided that any
action brot^ht against any eommmi carrier <
under and by virtue of any oS the provfatons ;
of this act to recover damages Cor injuries to
or death of any of its employte, . sueb em-
p\oy6 shall not be held to have assumed the
risk of his employment in any case where
ttie violation by such a carrier of any statute
enacted for the safety of employes contribut-
ed to the Injury or death of suCh employte.
Ttiere has been no statute provided as ap-
plies to this glass water gav^ which has
been called to the attention of the court, so
that leaves it open to the rights which the
plaintiff might have under the law of this
state, and the question of assumed risk, as
has been argued by one, If not more, of coun-
sel, grows out of the contractual relations
t>etween plaintiff and defendant"
The following Instmctions, which are not
quoted in the opinion of the court were
given over defendant's objection and excep-
tion: **A man assumes the risk, when he
takes employment, Incident to the class of
work which he has to perform. Some class-
es of work are more dangerous than others.
The position of a locomotive engineer might
well be regarded as more hazardoas than
other employments ; therefore he assumes the
risk of that cliaracter of employment bat
he has the right when be enters Into em-
ployment of that class of work to assume
that his employer has done what the law
requires It to do In providing him a reason-
ably safe place to work, with reasonably
safe appliances with which to do his work,
consistent with the character of the work
which Is to he performed. He doea not oi-
9ume the rUk incident to the negUgence of
Ma empXover in providing machinerTf and
appUanoeM with which he hat to worK" And
in another part of the diarge, this language
Is used: "And the same rule applies if the j
use of the ^ass without the shield was Hot I
so obviously dangerous as to cause a rea-
sonably prudent man to stop the use of It
his going on and using it. of Itself^ would
not be assumli^ the risk In the use of It
If It was so obviously dangerous that a rea-
sonably prudent man would not use it and
he continued to use It Instead of using the
other, he would assume the risk."
The instructions quoted In the court's opin-
ion, which it Is said properly present the de-
fendant's contention that by continuing to
work in the face of a known danger plain-
tiff assumed the risk of Injury, are made de-
pendent upon a finding by the Jnry that the
guard glass was furnished to the plaintiff
in a Mfe condition. It will be found that
the instructions read: "If It was received In
good condition and he failed to give notice,
and If he did work with It in its present con-
dition without the shield or guard glass, he
then assumed the risk." Such limitation is
improper. Whether the danger existed at
the time plaintiff imdertook the operation of
the engine, or arose while he was engaged
fn Its operation. Is Immaterial. If It was
furnished him In a defective condition and
he became aware of the existence of the de-
fect and continued to work without objec-
tion and a promise to: repair, he assumed the
risk.
The Jury had been instructed positively
that the servant does not assume the risk
incident to the negligence of the master In
providing machinery and appliances with
which he has to work, and in carrying out
this view the court makes assumption of
risk dependent upon the defendant's having
furnished the glass in a safe condition.
Plaintiff testified that when the engine was
turned over to him, the guard glass was de-
fective. If the Jury believed this evidence.
It was impossible to find that lie assumed
the risk as set forth In his lionor's lnstruo>
tlons.
The doctrine of assumed risk as adopted
by this court Is stated In Hicks v. Mfg. Go.^
138 N. C. 319, 50 S. E. 703, as follows: "An
employe will not be deemed to have assumed
the risk from the fact that he works on in
the presence of a known defect unless the
danger be so obvlons and imminent that no
man of ordinary prudence and acting with
such prudence would Incur the risk which
the conditions disclose." And tills court has
repeatedly said that the servant never as-
sumes the risk Incident to the negligence of
the master In providing machinery and ap<
pllances with which he has to work.
The Jury in this case was Instructed in
practically the exact language of our deci-
sions. The. Supreme Court of the United
States has held In a uniform line of deci-
sions, which I shall refer to later, that the
servant does assume the risk of Injury re-
sulting from the negligence of the master
when the danger Is known to the servant and
appreciated by him and he continues to work
in the face of such aai«^,j|y^litii«<glg4e
604
78 SOnTHEASTERN BBFOBTEB
(N.a
Tba defendant requested tbe folio wins 1&-
slrucUoiu:
"The court durges yoa tbat it you tMUere
the erldence tbe ^aintlff usnmed Oie risk
ot Injury trom the eq^Ioalon of tba water
glass, and yon wlU answer the aooond lani^
Tea*
"The oonrt charges 70a that the statute of
North Carolina (Bevlsal. | 2646) abolishing
assumption of risk as defense to am action
brought against a raUroad company by one
of its employte has no application in this
case, and if yon find tbat tbe plalntlfl as-
sumed the risk of injury from tbe e^loslon
of the water glass, you will answer the
second Issue, 'Tea.'
"The right of the plaintiff to recow dam-
ages in this actiffik is to be determined by the
provision of tiie Federal Ihnployer's UabiUty
Act enacted by Congress at- tbe session of
1908, and the oonrt chargM yon that if you
find by a preponderance of eridence that the
water glass on the eoglne on which plaintiff
was employed was not xvovided with a
guard glass and tbe condition of the glass
was opoi and obvious and was fully known
to the plaintiff, and be continued to use sudi
water glass with such knowledge and with-
out objection, and that he knew tbe risk In-
ddent thereto, then the court charges yon
that the plaintiff voluntarily assumed the
risk incident to such use, and you will an-
swer the second Issue, *Yes.' ** The court gave
this instruction as applicable to tbe Issue of
contributory negligence, and Instead of the
words, "then the court charges you that the
plaintiff voluntarily assumed the risk ind-
dent to such use and you will answer the
second issue, 'Tes,* " used the words, "then
the court charges yon that tbe plaintiff was
guilty of contributory negligence, and yon
will answer the third issue, Tea.' "
"If you find by the greater wel^t of the
evidence that the water glass was defective,
and that the plaintiff knew of the condition
of the water glass oa the engine and the
danger Incident to its use, and there was
open to him a safe way of operating the
said engine by nalng the gauge cocks, and
that he voluntarily used the water glass In
operating the engine, the court charges yon
that the plaintiff assumed tbe risk ot Injury
from the use of the watei* glass, and you will
answer the second Issue, 'Tes.* "
The court refused these requests for In-
struction.
His honor's charge and the defendant's re-
quests for instruction, particularly the sec-
ond request quoted, present the conflicting
views of the doctrine of assumption of risk.
The defendant contends that the requested
Instructions are In accord with, and the
charge as g^ven In conflict with, the deci-
sions of the Supreme Court of the United
States. In this I think the defendant la cor-
rect The common-law conception of assump-
tion of risk Is still the prevailing doctrine In
the great majori^ ot tbe atate courts, and
In Che United States courts. Labatt on
Master & Servant says: "The doctrine ap-
plied in the older En^sh cases and in all
tbe American cases up to the present time,
with a few possible unimportant exceptions,
is that, in the case of all adult servants, ex-
c^t seamoi, the actions must be declared
not to be maintainable^ aa a matter ot law,
if Qie evidence leaves no reasonable doubt
that tHu servant comprehended tbe ^normal
risk wbldi caused bis injury." Page 7.
'The doctrine tbat a servant 1^ has no
knowledge^ actual or constmcUve^ of an ordi-
nary risk Is not chargeable wltb its assump-
tion, Is Implied in every Jurisdiction in which
the principles of tbe commtm law are recog-
nized. The logical converse of this doctrine,
viz., that a servant la to be regarded as hav-
ing assumed eztraorttnary risk of which he
had, or ous^t to have obtained, knowledge
before bis injury was received, was also
applied universally until comparatively re-
cttit times, and ia still tbe prevailing rule
in tbe United Btatea." Section 274. In sup-
port of the above text tbe author dtes tike
EtagUah cases and dedsioBs of the Supreme
Court of the IMted States and the fedotml
Circuit and District Courts and the courts
of Alabama, Aikansas, GaUfttmia, Colorado,
Connectlcnt, IMaware, District of Columbia,
Florida, Oetwgia, IlUni^ Indiana, Iowa,
Kansaa, Kentucky, Louisiana, Maine, Mary-
land, Massachusetts, Midilgan, Minnesota,
Missouri, Nebraska, New Hampshire, New
Jersey {North Carolina does not appear).
Ohio, Oklahoma, Or^n, Pennsylvania.
lUiode Island, Tennessee, Texas, Utah, Ver-
mont, Virginia, Washington, West Virginia,
and WIscensla. See, also, Labatt, H 271>
174a, 276 and 280, and pages 632. 683, 640.*
and 641. "In all the fihigUsh cases dedded
before the passsge of the Steployer*s liabil-
ity Act, the courts proceeded upon the hy-
pothesis that an assumption of an extraordi-
nary risk was properly inferred, as a matter
of law, from the mere fact that the servant
accepted or continued In the employment
with a knowledge of its existence and a full
compr^ension of the enhanced danger to
which he was exposed." Section 280.
Judge Thompson, In bis work on Negli-
gence, says that if a servant, with knowl-
edge of a defect In a machine which he Is
employed to operate, continues In the employ-
ment without objection or complaint, he Is
deemed to assume the risk of the danger;
that this doctrine Is so plain tbat it could
hardly be made plainer by multiplying spe-
cial statements and explanations. Sections
4608. 460O. "It is a part of this doctrine,"
Judge Thompson says in another section
(4707), "that the servant assumes the risks
of known defects in machinery, tools, appli-
ances, etc., or of Improper appliances fur-
nished for the performance of a particular
task, or where no proper appliances are fur-
nished, although tbe defect or danger re-
suits from tbe '^^^^^f.^t^^^i^
HOBTON T. SEABOARD AIB XJNK B. CO.
506
from his violation of m statute or a nnmld-
pal ordinance."
In Butler t. Frazee, 211 U. S. 4S9, 29 Sop.
Ot 136, 53 Lu EVL 281. It Is beld tbat **one
understanding the condition of machinery
and dangers arising therefrom, or who Is
capable of doing so, and volnntarlly, In the
course of employment, exposes himself there-
to, assumed the risk thereof, and If Injury
results cannot recover against the employer."
In Texas & Padflc Railway Company v.
Archibald, 170 U. S. at pages G71 and 672,
18 Sup. Ct at page 779 (42 I* Ed. 1188), Mr.
Justice White (now Chief Justice) says:
^The elementary rule Is that It is the duty
of the employer to furnish appliances free
from defects discoTerable by the exercise of
ordinary care, and that the employ^ has a
right to rely upon this daty being perform-
ed ; whilst In entering the employment he as-
sumes the ordinary risks Incident to the
business, he does not assame the risk arising
from the neglect of the employer to perform
the positive duty owing to the employe with
respect to appliances furnished. An excep-
tion to this general rule is well established,
which holds that where an employ^ receives
for nse a defectire appliance and with knowl-
edge of the defect continues to use It with-
out notice to the employer, he cannot recover
for an injury resulting from the defective
appliance thus voluntarily and negligently
used. • • * The employs is not compel-
led to pass Judgment on the employer's
methods of business or to conclude as to
their adequacy. He has a right to assume
that the employer will use reasonable care
to make Qie appliances safe and to deal with
those furnished relying on this fact, subject
of course to the exception which we have
already stated, by which when an appliance
Is furnished an employ^ In which there ex-
ists a defect known to him or plainly ob-
servable hy him, he cannot recover for an In-
jury caused by such defective appliance. If,
with the knowledge above stated, be negli-
gently continues to use it"
The very case relied upon by the court to
sustain the statement that a servant does
not assume die rlek arising from the mas-
ter's negligence refers to the well-established
exception that the servant does assume the
risk of Injury resulting from the negligence
of Qie master when the c<mdltlons brought
about by such negligence are known to the
servant and the danger appreciated. Rail-
road V. McDade, m U. & 6T. 24 Bop. Ct
M, 48 Lk Ed. 96.
In Railway v. Shalstrom, 1^ Fed. 728,
115 C. a A. S18, it is said: "Although the
risk of the master's n^llgence and of Its
^ect unknown to tlie servant is not one of
ttie ordinary risks of the employment which
he assumes, yet if tlie negligence of the mas-
ter or Its effect is known and appre<dated
by the servant, or Is obvlons, or 'so patent as
to be readily observed by him by the rea-
wnablft use of his aoises, baring In riew bis
age, InteEUgeuce, and erpetieace,* * * *
and he enters and continues In tbe employ-
meat 'without objection, he dects to assume
the risk of It. and he cannot recover for the
damages it canses,** citing Railway v. Aidil-
bald, supra.
A very comprdiensive reriew of the an-
thMitles on this question will be found In
St Louis Cordage Co. v. Miller, 126 Fed. 608,
61 G. C. A. 490. 68 L R. A. S51. in Which
Judge Sanborn says: "The authorities and
opinions to which * reference has now been
made have fbrced our minds irresistibly to
the conclusion that the following rules of law
have become Irrevocably settled by the great
weight of authority In tills country, and by
the opinions of the Supreme Court, which,
upon well-settled prindples, must be permit-
ted to nmtrol the opinions and actions of
this court : A servant by entering or continu-
ing In the employment of a master • * *
assumes the risks and dangers of the employ-
ment which he knows and appreciates, and
also those which an ordinarily prudent per-
son of his capacity and intelligence would
have known * * * in his situation. A
servant who knows, or who by the exercise
of reasonable prudence and care would have
known, of the risks and dkngers which arose
during his service, but who continues In the
employment without complaint, assumes those
risks and dangers to the same extent that he
undertakes to assume those existing when
he enters upon the employment Among the
risks and dangers thus assumed are those
which arise from the failure of the master
to completely discharge his duty to exercise
ordinary care to furnish the servant with a
reasonably safe place to work and reasonably
safe appliances and tools to use. Assump-
tion of risk and contributory n^llgence are
separate and distinct defenses. The one Is
based on contract the other on tort The
former is not conditioned or limited by the
existence of the latter, and is alike available
whethw the risk assumed is great or small,
and whether the danger from It Is imminent
and certain or remote and Improbable. The
court below fell Into an error when it in-
structed the Jury that although the plaintiff
continued tn the employment of the defend-
ant by the side of the visible unguarded gear-
ing with full knowledge that the cogs which
Injured her were uncovered, still she could
not be beld to have assumed the risk of
working byi their side unless the danger from
them was so Imminent that persons of ordi-
nary prudence would have declined to incur
It under similar circumstances."
In Eyner v. Mining Co., 184 Fed. 43, 106
G. G. A. 245. Mr. Jnstlce Vaudevanter, who
was then Circuit Judge, says: "As respects
the first specification of negligence. It con-
clusively appeared that the absence of the
guard about the drum and lower cable was
so patent as to be readily observed ; that the
enhanced danger arising therefrom was so
obvious that ita apprec^tlon^^ CS^Wtt
506
78 SOUTHEASTBBN BEPOKTEB
<N.C
was onaTOidabl^ In view of his years, Intel-
ligence, and experience; and that under
those conditions he Toluntarlly continued to
work aboQt the drum and cable. So, even
If the absence of a guard was a negligent
omission on the part of the defendant, th6
court was bound to mle, as a matter of law,
that the plalntlfF assumed the risk"— dtlng
Butler T. Frazee, 211 U. S. 459, 29 Sup. Ct
136, 63 U Qd. 281. See. also, Brick Co. t.
Miller, 181 FnA. 830, 101 C. C. A. 340; Eat-
alla T. Bones, 186 Fed. 30, 108 a C. A. 132.
It is useless to multiply authorities be-
cause the standard by which assumption of
risk will be measured in construing the fed-
eral act Is indicated by the language of Mr.
Justice Vandevanter In Mondou v. Rail-
road, 223 U. S. pages 49 and 50, 82 Sup. Ct
175, B8 li. Ed. 827, 38 L. B. A. (N. S.) 44. In
referring to the departures from the com-
mon law made by the act, he says: "The
rule that an employ^ was deemed to assume
the risk of injury, even if due to the em-
ployer's negligence, where the employe toI-
untarlly entered or remained in the service
with an actual or presumed knowledge of
the conditions out of wbicb the risk arose,
is abrogated In all Instances where the em-
ployer's violation of a statute ^lacted for
the safety of hla emplcgrCs contributed, to the
injury."
I think bis honor clearly fell into error
prejudicial to the defendant In his Instruc-
tions on the issue of contributory negligence.
It is true that Issue was answered in favor
of the defendant, but the court gave the
Jury the right to answer that Issue in the
affirmative upon, the finding of facts that
clearly entitled the defendant to hare the
second issue answered in its favor. His
honor confused contributory negligence and
aBsmnptlon of risk In such manner as to be
misleading. Beferrlng to the issue of con-
tributory n^ligence, he says: "That is gov-
erned largely by the same rules as applied
to the question of assumption of risk. Did
he continue to use the glass gauge when it
was obviously dangerous that a reasonably
prudent man careful of himself would not
do it? Was the danger so api>arent that a
reasonably prudent man would cease to use
that and use the other gauge? If so, it
would be your duty to answer the third is-
sue, 'Yes.' But If the danger was not so
obvious that a reasonably prudent man. care-
fnl of himself, would not realize the danger
of using the water glass, and he continued
to use It, he would not be guilty of contribu-
tory negligence^ If you find by the pre-
ponderance of the evidence that the water
glass by which plalutlff was Injured was not
provided with a guard glass, and the condi-
tion of the water glass was open and obvious
and was fully known to the plalnUfT, and he
continued to use such water glass with such
knowledge and without objecting, and knew
the risk Incident thereto, then the court
charges you that the plaintiff was guilty of
contributory negligence, and you should an-
swer the third Issue. 'Yes.' "
In Scblemmer v. Ballroad, 220 U. S. 590,
31 Sup. Ct 561, 65 L. Ed. 596. it is hdd
that: "There is a practical and clear dis-
tinction between assumption of risk and
contributory negligence. By the former, the
employ^ assumes the risk of ordinary dan-
gers of occupation and those dangers that
are plainly observable ; the latter is the
omission of the employ^ to use those pre-
cautious for his own safety which ordinary
prudence requires." Ballroad v. McDade,
191 U. S. 64, 24 Sup. Ct 24. 48 L. Ed. 96 ;
Labatt on Master & Servant PP. 747, 749,
767, 772.
I do not think the opinion of the court In
this case Is sound in assuming that if plain-
tiff gave notice of the absence of the guard
glass that alone would be suffident to re-
lieve him from the charge of assumption of
risk. The authorities hold that there must
be a complaint and promise to repair and It
must appear that the servant continued to
work relying upon the promise. Labatt on
Master & Servant, 418. 419, and cases
cited ; Daily v. Fiberlold Co.. 186 Mass. S18,
71 N. E. 654 ; Hood T. Packing Ca (Tex.) 133
S. W. 446.
In discussing the standard by which as-
sumption of risk must be measured in our
case, the court starts out with the statement
that a servant never assumes the risk of
the negligence of the master and ends with
the authorities to the effect that "the as-
sumption of risk implied from a servant's
knowledge that a tool, instrument, appli-
ance, piece of madiinery or place of work la
defective or dangerous is suspended by the
master's promise to repair."
Without regard to a promise to repair, l^e
court below instructed the Jury that a serv-
ant does not assume the risk of injury from
danger created by the negligence of the mas-
ter, and he refused to instruct tlie Jury that
if plaintiff continued to use the vrater glass
with knowledge of Its defective condition
and without objection, and knew the risk in-
cident thereto, he assumed the risk of in-
jury. To say that the employ^ assumes the
risk if he contlnnes to work in the presoioe
of a known danger without objection, and
the employ^ does not assume the risk of the
master's negligence, is to assert a proposition
and deny it in the same sentence. Yet in
the opinion of this court these two proposi-
tions are said to be established by the deci*
slons of the Supreme Court of the United
States. This conflict is noted and Is said to
be reconciled by Imposing upon the employfi^
if he wishes to be relieved from assumption
of risk, the duty of making complaint when
he knows of a defect or could discover it by
the exercise of ordinary care, and by re-
ferrli^ his conduct when he does complain,
to the principles of contributory uegUgoice
at least for a reasonable time. In my opUi-
lon this does not reocmdle ths, ctmfllc^ be-
Digitized bydOOglC
K. O) OARBUGHABI* ▼. S0T7THERN BBIX TXLEPHOmB A TSLBGBAPH OOi 507
caose^ If tbe servant does not aasame the
risk of the negligence of the master, It can
make no difference whether he makes com-
plaint of the defect or not If the defect
resulted from the negligence of the master
and the risk Is not assnmed, what Is the
necessity for making complaint?
The Hough Case, which the court says ex-
plains this anomaly, la based upon the as-
sumption' that there was a complaint by the
employ^ and a promise to r^lr, and under
such circumstances the burden of the risk
Is shifted to the master for a reasonable
time, unless the danger is so obvious that
a man of ordinary prudence would not con-
tinue to work in the face of It, in which
event the assumpUim of tlie risk ronalns
with the swrant In spite of ttie ctunplalnt
and promise. In onr case the evidence of
the complaint and promise to repair was in
direct conflict, and the Instructions requested
by the defendant were based upon the Jury's
finding that the plaintiff had not convlalned
of the condition of the water glass.
In any view of the diarge of the ooort,
there are conflicting InstnictlonB on material
pcdnts, and under such drcnmstances this
4!0urt should direct another trIaL Williams
T. Hald, 118 N. C. 481, 24 S. H. 217 : Edwards
r. Railroad, 129 N. a 78. 89 8. E. 780; West^
bnwk T. WUaon, 186 N. a 408, 47 S. & 467.
fm N. C. S3S)
GARMICHAEL v. SOUTHERN BELL TEL-
EPHONB & TELEGRAPH GO.
(Bnpreme Gonrt of North Carolina. Hay 22,
1913.)
1. Evidence (| 121*>— Res Ocsta— Reuovai.
or Teuephone— MrsooNDucT or Agent.
In an action against a telepbtaie company
for wrongful and malicioufl removal of plain-
tifPfl telepbone, evidence of plaintifTs daughter
as to the misconduct of defendant's agent in
throstlng a bill into ber hand and aomptly
tellinff n«r that he would ent the plione out
tf It was not paid promptly was admUslbU as
res geatee.
[Ed. Note.— For other cases, see Evidence,
Cent. DiK. M 303, 307-888, 1117, 1119; Dec.
Dig. s ni.*]
2. Tbial (S 85*>— Receftioh or E)vidence—
Objxotioks.
An objection to the entire testimony of a
witness cannot be snstained where a part of
it is competent
[Ed. Note.— For other cases, see Trial, Gent
Dig. IS 222, 223-^225; Dec. Dig. } 85.*]
8. Dauaoes <I 181*>— Punitive Dauages—
EJvidence—Financial Condition or De-
rndant.
In an action to recover actual and pnnl-
tlve damages against a telephone company for
wrongful and malicious removal of plaintiff's
telephone, evidence of defoidant's financial con-
dition was admissible.
[Ed. Note.— For other cases, see Damages,
Gent Dig. H 473, 474, 499; Dec. Dig. { 181.* j
4. Teuegbaphs and Teuepbonbs (I CT*)—
WlTHDBAWAI. OF SeBVICB — DAICAOEB —
KnOWLEDOB OF CONDITIONS.
Where defendant telephone company wrong-
fully disconnected plaintiff's telephone for u-
leged nonpayment of charges, an InstmctiQU
that if defendant knew that the tdephone was
need to aseertiln tha oondltiMi of plaintHTs
father-in-law, who was in a hospital, such fact
might be considered in determining the damages
snstained by its removal, was improper as plac-
ing a burden of proving knowledge on plalatiff
which he was not required to bear; defendant
being liable for all damages proximately result
ing from ite wrongful act. Independent of knowl-
edge.
[Ed. Note.— For other eases, see Telegraphs
and Telephones, Gent Dig. H 04-68; Dec. Dig.
i 67.*]
5. Tbial (I 296*) — iNBTBVonoNB — Ftnic—
Weight of Evidence.
Where the conrt charged In a prior para-
graph that the Jury could not allow any dam-
ages under the third issne unless they found
from the evidence and by Its greater weight
the burden of which was on plaintiff, that his
telephone was cut out through malice or wan-
tonly or recklessly, it was not material tbat a
subsequent instruction used the expression f*U
you shall find" without adding **by the greater
weight of the evidence.**
[Ed. Note.— For other cases, see Trial, Gent
DiK. H 705-713, 716, 716, 718; Dec. Dig. |
206.*]
6. Teugbaphs and Tei^hones (I 74*)—
Public Sebvicb Cobfobatxon— Dutt to
Pbovidb Sebvicb.
An Instmctiou that the boslneBs of defend-
ant telephone company was one affected with
a public use, and that it was bound to give
to all ite patrons courteons and prompt serv-
ice in the transmission of messages and to be
sure It was sblctly within Its rlghte before it
undertook to deprive one of the j>nbUe ct the
rights of its service, was proper.
[Ed. Note.— For other cases, see Telegraphs
and Tslepbones, GenL Dig. | 77; Dee. Dig.
I 74.*1
Brown, J., dissenting:
Appeal from Superior Gourt, N«w Hanow
Gonnt7; Lyon, Judge.
Action by J. W. Carmlchael against the
Sonttaem Bell Telephone & Telegraph Com-
pany. Judgment for plalntifl^ and defand-
ant appeals. Affirmed.
This action is to recover damages for tiie
wrongful and malicious cutting out of the
plaintltTs telephone. The facts are stated
in the report of the former appeal in Ehe
same action, 157 N. G. 21, 72 S. a 619, 89
L. R. A. (N. 8.) 661.
Mies May Carmldiael, a witness for plain-
tiff, testified as fallows: "I am a daughter
of Mr. J. W. Carmlchael, and Uve on St
James square in the city of Wilmington, and
have been living there for some years. My
grandfather was Mr. W. H. Northrop, my
mother's father, and he was in the hospital
in 1908. My other grandfather was Dr.
James Carmlchael, the preacher. We had a
telephone in our house In lOOS, and had had
it there ever since we lived there. It bad
never been disconnected before. This was
what haniaied: The bell rang and I went
to the door, and this young man was stand-
ing at the door. He asked, 'Is your father
Inr and I said, 'He Is not,' andvhe thrtwt
•For etbsr oaaat ms sante topic and awttoa NT7HBBB la Dso. Dig. A Am. Dig. Krj^Mt'Wui^^ *^
608
78 SOUTHBASTERN BSPOBTKB
(N.a
this bni In the door and tald, 'Give this to
him when he comes in, and tell him If be
don't come down and pay this Mil I will
cat his phone out* His manner was abrupt
I told my father. I told him this gentleman
had come to the door and he was very rude
to me; came in an abrupt way and gave this
message, which I repeated to him; had thrust
the bill in the door and said if he did not
come down and pay the bill, he would cut his
phone out" Defendant objected, objection
overruled, and defendant excepted.
The plalntifl was examined in his own be-
half, and testifled, among other things, u
follows: **Q. As a matter of fact, Is the South-
em Bell Telephone Company a rich corpora-
tion or not? A. They sent me a stockhold-
er's book. Why they sent it to me I don't
know ; but it showed assets of $868,000,000,
which I should say was a very rich corpora-
tion." ObJectUm by dcHtendant, objection
OTermled, and defendant excepted. Cross-
examination: "Ttut was the statement of
the American Bell and the Southern Bell
Telephone Companies together. The con-
solidation waM $868,000,000. That was the
statement of the American T^pfa<nie ft Tele-
graph Company, wbldi owns the Sonthem
Ben, and it IndndeA the Sonthem BeU.
That^ a statonent of the consolidated, bat
they showed separately for the m&kor eom-
pany." This evidence was admitted on the
Issne of pmdtlTe damages.
The manager of the defmdant at Wllminff-
toki testified, ^mopg other tblngs: "Am In
the employ of the defendant company. I
would say that deCehdant Is a reasonable sla-
ed company. I dont know ^lat Is Oie cap-
ital stock. I don't recollect that I ever beard.
I have seen a statement and I recollect it
was in the millions, but can't recoUect exact-
ly what tt was. It is a snbsldtary company
to the Anmlcan TtiesHmua ft Tel^raph
Company.**
The court cbajrged On jury, among other
things, as follows:
(1) ^'And if yon find from tbe evidence and
by the greater weight thereof, the burden
being on plaintiff to so satisfy you, that the
defendant had knowledge, or could have
known by the exerdae of ordinary care, that
the plaintiff's &ther-ln-law was In the hos-
pital and the phone was being used to as-
certain his condition and commnnlcate It to
the plaintiff's wife, yon may consider the
mental suffering that the plaintiff sustained
by reason of the disconnection of the phone."
Defendant excepted.
(2) "If you should find that the defendant
cut out tbe phone through malice to the
plaintiff, or if it was cut out recklessly, wan-
tonly, without any regard of the rights of the
plaintiff, it would still be within your dis-
cretion whether or not to punish the defend-
ant Ton can give damages on the third
issue if you are satisfied It was done reck-
lessly, wantonly, malldoualy; or yon cannot
*
If yon find It was n done." Detflndant ex-
cepted.
"Defendant's business is one which Is af-
fected with public use, and the company is a
public service corporation, with certain well-
defined rights and duties, among the latter
of which is to give to each and all of its
patrons, and to those who detdre to become
patrons, conrteons and -prtmpt service in
the transmission of messages; and it is the
duty of the defendant to be sure that It is
strictly within Its rights before it undertakes
to deprive one of the public of the right of
its service." Defendant excepted.
There was a verdict for the plaintiff, and
the defendant ai^>eal«d £rom tbe Jnd^ent
rendered thereon.
John Bellamy ft Son, ot Wilmington,
J. BratDS Clay, and H. & Palmu; fOr appe-
lant Bonntree ft Garr and H. M. McGUun*
my, both of WUndngton, tor i^pellee.
ALliEfN, J. This action has been tried in
accordant wiQi Uie oidniMi delivered on tbe
former aroeal, and we find no reversible
error.
[1, 2] The testimony of tbe daughter of the
plaintiff as to tiie conduct ot the agent of
tbe defradant was competrait as a part of
the transaction complained of; bnt, if not,
the ezoqrtlon could not avail the defuidant,
as the objection was to the whole of her
testimony, a part at which the defendant
does not contend was Incompetttit Bicks t.
Woodard. 1G8 N. a 647, 75 S. BL 73S.
[S] The testimony of the plaintiff as to tbe
financial ccmdltlon <rf the defendant was ad-
missible on tbe Issue of pnnlttve damages
(Tucker v. Winders, 180 N. a 147, 41 & E.
8); but In any evnit Us admission would
not be teversible error because tbe facta
ol^ected to were bron^t out without objeo-
tlon of 0ie goes-examinaUoD of tbe same
witness, and in the CTamlnatlon of tbe man>
agOT of tire defendant
[4] Tbe first exertion to tbe charge Is that
there was no evidence that tbe d^ltendant
knew, or could have known by the exercise
of ordinary care, that the plaintiff's Cath«^
in-law was in the hospital and that tne phone
was being used to ascertain his condition.
We doubt if there was any evidence of the
fact, but are of opinion it was not necessary
to prove knowledge on the part of the de-
fendant, and that bis honor placed a burden
on the plalntifl which he did not have to
assume.
The verdict of the Jury, read In the ll^t
of the chaise, establishes the facta that the
plaintiff had paid bis phone charges and had
the receipt of the defendant therefor, and
that the defendant maliciously cut out the
phone. If so, tbe defendant was guilty of a
tort and Is liable for all damages flowing
naturally and proximately from the wrongful
act, although not foreseen.
In Johmwn v. B^i^ hfi^dkJ^i^
V. O) OABMIOHAEI^ t. SOUTHERN BKLL TBI«EPHOHS A TELBOIUPa 00. ; SQ9
8. E. 363, the court quotes with approval
from Sutherland and Hale on Damases. as
follows: "Mr. Sutherland, after discussing
many decided cases, says: 'The correct doc-
trine, as we concdve, Is that If the act or
neglect complained of was wrongful, and the
injury sustained resulted In the natural or-
der of canse and effect, the person Injured
thereby Is entitled to recover. Tbere need
not be In the mind of the Individual whose
act or omission has wrought the Injury tbe
least contemplation of the probable con-
sequences of his conduct; he Is responsible
therefor because the result proximately fol-
lows bis wrongful act or nonaction.* 1 Dam-
ages, 16w *A tort-feasor Is Uable for all in-
Jarles resulting directly from his wrongful
act, whether th^ could or could not have
been seen by him. * • • The real que»-
tton In these cases Is, did the wrongful con-
duct produce the Injury complained of, and
not whether the party committing the act
oould have anticipated the result.* Hale,
Damages, 36; & Am. A Eng. Enc. OUI Bd.)
[II The cxltlctiun of the Mcond axcwpt
from the charge ia that Ua htmor need the
expreeelmi, "if yon Shall flnd," without add-
ing, "by the greater weight ct the eTidenee**;
hnt^ if thto shotild be held to be emmecnu,
■tandlng alon^ an exapiinatton of the whole
charge sliowa that immediately before the
part complained of hla honor UM tbe Jury,
*^on cannot allow any damages nnder the
third Issue nnlese you lind from the evidence
and by its greater weight, the burden being
m the plaintiff to so satisfy you, that the
phone was cut out through malice or was
cnt ont wantODty or reddenly."
The learned counsel for the defendant does
not cotttrad, in his carefully prepared brief,
that there was no evliilience to Bni^>OTt a find-
ing for the plaintiff on the Issue of punitive
damages, and it la therefore unnecessary to
discuss the evidence bearing upon the imab,
which in our opinion was suffldeot to Justify
enbmlttlng it to the Jury.
[I] The last exception is to a part of the
charge defining the duty of the defendant to
its patrons, as follows; "Defendant's busi-
ness is one which is affected with a public
use, and the company Is a public service cor-
poration, with certain well-d^ned rights and
duties,, among fbe latter of which is to give
to each and all of Its patrons, and to those
who d^lre to become patrons, courteous and
prompt service In the transmission of mes-
sages; and It Is the duty of the defendant to
be sure that It Is strictly within Its rights
before it undertakes to deprive one of the
public of the rights of Its service." This
rule Imposes no greater burden on the de-
fendant than is imposed on all who are under
legal or contractual obligations to others,
as all must be sure they ate strictly within
their rights before they refuse to perform
K doty arising from contract or inqwsed by
I law, or they will be liable In damages for
I failure to do so. . The language of David
' Crockett, "Be sure yon are right and then go
' ahead," has become axiomatic.
We find DO error.
No error,
BROWN, J. Cdlssentlng). The Judge sub-
mitted these issues: (1) Did the defendant
unlawfully cut out plaintiff's telephone, as
alleged In the complaint? Answer: Yes. (2>
If so, what actual damage Is the plaintiff eu-
1 titled to recover therefor? Answer: (JlOO)
One hundred dollars. (8) If so, what puoi-
I tive damage is the plaintiff entitled to re-
I cover therefor? Answer: ?600. The court
I charged: "If yon should find that the de-
fendant cnt out the phone through malice to
the plaintiff, or if It waa cnt ont recklessly,
wantonly, without any regard to the rights
of the plaintiff, it would still be within your
discretion whether or not to punish the de-
fendant Yon can give damages on the third
Issue If you are satisfied It was done ret^-
lessly, wantonly, maliciously ; or you cannot
if you find' It was so done."
I am of the opinion there is no Just ground
upon the evidence in this case to warrant the
Imposition of punitive damages. The plain-
tiff's own evidence Shows there was a bona
fide difference between him and defendant's
manager as to whether he had paid his
phone rental. Plaintiff admits that his phone
charges became due April 1st, and that up
to June 3d he had not paid them, although
asked for them xepeatedly. He claims to
have paid them to Murray, defendant's clerk,
on June Sd. The defendant had Indulged
him for a Call month. On June 2Qth, being
donned again for his dnes, be stated to de-
fendant's manager, Boyd, that he had paid
them In full. Boyd said, "Our books show
only $1.00 was paid, and If you will bring
your rec^pt around we will be glad to fix
our books." Plaintiff admits that he could
not find his receipt Plaintiff further testi-
fies that on June 27th he and his wife had
gone to a hospital to see her father, and on
return home they found the phone cut out
Plaintiff on June 29th paid the balance of
93 nnder protest and the phone was at once
restored. He was without the use of a
phone about 36 hours. A week afterwards
his wife found the receipt Plaintiff farther
testifies that Murray came to see him and
asked to see the receipt and he declined to
let him have It He furthor says Uut at
once Boyd, defendant's manager, came to
see him and offered to settle the matter and
pulled out a roU of bills, but plaintiff de-
clined to negotiate.
There Is no evidence here of either malice,
want<Hmess, or a reckless dlsr^ard of plain-
tiff's Just rights. There Is evidence of a .
bona flde difference as to tbe payment of
plaintiff's rental. He failed to produce his
receipt until some time after the phone hi^
been taken out, and at)p^Qyiv^(^]®g:^
610
78 S0UTHBAST3BRN RSPORTEB
manager offered to compensate plaintiff for
any damage he may have suBtained, bat
plaintiff refused even to discuss the matter.
I belleTB In holding public aerrlce corpo-
rations to a fall performance of their duty,
bat they are compelled to use baman beings
to tKrform their functions for them, and
homanlty is not Infallible.
In this case an honest mistake was made,
and $100 actual damage Is a very large com-
pensation for the Injury suffered. I find
nothing In the record which In my opinion
warrants the Imposition of "smart money"
upon defendant
062 N. C. 409)
HIMES T. GIT7 OF ROCKY MOUNT.
(Sapreme Conrt of North Carolina. Ifay 28,
1013.)
1. Municipal Cobforations (i 738*)— Gov-
■BNHEHTAL POWEBS — CONSEBVATIOn OF
PoBuo Health.
Under Rocky Mount City Charter, Priy.
Laws 1907, c 209, & 40, subsec. 21, declaring
tiiat the boated of aldermen shall have power
to make and control reaulationa for tbe con-
aerration of public healtn and may create and
appoint a board of health to exerdae and
carry oat such powera under tbe aaperriaion
and control of aach board, tbe laying out of
a street by the city through a brickyard, and
tiie acta of the city'a employes In filling a
hole in the atreet with rubbish, etc, were
chiefly in the ezerdae, or attempted ezardae,
of powers created by the charter* gorem-
mental in character.
CEGd. Note.— For other eases, aee Monicipal
Corporations. Cent Dig. || 1547-1649* 1561;
Dee. Dig. t ^*]
2. HumcjFAi. CoBPouTXomi (I 736*)— Mm-
aaNCsa— liiABxLiTr.
The role that, nnleaa a right of action la
giren by atatote, monldpal corporations may
not be held liable to indiridoala for failure to
perform, or neglect In performing, datiea gov-
ernmental in their nature la subject to the
limitation that neither a municipal corpora-
tion nor other gOTemmental agency may ea-
tabllah and maintain, a nulaance causing ap-
preciable damage to the property of a private
owner without oeing liable tberefor,
[Ed. Note.— For other cases, see Municipal
Corporationa, Cent Dig. f 1552; Dec. Dig. |
786.*]
S. Municipal Cobpokahons (| 742*)— Ntn-
BANCE8— IJABIUTT.
In an action against a dty for maintain-
ing a nuisance, the meaanre of damages was
confined to the diminished value of plaintiff's
properly affected thereby, and hence evidence
of sleknesa attributable to tbe nuisance, while
admiaalble as bearing Indirectly on the dimin-
iahed vahie of the property, could not be
properly considered as a direct dement of
damage.
[Ed. Note.— For other cases, see Municipal
Corporations, Cent Dig. U l&oO, 1563; Dec
Dig.!i 742.*r » » -™.
Walker and Allen, JJ., diaaenting.
Appeal from Superior Oourt; Bdgeeombe
County; Daniels, Judge.
Action by Watson Hlnes against the City
of Bocky Mount to recover damages caused
by an alleged nuisance. Judgment fOr plain-
tiff, and defendant qnwali. Berened and
remanded.
On the trial, it waa made to axvear that
in 1910 plalntlfl and bis family were occo-
pying a house and lot in Bocky Mount, wtaoi
the town authorities, professing to act nndO'
powers conferred by the charter, etc, and
for sanitary purposes, eta, organized and
directed a general cleaning op of the town ;
that plalntUTs house was built on a street
whldi had beea laid out by a land com-
pany, the atreet being through an old brick-
yard, and in whl<di there was a hole 15 feet
long by 12 feet wide and 2 or 3 feet in depth,
and the agents and empl<ves of the town in
carrying out Oie purpose, and actbig under
instructions, threw the trash, rubbish, ttc..
Into this hole, partly to put the same oat of
the way and also with a view of filling the
hole that It might the better be paed for the
streets. The testinumy on part of plaintiff
tended to tshow that In filling this htde the
employes threw garbage, refuse, etc, and
caused fonl stencb and odors, resoltljag in
great annoyance and inconvenience to plain-
tiff and his family, and rendering several of
them sidE with fever, caushig outlay for ex-
pense, loss of time, etc There was evidence
on part of defendant tending to show ttiat no
nuisance had been created, and that there
were other sources of Infection on or near
the premises entirely snfllcient to acconnt
for the alibied aldin»B and mnfih mote likely
to caose it-
On Issues submitted, the Jury rendered the
following verdict:
"(1) Did the d^Midant maintain ot cause
to exist on Holly street a pubUe nuisance by
reason of filling up the hole in front of plaln>
tiff's hons^ as alleged in the complahitt An-
swer: Yes.
"(2) Was the plalAdff damaged thereby?
Answer: Tea.
"<3> If 80, what damage did be snstaln?
Answer: |890."
Judgment on the wdlct fOr plaintiff, and
defmdant excited and appealed, asd^alng
for error: (1) The refusal of tbe court to
nonsuit plaintiff ; (2) allowing as a direct
element of damages ttie ildatesa In plaintiff's
family and costs Incident to same, etc
T. T. Thome and D. V, Bassett, both of
Rocky Mount, for appelant J. W. Keel, of
Rocky Mount, and W. O. Howard, ot Tn-
boro. for appellee.
HOKB, J. (after stating the facts as above).
[1] The charter of the dty of Rocky Mount,
Priv. Ijaws 1907, chap. 209, sec. 40, subsec.
21, provides, In general terms, that the
Board of Aldermen shall have power to
make proper regulations for the conserva-
tion of the pnbllc health and may create and
appoint a board of health to exerdse and
carry out such powers under the supervision
and control of the flrB^me^tipned board.
■For other eaaaa aaa aama topic and saetioa NUKBBB In Dao. Dls. * Am. DIs.
N.O)
HIKES T. CITY OP ROCKY MOl^TT
611
The act« complained of were chiefly In the
ezOTdse, or attempted exercise, of the pow-
ers there conferred, and should be considered
governmental In character. Springfield In-
nuanoe Co. r. Keeseville, 148 N. Y. 46, 42 N.
S. 40B, 80 L. B. iu 660, 51 Am. St Bep. 667;
Love V. City of Atlanta. 85 Qa. 129, 22 S. El
29, 51 Am. St Bep. 64; 1 Abbott on Munici-
pal Corporations, p. 304, 1 147.
[2] This b^ng the correct podti<ni, our de-
cl^ons hold the general rule to be, and they
are In accord with well-consIdered authority
elsewhere, that: "Unless a right of action
is given by statnte, municipal corporations
may not he held dvllly liable to indlvldualB
for failure to perform, or neglect in perform-
ing, duties governmental in their nature, In-
dnding generally all duties existent or Im-
posed upon them hy law for the public ben-
efit" Harrington v. Greenville, 159 N. C.
634, 76 S. B. 849, dting and referring, among
other cases, to Hull v. Roxboro, 142 N. C.
453, 65 S. ID. 851. 12 L. B. A. (N. S.) 638;
Peterson t. Wilmington, ISO N. G. 76. 40 S.
K. 853. 66 U B. A. 959; Mcllhenney v. Wil-
mington, 127 N. 0. 146, 37 S. B. 187. 50 L.
B. A. 470; Moflltt v. Caty of Asheville, 103
N. a 237, 0 S. B. 695. 14 Am. St Bep. 810.
See, also, Hill t. Boston. 122 Mass. 344. 23
Am. Bep. 332; Commonwealth v. Kidder et
aL, 107 Mass. 188; Smith's Modem Law of
Municipal Corporation^ § 780.
This general prlnt^le Is subject to the
Umltatton that nelthn a mnnldpai corpora-
tioD nor other governmental agency la allowed
to estahllab and maintain a nuisance causing
appredahle damage to the property of a
private owner without being liable for It
To the extoit of the damage done to each
pnq;>ert7, it la regarded and dealt with as a
talcing or appropriation of the pnverty, and
It Is wtHl understood that snch an interfer-
ence with the rights of ownershli^ may not
be made or authorized «cept on compensa-
tion first made pursuant to the law of the
land. Little v. Lenoir. 161 N. O. 416, 66 S.
E. 837; Navlns v. City of Peoria, 41 IIL 602,
89 Am. Dec 892; Wlnchell t. WanfceshOt
110 WlB. 101. 85 N. W. 668. 84 Am. St Bep.
902; Eaton T. Ballroad, 61 N. H. 504, 12
Am. Bep. 147; Bohan Port Jervis, etc.
Co., 122 N. T. 18, 26 N. S. 246. 9 L. B.
A. 7U; Joplln MhL Co. t. City of Ji^Un.
124 Mo. 129, 27 S. W. 406; Fertilizer Co.
V. Malone, 73 Md. 268, 20 AfL 900. 9 L. B. A.
737, 26 Am. St Bep. 696; Franklin Wharf
Go. T. Portland, 67 Me. 46, 24 Am. Bep. 1;
Village of Dwlght v. Hayes, 160 lU. 273. 87
N. E. 218. 41 Am. St Rep. 867; I«ngley t.
Augusta. 118 Oa. 590, 45 S. 486, 98 Am.
St Bep. 133 ; 8 Abbott, Mnnldpai Oorpora-
tlons, { 961 ; 1 Lewis. Eminent Domain ^
Ed.) f 65.
[3] In affording redress for wrongs of this
character, injuries caused by a nuisance
wrongfully created in the ocerdse of govern-
mental functions, our decLdons hold, as the
correct deduction frran the above principle^
that the damages are c(mflned to the diminr
Ished value of the property affected, and that
sickness attributable to such nuisance may
not be properly considered as a direct ele-
ment of damage (Metz v. City of Asheville,
150 N. a 748, 64 S. a 881. 22 L. B. A. [N.
S.] 040; Williams v. GreenvUle, 130 N. C.
93. 40 S. B. 977, 57 L. R. A. 207, 89 AXQ. St
Rep. 860), a position whidi finds support in
decisions of other courte of reci^lzed au-
thority (Hugbes V. City of Auburn, 161 N. T.
96, 55 N. B. 389, 46 L. R. A. 636; Folk v. MU-
waukee, 106 Wis. 350. 84 N. W. 420). The
evidence, or some of It niay be relevant on
the question of the diminished value of the
property, and might In given Instances, pre-
sent a case tor injunctive relict but may not
be made the basis for a direct estimate and
award of nncOTtain and unrestrained dam-
SpeaUng to siMue of the underlying rea-
Bcms for the po^tton, O'Brien, Judge, deliv-
ering the opinion In the Hughes Case, among
other things, said: "If an indlTldual Injured
by disease produced by ttie acts or neglect
of a dty, Budi as are stated in the complidnt^
can recover dama^ at all. it must be upon
some princUtle of the common law ; and. lud
It been suggested half a ceatury ago Oiat
snch a prindple existed, the assertion would
have been received with some surprise^ In
the form In which this case comes here there
Is ami^ room to urge in argument dements
of individual hardship, well calculated to
disturb the ndnd and divert it from the
questions of law that underiie the actltm.
On the principle that there can be no wrong
without a remedy, courts are sometimes
astute to discover grounds for relief In cases
of this diaracter, that when applied as gok-
eral prlndples to like eases, are found to be
exceedingly IneonTenient. if not untenable^
and hence very frequently have to be dis-
tinguished, modified, or entirely abandcmed.
The prindple upon whldi the jn^pnent In
this case reste ia that an individual who has
suffered from disease, caused by the neglect
of a dty to observe sanitary laws with ref-
erence to Ite sewer system, may recover dam-
ages team die dty. This prindple, If sanc-
tioned and applied generally to all cases com-
ing within Ite scope, cannot fail to produce
evils mndi more Intolerable than any that
can possibly arise tnnn sudi aete of omis-
sion or commission as the ii^alntlff stetes as
the basis of this action. It must necessarily
become the prolific parent of a vast mass of
litigation which tbo mnnidpallty can re-
qmnd to only hy taxation, Imposed alike
uptm the innocent and the guilty" — and,
further: ^In the c<Histractlon and mainte-
nance of a sewer or dralni^ system a mu-
nidpal corporation exerdses a part of the
govemmentel powers of the stete for the
customary local convenience uid benefit of
all the people, and in' the exercise of these
discretionary functtons the mnnidpallty can-
not be required to respond in
612
IS SOirrHBAfiTBBN BEtFOBTSB ,
Indlrldoals for Injnrj to health resulting
either from omlsBions to act or the mode of
ezerddng the power conferred on It fbr Krab*
He purposes, to be used at discretion for the
pvblie good. I have attempted to state some
of the reasons Hut underlie this prindple
and their, application to this casQ with the
evil results that must follow any departure
fnun it"
App1ylI^; the doctrine as it obtains with
U8^ we must hold that there was error in
allowing the Jurj to consider the testimonr
as to sidEuess of various members of the
plaintUTs family as a direct element in es-
timating the damages. The motion to non-
suit was properly overruled because there
were facts in evidence teailng to show the
existence of an actionable nuisance causing
damage to the proprietary rights of the
plaintiff and entitling him in any event to a
recovery for nominal damages. It does not
appear what was the nature of plaintiff's
tenure, whether as owner or otherwise, bnt,
whether as owner or renter, he Is entitled
to relief for wnmgfnl Injury causing dam-
age to his proprietary rights. Smith v. City
of Sedalla. 182 Mo. 1, 81 S. W. 166; Gran-
tham V. Gibson, 41 Wash. 125, 88 Paa 14^ S
L. R. A. (N. S.) 447, 111 Am. St Rep. 1008.
The case of Downs v. City of High Point
lis N. C. 182, ao S. B. 886, chiefly concerned
the framing and snfBdency of the issues,
and the mind of the court was not directly
addressed to the question presented here.
To the otimt however, that the Downs Oase
sanctions the principle that damage for
spedflc cases of stdmess can be recovered at
the snlt of an individual citizen by reason
ot an injury occurring from the exercise <tf
governmental functions, the case has been
disapproved both in Hets v. Asheville, supra,
and WUliams v, Greenville, supra, and is no
longer authoritative on that position.
And the cases of Durham v. Cotton lOlls,
141 N. a 610. 54 S. B. 4SS. 7 R. A. (N. S.)
821, and Ylciken v. Durham, 132 N. a 880,
44 S. B. 685. are addressed to the position of
restraining the dlschai^e of sewage by rea-
son of apprehended injury, and the amount
of damages for Injuries committed and the
proper rules which should prevail on such
an issue were not directly presented or de*
termlned.
For the error indicated, defendant is en-
tlUed to a new trial, and It is so wdered.
NffWtiiaL
WAIiKBR, X <dlssentlng). 'While I agree
with the majority of the court that the de-
fendant Is liable for damage to the proper-
ty of plalntUI, it is my opinion that It is
also responsible fbr sickness caused by Its
tortious act It may be that the cases sup-
porting the opposite view, which Is now taken
by this court may be numerically larger than
those favoring my position, though I have
not counted them, but I do not think It can
safely be said that the w^gbt ot anthorltyi
or the greater fbrce ot reasoning, Is on that
side; It is held in .numoous well-considered
decisions that a city is not absolved, even as
a govemment&l agent?, from liability for a
nuisance caused in refnlrlng or cleaning
streeta by dumping unhealtfiy reifttn or rub-
bish near a plainWTs houses <m the tbeotj
that street cleaning Is a du^ and a public
ben^t In whltai the plaintiff shared, and
even a promftt abatemeut by the dty ot tlte
nuisance does not pr^vttit a recovory for
damages arising during its continuance.
Haag V. Tandtfburgh County, 00 Ind. 511, 28
Am. Rep. 654; New Albany t. Slider, 21
Ind. App. 302, N. B. 626.
In 28 Cyc. p. 1208, and note 42 et seq.,
wUl be found many cases sustaining the
principle upon which the proposition Just
stated rests, and which also supporte this
text, under the title, "Nuisance Created or
Permitted by Corporation": '*It in the ex-
ercise of Ite corporate powers a municipal
corporation creates or permlta a nuisance
by nonfeasance or misfeasance, it is gailty
of tort, and like a private ooxporajUon or In-
dividual, and to the same extent Is liable to
damages in a dvil action to any person suf-
fering special injury Uiovfrom. So a mu-
nldlpal corporation has no mote rl^t to
erect and maintain a nuisance on Ita own
land than a inlvate individual would have to
maintain such a nuisance on his land; It is
entitled to exercise the 'same righte in re-
spect to the use ot ita property as an Individ-
ual, and any lawful use thereof, or the do-
ing of those things wlddi the law aufliorizes,
cannot it Is held, amount to a nnisanoe In
itself, althouflfh the execution of the power
may be in su«h a manner as to result In an
actionable nuisance." T^e cases titus col-
lected were decided by courte oititled to the
highest reqwct and the greatest consideration
because of thdr admitted ability and learning.
The case of Downs v. Hi^ Point US N.
a 182, 20 S. EL 885, Is dted lu the note to
28 Cyc. p. 1203, as sustaining the doctrine,
and we think it does. It is said that the
only qu^on presented there related to the
framing of the Issdes, but I think not The
Judge charged the Jury as follows: "The
plaintiff alleges that his special damage con-
sista In the fact that proximity to alleged
nuisances caused illness of a serious nature
to himself and family, much expense on ac-
count of such llluess, and that the other
parts of his neighboriiood were not so affect-
ed. If this be true, It Is special damage
within the meaning of the law" — and in that
Immediate connection, the court In Its opin-
ion by Justice Avery, said: "We think there
was no error in refusing to instruct the Jury
upon the evidence that plaintiff could not
recover. The instructioo given was warrant-
ed by the evidence, and embodied the princi-
ple laid down by leading text-writers. Wood
on Nuisances, S! 561-574."
I do not think that Asbury v. Town of
HOnEB T. CITT OV HOCKT MOUNT 61S
N.O)
T. Monroe, 78 8. B> ISl, have any direct bear-
ing or decMve effect upon the question. The
decisions In those casee may well be sustain-
ed upon grounds and for reasons not appli-
cable to this case, and the same may be said
of the cases cited In the opinion of the court,
such as Bull v. Rozboro, 142 N. C 4fi3, 50
B. B. 8S1, 12 L. R. A. (N. 8.) 688; Peterson
T. WUmlngton, 180 N. O. 76, 40 S. a 853, 06
Ia R. A. 95)>; Metz AahevUIe, 160 N. a
748, 64 S. E. 861, 22 L. R. A. (N. 8.) 940. ■
It la said in 2 Wood on Nnlsancea (8d Ed.)
I 061, p. 706, that "the right to have the air
float over one's premises free from all nn-
aatnral or artificial Impurities is a right as
abaolnte as the righto to the soli itself." We
have held Ui Flt^erald v. Concord, 140 N. C.
110, 62 8. R 809 ; Brown r. Durham, 140 N. O.
253, 03 8. & 013; Brewster 7. Elizabeth
Olty, 142 N. O. 11, 04 8. E. 784 ; Kinsey v.
Einston, 146 N. C. 108, 08 S. E. 912; Revis
T. Raleigh, 100 N. G 852, 63^ S. E. 1049; and
qnite recently in Bailey t. Oily of Winston,
JS7 N. C. 262, 72 8. in 966, and Smith t.
Winston, at ttils term, 77 S. E. lOOS^tliat a
mnnidpallty Is under a positlTe duty to
keep' its streets in reasonably passable condi-
tion, and for any defects thereon, due to the
neglect of- its corporate duty or to its negli-
gence, It Is liable in damages to persons in^
Jnted thereby. Where it permits an excava*
tion, or hole. In the street to remain open
and nngnarded, after notice of Its existence,
It has been held liable to a person falUng
therein and breaking his Umb, with conse-
quent Injury to his health. I can perceive
no sabstantlat difference in law, or in fact,
between an injury to health caused by dig-
ging a hole and tlie same general kind of In-
jury caused by filling It up. a%e ground of
action is the wrong to the dtlsen In the en-
joyment of his health and property. It can
make little or no difference to him whether
his health is wrecked as the resnit of bill-
ing in a hole or by Inhaling noxious odors
and (Mmtamlnated air thrown off from rub-
blab w refuse deposited In the hole for the
purpose of dosing It, and there can be no
difference In principle between the two cases.
It is az^ed that It would produce a multi-
pUcl^ of suits, "or become the parent of a
vast mass of litigation," If a city was held
liable In such a ease as this one, and that
taxation to pay the- judgments would be 'im-
posed alike up<Hi the Innocent and guilty*"
The last reason would apply whether we
hold the dty Uable for Injury to health or
4»ily fw Injury to property, and the former
would ap^y to a case for a d«£ect In the
streets by which numerous persona may be
lajored in body and health, or whwe there
are numerous defects In streets causing like
Injury. The teaecma ar« Okerefore Inade-
quate to overthrcnr llie commcm-Iaw prlndple
that "where there is a right, ttiere la also a
mnedy." The daty of the mnnidpallty to
Inep its streets Sn> good condition and proper
repair is sututo^. it la enjelaed by 'tlie
re8.BL-88
law, also that It shall take audi measures
as are appropriate to prevent or abate nui-
sances and to preswve and safeguard the
health of its ddzeus. The corporate au-
thorities of a town are not only required t«
keep its streets in good condition and repair,
but are indictable for not doing so (State v.
CcwamlBsioners, 6 N. CX S71), and are equally
liable^ dviUy or (Mmlnally, for maintaining
a nuisance upon Its land within the corporate
llmlta ^ Wood on Nuisances, | 749. p. 1004).
In a well-considered case It was held to
be a "well-recognised rule that mnnldpal
corporations are liable for torts In certain
classes of cases, Indudlng nulsancea, in the
same manner as natural persons." Haag r.
Board of Ck)nuniBBloner8, 60 Ind. Oil, 28 Am.
Rep. 664, ddng several text-writers, among
other authorities, and quoting this passage
from 2 Addison on Torts (D. A R. Ed.) p.
1310: "A munldpal corporation has no more
right to maintain a nuisance dian an Indi-
vidual would have, and for a nuisance main-
tained upon Its property the same liability
attaches against a dty as to ail IndlvldnaL"
In the Haag Case defendant was charged
with injuring the health of plaintifrs fam-
ily, causing the death of her son by the
erection of a pestiiouse for the detention
and treatmait of smallpox patients. This
d«nentary prlndple was applied in Harper
V. City of Milwaukee, 30 Wis. 366, and thua
stated: "The general rule of law is that a
munid[>al corporation has no more right
to erect and maintain a nuisance than a pri-
vate Individual possesses, and an action may
be maintained against sudi corporation tot
injuries occaslMied by a nnlsanoe for whlcb
It Is reqwnslble, in any case in whldi, un-
der like 'dreumstancea, an action could be
maintained ■ against an Individual Pitts-
burgh Cit^ V. Grier, 22 Fa. (10 Harris) 64
[60 Am. Dec. 66], Brower t. Mayor, etc, of
New York, S Barb. (N. Y.) 264, Young v.
Leedom, 67 Fa. SOlv and Delmonlco v. Mayor,
etc, of Mew York, 1 Sandf. (N. Y.) 222, are
a few of the nnmerouft cases which assert
or recognize this prlndple." See, also, Eolb
v. KnoxvUle, 111 Ttenn. Sll. 76 S. W. 828;
Stoddard v. Tillage of Saratoga Springs, 127
N. Y. 261, 27 N. K. 1030; aty of Ft Worth
V. Crawford, 74 Tex. 404, 12 S. W. 02, 10
Am. St Rep. 840 ; Clayton v. City of Hender-
son, 103 Ey.. 228, 44 8. W. 667, 44 L. a A.
474; City of Talparadso v. Moffltt, 12 Ind.
App. 200, 80 N. E. 909, 64 Am. 8t Rep. 022.
I may remark here that not only doea ttw
case of Harper v. MUwaokee, supra, dedde
the very queation before us, but it has been
expressly recognised and approved by this
court as stating the law correctly in Jones
T. North Wllkesboro. 160 N. a 646. 64 8.
E. 866. Justice Connor says In that oase:
"It is manifest that a nmnldpal corporatloa
has no 1^1 right to eatebUsh and malnteln
a condition whldi oreates a public xralaance
per ae; that la, a condition which aerloostar
•ndangen tba imltH m^zWSf^m)^
6U
18 SOUTHfllASTBBN RBFOBXBB
pl& Harper t. Milwaukee, SO Wis. 365." A
municipal corporatloa Is not exempt from
responsibility when the Injury is accompUsh-
ed by a corporate act, which la In the nature
of a trespasa upon the rights of another, and
It cannot, by any means, or In any manner,
create with Impnnity a public or private
DUlsance, nor has it any more Immunity from
legal liability tor causing or maintaining the
same than an Individual has under the law.
Nooman t. City of Albany. 79 N. Y. 470, 35
Am. Rep. 640; Selfert t. City of Brooklyn,
101 N. Y. 136, at page 142, 4 N. E. 321, at
page 323 (54 Am. Rep. 664). The court said
In the case last dted, that: *'UunlcIpal cor-
porations have quite invariably been held
liable for damages occasioned by acts result-
ing in the creation of public or private nui-
sances, or for an unlawful entry upon the
premises of another, whereby injury to his
property has been occasioned." And, again
(101 N. y., at page 144. 4 N. E. 824, 54 Am.
Rep. 664). speaking more directly to the
Questiou here Involved, the court said In that
case: "The Immunity which extends to the
oonseguences following the exercise of Judi-
cial or discretionary power by a munidpal
body or other functionary presupposes that
such consequences are lawful in their char-
acter, and that the act performed might In
scune manner be lawfully autiiorlzed. When
such power can be exercised so as not to
create a nnlsance, and does not require the
apprc^nlatlon of private property to effectu-
ate It; the power to make such an appro-
priation or create such nnlsance will not be
inferred from the grant" It ms further
decided In that case, with reference to the
liability of the corporation for an act done
under authority of Its charter: "The rule
that a municipal corporation acting under
the authority of a statute cannot be subject-
ed to a liability for damages arising from
tlie exercise by it of the authority so con-
ferred la confined to audi consequences as
are the necessary and usual result of the
proper exercise of the authorlt?." It does
not shield the corporation where Injury re-
sults "solely from the defective manner In
which the authority was originally exerdsed
and from continuance in wrong after notice
of the injury." These principles are also
a^^ovad in Bolton v. Tillage of New Roch-
elle, M Hun. 2S1. 82 N. T. Supp. 442.
There is a distinction made In Selfert's Case
brtwem the Judicial and mlnlatariBl duties
at a munldpal corporation with reference to
its streets, which It will be weU to state
here in the words of that court: **It was
held (in Hlnes t. OUy. of Lockport, 60 N.
Y. 288) that the duty resting upon the cw
poratlon of building, openis& and grading
street^ ddewalka, sewers, etc, was Judicial,
but that after th^ wen constructed the
duty -ot In^iAng them In repair was ministe-
rial, and from an omtaadott to perform that
duty liability araesL** Thla harmonlBea with
our dedaions upon tba mbJecL We hold
such corporations liable for injuries from
defects in their streets, as we have already
seen, whether the defect causes a broken
limb or iiroduces broken and shattered health
directly, or as a consequence of some preced-
ing Injury to the body or limbs. It Is a
very shadowy distinetiott to make between
an Injury to the body and one to the health.
I do not think that it can properly be said
that the pladng of rubbish or other noxious
or deleterious substance In a street, even to
fill a hole. Is the exercise of a judicial duty
or a governmental function.
These ideas find strong support in what
is said by a recent text-writer, not only In
regard to the right of a person who incurs
spedal damage from a tort to sue, but to re-
cover, in such a case, against a munldpal
corporation when he has sustained injury
to his health. "While municipal corpora-
tions have no more right than a private pw<
son to create or maintain a conmion nQi>
sance, nevertheless, so long as Uie lujuiy
suffered by each individual Is the same In.
kind as that suffered by every other Indlvldr
ual In the community, or section of the com-
munity, affected by such a nuisance^ none of
them can maintain a private action against
the corporate body. The only remedy avail-
able in Buch a case Is by Indictment But
if, even though the nuisance be a public one.
a person can show that he has suffered there-
from some special and peculiar damage, dif-
fering in kind from that suffered by him
in common with the rest of the community,
he is entitled to recover in a dvll action
compensation therefor from the municipality
that created or maintained such nuisance.
Speaking generally, munldpal corporations
stand. In regard to the creation and mainte-
nance of private nuisances, on rabstantlally
the same footing as private corporations and
natural persons. Their righta are no great-
er; their clvU responsibility is generally no
less. As a rule, thwefore, they are liable
In a private action to any Individual who
suffers damage by reason of a private nui-
sance created and continued by them."
Williams on Munldpal Liability for Torts,
pp. 306, 306. He supporta his text by the
dtation of many cases, to a Csw of which
I wiU refer specially, and to some striking
passages showing the ground and ext^t of
the dedElon. "These and other facte w^
warranted the eonduslon of the trial oourt
that the act of the defmdant, in thna empty-
ing ita aewers, constituted aa oflenatre and
dangorous nuisance. Moreover, tbe [rialntlff
is found to have sDstalnedr a spedal Injury
to his health and property from the same
cause, and we And no naeon to doubt that
he la entitled not only to eompenaation for
damages tber^ oocaskmed, but also to aadi
a Judgment as will prevent die further per-
petration of the wrong complained ot Oold-
smld v. Com'TB, 1 Eq. Oas. 161 ; 1 Ch. App.
Gas. 84&" Chapman t. Glty^ Rocbeatw.
UiO N. T. 278, 18 .N^i|lfaz8StD!lUft(ltOgM
HINBB T. dTT OF BOOKT MOUNT
61S
« AtD. St Bepi 866. "My ndgbbw bam not
tlie right to excavate taie boU in anch manner
aa to create a stagnant and ofEenaire pond,
flo near ni7 premlaea as to be a private nnl-
aance 1^ rendering mj luraae nnhealtliy. He
cannot use his ]>roiierty for a Emrpoae that
will preTeot my enjoymmt of mlna 3
BlackBt. Com. 317. Tbo same law that pro-
tects my Tight of Eoroperty against InTaston
by private Individuals most protect It from
similar aggression on the iiart of mnnlclpal
corporations. A dty may elevate or depress
Its streets as it thinks proper; bat If , in so
doing, It tarns a stream of mad and water
upon the gronnds and Into the cellars of one
of its citizens, or creates In his neighborhood
a stagnant pond that brings disease upon
his household, upon what ground of reason
can it be insisted that the city should be ex-
cused from paying for the Injuries It has
directly wrought?" Nevlns v. City of Pe-
oria. 41 lU. 602, 89 Am. Dec 39Z It was
held In City of Jacksonville v. Doan, 145
111. 23, 33 N. E. 878, that the dty should not
be excused from paying for Injuries to health
which It has directly wrought, and which
proceeded from a pond of stagnant water,
caused by negligence In improving Its streets.
-The case refers, with approval, to Nevlns v.
City of Peoria, supra, and dtes other strong
authorities.
It is against natural justice to allow the
creation of a dangerous nuisance by a dty,
affecting the health of a dtizen, and then
hold the corporation Immune from damages.
There larks in this prlndple of exemption
the danger of arbitrary power, which may
be oppressively nerdsed over the helpless
and defenseless dtben. As well at once
declare that no one can acquire any rights to
his home which the mnnldpal corporation Is
bonnd to respect, fttr If be cannot live in It
with comfort to hims^ and &mily, of what
value Is it to him? Can the corporation drive
blm from It br foul and offensive odors and
a poisoned atmospbem and tiien restrict
blm to mere property damaget There Is
something more valuable to him, but for
wbixSi the law, aa now dedared, allows him
notbhis. The power of a corporation should
be r^rded aa subject to tlie just limltatton
(hat it Is forbidden to be exerdsed in snch
manner as to create nidaancea Injariona to
all private rights, health as wdl as property^
especially where such a consequence is not a
neceaaary result of inopCTly exerting its pow-
er, and this I believe to be the ccunmon law
of this country. Edmondson v. City of Mo-
berly, 96 Mo. 623. 11 8. W. 990; City of Han-
nibal V. Richards, 82 Mo. 330.
The charter of this corporation (Acts 1907,
c 209, sec. 3^ confers upon it the power to
abate nuisances, not to create them, and re-
quires the corporation to provide for the
proper maintenance, repair, and relation
of the streets. It certainly cannot be argued
from these provisions that the unnecessary
creation of a nuisance Is a lecltlmate exer-
cise of any fnncUon of government poasesBed
by the corporation. If it is n^lgemt In the
performance U ita mlnlsbsrial duties such
as repairing Its streets, and Injury results
to oUwrs of whatsoever kind, we have held
repeatedly that It conunlts a legal wrtmg,
tor whidi It must respond in damages.
ALLEN, J. (dissenting). The case of Aa-
bury V. Town of Albemarle, 78 S. B. 146,
dedded at this term, and the one now being
considered. Illustrate the difficulty of mark-
ing the line between the ministerial duties
of a muntdpal corporation. In the perform'
ance of which it acts as a private corpora-
tion, and its goverimiental powers. In the
Albermarle Case the court said: "It is well
settled that local conveniences and public
utilities, like water and lights, are not pro-
vided by munldpal corporations In their
political or governmental capacity, but in
that quasi private capadty In which they
act for the beneflt of their citizens exclusive-
ly"—and npon this principle held an act
of the Legislature unconstitutional because
It interfered with the discretion of the mu-
nldpal corporation In the establishment of a
system of waterworks, this being done in Its
private capadty; while in this case it is held
that throwing garbage in a hole in the street
is governmental. I do not agree to the de-
dslon in either case. I think the act In the
Albemarle Case constitutional, and that it is
Just and wise, as It simply requires a munlc-
U*al corporation, when It has luduoed anoth-
er corporation to establish a private system
of waterworks within ita limits, to buy or
condemn such system, paying only what it
U worth, before it constructs a system of its
own, and thereby conflscstes property, de-
voted to a use within the corporation, biy its
consent In Uie present case the court ad-
mits that the defendant Is liable, but re-
stricts the recovery to danmges to property,
and denies the right to recover tax sickness
of the plalatlir or his family, or for eqtenaea
incurred in restoring them to health. I ad-
mit that there la authority in favor of the
opinion of tiie courts but to my mind nd
good reason has been stiown for the distinc-
Uon, or for departing from the prin«U>l^
well-nli^ universal, Uiat one who doea a
wrong is liable tor all the damages caused
naturally and proximately thereby. The
rale adopted by the court Is, as it appears
to me. Illogical, and has been arbitrarily es-
tablished because of the fear that if recover.
les are allowed for sidcness, mnnidpsl cor-
porstions may become bankrupt, and also
because of the growii^ tendency to sacrifice
the rights of the Individual to some idea of
public policy. We are warned that 'public
policy Is a dangerous guide in the discussion
of a legal proposition," and that those who
follow it far are apt "to bring back the
means of raror and ddusion",
Digitized by
BbonM be eouriderea at an, I think It wiser
and better tax a Ion to be dbtrlbnted amoDg
all the cltiaeaM ot a mmilclpaUty than to
leave It, where the municipaUty has placed
It, on the ahonldets of one man, and tiiat the
beat public jwUcy Inclndea Joatlce to tbe In-
dlTldnaL
I cannot beltove It la In accordance with
law or Jnstlce that a manldpal corporation
iliaj throw garbage, sewage, etc., on the land
of a citizen, against his will, and bring death
and sickness to hla wife and children, and
that the citizen may recover damages for
Injury to hla land, but can recover nothing
for injury to his wU» and children.
(M S. 0.4M>
ATKINSOK T. SOUTHERN EXPRESS CO.
(Sapreme Court of South Carolina. May 14,
1913.)
1. GOHHEBCK (I 83*) — RbGUUTIOH — IlTrKB-
aTATK SmniKHi' ov LiQVoa.
Or. Code 1912. H m 814. 82S. parts of
the dlvpeosary law, were nnconstttntionalf in
10 far as they attempted to prohibit tbe Im-
portation of liquor from another atate tot per-
sonal uae, at the time of their adoption prior
to the passage by Congress of the WeU> Act,
prohibitiDg interstate commerce in iotozicatiDg
liquors into a state to be used la violation of
tbe atate law.
[Eld. Note.— For other caaea, see Commerce,
Cent. Dig. H 26. 81; Dec. Dig, | 33.*]
2. STATnTis ({ Bl*>— Rehotai. ov Oonanru-
TIONAL ObJEOTIONB— EFncT.
The removal of tbe conatitutionsl objec-
tiona to such statutes by tbe enactment of tbe
Webb Act (Act March 1. 1918, c 90, 37 Stat
699) did not give them force and effect by
operation of law, nor can they be validated by
a snbseguent statute, slace an imconstitutional
statute IB utterly void.
[Ed. Note.— Blor other caae^ see Statutes,
Cent Dig. I 48; Dec. DlgTlBl.*]
8. OoiocEBca (I 14*)— IirroxicATiNa Lxquobs
— WSBB Act.
It was not the intention of tbe Webb Act
(Act March L 1913, c. 90, 87 Stat 699) to in-
terfere with the policy of the state In regard
to the Importation of liquor, but merely to pro-
vide that the enforcement of a atate atatute
^oold not be interfered with by tbe interstate
commerce clause of tbe federal Constitution.
[Bd. Note.— For other cases, see Commerce,
Cent Dig. 85 30, 92; Dec Dig. | 14.*]
4. CoHicxBCK (I 14*)— IirroxzoATina Iaquobs
— Statk RaauuTiOH.
Since the passage of the Webb Act (Act
March 1. 1913, c. 90, 37 Stat 699), which di-
veats intoxicating liquota of their Interstate
commerce character, tbe Legislature has tbe
Eiwer to adopt a statute wlu provisions siml*
r to those in the dispenaary law, kHd unoon*
' stltational vtixa to that enactment
[Ed. Note. — For other esses, see Commerce,
Cent Dig. SI SO, 92; Dec. Dig. | 14.*]
5. COWgTITUnOlTAL liAW (| 240*) — Bquai.
PaoTEcnoN or Laws — Requlatioit ov
Business— iNToxiCATiNa Liquobs.
The classification of counties, so as to al-
low tiie sale of liquor in some of tiiem while
it is prohibited in others, is not a violation «f
Const U. S. Amend. 14, I 1, which provides
that no state ahall deny to any person wtthln
Its jurisdiction equal protectim of tbe laws.
[Ed. Note.— For other cases, see Constitution-
al Law, Cent Dl£. K 688, W2, 693. Wl-m;
Dec Dig, I 240. •) ^ '
Frastf, J., dissenting.
Original aivUcatlon by W. W. Atkinson
for an Injunction against the Southern Bz-
press Company. Injunction granted.
John J. Earle, of Columbia, fbr appellant.
Barron, Moore, Barron & McKay, of Golnuh
bla, for respondent
GARY, C. J. We approach the solution of
the question nnder consideration with a full
appreciation of our responsibility, and Its
far-reaching consequences throughout the
country. And we shall brush aside technical
obJectloDB, and endeavor to rest our con-
clusion opon such well-settled principles, as
must be given recognttion by all, except
those in favor of Judicial legislation.
This is an application to the court. In the
exercise of its original Jurisdiction, for an
order enjoining the defendant from enforc-
ing the following regulation adopted by the
defendant, to wit; "No intozicatiug llq-
uors should be received for, or delivered at;
destination In thi state of South Carolina,
except when addressed to county dispen-
saries establldied by law. If any prohibited
shipment should reach destination in Sontb
Carolina, they must be returned by first ex-
press to consignor, subject to diarge both
vrays."
The determination of tbe plalntlfTs ri|^t to
relief for which he prays is dependent upon
the construction of what Is denominated the
Webb Act (Act March 1, 1918, c. 90, 37 Stat
699) in connection with tbe statutes of the
static which was recently adopted by Con-
gress, and Is as follows: "An act divesting
intoxicating liquors of their Interstate char-
acter in certain cases. Be It enacted by the
Senate and House of Representotives of the
United States at America In Gtngzees as-
sembled, that the shipment at tnunportatkm.
In any manner or by any means whatsoever,
of any spirituous, vinous, malted, fmnented,
or other Intoxicating Uqvor of any kind,
from one state, tntitnT, or district of Uia
United Statei^ or idace nonomtignoiis to tnit
subject to the Jorladlctlon thereof. Into any
other stated territory, or ffistrlet ot tb% 0nlti-
ed Stotes, or place noBcontlgaoiu to but
subject to tbe Jurisdiction thereof, or bom
any foreign country Into any state, territory,
or district of tiie Uitfted States, or place
nonoontlgnons to but subject to tba jurisdic-
tion thereof, whldi aald splritnons, vtaiou^
malted, fermented, or. other Intoxlcatlttc Uq-
uor la Inteoded, by any person Interested
therdn, to be received, poasessed, sold, or In
any manner used, tither In the original pack-
age or otherwise, In violation of any law of
such state, territory, or district of the Unit-
78 SOUTHEASTERN REPORTER
•For outer CI
I same topic and MOttea NDM8BB In Dee. Dig. A Am. Dig. l^^g||t^f^<C^ (^90^'|'^
8.GU
ATKINSOW T. S0T7TBBBN XXFBEB9 CX>.
M7.
ed States, or place noacontlsnons to bat mb-
Jflct to tbe JnrlsdJctiiKi. tbereof, la bereb;
lirvUblted." .
Before proceeding to conatroe aald act. It
may be to state, In a general way, tbe
prerlous law In r^rd to tbe tran^rtatlon
of aleoboUc Uqiuvb froin Me state'into an-
otbar.
In 1880 Oongrev passed an act, entitled
*'An act to limit tbe effect of tbe n^ulatlona
of commerce between tbe sereral states and
witb foreign countries tn certain cases."
Tbls was known as tbe "Wilson Act,** and
Its ivoTLrimu were as follows: *That all
fermeited, dletllled. or otber intoxicating
liquors or liquids transported into any state
or territory or remaining therein for use,
oonsomption, sale or storage therein, sball
npon arrival In such state or territory be
subject to the operation and effect of tbe
laws of sucb state or territory enacted In
the eseidae of its police powers, to the same
exteit and in the same manner as though
•neh liquids or liquors bad be«i produced in
soch state or territory, and shall not be
exempt therefrom by reason of being Intro-
duced therein In original i>ackages or other-
visa" Act Aug. 8, 1880. c. 728, 26 Stat D.
& SIS (U. 8. Comp. St 1901, p. 8177).
In the case of Rhodes t. Iowa, 170 U. S.
412, 18 Sap. Ct 664, 42 Lu Bid. 10B8. It was
held that; onder the Wilson Act, a state law
attaches to an Interstate commerce sblp-
meot, otHv after the axrlral of the goods at
their destination, and tbeir delivery to tbe
oon^gnee; and that a state statute, attempt-
ing to operate upon the Uquors so shipped,
before they reached tbelr destlnatioa and
were delivered to tbe consignee, was oncon-
BtltntkoaL
In tbe case of Soott t. Donald, 165 U. S.
1A>, IT Bnpw Ct 272, 41 L. Ed. 68% the ooort
bad under consideration the construction of
a statute of this state containing provisions
sImUar to those hereinbefore mudimed, and
used this language: "A lav may forbid w
tlrely the nuunifftcture and sale of lntozlcat>
Ing liquors and be valid. • • • But tbe
state cannot undv tbe congressional legis-
lation referred to (Act of 1800). establish a
system which, in effect, discriminates be-
tween interstate and domestic commerce In
commodities to make and use wbicb are ad-
mitted to be lawful. * * * It Is sufficient
for tbe present cases to bold, as we do, that
when a state rec<«nlaes tbe manufacture,
sale, and use of Intoxicating liquors as law-
ful. It cannot discriminate against the bring-
ing of such articles In and Importing them
from other stetes; that sucb l^tslatlon is
void as a hindrance to interstate commerce
and an. unjust preforaice of tbe prodncte of
tbe enacting state as against similar prod-
ncte of tbe otber stetes."
Tbe court In the case of Vance v. Vender-
cook. 170 U. S. 444, 18 Sup. Ot 676, 42 Ll
Ed. 1100^ bad under oontfUleratiAn the cen-
stlttttlonallty of tbe dispensary law ef this
stete, then of force. In that case, tbe court
said: "In tbe Inc^tion it Is necessary to
bear In mind a few elementery propositions,
which are so entirely concluded by the iwevi-
ous adjudications of this court that tbey need
only be briefly recapitulated: (a) Beyond dis-
pute tbe reQ>ectlve stetes have plenary pow-
er to regulate the sale of intoxicating liquors
within their borders, and the scope and
extent of sucb regulations depend solely on
tbe Judgment of the lawmaking power of
the stetes, provided always tbey do not
transcend the Umite of the stete authority
by invading rlgbte which are secured by the
Constitution of tbe United Stetes, and pro-
vided further that tbe regulations as adopted
do not operate a dlscrlmlnatiou against the
rlgbte of residente or citizens of otber stetes
of tbe Unifm. (b) Equally well estebUshed
Is tbe proposition that the right to send
liquors from one stete Into another, and tbe
act of sending the same, is Interstete com-
merce, the regulation whereof has been com-
mitted by tbe Oonstltntton of the United
Stetes to Congress, and hence that a state
law which denies sucb a right or substantial-
ly interferes with or hampers tbe same is In
conflict with the Constitution of tbe United
Stetes." In reply to tbe argumoit that tbe
South Garollna stetnte then under considera-
tion was not discriminatory for tbe reasons
therein r«Ued npon, the court farther said;
''Bnt the wMgbt ot tiie contention Is over-
come, whoi it Is considered that the Inter*
atete (danse at the Oonstltntlon guarantees
tJie right to ship merchandise from one
stete Into anottbsr, and proteete It until the
termination of the sU^nettt, by delivery at
tbe place of consignment; aiad ttUs right is
wholly unaffected by the act of Congress
wbldi allows stete anthorl^ to attach to the
furiglnal package, before sale, but only after
delivery. It follows that, under the Con-
stitution of the United States, every reH-
dent of Bw$k Carolina U fne to receive for
Me own lue liquor from other etatee, and
that the inhmtUme of the atate etatute do
not opiate to prevent Uquori from other
Mtatee from being thipped into such etate on
the order of a resident for hie vse. * • •
The right of persons in one state to ship liq-
uor into mwther state to a resident for his
otcn ute is derived from the Constitution of
the United States, and does not rest on the
grant of the state taw." (Italics added.)
In tbe case of LoulsvlUe. etc, v. Brewing
Co., 223 U. S. 70, 82 Sop. Ct 188. 06 U Ed.
855. the court had under consideration the
statute of Kentucky which, provides that It
shall be unlawful for any common carrier to
transport beer or intoxicating liquor to a
consignee, in any locality within tbe st^te,
where the sale of such liquor has been pro-
hibited by voice of tbe people, under the
local option law of the state. The court
«Ud; "TlMi legauty •£ t?»,^a|^^ude^^gfe
618
78 SOUTHBASTEIRN HEPORTEB
road company toward Interstate sMpmeDts
of IntoxlcatiDg liquors to local option points
In Kentncky miut tnm upon tbe validity of
that legislation as applied to Interstate ship-
ments. By a long line of decisions, beginning
eren prior to Harden, 13S U. 8. 100
£10 Snp. Gt 681, 84 L. Ed. 128], It has been
Indisputably determined: (a) That beer and
other intoxicating liquors are a recognized
and lef^tlmate subject of interstate com-
merce; (b) that it is not competent for any
state to forbid any common carrier to trans-
port such articles from a consignor in one
state to a consignee in another; (c) that
until such transportation Is concluded by
delivery to the consignee, such commodities
do not become subject to state regulation
restraining their sale or disposition. The
Wilson Act (26 Stat at L. 313, c. 728, U. S.
Comp. St 1901, p. 3177), which subjects such
liquors to state regulation, although still in
the original packages, does not apply before
actual delivery to such consignee, where the
shipment Is interstate. Some of the many
later caaes In which these matters have been
80 determined and the Wilson Act construed
are Rhodes v. Iowa, 170 U. S. 412 [18 Sup.
Ot 664, 42 L. Ed. 10881; Vance v. W. A.
Vandercook Co.. 170 U. 8. 438 [IS Sup. Ct
674, '42 L. Ed. 1100] ; Heymann v. Southern
a Oo^ 208 D. S. 270 [27 Sup. Ct 104, 51
Jj. Ed. 178] 7 Ann. Oas. 1130; Adams Exp.
Ooi T. Kentucky, 214 U. S. 218 [20 Sap. Ct
6S3, OS Ed. 972]. Valid as tlw Kentucky
leslslatton undoubtedly was as a regnlation Id
respect to MroBtate eihipments of such artl-
dea; It was ntost obTiowly never an ^ectlve
mactment. In ao tar as It undertook to r^ga-
late Interstate shipments to dry potnta"
In the case of State t. Rookard, 87 S. a
444, 60 & E. 1076, the court had under con-
sideration the qoestion wbettaw there was
error on the part of bis bonw tlie circuit
Judge in rallng that section 1 <tf the dlspeo-
sary statnte of 1909 (29 St at Large, 60)
prohibited tbe keeidnr in posBSssifXi of liq-
uor, under all drcnmstances, wltiiont regard
to the manner of acquiring possession, or
the purpose for whidt it was kept The
court said: "It ae«ns clear Oiat the statute
cannot be so construed. Such a construc-
tion would make the act self-destructive; for
other sections of this act as well as portions
of the dispensary statute of 1907 -(25 St at
Large, p. 463), recognized by this statute as
still in force, provide for the sale of liquor
by county dispensaries; and certainly a legal
sale and purchase cairles the right to the
purchaser to keep In his possession the liquor
he has purchased, provided he does not apply
it to an unlawful use. In addition to this,
one may lawfully keep in his possession liq-
uor purchased for [)ersonal use under the pro-
tection of the interstate commerce clause of
the federal ConstltuUon. An attempt by the
General Assembly to interfere with this
right would be futile, and the presomptlmi Is
v^ strong against tiie legislative IntentlMi
to make such an attempt Indeed, the right
to keep in possession liquor so purchased is
expressly remgnlzed in section 28 of the dl»>
pensary act of 1907, which has not been re-
pealed."
Under the laws of this state, each county
is empowered to exercise what is commonly
known as the right of local option, for the
purpose of determining whether liquors or
beverages may be sold therein, by the county
throu^ an officer called a dispenser, in the
manner provided by the statute.
Elections for the purpose of determining
such question were held In the respective
counties, and as a result the county of Rich-
land (in which the city of Columbia la sit*
uate), and five other counties, voted for the
sale of alcoholic liquors ; and there are dis-
pensaries at this time, in those countleB.
This case arose In Blchland county.
[1] Section 794 of the Criminal Code pro-
vides that "all alCfAoUc liquors and bever-
ages, whether manufactured in this state or
elsewhere, or any mixture by whatsoever
name called, which If drunk to excess will
produce Intoxication, are hereby declared to
be detrimental, and thdr use and consump-
tion to be against the morals, good health
and safety of the state, and contraband."
Section 814 <tf tbe Criminal Code Is as fol-
lows: "All fennented, distilled or other Uq-
uors, or liquids containing alcfrtiol, traqsported
into this Btat^ oc remaining her^ for use,
sal^ consumiitlon, storage, or other dlapoai-
tlon, shall, upon introduction and arrival in
tills state, be subject to tbe <^ratlon and
titeet ot this law to the same extent and in
the same mannw as though such Uqnors or
liquids had been produced in this state."
Section 82S contains the fbllowtng piovl*
sions: "I^o Person except, as expressly per-
mitted in this chapter, shall bring Into this
state, or transport from place to place within
this state, by wagon, cart or other vehlele, or
by any oth^ means or mode of rarrlage^
any liquor or liquids containing alcohol, un-
der a penalty ot one hundred dollars, or
lmi»is(nuDent for thirty days, for each
ottmae, upon conviction thnteof, as for a
ndsdemeuior. * • * Provided, that said
penalty shall not apply to any liquor in
transit when changed from car to car to
facilitate transportation across tbe state.
Provided, further, that this section does not
apply to liquors in course of shipment to a
county dispensary, or purchased from a coun-
ty dispensary and l>elng transported for a
lawful purpose to some place in a county
where there Is a dispensary, and their d^v-
ery la otherwise lawful. All liquors in this
state, except those purchased from a county
dispensary for a lawful use, and those pass-
ing through this state, consigned to points
beyond this state, shall be deemed contra-
band, and may be seized in transit without
8.0
ATKINSON T. 80UTHBKN XXPRESfi 00.
619
raUroftd, express compaDy or otUer common
carrier txansporting or bringing into this state
alcoholic Uqnors for sale or use tberein, ex-
c^t by the dispensary, sball anffer a penalty
of five hnndred dollars."
From tbe foregoing it clearly appears tbat
the provisions of the dispensary law, in so
far as they attempt to prohibit tbe Importa-
tion of liquor ' Into the state from another
state for personal use were onconstltatlonal
when the statute was enacted. It was be-
cause of this fact that liquors for personal
use hare been permitted to be brought from
another state, into a county, even after tbe
sale and use of liquor had been prohibited
therein, as tbe result of an election under
the local option laws.
We next proceed to determine whether tbe
provisions of the dispensary statutes which
we have declared were unconstitutional be-
came operative after the adoption of the re-
cent act of Congress. *
12] The removal of tbe constitutional ob-
jections ta a statute, that rendered It null
and Told, does not by operation of law give
It force and effect, nor can it be made valid,
by a subsequent statute.
One reason why vitality cannot be impart-
ed to an unconstitutloual statute Is that, aft-
er the objections that rendered It null and
void are removed. It might have an entirely
different effect from what it had when it was
enacted. Let us take the present case as an
Illustration. When the elections were held,
under the local option laws of 1907, for the
purpose of determlxiing whether the sale of
hqucw ahovld be permitted or prohibited in
tbe respectlTe counties, the electors were pre-
sumed to know the law. Prior to that time,
the United States Supreme Court had ren-
dered a decision in Vance t. Tandercook, 170
IT. S. 468, 18 Sup. Ct 045, 42 L Ed. 1111, and
In the other cases hereinbefore mentioned,
which held that any xertdent or dtisen of
this state had tbe right to order liquor from
anotlier state^ for his own personal nse; and
tbat when it was brought into the state and
delivered to falm It was not subject to selcnre
under the state laws tor the reaacm that a
state statute^ prohibiting the importatltm of
Uqnor Into the state, was discriminatory, as
long 09 the ttofe reoognUed <( oe a legiUmats
tubject of oommeroe, Ajr autlioris!ln%g ii» sola
fhrottgh a dispensary.
Even when the liquor was Imported, for
personal use, into a county where the sale
thereof was absttlutely prohibited, the liquor
was not subject to seizure.
The fact that an elector may have been
willing to vote against the sale of liquor
in a county, except when It was Imported
therein from another state for persopal use.
does not necessarily show tbat he would be
willing to vote against the sale of liquor
therein when he knew he could not Import
It for that purpose.
"When a statute la adjudged to be'nnotu^
stltntlonal, it Is u if It never had bees
Rights cannot be built up under it ; contracts
which depend upon It for their conalderatlMi
are void; it constitutes a protection to no
one who has acted under it; and no one can
be punished for having refused obedience to
It before the decision was made. And what
is true of an act void in toto Is true, also, as
to any part of an act which la found to be
unconstltntlonal, and which, consequently. Is
to be regarded as having never, at any time,
been possessed of any legal force." Cooley's
Con. lilm. 222.
"Courts are bound to treat nnconstitntion-
al enactments as void. In whatever proceed-
ings they may be encountered. An uncon-
stitutional statute, though having the form
and name of law, Is In reality no law." Kx
•parte HoUman, 79 8. a 9. 60 8. B. 19, 21 L.
B. A, (N. 8.) 242, 14 Ann. Oas. 1106.
The plvotel point in a healing or validat-
ing statute is that it must be confined to
acte ioMch the Legislature could previoutlf
have authorized." (Itelics added.) Stete v.
Whltestdes, 30 8. a 679, 9 8. E. 661, S L. B.
A. 777 ; Stete v. Neely, 80 B. G 687, 9 S. IX
664, 8 L. R. A. 672.
"Although necessarily retroactive, cnratlve
acte are not for that reason invalid ; for the
general rule is that the Legislature can val-
idate any act which It might originallif have
authorized." 26 Euc. of Law, 698, 699;
Hodge V. ScboctL District, 80 & a 518, 61 &
m 1000.
In the case of Stete v. Tufly, 20 Nev. 427,
22 Pac 1054, 19 Am. St Rep. 374, there was
an application for a writ of mandamus,' re-
quiring the Stete Treasurer to Invest a' cer-
tain amount, pursuant to the provisions of
an am^dator7 act, which was passed under
the mlsteken belief that a proposed amend-
ment to the Constltotlon had been legally
adopted, but which tbe court declared was
null and void. Thereafter there was an elec-
.tlon for the purpose of determining whether
said amendment should be adopted, and aft-
er the election the question before the court
was whether tbe subsequent adoption of the
constitutional amendment gave force and
effect to the stetute, which had been declared
to be unconstltntional. In denying the aiK
plication for a writ of mandamus, the court
used this language: "It Is a misnomer to call
such an act a law. It has no binding au-
thority, no vltellty, no existence. It Is as if
it bad never been enacted, and It Is to be re-
garded as never having been possessed of
any legal- force or effecL • • • The act
being void, no subsequent adc^tlon of an
amendment to the Constitution, autborieing
the Legislature to provide for such Invest-
ment, would have the effect to Infuse life in-
to a thing that never had any existence."
In the case of Vance v, Vandercook, 170
U. 8. 468, 18 Sup. Ct 646. 42 L. Dd. 1111. It
was held that the provisions of a prevloitt
stetute, which had been declared to be uncon-
520
78 SODTHBASTBBN BBSPOBTBR
of a itatate anbaeqnently enacted, from
which they were omitted, merdy because
tbey were not Inconsistent with Its prorl-
Bions, when there was a clause which only
repealed thoee statutes that were Inconsiat-
ent with it. In that case the court thus
stated the principle: "The law now before
ua was passed subsequent to the dedslon In
3cott T. Donald, holding that the discrimi-
natory clauses in the previous act were void,
and it entirely omits them. Its repealing
clause, however, only repeals laws inconsist-
ent therewith ; and the argument is tliat as
the provisions found In the previous law,
and which were declared unconstitutional
by this court, are not inconsistent with the
meeent law, therefore they continue to exist,
and the iwesent law must be interpreted, as
if they were written in it The error of the
argument is so self-evident as to require only
a passing notice The very fiact that the
omitted provisions bad been, before the en-
actment of the new law, declared to be un-
constitutional, afTords a conclusive demon-
stration of their IneonslstaQcy. wltb tin
pcesent law." -
[3] It was not the int^tlon of the Webb
Act to interf^e with the policy of the state,
in regard, to the importation of liquQrs, but
merely to proi^de that the enforcemrat of a
state statute would not be Interfered with,
or hampered, by the interstate commerce
laws. In other words, the act in this respect
is passive, while it is incumbent on the states
to enact legislation of an active nature, if
they are desirous of prohibiting the importa-
tion of liquors for personal use or other pur-
pose. But even if Congress had undertaken
to give validity to an unconstitutional state
statute^ jit would have been beyond its
powers.
[4] While the Legislature cannot pass an
act, validating the provisions of the dispen-
sary statute, which we liare declared to be
unconstitutional, ao as to give it a retroact
Ive effect. It nevertheless has the power to
adopt a statute with similar provisions, hav-
ing a prospective effect prohibiting alcoholic
liquors from being imported Into this state.
Such a statute would not contravene any
provision of the United States Gonstltution.
As we have already said, the recent act of
Oongress divests intoxicating liquors of th^
interstate commerce character, and Invests
the respective states with power either to
prohibit tlie ImportaticHi abscdutely, or allow
it only for sale and iim throas^ a dl^en-
aary.
[I] The daaslflcation of the countlfls, ao
as to allow the sale of liquor in some ct
them, while it Is prohibited In others, would
not be violative of section 1, of the fourteenth
amendment to the Oonstltution of the United
States, which provides that no atate shall
itay to any person within its Jurisdiction
tba tqjul protectifHi ot ib» law&
The rule Is thus stated in Ohio t. Dolllson,
tdl U. 8. 44S, 24 Sup; CL 708, 48 Bd. 1062:
"Plaintlir In error * • * urges that to
make an act a crime in ewtain territory and
permit It outside of such territory is to deny
to the citizens of the state the equal opera-
tion of the criminal lavra, and this he charg-
es against and makes a ground of objection
to the Ohio statute. This objection goes to
the power of the atate to pass a local (^tlon
taw, whldb, we think. Is not an open ques-
tion. The power of the state over the liquor
traffic we have had occasion very recently
to decide We said, afflrralng ^lor cases,
the sale of liquor by retail may be absolute-
ly prohibited by a state. • • • That be-
ing 80, the power to prohibit It conditionally
was asserted, and the local option law of
* * * Texas was sustained."
These conclusions render unnecessary the
consideration of the qu^tlon whether the
Webb Aot is constitutional.
It is the Judgment of this court that the
petitioner Is entitled to the order of injunc-
tion for which he prays.
WOODS, HTDRIOK. and WATTS, J3^
concur.
FRASEiR, J. I concede that the above
statement so strongly made Is correct, but
I dissent from the Judgment The regula-
tion complained of in the petition refers ex-
clusively to Interstate commerce, and I think
this court has no Jurisdiction to Interfere.
(H S. a 4C7)
ATKINSON T. SOUTHERN EXPRESS 00.
(Supreme Coort of South Carolina. May 14,
1913.)
Application by W. W. Atkinson to the Su-
preme Court, in the exercise of its oriKinal
Jurisdiction, for an injunction against the Soutb*
em Ezpresi Company. Injoiutioa granted.
John J. Earle, <^ Oolambia, tor wnwllant.
Barron, Moore, Barron & McKay, of Colu^ilat
for respondent
GARY. O. J. The facts In this case are In
all respects rimilar to those in the case of W.
W;. Atkinson v. Southern Express Company, 78
S. B. 516 (in which the opinion has Just been
filed), except that in the present case the ac-
tion arose in 'Kershaw connte where under ths
local option laws the side of liquor Is prohibit-
ed, while the other case arose In Richland
conn^ where the aale of liquor Is not prohib-
ited.
Under the prlndplea annoonoed la the opt»-
ion which has Just been filed, fids defense li
immaterial.
It is the judgment of tills court that the pe-
titioner is entitled to the erd« of injunction
for which be praya.
WOODS, HYDBICK, and WATTS, J3^
concur. *
rRASBB, J. I disssnt See Atkinson opto-
ion.
Digitized by Google
8TATB T. TOLUaON
621
OB B. c. ao
BRowNixra «t ftL T. Hooyas.
(SnpTone Oonrt ct South OuoUim. Ifaj 29^
1W8.)
DUDS a 124*>--OONBTBUOTXOIf— EbTAnS OOH-
TRXD.
A coDTeTance to one for hii natural life
and at bli death to hii heirs liTing at that time,
in fee, not inbject to the debts, contracts, and
liabilitiea of Uie first taker, veats In bim the tee
and not a mere life estate.
[Ed. Note.— For other casea, sea Deeds, Cent
Dig. « 345-355, 41&t428, 4S4, 43S,^, 452;
Dec. Dig. I 124.*]
Appeal from Common Pleas Circuit Court
of Hampton County; John S. Wilson, Judg&
Action by F. W. Browning and others
asaittst J. R. Hoorer. From a Judgment for
plaintiffs, defendant appeals. Affirmed.
W. 8. mungbaat, of Beanfort, tor appel-
lant J. W. Vlnon^ ot BampC(Hi, for t9~
Bpondenta.
WOODB, J. In tUa acttm to eomp&
■pedfle pcofonnance of a contxaet fttr the
■ale of land, the deltodant relied on tbe al-
IwatUm that the plaintiff had only a life
estate, and therefore oonld not make a good
title. This contentlm rests on the taM that
tbe conveyance from Belle M. Ooethe^ an>
der which the plaintiff claimed was "to F.
W. Browning for and during the term of Us
natural life and at Us death to his hdn
living at that time, In fee, and not to be sub-
ject to the debts, contracts and UabiUtlea of
the said F. W. Browning." There can be no
doubt of the correctness of the drcuit court
holding that F. W. Browning took a fee
simple. Davenport v. Eskew, 69 S. C 292, 48
S. EL 228, 104 Am. St Rep. 798; CUnkscales
T. Cllnkscales, 91 & a 08; 74 S. B. 121;
E^n T. Tonchbeny, 98 8. a 060, 77 S. B.
706.
Affirmed.
OART, C. J., and HTDBIOK, WATTS,
and FRASER. JJ., concur.
(K 8. C. Bfl)
STATE ex reL UNDSEY v. TOZJJBON.
(Supreme Court of Sodtb CeroHna. Mar 80,
1913.)
1. Quo Wabbaitto ({ 28*)— PBOCKEDineS—
RuuE TO Show Cavse.
Under Code Ov. Proc 1912, || 462, 466,
abolishing the writ ot quo warranto and declar-
ing that the remedy obtainable therein maj be
obtained hj civil action, and providing Jthat an
action mar be brought b; tiie Attome/ Qmci-
al in the name of tm state or on the complaint
of any private party, or by a private party on
leave granted by the circuit Judge, w£ere any
person unlawfully holds any public oflSce, a
proceeding' by tbe state on the relation of a pri-
vate individual with the consent of the Attorney
General to settle a controversy as to a public
office is an action and tbe law relating to ac-
tiobfl applies to It, and it cannot t>e commenc-
ed by a rule to show cause.
[Ed, Note.— For other cases, see Quo War-
ranto. Cent. Dig. | .30; DecTbig. | 28.*]
S. Qvo WAxaavTO d 47*)— PaoomixHas—
Pbocxbs.
Tbe defect in a rule to show cause why
Hm piajer of a petition in a suit by the stUe
on tbe relatfen of a private Indivldnal praying
the court to settle a right to a public office
arising from the fact that it requires defendant
to answer in less tiian 20 days, while Code Civ.
Proc. 1912, I' 178, provides ■ that the summons
shall require defendant to answer in 20 days,
is a fatal jurisdictional defect, though It be as-
sumed that a rule to show cause is in substance
a summons within section 177 reqalring dvU
actions to ba oenuneneed It servue of sum-
mons.
[Ed. Note.— For other cases, see Quo War^
ranto, Cent Dig. | 48; DecTDtg. 1 47.*]
Gary, a J., dissenting.
Action by the State ot Sonth Carolina, on
tbe relation ot V. N. Llndsey, against BL T.
Tollison to settle a controversy as to a pub-
lic office. Petition dismissed.
KnrtB P. Smttik, of Anderson, for appel-
lant Bonham 4 Watkins, of Anderson, for
respondent
WOODS, J.' The conrt r^^ets that it can-
not, without a violation of the statute law
of the state, settle the controversy as to the
office of supervisor of registration In tliis
proceeding. But the defendant has laXes-
posed a ground of demurrer which seoas
fatal to the proceeding.
The plalntlfr. Llndsey, filed his petition In
this court in the name of the state by leave
of the Attorney General, claiming to be one
of the supervisors of registration of Ander-
son county, and alleging that tbe defend-
ant, Tollison, without authori^ of law la
holding the office, and refuses to surrendw
It The relief asked was as f of lows: "The
plaintiff prays that this court in the ezerdae
of its original Jurisdiction issue Its order to
the said E. T. Tollison, defendant - above
named, requiring him to answer and show
by wimt authority be claims to hold and
exercise the duties as a member of the board
of r^Lstrat^on of Anderson county. That it
be adjudged that the said BL T. Tollison Is
unlawfully ezerddbig the said office, and
that be be excluded tlierefronif and that it
bo adjudged that the said P. M. Zindsey la
entitled to bold and enjoy said officeu That
the said S. T. ToUlaon be required to pay the
cost of this action, together with a fine, not
to ucceed two thousand ^A}00.00) dollars, as
tbe court may adjudge.".
On this verified petition the Chief Justice
made an order requiring the ditfendant to
show cause before this court on May 19,
1918, wbr the iwayer of the xtetlttom ahoold
not be granted, and nantrtng' him to aurva
on the plaintiff's attorney a copy of his an-
swer on or before. Uay 17, Iftl^ The order
was not served on the defendant nntU Uny
14, 1913. detendant appeared and de-
murred to the Jurisdiction ; tlie ground being
that tbe rell^ sought by tbe plaintiff could
be obtained only by a dvU action under sec-
622
78 SOUTHEASTEBN BBPOSTIDB
(B.a
tions 462 and 466 of Code of Procedure, and
thaX a dvll action could be commenced only
t>7 the Berrlce of sommons In tbe form pre-
KTlbed by the C3ode, retinlrlng an answer to
be served In 20 days. •
[1] Section 462. and so much of section 466
of Code of Procedure as la germane, read as
follows :
"462. The writ of Bdre fadaa, the writ of
quo warranto, and proceedings by informa-
tion In the nature of qno wananto^ are abol-
ished; and the remedies faraetofore obtaln-
aUe in those forms may be obtained by
dTll action under the proTlalmis of this chap-
tttt. But any proceeding heretofore com-
menced, or judgment rendered, or rlg^t ac-
quired, shaU not be affected by such aboli-
tion.''
"466. An action may be brought by the
Attorney General In the name of the state,
upon his own information, or upon the com-
plaint of any private party, or by a private
party interested, on leave granted by a cir-
cuit Judge, agaiinst the parties offending. In
the following cases: (1) When any person
shall usurp, intrude into, or unlawfully hold
or uercise any public office, civil or military,
or any franchise within this state, or any
office in a corporation created by the au-
thority of this Btata"
It thua appears that a proofeeding of this
sort is an action, uid that the provisions of
law relating to actions apply to It It has
been held, accordingly, that such a proceed-
ing should not be commenced by a mle to
show caus& Alerander v. McKensle, 2 S.
a 81; State ex reL Parrott r. Brans. S3 S.
a 612, 12 & B. 816; State ez reL Bruce r.
mce, 66S.ai,44S.B.8a
[2] Section 1T7 requires that a dvll ac*
tlon shall be commenced by the service of a
summons, and section ITS prescribes Its req-
uisites, one of which Is that the defendant
be required to answer in 20 days. It might
be said that the mle to show cause issued by
the Chief Justice was, in substance, a sum-
mons, except that it required Uie defendant
to answer in leas than 20 days. But the re-
quirement that he should answer in less time
was a fatal Jnrisdictlonat defect, ai^ for
that reason It is Inevitable that the proceeds
ing be dismissed. ,
The judgment Is that the petition be dis-
missed without prejudice to the plaintiff to
bring his action in the manner prescribed by
law.
Petition dismissed.
FRASEB, J.t concurs.
HYDBIGK, J. I concur In dismlsslBg the
l)etiUon for Oie reasms stated by Hr. Jus-
tice WOODS, and for the additional reasons
that this case is not of such Importance, nor
does it present sudi em«rgeney as to call for
the exercise of the original jurisdiction of
this court I think, under the rule hereto-
fore adopted by this court, it should hare
been first presented to and beard by a circuit
Judge.
WATTS, J., concurs.
OAKY, a J. I dissent The Attorney Gen-
eral has given his consent for the proceed-
ings to be brought in the name of tbe state,
and tbe rcBpondent's attorney stated in open
court tliat if the demurrer was overmled,
he did not desire further time, but was
willing fOr an order of reference to be grant-
ed as to the issues of fact
The respondent has not been deprived of
any substantial r^t, and it will subserve
no useful purpose to dismiss the proceed-
ings.
(» 8. c m
HARBY T. BYERS LQMBEB CO.
(Sapreme Court of Soutb Carolina. Uay 28,
1913.)
1. RrPLEVin (S ll*)~DEif and.
Where defeodant purchased property lo the
open market for value from a person having
control thereof, without notice of plaintiff's
claim, a demand was neecsnaiy in order to sap-
port claim and delivery.
[Ed. Note.— For other caBes, see Beplerln.
Cent Dis. H 85-97; Dec Dig. | 11.*]
2. RBPLKvnr (f 88*)— Dkm&itd— Quwioir fc«
JUBT.
where. In claim and ddivery, the complaint
alleged a wrongful detention after demand, and
the answer alleged that defendant was a pur-
chaser in the open market for value without no-
tice, and a witness testified that plaintiff au-
thorised the sale, the Issue itt demand was prop-
erly submitted to the Snry.
[SStL Note.— For other eases, see Bsplevhi,
Cent Dig. li 843-848; Dee. Dig: | 88.*J
Appeal from Common Pleas Circuit Court
of Hampton Oonn^; T. H. Spain, Judge.
"To be officially reported."
Action by H. J. Harby, trading as Harby
& Co., against the Byers Lumber Company,
From a judgment for defendant i^alntlfl ap>
peals. Affirmed.
J. W. ^cent of Hamptcm, and Bates ft
Slmms, of Barnwell, for appellant Warrw
ft Warr^ of Hampton, for respondent
GARY, O. J. The record contahis the fol-
lowing statement of tacts: "This Is an action
In claim aod delivery brought by the plaintiff
by the- service of a summons, complaint, affi-
davit and bond, in the usual form, to recover
possession of certain chattels from the de-
fendants. The plaintiff claims the property
under a chattel mortgage given by the Osceola
Lumber Cmnpany to plaintiff to secure the
purchase money of tbe intqierty, whldb <Aat-
tei mortgage was duly recorded in the office
of clerk of court for Barnwell county withlh
the time allowed by law. The case fane on
for trial before Judge T. H. Spain and a jury.
*Fw otlMT «UM iM same toplo aad MCtton NUHBBR In Dm.
UoUESTEB T. BABLOW
623
whklk trial reealted In a rerdlct toi tbe de-
fendants. Before adjouromait of court,
counsel for plaintiff made e motton for a
new trial, on tbe grounds that his honor had
erred In snbmlttlnc to the Jury an isaae aa
to whether a demand bad been made or not,
the idalnturs oounael taking the position that
DO demand was neoesBary In this case, and
also on the groend that the Jury bad dis-
regarded ttM diarge given than by the court
TlilB motion was refused, and judgment was
didy entered <m the verdict Frofn Uila lodg-
ment uotioe of Intmtion to appeal to ttils
court was duly served and flled."
[1} We will first consider th« ezc^Hons
raising the question vrtieQier his honor, tlie
preiddli^E Judge, erred In submitting to the
Jury the Issne as to a demand; appellant's
counsel taking the' position that no demand
was necessary.
[2] The complaint alleges the de-
fendants are In possession of the said person-
al property, and wrongfully detain the same
from the plaintiff, although demand has been
duly made upon the defaidaats for the return
ot the said property."
The defendant set up as a defokse **tbat
a part of the property described In the com-
plaint, or some property answering the de-
scriptiOD therein contained, is in possession
of these defendants, having been purchased
in the open market for value from the person
having control of the same, without notice of
the plaintiff's claim thereto, or any part
thereof." It was admitted upon the trial
of the case that If John Hart, former secre-
tary of tbe Osceola Lumber Company, and a
witness for tbe defendant, bad been present,
be would have testified that the plaintiff,
H. J. Harby A Co., authorized him to sell
tbe property In question for $400. It will be
observed that the complaint does not all^e
that the defendant took wrongful possession
of the property, but that the defendant
wrongfully detained It, altbough demand was
made by the plaintiff for the return thereof.
It will also be observed that the testimony
of John Hart tends to show that tbe posses-
sion at the property by tbe defendant In tbe
first instance was not wrongful. Under these
circumstances, bis honor, tbe presiding Judge,
properly submitted to tbe jury tbe Issue as to
a demand for tbe return of the property.
Ladson v. Mostowitz, 45 S. C. S88, 23 S. E.
49, concurring opinion fn HolKday v. Poston,
60 8. C. 103, 38 S. E. 449^ dted with approval
in Bingham v. Harby ft Oo., 91 S. C. 121, 74
S. B. S69.
These views also diow that tbe exceptions
ralsliv tbe question whether the Jury disre-
garded the idiarge of his honor, the presiding
judge, cannot be sustained.
Judgment affirmed.
WOODS, BYDBXGK, WATTS, and FBA-
SBR, JJ.. concur.
UaXSTBB, V. BABLOW.
(Saprone Oonrt of South Carolina. May 2^
1918.J
1. APPKAt AND BBBOB (i 10K1»>— AOWSSIOH
OF EVIDKNCB— BBVnW— NKOmiT OV 0»
JXOTIonS AT Tbiau
Alleged errors In the admissloa of parol
evidence of a second or substituted agreement
would not be reviewed, on the ground that tbe
testimony contradicted tbe terms of a receipt
embodying tbe origiDal contract, where testi-
mony of the original and substituted agreements
was introduced without objection.
[Ed. Note.— For other cases, see Orimlnal
Law, Cent Dig. f| 4161-4170; Dee. Dig. |
lOBi*!
2. Appeai. and Bbbob (I 1066*)-^Bkvzkw—
Pbbjddice.
' Where, In an action to recover money paid
on a contract for the sale of stock, the main is-
sne was not the amonnt Involved, but whether
there was a sobstituted contract resdnding the
original, defendant was not prejudiced b^ the
refusal of the court, after stating the issues
satisfactorily to counsel for both parties, to con-
strue a receipt embodying the original contract,
sod to chaige that. If that contract was made
for the purchase of the stock Itself, the equitable
title thereto Immediately passed to idalntiff.
LEd. Note.— For other cases, see Criminal
Law, Cent Dig. 1 4220; DecTDig. { 1006.*]
Appeal from GomuKm Fleas Clreult Oonrt
of Dillon County; a J. Bamage^ Special
Judge.
"To be officially reported.**
Action by S. P. HcLester agalnrt O. D,
Barlow. Judgment for plalntUC, and defend-
ant appeals. Afflmned.
Gibson & MuIIer, of Dillon, for appellant
T. D. Maness, of Concord, N. C. and J. E.
Owens, of BennettsTllle, tOr respondwt
OABT, a J. Tb» appellant's attomva
preface tbdr argument with ttie following
statement of the Acts, which we adopt:
"The above-oitltled case was brought by
the plalntlfl to reoovo: of tbe defendant the
sum of $1,866, with interest from the dates
of payment on certain cotttm mill stock,
purchased by the plaintiff from the detendr
ant The complaint alleges paymmts ot the
amount In small Itons, running from FebriF
ary 20, 1909, to July 10th. Hie stot^ pur>
chased was 40 shares of the DiUon Cotton
Slllls, at the price of $4,200, represented by
the defendant according to complaint to ba
worth $140 a share. Plaintiff alleges that it
was absolutely worthless, and be Qdalntlff)
received nothing from the money so paid.
He alleges also that on the day of
August 1910, tbe contract of purdiase was
rescinded, and defendant agreed to return
the money paid. The defendant denied the
contract of rescission, and alleged that the
contract of sale was entered Into In good
faith, and was still blndi^, and that be was
ready and willing to transfer the stodL, upon
the balance of the purchase money b^g
paid. He also, by way of affirmative relief.
•rut •Umv esses Ma ssns tople sad ssetloa NUMBStB In Dse. Dig. 4 Am. Dig. Ksy-NOt Ssrlss
' Digitized by
5^'
78 SOUTHBASXEBM BBFORTBB
(S:a
ufted fbr spedfle performance of tbe con-
tmct, and, In case plaintiff refused to com-
plr> that then tbe atodc be sold at public
anctlbn, and Uie proceeds be applied to the
pozchase price thereof, and that defendant
hare Jndgmoit against ttie plaintiff for any
defldency. The case came on to be h^rd
at the fall term, 1912, In the court of com-
mon pleas, before Judge Bamage and a Jury,
and resulted In a rerdlct tar the plaintiff In
the full amount asked.
"Tbe exceptions raise practically two ques-
tions: (1) Whether or not there was error on
the part ct the court In admitting oral testi-
mony to vary and contradict the terms of a
receipt, which was In evidence, and which
defendant contended was a memorandum
onder the statute of frauds. (2) Whether or
not it was error for the court to refuse to
construe the said receipt or memorai;idum,
and charge tbe Jury that under the contract
of sale the equitable title to the stock vested
In McLester and became his property; the
defendant holding It only as security for the
balance of the pun^iase monccr*"
[1] We proceed to consider the exceptions
raising the first of said auestlons. Testimony
in behalf of the plaintiff, for the purpose of
proving the original as weU as the secoud
or sabetltnted agre^ent, was introduced
without objection. These exceptions must
therefore be overruled.
, [2] We will next consider the exceptions
raising the second question. The receipt
therein mentioned was as follows:
•*l,OOO.Oa . DUlon. S. a Feb. 20. m
"Becelved of S. P. HcLester tai hundred
and OOAOO dollars, part payment on forty
(40) shares Dillon Cotton Mills; balance due
me Is thirty-two hundred (¥3,200) dollars.
Said stock to be transferred to 8. McLes-
ter soon as paid for. O. D. Barlow."
Hla honor* the presiding jadie^ thus stated
the issues to ther Jury, which were admitted
Iqr the respectlvft attorneys to be correct:
"Now, gentlemen, I am going to Mideavor
la a fiBw words to state what tiie issues are,
as I coneelye Oem. As I understand, tbe
plaintiff ' claims that there was a substitute
agreement; in otber words, that he was to
get bade his money under certain conditions
set oat in the complaint. Tbat, as I under-
stand It, the main Issue here to-day, that
•SDbatltute agreunent; or, In other words,
the second agreement tbat Is dalmed took
the place of tbe first Now, tbe defendant
oomes Into court, and dmles that snbstitnte
agreonent, and sets up a coonterdalm. He
aAs, not only tbat tbe plaintiff be denlad the
rdief tbat be aeto for, but Umt be bare
Judgment agslnst the plaintiff for tbe balance
of the purchase money.
"The Court (addresdng counsd) : Z beUeve,
gentlemen, those are the issues?
"Mr. Owens: Yes, sir.
"Mr. Gibson: Tes, sir.**
After hla b<mor, Uke' presiding jo^, bad
charged the Jury, tbe leeozd ibowa Qiat 0w
following took place:
"The Court (addressing ooonatf): .Im flien
anything further either side wishes charged T
"Mr. MuUer: I would like for the «Dait
to construe tbat recdpt, and to diarge that.
If this contract was made for the purchase
of this cotton mitt stock, tbe equitable title
to that sto<k immediately passed to tbe
plaintiff.
"The Court: I don't want to go into ttattg
Mr. MnUer."
After the verdict was rendered, the follow-
ing agreement was stated in open court:
"Mr. Sogers, It is agreed that tbe verdict
shall stand as it Is, and tbat the Interest be
calculated by the clerk of court, as demand-
ed Id tbe cqmplalnt"
As the main issue was, not as to tbe
amount Involved, but wliether there was a
substituted agreement, we fall to see wherein
tbe ruling of his honor, the circuit judge,
was predudldal to the rights of the aivel-
lant
Judgment affirmed.
WOODS, HTDHICK, WATTS, and FBA-
SBB, JJ., concur.
(9B s. a lU
ZX)OAN T. 8TANI(EZ et aL
(Supreme Court 9i Sooth Carolina. May 28,
Wis.)
Elbctzons (i 97*)— Spkcial MniricxPAi. Elxc-
TTon— BaaisraATioN— RioBT to Vots.
CHv. Code 1912. | 220. provides that ere^
male citlsen 21 years of an end npirardt Itav-
ios qualifications prescribed by section 200, and
who baa resided within the coiporate llmiu of
any Incorporated city or town for fonr montfas
previous to any munidpal election, and has paid
all tazei doe and collectible for tbe preceding
fiscal year, and who has been regUtered as here-
inafter reQoired, shall be entitled to vote at all
municipal electfonji in his city or town. Sec-
tion 221 provides that 90 days before the hold-
ing of a regular dection in any corporate dty or
town in the stste the mayor shall appoint a
topervisor of registration, who shall register
all qoaUGed electors within the limit of tbe city
or town, that the names of all qualified electors
shall be entered in a book of r^lstration whidi
at least one week before the election and Imme-
diately after holding the same shall be filed la
the office of the clei^ or recorder and shall be
a public record provided that 20 days prior to
any special decnon the registration hook shall
be open fbr the registration of names of qualified
electors therein and diall remain open for 10
days, etc. that the special reglstratioo for
spedal elections provided for was intended to
supplement the regular registration, so tbat,
where electors bavfiig quaUfications of section
200 bad been registered under general municipal
registration, they were entitled to vote at a spe-
cial electioo without further registration.
[Ed. Note.— For other cases, see Elections,
Cent. Dig. I 93'; Dee. Dig. | 97.*]
Petition by George P. Logan against
Charles C. Stanley and others. Granted.
B. H. 'Wa.mh, of GolumUa. .for appeBant
H. N. Eidmunds, of Columbia, for respond^its.
•Far ««fa«r e«MS bsb* topis sad seetlfa HUMBBR la DMk Dig, a Am. Dig.
3. C.) DODD T. SPARTANBURG RT.« OAS A JCLSCTRIO 00. 525
WOODS, J. Tbe peUUoo states tbe facts,
and the sole qaestion of law InvolTed Is
whrtber tbe qnallfled electors of tbe of
Colombia and tbe town of Sbandon are en-
titled to Tote uu6at the general monidpal
reglstrati<m at tbe special election, mentioned
in tbe petition, to be beld on June. 3, 191S,
or wbetber tbc7 sbonlil be excluded from, vot-
ing nnleas tbej leglater nnd^r tbe statutory
provision for registration for spedal munici-
pal electloiia.
The question arises under the followtag
sections of the Code of 1012:
"220. Bre>7 male dtlxen of this state and
of the United States wC the age of twwty*
one yeaxB and upwards, bi^Tlng all tbe Quall*
flcatlona moillonea In aectioa SOU, and wbo
baa resided within tbe Incorporate limits of
any incavorated dty or town In this
Btiite for fonr montbs prerlons to any munici-
pal deetlon, aUd baa paid all taxes due and
collectible for tbe preceding fiscal year, and
who has been registered as berelnafter re-
quired, sbaU be entitled to vote In all monl-
dpal Sections of bis dty or town.
"221. Ninety days before the .bolding of a
Mgular election in any Incorporated d^ or
town tn tbis state the mayor or Inteadant
tbezeof shall i^ipolnt <nw discreet Individual,
wbo ts a qualified doctor of socb munidpality ,
as supervisor of r^iistration tor suds dty
or town, who shall hold. oSce for tbe term
of two years and nnUl his ancceasor has been
appointed and qualified, and wbo shall re-
cdve as compensation for his service one
dollar per day for each day actually engaged
in the discharge of his duties, .to be paid by
tbe town or dty, whose duty it shall be to
raster all qnailflsd electors within the limit
of the incorporated dty or town. The names
of all qualified dectors of such municipallt?
diall be entered in a book of registration,
which at least one week before the election,
and imm«dlately after the holding of the
election, shall- be Qled in the office of the
derk or recorder of such city or town, and
shall be a public record open to the Inspec-
tion of any dtizen at all times: Provided,
that twenty days prior to any special elec-
tion to be hdd as aforesaid the books of
reglstTation shall be opened for the registra-
tion of the names of the qualified electors
tberdu, and shall remain open for a period
of ten days: Provided, that in the dtiea of
over fifty thousand inhabitants there shall
be appointed three supervisors, wbo shall
represent different political parties or faci-
tlons of parties. Immcdiatdy preceding any
nmnidpal deotlon to be held in any in-
corporated dty or town In this state, th^
superflscHT or supervisors * * * (as tbe
case may be) shall prepare for the use of the
managers of dection of eadi polling precinct
In such dty or town. a r^stration book or
bo<As tor each polling product In such dty
or town, containing the names of all electors
oititled to Tote at audi polling prednd at
said dection."
In Bray v. Florence, 62 B. G. 67, 89 S.
E. 810, the court hdd thftt the requirements
of the Constitution that "the General As-
sembly shall provide for the r^^stratlon of
all voters before eadi dection in munldpal-
ities" refers to goieral and not to special
munldpal dectlona.
Tbe meaning of the statute is obscure and
the point la not free from difficulty. Tbe
statute gives two oppfwtunities for r^lstxa-
tion: On^ tbe general nmnidpal reglstza-
tlon first imvided for In section 221 ; and,
tbe other, a special regl8tratl<a to be opened
20 days before any spedal dection tor 10
days. We fUnk tlie better construction Is
Qiat the spedal regiatratlon for special deo-
tions was Intended to emblement tbe regu-
lar registration in order that those who are
qualified but not duly rt^stered ^nce tlie
last general dectton tnay not be d^ived ot
the light to vote at spedal elections. Tbere
Is nothing la the stetnto dearly indicating,
a purpose to deoy the right to vote at vedal
dectlons under the goienl munldpal reglB-
tiatlcn; but, on tbe contrary, section 220
confers on every dtlzoi otherwise qualified,
"who has been registered as hereinafter re-
quired," "the right to vote '*at 'all' miltaldpal
dectlonii of bis dt^- or town." It tollows
that when a dtUen avails himself of dther
of the oI>portnnitieia of r^stratlofk ''herein-
after provided for** be has complied with the
law. These condderationa are controlling
against the iwre form of the corttficato to
section 22S, which contalna the ' statement
that the person named tberdn 'is entitled
to rote 'to tbe nnnldpal elscti«i on tbe
day of — ^ 1 1 — -w" Th« vipnm-
don of the right to vote at one time stand*
ing -alone might Imply - an Intention to ex-
clude the right at anoUier, but It has little
wdght when opposed to the more direct pur-
poses and provldons of the statute^ especial-
ly vithea It Is found only in Uie form of the
certificate.
The Judgment of the court la that tbe pray-
er ot the petititm be granted.
GABY, C. J., and HTDRIOK, WATTS, and
FRASER, J7., concur.
(N 8. C. »)
DODD V. SPARTANBURG BT., GAS A
SLECTBIO CO.
(Supreme Conrt of South Carolina. May 28,
1918.)
1. Evidence ({ 474^*)— O^inioM Evidbito»~
ADicisBiBmrr.
In an acti(m by one ran down by a street
car at a public crossing which was adjacent to
the tracks of a steam , railway, opinion evidence
as to whether the gong aoDouncing the approach
of the street car could be heard when a nd|^t
train was' pasriBff along the railway trades is
admissible, for the sazroundingB could not be
*rBr othsr MHB BM Hins topla aod aaoUoa NVICBSB in Dm, Olg. * An. Dtif. K«r-:
626
78 SODTH&ASTBBN BEFOBTEB
(8.C.
reprodnced to ag to afford the jary the same
opportnnity of formins a correct opinion as
when viewed bj the witneas, and therefore auch
evidence waa tu>t an invai^n of the provlace of
the jury.
LEd. Note.— For other cases, see Evidence,
Cent Di;. H 2220-223S; Dee. Dig. | •]
2. Appeal and Ebhob ({ 1050*)— Review—
Habuless Ebrob.
A party cannot complain of the error in
the admission of evidence, where similar evi-
dence was admitted without objection by him.
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. H 1068, 1009, 415^-4157,
4166; Dec Dig. | lOSO.*]
3. Neoliqbncb (I 85*>— GomniBiiTOBT Nbo-
I.XQENCB--(^ILDBBN.
A child under seven years of age cannot he
guilty of contributory negligence.
[Ed. Note.— For other cases, see Negligence,
Cent Dig. SS 121-128; Dec Dig. { 85.*]
4. Btbeet Bailboads (I 116*) — Injttbt to
Persons on Tback — Daicaoes— Pdkitivb
Dahaoea.
Where servants of a street car company, in
charge of a car. ran at a high rate of speed past
a crossing before which they were reqnired to
atop, and which was used by school children,
being at the intersection of three streets, puni-
tive damsges are properly allowed in an action
by a child injured.
[Ed. Note.— For other eases, see Street Rail-
roads, Dec. Dig. I 115.*]
Ai^:)eal from Common Fleas Circuit Court
of Spartanburg County ; Frank B. Gary,
Judge.
Action by Willie Dodd, by her guardian
ad litem E. F. Dodd, against the Spartan-
burg Railway, Gas ft Electric Company.
From a judgment for plaintUT, defendant ap*
peals. Affirmed.
The exceptions were as follows :
"a) In allowing tbe witness W. a Gash,
astinst tbe objection of tbe d^endant, to tes-
tify as to a matter of c^ilnion and to answer
the followim quesdon: *Q. WitH a trdght
train gtdng right down by there, and those
children standing there looking at the fright
train, do yon think they could hare heard
the gonc7 The error being, as it is respect-
fully submitted, that this was altogethw a
matter of opinion, and allowed the witness to
give bis opinion on one of the material
points In the case.
"(2) In ref n^g to grant the motion of tbe
d^endant for a nonsuit as to the cause of
action for pnulttve damages. Tbe ernw be-
li«, as is respectfully submitted, that there
was no evidence tending to prove any willful-
ness <» wantonness or nieb recklessness as
would warrant a Jury in conitedlng that the
defendant was willful or wanton.
'*(3) In refusing the defendant's motion to
direct a ver^Uct to be rendered in ftivor of
the defendant as to the cause of action for
punitive damages. Tbe error being, as is
respectfully submitted, that there was no evi-
dence tending to prove any willfulness or
wantonness or such recklessness on the part
of the defendant as warrants the submiaktm
of this issue to the Jury.
"(4) In charging and Instmctins ^ Jnry
in reference to the cause of action ton puni-
tive damages as follows : *I cha^ you, fur-
thermore, in determining whetuer or not this
defendant was willful or reckless or guilty
of such negligence as amounted to that, it Is
your duty to consider what the cirenm-
stances were. As "negUgence" is a relatlTe
term, what would be negligence under one
set of drcumstances might not be under an-
other.' The error being, as It is respectfullr
submitted, tliat bj this charge bis lionor in
effect instructed the jury that they conld
render a verdict against the defendant for
punitive damages, even though tbe defendant
might have been guilty only of n^llgence.
Farther, that by this charge his honor In
effect instructed the jury that tbe same act
might be willful, or wanton, or negligrait.
Whereas, It Is respectfully submitted, the
same act cannot be both willful or wanton or
at the same time negligent
"(JS) In charging and instructing tbe jury
at the request of tbe plalnticr as follows : 'A
driver or motorman, when operating his car
on a street where he has reason to e:Qiect
the presence of clilldren, must exercise a
tiigh degree of watchfulness, and if be sees,
or by the exercise of ordinary care could
see, a child of toider years on or near the
track, he la not entitled to act on the assump-
tion that such child will get off or stay off
the track, hut must at once use all reasonable
efforts to avoid injuring Mm, and, If neces-
sary, use all reasonable means to stop It in
time to avoid injury, and, if he fails to do
so, the company Is liable for resulting dam-
ages.* The error being, as It Is respectfully
submitted, that In so charging his honor eUm>
Inated from coneAderatlon of the Jury the
question of the capacity and IntelUgence of
the child, and also eliminated the question as
to whether or not a reasonable man would
have thonght that tbe cMld vras not near
enough to tbe track to be In danger, and al-
lowed the Jury to find a verdict against the
defendant, even though the evid«ice might
discloee that the child was of sufficient ca-
pacity and IntelUgence to understand and
appreciate danger, and even thou^ a rea-
sonable man ml^t have thot^ht that tbe
child was not In a place of danger. The error
further being, as is respectfully sabmltted,
that tUs was a cSiax^ upon the facts, con-
trary to the provisions of section 26, art 5,
of the Constitution, and Instructed the Jury,
as matter of fact, what degree of care a mo-
torman dumld aerdse and what hl> dnty
was in case he saw a child of tender years
on or near tbe track. The error further be-
ing that by this charge his honor placed upon
the defendant the duty of exercising a hls^i
degree of care, whereas, it Is respectfully
submitted, a defendant under the circum-
stances supposed Is only called upon to oter^
dse reasonable care.
•For oUmt eases sss hum topic and swtlon NUllBBR In Dee. Dig. * Am.
s.a)
DODD V. SPABTANBURO BY., OAS A ELECTBIO 00.
627
"(6) Because bis bonor erred in cbarglag
aj follows: 'If the employ^ sees an infant
of very tender years on Its track. It is Its
duty to do wbat it should do, and If neces-
sary, to stop. That does not mean when he
sees an Infant at some distance he must stop.
He is obliged to commence at once to give
warnlDg. It may be by ringing the bell, or by
putting on brakes to avoid injuring that
cblld, and. If it is necessary, he must stop.'
The error being, as is respectfully submitted,
that his honor in so charging charged upon
the facta contrary to the provisions of sec-
tion 26, art 6, of the Constitution, and in-
structed the Jury as to what acts the motor-
man should have done under the supposed
circumstances to prevent an injury, whereas,
It is respectfully submitted that it was a
question entirely for ihe Jury to say whether
or not any act or acts of the defendant or
its motorman was a negligent act
"(7) Because It is respectfully submitted
that bis honor erred in refusing to charge
the defendant's fourth request to wit : 'The
evidence in this case does not warrant a ver-
dict to be rendered against the defendant
company for punitive damages.' The error
being, as is respectfully submitted, that there
was no evidence in the case showing any
consdons act, or failure to act on the part
of the agents of the defendant which brought
about the injury; on the contrary, tne evi-
dence shows that the agents of the defenidant
company began to take precautions to pre-
vent the allied injury as soon as the motor-
man saw the child was In danger, and that
the injury was not caused by any wllUulness,
wantonness, or reckleasness on the part of
the defendant
"(8) Because his honor erred in instruct-
ing the Jury in substance that they could find
a verdict for actual damages, provided they
concluded the defendant was guilty of negli-
gence, and could also at the same time and
for the same act find a verdict for punitive
damages if they find the defendant was
guilty of willfulness or wantonness. The er-
ror bdng, as is respectfully submitted, that
the same act cannot be both negligent and
willful and wanton, and his honor should
have instructed the Jury that if the act of
the defendant was negligent a verdict for
punitive damages could not be rendered, and
that If the conduct of the defendant was will-
ful or waaton- a verdict for ne^^lgence could
not be rendered."
Sanders & De Pass, of Spartanburg, for ap-
pellant John Gary Evans and Nicholls &
Xlcholl8» all Qt Spartanburg, for respondent
6ART, O. J. The all^ttons of the com-
I^aint material to the questions presented
by the exceptions, &re as follows: "That
on or about the • < •• day of October, A. D.
1911, tbe plaintur, with other school children,
were on their way txom school, and it be-
came necenaiy to ckmb tbe tnekm of the de-
fendant company to reach plaintiff's hou]^'
in said city, and that while plaintitf was on
said track the defendant caused Its trolley
car to approach the crossing and the place
where plaintiff was standing at an unlaw-
ful high rate of speed and without notifying
the plaintiff, although she was in full view of
the motorman running said car, he willfully,
wantonly, recklessly, negligently, and In ut-
ter disregard of the rights of plaintiff, caused
the said car to run Into and collide with the
body of plaintiff, knocking her violently to
the ground, bruising her body, filling her
with intense fright and shocking her nervous
system to her great damage In tbe sum of
$5,000." The defendant denied the allega-
tions of negUg^ce and recklessness, and set
up the defenses of contributory negligence
and assumption of risk. Tbe Jury rendered
a verdict in favor of the plaintiff for $200
actual damages, and for $200 punitive dam-
ages. The defendant appealed upon excep*
tlons which will be reported.
[1] First Exception. Tbe record shows
that the question raised by this exception
thus arose, during the examination of W. O.
Gasli, a witness for tbe plaintiff: "By John
Gary Evans. Esq.: Would it be possible for
any one, standing where those children were,
with a freight train running on that track
to hear that little gong, If a locomotive was
pulling tbe frelglit train 1 A. I could hear
tbe train going down rumbling. Q. What
kind of train was tlut? A. Just a freltfht
train. Judge Gary: I think It Is a matter
of common knowledge that all freii^t trains
are noisy. Q. Will you state, under the cir-
cumstances there, whether It would have
been possible, under those conditions, for
tbose children to have heard the gong?
Judge Gary: I role that having given the
facts to the Jury, be can then express his
opinion as to whether or not it could have
been heard. (Objection by C P. Sanders,
Esq., on the ground of opinion evidence.)
Q. With a freight train going down r^ht
by there, and tbose children standinjg there,
looking at the freight train,' do you think
they could have beard tbe gong? A, I dpn't
think they could have heard It."
The sole objection to the testimony was on
the ground that It was opinion evidence.
The exception, however, assigns error In
"that this was altogether a matter of opin-
ion, and allowed the witness to give his
opinion, on one of tbe material points of tbe
case." Waiving the objection that the first
ground was too general, and that the second
ground la not properly before this court for
consideration, as it was not urged upon the
trial in the circuit court, the exception can-
not however, be suataiited. The surround-
ings could not be reproduced, so as to afford
the Jury the same opportunity of forming a
correct opinion as when viewed by the wit-
ness. The ruling of his honor tbe presiding
Judge Is fully sostalned by the case of Baslw
T. BaUway, 68 S. a 811, S7 8. Ur^BSS. .
Digitized by VjOOglC
78 80UTH1DASTERN BBPOBTBB
[S] There la atUl uiotber reasont why the
exception cannot be auatalned, to wit, when
a Bimllar question was propounded to the
witness. It was answered wltbont objection.
13] The next qnestlou that will be deter-
mined Is whether the plaintiff, who was an
Infant under sevoi years of age at the time
of the Injury, was snbject to the defense of
contributory negligence. In tlie case of
Tucker r. Buffalo Mills, 76 8. a 588, 57 8. XL
626, m Am. St Bep. 967, cited with ap-
proval In Goodwin v. Columbia lilUa Co.,
SOS.a848,618.B.80O. the court held that
tn Ufant between 7 and 14 years of is
presumed to be Incapable of commtttli^ con-
trlbntory negligence or trespass, and that it
was Incumbent on the party alleging such
n^lgence or trespass to orercome the pre-
sumption of Incapadtr; and that. If the
facts were susceptible of only am Inference,
It was to be drawn by the court, otherwise
b7 the jni7. In that case the oonrt said:
"The charge was based upon the well-known
role In referoioe to the capadty of infaqta
to commit crlme^ a mlo foimded In deep
knowledge and experience with reference to
the power of Infants to discern between rl^t
and wrong, and has the support of a nomber
Of cases In other JurlsdlctfonB." Tba mle
as to the capacity of a dilld to commit crime
Is thns stated IxH 1 Blsb^ on Criminal Law,
|36S: 'mfe period of life at which a capacity
for crime conunences is not susceptible of
being eatablished by an exact nde^ which
shall operate Jnsfly In every posstiile casa
Bnt, on the wholes Jnstloe aeons beat pro-
moted by the existoiee of some mle. There-
fore^ at the common law, a child ondev seven
years la conclnaiTtiy preenraed incapable of
committing any crime. Betwem seven and
fourteen, the law also deems the child in-
capable; but only prima facie so; and evl-
dcffioe may be received to show a criminal
capacity. The qneatloh Is wbetho^ thve was
a gnlltr knowledge of wnHU^didng. Over
fborteui, InfkuAs, like all othws, are inlma
fkde capable;, and he who would set up
their Incapad^ mnst prove it.** This rule
is recognized in 16 Knc. of law, 812, and 22
Gyc 623-626.
[4] The next qnestlon for o(m8lderatt<m is
whether there was any testimony tending to
show that the plaintiff was entitled to puni-
tive damages; Wltbont going into details, it
is suffldent to Mate that tliere was a 8lgn>
board at the crossing, n^on whidi was wrlt<
ten, "Gars Btop Heref * tlils cresdng was used
by the scbool children; it was at the JunJEs
tlon of three streets; cwdnctors bad been
Instructed to stop their cars at that crosdng;
witnesses tesUfled that ttie erasing was very
dangerous. It therefore cannot be suceesa-
fnlly contended that tbare vras no testbnosy
tending to-abow that the plaintiff was en-
titled to punitive damagea.
' When the other qnestl6n preeoited l^ the
exceptions are eonddered In connection' with
the entire charge, it win he seen that they
caiinot be sustained.
Judgment affirmed.
WOODS, HTDRICE, WAITS, and FBA-
SEB, JJ., concur.
(M 8. a «7}
MITCHKLL et aL, Board of 8np*>s of
tradon of Cherokee County, v. JONES,
State Comptroller General, et aL
(Supreme Court of South CaioUna. May 26k
1918.)
1. Tbial n 868*) — AaascD STATEuirF of
Facts— SiORATtJBB.
An agreed statement of facts, submitted In
open court, need not be slgQed by either side.
[Ed. Note.— For other cases, see TrIaL Cent
Dig. i 880; Dec Dig. | U6&^]
2. BucnoiTS (I 102*) ~ Appoxnthbnt- or
SuPBBVisoHS— Advice bt Sktate— Tebh of
Office— CoHPBirsATion.
Under Code Civ. Proc 1912, | 202, provid-
ing that the Oovemor shall appoint, by and
with the advice of the Senate if in sesrion, and.
If not in eearion, subject to its approval at its
next session, three supervlaors to be known as
the board of supervisors of registration, the Gov-
ernor may appoint such members while the Sen-
ate li not in session, and tbey will hold office
from tbe time of appointment tlU the end of
the term for which appointed, or, if not con-
flrmed by the Senate, when next in session until
that time, and hence members appointed in vaca-
tion and not confirmed by the S«uite wlien in
session are mtitled to cempeosatlon as sgaiaat
the old members who refused to give up their
office from the time <tf appointment to non-
confirmation.
[Ed. Note.— For other cases, see Elections,
Cent Dig. 1 100; Dec. IMg. S 102.*]
8. OrncKRs SO, 56*)— Incoupatibiliit.
A member' of tbe board of registration Ot
election forfeits his office on aooeptance of tbe
office of commlsaiooer of election.
[Ed. Note.— For other cases, see Officers. Cent.
Dig. SS 20, 32, 47. 48; Dec. Dig. H 80, l».*3
4. OfFICBBS (S 55*)— lKCOin>ATIBn.ITT.
A member of the board of trustees of a
school district forfeits his office on acceptance
of appointment to tbe office of the supervisor of
elections, tmt is eligible to the latter office.
[Ed. Note.— For other cases, see Officers, Cent
Dig. H 7&-8A; Dee. Dig. |
Proceedings In the Supreme Court by &
H. Mltdiell and others. Board of Snpwvls-
<Hrs of Beglstratlon of Cherokee County,
against A. W. Jones, State Comptroller Gen-
eral, and others. Judgment for defendants.
W. 8. Hall, of Gaffney, for appellants.
Tom Feezes; Atty. Gen., for respondents.
FBASEBi J. . [1] This is a proceeding In
the original jurisdiction of this court The
fdhtwlng is an ' agreed statement of facta
snbinltted In open court The statement la
not signed by dther side, but that is not
necessary wlun tbe paper la gnbattted In
open court
[2] '^n order to fadHtate ttfr liial of the
forgoing casob Ow- attomeya repraMuting
ttaft plalntHEi and flie dMendants agree npm
-tbe following statement of facta:
•For ottaar eases ass ssas tople and ssctton NUMBER la Dm. Sis! * Am. Dig. K«^jJf[f^||<f^4^J^^)|^|i^
MITiOQBLZ. T. jbKBS
629
"(1) That on FelHraary 16k 1910, Oorwnor
Martin F. Ansel appointed the plaintiffs, J.
A. QarrlB, K. II. MltcbeU, and W. I. Jones,
as members of the board of superrisora of
reglatratlou tor Cherokee county, S. O.
"(2) That on February 19, IdlO, the Gov-
ernor transmitted the names of Uie plaintiffs
to the Senate for action npon his appoint-
ment ; and that on the same day the Senate,
being then lo executive session, confirmed
the said appointments.
"(3) That on the 19th day of February,
1910, a commission was Issued to B. B.
Mitchell, as snperrlsor of registration for
Cberokee county, signed by Governor M. F.
Ans^ and by B. M. McCown, Secretary of
State, said commission belns under the great
seal of the state of South Carolina ; that on
the 24th day of February, 1910, commissions
were issued to W. I. Jones and J. A. Hanis,
as snperrlBors of r^lstratlon for Cherokee
county, under the signature of M. F. Ansel,
Oovonor, R. M. McCown, Secretary of State,
and under the great seal of the state ot
South CaroUna tor tbe term imscribed If
law.
"(4) That by virtue of said appointment
and commission R. H. Mitchell. W. I. Jones,
ftnd J. A. Harris took possession of the of-
fice of supervisors of registration for Chero-
kee connilT, together with all books and
properties belonging to the office and con-
tinned In said office and discharged the
duties thereof up to and Including the 14th
day of March, 1912.
"(6) That on February IS, 1912, the Senate
then being In sestdon. tbe Senator from
Cherokee county re(;ommanded to Governor
Oole L. iBIeoae the names of R. H. MUdidl,
J. A. Harris, and W. I. Jonei for apiiotakt
ment as supervlaors of r^latratton tat Cher-
okee county, and that the Oovenior telled
.and refused to appoint tba said parties and
made no appointment to that ofBce daring
tlie Be«i<ni of a» Omml Assembly for
1912.
"(0) That the Oen«a] Assembly for the
state of South Carolina adjonrned due die
on February 29, 1912.
"(T) That oa March 12, 1912, ttie Governor
appointed the defendants, W. L. 8ettl«neyer,
B. I*. Holut, and O. D. Hanoodc, supervisors
of reglatratlcm for <Aierokee county, and
commissions wen Issued to them signed by
the Governor, the Seer^ry of State, and
under the great seal of the state ot South
Carolina on the 14th day of March, 1912.
"(S) That on the first Monday in April,
1912, and the first Monday in May, 1912,
days fixed by law for the opening of the.
books of registration for the registration ot.
electors, the said W. U Settlemeyer. B. 1*
Hoke, and O. D. Hancock made demand Upon
the clerk of court of Cherokee comity for the
books and other records of r^ristratlbn and.
for the possettsion of said bboks and r«corda
Iii ,9rdei that they {n^bt peilorm Jhe^^utlfa
of tbe said oflloe to wUdt they baft been ap-
pfdnted and cunmlasloiied. ■
"(8) That the said derfc of conrt Tsfosed
to ddlvw tlie bookA and odier records of
registration to tbe defoidanta, stating that
he bad already d^vored on demand to tbe
old board of snpervlsors ffif registration, to
wit, B. B. MltcheU, J. A. Harris, and W. I.
Jones, the said books and records,
"(10) That thereafter no further donand
was made by the defendanto for the posses-
sion of said oObo or tor Ite books and rec-
ords, but it Is admitted that the defradanto
remained ready and willing to perform tiie
duties of said office^
"<U) That the plaintiffs denied tbe right
of the defendanto to the possession of said
office w of ite books and records, and denied
their right to perform any of the dnttes per-
taining to said ofliee, but thonselves contin-
ued in the possession of toe said office and
of ito books and records, and diwAarged the
duties of the same up to the commatcement
of this action, but have received no salary or
remuneration for their services tor tbe year
1912, or for so much of tbe year 1913 as has
already expired, and that the defendant A.
W. Jones, as OomptroUw General, refoses
to Issue his warrant upon the Stoto Treas-
urer for the salary of the plaintiffs upon the
ground that the defendants had been ap-
pointed to the office claimed by the plaintiffs.
"(12) That on January 29th, during the
sesRlon of the Senato and General Assembly
in 1913, the Governor transmitted to the
Senate tbe names of W. L. Settlnneyer, B.
L, Hoke, and 0. D. Hancock, as appointees
to the office of supervisors of registration
for Cherokee county, and that during said
session, being In exeenttve session, the Sen-
ate acted npon said appolntmento and re-
fused to ai^rove and confirm the same.
**(13) That, at the time of thA appointment
of the defradant, B. L. Hoke, he was a mem-
ber of the board of trustees of Blacksb^rg
school district in Cherokee countv, havli^
been elected to that office under the act
of the General Assembly estoblishlng said
fk:hool district before his appointment as
supervisor of registration for Cherokee coun-
ty ; that 80 days before the general election
In 1912 the defendant W. U Settlemeyer wu
appointed to the office of commissioner of
election for Cherokee county, S. C, and per-
formed the duties of said office, and that on
the 1st day of A^ril, 1913, the said W. U
Settlemeyer was appointed as one of the
board of regents of the Stote Hospital tor
the Insane, and entered upon tbe disdmrge
of said duties.
"(14) TbAt the salary due to the legally
constltoted board of supervisors of registra-
tion for Cherokee county for 1012 Is thp
Slim of 9100 ea<di, and for the ytor 1918 ^SO
each.
' "(ll!) That the plalntUCs have, since Feb-
ruary IB, 1910, been In poaSessIpn of said
offlcf^ -jj^mdng, the ^"^.tt^e^
630 78 SODTHBASTSBN BSFOBTEB (&C.
admUBlon 1« not to In oonatraed as an ad-
mission by flie defense ttiat fhOr posseesion
of said iMcB and the perfoTmance of the
dattes thereof was and Is lawful since Harcb
12, 1912.
"(MQ It Is ftartfaer admitted that the plahi-
tUte had knowledge of the appointments of
the d^tendants as snperrtsors of registration
a few days Bttet the said appointment, and
befwe the first Monday In April, 1912; and
they further had knowledge of the demand
made upon fbe clerk of court, as custodian
of the books and records, by Ihe defendants
on the first Monday In April and May, 1912."
These appointments were made under the
foUowlng statute (Code 1912, | 202): "Be-
tween the first day of January and the fif-
teenth day of March, eighteen hundred and
ninety-eight, and between said dates In every
second year thereafter, the Governor shall
appoint, by and with the advice and consent
of the Senate, If In session, and If not in
session .subject to its approval at its next
session, subject to removal by the Governor
for Incapacity, misconduct or neglect of duty,
three competent and discreet per>:ons in each
county, who shall be citizens and qualified
electors thereof, and who shall be known as
the board of registration of county,
whose duty it shall be to register and to con-
duct the registration of the electors who shall
apply for registration in such county as herein
required. Their office shall be at the county
seat, and they shall ke^ record of all their
official acts and proceedings. Tbdr term of
office shall be for two years from the date of
their appointment, and they shall continue
in office until their successors ahall have
been appointed and shall qualify: Provided,
tliat In case of a vacancy from any cause in
the office of board of registration, the Gov-
ernor shall fill such vacancy, by and with
the consent of the Soiate as aforesaid: Pro-
vided, that In the county of Pickens the said
board of registration shall be elected at the
general election of 1912, and every two years
thereafter."
[S, 4] This section manifestly gave the Gov-
ernor the right to appoint when the Senate
vras not in session, and his appointees could
hold under that appointment ondl it was
confirmed by the Senate for two years from
the date of the appointmoit, or the holding
t«niiinated by the fiout^s fiUlnre to ap-
prove; This dlstlngnlsbee this case from
the magistrate's cases. The respondents
had title to the office from the day of their
appointment until the Soiate reused to
prove th^ appointment, except that the
fmdant Settleoneyer forfeited his office on
his accQitance of the <^ce of cmnmisskmer
of election. The defodant Hoke forftf ted
his office of trustee, bat was eligible to the
(rffice of SttpWTisor ct registration.
The right to compensation folhnn- the title
to ofllce. and It la ordered that the warrants
do isane according, to the time the parUae
held the office.
GARY, a Jn and WOODS, HYDBIOK.
and WATTS, JJy concur.
(16 B. a «>
COLCLOUOH V. BBIGOS et aL
(Supreme Court of South Carolina. May 28,
1913.)
L Covenants (I 114')— Wabeahit— AOHOii
roB BB£A0U~G0MPLAIHT.
In an action for breach of a wanrancy In
a deed executed by B. as trustee, an allega-
tion that under and by virtue of the convey-
ance B.. as aforesaid, and as such trustee the
owner in fee, bound himself and his heirs, ecc.,
to warrant and forever defend the premises
against bis heirs and all other persons lawfully
claiming any part thereof, etc., was IncleflDits
and uncertain in that it failed to clearly all^e
whether B, intended to bind himself iodividn-
ally or the tmst estate by the covenant of war-
ranty.
[Ed. Note.— For other cases, see Covenant^
Cent. Dig. H 189-202, 268; De& Dig. |
114.*]
2. PLBADino (U 192, 367*)— lHnEnirxniin»-
Bemedt.
The remedy for indefinlteness In a plead-
ing is by motion to make more definite and
certain and not by demurrer.
TEd. Note— For other eases, see Pleaifinf,
Cent Dir. H 64. 408-427. 1178-1198; Dee.
Dig. IS 192, 367.']
3. Covenants (I 84*)— Waebamtt— Inoivid-
UAX. OSLIOATIOir— liUBIUTT 01 GSAinOB'B
Estate.
Where a tmatee to executing a deed c<m-
tainlng a warranty of title intended to bind
himself indlvidoally, his estate was liable alter
his death for damages from the breach.
[Ed. Note.— For other cases, see Covenants,
Cent Dig. H 90-02U Dec. IMg. f 84.*]
4. Appkai. and Ebbob (| 600*} — QuKsnom
RBVnWABIf— RUUNO BT TBIAZ. OoUBT.
An assignment that the court erred In
making a veciSed mling will not be reviewed
where there Is nothing In the record showing
that tiie court made the rnllng mentioied In
the a»ignment
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. H 2295-2298; Dec. Dig. |
500.*]
Appeal from Common Pleas Circuit Court
of Clarendon County.
Action by S. M. Colclongh against A. J.
Briggs and others, as executors of the estate
of R. R. Briggs, deceased. From an order
overruling the demurrer to the complaint,
defendants appeaL Afflrpied.
^nie foUowing Is the complaint and de-
murrer and exceptions:
**Oomplalnt
'The shore plaintiff eonq^alnlng of tba
abore defisndanti alleges;
*'(D That the plaintiff Is a resident of
Ridge Springs, Salnda county, state afore-
said.
That the defendants are Qie dnly
qualified executors of the estate of R. B.
Briggs, deceased, late of the county and state
*rwetiwr
•M same topic and seeUoD MUUBBR la Dm. Die. ft Am. Dig. K^^I^|k^|<gl«4(^^^p^j^^^
I
S. O) OOLCLOnOH T. BBIOOS
aforesaid ; that A, J. Brlggs resides at 3am-
merton, county and state aforesaid; tliat
Mike Powell resides at Newnan, state of
Georgia ; that E. A. Smyth resides at Blacka-
burg, state of Virginia; that B. B. Smyth. Is
Insane and Is conflned In some sanitarium
beyond the limits of this state.
"(3) That during the year 1904 R. B.
Brlggs, as the trustee for G. M. Brlggs, and
as such trustee, the pwner In fee, conveyed
by warranty deed a lot of land In the town
of Summerton, connty and state aforesaid,
to the plaintiff herein; tiiat the description
of said lot of land Is as follows, to wit: Sit-
uate on the east side of Oantey street, meas-
uring thereon 120 feet, and measuring in
depth on its southern line 313 feet, on its
northern line 242 feet, and having a width
on its back line of 78 feet; bounded on the
north by lot of W. H. Shlrer, east by the
right of way of the Northwestern Railroad,
south by land of B. M. Brigga, and on the
west by Oantey street
"(4> That, onder and by virtue of the con-
veyance and title to plaintiff as aforesaid,
R. R. iBriggs, as trustee as aforesaid, and as
such trustee the owner in fee, bound himself
and his heirs, executors, and administrators
to warrant and forever defend all and singu-
lar the premises aforesaid onto the said
plaintiff against his heirs and all other per-
sons lawfully claiming or to claim the same,
or any part thereof.
"(5) That during the year 1908 the North-
western Railroad Company of South Caro-
lina commenced an action In tile court of
common pleas for the county and state afore-
said, the legal object and purpose of said ac-
tion being to oust and recover of plaintiff
herein a part or portion of the lot of land
aforesaid; that said action was determined
by a decision rendered by the Supreme Court
of the state aforesaid in the month of Octo-
ber, 1911; that under and by virtue of said
action the aforesaid railroad company ousted
and recovered of this plaintiff a part or por-
tion of the lot of land sold to the said plain-
tiff by R. R. Brlggs, as trustee, and as such
trustee the owner In fee as aforesaid; that
under and by virtue of said action the legal
title of plaintiff to the lot of land as afore-
said was put in Issue.
"(6) That B. R. Brlggs, as trustee, and as
such trustee the owner In fee as aforesaid,
was duly and legally and properly vouched
and notified of the aforesaid action, and re-
quired to come In and defend Bald action;
that said R. R. Brlggs, as trustee and owner.
In fee as aforesaid, refused to expend any
money in the direction of defending the title
of the plaintiff to the lot of land as aforesaid,
the UQe to said lot having been brought Into
Issue by reason of the above action.
"(7) That during the month of April, 1910,
EX M. Brlggs died, and R. R. Brlggs, as afore-
said, as heir and devisee, l)ecame the owner
in fw oC all the pnqMly, real and peraooal.
B31
of the said BI M. BHggs; that B. B. Briggs
died in the month of October, 1910, and
thereafter the above defendants duly quali-
fied as the executors of the estate of the said
R B, Brlggs and are now the dnl7 duaUfled
executors as aforesaid.
"(8) That for the purpose of defendii^ the
title to the lot as aforesaid. In the action as
aforesaid, the plaintiff has expended the sum
of $457.20; that on the 5t^ day of September,
1911, plaintiff filed a duly sworn to claim
with the above defendants for the said sum
of $457.20, said claim having been filed with-
in the 12 months allowed by statute to rep-
resentatives of the estate of deceased p«8ons
to settle claims against said estate; that
althoi^b more than 12 months have elapsed
since the defendants qualified as executors
of the estate of R. R. Brl^, defendants re-
fuse to pay the claim aforesaid.
"Wherefore plaintiff demands Judgment
against the defendants for the sum of $457.20
and the costs of tUs aetloa.
"Demurrer.
"The defendants above named, not 'waiving
their right to move the court to correct the
complaint on the ground of it being so in-
definite or uncertain that the precise nature
of the charge is not apparent, demur to the
complaint upon the ground that It appears
upon tibe faoe thereof:
"(1) That the alleged warranty was given
by R, R. Brlggs, as trustee, his cestui que
trust being the real party In Interest and
for whom the alleged warranty was given,
and the 'estate of the latter Is therefore lia-
ble. If any one, and there la a def^ of
parties defendant
"(2) That if plalntlflF has any cause of ac-
tion It Is for breach of an alleged warranty,
to be measured In damages, and there are
no facts stated nptm whldi any damages
could be based.
"(3) In that the complaint seems to be
for money expended by plaintiff In defend-
ing a certain lawsuit for which plaintiff has
no legal claim against defendants' testator,
but the measure of his damages. If any, is
the value of the property lost at the time ot
the sale to plaintiff, with legal Interest there-
on from time of the ouster.
"Exceptions.
"First That his honor erred, It la respect-
fully submitted, in overruling the demurrer
when it appears upon the face of the com-
plaint that the alleged warranty was given
by R. R. Brlggs, as trustee, his cestui que
trust being the real party In Interest and
for whom the alleged warranty was given,
and the estate of the latter Is therefore lia-
ble, if any one, and th&B Is a defect of
parties defendant
"Second. That his honor erred, It is re-
^>ectfully submitted. In not holding that if
the plalntlfl baa any cause ot acttm It la
Digitized by Google
532
78 SODTBSiASTBRN UDFOB^BK
for the breach of as alleged wartantT' w
ooTMiaDt, to be measored In damages, and
there are no facts stated upon wbittt xaj
damages could be based.
"Third. That his ' honor erred. It Is re-
spectfully submitted, In holding that the de-
fendants are liable for mooey vtpmAeA by
plaintur In defending a oertaln lawsuit,
when, as a matter of law. It the plaintiff has
any claim against defendantB' testator, the
measnre of damages la the ralve of the prop-
erty lost at the time of alienation, with legal
Interest from the time of eviction, and it Is
respectfully submitted that there are no facts
alleged for the recorery of any audi dam-
ages."
Da via & Weinberg, of Manning, for appel-
lants. J. J. Oantey. of Sommerton, for re-
spondoit
GABT, a J. Xhls is an sctton for dam-
ages, alleged to ban been sustained by the
plaintiff on account of a breach of the war-
ranty in the deed described in the com-
idalnt The d^endanta demurred to the
coxDidalnt on Cbe gronnd thaf it did not state
tacts sufficient to constitute a cause of ac-
tlon. His honor, the circuit Jndge, over-
ruled the damun«>, and the deCttidantB ap-
pealed.
In order to understand the ouestlottS in:
Tolved, it will bet necessary to aet out the
complaint .and the exceptions. In the report
of the case. We wHl consider the excepUooa
In regular order.
[1] First exception. Paragraph 4 of the
complaint is indefinite and uncertain In that
it fails to all^ dearly wbettier B. B. Brlgga
intended to bind hlms^ IndlTldually or the
trust estate by the oorwiant of wanantr
therein menti(med. The said section on the
one hand alleges that he bound himself, his
heirs, oecutors, and adndnlstratora, to war-
rant and forevar defoid the iwemlsea against
his heirs, eta, while on the other hand it
alleges that he was acting as trustee In war-
ranting the title.
[t] In auch a case the ronedy Is not hy
demonw, but by a motion to make the com*
pbdnt definite and certain.
[S] Second excq;itlon. Tb» comxdalnt al-
leges a bread! of the corenant of warranty.
If B. B. Brlgga Intended to warrant the
title IndiTlduaUy (and, as we have ahown,
thwe are all^uinu to that efCeeO, then
his estate Is liable fttr damaget ailsinsfrom
audi breach.
[4] Third exception. This exception can-
not be sustained,, tor the reason that there
Is noUUng in tivi record showing that his
honor, made the niUnc moitioned In the ex-
ception.
Judgment affirmed.
WOODS, HYDBIGE, WATTS, and FBASr
BR, J J.. COQCW.',.,
SANDBBB et aL T. JETNA UFB INS.
CO. et aL
FRBNCH et aL r. SAMHL
(Supreme Cmat of South Carolina. April 20,
1918.)
1. Btatutbs (I ISl*} — OnraiBDonoR — Ob-
nxrt.
In constmin^ a statute the court will en-
deavor to ascertain the object which it was tije
intention of the Legislature to accomplish.
lEd. Note.— For other casea see Statutes,
Cent Dig. 259, 263; Dec. Dig. 1 181.*)
2. BAKKamrrcT (| 148*)— IvsuaaNos Pouor
— SuuoiTDBB Vu.UK'TiTi.a or Tbustkb.
Under Bankr. Act July 1, 1898, c 641, |
70a, 30 Stat 566, B6Q (U. S. (3omp. St. 190ll
p. 3451), providing that when a bankrupt shall
have an insurance policy which has a cash
Bonender valoe payable to himself, bis estate,
or personal representative, he may within 30
days after the cash surrender value has been
ascertained pay to the trustee sncb sum and
carry the policy free from the elalnu of ered*
itors, otherwise the policy shall pass to the
trustee as assets, a policy of insurance admit-
tedly having DO .surrender value at the time
of the adjiidieattan, vrblch fact was stated t6
the trustee, who stated that he would look into
it later, does not become assets of the estate
on the death of the bankrupt before settlement
of the estate, and before any cash surrender
value has been ascertained.
fEd. Note.— For other cases, see Banlnruptcy,
Cent Dig. H 194, 201, 202, 213-217, 228, -Mi
Dec. Dig. ri48.^J
3. BAifunmcT (I 143*)— AascTs or BsiAiqE
— fowebs exebcised fob bsnkfit ow
Thibd Pesbon.
Under Bankr. Act Jnly 1, 1898, c. 541. i
70a, 80 Stat S65. 666 (0. 8. Comp. St mO,
p. 3461), providing tliat powers w^ch the
bankrupt might have exercised for his own
benefit, but not those which he might have
exercised for some otiier person, are exempt
an insoianoe policy faaring no surrender valoe,
providing tiiat Insured muht change tlie Doio
eficiary without consent, £9 not assets of the
estate as giving a power to be exercised by tbe
banimipt lor ttw benefit of a third person, slnoe
the poliey haTina no sunender value nerer be-
came verted in via trusteSL
tEd. Note.— For other cases, see Bankmptcy,
Cent Dig. H 194, 201. 2^;^m-217, 228,
Dec Dig. 1 143.']
4. BaNKBUPTCT (S 143*)— ASSTTS OF ESTATa
— TBAHBFBBABU FBOPBBIT — ISSUKAHOS
POUOT.
Under Bankr. Act July 1, 1898, c 641. |
70a, 30 Stat 665, 666 (U. S. Comp. St lOOl.
p. 3451), providing that property, which prior
to the filing of the petition tiie bankmpt could
by any means tiave transferred, vests in tlie
trustee, an insurance policy having no surren-
der value, which gave .insured uie right to
change tbe beneficiary without consent, did not
pasa to the trustee as prc^erty which ue bank-
rupt could trani^er, since the vaUcj haviug no
nrrender value never vested in the trustee.
[Bd. Note.— For other cases, see Bankrapb^t
Cent Dig. n 194, 201, 202, 218-217, 223, 224 ;
Dec: Dig. I 143.'J
6. Banebuftct (S 143*)— Assets or Estati
— iNStTBANCE POUOT — PABTNEBSmP »
Death op Pabtnxb.
Where a buBbaod and wife as copartners
and as Individuals went into bankruptcy, a
policy of InsoraQce' payable to the wife is not
assets of the estate. Testing in the trustee on
the. death of linsband, before settlement of
«Tor 0lb« sssis Bss Bsas to»to sad BSstlSB NVIIBBR IB Dee. IMS. * Am. on. KfirgM^ei
BAsvssB T. MVS A. lidm ma oo.
B38
the Mtate. m h« IpterMt In tlw vMer mxuA
Im determiDed nHh Nferenoe to the nliiig of
th« petitfon, and whatever fntertit ibe umj
have had at that time waa inbject to be de-
feated by actioD of insured in dunglns the
benefldarr, aa permitted by policy, whidi
he had actually done before Ua death.
[Bd. Note.— For other caaea, see Bankrupt,
Gent Di«. H IM, 201, 202, 218-217, 223. SS4;
Dee. DIE. 1148^1
& BamcBCTTOT (I 143*>— imuKanoi Pouor
— Fkaud — Charge in Binstzcubt — Ob-
JBCnoiT BT TBUerEB.
A trustee in tMnkruptcy mar not complain
that a hoAand 1^ frandnlent atataments chang*
ed the benefldarr in an Inanraoce policy claim-
ed as assets of the estate where the original
beneficiary does not object.
[Ed. Note.— For other cases, see Bankmpt(^,
Gent Dig. H 194, 201, 202, 228, 224;
Dec Dig. I 148.*]
Wood% J., dlsaentlDC.
Anual from Common Pleas Cirenit Court
of Greenwood Comii7; B. (W. Uemmlncer,
Judge.
Aetiona hr tterdiall F. Bandera and othen
and Bin. Anna .-Belle French and others
agi^Dst the ^tna Life Insarance Company
and otben. From a Jndcment for plalntlffa,
d^endanta appeaL AfBrmed.
Giles & Ontze and G. C. Featherstone, til ot
Oreenwood, tor appellants. Grler, Vutk M
mcholaon, of Greenwood, tot respoiUlwitB:
GABY, a J. This Is sn action on two
pondes of Insurance far Qie benefldarles
therdn named. EOs honor, the drenlt Judge,
rendered Judgm^ In their faror, And the de-
taidant appealed.
It aiHwars from Ota agreed statement
faetM, upon wUch the case was heard in the
drcDlt conrt: That H. F. Sandera and Bes-
sie W. Sanders, his wlfe^ were copartners In
trade as M. F. Sanden ft Ca, and t>oth as
partners and as indlTldnals were adjudged
bankrupts on Oie 80tb of Jane, 1911, in pnr-
snance ot a petition flled on flie 26th ot June.
1011. That M. F. Sandera informed the trus-
tee that he had certain polides of insurance
on his life which were In the Bank of Green-
wood, where they could tie seen by him. That
the trustee said he would take the matter up
some other time. That the said polides were
nerer scheduled by the bankrupts. That U.
F. Sanders carried the polides to his at-
torney, who advised him that they had no
cash surrender value, and that he should
communicate this fact to the referee and
trustee, which he did. On the 1st of Novem-
ber, 1011, Bessie W. Sanders was disdiarged
as a bankrupt, but M. F. Sanders was novo:
discharged. On the 12th of January, 1912,
M. F, Sanders committed suldde and left
surviving him his wife and three children,
who are plaintlCFs in this action. On the 22d
of November, 1011, upon the application of
M. F. Sanders, the beneficiaries In the two
polides Were changed in -favor of his three
ditldren. The polides provided that die In-
sured should have the rti^t to dumge the
benefldarr without his or her consent In
the ai^Ucation for the change of benefld&ry,
M. r, Sandera made this statement: "I am
not now adjudged Insotvent, nor have I made
a general assignment, for the benefit of credi-
tors, that r^ualn unsatlsOed.'' The two p(^-
dee were originallr payable to Bessie W.
Sanders, If she sunived the insured, o&er^
wise to his executors, administrators, or as-
signs. "Ndther of tiie policlee had any cash
surrender value, prior to the death of the
Insured, and no loan value, until the end of
the third premium year, to wit, 20th of July,
1912, nor until the payment of the third pre-
mium of 20th of July, 1012; aad the com-
pany would have paid no money, prior to or
at the date of the adjudication in bankmpt-
cy, or prior to Sanders' death. The cash
surrend^ value of ndther -of said polides
has been ascertained and stated to the troatee
by the company isaolng the same, and the
trustee made no ^ort to ascertain the same
from the company, or to communicate the
same to BL F. Sandus or Bessie W. Sand-
ers." The bankrupt estate hu never hew
settied.
The question to be determined is wtMtber
Oie polides were vested In the trustee by <^
e^tlon ot law when it Is admitted that at the
time H. F. Sandera and Bessie Sandera
were adjudged to be baakrapts, tbs said pol-
icies had no cash -snrrendar valuer and the
company would have paid oo money therefor,
prior to the date ot the adjadkattan in baok-
ruptey or prior to Sanden* death.
Section TOa of ae hanknipt act CAct Jvtr
1, 1808, cv 541, 80 Btat SOS, SOS [U. S. Gomp.
St 1001, p. 8461]) is M followa: ^Tbatmstee
ot the estate of a buUtmpt; upon his ap-
pointment and Qoallflcatton, • • • shall
• * * be vested by operation ot law, wlUi
the title of the bankrupt, as of the day he
was adjudged a tankrupt except In so tar as
it is to property wUcb Is exempt to all (1>
docnmoits ralatlng to his property; * * *
(3) powera which he might have exercised for
his own benefit, but not those which be might
have exffldsed for some other person; (4)
property transferred by him In fraud of his
credltora; (6) property which prior to the
filing of the petition be could by any means
havR transferred or wiiich might have been
levied upon and sold under Judicial prooesa
levied against him: Provided, that when any
bankrupt shall have any insurance policy
which has a cash surrender value payable to
himself, his estate, or personal representa-
tive, he may, within thirty days, after the
cash surrender value has been ascertained
and stated to the trustee by the company Is-
suing the same, pay or secure to the trustee
the sum so ascertained and stated, and con-
tinue to tMld, own, and carry such policy
free from the claims of the credltora, parties
•Far flttasr mm bm miu tople sad seottaB NUHBBB la Dm. Ug^A Am. Dig. KvMhi'»mS
atttagj parties
534
78 SOUTHBA8TBIEN RBPORTAB
<8.a
ipattns In tba dlsMbntloa of his estate un-
der Uie bankruptcy proceedings, otherwlae
the policy shall paw to the trustee as assets."
[1, X] The moTlso In section 70a. irtien an-
alysed, shows: Ftest, that the said seetton
had In ctmtempIatlcHi policies that had some
cash sorrender TSlne at the time the insnred
was adjudged a bankrapt; second, that when
socb value has been ascertained and stated to
the trustee, by the company Issuing the pol-
icy, the bankrapt may pay w secnre to the
' tmstee the snm so ascertained; third, that
the payment most be made or security i^ven
to the trustee within 80 days after said value
has been ascortained; fourth, that upon com-
plying with these requirements the bankrupt
shall continue to hold and own such policy,
free from the claims of creditors ; and, fifth,
that If the bankrupt complies with said re-
quirements the policy shall not pass to the
trustee as assets. In order to place a proper
construct! on on said section, we naturally
aideavor to ascertain the object which It
was the Intention of Congress to accomplish.
It will be obserred that poUdes of insur-
ance are placed upon different footing from
all other property vested In the trustee, and
that it was not intended that the policies, but
only their cash surrender value, should be-
come assets, unless the Insured failed or re-
fused to comply with certain prescribed con-
ditions. It Is true the proviso contemplates
a benefit to the bankrupt estate, and, when
the policies have a cash surrender value,
they are vested In the trustee by operation
of law In order that said value may be added
to the assets. But the main object was to
enable the bankrupt to hold and own the pol-
icy free from the claims of his existing cred-
itors; and the only effect of holding that the
title to the policies was vested in the trustee,
even when they were without cash surrender
value, would be to defeat the principal aim of
the statute without Increasing the assets.
The law never intends that au act should be
don^ when ito tfect would be wholly nu-
gatory.
It it bad been ascertained that the poU-
dea had a cash snrrender value of $100, and
the Insured had paid that anm, the trustee
would no longer have any Interest in them.
Do the admitted tacts show that the bank-
rupt forfeited his right to pay the cash sur-
render v^ne and to conttnne to hold the
poUdes? Let us consider the bankrupt's
rightly in view of the fact that the cash sur-
render of the policies has not been ascer-
tained and stated to the tmstee by the com-
pany Issuing the Bam& It la admitted that
the trustee made no effort to ascertain the
same from the company or to communicate
the same to M. F. Sanders or Bessie W. Sand-
ers ; that U. F. Sanders notified both the ref-
eree and the trustee of the existence of the
policies, and that he and his attorney re-
garded them as having no cash surrender
vslue; that the trustee said he would take
tltem V3f at some other time; that the bank-
rupt died on the 12th of January, 1012; and
that the bankrupt estate has not been set-
tled. The only difference to be drawn from
these foots Is that If the bankrupt were aUva
he would stIU have the right to pay the cash
surrender value of the policies and hold them
free from his «*»<aHng creditors upon comply-
ing with the requirements of said section,
but that as he is dead this privily could be
exercised by the representative of his estate.
In re Judson. 1A2 Fed. 834, 118 C. a A. US.
Under our interpretation of the nld section,
thla, however, is an Immatertol question, aa
the fact Oat the policies had no caah sur-
roider value shows that the title to them
did not become vested In the trustee: there
being no failure to perform a condition where
the nonperformance thereof would have
caused the title to the policies to become
assets of the bankrupt estate.
In the case of Hiscock v. Mertens, 205 II.
a. 202, 27 Sup. Ct 488, 51 L. Ed. 771, the
court had under consideration the question
whether the cash surrender value of a pol-
icy of Insurance under section 70a of the
bankruptcy act must be provided for In the
policy, or whether it is sufficient if the pol-
icy liave BQCb value, by the concession or
practice of the company. In discussing this
question, the court thus states the object of
the foregoing provision: "It was an actual
benefit for which the statute provided, and
not the manner in which It should be evi-
denced. • * • What possible difference
could it make whether the surrender value
was stipulated in a policy or universally rec-
ognized by the companies? In either case
the purpose of the act would be subserved
which was to secure to the trustee the sum
of such value and to enable the bankrupt to
'continue to hold, own and carry such policy
free from the claims of the creditors partici-
pating In ^be distribution of the estate under
the bankruptcy proceedings.' "
The statute is thus explained in the case
of Morris v. Dodd, 110 Ga. 606. 36 S. B. 83.
60 L. R. A. 33, 78 Am. St Rep. 129: "The
purpose of the bankruptcy act is to take the
property owned by the bankrupt when the
petition is filed and apply it toward the pay-
ment of his then existing debts, discharging
him in due course from any further liabil-
ity; hla afteracqulred property not bdng
subject to such d^ts. This being true, it is
apparent that the creditora represented by
the trustee^ whose debts cannot continue
against the bankrupt, can have no insurable
interest in his life for the purpose of in-
demnifying themselves against toss. In view,
therefore, of the authorities dted and the
language of the act Itself it seems that a
policy of insurance on the life of a banknq>t,
though payable to his legal representatives,
does not vest in the trustee aa assets of the
banlcrupt's eotata^ if the policy baa no cash
surrender valua.** C^r\r\rf\t>
Digitized by VjOOQ Kc
8.G)
535
To the nuDe effect la tte cue of In re Jnd-
Mm, 192 Fed. 8Si, 118 a a A. 108, In vliicli
the oonrt bbtb: "We think that the Btatnte
In Qneetlon clearly Indicates an Intention up-
on the part of Congress to permit bankmpts
to retain the advantages of edstlng life in*
surance policies, provided th^ will par to
their tmstees all that conld be obtained by
surrendering snch policies at the commence-
ment of the proceedings. In the case of
policies having a cash snrrender valne, the
proviso covers the case. In the case of poli-
cies having no cash surrender valae, the pro-
viso does not apply expressly, but, reading it
in connection with the other provisions, we
think that such poUclee are not ^property'
within the meaning of the statute, but are in
the nature of personal rlgh^. True, they
are ^property' within technical definitions of
that term. But they represent nothing more
than the right to pay future premiums at a
fixed rate. Their valne is altc^ther specula-
tive, and in our opinion it was not the inten-
tion of Ck>ngress that bankrupts should be
deprived of tb^r policies to enable trustees
of bankrupt estates to use their fonds to
BpecoUte with."
LS, 4] The first and second propositions upon
which the appellants rely are: (1) "T^hat the
bankrupt (the insured) had a "power which
be might have exercised for bis own benefit,*
viz., the power to change the beneficiary, and
that that power passed to the trustee." (2)
"TbAt the power to change the beneficiary*
was property, within the meaning of the act,
which he could have transferred or assigned,
and that that right passed to the trustee."
These propositions are unsound for the rea-
son they presuppose that the policies were
vested in the tnutee, which we have shown
Is not the fact
[1,1] The third proposition is as follows:
"That Mrs. Sanders, the benefldary, being
also a bankrupt, and the insured hai^ng died
before the estate was wound ni^ the fond
belongs to the trustee.**
In the first place, the value of Bessie W.
Sanders' interest In the pollclea, aa an asset
In the bands of the trustee, must be deter-
mined with rtference to the filing of the petl-
ti<Hi, and not, as omtended, at the time ha
husband died. And in the second place,
whatever Interest she may have had at that
time was subject to be defeated by the action
of the insured in changing the benefldary,
which was actually done. The appellant,
however, contends that the sUtemente upon
which the change was made were false. If
there was fraud in this respect, it did not
affect the rights of the trustee, and he has no
cause to complain. Morris v. Dodd, 110 Ga.
e06,36 8.B.83,fi0Ij.R.A.83,78 Am. SL
Uep. 12».
Judgment affirmed,
HTDBIOE, J., cmcon. WAITS* 3^ dls>
aoaUAed.
WOODS, J., I dlavnt The right of the
Insured to change the benefldary of the poli-
cies, btfng a power which he conld exercise
for Ida own benefit, was property both under
the general prlndplea of law and under the
expreas terms of tb» bankrupt act, and it
passed to the trustee in bankruptcy under the
statute expressly providing that all proper^
not exempt, todudlng snch a power, should
pass to the trustee. Earle v. Uaxwdl, 80 S.
C. 1, 67 S. E. 962. 138 Am. St Bep. 1012; In
re Hettllng, 176 Fed. 6Q, 99 G. C. A 87; In
re Dolan (D. C.) 182 Fed. 919 ; Clark v. Equi-
table Life Ins. Sodety (C. C) 143 Fed. 175;
In re Whelpley (D. C.) 169 Fed. 1019; In re
Wrigbt. 157 Fed. 544, 86 G. a A 206, 18 L.
B. A (N. S.) 193; In re SUnglufl (D. G.) 106
Fed. 154; In re White, 174 Fed. 333, 98 C. G
A. 205, 26 L. B. A (N. S.) 461; In re Orear,
178 Fed. 632, 102 a G. A. 78, 80 L. B A
(N. S.) 990; Partridge v. Andrews, 191 Fed.
325, 112 G. G. A 69, 41 L. B. A (N. 8.) 123.
It Is argued that it did not pass In this In-
stance, however, for the reason that the policy
was payable to the wife of the insured and
so stood at the date of the petition- and adju-
dication In bankruptcy, and such a policy is
expressly exempted from the daimsof credi-
tors of the insured by section 2721 of Civil
Code of the state. This argument would be
sound if the Constitution of this state did not
expressly forbid that the constitutional ex-
emption to Uie husband and wife Jointly
should not exceed the ^,000 real estete and
fSOO personal property, which exemption was
claimed and allowed. But for this provl-
don of the Constitution it would have been
within the legislative power to ^tend the
constitutional exemption to Indude life in-
surance poUdee. Holden v. Stratt<ni, 198 H.
8. 202, 2S Snp. Ct 6S6» 4» U Sid. 1018.
The bankrupt statute did not permit San-
ders to retain 0i« poUdea by tendering to
the trustee the cash surrender value, because
It Is admitted in the agreed atatonent of
facts that they had no cash snrrender value,
and that the Inaorance company would not
have paid any money for them at the date ot
the adJudlcatlMi In bankruptcy or at any
time prior to the death of Sandos. The ad-
*n'w'oii excludes the case from the provision
of the bankrupt act allowing the bankn^t to
retain an Insurance policy on payment of the
cash Burrender value, and takea it out ot the
rule laid down In Hlscock t. Itatou, 206 U.
S. 202, 27 Sup. Ct 488, 01 L. Kd. 771, that
polides having a cash surrender value within
the meaning of the act embrace those which
dther by thdr terms or by the practice or
concession of the company tssnlog them have
such value.
FBASEB, J. I concur with the Chief Jus-
tice for the reason that the statute provides
that the trustee in bankruptey shall take "(3)
powers which he (the bankrupt) might have
exercised for his own benefit, but M<>ttMOM/>
536
78 SODTHBASl'SBN BEIFQBTTOt
ivMoh h0 might hove «mtndt«d for kom«
MAer yerwn." It Is" beyond «awtloii that the
bankmpt ndgbt lutve ezerdaed this rlgbt
for aome othar person. He did. The rule of
statutory constrneUon Is that, where there Is
a conflict between tiro projplsltnie of a atat-
ate, the Uut shall gorem aa the last ex-
pnaatoD of the leglslatlTe wUL So it aeema
to me tha^ where ctnminataiioei throw a eaae
under the last daoae, then the last clause
mnat goverik Twaemneh aa the statute dls-
ttnctljr says that the power which he might
haTe ezerdaed for some other person diall
not go to the trustee, the courts have no
right to award these poUdes to the trustee.
If we do, we violate the term of the act. If
Congress had Intended to confine the ex-
emption to thosel powers that the bankrupt
might hare exerdsed exduslTely for others,
it was easy to have said so. The prorlso to
item 6 treats of poUdea payable to the bank-
rupt or to his estate, and made no other pro-
vision as though it had exhausted the sub-
ject It is difficult to see how a policy whidi
has no cash surrender value and not pay-
able to the bankrupt or his estate passes to
the trustee. Hie intention Is to save the
insurance, not to destroy It. Item 5 does not
control item 8, however, as Item S Is a spe-
cial provlaioa and item 5 Is a general pro-
vision.
State ex reL Lyon v. Bowden, 02 S. 0. 401,
75 8. B. 873: "But, even If the two provi-
sions wrae InconslstCTt, no iwlnd[de of oon-
etmetlon Is better settled, both by authority
and reason, tlian this: Where, in a legisla-
tive enactment, a spedal provision is made as
to a subject which would otherwise be em-
toaeed in a general provision on the same
subject, the spedat provision la held to be an
excepdMi and not intended to be embraced in
the general provision.'*
Whatever we may now think of the pro-
priety of allowing a debtor to take money
that oog^t to go to his creditors and with it
buy life insnrance for the benefit of his
aunily, and allow the family to collect and
enjoy the proceeds of the policy to the entire
exelorion of the creditors, even from that
portion represented by the premiums paid,
■tUl the law la, too weU aettied to doubt its
exlBtaDoe or eacwo Its conaegneDeaa^ except
1^ atatotory enactment Here tiie enact-
ment la the other way. Again the trustee
. must take the required atepa to change the
benefldary before he can claim the proceeds
of the poUey.
Id Deal v. Deal. 87&a39S,a08.2L 886.
Ann; Gas. 1912B, U42, it was held that a
strict oompUance with terms of the policy are
necessary before a change In the benefldary
can be enforced. Here there was no effort
to change the. benefldary during, the life of
the Insured, and, now that the rights of the
ben^ldaries have become abaolute by the
■ leath of the .Inawefl, the trustee asks that
wtOurat ■ diange <tf beneflfilaiTt now.
the proceeds be pidd to him* and I do not
think it can be done. Under the law of
South Carolina these polldes are payable to
the beaefldarlea named in the polldes, and I
do not Bee that the federal statute la in cob-
met. If these pottdes had cash surrender
valu^ say 91£0, the tmatee would have been
entitled to the $160; but, as they had no
value, the trustee claims to be entitled to
«1S,000. I eannot think the claim can be al-
lowed, and concur viUi the Chief JvsUoe.
QAEY, O. J. The defendantrappellant S.
H. McGhee, aa trustee, having determined not
to sue out writ of error from the Supreme
Uonrt of the United Statee in the above-
entitled causey on motioo of the attorneys
for the said defendant-appellant. It is ordered
that the order heretofore granted by this
court, staying the remittitur in said causes,
be^ and the same la hereby^ revoked.
(MS. aio)
GILL V. BUGOLES.
(Supreme Court of South Carolina. Hay 20^
1913. On Behearlng, June U, 1018.)
1. LiBxx. AND SuNDxs (1 104*)— Aonoirs loa
BUMDXB— EVIDBITCX— ADUISSIBIUTT.
In an action for slander, evideDce of the
ottering by defendant M the slanderous words
at times other than those alleged In the com-
plaint Is admlasible to prove -malice.
[Ed. Mote^For otha oues, see l4bel- and
Slander, Gent Dig. H 284r-^l; Dee. Dig. |
104.*]
2. EviDB5ca (I 474*)— OoncLimoR or Wir-
mcsa— ADiaseiBiuTT.
A witness, who in an action for slander
testified .to the remarks of defendant, may ex-
press bis opinion that defendant nevw seemed
to be very friendly toward plaintiC f6r a timo
back.
[Ed. Note.— IToT other easis, see Evidence.
Cent Dig. H 2106-2210; De& Dig. | 47^^
3. TBI AX. (I 267*)— iMBTOOOMOHa— AasTOP-
TZON or FACTS.
A requested instroction, which states that
a fact appears from the evidence and which
applies the law thereto, is properly modified
by applfing the law to the fact if it appears.
[Ed. Note.— For othw cases, see Trial. Cent
Dig. II 668-072. 674; Dec Dig. | 267.*]
4. LiBBL AND SLAifDxa (| 04*)-4lmoA'noir
ov Dauaois.
The jory may consider In mitigation of
damages for a slander that what defendant
said of plaintiff was based on information giv-
en by others and believed to be true, but tbe
jury is not required to do so.
[Ed. Note. — For other cases, see Libel and
Slander. Cent Die. I 166; Dec. Dig. { 64.*]
6. Appxal awd Ebrob (i 171*) — Qnxsnoifs
RXVtEWABLB — TBXOBT OF CASX IN TSIAL
Court.
Where, in an action for slander, tbe court
and piaiDtifTs counsel understood that aa am-
bifTuous answer was sn unqualified plea in jus-
tification and the court charged the jury on
tbat iMie, defendant failing to call tbe ooart's
i
537
attentkm to iti mistake tn conitnilng iSm tar
•wer, could not complain on apimaL
[Bd. Mote— For other cases, see Appeal and
Error. Cent Dif. If 1063-1063, 1066, 1067,
U61-116S; Dec. 1%. I 171.*]
6. LiBIL AND SLAnDKB (| 10*> — WOVINi IM*
FDTXKO CSIME— "GRAPTIRO."
To £slsel; charge one with "graftinc" ia
to falsely charge him with the statutory crime
of breach of trust with a fraudulent intent;
the term "grafting" being nnderatood to mean
the frandulent acquisition of property by using
official position either public or private for a
parsooal min at tlie expense ol those to whom
the offidal duty is owinc
[Ed. Note.— For other cases, see libel and
Slander, GentDlg. || 41,91-96; Dee.IMs.|ia*]
Gary, C and Fraser, dissenting in
part
Appeal from Common Pleas Cbwnlt Covrt
ot Marlon Coimty; J. W. De Tore, Judge.
Action by Charles E. GUI against Charles
F. RDgglea. From a Judgment for plainUfF,
defendant appeals. Affirmed. '
Washburn. Bailey ft Mitchell, of Dulntb.
Minn., and W. F. Stackbouso and L. D.
tide, both of Marion,. for appellant Willcox
4 WlUoo, of Florence, and Heory Bo^ of
Marion, for respondent
FBASER, J. . This Is an action for slander.
The complaint set forth three causes of ac-
tion ; but, inasmuch as the trial Judge with-
drew the third cause of action from the Jury
and there Is no appeal from his niUng, we
will consider only the first and second.
The material allegations of theae cauaeft
of action are as follows:
For a first cause of action: "Third. That,
as plalntier is Informed and beUevea, at Mar-
lon. In the county of Marion and state of
South Carolina, on the 6th day of March,
A. V. 1911, the defendant herein in the pres-
ence of and to Robert Klckbusch and F. S.
Swlnbank willfully, wantonly, falsely, and
maliciously slandered this plaintiff, in that
in the presence of said persons and to them
he openly and falsely charged this plaintiff
with having grafted and stolen from the
Southern Carolina Lumber Company, a cor-
poration chartered and organized under the
lawa of the state of South Carolina, large
sums of money in the sale of lumber for the
said Southern Carolina Lumber Company to
others and la otherwise robbing said com-
pany in numerous ways; that the defendant
then and there to said persons wisely charg-
ed that said grafting and stealing was done
by plaintiff while acting as president of said
Southern Carolina Lumber Company, as man-
ager and director thereof, and further folsely
accused this plaintUF, as such president, man-
ager, and director, of appropriating to his
own use large sums of money belonging to
the said Southern Carolina Lumber Com-
pany, in ttie following words, to wit: 'Gill
has been grafting from the company In the
sale of lumber to Sterling Lumber Company^
which is GUI & Son, and has beoi robbtng the
(^mpany In ratlooa otbw ways, and I can
fntidah the evidence to pat him behind the
bars if you want to use it* To plaintlirs
damage In tbe sum of fifty thousand dollars."
For a second cause of actlou: "Third. That
at Marion, in the county of Marion, In the
state of Soutli OaroUna, on the 7th day of
August, A. D. 1911, in the presence of H.
S. Wunderlieh, J. H. Bademaker, Joseph
Wi^tman, and L. D. Llde^ the defendant,
Charles F. Rngi^es, openly, wantonly, wlll-
fnlly» falsely, anA maliciously slandered this
plaintiff by then and there and in the presence
of said persons chargiiig this plaintiff with
haTii^ fraudulently grafted and •t<rten ffom
Southern Carolina Lumber Company, a cor-
poration chartered and organized under the
laws of tile state of South Carolina, large
sums of mon^ in the purchase of certain
machlner;^ for said company, in tSie follow-
ing words, to wit: Tbla man, OllI, has graft-
ed from this company In bis' purchase for tbe
company. No one bdieTeB that be paid
three thousand d<>llan for tbe skiddn that
he bought, and no one bdlfina tbat be paid
di^teen bondred doUara for the steam load-
er that he bone bt, and Q» same way tbrom^
all his purchases. Ton, Gill, are so crooked
you have been asked not to sit In any moM
games of cards at tbe Carmldtiatil Hotel ; yon
have beos grafting and stealing from tiiis
company all tbe way tbroui^* lb platnttiTB
damage fifty thonsand dollars.**
The answer denied fheee allegatlonB and
set up that, while he bad made statements
in regard to ttie plaintiff, yet tbat the state-
ments whidi lie did make were privileged
commnnlcatlonB, and he believed them to be
true, and that ttiey were made without mal-
ice, l^e trial resulted in a verdict for plain-
tiff for $7,600, Judgment entered thereon, and
the defendant appealed on tbe following ex-
ceptions:
[1] "I. Because hia honor erred, it is re-
spectfully submitted, In allowing plaintiff's
witness H. S. Wuuderlich to testis, over
defendant's objection, as to remarks made by
tbe defendant concerning the plaintiff at
times other than those allied in the com-
plaint, on the ground tbat such testimony
was incompetent and not responsive to the
allegations of the complaint, and was preju-
dicial to the defendant"
This exception does not direct the atten-
tion of this court to the exact evidence com-
plained of. As a general proposition it can-
not be sustained. In Morgan v. Livingston, 2
Rich. &85, it is said: "The action of slander
is Intended not only to recompense a plain-
tiff for an injury done to his character, but
also to punish tbe defendant for his malice.
Any evidence which shows that the slander
has been again and again repeated is com-
petent to prove malice. The greater length
of time in which the defendant has repeated
his publications evidences that hip words.
ta Doe. Dlf. * An. DiB.
•For etbor eases sse ssme teplo end ssetloa NUKBBS
638
78 SOUTHBASTHBN BBFOBfnDB
(8.C.
taare not been tbe resnlt of passloii, and
Bliowa a deliberate porpoee to Injure tbe
pUiintiff.**
[<] "II. Because hla honor erred, It is re-
spectfully submitted, In refusing to strike
out tbe testimony of plaintiff's witness H. S.
Wnnderlicb, to tbe effect; that defendant nev-
er seemed to be very friendly towards tbe
idalntiff for a time back,* in that such tes-
timony was incompetent, not responalTe to
tbe allesations of the complaint, was a mere
expression of tbe opinion of the witness, and
was prejudicial to tbe defendant"
There were two statements by this wit-
ness In which be gave his opinion. The mo-
tion to strike out applied only to the second
statement. At that time the witness had
stated the remarks of the appellant, and It
was not error to allow him to express bis
opinion. There are nnmeroos cases that bold
this. Douglass v. Railway. 82 S. C. 71, 62
8. E. IS, 63 S. E. 5, among them. This ex-
ception is OTermled.
"III. Because bis honor erred. It Is re-
spectfully submitted, in charging tbe Jory as
follows: '"Where the truth is pleaded in
Jnstiflcation, failure to sustain the plea by
proof may be construed by a jury as an ag-
gravating circumstance In estimating dam-
ages." I charge you that, where a person
said he was Justified In speaking the words
because they were true, and he falls to es-
tabllBh the truth of them on the trial by
evidence, the Jury may take that Into con-
dderatlon as an as^avatlng drcnmstance
In estimating the damages. "Wtille the de-
fendant, under his plea of Justification for
tbe slander, must prove his charge to make
the defense complete, the Jury, in fixing their
verdict, may take Into consideration circum-
stances of aggravation or of mitigation." I
charge yon that, as I have already done. "In
action of slander of words imputing a crime
to the plaintiff, the defendant, to support a
plea of Justification, must produce a record
of conviction of tbe crime so Imputed, or else
show the plaintiff's guilt by evidence suffi-
cient to convict him tf on trial for such
crime; otherwise, the Jury must find for
plaintiff. A mere i^ponderance of evidence
is not sufficient to sustain the plea." I so
charge yon. That means this: It Is alleged
In tbe plaintiff's complaint that the defend-
ant charged him with stealing and grafting.
Those two things amount to crime In South
Carolina. Now, when the defendant under-
takes to Justify by saying that It is tme,
then the defendant must prove the truthful-
ness of that statement, and the evidence to
establish the truthfnlnss of that statement
must be such as would enable a Jury to con-
vict tbe person of the crime charged if he
was on trial for It That is, tbe defendant
must prove the charge beyond a reasonable
doubt, Instead of by the greater wei^t or
preponderance of the evidence. In other
words, if I were to say to yon, Mr. Fore-
man, that you stole my horse, and said it
wUlfolly, fitlsdy, and maUdomly, and yon
were to sue me for slander, and I would un-
dertake to Justify, my defense would be a
Justification; tliat Is, that I told tbe truth
when I said it When I undertook to prove
my defense, I would have to prove your
guilt I would have to prove the charge
against yon by evidence that would war-
rant a Jury in convicting you It I was on
trial for It ThAt is, I would have to prove
it beyond a reasonable doubt "Where the
plea of Justification fftlls because unsupported
by evidence, the Jury, In estimating the dam-
ages, may consider this as a circumstance of
aggravation, and of continued and express
malice." You may do that' The above-
quoted portions of tbe charge were erroneous,
In that, tbe defendant did not plead general-
ly or spedflcally tbe truth of the alleged
fitatemoits set forth In tbe complaint, and
did not offer any evidence tending to show
the truth of such alleged statements, and
the said portions of the charge were bl^Iy
prejudicial to the defendant in that the
Jury naturally Inferred there^m that the
burden of proof was upon tbe defendant to
prove the truth of the slanderous words al-
leged In the complaint to the satisfaction of
the Jury beyond a reasonable doubt, in order
to escape liability, and that tbe failure so to
prove the truth of the said alleged slander-
ous words would, as charged by the presiding
Judge, be a circumstance of aggravation;
whereas, the defendant submits: (a) That he
did not in his answer admit the use of the
slanderous words alleged in the complaint,
but on tbe contrary, denied the use thereof ;
(b) that be did not plead tbe truth of tbe
slanderous words alleged In tbe complaint as
Justification; (c) that upon the trial the tes-
timony of the defense tended to disprove the
use of the slanderous words alleged In the
complaint and defendant did not attempt in
any way to prove the truth of tbe said alleg-
ed slanderons words."
This exception Is sustained. The appel-
lant denied the words alleged. He did not
allege that the words were tme and did
not undertake to prove them. The defend-
ant said In bis answer, "I did not say what
you charged me with saying," and put up a
witness to attempt to prove that be did not
say tbe things chained. Therefore, to charge
the law as to Justlflcation was misleading.
The respondent says that If the Judge mis-
stated tbe Issue the appellant ought to have
called bis attention to tbe error, and, having
failed to do so, has waived bis right to ob-
ject His honor stated tbe Issue correctly
and stated that tbe defendant claimed fliat
the words he did speak were true, to wit
"Whatever words I used on that occasion
were true." That differs very widely from
Justification. Justlflcation Is, "Tea, I said
you stole, and you did steal." When bis hon-
or then charged the law as to Justification, It
was misleading. It is but fair to bis honor,
the trial Judge, to «i^,t^tb^«W9gl^-
■
QILL T. BUOaUES
639
en 81)4 pagea of Uie printed brief, ftod It Is
ii^ surprlidiig that aome contasioa crept In.
"IV. Because his honor erred, It Is re*
spectfoly submitted. In charging the Jary
that 'graftii^ la a crime In this state* and
that the words charging one with grafting
are actilonable per se. In that the word 'graft-
ing* does not necessarily impute a crime."
"Oraftlng" la not Decessarlly a crime and
is not a synonym of "Bteallng." "Stealing**
Is the popnlar word for the technical word
"larceny." The Century Dictionary defines
"graft": "(2) Figuratively, something Insert-
ed In or incorporated with another thing to
which it did not originally belong ; an extra-
neous addition." The word as applied to offi-
cials either pubUc or private would there-
fore Indicate some advantage derived by the
officer that was not contemplated or pro-
vided for by the appointing power. The ad-
vantage may be forbidden by law and there-
fore a crime. It may not be forbidden by
law and therefore not a crime, however Im-
proper from an ethical view of the matter.
To Illustrate, In former days certain officers
were entitled to free ferriage by virtue of
their offices. Free ferriage was not then
graft for these officers, because It was theirs
by law and the right to free ferriage was
conferred with the office. The Legislature
might then repeal the law requiring free
ferriage. The owners of the ferry might
think It to their advantage to continue free
ferriage to these same officers for some hoped
for advantage to themselves to be derived
from a lax enfor<;ement of the law or In the
hope of securing new privileges. Free fer-
riage would then come to the officer as graft
Whatever view one may hold as to the mor-
al of accepting free ferriage, It would not be
a crime. The Legislature might then seek
to destroy the evil effect of allowing the fer-
ry companies to put public officers under ob-
ligations to them and forbid the giving and
acceptance of free ferriage and affix a pen-
alty to It The acceptance of free ferriage
(graft) would then become a crime. It was
the province of the Jury to say In what sense
the word was used and not a matter of
Judicial construction. Morgan v. Livingston,
2 Rich. 283: **If words are susceptible of
two meanings, one ImpuUng a crime, and the
other innocent, the latter Is not to be adopt-
ed, and the other rejected, as a matter of
course. In such a case. It must be left to the
Jury to decide In what sense the defendant
used them." The converse Is equally true,
that the court cannot adopt as a matter of
course, that meaning that Imputes a crime.
It Is a question for the Jury, and his honor
Invaded the province of the Jury when he
said, In this connection, that if the defend-
ant used the word "grafting*' he Intended to
charge a crlme^ There is a presumption that
where two words are used they represent two
ld<>as. It Is true that some men use all the
synonyms their vocabularies will afTord In
the effort to express an Idea; but they al*
waya fall In exactneaa, and these men are
exceptlona This exception la sustained.
[S] "V. Because his honor erred. It is re-
spectfully submitted, In modifying defend-
ant's first request to charge, which read as
follows: 'It appearing from the evidence
that whatever was spokra by the defendant
of the plaintiff, so far as the second cause of
action set forth in the complaint la concern-
ed, was said at a meetli^ of the board of di-
rectors of the Southern Carolina Lumber
Company, of which board both plaintiff and
defendant were members, in the presence
only of the officers and directors of the said
company, in the course of discussions relat-
ing to the business and affairs of the said
company, such conununloations were priri-
l^ed, and the presumption Is that there was
no malice on the part of the defendant, and,
in order to recover on this cause of action,
plaintiff most show by the preponderance of
the evidence that the defendant was actuat-
ed by malice towards him in making these
said statementa." The said request was
modified by striking out the words It appear-
ing,' at the commencement of the said re-
quest, and Insertii^ In lieu thereof the
words, If It appears,'— It being submitted
that the entire testimony showed without
contradiction that the facts set forth in aald
request were true."
The point here is that his honor substitut-
ed "if It appears" for "It appearing." This
exception Is overruled. The anbstltutlon was
proper.
[4] "VI. Because his honor erred. It is re-
spectfully submitted. In modifying defend-
ant's fifth request, which is as follows: 'If
you find from the evidence that whatever
was said by the defendant of the plaintiff
was based nptm Information given him by
others, and was said in the belief that such
statementa were true, these facta should be
considered by you in mitigation of damages,
If you find that plaintiff Is entitled to re-
cover at alL' Raid request was modified by
the addition of the following words: *Yoo
may do it or you may not do It, Just as yon
view the evidence,'— it being respectfully
submitted that it was the duty of the Jury
to consider the facts set forth In the said
request In mitigation of damages. If they
found such facts to be true."
This exception is overruled. The cases
say "may." A rule of law ought never to
require the Imposslbla The Jury had limits
of one cent and a hundred thousand dollars,
and the court had no right to control their
estimate.
I think th^ Judgment of this court should
be that the judgment appealed from be re-
versed and the cause remanded for a new
triaL
GABT, a J., ooncnn.
WOODS, J. (concurring in part). I con-
cor in the opinion of B^^,fh^^o«^^g^[e
540
78 SOUTHSABTERN BBFOBTBB
except tbat I dilnk that the third and fourth
exoeptfona should be overroled, along with
the others.
li] The third exceptlOD Is very long, and
being fully set out In the opinion of Justice
FBASER. need not be TQ>eated. It la true
the defendant denied In his answer the slan-
derous words attributed to him In the com-
plaint ; but, after stating his dlfTerencea with
the plalntUI, he uses this language: "All
the matters and things above set forth are
pleaded, not only In justification of such
statements as defendant did make, but In
mitigation of any damages to which plain-
tlCt might otherwise appear entitled." It Is
conceded by appellant's counsel that If this
could be coDBtrued Into an allegation that
there was Justlflcation tor the statements
attributed to the defendant In the com-
plaint because they were true, then the por-
tion of the charge set out in this exception
would be correct I agree with Mr. Justice
FBASGR that the better construction was
that, while the defendant denied using the
words Imputed to him, yet he was justified
in using whatever language he did ose. But
the auction was not clear, and It was mani-
festly understood by the counsel for plain*
tiff and the circuit judge as an unqualified
plea In justification. This is clear from
plalntifTs request to charge, as well as the
charge itself. Seeing that the judge mis-
understood the pleading and was charging
on an Issue not made by the answer, it was
incumbent on defendant's counsel to call the
court's attention to Its mistake. This was
not done, and It is well settled that new
trials will not be granted in such circum-
stances.
[I] I cannot agree to the proposition con-
tained in the fourth exception that the court
erred in charging that "grafting" Is a crime
in this state. It is true that grafting is not
mentioned under that name as a crime In
the statutes of the state, but the term is al-
ways understood to mean the fraudulent ac-
quisition of property by using official posi-
tion, elth^ public or private, for personal
gain, at the expense of those to whom the
official duty is owing. This Is the statutory
crime of breach of trust with fraudnloit in*
tent in its worst form.
I think all the exceptions should be vrvt-
ruled and the judgment affirmed.
The majority of the court having concurred
In overruling all the exceptions, the Judg-
ment of the dretdt court Is affirmed.
HTDBICS and WATTS, JJ^ concur.
On Rehearing.
PER CURIAM. After a carefol consider^
ation of the matters alleged in the within
petition, this court la satisfied that It has
not overlooked any matter, of law or disre-
garded any evidence contained In this case.
It Is therefore ordered that the order hm-
tof ore made staying the remittitur be re>
voked, and the petition herein refused.
(KS. C. 47>
GRANrm BRICK CO. v. T1TU&
(Sapreme Court of Soath Carolina. June tl,
1913.)
GOTTBTB (i 874*) — PRO0X88 IN FXDERAI,
COUBTS — SsaTICI — ElXEllFTIOHB — STATE
Statutes.
Service of summons on a nonresldoit
coming Into the state to attend a trial in a
federal court as a par^ and witness, made
while in the federal coart and while his case
is on trial and a witneas la on the stand, will
be set aside; the state statote goveming ex-
emptions from aerriee of ^oeeas applying to
state courts only.
[Ed. Note.— For other eases, see Coorts,
Cent. Dig. H OSl, 982; Dee. Dig. | 874.*]
Appeal from Common Pleas Circuit Court of
Richland County; Ernest Oary, Judge.
Action the Oranlte Brick Company
against Edward H. Tttos. From an order
setting aside service of summons on defend-
ant, plaintiff appeals. Affirmed.
Lyles & Lylee, of Columbia, for appellant,
Shand ft Shand and B. Im Atoey, all of Oo-
lumUa, for reqwndent:
FRASER, J. This is an appeal from an
order of Judge Ernest Oary, setting aside
the service of a summons on the defendant.
The d^eudant was and Is a nonresident ot
this state and came into this state for the
sole pnrpom of attending a trial fn the
United States coort as a party and witness.
The summons was served In tlie federal court
while his case was on trial and a witness
was on the stand.
The appelant frankly admitted, unless
this court would overrule the case of Breon
V. MlUer Lumber Co., 83 B. a 221, 65 S. E.
214, 24 L R. A. (N. &) 276. 187 Am. St
Rep. 803, he has no case. This court would
not orermle that case, even If it were ger^
mane to this issne. but It Is not Whatever
may he the right at the legishitlve depart-
ment to Under the due admlnlstratlfHi ot
justice in the courts of this state by the
service of a sammohs merely, and thereby
distract Qie attention of parties and wit-
nesses from the cause then being tried, we
cannot so construe the act as to hold that it
applied to a court over which the Iiegl^tnre
of this state has no jurisdiction. This doc-
trine Is' not new. When the stamp act was
passed by the federal government, and it was
provided that an unstamped eoutract should
not be received as evidence In "any court,**
It was held that "any court" meant any fed-
eral conrt Hie reason was that. In as mudi
as the federal government had no right to
prescribe rules of evidence for the state
courts "any court*' meant any federal court
The converse is equally true; and, when the
Dig. «ifr^«f£ia@gl^
•For othv mam aama topto aad aeotioi NUMBBR la Dao. Dlfr A Am.
BBA6G- t; TIKVLINO IiAND A IMPBOVSBCBNT OO.
State statute says any court. It must be taken
to mean any state court The appellant re-
lies upon tbe state statute for the right to
make this service of process upon the de-
fendant At common law It was not al-
lowed; azul, inasmuch as we tuve held that
It does not apiilj, tba other ezoeptlous do not
arise.
The jadfment of the drenlt oonrt la af-
firmed.
GABY, a J., and WOOD^ HXDBIOK, and
ITATra, JJ*t eimciir.
(US Ym. 1>
BRAOO T. TINKLING LAND ft lUPBOVB-
MENT CO.. Inc.. et al.
(Sa^eme Court of Appeals of Yln^aia. June
12, 1913.)
DowEB a 76*)— ADMSAfiaBuairr— Pabius.
Where, in a suit -for admeasurement of
dower out of land which had been conveyed in
the lifetime of complainant's husband without
her joibtute, she admitted that her hnsband died
seised of soffident lands to satis^ her dower
rights, which landi were in the possessioB of bis
faeirs. It was error to dismiss the bill, which
stated a prima fade case entitling complainant
to dower, but tbe court should have required
that the nein be made parties and then deter-
mine whether complainant was entiOed to dower
out of tbe lands soufht or tbose of wUch her
hnsband died aelKd.
[Ed. Note.— For other eases, see Dowar, Gnt
Die U 267-276; Deo. Dig. | 76.*J
Appeal from Gtrenit Court, LamBbus
ConntT-
Suit by the widow of W. 3. BiagK to obtain
dower out of certain landa owned by ber boa-
band in his lifetime. From a decree denying
tbe relief songht, complainant appeala. Be-
Tersed and remanded.
Geo. IL Allen, of Victoria, and B. Gray-
son DadileU, of Richmond, for appellant
Tumbnll & Tumbull, of lAwrencevlUe. Tbasp
A Thorp, of Norfolk, and McNeUl, Hudgtaia &
Oalin. of Blchmond, for appellees.
HARRISON, J. W. J. Bragg died in FOb-
ruary, 180O, and In August of that year his
widow, tbe appellant, brought this suit to
obtain dower out of certain lands described
In her bilL The decree complained of denlOd
tbe relief sought and tUs amieal was taken.
A demurrer was sustained to the original
bill filed by the appellant and thereupon she
filed an amended bill in which she states
tbe following case: "Riat duilng his lifetime
her husband was seised and possessed in fee
simple of a tract of land In Lunenburg cotm-
ty, containing 423)4 acres; that by deed of
trust in which she did not unite, dated In
S^ttember, 1866, her husband conveyed the
tract of land mentioned to a trustee to se-
en re debts ; that subsequently her husband
was adjudged a bankrupt and tbe land was
sold tqr authority of tbe bankrupt court sub-
ject to ber contingent right of Aoms there-
in, and conveyed to tbe purtiiaser; that since
this sale by the bankrupt court the land bas
passed Into other bands, a large part of It
having been snbdlTlded Into small town lota,
whlah aae now owned by -nnmerona alienees
who have Improved the same ; that she has
never been asaigned ber dower in any part
of tbe land or received the commuted value
thereof ; and that her right to dower in sucb
land lias never been rellnqulsbed. except In
a amall portion thereitf acquired by the Vir-
ginian Railway for railroad pnrposea The
bill tihargea that in Tew of tbe constructton
and operation of the Virginian Railway and
the rajdd growth and development of the
town of Kuibrldge. a portion of wblcb is lo-
cated on part of tbe land in which ahe is
entitled to dower, and for other reasons,
the land has become very valuable, and that
it is now impracticable, if not Impossible, to
assign her dower In kind in at least a part
of the land ; that about 8S0 acres of the orig-
inal tract of 4SIS^ acres is valuable farm
land, In which her dower ml^t be assigned
in kind, though wltb great Injustice to her,
and almost equal Injostice to tbe other owx^
ers ; that as to tbat portion of the land which
has been laid off Into town lots, and on wblcb
are standing residwices, stores, wardionses,
diurehes, eta, complainant says that it Is
impossible to assign her dower therein in
kind without great injustice to her and equal
injustice to the present ownws. She does
not therefore, a^ to have ber dower as-
signed In kind but InslstB Qiat she Is entitled
to have the same ascertained and paid to her
in a lump sum according to tbe annuity ta-
bles provided by section 2281 of tbe C!ode.
The numerous alienees of the land are made
parties defendant and the prayer of the bill
is that a commissioner be directed to report
to the court the value of the farming land
mentioned in the bill, and also the ralne of
the town lots mentioned tbereln, and what
damages, if any, the complainant has siu-
taihed by the detention of her dower, and
whether the farm lands can be divided so as
to assign the complainant her dower therein
without injustice to her or the present own-
ers, and likewise to report whether It te
practicable or possible to assign dower -In
kind In tbe lota mmtloned, and for sndh gen<
eral relief as tba comtdalnant may ba rati-
tied to.
A number of tbe defendants filed a Joint
and Borate answer in which they admit
that tbe husband of the complainant waa
seised and possessed of tbe 428% acres of
land mentioned in the bin; that sucb land
was sold and conv^ed as ^eged ; and that
it is DOW owned In part as set out in the
bilL Further answering, respond^ts aver
tbat the husband of complainant died aeSmeU
and possessed of certain other lands in Lun-
enburg county, one tract containing MlH
acres, and an ondlvided half interest In
anotbo: tract containing 178^ Jieres, anf
•Vor etlMr oMSMe MM Upto na wttlaa MOMMB Id Dm. Dls. * Am. Dls. Kn-i^'ii'i^iri^ M^^Ti^Jd'
642
78 S0DTHBA8TBBN RBPOBTBB
tber buttt tluit the dower of the oonvlalnant
can be assigned her out of these lands, and
that under the law aoch dower most be
assUcned her out of Ihe lands of whkh ber
husband died seised* If they be sofllela^ for
Chat purpose. In exoneration of the lands
held by the respondents. Bnt, say respond-
ents, If the lands mentioned In the bill are
not to be exonerated as claimed, then they
ask that under section 2278 of the Code the
court will ascertain the values of the respec-
tive parcels of land In the bUl mentioned, de-
ductbig the value of all permanent tminroTO-
ments made since the alienation to J. T.
TlBdale (the purchaser at the bankrupt sale),
and will permit the defendants to pay legal
Interest to the complainant annnally on one-
third of the value of their respective parcels
of land during the lifetime of the complain-
ant
The case was heard upon the bill and an-
swer alone; the decree appealed from de-
ciding that the dower of the complainant
must be assigned her In the lands of which
her husband, W. J. Bragg, died s^sed. in
exoneration of the lands mentioned In the
bllL The decree th&a states that no inquiry
is directed, because the complainant admits
that her husband left sufficient lands to sat-
isfy her dower rights, and it Is therefore
ordered that the canse be removed from the
docket.
It la conceded at bar that the lands left
by W. J. Bragg are in the possession of bla
heirs. This being so, we are of opinion that
It was CTTor to enter any decree in the cause
upon the merits until the heirs were made
parties. The bill states a prima fade case
entitling the complainant to the relief asked,
and the answer admits the facts alleged, so
far as necessary to establish her primary
right to dower in the lands held by the re-
spondents, but seeks to avoid such liabilily
by transferring the burden to the land in
the possession of the heirs.
We are of opinion that the heirs are nec-
essary parties and entitled to be heard be-
fore any proper or binding decree can be
made In the premises. The lands bought by
the defendants were, as allied In the bill,
sold subject to the complainant's contingent
dower rights thereto; and, Inasmuch as the
defendants now seek to be aonerated from
that burden by having the same transferred
to the lands held by the heirs, it was in-
cumbent upon them -to file a cross-bill alleg-
ing the facts entitling them to such exonera-
tion, and making the heirs parties defend-
ant, so that, when a decree was entered dl»-
poslng of ttae controversy on its merits, all
parties In Interest would be concluded
thereby.
The decree appealed from most be re-
versed, and the cause remanded for further
proceedings in accordance with the views vi.-
pressed In this opinion.
Reversed.
(115 Ta. tit)
mnTBD STATES v. WILLIAM B. TBIGG
CO.
<8a^nne Ooort of Appeala of TlrglnU. Joae
IB, 1912. On Rehearing. June
12, 1813.)
1. jTmoMEirr (i 744*)— GONCLusmirase.
A judgment deciding that supply lien cred-
itors were entitled to priority over contractual
Hena of the United States againat vessela, oot
because the govePDment failed to record ita Hena,
but because the cootracts contemplated that the
govermnent Hena should be infaritft'. Is not res
judicata of the qaestioa wbetlier sndi Uens are
invalid because not recorded.
[Ed. Note.— For other caaea, see Judgment;
Gent Dig. H 127S-1281; DecTlMc. | 744.*]
2. Uhitbd States (i 76*)— PBlOBrtils— V»-
SELe— Liens— REOOBO—NBuassiTT.
The United States need not comply with
atate registry laws in order to obtain priority
under contractual Uena against vessels under
construction for Che goveroinent, on account- of
advances, to obtain priority over the contrac-
tor'a general creditors.
[Ed. Note.— For other cases, see United States.
CenL Dig. i 59; Dec. Dig. S 76.*]
Appeal from Chancery Court of BJchmond.
Insolvency proceedings against the William
R. Trigg Company. From a Judgment deny-
ing the United States a preference over gen-
eral creditors, the United States appeala
Beversed.
L. li. Lewis, of Richmond, for the United
States. Munford, Hunton, Williams ft An-
derson, of Richmond. A. T. C. Gordon, of
Pittsburgh, Pa., and Jordan Leak^ of Rich-
mond, for appellefe
HARRISON. J. This case has several
times been before this court, the last time
under the style of Hawes ft Co. v. Wm. R.
Trigg Co., 110 Va. 165, 65 S. E. 638, which
was on appeal reviewed by the Supreme
Court of the United States under the style of
United States v. Ansonla Brass ft Copper
Co., 218 U. 8. 4S% 81 Snp. Ot 49, 64 L. Ed.
1107.
At the time these Insolvency proceedings
were instituted against the appellee com-
pany, there were three vessels, for the Unit-
ed States, In process of construction at its
shipyard at Rlchmoad, Ya., namely, a sea*
going suction dredge for the War Depart-
ment, called the Benyuard, a revenue cutter
for the Treasury Department, called the
Mohawk, and a cruiser for the Navy Depart-
ment, called the Qalveston. In the progress
of this litigation it has been finally decided
by the Supreme Conrt that the Benyuard be-
longed to the United States, and that it was
not liable for the debts of the appellee. All
controversy as to this vessel is therefore at
an end, and It la no longer Involved in this
snit
It has also been finally settled by this
court in Hawes ft Co. v. Trigg Co.. supra, and
affirmed by Uie Supreme Court in United
States V. Ansonla Brass & Copper Co., supra,
that, as between the United States and the
sasiflv Uen creditors <tf the Wm. Trigg
topis sad ssetton NUICBBR m DBS. Sis. * Ask Dl». Big>itH«c{
•Feretbart
T7KITED STATES T. WIIXIAM B. TBIOQ 30.
643
Oompany, the latter had priority of lien
upon the Mohawk and the Galveston. Since
the final Bettlement of that question, the sup-
ply Men creditors hare all been satisfied.
The present controversy Involves the right
of the United States to preference over the
general creditors ol the Wm. R. Trigg Com-
pany In fftvor of certain contractual Hens
held by tbem agalnat tbe Mohawk and the
Galveston.
These two vessels were bnllt by the Trigg
Company under contracts with the United
States, which provided for a Hen upon each
Teasel in favor of the government for all
moneys advanced by it on account thereof
during the progress of the work. At the
time of the appointment of the receiver, these
Teasels were in course of construction, and
the government had made large payments
npon each, and It ii for de satisfaction of
these contractual liens that the appellants
now insist that they are oitltled to priority
over the claims of the general creditors of
the William R. Trigg Company. The exist-
ence of these contractual Hens In favor of the
govemmmt has been recognized thronghont
this litigation. It la, however, contended by
the appellees that these liens cannot be
given preference over the general creditors
of the Trigg Company, because the United
States has failed to comply with the Virginia
r^Istry laws by havli^ the contracts rft>
serving anch Hens recorded. It is farther
Insisted that this court has held, in Hawea
A Co. V. Trigg Co., supra, which decision has
been alflrmed In that lei^ect 1^ the Supreme
Gonrt In United States t. Ansonla Brass. et&,
Co., supra, that these contractual liens in
fsTor of Out app^Uants agalnat the Mohawk
and the OalTeatim are taiTalld and cannot
be enforced as against the appellees, because
unrecorded, and that, th«efor^ tbe question
of the validity of such liens, so far as the
general creditors are concerned. Is res judl-
eata, and. further, that If the Question of
tile validity of BQCh li»> has not beea al-
ready finally dedded In this litigation ad-
Ters^ to the United States, it must now be
so dedded.
[1] An examliutlon of the record and tbB
opinion of this court on the former appeal
In the case of Hawes A Co. t. Trigg Co., sup-
ra, shows Tery dearly that the question now
raised between the United States and the
general creditors of tbe Trigg Company was
not cnmldered or Intended to be dealt with
at 13iat ttmew Tlu only questions then midu'
consldwatlon wwe those dealt with In de-
termining the controversy between the sup-
ply lien creditors of the Trigg Company and
the United States. Nowhere tn the elaborate
petltl(Hi for appeal in that case Is there men-
tion of any creditors save tbe supply llot
creditors. It is true that one of the grounds
relied on In support of the priority of claim
In favor of the supply liens was that the cea-^
tractual liens in favor of tbe United States
were Totd as to creditors under the recorda-
tion statute of the state, but that questlcm
was not even mentioned In the decision of
tbe case. The court very clearly and suc-
cinctly states the question to be determined
by it in these words:
"The question decided by the lower court
and presented on this appeal la whether title
to these several vessels was In the govern-
ment or the Trigg Company, and, If In the
latter, have ita creditors who have sued out
and caused to be recorded. In accordance
with the labor and supply lien statute of the
state, claims for supplies furnished the Trigg
Company above referred to, priority of right
to satisfaction over the rigbta of the gov-
ernment in tbe said vessels."
After carefully considering the case as
stated, the court announced its conclusion
that ttte supply lien creditors were entitled
to priority over tbe contractual liens of the
government, not because the United States
bad failed to record their contractual Hens,
but because, as clearly shown by the provi-
sions of tbe contracts reserving those liens,
it was intended tliat they should be Inferior
to tbe supply liens. On appeal tbe Supreme
Court took this vlewi and affirmed tbe deci-
sion of this court as to the Mohawk and
the Galveston.
The Virginia recording acts were not moi-
tioned in tbe opinion of this court, or In
that of the Supreme Court, and It cannot
be presumed that either court intended to
decide such a far-reaching and important
queatlon as that tbe contracts of the United
States are subject to stato registry statutes,
without even mentioning the subject, espe-
cially when It is clear that tbe decision of
so vital a question was not necessary to a
disposition of tbe controveray thai .before
the court
Certain expressiona In the opinion of this
court are relied on as tending to show that
the IntentlDn was to hold that the contractu-
al Hens In favor of the United States were
not superior to the claims of the general
creditors. Tbe expressions relied on an
wholly insufficient to Justify tbe use that is
sought to be made of them. It Ls manifest
from the whole opinion that the court at no
time bad any such question In Its mind.
As said by Mr. Justice Field In Barney v.
Winona, etc., B. Co., 117 U. S. 228, 6 Sup.
Ct. 6M, 29 L. Ed. 858: "We recognize the
rule that what waa decided in a case pend-
ing before us on appeal Is not op^ to re-
consideration in tbe same case on a second
appeal npon similar facts. The first deci-
sion is tbe law of the case and must control
its disposition; but tbe rule does not apply
to expressions of opinion on matters the
disposition of whicib was not required tor tbe
decision."
Looking to tbe whole record, including the
decision of this court and that of the Su-
preme Court on tbe former appeal, we are of
opmio. that the lower co^^,<^
644.
78 SOUTUOASllVBM BBPOBXBB
th* oiMstloa praaentoa bj ifete vpMl t* bt
tm Jndloatft.
[f] Ttmt qnwttcnt wMch wDI now, for ttu
flzBt tlme^ bs eooBlderaa and decided by tbb
eonrt In tbls Utlgatton, InTolves the rl^t of
tbe United State*, by vlrtne of Its cmitractu-
al Uens apm tbe Ifobawk and tbe Oalveston.
to priority, u to tboae veaaels, over tbe gea-
wal creditors of tbe Wm. B. Twlgg Company.
In otber words, at* tlie United States bound
to eomiOy wltb tbe state nslstty laws and
have tbcdr contracts recorded, in order to
mate effectlTe and available Uie Hens re-
Btfved In such contractx, as against tbose
wlio have no liens?
In the light of the decisions of tbe Supreme
Court of the United States, It Is clear that
Uds qtiestlo& most be answered in tbe nega-
tive
In United States v. Manrlce, 2 Brock. 96,
Fed. Cas. No. 1S,747, Chief Jnatlce MarahaU
decided, as tbe Sopreme Court of the United
States In subsequent cases has lepeatedly-
held, that tbe pow«r of the federal gorem-
ment to contract Is one of tbe means neces-
sary to aocomplisb tbe objects for which the
government was established, and that this
capacity to contMct Is coextensive wltb the
duties and tbe powers of govemment. No
power, indeed. Is more essential to the maln^
toiance of tbe govemment A different prlU'
dple would Involve a denial of the wdinary
rights of sovereignty. United States v.
Tlngt^, S Pet US, 8 L. Ed. 66; United
States T. BMtdley, 10 Pet 343, 9 L. Ed. 448;
Van BrocUin v. State of Tennessee, 117 U.
& 161, 0 Sup. GL 670; 29 L Ed. 845; Moses v.
United States, 166 U. S. S71-686. 17 Sup.
Ot 682, 41 li. Ed. 1119. {
This power to contract, which is an in- j
ddent . of the sovere^ty of the United
States, and Is, as stated Judge Marshall,
coextensive with the duties and powers of
govemment carries with it complete exemp-
tion of the govemm^t from all obligation
to comply wltb state registry laws, for the
reason that It would grievously retard. Im-
pede, and burden the sovereign right of tbe
government to subject It to tbe operation ot
socb laws. Dollar Savings BAnk v. United
States, 19 WaU. 227, 22 L. Ed. 80; Stanley
V. Schwalby, 147 U. S. B08, IS Sup. Ct 418, 87
tu Ed. 259; United States v. Snyder, 149
U. 8. 210, 13 Sup. Ct 846, 87 L. Ed. 705.
If the states had the power to interfere
with the operations of tbe federal govera-
m«it by comp^lng compilance on its part
with state laws, such as the registry stat-
utes, then, in the language of tbe Supreme
Court the potential existence of the gov-
ernment would be at tbe mercy of state leg-
islatlott. United States v. Ooyder, supra.
Both the Supreme Court of the United
States and this court have recognized these
hens asserted by tbe Uidted States gainst I
the Mohawk and the Oalvestou as valid con-
tractual liens. As such they are superior to I
the claims of all creditors of tbe Irlgg Com> 1
pany not having prior liens, since, as seen.
th^ are not affected by the fftct that tbe
contracts reservli^ tbem were not recorded;
tbe United States being under no obligation
to comply with the state registry laws.
Tbe decree complained of must be revw^
ed, and the cause remanded for further pro-
ceedings not In conflict with this opinion.
Beveraed.
On Blearing.
B. H. Talley, of Blchmond, and D. Law-
rence Groner, of Norfolk, for tbe United
States. Uunford, Huntbn, Williams A An-
drason. of Bicbmond, for am^eUeeSi
HABAISON, J. This petition for rehear-
ing was granted solely for the purpose of
having further argument upon the question
whether or not the present controversy be-
tween the federal government and tbe gener-
al creditors of the Wm. R. Trigg Company
with respect to tbe vessels Mohawk and Cal-
veston had been previously decided adversely
to tbe govemmoit and in favor of the geno^
at creditors, and wttii thowfore, to tUn
appeal res Judicata!
This court, by Its o[^on rendered on the
13th day of June, 1912, held that this ques-
tion was not res Judicata. In the opinion
then handed <down we said: "An examina-
tion of the record and the opinion of this
court on tbe forma appeal In the case ot
Hawes A Co. V. Trigg Co., supra, shows vwy
deiarly that tbe question now raised between
the United States and the general creditors
of tbe Trigg Company was not considered or
intended to be dealt with at that time. The
only questions then under consideration were
tboee dealt with in determining the contro-
versy between the supply lien creditors ot
the Trigg Company and the United States."
Tbe present argument which has beoi giv-
en doe consideration, has confirmed us in tike
oondurien that n^tber tbe opinlCHi oot tfaJa
court In Hawes & Co. v. Trigg Oo^ 110 Tc.
165, 65 8. K B3S, nor that of Uke Supreme
Court in United States t. Anscmia Brass *
Copper Co., 218 U. 8. 452, 81 Snpk Gt 49, 64
L. Ed. UOT, decided or intended to decide
any question between the Qolted States and
the general creditors of the Wm. B. Trigg
Company. The rights of such genwal credl'
tors weve not In issue in the caae of Etawea
& Co. V. Trigg Co., supra, were not presented
on that appeal, were not necessarily Involved
therein, and were In no way considered or
affected by that dedston, or by Che dedslMi
afflnnlng the same, of the Supreme Court in
United States v. Brass ft Copper Co., supra.
Tbe questions involved In the present appeal
have been folly dealt with in the opinion of
this court banded down June 13, 1912, and
the decree then pronounced by this court
mut for tbe leaMoa diere glTO^ bt adber>
Digitized by Google
NORFOIiK A P. TRACTION CO. T. piTT 07 NORFOLK
645
(UBTa. ia»)
NORFOLK & P. TRACmON CO. t. CITY
OF NORFOLK.
(Soprene Court <^ Appeals of Virginia. Jan.
le, 1012. On Petition to Ratiear.
JmM 12. 1«1&)
1. Stbebt Railboads (I 87*)— GoRSTRmmoir
— Bepaib or Stbkbts.
Th« charter of a street railway company,
Incorporated by the state, provided that it
•bould keep that portion of the tits streets
occupied b7 Its tracks well paved and In good
repair without expense to the monidpalitT.
Code 1004. i 12941 (8). authorized street rall-
wa; coatpaoies to lay tneir tracks in the streets
viUi Uie consent of municipalities, but required
them to restore tbe pavemeDts and to main-
tain them In good condition. Beld that, in viev
of the strict construction against the cliarter,
the company was required to k^ep pace with
the growth aod progress of the city and to con-
form its pavements to tbe policy of the munic-
ipality in the matter of street improvements.
[Bd. Note.— For other cases, see Street Rail-
roads. CeuL Dig. tt 103, 105; Dec Dig. 1 37.*]
2. Stbevt Railboads JI 87*)— GoHsmuonon
— Maiittenanct or Birkbt.
In paving a street where an extra con-
crete base was necesssry under the tracks of
a street railway company, required to repair
and keep in good condition the pavements be-
tween its tracks because of the weight of the
company's vehieler, it was liable for the ex-
tra expense.
lEd. Note^For other cases, see Street Rail-
roads, Cent. Dig. SI 103. 105; Dec Dig. i 37.*]
8. 3TBRI Railboads (| 87*)— OBDiNAncxs—
POWIBS.
Where the diarter of a street railway
company, incorporated by the state, provided
that it should keep that portion of the street
occupied by its tracks well paved and in good
repair wltiiout expense to the municipality,
those provisions were mandajtory, and the city
council could not shift any burden fr6m the'
company to the munldpali^; any attempt to
do so being ultra vires.
[Ed. Nota^For other cases, see Street Bidl-
nods, Cent Dig. H 108. 105; Dee. Dig. | 87.*]
4. Street Railboads ($87*)— BquitablbBb-
TOPPEL.
Where the charter of a street railway
company obligated it to pave and keep in re-
pair, without expense to the city, that portion
of toe street within its tracks, an nltra vires
ordinance shifting the bnrden from the rail-
road to the (Aiy will not estop the city from
requiring a compliance with the charter.
[Bd. Note.— For other cases, see Street Rail-
roads. Cent. Dig. n 103. lOS; Dec. Dig. f 87.*]
On Petition to Rehear.
8. Appeal ai7d Ebbob (i 173*)— Pbbbbnta-
TXOH OF GbOUNDB OF B^TIEW BSLOW— Nk-
CESSITT.
In an action a cdty against a street rail-
way ccHnpany for the recovery of sums expended
in paving that part of the street which the com-
pany was reqnired to maintain, the contention
that the company was not liable because notice
to pave was not given before the city laid the
pavonent, cannot for the first time be raised
<m appeal, particularly where the agreed state-
ment of facts did not mention it, and the omis-
sion mljiht have been supplied below.
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. « 1079-1080. 10^1-1003,
100&-1098, 1101-1120; De& Dig. 1 178.*]
Error to Law and Obasxtsy Oonrt of (Xtf
of Norfolk.
Assumpsit tba 01^ of Norfolk against
the Norfolk A Portsmouth Traction Compa-
ny. O^iere wlui.a Judgment for plalntifl, and
defendant brings error. Affirmed.
H. W. Anderson, of Richmond, and Wal-
ter H. Taylor, of NorHolk, for plaintiff in er-
ror. Geo. a Cabell, of Norfolk, for defend-
ant In error.
WBIl^E, J. This Is an action ot am-
snmpslt brought b; 0ie defendant In error,
the city ot Norfolk, against tbe plalntiUt In
error, the Norfolk ft Portsmonth Traction
Company, to recover by' way of damages
the cost of materials and labor fnmlsbed and
done by the plabitlff in laying wood block
paving, In repavlng between and for two
feet bc^nd the oata rails of the defsndan^s
tracks on Orsidiy street and for similar re-
pairing with wood blodc and Utnllthie pav^
Ing m Botetonrt street, shM tot furnishing
materials and laying extra concrete base un-
der the deftodant's tracks In connection wlOi
such r^Tlng. The defendant paid the coat
of labor for the work, but dmied liablll^ for
the cost of materials. There was a wdlet
and judgment for the plaintUf tor $22,060.98,
to whlcb judgment tStts writ of error was
awarded.
The question for our determination la
whether the defendant Is rqsponsible fbr tba
cost ia mat«lals furnished by the plaintiff.
[1] On January 4, 1866, the General A»-
sembly Incorporated the Norfolk City Rail-
road Company, the predecessor of tbe plain-
tiff In error, granting the company 0ie priv-
ilege of lining Its tracks in the streets of
the city of Norfolk, but uptm oondltlon that
the consent of the council of the dty should
be first obtained. Clause 8 of the charter
proTldea: "Thiit said company sbaU keep that
portion of the street occupied by its track
or tracks, embracing the space between said
tradv and a distance of at least two feet
beymid the outer raUs tbereeC. well paved
and In good topalr, without expense to the
corporation ot the dty of Norfolk; and the
rails used for said tracks shall be of the most
approved patton for snch purposes, and
shall be laid at the distanos of five feet five
Inches between tbe outer ridges or flanges
therectf, so as to form as UtUe obstruction as
practicable to tbe passage of canriagss or
other vehicles along or over said tXBXika."
This controversy arises not so much over
tbe Interpretation of the fraegolng clause
(the languid of which Is free from ambigu-
ity) as It does with requect to the attempted
modi&eatlui of the obllgattons thereby Im-
posed upon the company by seetUm 9 of an
ordinance passed by the dty eonndl Decen-
ber 14. 1887.
Section 0 Is as follows: "The said railway
shall be so made and laid down as to con-
form to the established, or proposed, grades
of the several streets to be occupied by 1^ si
given by the dty o^Inear; and In ease the
*For otbsr cases &«« bum tople and ssotlon NiniraR In Deo. Dig. A Am. Dig. Kay-Na Series A Bsp'r Indexsi
D gfeed by Google
546
78 SOUTHSASTERN REPORTEB
Beveral streets occupied by It shall, In the
fatore, be pared, or r^uived, the city of Nor-
folk shall famish and deliver the material
therefor upon said streets and have the work
done; but the proprietors, or lessees, of
said railway shall pay the said dty for the
cost of labor for paving the same between
the tracks and two feet on each side there-
of, such amount, In case of nonpayment by
the company for a period of thirty days after
the work Is done, to be recoverable by legal
proceedings In the name of the dty. And
in case the grade of said streets, or any of
them, or any part tliereof, shall be changed
hereafter, the proprietors or lessees of the
said railway, at their own expense, shall
make corresponding alteratioDa of the said
tracks; and the owners, proprietors or les-
sees of the said railway, shall keep the
streets covered by said tra<^s, and extend-
ing two feet oa the outer limits of each side
of said tracks, tn thorough repair at their
own expense;"
We have no difficulty In reaching the con-
clusion that, as an original proposition, the
predecessor of the defendant was under char-
ter obligation to keep its portion of the
streets, as therein defined, well paved and in
good repair and at its own expense. The
charter so declares in language too plain to
call for construction or to admit of contro-
versy. See, also. Va. Code 1904, | 12941 (3),
which authorizes a street railway company,
with the copsent of the municipal authorities,
to lay its tracks in the streets, but likewise
Imjioses upon such company the duty to re-
store the pavemmits of the streets and to
maintain them In good condition.
The apparent conflict among the authori-
ties on the subject of tl» extent of the lia-
bility ot these companies is due to dlflerenc-
«■ In the lai^nage of their charters.
For example, in the case of Chicago v.
Sheldon, 9 WalL 64, 19 L. Ed. 694, so much
relied on by the plaintiff In error, the char-
ter there construed was quite different from
this charter. It required the company to
keep its portion of the street "in good re-
pair," while the language here employed is to
ke^ it **well paved and In good repair."
In construing language similar to that
found In the present charter. In cases aris-
ing In w»ne of the most progressive and im-
portant dttes of the country, the trend of
tlie more recent and beat considered deci-
sions Is to hold street railway companies to
a Ugh degree of responsibility and strict
compUance wltii tbelr charter duties in rela-
tion to thfldr occupancy of streets. The
eonrts proceed upon the theory that fran-
chises granted to such companies are In dero-
gation of conmum right, and are considered
an encroachment upon the primary use of
the streets by the pnbUc, and the Jirlnciple
Is fnndamratal tiiat such grants are to be
ctuBtmed most strongly against the grantee.
Hence it is said: "A charter, having the
elMuotts of a contract, granted to a street
railway company, la to be strictly construed
against the company, and it has no doubtful
rights under such charter, for, when there
are doubts, they are construed against the
grantee and in favor of the city." West-
ern Paving ft Supply Co. v. Citizens' St R.
Co., 128 Ind. 628, 26 N. m 188, 28 N. E. 88,
10 U R. A. 770, 26 Am. St Eep. 462. The
decisions of the Supreme Court of the Unit-
ed States are especially pronounced In main-
taining this construction. St Glair, etc, v.
Illinois, 96 U. S. 63, 24 I* Ed. 661 ; Oregon
R. & N. Co. V. Oregonlan B. Co., 180 U. S.
1, 26, 9 Sup. Ct 409, 32 L. Ed. 837 ; Knox-
vlile Water Co. v. Knoxville^ 200 tJ. 8. 22,
26 Sup. Gt 224. 60 L. Bd. 383.
As corollar^ to this canon of construction,
it Is the accepted doctrine that the obliga-
tion resting upon a street railway company
to keep Its portion of the streets "well paved
and In good repair" (or language of like
import) necessarily Involves the duty to keep
pace with the growth and progress of the
city, and to conform Its work to the policy
of the municipality In the matter of street
improvement. Hence for a company to pave
with cobblestones could not be regarded as
a compliance with Its duty to keep Its part
of the street "well paved and In good re-
pair,** where the rest of the street Is laid
with wood blo<^ or bltullthlc pavement
In District of Cblumbia v. Washington R
R. Co.. 4 Mackey (D. O.) 214, it was held:
"That where a street railway company's
charter required it to keep its tracks and
the space betwe^ the rails and two feet
outside well paved and in good repair, It
could be required to construct a pavement
where one did not exist before Its road was
built, and to construct such kind of pave-
ment as the authorttles should direct"
So in the case of Mayor of the City of
New York v. Harlem Bridge M. & F. By.
Co., 186 N. T. 804, 78 N. B. 1072, the clause
of the charter provided: "The said grantees
or their successors shall keep the surface
of the street Inside the rails and for one
foot outside thereof. In good and proper or-
der and r^MLir, and conform the tracks to
the grades of the streets or avenues as they
now are or may hereafter be (Ranged by
the authorities of the aforesaid towns." The
court construing this clause says: "While
this statute does not Itself specify, as in
the case of the railroad law. that this shall
be done under the supervision of the munic-
ipal authorities and In accordance with tbelr
speclflcatlons, that necessarily fallows from
the general duties and powers conferred np*
on snch authorities by law. Therefore, whea
the proper authorities, in view of the con-
dition of the street as show to exist, decid-
ed that a granite block pavement should be
laid, we tblok that the requirement for
repairing and keeping tn good order com*
polled the defendant to co-operate with the
city, and put the space betwem its rails
in tbe same condition as thfr. rest otw the
Digitized by VjOOglC
NOKFOI^E ft P. TRACTION
OO. T. CITT OF KOBFOLE
647
street, even though that necessitated the
layli^ of a new paTement It has been held
elsewhere hy this court that an obli^tlott,
couched in substantially similar language,
resting upon a railroad compftny, will com-
pel it under proper conditions to lay a new
kind of pavement • • « The qnestlon oC
what shall constltnte keeping a pavement in
the tracks ora railroad company In good or-
der and repair Is to be determined, somewhat
at least, by reference to existing and sur-
rounding conditions, and in our Judgment it
would be altogether too narrow a view to
hold that, where a municipality had for suf-
ficient reason decided to pave a street with
asphalt or other new pavement, a railroad
might discharge Its obligations to keep its
part of the street in good order and repair
by merely patching up a dirt road or some
species of pavement which bad become an-
tiquated and out of condition, and which was
entirely different from that adopted in the
remainder of the street" Columbus St Ry.
Co. T. City of Columbus, 43 Ihd. App. 265,
86 N. B. 83; City of Reading ▼. United
Traction Co., 215 Pa. 250, ft4 AU. 446; City
of Philadelphia Thirteenth, etc., Street
Pass. Ry. Co., 169 Pa. 269, 33 Aa 126; 2'
saiiott, Roads ft Streets, f 987.
[2] It Is conceded that the materials fur-
nished and work done on the extra concrete
base were rendered necessary by the In-
creased size and weight of the defendant's
rails and rolling stock, and was of no bene-
fit to the city, except to prevent damage to
the surface of the street from Inadequate
foundatlcm.
The case, in that aspect la controlled by
the case of Washington ft Georgetown Ry.
Co. V. District of Columbia, 108 U. S. 522,
2 Sup. Ct 865, 27 L. Ed. 807. The court
there held: "Where a street railway com-
pany Is by law bound to keep the space
Within Its tracks and for two feet beyond
them well paved, which part of the leaving
to mor6 costly than that of the rest of the
street, the extra and separable expense of
BQCh part of the paving should be assessed
exclusively to the company, and such com-
pany ia not entitled to be relieved from a
tax for paving the street by paying the
proportion thereof which the width which
It is obliged to pave bears to the width of
the whole street"
[3] We shall next consider the contention
of the plaintiff In error that, whatever may
have been Its original charter obllgatloDs,
It has been released by the dty ordinance
tTom all responsibility In the matter of pav-
ing Its part of the streets, exc^t only the
liability to pay the dty the coat of labor in
doing the work.
We are of opii^on that the paving and
r^iring clause of the charter Ut mandatory,
and that the city ordinance which under-
takes to Tepe&l it, in whole or In part, is
ultra Tires and void. The General Assembly,
In granting the charter* saw fit to linpoae. up-
on the company the duty of keeping the part
of the streets occuj^ed by its tracks, as there-
in defined, "paved and in good repair, with-
out expoise to tbB corporation of the dty
of Norfolk," and the dty council had no pow-
er to shift that burden from the company
to the munloipallty.
[4} It Is said, howevN', that this controver-
sy Is only between the city and the company,
and therefore that the state Is not Interest-
ed In the result and that the dty Is estop-
ped to question the validity of its own or-
dinance. The question is not one of policy
as to whether the expose shall be borne
by the dty or the con^)any, but of power.
If the dty has power to relieve the company
from one of* its mandatory charter obliga-
tions, it has power to relieve It from all;
and any argument that leads to such a result
cannot be sound. If the ordinance be ultra
vires and void. It cannot, of course, operate
as an eistoppel.
In Roanoke Gas Co. t. Roanoke, 88 Ya.
810, 14 8. E. 665* It was held that the powers
of a munldpal corporation with respect to
its streets are continuing and inalienable.
So in Basic aty t. Bell. lU Ya. IffT, 76 S.
E. 8S6, it was doubted whether the doctrine
of equitable estoppel exists in this state as
regards the powers and oUigations of a mu-
nldpal corporation over Its streets.
In City of Reading t. IMted Traction Co.,
215 Pa. 250, 64 Aa 446» 7 Ann. Cas. 880
(see, also, notes to the principal case), it
was held that a street railway company, In
the absence of ^press contract or statutory
direction, Is bound to ke^ the portions of
the streets occupied by its right of way In
proper r^talr. Tbe court also observes:
"That the streets of a city belong to the state
for the use of the people at large. To the
munldpality, as Its agent, It commits the
duty of at all times keeping them In proper
repair for the convenience and safety of the
public. This duty of the munldpality does
not shift except when It Is expressly or lm<
plledly imposed upon another." Otty of Rich-
mond V. Smith, 101 Va. 161, 43 S, B. 345;
Bellenot v. City of Richmond, 108 Ya. 314,
61 S. B. 785; White Oak Coal Co. v. City of
Manchester, 109 Va. 749, 64 S. B. 944, 132
Am. St. Rep. 943.
These t^rindples are grounded upon the
general proposition that the Legislature, sub-
ject only to constitutional limitation, has su-
preme control over streets and highways,
while, on the other hand, the power of a
munldpality Is wholly dependent upon and
measured by delegation from the government
and is held and exercised in subordination to
Its will. The one exerts sovereign power, the
other granted power, and holds its streets as
trustee for the general public.
The opinion handed down at the present
term In the case of Danville t. Danville Ry.
& Elec. Co., 76 S. B. 913, Is in harmony wltlb
the views herein exprewufced by LjOOQIC
548
78 SOtrCHBASTEBM BEPOBXBB
Upon tbe whola case, , we •» of opinion
tbat tlie indsmwit Is vrlttaont error and
■honld be Rfflrmed.
▲fflrmed.
Upon Petition to Rehear.
■FEB GUBIAU. 1h» specific ground npon
whldi a rdteaxlng of this case Is sought Is
becatuM^ tt Is said, Qie tractkm company was
not called on in the first instance by the <dty
to repare Its portion of the streets. And
granting that the company was under chais
t«r (AUgatlon to do such reparlng. neverthe-
less until, after notice, it bad refused to com*
ply with mdk demand, the dty had no an*
thorl^ to do the work at the company's ex-
pense, and therefore could not maintain an
action to recover the cost of the work done.
It is said that this proposition is so plainly
correct that it is unanswerable, and com-
plaint is made that It was not noticed In the
opinion of the court
[f] The omission was not an Inadvertence
The assignment was not discussed in the
opinion, simply because no such question was
properly raised by the record, and it was,
therefore, not within the cognizance of an
appellate court So Car as the record dis-
closes, no such defense was relied on In the
trial court, and no exception was taken on
that ground. If the question had been raised
in the lower court, non constat but tbat the
dty could readily have proved notice and de-
mand. The company "was silent when It
should have q;>oken, and it will not be heard
to speak when It ^ould be stlent"
It affirmatively appears from the agreed
statement of facts that "the question involv-
ed in this case Is the liability of the Norfolk
& Portsmouth Traction Ck>mpany for the cost
of the material used in laying wooden blocka
on the portion of Granby street and Botetonrt
street lying between the tracks and two feet
on each side thereof, in the year lOlO, and
for the cost of the material in an extra con-
crete foundation under the tracks."
It Is a fundamental rule of practice that
"exceptions of every kind, when necessary at
all, should be taken in the court whose Judg-
ment Is to be reviewed. Otherwise^ the ap-
pellate court would be converted into one of
original Jurisdiction.*' See note to Warren v.
Warren, 2 Va. L. Beg. 195, 196.
Burks, J., In Redd v. Supervisors, 81 Grat
(72 Va.) 695, at page 711, observes: "We can
only review the case made, and aa made, by
the parties In the court below. We cannot
go outside of the record and dedde a case
upon fticts dehors. This wonld. In my Judg-
ment, be a palpable and flagrant abuse of ap-
pellate JurisdicHon."
So, also, in Oamden t. Doremna, 8 How.
515, 11 L. Ed. 700, it was said: "It would be
more extraordinary still if, under the mask
of ' such an objection, or mere hint at objec-
tion, a party should be permitted In an ap-
pellate conrt to luring upon bis adversary
defSecta which it did not appear ha ever re-
lied on, and which. It they" odsted and "had
been openly and spedflcally alleged, might
have been easily cored." Warren v. Warroi,
03 Va. 73, 24 8. B. 918; Lambert v. Jenkins
112 Va. 376» 71 8. S. Tl£, Ann. Cas. 1013B,
77&
Anthorltlfle could be multiplied upon this
obvlons and settled rule of appelate practice^
but the foregoing sufficiently illnstrate it
It was upon these considerations that the
court did not feel called upon to notice In Its
opinion the asdgnmeat to which attention I0
now invited.
Rehearing denied.
(llBTa. 11>
BOYD T. SOUTHERN RY. GO.
(Supreme Court of Appeals of Virginia.
June 12, 1913.)
L RaILBOADS (i 848*)— IHJUBUS TO PSBSOH
AT CBOSSINO—NSGIjaBNCB— EVIOKNCB.
Where, In an action against a railroad
company for injuries to a pedestrian, itrack br
an engine at a crossing over a spur track
leading into the yard of a mannfactaring
plant, there was evidence that the engine, run-
ning backwards, gave no warning of Its ap-
proach to the crossing, and that none of the
train crew were on the lookout for the cross-
ing, though th« knew that persons crossed
the track at all hours of the dar, the negll-
genoe of the company was estabushed.
[Ed. Note.— For other cases, see Railroads.
Cent Dig. H 1188-1150; Dec Dig. i 84a^
2. Railboads a 827*)— GsossiKos— Gabb Rb-
QUIRBD OF TaLAtEUaa — GOinEBXBOTOBT
Nbougenob.
A person about to go on a railroa4
track, whether at a crossing or a licensed
,way, mast look and listen for approaching
trains; and where he failed to do so, and he
crossed the track In. front of a mOTing train,
and was injured b/ it. Us negligence so con-
tributed to the injury that he cannot recorer
unless the railroad company, after It discov-
ered or ought to liave discovered Ids peril,
might liave avoided the Injury by the exercise
of ordinary care. '
[Kd. Note.— For other cases, see Rallroadi^
Cent Dig. II 1043-1056; Dec. Dig. t 82T.*]
3. Railboads (I 827*) — Csossinos — Gabi
REQtnSED or TSAVELXBS — GOHTBIBTTTOBT
Neoliqence.
Where a railroad company acquired a
rieht of way through the property of a man-
utacturer for the location of a switch Into
the yard of the manufacturing plant, on con-
dition that in the event it abandoned the use
of the way for railroad purposes it should
revert to the manufacturer, the mannfactarer
and employes, In paaaing over a crossing over
the switch, were not relieved of the duty to
look and Usteti for trains.
[Ed. Note. — For other cases, see Railroads,
Cent Dig. H 1043-1056; Dec, Dig. & 327."]
4. Railboads (§ 327*) — Caossixas — Cabe
ReQUIBED of TbAVELEHS — COHTBIBUTOBT
Nkot-iornce.
Where a pedestrinn. passing a train on
a spur track 500 or 600 feet in length sad
cbieBy used for the coDvenience of a miU of
a manafacturer, knew, if giving aoy attentioa
to his surroundings, that the/tnin, whqOLer
•Vm etbsr casM ses same vaglo sad aeetioa NUHBBR la Dse. Dig. * Axa. Dig.
Va.)
BOTD T. SOUTHERN RT. OO.
going to the mill to piece a car or take one
out, woald go back Id tbe dlredioii from
wblch it came and In which he wu going,
tie was not relieved of iihe duty of looUag aiid
listening for trains when attemptiiif t» onm
the track at a crossing.
[Ed. Note.— For other cases, see Railroads,
Cent. Dig. H 1043-1056: Dec Dig. | 827.*]
5. Railboads (I 338*) — Colzjuohb at
CB03SIN0S— NBOUGENCX.
Where a pedestrian was not In peril un-
til he started to cross a spar track at a cross-
ing, and it was then too late for tbe en-
gioeer to stop his train approaching the cross-
mg, thoQgh he had been on th« lookont and
had seen the pedestrian's danger, there could
be no recov^y on the theory ol want of or-
dmary care by tbe trainmen after the dis-
covery of the pedcttrian*! perO, created by
his ne^igence.
[Ed. Note.— For other easea, sea Rallroada,
Cant Dig. H lODO-lOW; Dec D|g. i 38&*]
Brror to Gorporatloii Conrt of DanrlUa
Action by one Boyd against the Southern
Railway Company. There was a Judgment
anatalnlng a d«marrer to tbe evldoice and
renderlns Judgment for defendant, and plaln-
tStt brings error. AfBrmed.
■Scott & Buchanan, of Rldunond, and B. H.
Cnster, of Danville, for plaintiff In error.
Wxa. Leigh, of DanvlUe, fOr defendant in
error.
BUOHANiAM, J. This Is an action to re-
cover damages for personal Injuries soffered
by the plaintiff In error, caaaed aa Is allied,
by the negligence of the defendant railway
company. Upon tbe trial of the cause tbe de-
fendant demnrred to the evidence, In which
the plaintiff was reqalred to Join. Hie court
snstalned tbe demnrrer, and rendered Judg-
ment In favor of tbe defendant
Brror Is assigned, not only to the Judgment
of the court in sustaining, but also to Its ac-
tion requiring the platntlfr to Join In, tbe de-
murrer. This latter assignment of error
does not seem to be much relied on, and. If
it were, we see nothing In tbe record, nor is
anything suj^ested by the plainttfTs counsel,
to show that tbe court erred In requiring a
Joinder in the demurrer.
Dpon the merits It appears that the plain-
tiff received the Injuries complained of at a
grade crossing ov&e the defendant's spur
track leading from its main line into the yard
of one of tbe mlUs of the Riverside and Dan
River Cotton Mills Company, located In or
near tbe city of Danville. The road upon
which the plaintiff, who was an employ^ of the
Cotton Mills Company, was traveling, was
upon the property of that company, and was
used by its employte who lived In certain
portions of the dty in going to and from
their wotk, by wagons and other vehldes,
and by all persons who had business at the
mill, Including children who carried dinner
to their parents or other relattrea woridng
there.
[1] Tbe contention of the plaintiff Is that
the d^endant was guilty of negllgoice in
the ot)eratlon of Its train at the ' tlbe the
pfalntiff was Injured. The evidence Is ton-
flicting, but upon a demurrer to it tbe negli-
gence of the defendant must be tonsidered
as established, since there was evidence tend-
ing to show that the engine, whldi was run-
ning backwards, gave no warning or notice
of Us Bpproat!b to the crossing by ringing
tbe bell or otherwise ; that none of the train
crew were on the lookout for the crossing,
although the defendant knew that persons
crossed its txsck at tbat point at all houn
of the day.
The negligence of tlie def«idant having
been established, the next question Is: Did
the plaintiff contribute to liia own injury,
as the defendant contends?
[2] It appears frotai the plalntUTs own tes-
timony that as he approached and went upon
the crossing he neither looked nor listened.
There was nothing to obstmct his view In
(lie direction from whldi the d^endanfs
train came, or to Interfere with his bearing.
While advanced In years he was in full en-
joyment of all his faculties. ' Unless, there-
fore, there be something In this case to take
It out of the general rule, It is clear that the
plaintiff must be held to have contributed
to bis own Injury; for no general rule of
law Is better settled in tUs'Jurlsdlctlon and
generally. It Is believed, than that white It
Is the duty of a railroad company to give
notice of the approach of its train to a cross-
ing the reciprocal duty la Imposed upon a
person about to go on Its track to exercise
ordinary care and caution, whether It be a
highway crossing or a llcetised way. The
track itself Is a proclamation of danger. It
Is his duty before going upon It to use his
eyes and ears. If be falls to look and listen,
as his' duty requires him, and attempts to
cross the track In front of a moving train,
and is injured by It, his own act, hto own
negligence, so contributes to his injury that
he is not entitled to recover, unless tbe rail-
road company after It discovered, or ought
to have discovered his peril, might have
avoided the injury by the exercise of ordi-
nary care. Johnson r. C. & O. Ry. Co., 91
Va. 171, 170, 21 S. B. 238; Washington, etc.,
R. Co. V. Lacey, 94 Ta. 469, 47S, 476, 26 3. E.
834; Southern By. Co. v. Hansbrough, 107
Va. 733, 741, 742. 00 B. S; SS; Morton's Elx'r
V. Southern Ry. Co., 112 Va. 898. 40S, 408, 71
S. E. 061.
[3] One of the grounds relied on to take
this case out of the general rule that the
failure of the plaintiff to look and listen
for tbe approadi of trains before going upon
the crossing was per se negligence Is that
'^e plaintiff was not on the (railway) com-
pany's proi>erty, but In the yard, and on the
private property of the cotton mill company
for which he worked, and that he had as
much rl^t to be there en route to bustness
as tbe railroad company did, it not more."
The defendant compp^y,^ jy^ ,ecp^^e^
•TeretlMri
I sum topUi wbA SMtioa NUMBBR In Dm. Dig. 4 Am. Dig. Key-Mih SarlM ft B«p'r Indsxw
660
78 SOUTHEASTBJRN RSPOBTER
* Elsbt of way (20 feet In width) tlmnigli tht
said property of the Cotton Mills Company
by deed for the location of ita switch, and
there were no limitations Imposed by the con-
veyance except that In the event the de-
fendant abandoned the nse of the property
for railroad purposes It should revert to the
Cotton Mills Company. Clearly the Cotton
Mills Company and Its employes bad no
hU^er rlgbta (If as high) In passing over
that crossing than they would have liad if it
had been a public highway crossing.
[4] Another ground relied on to take this
case out of the general rule that the failure
of the plaintiff to look and listen for an ap-
proaching train before going upon the cross-
ing was negligence as a matter of law Is that
he had been lulled into- a sense of security
and thrown off his guard by the conduct of
the defendant and the circumstances sur-
rounding him when Injured.
The plaintiff that day had gone from bis
work at the Long Mills by permission to at-
tend to some private matters, and was re-
tomlng to his work between 1 and 2 o'clock.
After getting off a North Main street car, he
was proceeding along River street in the dl*
rection of Long Mills, the place of his work,
when he passed the train which afterwards
injured lilm. The train consisted of five
cars and an engln& The engine was pushing
the cars on a spur track which passed by
Dan Valley Mills, also property of the Cot-
ton Mills Company. That spur track leads
from another spur track of the defendant
company some 10 or 16 feet east of the fence
which inclosed the yard In which the plain-
tiff was Injured, and terminates 50 or 60
Caet east of the Dan Vall^ Mills. The other
spur track, which Is known as Cotton Mills
aiding No. 2, runs oat from the defendant's
main line a few feet west of where the lat-
ter crosses North Main street of the dty
of Danville, and extends into the yard of
the Cotton Mills Company by and beyond the
Long Mills. The street or road upon which
the plaintiff was traveling when he passed
the defendant's train runs between these two
spur tracks for a distance, as shown on the
map filed with the record and a part thereof
between 300 and 400 feet, vrhea it croaaes
Uie Dan Valley MlUs spur track; thence it
runs between 100 and 150 feet mmth of both
. ^nr tracks where it enters the cotton mills in-
doaure throagb a gate; thence about 170
fast near to and almost parallel with siding
No. 2, when It crosses it obUqnely; and
tbence by and beyond Long MUla; where the
plaintiff was onployed.
The plalntUTs cmitentlon is that he was
excused from exercising the same degree
of care In looking and listening before going
upon the crossing when Injured, because he
had met the train going In an opposite direc*
tlon, and there was nothing to suggest to
him, or any other msonable man, that it
wonld immediately return witbont notice
or warning of any kind.
There Is a class of cases In whidi It la
held that reasonable belief that no train Is
approadiing a crossing relieves a travelw
who fails to look and listen of the imputa-
tion of negligence as a matter of law.
In the case of Kimball & Fink v. Friend.
05 Va. 125, 27 a Bi 001, where there was a
silent gong, and in Southern Ry. Co. v. Ald-
rldge, 101 Va. 142, 43 S. E. 333, where the
watchman failed to perform his duty, it was
held that the question of negligence on the
part of the travelers in going upon the cross-
ing where injured was a question of fact for
the Jury under all the facts of those cases,
and not a question of law for the court
It has also been held that the traveler's
negligence Is a question for the Jury where
he attempts to cross a railway track Imme-
diately after one train' has passed and an-
other follows so quickly as to mislead or
confuse him and he Is injured. And in cases
of flying switches, where the train has been
severed and the traveler goes upon the cross-
ing after the first section has passed, and is
struck by the second, and also where a trav-
eler sees a train pass on or towards the main
line of the railroad, goes upon the track,
and is Injured by the train immediately re-
turning. See cases dted in note to Scott t.
St Louis Ry. Co., 9 Ann. Ca& 210.
The decision chiefly relied on by plain-
tiff's counsel In this case and the one most
largely quoted from In his petition and brief
Is that of Duame v. Chicago, etc., Ry. Co.,
72 Wis. 523, 40 N. W. 301, 7 Am. St Rep.
879. But that is a very different case from
the one under consideration. In that case,
after stating the general rule as to the du-
ty of a traveler to look and listen before
going on a crossing, the court said: "There
Is a most Important fact in this case that
materially modifies this strict rule and makes
it inapplicable, and that is that this train
had just passed this crossing, while the de-
ceased was within a few rods (8) of it and
driving upon a trot, and had passed on out
of his sight, and he had reason to suppose
that It would continue on, it being upon the
main track, Uke any other train upon its
regular route, and had no reason to suppose
that it wonld Immediately retnm. The pre-
sumption Is that it would go on and not
return. Be was thus thrown off bis guard.
There was no reason to look or listen in
that direction further, for it appeared im-
possible to him that any tain from Uist di-
rection wonld or could approach the oroas-
Ing within 80 short a time. He was en-
trapped by this unexpected retnm of the
train, for its sudden return over the cross-
ing without warning was to blm a trap. We
know bow it most have appeared to him.
for it wonld hare so anwared to any ordi-
nary person with the same knowledge and
(in the same) BltuaticoL Not knowing or sup-
poaing or having any reason to snpitose that
this train would ImmedlatelX'Tetum, on that
any train would <8N^^bX);A.tt£IQ^bfibn,
BOLLADAT r. ttdOBB
681
be did u aii7 other leasonable peison would
lave done and BtrtUcht on wttbout les-
waaSng bis speed u if assnred tbat tbe way
was dear and theie waa no possible danger.
To liave stopped and looked and Uatened in
tbat direction under sndl dmungtances
would hare been nnzeaaonable^ and the law
reanlzea no snidk unreasonable tUng as a da-
IT and obligation."
In tbls case, when the plaintiff passed fbe
defendant's train, It waa not on or going to*
wards tbe main Ibie. It was on a spnr trat^
only BOO or 600 feet Icmg, and wbicb termi*
nated 60 or 60 feet beyond Dan TalU^ Mills,
for the convenience and benefit of which
that spnr track was chiefly used. When the
plaintiff passed tlu train, he was at least
as far from tbe crossing where injured as
was the train from the end ot the spnr track.
There was no spur track leaving the siding
on which the train waa running when tbe
plaintiff met it He therefore knew. If he
was giving any attention to his surrounding,
that the shifting train, whether going to Dan
Valley Mills to place a car or to take out a
car, would as soon as it had done that work
in all probability — ^indeed, almost certainly —
go back in the direction from which it came
and in which he was going, for in no other
way could It finish its shifting, if more was
to be done, or go back on the main line from
wtiich It came. Not only would the shift-
ing engine have to go back in that direction
before doing shifting on siding No. 2, or in
reaching the main line with its train, but it
would be compelled to go back upon or over
the cros^ng which the plaintiff was ap-
proaching and where he was Injured. The
engine wliich struck the plaintiff being used
on those switches chiefly if not entirely for
switching purposes, the plaintiff must have
known that in doing Its work It would nec-
essarily run backwards and forwards over
them. That It would do so was to be pre-
sumed, for otherwise it could not do that
work.
Insteadt therefore, of the facts and cir-
cumstances of this case rellerlng tbe plain-
tiff from the duty of looking and listening
before going upon tbe crossing, they show,
as it seems to us, tlmt he not only did not
have any reasonable ground to believe that
the train would not return before he could
pass over the crossing, but tbat It was high-
ly probable that it would do so. Certainly
there is nothing In tbe facts and circum-
stances of the case to take it out of the gen-
eral mle that failure to look and listen be-
fore going upon • railway crossing Is per se
negUgence.
[B] But it Is insisted by the plaintiff that,
even if he was guilty of contributory negU-
gence, the court erred in sustaining the de-
murrer to the evidence, because the defend-
ant could by the Exercise of ordinary care
have avoided injuring him after it saw or
ought to have discovered bis peril It dear-
ly appeazB tnm tbe plaintiff's own evidence
that he was stm A by the oonm of tbe tend-
er ot the engine, Just as be entered .im»n
the crossing, as he stepped on or over the rail
nearest to him, and was thrown back on the
side of the track from which he approached
the crossing. He was not In peril until he
started to cross tbe track, and it was then
too late for the engineer to have stopped bis
train or avoided injuring tbe plaintiff if be
had been on tlie lookout and had seoi the
plaintiff's danger.
Upon the whole case we are of opinion that
there is no error in the Judgment complained
of, and that It should be affirmed.
Affirmed.
OU Vs. M)
HOUiAOAT T. HOOBA
(Supreme Court of Appeals of Ylrilnla. Tuns
12, 1918.)
1. Appeal ano Sbbob (S 690* ) — Bub din or
Showinq Ebbos.
AsBignmenta of error to the ezclaslon of
questions asked witnesses are not available on
appeal, where the record fails to show what
answers were or would have been given had the
witness been permitted to answer.
[Ed. Note.— For other eases, see Appeal and
Error, Cent. Dig. SS 2897-2899, WIXt-2BM^ 2806,
2908; Dea Dig. | 680.*]
2. EjECTiuiNT 3 25*)— DjonEnras— OmSTUID-
iHo Title.
While in ejectment the plaintiff must re-
cover upon tbe strength of his own title and an
outstanding legal title in another whether that
otber be a stranger, the commonwealth, or the
defendant will defeat a recovery, the outstanding
title must be a present Butwisting and operative
title, upon which the owner could recover in an
action, and hence it was error to refuse an m-
struction to tbat effect
[Ed. Note.— For other cases, see Ejectment,
Cent Dig. U 99-106; Dec. Dig. | 25.*]
3. EracnuNi (I 110*>— TaiAii— InsTEnoTioN&
In ejectment, where there waa evidence to
show the prior peaceful possession of plaintiff
or those under whom he claimed, It was error to
refuse an instruction that jtrior peaceful posses-
sion by plaintiff or those under whom he held
claiming to be the owner In fee was prima faae
evidence of ownership and sufficient to author-
ize a recovery uniesi defendant should show a
better titles
[Ed. Note.— For other case^ ses Ejectment
Cent Dig. il 319-326; De&Dlg. i iXa*]
Error to Circuit Court, Prince Edward
County.
Action W. M. Holladay against W. B.
Moor& Judgment for plaintlfl for insuffi-
cient relief, and he brings error. Beveraed
Instructions 3 and 4, requested by plain-
tiff, were as follows:
"0) The court instructs the jury tliat an
outstanding title in another to defeat an ac-
tion of ejectment must be present, outstand-
ing, operative, and available legal title on
which the owner could recover against the
other contending party If asserting it by
action.
"(4) The court Instructs the Jury that prior
•For oUMT esass ••• saau toplo and saetloa NUHBBB la Dse. Dig. * Am. Die. K«j-Bt§iflntM
78 SOqTHi^ASTSlBN RKPORTER <Va.
5^
peaceful possesston by the plaintlCF or those
under wtitim he holds, claimiiig to be the
owner In fee, If proTed, is prima facie evi-
dence of ownership and seisin, and Is suffi-
cient to authorize a recovery unless the de-
fendant shall show a better title, and In
the case lat bar. If the Jury shall believe from
th^ evidence that R. L. Dabney conveyed to
Richard Mcllwalne the tract of land In the
plaintifTs declaration mentioned on the 1st
day of August, 1884, and admitted to record
Hay 26. 1885, and that Richard Mcllwaine
was in possession of said tract of land up
to the 22d day of December, 1908, and then
conveyed the property to W. M. Holladay,
the plaintiff, and that W. R. Moore did not
receive title to his property until the day of
September, ISSl, and admitted to record Jan-
uary 21, 1892, and that there was no record
erfdenoe of the conveyance by R. L. Dabney
to W. R. Moore or to Margarette V. Han-
nah, then they must find for the plaintlflT."
But the court refused to give said instruc-
tions, and gave the following instructions to
the Jury, also asked for by plalntifl:
"No. 1. The court Instructs the Jury that
in questions of boundary natural objects
called for, marked lines, and reputed bound-
aries well established, visible monuments
such as water courses and the like, between
two tracts of land, should be preferred to
calls and distances of the grant.
"No. 2. The court instructs the Jury that
the question In this case is not how would
an accurate survey locate the lots In ques-
tion, but how did the oil^nal surv^ and
plat locate them. The only purpose of the
evidence of the surveyors who have made
tlie recent surveys Is to enable the Jury to
locate the original boundary, if possible, and
not for the purpose of determining where
they ought to have been, or where they
would have been by an accurate survey."
"No. 6. The court instructs the Jury that
U tta^ believe from the evidence that the
plaintiff has proven a good legal title to the
land in controversy, ^ther from the com-
monwealth or from a common source, to
which the d^endant traces his title or has
proven ^ther in himself or his grantors con-
tlnnoas, open, notorious, visible, peaceable,
and adverse possession for 15 years under
elaima of title of said land here in contro-
versy, then they must find for the plaintift."
. And the conrt also gave the following in-
Btmctlons asked for by the defendant:
"(1) The court instrocts the Jury that the
burden in the case Is upon the plalntifT. Hol-
laday, to prove to the satisfaction of the
Jnry that he bad a complete legal title to
the premises claimed by him, and the right
to the possesston tliereof at the Institution
of this suit, before be can recover, and that
he must recover, If at all. on the strength
at his own title, and cannot rely on any
weakness of the title of the defendant, and
that, In order to recover, he cannot rely
merely upon a comparison between himself
and the defendant, but must prove affirma-
tively that he is entitled to the premises,
and that the defendant is not entitled before
a recovery can be had.
"(2) The court instructs the Jury that the
plaintiff cannot recover by showing a con-
flict of claims between himself and the de-
fendant, but he must show affirmatively by
a preponderance of evidence that his claim
to the premises is positive, valid, and com-
plete, as the possession of the defendant ot
the premises claimed Is valid against every
one except a plaintift proving a superior
tiUe.
"(3) The court further instructs the Jury
that adverse possession consists of a claim
made by the party relying upon such claim
accompanied by a denial of the rights of
all other persons to said premises. That the
cultivation of the land and paying taxes
thereon and the use made of said property
are only Incidents In determining whether
such adverse claim has been made in good
faith by the party so claiming it, and that
no spedflc acts of cultivation or use of said
property Is necessary to constitute said ad-
verse claim, and if the jury believe from
the evidence that the defendant Moore has
made such adverse and continuous, open. vUh
Ible, and notorious claim for a period of 16
years prior to the beginning of this suit to
all or any part of the strip of land in con-
troversy, under color of title, as occasion
required, and has claimed the same as oc-
casion required, that such acts are sufficient
to constitute his right to the premises, n
claimed under color of title.
"(4) The court instructs the Jury that ad-
verse possession for a period of IS years un-
der color of Utle confers a complete legal
title upon the party possessing for that pe-
riod, as If his title were derived by descent,
will, or deed, and if they believe from the
evidence in this case that the defendant
Moore has held adverse, contlnnous, visible^
open, and notorious possession of the prem-
ises claimed by Holladay or any part there-
of under color of title, for a period of 15
years, that such possession Tests the . title
in Moore of the premises so held as effective-
ly as would a deed to same.
"(5) The court Instructs the Jury that be-
fore the plaintiff Holladay can recover the
pi-emlses claimed in this suit he must show
by a preponderance of evidence the Identity
of the land claimed, accurately as to exte-
rior boundaries, and that he can recover no
part of the premises claimed until he proves
affirmatively the specific boundary by metes
and bounds of the part so claimed, and, if
the Jury believe from the evidence in thla
case that the plaintiff Holladay baa failed
to prove his full and legal title to any spe-
dflc part of the premises dalmed by ac-
curate metes and'bounds, they must find for
the defendant
"(0) The court Instructs the Jury tliat in
arriving at their verdict in this case they
Digitized by LjOOglC
HOLLASAT t. MOOBE
6B3
are to consider all maps and snmya Intro-
duced before them, aa well aa all parol evl-
dence, and if they believe from the erldmce
ai^d, all drcnmatanceB of the case that the
plaintiff, HoUadar, has failed to prove a
complete le^il title -with right of possession
to all or anr medflc part of the premises
daimed, to the saUafaction of the Jury, that
they most find for. the defendant"
WatUns & Brock, of FarmTlIle, for plain-
tiff In error. J. T. Thompson, vt rarmTllle,
and R. H. Uann, of Petersbn^ fOr defoid-
ant In error.
EBITH, P. This was an action of eject-
ment brought to recover a parcel of land de-
scribed. TJpon the trial the jury foand a
Terdict in favor of the plaintiff, and the
court rendered Judgment for about one-half
of the premises claimed by the plaintiff, and
thereniwn the plalntifl aniUed for and ob-
tained a writ ot error.
[1] The finA assignment of error is based
upon bill of exceptions No. 1, from which it
appears that the plaintiff, in order to prove
the issoe J<^ed on his part, asked the de-
fndant, a witness in his own behalf, on
cross-examination, "How far do you trace
your title back under those whom you
claim?" and, **IMd I understand you to say
In your examinatton In chief that you claim-
ed title under your deed from Mrs. Hannah
and B. M. Venable, trusteer* These qnes-
ttons were objected to by connad for the de-
fMidant, and the objection was sustained;
but the Mil of exceptions does not show what
answer the witness gave to the anestlona.
or would have given had be been permitted
to answer by the court
, In Taylor r. Gommonwealtb. 90 Ya. 109,
17 S. K 812, it la said that an assignment
of error in refusing to allow a witness to
answer a certain question Is unavailable in
the .anpellate coiirt where the record fails
to show what the answer would have been.
In Brock Bear, 100 Va. 662. 42 8. E.
807, it la said: "Where a question is asked
a witness which he is not permitted to an-
swer, and exception thereto is taken, the bill
of exception must show what the party ask-
ing the question expected to prove, else the
appellate court cannot tell whether or not
the witness had any knowledge on the aub-
Ject, or Uie questioD waa revelant or ma-
terial."
In American Bonding ft Tr. Co. v. Mil-
stead, 102 Va. 683. 47 S. E. 853, this court
held that, although counsel may explain the
object of the question so far as to show Its
materiality, the ruling of the trial court
refusing to permit the witness to answer
will not be considered unless the bill of ex-
ceptions shows what was expected to be
proved by the witness, and that the same
rule applies to questions on cross-examina-
tion aa to questions' in chM.
The same ruling baa beoa made In numer-
ous other cases in this court, but the cita-
tions nmde are deemed snlBclait
The first assignment of error Is overruled.
When all the evidence for the plalntifl
and the d^endant had been put before the
Juryr the plaiottff in wror, who was tin
plaintiff in Ute court below, asked for five
instructions, of which the court gave Nob.
1. 2, and 6, and refused to give Noa. 3 and 4.
At the Instance of the dsfeDdant the court
gave six tnstmctlons, which were UMicept-
ed to; but the plaintiff excepted to the ie>
fnsal ot the court to give instructions 8 and ,
4, and this ruling Is set forth In UU of
receptions No. 8.
[XI It is true that an outstanding legal
title In another, wbether that other be a
stranger or the commonwealth or the de-
fendant, will defeat an action ot ejeetment;
but a plaintiff In ejectment must recover up-
on the strength of tals own titles and to this
rule there are few exc^ttlons, none of whldt
aK>ear-in the case before ua.
In Reuaens v. Lawson, 91 Va. 228, 21 S. B.
347, this court said that an oatstandlns title
sufficient to defeat a recovery In an aetlim
of ejectment most be a preaent subsisting
and <q>eratlve title upon whlcb the owner
could recovw if asserting it Iv acUon.
In Merryman v. Hoover, 107 Va. 485, 69
5. BL 483, the same doctrln^ Is thus stated:
"An outstanding legal title In another than
the plaintiff at the time of the institution
of an action of ejeetm«it breaks in upon
and disrupts the plaintiff's paper title and
bars bis recovery. Nor can the plaintiff
make good the defect by the snbsequmt pur^
chase of such outstanding tiUe."
"A defendant in ejectment may rely upon
an outstanding legal title in the common-
wealth at the time of the institution of the
action, and thereby defeat the plaintiff."
We think the third instruction states a
sound proposition of law, and that tJie evi-
dence waa such as to make it proper that it
should have been given to the Jury.
[3] Hie fourth Instruction • should alao
have been given. The Jury might well have
Inferred from the evidence adduced on be-
half of the plaintiff in error the prior peace-
ful possession of the plaintiff or those un-
der whom he claims of the land in the dec-
laration mentioned, unless the defendant
could show a better title In himself or an-
other such as is described in instruction
No. 3.
We are therefore of opinion that the cir-
cuit court erred in refusing instructions Nos.
3 and 4.
We do not deem it proper to indicate any
opinion upon the evidence further than it
was necessary to do so In order to pass upon
the propriety of the instructions.
The case must be reversed and remauded
for a new trial not In conflict with the vlewa
expressed in this opinion, at which tdaU-K .
the evidence should ^'^m^mtOil^^^^
78 SODTHBASTERN BEPOBTBB
aa was adduced upon the former trial and
Instructions Nos. 3 and 4 an again offered,
they sbonld be granted.
BerwiBd.
CUB Va. o
BLUZfT T. MEROANTILE BT. BUILDINO &
LOAN ASS'N at aL
(Saitrenw Gottrt of Appeals of VIxgliiia. June
12. 1913.)
Building aitd Loan Associations (S 42*)—
IN80I.VBNCT— NaTUBS Ot IHDEBTGDNBSS —
PuBCHABB or Stock ob Loan.
On B claim against the receiver of an in-
solvent bailding and loan association, evidence
held to require a findiog that deposits of $300
and |1,800, respectively, by the claimant were
loans to the association, and not payoients for
stock, and hence that claimant vras a creditor,
and not a stockholder.
[Ed. Note.— For other cases, see Baildin; and
Loan Associations, Cent Di«. U ^, St^^;
Dec Dig. i 42.*]
Appeal from Glrcnlt Court of Git? of Alex-
andria.
Action by O. T. Blunt against tlie Mercan-
tile Bailway Building ft Loan Association
and others. Judgment for plaintiff tor less
than Che relief demanded, and he appeals.
Reversed.
Howard W. Smith and S. G. Brent, both of
Alexandria, tor appelant. J. K. M. Norton
and Gardner U BootUe^ both of Alexandria,
tor appellees. ■
WHITTI^ 7. On January 12. 1911, upon
a bill fUed by Its board of directors, the ap-
pdlee^ the Mercantile Railway Building St
Loan Association of Alexandria. Ta. (here-
inafter called the association), was placed In
the hands of a recover. Subsequently the
appellant, O. T. Blunt; was admitted as a
party to the litigation and asserted a demand
as oredltor against the association tm two
alleged loans aggregating ^,10a
Appellant contmded that on December 81,
1909, he deposited 91,800 with Lewis Hooff,
secretary of the association, upon written
omtrae^ fbr the term of three years, at 6%
per cent interest; withdrawable on 00 days
notice and that on July 7, 1910^ he nude an
additional dqwslt ot |300 upon precisely the
same terms.
The recelTw, on tlie contrary, maintained
that these depodta represented the purdiase
price of eighteen shares and three shares,
respectively, of pald-np stock.
The controrersy was referred to a master
ctnnmisBloner in cbancery, who sustained the
recdver's contention with respect to the
$1,800 deposit, but overruled it as to the
deposit ot $800. The circuit court confirmed
the rqwrt, and tnm so mndi of the decree
as app&ed to the $1^00 this appeal was
granted.
The issue Is t^us sharply drawn between
the parties as to the status of the $1,800 de-
posit The appellant maintains that, being
in no respect dtsdngnishaUe from that of
the $800. it should have been canied into
tlie savingB department of the association
and appellant classed as a preferred creditor
with regard to It, as wail done in the cam
ot the latter deposit
The written erldence of the agreement be-
tween appellant and the*aB8ociatl(ni concern-
ing these sums consists of two entries made
by tlie secretary in a blank podcet dfiposlt
book ot sales of atoA on Installments, aa
follows: "1900. DecL 81st, $l,80a00^ paid in
full. Int. at 5)i per cent tor a term of three
years, 90 days notice required mx wlthdrawaL
Lewis Hooff, 8ect7." And on the second
page: "July 7, 1910^ $300.00 paid In full, Int
at 0% per cent, for a term of three years,
90 days required on wlthdrawaL Lewis
Hooff, Secty." On (he outdde eoyex ot tbla
book (tlie name, date, llgurea, and *in full**
written and the rest printed) Is the following
memorandum madc^ but not dgned. by Lewis
Hooff: "Name G. T. Blunt« Date of Cer-
tificate Dec 81. 1009. No. 8706. No. of
shares la Payment $1,800.00 In full."
Hooff and Blunt both gave their d^o^-
tlons, and the former testified that his un-
derstanding was that both amounts paid to
bim by Blunt were for tlie purchase ot
stock. He bad no independent recollection
on tlie subject however, but considered a
book of certificates showli^c "Stub Na 8706
fbr 18 shares of stock Issued to (X T. Blunt
DeoNuber ^ 1909," bom wblch the certifi-
cates bad been removed, "proof positive" so
tar as tiie $1,800 deposit was concerned. Wit-
ness found no such memorandum with re-
spect to the $300 deposit; yet It is shown I7
the positive testimony ot Hooff and Blunt
that both snms were deposltBd iqpon abso-
lutely the same terms, and thdr statonents
are verified by the contemporaneous written
agreemoit of Hooff. secretary. Appellant
moreover, testlfled unequivocally that the
payments vrere not made on account of stock
transactions ; that be ffid not Intend to pur-
diase stock, and in point ot ftict that no eet^
flficates of stock were evw delivered to him.
Besides, it was sliown fr<Hu the by-laws ot
the assot^tton tbat a candidate for membo-
Bhlp bad first to sign a formal application
in writing, tiiat be wlsbed to acquire stoCk,
and also obl^^ate himself to strictiy obsnve
the by-laws, ndes, and regulations of the
assodatton. Though spe^flcally called for,
and though witness agreed to look it np^ no
such application was produced, nor was it
shown that appellant's name ai^earpd among
the list of stockholders. If such had been
the fact It ought readily to have been shown
by the records of tbe association, otber
than men ox parte memoranda of Hooff,
that Bhmt was Indeed a stockholder. Ap-
pellant testlfled expUdtiy, and there was no
evidence to the contrary, that he never mt-
tended a meeting of stodcholders. and never
was notified of such meetings; nor did he
tople sod sssUon NUMBBB la Dm. IHg. « Am. Dig. l^^^^^^^it^^^l^^^t^
*yToU<r eassssesssms
MATHEWS T. HICKMAK
655
recelre any dlrldends from sarpliis profits
to wblcb aa a stockholder he would hare
been entitled. The dividends declared on
stock were 6 per cent, which rate tlie com-
missioner erroneously reported that Bltmt
received; whereas the association paid him
S% per cent in accordance with the terms
of his special agreement In writing with the
secretary. Hooff testified that he had a
special arrangement with Blijnt by which he
paid him Interest at the rate of per cent
until the failure of the association. In that
connection he explained that he agreed to
pay 6% per cent because the mon^ was
worth It to the association, and was a cheap-
er rate than the banks charged. In reply
to a letter addressed to the secretary by
Blunt he employs this language: "Tes we
can use $300.00." He would hardly have so
written In reply to an application to buy
stodc Again, the by-laws prescribe that
paid-np stock cannot be withdrawn until
after six months from the date of issue ; yet
the special agreement In this case stipulated
for the return of the mon^ on 90 days' no-
tice. HoofI also testified that he suppoeed
they had stubs of checks covering Interest
paid on these deposits, and he was called on
to look them ap and file them' with the com-
missioner, but they were never filed. Those
stubs and correspoQdlng checks, If produced,
would probably have shown whethw they
were dividend or Interest checks.
Upon careful consideration of the evi-
dence as a whol^ we are of opinion that it
sustains the contention of appellant that the
Sl,800 deposit was made upon the same terms
as the S300, and that for the first amount
as for the last he was entitied to be classed
as a creditor, and not as a stockholder of
the association. The Inference that Blunt
was a stockholder, drawn from memoranda
made by Hooff as secretary upon the stub of
one of the stock books and upon the pocket
deposit book of sales of stock on installments.
Is ontw^ghed by the contemporaneous written
agreement and other direct and circumstan-
tial corroborating erideiioe bearing on the
transaction.
For these reasons tiie decree of the circuit
court must be reversed, and this court wiU
make such decree, In accordance with the
views expressed In this oplnltm, as the lower
court ought to have mad&
Berersed.
OIB Ta. lit)
HATHBW8 V. BIGKMAll.
(Sopreme Oonrt of Appeals of Vir^nlL June
12, 1913.)
BAsnnim a 61*)— Bsget or Wat— Ob-
sTBUcnoif—iNJoncnon.
Where the grantor agrees that the gran-
tee shall have a road to the premises, and
there ia an Existing road over land retained
by the grantor, ^nich is recogoized by the
parties as. the road intended, the grantee may
enjoin obstruction thereof by a subsequent
purchaser of tiie grantor's land over which
the road passes.
[Bd. Note.— Fw otiier eases, see Basements,
Gent Dig. H 102» 180-144, 148; D«& Dig.
I ei.»J
Appeal fnm Oraiit Oonr^ Aeconuuk
County.
Suit bj TtBy J. Hatbem agalmt Bamndl
B. Hitftman. EYom a deeree Inflrror of de-
ftttdant, onmdalnuit appeals. Berened, and
decree entered fbr oomidalnant
Stewart K. Powell, of Onanock, for appel-
lant li, Floyd NoA and BenJ. T. Guuter,
both of Accomack; tor appellee.
HARRISON, J, In response to the prayer
of the bill In this case, the drcult court
granted an Injunction restraining and pro-
hibiting the defoidant Samuel B. Hickman,
his agents and all others, from obstructing
the road mentioned In the Mil, or from In
any manner interfering with the complainant,
Tully 3. Mathews, his agents or tenants, In
the nse and enjoyment of such road. Sub-
sequently, on the 6th day of April, 1912, np-
on final hearing, the court entered a decree
dissolving the injunction theretofore granted,
holding that the plaintiff was not entitled
to the road claimed In Us bllL From that
decree this appeal was taken.
The record shows that by deed dated Oc-
tober 4, 1887, Ephralm Wessells (of D.) con-
veyed to G^rge T. Bwell and the complain-
ant a tract of land containing 40 acres, more
or less. It being part of a larger tract owned
by the grantor, and that afterwards, by
deed dated January 26, 1890, George T. Ewell
conveyed his Interest in the land to his co-
purchaser, the plaintiff. The deed of Oc-
tober, 18S7, from Bphralm Wessells (of D.)
conveying this 40 acres of land to the plain-
tiff and his copurchaser contains the follow-
ing provision: "The said Ephraim Wessells
(of D.) Is to give to the said George T. Bwell
and Tully J. Mathews a road fifteen feet
wide running to the Cornelius Hickman Road
and then to the land of Gillett Mason." It
Is clear from the evidence that the "Cor-
nelius Hickman Road," referred to In this
deed, Is no other than that portion of the
"Bloxom Road," which runs In front of the
Cornelius Hickman prraulses. It appears
that the 40 acres bad no outiet and that the
foregoing provision in the deed was Int^ded
to secure to the grantees a convenient outiet
for their land to the Bloxom Road. It Is
shown that at the time this deed to the 40
acres of land was made by Ephralm Wessells,
the road now contended for by the plaintiff
was in existence and extended across the
northeast side of the land retained by Wea-
sells, ont to the Bloxom Road In front of
Cornelius HIclunan, and had been for many
years prior thereto recognized as an open
road. Tills road conforms to the descrip-
tion of - the road mentioned in the deed. It
runs to the Bloxom Road in front of Gbme-
•Tw otber e«iM «m same toplo and Motion NUHBER In I>«e. Dig. A Am. Dig. K«y-No. Swiw 4
Digitized by
556
78 SODTSBASTBRN BBFOBTBB
(Vt.
llDs Hickman, and tbence to the land of
GUlett Mason.
It appears that, at the time of the convey-
ance of the 40 acres, it was nnderstood be-
tween Ephralm Wessells and bis grantees
that the then existing road over the north-
east side of the land retained by him was
the road Intended by the terms of the deed,
and this constmctlon of their rights has
been continuously acted upon by the parties,
without objection, until the defendant under-
took to obstruct the plaintiff In hla use of
the road. Some time after the deed to the
40 acres was made and recorded, Epbraim
Wessells sold to John E. Hickman, the father
of the defendant, under whom the latter
claims, that portion of the land reserved by
him over which the road claimed by the
plaintiff runs. The defendant does not deny
that the plaintiff Is entitled, under his deed,
to a road 15 feet wide as an outlet from his
40 acres, but insists that the road intended
by such deed is not located upon the land
owned by him, but that its true location Is
about 676 yards west of that claimed by the
plaintiff and upon the remaining land of
Wessells after his sale to the defendant
The evidence wholly falls to sustain this
contention. The road as located by the de-
fendant would not conform to the descrip-
tion of the road mentioned in the plaintiff's
deed. Instead of having Its exit on the "Blox-
om Road" at the point named in the deed,
it would come out Into that road at a point
625 yards west thereof where Cornelius
iSlckman, at the time, owned no land. There
Is nothing in the description of the road In
controversy, as set forth In the deed, that
could lead b> the conclusion that it ran as
the defendant contends; and, without pro-
longing this <vinion wllii further details, it
is enough to say that the evidence satisfac-
torily establishes that the true location of
the road In controversy Is that claimed by the
plaintiff in hlB Ua
The decree complained of must therefore
be reversed, and this court will enter such
decree as the circuit court ought to have en-
tered, perpetuating the injunction restraining
and prohibiting the defendant, Samud E.
EOckman, bis agents and all others, from
obstructing the road claimed by the piainttff
in his bill, or from in any manner Interfering
with the complainant, his agents or tenants,
in the use and enjoyment of auch road.
Beversed. ■
(lis'Va. ^}
7IKGINIA. BY. & FOWEB CO. T. FS!BBBIIE.t
(Supreme Court of Appeals of Tirglnla. Jane
12, 1913.)
L LofiTATion or Aotioks (8 19S*)— OmNSss
— Bdrden or PBoor.
Defendant has the burden of proof a* to
bla plea of limitations.
[Bd. Note.— For other eases, see limitation
ArtioBi, Cent Dig. 11 7U-n0i Dml Dig. |
2. LncTTATioiT OT^cnoiu a 6S*)— NuxaairOBB
— CONTINTJIWO InJUBT.
Where repeated aetlom may be brou^t
for a nuisance, plaintiff may leeovor far tlu
Injuries suBtainea for the five years next pre-
ceding the date of the action ; but where out
one action can be brought for the entire dam-
ages, past and future. On action Is barred nn-
JesB brought within five years from tiie accrual
of the cause of action.
[Ed. Note.—For other cases, see limitation
of Actions, Cent Dig. H 299-806; Dec Dig. S
55. •]
3. NuisAvoi (i 48*) — PuvAn NmnAircB —
DbOLAKAIIOH— BSCOTEBT.
A declaration which allegee a continnlnc
anisance does not prevent a recovexr therennder
for an occasional nuisance caused In the man-
ner alleged in the declaration.
[Ed. Note.— For other cases, see Nnfsano^
Cent Dig. 8S US. 114; Dec. A { 48.*]
4. NnXSANGB (I ^)— PSXTATI NUISAITCB—
CONTIRDOTTS KmBARGB— BXCOVKBT.
A plaintiff sning for present and fntare
damages caused by a continuous naisance may
show permanent injnrlea.
[Ed. Note. — For other cases, see Nulsanceb
Cent Dig. H 115-117; Dec. Dig. $ 49.*]
5. AFFBAI. AlTD Bbbos (| 173*)— QTIBRIOira
RiVIEWABU— TBKOBT OT CASB IN TbXAI.
CODBT.
Where the conrt and the parties In an ac-
tion for a nuisance limited the recovery, if any,
to the damages sustained prior to tiie commence-
ment' of the action, and the conrt witiiont ob-
jection charged that no damages could be award-
ed unless suffered within five years, defendant
was estopped on appeal to deny that plaintiff
could maintain snccMsive actions for t&e dam-
ages he might suffer from tiaw to time, and he
could not rely on limitations.
[Ed. Note. — For other cases, see Appeal and
Error, Cent Dig. S§ 1079-1080, lWl-1093,
1095-1098, 1101-1120; Dec Dig. f 173.*]
Error to Law and Chancery Court of City
of Norfolfc.
Action by O. Benson Ferebee against the
Virginia Railway & Power Company. There
was a Judgment for plainttfC and defendant
brings error. Affirmed.
WllUama; TonstaU & Thorn, of Norfolk,
and H. W. Anderson, ot Richm<wd, for plain-
tiff in error. Braxton ft Bggleaton, ot Bleb-
mond, Tbofl. W. Bhelton and Claude H. Bain,
boQi ot Norfolk, Aw defendant in error.
HABBISON, J. It appears that the Vir-
ginia Railway ft Power Company maintains
and opmtes a large electric plant erected by
It In a residmtlal part of the city of Norfolk
for the pnipose of supplying electric power
for its street railway and for gmeral munic-
ipal lighting. The plaintiff, O. Benson Z^ere-
bee, alleges that he has been greatly dam-
aged in the naefnl and comfortable enjoy-
ment of his borne by rtason of the wrongful
and'netflgent opvation of this power irtant
by the defoidant, and he brings this action
to rewver for such injuries.
The defendant company relied alone upon
the plea of the statute of limitationB, and
demurred to the evldoiee tX the plaintUL
The lower court overruled the demurrer to
the evidence, and gave Judgment in ffcror of
•ror.oUier easss m* sum tople and MoUoa NDUBBR In Dec. Dig. A Am. Dl|;. Kty-Mn, Ssriss ^ft^Up'r ladfna
■ ' • ■ ■ t&«li«arlagauiled BepUmbar U. UU. Digitized by GOOglC
BOSBNBERO UNITED STATES 7IDELITT A OCABAMTT 00.
S67
the plaintiff for the damafea ascertained by
the jury. To tliat' JadsnMsit thla vrlt of ar*
ror was awarded.
As stated In the petldoiit the amatloii
to be determined by this court is whether
the plaintiff's cause at action accrued within
flTti years next prior to the brlnglnff of this
suit on the 22d day of April, 1912.
[1] The bnrd^ was iQMm the defendant
company to sustain Its plea of the statute of
limitations. As said In Ooodell t. QlUKUia,
91 Ya. 608, 612, 22 S. S. S<H, 005: "It be-
hooTes the pleader of the statute to make
oat a case to which It clearly applies."
[}] It cannot be denied that. If this case
belongs to that class where repeated actions
may be broagbt, the plaintiff would have a
right to recover for the Injury sustained tot
the five years next preceding the date of
the action, and the statute of limltatlona
would have no application. The chief dis-
cussion has therefore been directed to the
question whether this case belongs to the
class mentioned, or to that class where but
one action can be brought. In which a re-
covery must be had for the entire damage
.suffered, both past and future, In which case
the action will be barred unless brought with-
in Qve years from the time the cause of ac-
tion arose.
The record shows that this case was con-
ducted throughout in the lower court upon j
the theory tliat only such damage could be '
recovered as had been suffered prior to the i
institution of the suit This theory admits ;
the right and necessity for future actions
for injuries subsequently occurring.
rS] It Is contended by the defendant com-
pany that the declaration was drawn upon
the theory that permanent damages might be
recovered, and that It will not support a
recovery for recurring damages. The lan-
guage of the declaration, taken as a whole,
does not Justify this contention; but. If the
declaration alleged a continuous nuisance, it
would not prevent a recovery thereunder for
an occasional nuisance.
In Cohen Bellenot, 32 S. E. 4SQ, 4S7, 2
Ya. Dec. 639, this court says: "We know
of Qo good reason, nor of any rule of law,
which would prevent a plaintiff from recover-
ing for occasional nuisances under a declara-
tion alleging a contiDuous nuisance If the
occasional nuisances were caused In the man-
ner alleged In the declaration."
[4, SI In the case at bar, whether the nui-
sance was continuous or occasional. It was
caused In the manner alleged In the declara-
tion. If this was a suit, as contended, to
recover future as well as present damages,
then the plaintiff was entitled to Introduce
evidence to show the permanent Injuries he
had sustained, and yet when evidence to that
effect was offered by the plaintiff It was
promptly objected to by counsel for defend-
ant'as tnadmlsrible. This view wfts acquiesc-
ed in by counsel for the plaintiff, and the
evldenee waa onkflned to the damages snff^
ed prior to tb« InstitntSoD of the action. Aft-
er the srldence was aU in, tb» eottrt instmct*
ed the Jury at the instance of the plaintiff,
to wtiUSk inatmctlon there ms no objection,
that no damages ooold be aaseased for the
plaintiff "nnless the same were suffered with-
in Ave yAwnf ^iUa to tha institnttoii of this
suit** This instruction was In line with the
defendant's objection to the Introduction of
any evldenee of damage sustained after the
suit was instituted, and wonld hare been
wholly tfnmeons If tlie contention now made
was sound that the suit was for entire dam*
ages, past, present, and future.
In 0. & O. By. Co. v. Bison, 99 Va. 18; SI,
37 S. B. 320, 824, this court said: "A party
Is forbidden to assume succesalTe porttions
In the course of a suit or series of suits in
reference to the same fact or state of facta,
which are Inconststent with each othw and
mutually contradictory."
In view of the theory of the case adopted
by both parties In the lower court, and of
the eridence adduced, viewed from the stand-
pc^t of a demurrer to the evidence, we are
of opinion that the defendant company is es-
topped to deny In this court that the case be-
longs to that class where the plaintiff is en-
titled to maintain successive actions for the
damage he may from time to time suffer.
The evidence having been confined at the
Instance of the defendant to showing only
the damage sustained by the plaintiff for the
five yean prior to -his action, and the Jury
having been instructed, without objection, to
confine their ascertainment of damage to
that period. It would be an injustice to the
plaintiff for this court now to hold that the
action was for permanent lojurtes, and there-
fore that the plaintiff's recovery was for all
damages, past, present and future, growing
out of the defendant's wrongful and negli-
gent operation of Its electric power plant
The plaintiff's recovery not being fOr per-
manent injuries, but limited only to such
damage as he liad sustained within five yean
prior to the institution of his suit, the statute
of limitations did not bar his claim.
lUe evidence was amply sufficient to war^
rant the verdict of the Jury, and the Juite-
ment complained of must Iherefora ba af-
firmed.
Afllrmed.
CABDWBLL^ J„ abmt
■ ■ cm iiu
BOSEKBEBG v. UNITED STATUS FIDEXr
ITX & GUABANTY GO. OF BAX/n-
MOBB, UIX
(Saprtme Court of Appssb '^r^oia. June
12, 1913.)
L Apfuunob (! 24*>-.Bf!nCT— Damns in
SKBVICI— "SUBUIBSION TO JnBISDXOTIOH.'*
An appearance of defendaat to the action
or a general appearaoce waives all defects In
•FW otb«r oaM M sue topis nd asoUoB NVHBBBr la Dee. Dl» C AB. XHg. Ktr**' BMrlas
•■ ■ Digitized SyVjOOQ[C
568
78 SOUTHBASTERN REPORTER
the procM, ud eonstltatei a mbmiBdoa hr de-
feadant to the jnxiMlictlon of the coort.
[Ed. Note.— For other cases, see Appearance,
Gent Dig. H 118-143; Dec. Dig. S zl*]
2. ApFUBAROK (S 24*)— What CoNanTtTTBs—
MonoR TO DiSMias— Wart or Jukisdio-
TIOR.
Where defendant appeared and moved to
diamlM the action (or want of a declaration,
the court haviag Jurisdiction of the sobject-
matter, a subsequent objection to the Jurisdic
tion for irregulariti«a afBectlnK the process mere-
ly was waived.
[Ed. Note. — For other cases, see Appearance,
Cent Dig. i| 118-143; DeoDig. 1 24.^]
Error to Circuit Court of City of Norfolk.
Action by Max Rosenberg against the
United States Fidelity & Guaranty Company
of Baltimore, Md. Ja^ment for defendant,
and plalntiir bringa error. Berersed and
remanded.
Jeffries, Wolcott, Wolcott ft Lankfoid, of
Norfolk, tor plaJntlff In error, Kilrd, Swlnk
ft Morelandt of Korfblk, fi>r defisndant In er-
VTBlTTlStt J. TtOm Is an action of as-
Bompsit brontfit 1^^ the plaintiff In «rror,
BCax Bosenborgf beretnafter called Uw plain-
tiff, against tbe defendant In error, the Unit^
ed States Fidelity ft Guaranty Company,
hereinafter termed the defendant
Ibe object of tbe action is to recover dam-
ages f6r tlie allied breach of a contract of
guaran^ whereby the dtfendaut undertook
and promised to make good and rtfmhurse
the plaintiff (to the extent of n/)00> for aU
pecnnlaty loss susbilned by him tor moneys,
eta, -in the possesalon of one B. a. Johnson,
as managflv for the plalntU^ for wbieh he
was resptHiBlbl^ by acts of dishonesty
amounting to flw larcooy or onbesilement
of sddi mon^i, etc
On motion of tbe dateoAuit tbe oonrt dis-
missed the action, b^bg of opinliim "that the
plaintiff has proceeded In the wrong forum,"
and to that order this writ of error was
granted.
There Is no question but that the case
stated In the declaration is one within tbe
general Jurisdiction of tlw drcnlt court of
the dty of Norfolk^ but the contatton of the
defendant is that upon the Acta tbe court
has no Jurisdiction of the partlcalar case,
because the defendant Is a Bfaryland corpo-
ration, and it does not appear that the cause
of acUoQ or any part thereof arose In the
tiit7 of Norfolk, and therefore the process
could not lawfully be sent to the city of Rich-
mond and served on the statutory agent of
the defendant, as was done In the Instant
case. Deatrlck t. State tAta Insurance Co.,
107 Va. 602, GO & E. 489.
[1,2] If, however (as we apprebend the
situation to be), the record shows an appear-
ance to the action, or a general appearance,
on the part of the defendant .It Is onneces-
saiT ta consider any of the questions raised
with. respect to the direction and. service of
process. Because It Is a well-settled rule of
practice that by such appearance the defend-
ant waives all defects In the manner and ser-
vice of process and submits himself to the
jurisdiction of tbe court The defendant ap-
peared and moved the court to dismiss the
action for want of a declaration; and. the
court having Jurisdiction of the subject-mat-
ter, subsequent objection to the Jurisdiction
on the ground of irregularities affecting the
process merely must be treated as having
been waived.
In Frank v. Zelgler, 46 W. Ta. 614, at page
618, 83 S. R 761, at page 762, the court
says: "The object of service of process Is
only to notify persons of the suit, and bring
them under tbe power of the court Appear-
ance answers the same purpose. By It the
party submits himself to the Jurisdiction of
the court Any appearance, except to object
to the Jurisdiction — as, for Instance, to take
advantage of. defect in process or return — ■
Is a general appearance, not special, and
will dispense with Its service. Any motion
in the case will do so."
Here the motion of the defendant was in
DO sense founded on lack of Jurisdiction of
the court, or of defective process or return.
On the contrary, It distinctly recognized the
Jurisdiction of the court and Invoked the
exercise of that Jurisdiction to dismiss the
action because of noncompliance on Qie part
of the plaintiff with the statute In the matter
of filing the declaration. This was obviously
a general and not a special appearance,
though designated as such, and by It the de-
fendant submitted Itself to the Jurisdiction
of the court
In New River Mineral Oo. v. Painter, 100
Ya. 607, 42 S. E. 300, tbe court held that "ap-
pearing to an action even for the purpose of
taking or acc^tlDg a continuance Is a waiv-
er of all defects In the service of the writ"
Lane Bros & Co. v. Bausenuan, 103 Ya. 146,
48 S. E. 857, 106 Am. St Bep. 872; Norfolk
& W. By. Go. T. Sutherland, 106 Ya. 545, 54
S. E. 465.
In Norfolk ft O. V. By. CSo. v. Turnpike
Co., Ill Ya. 131, 68 S. B. 346, Ann. Cas. 1912
A, 239, the rule Is stated thus: "An appear-
ance for any other purpose than questioning
the Jurisdiction of the court because thero
was no service of process, or the process was
defective, or the service thereof was defec-
tive, or the action was commenced in the
wrong county, or the like, Is general and not
special, although accompanied by tbe claim
that the appearance Is only special. A mo-
tion to vacate proceedings In a caua^, or to
dismiss or discontinue It, because the plain-
tiff's pleading does not state a cause of ac-
tion. Is equivalent or analogous to a demtir-
rer, and amounts to a general appearance."
The rale Is similarly stated In the valu-
able newly published work, Burks* Plead-
ing and Practice, 326.
Upon these au^orlties, It Is plain that the
•Wot oUmt caaw wm wamm topl« utd noUob NDHBBR In Deo. DIs. a Am. Dig. K^-No. Swt^^
HILL T. SATIKDEB8
669
court acquired Jurisdiction of the deftmdant,
and, having general Jurisdiction ct that daaa
of cases, should have overruled the motira to
dismiss the action, and proceeded wltli the
trial on the merits.
For these reasons, the Jndffnent most be
reversed, and the case remanded for farther
prooeedings in ccoformitr with the views
expressed In this opinion.
Bewsed.
(US Vs. M)
HILL et aL v. SAmn>ERS at sL
(Supreme Court of Appeal* of Virginia. June'
12. 1913.)
1. MOBTOAOKB <| 88*)— Dun A» M0BT0A6»-
FaBBUHFnon— E>rxDKNGi.
The presnmption that a deed abednte on
its face u what it panrnts to be most be
overcome bj clear, unequivocal, and convincing
tvidencew
[Ed. Note.— For other casei, lee MortgageiL
Cent Die H 108-111 ; Dea Dig. | 8&*1
2. MoBTOAais (i 606%*) — Duo as Mobt-
OAor-Sirrr to Dicx.Aa— Z^achbs— Loss or
Evidence.
Suit to bare a deed declared a mortgage Ib
barred by iacbes; complainantB having, wttb
nmnadoiH knowledge of tbe dtuation, waited
till after death of all the principal actors In
the transaction, losi of whose testimony would
make any condnaion reached by the court nec-
essarily conjectural and founded on random
gnea&
[Ed. Note.— For other cases, see Mortgages,
Cent Dig. S 1816; Dec Dig. { G08^.*}
Appeal from drcnlt Court, Culpeper
County.
Suit by the widow and heirs of Edward B.
Hill, deceased, against the personal repre-
sentatives and devisees of C A. Saunders,
deceased. Bill dtomlssod, and con^lainants
appeaL Affirmed.
Grimsley ft Miller, of Colpeper, for appel-
lants. J. U J^Eries, of Norfolk, Blzey ft
Hiden and Waite ft Ferry, all of Culpeper.
and ThoB. BL Blakey, of Tappahannocik, for
appellees.
WHITTLEI, J. Tbe bill in this case was
filed by the widow and heirs of Edward B.
Hill, deceased (who was the former claim-
ant of two t&rma In Culpeper county, known,
respectively, as the Petty farm, containing
630 acres, and the Lightfoot farm of 3TSH
acres), against the personal representatives
and devisees of O. A. Saunders, deceased.
The object of the suit was to hare certain
deeds absolute on their face, conveying these
properties to Saunders, declared to be mort-
gages, also for an account of Indebtedness of
the estate of Hin to the estate of Saunders,
and upon such settlement that complainants
should be allowed to redeem the farms, or
that they should be sold and tbe balance of
the purchase money, after discharging the
indebtedness, paid over to them. From a
decree dismissing the hill this appeal w&s
granted.
Stated gmerally the history of the case Is
as fbllows: Edward B. Hill resided with his
fftmlly, consisting of his wife and four
dren, at Culpeper, Ya., and shortly after
the Civil War he ^igaged in tbe mercantile
business at that place as a member of the
firm of Hill, Bnrdette ft Go. O. A. Saunders
married Hill's sister and lived In the dty of
New York, where he was engaged in business.
He was a man of the highest integrity, of
ttoepUonal bnsinesB ability and laige means.
His brother-in-law. Major Hill, was, on the
contrary, a poor bnslneaa man, and in strait-
ened financial drciini8tanoe& Tbe social re-
lations between the two tamlUes were ex-
tremely Intimate and cordial; and the per-
sonal relations between Saunders and Hill
were as close and affectionate as if they had
been brothers. A room was reserved at the
HIU home for Saunders and his wife, and
they annually spent their summer vacations
in Culpeper as boarders In the household.
The mercantile venture of Hill, Burdette ft
Co. proved unsuccessful and ultimately re-
sulted in dlsastrona failure. During the
continuance of tbe buslnesa. Hill frequently
called upon Saunders for financial assts^
ance, and, when the collapse finally came in
1875, Saunders had loaned him and the con*
cern large sums of money without security.
In the year 1860 HIU purchased at a Ju-
dicial sale ,the Petty farm at ¥12.65 per acre ;
the entire price being fS,526.10. He made
the cash payment of ^52.11, but when he
was called on after the War to pay the bal-
ance of the purchase money be was wholly
unable to do so. In that emergency he again
ai^>ealed to his benefactor for help. Saun-
ders^ in r^ly to Hill's letter, wrote under
date of June 1. 18Z5. among other, things:
"I said before I do not want tbe property
and will redeed it as soon as my debt is paid,
and will give my obligation to that effect,
and will at once try to buy the other inter-
ests in it and get the court tltie perfect, so
that it can be sold If an opportuni^ offers."
At that time the place was supposed to con-
tain valuable iron ore deposits, which in
polDt of fact was afterwards discovered t»
be unfounded.
These negotiations resulted In Saunders
becoming the substituted purchaser of the
Pet^ farm. On August 10, 1875, Hill and
wife conveyed to him all their interest in
the land by deed with general warranty of
title ; but several years elapsed before Saun-
ders acquired the ontstandlng interests in
the property referred to in his letter and re-
ceived a deed from the commissioners.
From time to time Hill made other calls
on Saunders, as his necessities required,
which amounted In the a^egat^ indudlng
the purchase price of the Petty farm, to over
^,000, or nearly three times tbe value of
the land at the date of Saunders' purchase.
In other letters exhibited with the record he
Itraated his position with reapect to tiieae
Dig. K«r-^g,ti«$«^i^O@^te
•ror etlMr oaMs suns tople and BWtlOB NUMBER la Dee. Dig. A Am.
660
18 80DTHBASTBBN BBPOBTB&
(V*.
tmuactttfiM^ jwiphariKiiig ttw filct tlut be
bad no deMre ftt tbat tbue to own the land
and was wUUnc to leconTcgr It to Hill upon
his returning tbe money advanced.
In 1800 Hill parcbaaed from Bdwazd Llsbt-
foot tbe' tract known as tbe Llgbtfoot Arm,
and •zeented six braids for 91.250 eacb tor
tbe pnrcbase money* secured a deed of
trust upon tbe land. Hill was unable to meet
ttds UaUIlty; and. In response to hla earnest
appeal, Sanndets on July 80, 1889, paid the
purchase money, amounting to $18,851^
and D. A. GrlmsleVi substituted truatee, and
n. B. HUl united In a deed cratveylng to
Saunders the Ughtfoot farm; tbe deed re-
citing that the consideration was the pay-
ment (tf the amount of the llm tboeon, and
that Hill was "anxious to pay off and dis-
charge the whole of said debt so due to
Saunders, • • * and for tblb purpose
baa agreed to nil and conv^" the land to
him. The amount paid was more than the
value of the property at that date.
Tfaronghont these dealings Hill was hope-
lessly and continuously Insolrait, and at no
ttmo erer paid, or oCCered to pay, the large
sums of money adranced by Sanndws at his
request Saundors, In the meantime, paid
the taxes on both f^rm^ leaving Hill In
' full poasesslon and pernancy of the profits
(which, indeed, constituted his only means
of support), and this anangODent contlnoed
until HUTs death in Vebmary, 1880; bis
widow recelring the rents for that year. At
the close of the year 1890 the family bad be-
come dlqwned; Oie two sons were living
and in business out of tbe state; both daugh-
ters were married and residing in Baltimore;
and their mother spent orach of her time
with them. Mr. Saunders, as the recognised
owner, took possession of the farms without
suggestion of obJecUra from any quarter.
His pMsesslon end absolute daim of owner-
ship was well known to appellants and con-
tinued without challenge or adverse claim im
tbcAr part until after his death in 1905. Dur-
ing ttie 15 years of his actual occupancy be
'spent large sums <rf money in ttie cultivation
and improvement ot these properties, in-
creasing their value 60 per cent, without
taking into account the goieral advance In
the price of land. He bought 00 odd acres
adjoining the Ughtfoot fium to straighten bis
boundaries, and moreover farmed and erected
permanent Improvements upm both proper-
ties upon an eztiavagftnt scale, using tUe
for draining, and inclosing the farm with wire
fences on locust posts. Among other im-
provements, be erected five large el^ntly
built bams on the Ughtfoot place and a six-
room dwelling on. the Petty farm. In fine,
his expenditures and betterments were of a
class that no prudent man woiild have made
npon property other than his own.
Tear after year these outlaws .continued,
with full knowledge on the part of appel
Isj^s, .all itf wbom were adults and one
a practicing lawyer; yet th«y never paid, or
offered to pay, a dollar to redeem tbe lands,
nor InUmated by word or act their ultimate
purpose to ly daim to tbe estate^ until
they filed this blU 18 years after tbe death
of th^ father, 80 years after the deed to
the Petty farm, 19 years after the deed to tlie
Ughtfoot farm, and 8 years after the death
of G. A. Saunders.
[1] It Is sometimes difficult to determine
whether a deed absolute on Its fiice Is in
really a conditional sals or a mortgage, but
In all Boeh cases the settled doctrine in this
Jurisdiction Is that the presnmiAlai that the
deed is what it purports to be must be over-
come by clear, unequivocal, and convincing
evidence. HOlhiday v. Willis, 101 Ta. 274,
278, 48 S. B. 610; Bachtach T. Bachrach, HI
Ta. 232, 234, 68 S. E. 986.
[2] Without regard, howevur, to what may
have beoi the original merits of tUs con-
troversy, and without discussing uy of tbe
other matters of defense, the decne of the
circuit court is obviously til^ and must be
affirmed on the ground of gron laches on tbe
part of the appeUants in assutlng their
claim. With consdons knowledge of the ^t^
uation, they have diosen to sleep on their
il^ts untU aU of the principal actors in the
transactions have passed away. Hill and
wife, Saunders and wife, and Grlmsl^) trus.
te% are all dead, and from Uie loss of their
evidence any condushm that the court might
readt would necessarily be conjectural and
founded upon random guess ratt>er than upon
any Just ground of belief based upon snflt-
dent proof. In such case a oourfe of equity
invariably denies relief for the reasim tbat
a Just determination of the ocmtroversy or set-
tlement between the parties is impossible, and
therefore leaves the complainanta where their
Inexcusable negligence has placed them.
Nelson v. Triplett, 99 Va. 421. 89 S. B. ISO;
Doyle V. Beadey. 90 Ta. 428, 89 S. B. 102;
Bedford v. Chirk, 100 Ta. 116, 40 S. E. 680.
For these reasons tbe decree of the dr^
cult court must be sfflrmed.
Affirmed.
(US Va. sx>
CITY OF RICHMOND v. BURTON.
(Supreme Court of Appeals of Tlrglnia. June
12, 1913.)
1. MCITIOIPAL CoSPOBATXOlfS it 360*)— Skw-
SB COKSTBDCTIOK — BXTBA EXCAVATION —
Kkowledgs or Oitt.
Wbere during the excavation of a wwer
trench nnder a titj contract, it wai foand that
tbe aides of the trench would give wtur, and
to prevent this It was necessar? to put in tim-
ber and fill in the aloughlDg places with bricks,
wbcrenpOQ the contractor snggeated a remedr
by excavating tbe ditch wider than provided
by the profiles, which snggestion was adopted
with the consent of the city's assistant engi-
neer, and was advantageous to the dtv, and it
aleo appeared tbat new. and wider stakes were
set after the contractor's sngcestion was adop^
ed, It sufficiently appeared mat the tity had
knowledge of. the alteration
Digiliged -by
•For et&er oaMi mm same toplo aatf seetlea NUMBSB In Dm. Dls. a Am. Wg. Key-Mo. Sevlas * Bap
mai ine city naa
Bias * Bap'lClUsxai
va.)
CITY OF RICHMOND v. BURTON
661
that it was done with the approval of the dtr's
asttstant eogioeer.
[Ed. Note.— For other cases, see Manldpal
Gorporatioiis, Cent Dig. }( 8Sa%; Dec
Dig. I 360.*]
2. Huirioxp^ CORPOXATiom ($ 860*)— Pdb-
uo iKPBovBHKirTB— Cm raramn— Av-
THOBirr— "Extra."
A aewer constrnction contract provided
that, before commenciag any part of the work,
the dkr eivitMer mUpit make snoh changes in
the lines, gradea apd dlmensfoiw which do not
entail any eitra expense to the contractor, and
In the prosecntion of the work, should there be
any change in the lines, grades and dimensions
of the work to be done which may entail cost
to the coDtractor, tt was agreed that the
amount of the extra cost shonld be ascertained
before the commencement of the work, and the
agreement as to the amount to be paid slwuld
be final Held, that the word "extra," as used
In such provision, was equiTalent to additional
work which was required In the performance
of tbe contract, and not necessary to such per>
formance in tbe sense that the contract could
not have been carried out without It, but neces-
sary in the sense that by means of it the eon-
tract could be more conveniently and benefi-
cially performed in tbe interest of both parties
thereto, and did not include work arising out of
and entirely independent of tbe contract, some-
thing not required in Its performance, and
hence did not take from the city engineer au-
thority to agree to pay for extra excavation
dnring the performance of the contract made
neessiary by th* character of the soil in which
tbe improvement was constructed.
[Ed. Note.— For other cases, see Municipal
Corporations. Cent Die. il 892, 892^ ; Dec.
Dig I 860.*
For other definitions, see Words and Phrases,
ToL S, p. 2624.]
S. MVIIICIPAL CoBPOKATXOira a 860*)— fiEWEB
CoifTBACT— Gonarsncnoif— EoETBA Wobk.
A municipal aewer contract provided that
the size and form of the sewer, its location and
grade, etc, should conform to tbe plans and
spedncations of a city engineer subject to mtit
modification as be might deem necessary during
the execution of the work; that the trenches
were to be dug in accordance vrith the tines,
grades, depttu, and widtba which woald be giv-
en by tbe engineer or his assistant from ame
to time, and, should it be necessary to increase
tbe dimensions greater than shown on the
plans, there shonld be no extra charge, but the
contractor should be paid at tbe same rate per
cnbic yard as given In tiie original proposal,
that all directions necessary to complete any of
the provisions of the specifications would t>e
given by the city engineer or liis assistant in
charge whenever requested, and that the con-
tractor would be required to protect such stakes
or marks and conform his work accurately
thereto. BM, that where, by reason of Uie
character of the soil, it was found necessary to
timber loose places and fill slides of earth, and
to avoid this the contractor suggested wider ex-
cavation which was beneficial to the city and
to which the engineer agreed, the contractor
was entitled to recover compensation therefor
In addition to his contract price.
[Ed. Note.— For other cases, see Municipal
Corporations, Gent Dig. U 882, 802H ; Dea
Dig. I 360.*]
4. JUDOMEIfT (I 180*)— MOTIOV FOB JUDG-
MENT—"MoNET Dtjb on Comtbact."
Where plalntifE contracted to construct a
■ewer for a city during the progress of the
work, it was foniKl necessary to widen tbe ex-
cavation because of the character of the soil,
and it was agreed between plaintllF and the
city engineer that plaintiff should be allowed
the same contract price for the extra excava-
tion required which the city subsequently re-
fused to pay, the amount dne therefore was
"money dne on contract," and hence recover-
able la motion fbr Judgment aa anthorlied by
Code, I 8211.
[Ed. Note.— For other cases, see Judgment,
Cent Dig. f 842 ; Dee^ -Dlgri ISOl*
For other definitions, see Words and Pfanaes,
VOL S, pp. 2213-2220, voL 8» p. 7648.]
Brror to Otrcolt CSonit of Otj of Bldi-
mond.
Actton b7 Banter Burton against the Olty
of Blchmond. Judgment for plalntUf and
defendant brings error. AfBrmed.
H. B. Pollard, of lUchmond, tor plaintiff
In error. C. T. Meredith, of Blchmond, for
defendant in error.
KEITH, P. Barton bronght salt against
the dty of Richmond to recover a balance
alleged to be due for tbe excavation of a
sewer, and recovered a Judgment, which is
now before ns upon the petition of the city
of Richmond to review certain mllngs made
during the trial of the case.
There appears to be no dlapnte as to fh»
amount of excavation done, or tbe price
charged. The payment of the demand was
resisted 1^ the dty upon the ground that
the additional work for which the claim la
made was never authorized by the city or
Its agents, and that the officers of tbe dty
under whose supervision tbe work la allied
to have beea done had no authority to make
any change in or departure from the plana
and specifications set out In the contract
between the dty and Burton.
In the early stages of the work ttie con-
tractor seems to have oonfbrmed substantial-
ly to the plana and speciflcatlonB set out In
the contract, and to tbe profile furnished him
by the d(7 mgtneer, but aa the work pro-
greaaed It waa found that the material was of
such a- nature that the ddea of the trench
wonld give way and alough off Into tbe ditch,
and ttiat to prerent thla it waa neceaaary
to put In ilba of Umber and fill In the place
where the aloughlnc bad taken place with
bricks, and for tbe material and woik thus
made neceaaary the dty made payment with-
out objection. In conaeQuence of this condi-
tion of things Burton approached the aaslat-
ant dty engineer In diai^ of the work for
the <Aty, and called bla attention to the
trouUe and expressed the opinion that. If the
trendi were made wider and tbe weight tak-
en off tbe sides by giving tbe banks a sh^
Instead of having tbem perpendicular, it
would be to the advantage of all parties con-
cerned. The asalatanb dty cdiglDeer ac-
quiesced In this suggestion, and In con-
sequence thereof the lines of ttie dltdi were
staked off much wider than the original
plans, spedflcatlons, and profile called for,
and tbe Inspector under whose supervision
the stakes were set ^^t a meMur^njgi^^
ladMM
•Fttr otta«r cmms bm same toplo snd seotbn NUMBBR ta Dee. Dig. * Am. Dig. Kay-Ne. Serlsa A Rep'r
78 S.E.-^
662
78 SOUTHEASTBKN BBFOBTBB
(Va.
the additional ezcavatlm thus rendered
necessary.
These are the facta which the evidence
tends to prove on behalf of the d^endant
In error. They are controverted by the plain-
tiff In error, but must be accepted by us,
the verdict of the Jury having found them to
be true.
The view of the plaintiff In error Is that
the change was made and the additional
work done as a matter of convenience to
the contractors, as they were thereby enabled
to use machinery to a greater advantage In
the excavation of the trench; but there la
evidence tending to show that by the method
adopted the city was saved a considerable
sum of money as the ribbing with tlml)er
vas no longer necessary and the use of so
many brick was not required.
After the evidence was Introduced to the
jury the court gave certain instructions.
The first to which we shall call attention
was asked for by the defendant, and is pred-
icated upon that provision in the contract
which declares that the city engineer shall
decide all questions and disputes of every
nature relative to the construction, prosecu-
tion, and fulfillment of the contracts, and
as to the character, quality, amount, and
value of the vrorfe done and materials fur-
nished, and that his decision upon all such
points was to be final and conclusive upon
both parties, and they must abide by his de-
cision although it be erroneous, unless It be
clearly proved by a preponderance of the
evidence that such dedsion was fraudulently
made, or that such a gross mistake was made
thereby as necessarily to imply bad faith
on his part or a plain fiiOnxe to exercise an
honest Judgment
To the giving of this Instruction the fdaln-
ttff excepted, but we are of opinion that it
cOTrectly states the law aa it preraila In this
court and In other JnrtBdicttons, and could
not be Qie subject of an assignment of error
In any event as the Judgment of the circuit
court was for the plalnttil^ and we therefore
mention the Instruction merely as tending to
show that the case was properly submitted
to the jury.
The dty of Richmond ofTered two Instruc-
tions whldi were refused, in which Uie court
was asked to construe the contract between
Burton and the city, and tell the Jury that
no one of the assistants of the city engineer
or Inspectors upon the work had any right
to make any change or departure from the
plana and specifications set out In the con-
tract, even though the Jury believed from the
evidence that one of the assistant en^neers
or inspectors laid off the line of the ditch to
be dug, and Increased the dimensions thereof,
which caused the cutting of the trench for
the sewers of larger dimensions than those
prescribed in the plans and specifications,
yet such act on their part did not bind the
defendant, the dty of Richmond* and as a
consequoice the plaintiff is not entitled to
recover in tills action for tte exoesa of exca*
vatlon outside of that called for hy ttaa sped-
flcatlons.
The court also gave an Instmctlon of Its
own motion, the first branch of whldi per-
tains to the dnty of the dty engineer under
the contract to settle all questions of dispute
as to the character, quality, amount and
value of the work to be done and material
furnished, and which declares his dedsion on
all such points to be final and conclusive. It
is conceded to be substantially a reiteration
of the instruction upon the same subject
already referred to as having been given
at the Instance of the plaintiff in error, and
need not be further noticed. The second
branch of the court's instruction is the con-
verse of the prindple announcement in the In-
structions asked for by the dty and refused
by the court, and tells the Jury that If It
was found necessary in the excavation to
Increase the dimensions greater than those
shown upon the plans and that the line of the
trench was widened by the dty engineer or
his assistant and that as so widened the
plaintiff dag the trench as directed, then they
should find for the plaintiff for sndi extra
amount of excavation as they bdleved from
the evidence was dug, and assess his damages
at the same rate per cubic yard aa was
agreed upon In the proposal ; the contention
of the dty t>einc that the contract b^een
the dty and Burton oonsUtutes the law of
the case, that there could be no devartore
from it except as authorised by the contract
itaelf, and that In all cases where a claim is
made under a contract for extra work it is
incombent tiie contractor to show tliat
the amount of such extra, expense had been
ascertained and the price and cost thereof
agreed open in writing between the dty
engtueer and the contractor before the com-
mencemoit of the work, wmie npon the part
of the contractor the contention la tliat^ read-
ing the contract as a wbol^ the ofllcen of
the dty in charge of the work were author-
ized to deviate from the plans and spedflca-
tlons set out In the contract, and that for the
additional work authorized by the assistant
engineer the dty was responsible. Upon the
dedsion of this question the determination
of this controversy must depend.
[1] We do not think that It can be success-
fully contended that the work here sued for
was not done with the knowledge and ap-
probation of the assistant engineer for the
city. The evidence Is full and complete that
the attention of the dty engineer was called
to the trouble, the remedy suggested by the
contractor and approved by the assistant en-
gineer, and that as a consequence stakes
were set which departed from the original
profile furnished by the «Dglneer's depart-
ment to the contractors, and that the exca-
vation was made In accordance with the new
arrangement, that «»,»«o^o{^^ij^k
CITY OP RICHMOND T. BURTON
663
so done WW by tbe city's iDspecton by
direction of tbe assistant city engines, and
tbat as to the amount of work so done and
tbe prices charged there Is no dispute.
Ab to the contention of the dty tbat the
duuige was made to meet tbe Interest and
convenience of tbe contractors, there Is evi-
dence strongly tending to show tbat tbe city
was benefited as well as the contractors, and
that by tbe change a som of money amoont-
ing to MiOOO or $5,000 was saved to the
platntUT In error.
The contract between tiw city and the eon-
tractor Is to be considered as a whole so as
to give effect to all of tti parts. This rule
of oonstmcUon Is etenumtary, Is not ques-
tioned, and needs no dtatlon of antliorltles
In Its support.
The second clause of the spedfloitlons pro*
vldee tbat "tbe edze and form of the sewer.
Its location and grade, the catch basins,
stacks, manholes, or any other connections
mnst conform with the plans on flie In ttie
office of tbe clt7 engineer, subject to such
modlflcatlo&B, additions or omisslona as the
dty engineer may deem necessary during the
execution of the work." And Just here It
may be well to observe tbat it Is conceded
that witbta the line of bis duty the powers
of tbe dty engineer and his assistant are
id^ticaL
In dause 4 of tbe spedflcations It was pro-
vided: "Trenches to be dug in accordance
with tbe lines, grades, depths and widths
wUcb will be given by the dty engineer or
bia assistant from time to time. • • •
Should it be found necessary In the excava-
tion to Increase the dimensions and depths
greater than shown on the plans, there shall
be no extra charge for such changes, but the
contractor will be paid at tbe same rate per
cubic yard as given in the original proposal."
In section 21 of the specifications It Is pro-
vided that all directions, etc, necessary to
complete any of the provisions of these, etc.,
spedflcations and give them due effect will
be given by tbe city engineer or his assistant
in charge, whenever requested by the con-
tractor. "All lines and grades will be given
by the dty engineer or his assistant, and the
contractor will be required to protect such
stakes or marks and conform his work a&
curately thereto."*
And In section 22: "The city engineer or
his assistant and Inspectors shall have ac-
cess at all times to any and all parts of any
work bdng done, for the purpose of Inspec-
tion, measurement and establishment of lines
and grades."
[2] In answer to all this the dty ccmtends
that tbe anthorlty of tbe city engineer and
bis assistant Is limited and controlled by
the 23d section of the sttedflcaHous, whldi
Is as fi>llowB: "Before oommendiur any part
of tbe work beretn speclfled and described,
the dty mglneer Is anUiorlsed to make sndt
Changes in the ' lines and grades and fllmen-
slons whldi may not entail any extra ex-
pense to the contractor. And in the prosecn-
tlon of the work, should there be any Change
in tbe lines, grades, or dimensions of the
work to be done nnder the contract, which
may entail cost to tbe contractor. It is under-
stood and agreed tbat tbe amount of sacb
extra cost and expense the contractor shall
be sDbJected to shall be ascertained before
the commencement of the work, and this
agreement as to the amount to be paid iball
be flnaX."
We are satisfied that this sedimi Is not
susceptible of the construction claimed for
it by the plaintlfC In error. The word "ex-
tra," as b«re used, has no r^rence to "wcnrfc
arising ont of and entirely Independent of
the contract, something not required In Its
performance," but Is tbe equivalent, we think,
of additional work which was required In the
performance of tbe contract-Hiot necessary
to the performance of ttie contract. In the
sense tbat tbe contract could not have been
carried out without It, but necessary in tbe
sense that by means -of it the contract could
be more conveniently and beuefidally per-
formed in tbe interest of both parties to it
That the work here sued for was not of
tbe character contemplated ii^^the twenty-
third section further appears from the fact
that there was no occasion to agree upon the
price of tbe work, for that bad already beea
agreed upon as so much per yard, and the
compensation demanded here Is tbe price
per yard of excavation as stated in the con-
tract That such is the definition to be giv-
ea to the term "extra" as employed in the
twenty-third section will more plainly appear
by reference to the condudlng portion of
clause 4 of the specifications already quoted,
as follows: "Should it t>e found necessary,
in tbe excavation, to increase the dimensions
and depths greater than shown on tbe plans,
there shall be no extra charge for such
changes, but the contractor will be paid at
the same rate per cubic yard as given in the
original proposaL"
[3] We cannot say as a matter of law,
looking to the entire contract, tbat tbe as-
sistant engineer had no power to authorize
the excavation of a trench wider than that
set out in the contract and the spedflcations
and the original profile, and we therefore
are of opinion that the drcolt court did not
err in refusing to give the Instruction asked
for by the plaintiff In error.
It is proper fbr us to state that thwe Is no
suggestion In this record that there was any
frandnloit act or Intent upon the part of any
of the agents or officers of the dty, and we
entertain no doubt tbat the dty eBsStoeer «ct>
ed thcon^out with no other purpose or mo-
tive ttum to raider exact Justice to all con-
cerned ; bat we are further of opinira that
the jury having beei pn^rly Instructed,
and the evidence being roffldent to sustain
their verdict; tliere Is no error 4prthe Jndfl|
Digitized by VjOCTQiC
6Gi
78 SOUTHEASTERN BEPOBTBB
ment of the circuit court npon the Qnestfons
thw for considered.
[4] The point Is .made In the petition for
the writ of error that a motion for Judgment
was not the propra remedy In this case;
that sndi demand) if dne at all, was for dam-
ages resulting from the breach of the con-
tract In the notice mentioned, and was re-
coverable only in an action sounding In dam-
ages, and la not m<mey whl<!h the plaintiff
la entitled to recover by action on any con-
tract.
Granting tiiat as the law stood at the time
this suit was brought the propodtlou as
stated In the petition Is sound, this case does
not come within its terms, and ttie case of
Wilson T. Dawson, 9G Va. 687, S2 8. SL 461.
so far from sustaining the oontcmtltm of
plaintiff In error, la dedslve to the contrary.
It Is true that It was held In that ease that
"damages for an injury resulting from a
breadi of contract, recoverable only In an
action 'sounding In damages' can In no sense
he considered money due upon contract, and
hence a motion under section 8211 of the
Code, as it stood when fbis motion was made,
* * * In any case where a person was
'entitled to recover money tj action on any
contract,* cannot be maintained to recovw
damages for a breach of contract, or flie prof-
Its which the plaintiff would have made if
he had been permitted to fulfill his contract"
In that case the plaintiff filed a UU of par-
ticulars which consisted originally of 31
itema, all of which except 1 to 7, Inclusive,
and 27 and 28, were abandoned. Items 1 to
7, inclusive, it seems, were for masonry, ex-
cavation, and concrete work done and stone
quarried and delivered, while 27 and 28 were
for profits claimed by Mrs. Dawson npon
concrete and masonry work which she would
have made had she been permitted to com-
plete her contract. The claims in that bill
of particulars Illustrate what could be done
and what could not be done under the law as
it then stood. The case before ns is plainly
of like nature with the claims In that case
for masonry, excavation, concrete work done
and stone quarried, for which a recovery
was permitted, while Items 27 and 28 were
for causes of action strictly "sounding in
damages" for which a recovery was not al-
lowed. As said In the opinion in the case
cited: n'he utmost that the plaintiff had a
right to recover in this mode of proceeding Is
the amount of the first seven items of the
account filed with the notice, and ther^ore
the verdict and Judgment, including damages
for the breach of the contract, embraced in
items 27 and 28 of the account. Is, we think,
clearly erroneous, and should be reversed and
annulled."
Upon the whole casOk we are of i^lnlou
that there Is no error In the Judgment before
na which la afflrmed.
Affirmed.
(116 Vb. IN)
WASDELL T. BIBDSONO et iLt
(Supreme Court of Appeali of Vk^nla. June
12, 1913.)
1. Vendoh Ann Pubchaseb (i 34*)— Bncxs-
aiON— DEFIOtKNCT IN ACBXAOS.
Where all tbe parties to a sale of land
described in the deed as 200 acres more or
less believed that tbe tract conveyed contam-
ed shout 200 acres, when in fact it contained
only 94^ acres, the purchaser who was guilty
of no inexcusable delay in ascertaining the
deficiency was entitled to have tbe c<mveyance
anoulled and to recover the purchase price
paid by him, where the parties could be plac-
ed In status QUO, and no rights of innocent
tUrd purties nad Intervened, althoogh the
deed recited that ft was understood that tbe
land was sold by the lump and not by the
acre ; the mistake being so gross as to amount
to and be equivalent to a ffaud on the pur-
chaser.
[Ed. Note. — For other cases, see Vendor and
Purchaser, Cent. Dig. | 89; Dec. Dig. { 34.*]
2. vsndob aho pubciiasea ^ 44*)— con-
stbuction of coktbaot — amount of
Land.
While contracts of hazard in the sale of
land are nlid when clearly established and
fair and reasonable, Uiey are not favorably
re|;arded by courts of equity, the presumption
bemg where parties contract for the payment
of a gross sum for a parc^ of land upon an
estimate of a given quanti^ that the qnan-
Uty infinenees tbe price and tbat the agree-
ment Is not (me of hasard, whidi presnnption
can be overcome only hy dear and cogent
proof.
[Ed. Note.— For other cases, see Vendor and
Purchaser, Gent Dig. H 69-76; Dec. Dig. |
44.*]
Ai^>eal from Oircult Court, Sussex County.
Action by A. J. Wardell against M. I*
Birdsong and others. Judgment for defend-
ants, and plaintiff ia>peala. Beversed and
remanded.
Thoa. H. Howerton, of Waverly, and Wm.
B. Cock^ of Sussex, for aKwllant R. H.
Uann, of Peterabnrs^ tor appellees,
OABDWELL, J. Bl Ll Birdsong on July
2, 1004, conveyed to B. R. Birdsong, by the
general description, "a tract of parcel of
land in Sussex county containing 700 acrea,
more or less, and adjoins the land of E. a
Land and R. L. Dobie and others," which
deed, though absolute on its fhce, was In
reality a mortgage given to secure certain
indebtedness of the said M. L. Birdsong to
B. B. Birdsong, B. T. Birdsong, and F. U
Birdsong, and whereby said H. L. Birdsong
remained the owner of the proper^ convey-
ed, subject to the said mortgage. A certain
pmrtlon of this tract of 700 acres of land was
separated ^m the main body of the tract
by a county road, and this separate portion
of tbe land was by alt concerned aniqpoaed to
contain about 200 acres.
On December 1. 1907, H. It. Birdsong
agreed to sell and convey unto John O. Haw-
ley "200 acres of land, more or leas, lying,
being and sitoate in * * ■ maiSsteilal
district, Sussex County, Virginia, bounded by
•For etlwr csms pm hbm topl« and Mctlon MUUBEB <n Dm. Dls. 4 iun. Dlf. KvyNth Ssriw A Rap'r Indeus
t lUbearUis denied Sapumbtr U. lUS.
Digitized by
Google
WABDEI«L T. BIRDSONO
665
the lands of Gnj Lumber CompauTt the
main run on Assamoslc Swamp and tbe main
county road leading from Warerly to Sussex
county courthouse," at tbe purchase price
of (1,250, but with a provision for abatement
If the ficreage fell below 185 acres, and
providing for a subdivision and survey, If
desired, of which purchase price Hawley
paid $100, and tbe contract was to run for
one year, with a right to declare It forfeited
after that year, which right was not exer-
cised.
A short while before March 11. 1909, A. J.
Warden, who bad theretofore resided In the
state of Ohio, came to the town of Waverly,
Sussex county, where he met Hawley, who
was doing business in said town as a real
estate agent, and with Hawley Wardell look-
ed at certain lands, including the tract sup-
posed to contain WO acres Just mentioned,
the boundaries of which they went partially
over, with the view of a sale thereof to War-
dell; and on March 11, 1908, Hawley and
Wardell ^tered Into an option contract giv-
ing to Wardell the right to purchase, within
a stated time, certain lands which Hawley
had tor sale, including the so-called 200-acre
tract By the terms of this option contract
Wardell had the right to purchase said 200-
acre tract "at $1,700.00, tf taken In lamp, or
eleven ($11) dollars per acre, whatever the
somber of acres are shown to be by a care-
ful snrvey thereof, tbe party of the second
pert (Wardell) to have tbe option of choosing
whether by lump or by the acre at the time
of closing tbe deal finally." At the time of
the making of the option contract, Hawley
showed to Wardell his contract with the
said M. L, Btrdsong for the pnrdiase of said
land. Wardell returned to his home In Ohio,
and after tbe 20th of March, 1900, on which
date his option contract expired, he came
back to Waverly and indicated his intention
to purchase the "200-acre tract," to which
declared Intention Hawley replied tliat the
right to purchase this land had been forfeit-
ed, as tbe time had expired, but said that
he would not be mean about it, and would
arrange with Mr, Birdsong for tbe deed,
which was necessary by reason of the fact
that the title to the land was stiU outstand-
ing in B B. Blrdsong's heirs by virtue of
the said deed Intended as a mortgage, and
for the further reason of tbe nonpayment
by Hawley of the balance of the purchase
price for the land due to M. U Blrdsonft
Hawley furnished Wardell with wliat pur-
ported to be an abstract of title to tbe 200
acres, but waa in fact an abstract of title to
the 700-acre tract wbicdi Included tbe 200-
acre parcel mostly in nndergrowth and small
trees, the lines of which were but partially
pointed out to Wardell by Hawley, and In
the meantime Wardell had asked both Haw-
ley and M. L. Birdsong separately about the
numbur of acres in the tract of land that
he was proposing to buy as his future home,
and eadi of tbon eq^xeind ttfia baUef that
the tract contained abont 200 acres.- Jnst,
before and at the time the deed frinn the
widow and heirs of B. B. Birdsong. of date
April 1st, 1908, conTeylDfi to' Wardell and
his wife the said tract of 200 acres, wan be-
ing wrlttm, Hawley asked Wardell whether
he would teke said latad by tbe lump or by
the acre, to whidi Wardell replied that he
would take It, by tbe lump, as he had in-
tended to do so from the first This deed
when finally executed and dellvraed describ-
ed the land conveyed as containing 200 acres,
more or less, bnt also stated "and it Is under-
stood this land Is b^ng sold by the lamp and
not by the acr&** Settlement was made for
the land by Wardell and wife with Hawley
by paying $1,600 In cash and executing tb^r
note for the balance of the purchase money,
$200, secured by trust deed on the land, the
money and tbe note being received by M. L.
Birdsong. Later, to wit, on April 26, 1909,
Wardell had tbe land surveyed by a compe-
tent surveyor, who reported that the tract
contained bnt 94V6 acres, and that there was
a difference of a few acres In the real bound-
aries thereof and the boundaries pointed out
by Hawley to Wardell prior to the option
contract, and upon which space between the
lines as indicated by tbe survey, and as
pointed out by Hawley to Wardell, tbe latter
had tndlt a modest dwelUng.
Upon the fact of such difference in the
boundaries being brought to the attention of
Hawley, he immediately purchased suflldent
land from the Gray Lumber Company, the
owners of tbe adjoining lands, to make tbe
lines accord with the boundaries pointed
out by blm to Wardell, and forwarded a deed
for this additional iand—OT^ acres — to War-
dell on June 26, 1909, which deed was re-
tained by the latter, as he daims, simply as
an evidence that a mistake had been made.
On the 80th day of August following War-
deU and wife filed their biU In this cause
making Hawley. M. L. Birdsong. and the
widow and heirs of B. R. Birdsong, deceased,
parties defendant thereto, and alleging that
the land In ^estlon was purchased by
complainants, relying on the statements and
representations of Hawley and M. L. Bird*
song that it contained about 200 acres, and
on the redtal in the deed of conveyance of
tbe land to complainants that the tract con-
tained 200 acres, more or less, and that. If
they had not believed said statements and
representations to be true, they would never
have purchased tbe satil land; that they
nevtf purchased this tract of land as a con-
tract of hazard, but beUevlng it contained
about 200 acres; that the widow and heirs of
B. B. Birdsong, deceased, .made a mistake in
conveying said land intending to conv^ 200
acres what in fact tbe conveyance was of
only 94% acres ; and that there was a mate-
rial mistake made by the grantors in said
deed and the complainants in selling and buy-
ing said tract of land. Tbe bill then charges
that the sUteipgita and lapwsentatlpns saade
Digitized by LjOOglC
666
78 SOUTHEASTBBN BEPORTBB
(Va.
by Hawley and M. L. Birdsong that the tract
of land contained 200 acres were false, and
were made to deceive and Induce the com-
plainants to purchase said tract of land for
200 acres, when they knew that the tract did
not contain that nniuber of acres or anything
like that amount of land. The prayer of the
bill, in substance, Is that the said option
contract with Hawley and said deed from B.
R. Blrdsong's widow and heirs to complain-
ants be rescinded and declared null and Told;
that the purchase money paid by complain-
ants for the said land be refunded to them,
with interest; that the deed of trust and note
for the deferred payment be canceled; and
that damages be awarded complainants for
building the house on the land of the Gray
Lumber Company, etc.
The defendants demurred to and answered
tba said bUl, taking the ground in tiielr an-
swer that no false statements or resffesenta-
tlona had been made Inducing comidalnants
to boy the land In question; that complain*
ants understood that the deed for the land to
th^ waa to be a contract of haurd; that
while Hawley did state to oomplalnanbi that
he bought the land for 200 acres conditional-
ly, and bdleved It did contain 200 acres, as
old Borveys in the nelghboirhood generally
oTerraDt and did famish WardeU an abstract
of 1^ 700 acres of land which purported to
be an abstract of 200 acres, and did nuike
a mistake In r^nwsoiting its boundary Unea,
he, Hawley, nerer stated that the tract con-
tained 20O acres as a matter of fisct, and no
mistake had been made in conveying the land
as 200 acres to cMnplalnants, as It was Im-
t^ded that the conveyance shonld be for the
land irrespective of the number of acres it
contained. While M. Lu Birdsong deoies that
he falsely represented the number of acres
In the tract or attempted to mislead the
complainants, he admits that upon being
asked by WardeU as to the number of acres
he "told him that he thought or reckoned it
contained 200 acres."
Upon the hearing of the cause on the
pleadbigs and the depositions of witnesses
taken and filed by the respective parties, the
court overruled the demurrer to the bill and
the motion to strike out certain portions of
the deposition of said A. J. WardeU, but
was of opinion that the complainants had
purchased the land in question under a con-
tract of hazard, and were therefore not enti-
tled to the relief prayed for in their bill, and
accordingly dismissed the bill with costs to
the defendants; and from the decree of the
court so ruling the complainant, A. J. War-
den, survivor of himself and his wif^ ob-
tained this anieaL
[1] The material ftacts in the case are
practically undisputed, and when analyzed
they very <|^early show that the appellant,
who was a stranger in Sussex county when
in search of a tract of land In Yli^la for
his future home be met tipptOeea Hawley and
M. L. Birdsong, who had for sale the tract
of land in question, and that they informed
him that the tract contained, and that it
always had been understood as containing
200 acres; that Hawley, when told by ap-
pellant that he was in search of a small
farm, said, "I have a nice little 200-acre
farm that is my own property, which I have
purchased to make myself a home, and If it
were not that I have to raise a little money
you or no other man could purchase It;'*
that M. L. Birdsong In selling the land to
Hawley believed, as did Hawley, that it
contained 200 acres, "vtrith slight variations
In surveyors* instruments to cover which a
clause was found in aU deeds" ; that appel-
lant reUed on the statements of Hawley and
M. L. Birdsong that the land contained 200
acres and agreed to purchase It, believing
that the tract contained 200 acres except to
the extent that the number of acres might
vary because of "any slight variations In
surveyors* instruments"; and that the land
intended to be sold and which was conveyed
to appellant, Instead of containing 200 acres,
or approximately that number of acres, con-
tained but 94H acres.
It further appears, as is conceded In the
argument, that Hawl^ and M. L. Birdsong
not only believed the property in question
contained 200 acres, more or less, but that
M. li. Birdsong had derived the property
from his father who always thought there
were 200 acres In the tract, and on one occa-
sion sold It for 200 acres; and that "the
entire Birdsong family always thought that
the field contained 200 acres, and referred
to it as the 200-acre field."
The sole question, therefore, presented on
this appeal is whether or not a court of equi-
ty, under the drcumstancee narrated, has
the power and ou^t to decree the relief
prayed in the bill of complaint
It would seem to us shocking to the con-
science of a court of equity to bold that a
purchaser of a parcel of land sold and con-
veyed to him as 200 acres, more or less,
when in fact the acreage is but &4H should
be required to keep and pay the purchase
money for the lan^ although the sellers of
the land, as well as the buyer, believed there
were in the tract conveyed alwnt 200 acres,
and although the conveyance also contains
the clause, "and It is understood this land is
sold by the lump and not by the acre."
There Is no pretense made in the case that
appeUees have been prejudiced or even In*
convenienced by delay on the part of appel-
lant in the tnstitation of this suit to have
the transaction canceled and annulled and
the purchase money paid by him refunded by
appellees.
The authorities are not to the effect that
the mistake in such a case shaU be the result
of intentional or wUlfuI fraud and deceit
in order that the party wronged or Injured
by the mistake may be r^ieved from the
Btrlet tenna of hla otherwiM->lrfnding jcon*
Digitized by VjOOglC
WARDEIX T. BIBDSONa
667
tract, but tbat, wbere the mistake complain-
ad of Is 80 gross as to amount to a fraud
upon tbe injured party's rights, he should
not be required to abide by his contract, if
executory, and if executed a court of equity
has the power to and should relieve him
of the consequences of the wrongdoing or
mistake by rescinding the contract in toto,
provided always that the parties thereto
may be put in statu quo, and. the rights of
Innocent third parties have not Intervened.
In Lee t. Laprade, 106 Va. 6M, 66 S. E.
710. 117 Am. St Rep. 1021, 10 Ann. Caa SOS,
the opinion of this court, quoting from 4
Min. Inst 697, says : "In cases of plain mis-
take or misapprehension, though not the
effect of fraud or contrivance, equity will
rescind the conveyance. If tbe error goes es-
sentially to the substance of the contract,
so that the purchaser does not get what be
bargained for, or the vendor aells that which
be did not design to sell.**
"Thus, if A. buys land of 6. to which B.
is supposed to have a good title, and it turns
out In consequence of facts unknown alike
to both parties, he has no title at all, equity
will cancel the transaction and cause the
purchase money to be restored to A., putting
both parties In statu qoo." 4 Uin. Inst
supra, at p. 700.
[21 Contracts of hazard, such as we are
here considering, have not been discounte-
nanced by the courts when th^ have been
clearly established and are fair and reason-
able, but courts of equity do not regard them
with fitvor tbe presumption being against
them, which presumption la to be overcome,
if at all and effectually, by clear and cogent
proof; and where the parties contract for
the payment of a gross sum for a tract or
parcel of land, upon an estimate of a ^ven
quantity, the presumption is ttiat the quan-
tity influences the price to be paid, and that
the agreement Is not one of hazard. Blea*
sing's Adm'r v. Beatty, 40 Va. 287, in which
case the court held that tbe appellant was
entitled to compensation for the deficiency
of 34^ acres In a tract of 503 acres on the
ground of mutual mistake.
The case Just dted and other cases are re-
ferred to in Boschen v. Jurgens, 92 Va. 756,
24 a E. 390, as affirming the rule of law
stated above, and in the opinion by Eeltb,
P., in speaking of the discrepancy in tbe
deptii of a town lot contracted for as being
138 feet when In t&ct it was only 129 feet
deep, says: "It seems to us that the appel-
lant is in this dilemma: Either her testator
made the representation as to quantity in the
honest belief of the truth of what he said,
in which case the court should grant the re-
lief prayed for, on the ground of a mutual
mistake of the parties as to a material term
in their contract ; or that he made tbe repre-
sentation as to quantity, knowing, or having
reason to know, tliat It was untnu^ la whieh
case the appellee*8 dalm for relief would rest
upon even stronger ground. In Justice, how-
ever, to the vendor, Mr. Boschen, It must be
said tbat there is nothing in this record to
suggest the suspicion that he contemplated or
perpetrated fraud**— ^nd tbe relief prayed
was decreed.
In Belknap v. Sealey, 14 N. Y. 143, 07 Am.
Dec. 120, Involving a contract for tbe sale of
a tract of land In gross, by reference as to
quantity to a deed describing the land as
containing "about nine acres, be the same
more or less." from which one acre and six
perches had beea aold, but whidi proved to
contain only about half as much as represent-
ed, and which was mainly valuable for divi-
sion and sale as city lots, and Its value there-
fore being precisely In proportion to quantity,
the court said in its opinion: "A deed whldi
describes the land and states the number of
acres, although with the words 'more or less,*
clearly imports that there Is not a great
defldeni^ or excess. If tbe de&ci«icy is on^
half, the Instrument carries on its face a
gross misrepresentation; And it Is quite ma-
terial to observe that such words do not Im-
port a special engagement that the purchaser
takes the risk of tbe quantity. Their pres-
ence in a contract or deed may render it
more difficult to prove such a mistake as
will Justify thQ Interference of equity, but
they are not equivalent to a stipulation Uiat
the mistake when ascertained afaall not be
a ground of relief."
As held in the opinion of this court in
Boschen v. Jurgens, supra, though the seller
of land made a false representation as to
quantity in the honest b^ief of tlie truth of
what he said, yet a court of equity should
grant the relief prayed on the ground of
mutual mistake as to the material terms of
the contract between the parties. See, also,
Estes V. Odom, 91 Ga. 600, 18 S. D. 8S5.
In the case at bar the mistake of the par-
ties sdllng the land as to the number of
acres It contained was so gross as to amount
to, and In all respects to be the equivalent of,
a fraud upon the rights of appellant and
this appears from tbe undisputed facts in
the case as well as from the preiwnderance
of tbe evidence, and therefore tbe mutual
mistake charged has been established, and it
is to be presumed that quantity influenced
tbe price paid for the land, which presump-
tion has not been overcome by any fact or
facts proved; and, the very brief delay in
ascertaining the deficiency in the land being
satisfactorily accounted for, we are of opin-
ion tbat the circuit court erred In denying
the relief prayed in appellant's bill.
The decree appealed from is reversed, and
the cause remanded for further proceedings
therein not in conflict with the vlawi «z-
pressed In this oplnloiL
KEITH, absent
Digitized by Google
78 SOUTHEASTERN BEPOSTEB
a« Ta. fi)
CITIZENS' BANE OT NOBFOLE t. KOB-
FOLK & W. BT. CO.
(Bapnni* Gonrt of Appeals ci Tir^nla. June
J2, I&IS.)
1. GUARAIfTT (S 4*)— CON8TBCOTXOH OT COIT-
TBACT8.
A railroad company In acknowledging re-
ceipt of aBaisnmenta of coal hj its line wrote
to the abipper that they would deliver the
coal on the order of a bank named with the
"underataodlnK and ffQarantee of the bank
that all freight and demarrace charges aecra-
fng on Boch coal will be paid hj the bank as
presented/' and reqneated tltst the uecessair
i^reement b« drawn np and executed by the
bank, to which - the bank replied that ther
wrote "to coafirm oar agreement to pay the
jast freights and demurrage charges on coal
coTered br thia assignment." Held, that the
letters constitoted an agreement by the bank
to itself pay freight and demurrage charges
on the coiU, and not merely to guarantee their
paymenL
[Ed. Note.— For other cases, see Guaranty,
Gent. Dig. {{ 3-«; Dec Dig. I 4.*}
2. Cabbisw (1 196*)— FmOHT— AonoNS roB
DDfUBEAOB— SmnoatnoT or Svidbnce.
EMdence In a proceeding bj a railroad
company to recover demurrage on coal ship-
ments ield to show that the railroad compa-
ny did not waive Its right to demand am»aid
freight and demurrage, or do anything which
would lead a reasonably pradent person to be-
lieve that it had waived such right
[Ed. Note, — For other cases, see Carriers.
Gent. Dig. || 87&-^; Dec. Dig. i 19a«]
8. CABBiEBa (I 100*)— Frbohx— Patiixht of
Dehitbbaok Ghabgbs.
Where a bank which had agroed to pa7
the freight and demurrage charges on coal
shipments stated in answer to a communica-
tion from the railroad Company as to what
kind of notifloation It desired of the consign-
ments that -notificati<nt of the shipments in
transit was suffident; tiie bank could not aft-
erwards claim that demurrage could not be
recovered unless it was notified of the arrival
of the ears by a notice containing the point
of shipment. Initials, numbers, and contents.
[Ed. Note. — For other cases, see Garrien,
Cent Dig. SS 427-rl33; Dec. Dig. | IQO.*]
4. CABBiERa (S 100*)— Fbsioht— Deuubrage.
The fact that terminal yards on which
coal cars stood were six miles in length, so
tiiat the cars were not actually on the pier
at thdr final destinatiMi, would not make them
not subject to demnrrage while standing in
such yards awaiting the convenience of the
consignee or the arrival of the vessel into
which th^ were to be loaded; the leaving of
the cars in the yards not havliis pi«jadlced
the consignee.
[Ed. Note.— For other caaea, see Carriers,
Cent Dig. H 427-433; Dec Dig. | 100.*]
En»r to Lftw aad Obonoery Goiirt of Glt7
of Norfolk.
Proceedinga b7 Oie Norfolk ft Western
Ballway Company agalnat Uie GitiBeDtf Bank
of NozAdk. Jndgment for plalnttff, and de-
fendant brlnga error. Affirmed.
J. O. Martin, of Norfolk, for plaintlfr In
error. Hughes, Little A Seaw^ of Nor-
folk, for def»dant in error.
BUCHANAN, J. The Norfolk ft Western
Railway Company proceeded by notice and
motion, under aecdon 8211 of tbe Oode^
against tbe Catteens* Bank of Norfolk to z«-
cover freight cbargea and demurrage on coaL
Tluve vas a verdict and Judgment In faTor
of the railway company. To that Judgment
this writ of error was awarded.
Tbe court gave two instmctlons to tbe Ju-
ry upon motion of the railway company,
and dedlned to gtve tbree Instructions asked
for, by Qie baxdc Tbls actltm in giving and
ntfiislng Inatrnctlims is assigned as error.
By Instruction No. 1 givm for tbe rail-
way company, the Jury were told that tbn
bank In agreeing to pay all Just fre^t and
demurrage charges -on coal covered by tbe
McBae assignment became primarily revon.
slble for all sucb charges, and was liable to
-the railway company for so much Oiereof aa
might be sbovn to remain unpaid.
It an>earB that for some time prior to the
year 1910 a 7. HcBae bad been doing busi-
ness in Norfolk as a coal dealw, iii»«diifig
coal in ckr load lots consigned to bim In
various consigning names fnmi mines In the
state <tf West Virginia, and carried by the
railway company for transsbipmeait from Its
piers at Lamberfs Point On the 5th at
May, 1910, UcBab executed an astignment to
the bank as agent of tbe Consolidated Coal
Company, and on the 15tb day of Jtme fol-
lowing he executed two assignments to the
bank individually of all coal that was then
or tbat might be consigned thereafter to
him under his consigning names. These aa>
atgnments, so for as they involve questions
for decision in thia case, are substantially
the same, and by tbem UcRae, for value re-
ceived, asdgned to the bank all cars of coal
tbat were then on tiie traclu of tbe railway
company, either en route to or at Lambert's
Point On the I2tb of July following the
railway company acknowledged the receipt
of the McBae assignments, and wrote : "We
will acce^ this assignment and deliver sucb
coal on tbe order of the Oltlzens* National
Bank of Norfolk with tbe understanding and
guarantee of the bank that all freight and
demurrage charges accruing on sucb coal
will be paid by the bank as presented. Plrase
have tbe necessary agreement drawn up and
executed by tbe tMUik."
On tlie 15th of the same month the bonk
wrote to the railway company as , follows :
"Referring to conversation of yesterday re-
garding letter from Mr. Spangler aco^tli^
the assignment from 0. 3. McRae to this
bank, we write to conOrm our ^reement to
pay the Just freights and demnrrage chaises
on coal covered by this assignment and au-
thorise delivery to Mr. CL J. McRae as agent
for the bank on til notice Is given to the con-
trary."
Pursuant to this agreement the bank paid
freight and demurrage charges on coal ship-
ments covered by the said assignments until
pctober 10, 1910, when it wrote to the rail-
way company terminating the
•For otaar I
I see SUM topte sad seottoa MmCBIB la Deo. Dig. ft Am. Dig. Ksy-Ns. Ssrlis A Kw'.
CITIZENS* BA?iK OF NORFOLK v. NORFOLK A W. RT. CO.
Q60
ment, to take effect aa of the 12tti of that
month.
[1] There can be no qDestlon that tj the
terms of the letter of the railway company of
July 12th, and the bank's letter of July leth,
the bank expressly tindertook and agreed to
pay all sucb freight and demnrrage chaises
on the coal covered by UcRae's assignments
to It, and did not as the bank insists merely
guarantee such payments. While there had
been conrersatlons and commnnicatlons be-
tween the agents of the railway company
and the agents of the bank In reference to
the matter prior to the letters of July 12
and 16, 1910, those letters evidence the un-
dertaking and agreement of the parties.
Whether the bank was primarily liable for
such charges or had merely gnaranteel their
payment as claimed In instruction "A" of-
fered by it was a question for the court,
and not for the Jury. The court did not,
therefore, err In giving Instruction No. 1
offered by the railway company, or In vefoa-
Ing to give Instroction A aaked for b7 the
bank.
Neither do we think the court erred In
giving instruction No. 2 offered by the rail-
way company, nor In declining to give in-
struction G asked for by the bank, which
was in conflict with the former.
By the instmction given the Jury were
told that the delay of the railway company
In presenting its final acoonnts did not con-
stitute a waiver it of its demand against
the bank. That demand consisted of freli^t
ftnd demurrage charges on coal shipped on
or before October 12, 1610, at which time
fbB bank by letter terminated, as It had the
light to do, Its agreement to pay freight and
demurrage charges' on shipments made there-
after to M^Iae. T)kat letter la aa follows:
"Thla will notify yon that the relations
existing betweoi Mr. a J. McBae and onr-
■elTes ander an assignment from him- to ns,
a eapy ot which has beoi filed with yon, by
whldi he assigned all bis Interest In all coal
shipped to him, win be terminated on and
after Wednesday, October 12th, 1010, and
from that date yon will please lopk to Mr.
McRae fOr Qie payment of all charges due on
•coal consigned to him. Tor coal shln^
to Mr. McRae covered by said aaslgnment
prior to that date we will be responsible
for the freight and demurrage diarges as
heretofore, and will notify your local agent
what disposition to make of this coal.
"In order to avoid confndon, we wonld
thank yon to send us a statement of the car
numbers and their weight, if any, which
may be consigned to Mr. McRae before the
12th Insf
In that letter the bank recognizes that It
is liable to pay all freight and demurrage
charges on coal shipped to McRae prior to
that date In It the bank asked for a state-
ment of the car numbers and weights of
coal that were shipped to McRae before the
12th of October, 1910. This letter was re-
ceived by the agent of the company to whom
it was written, and referred to the comp-
troller of the railway company. On the same
day the comptrolla'. without r^erence to
that letter (and perhaps before It had been
received by him), wrote the bank advising
of a draft for Jnne demurrage, and calling
attention to the fact that the bank had not
teken it up with the railway company as
suggested in its letter of August 13th. On
October 13th the bank returned the draft
with the stetement that the matter •*!« now
In dispute," and asked the comptroller to
telegraph exactly how much freight the bank
was responsible for. This was not done be-
cause, aa the bank knew, the railway com-
pany did not have and could not obtain the
information desired until the coal was actu-
ally delivered at Lambert's Point On Octo-
ber 18th the railway company drew on the
bank for certain freight charges on coal ship-
ped prior to the 12th of that month, and two
days later the bank wrote that it had paid
the drafts, and concluded its letter with the
Btatem^t tiiat: "On the basis of our letters
of October lOtli and- yonr reply ot October
11th, we aasome that you have no other
chancss against ns for any coal shipped dur-
ing the life of Oie aaslgnmeot*' Upon the
receipt of that letter, and on the zkext day
after It was written, the eomptxvllw of the
railway ennpany wVoto: "I wlM loOk Into
the matter, and If there are any additional
cars for wbldi drafts should have been made
will see that tttey are drawn for immediate-
ly, and will also endeaTor to render you for.
nial account aa soon aa eara covered by these
drafts above mmtioned are finally disposed
of and deliveries made to Teasels.'* On the
2d of NoTonber following the railway com-
pany rendered purported to be the
final account and the total amount due to It
from the bank for freight and demnrrage. ■
On the 7th of that month the bank wrote to
the railvray company in reply to its letter
of the 2d Instant as follows:
"Tour letter of the 2d comes to us as a dis-
tinct surprise.
"In regard to the demurrage charge, If
it proves to be Just, this bank is liable for It,
but Mr. McRae declines to admit Ite cor^
rectness, and we feel Justified in withholding
settlement for same until it Is adjusted to
his satisfaction, so please take up the mat-
ter with McRae and get his 'O. K.* to the
claim.
"As to the additional charge of $2,066.66
we cannot admit any responsibility for the
reason that It was understood that weekly
drafts (which have been promptly paid),
covered the freight on all coal as shipped.
"To prevent any misunderstanding, how-
ever, after our notice of October lOUi that
arrangement would twmlnate on the 12th.
we wrote October the ISth requesting yoo
to telegram ns exactly how muc^t trdtfit
Digitized by VjOOglC
570
78 SOUTHEASTERN REPOBTBB
(Va,
we are responsible for,* to whlcb no reply
was received, hence we assumed, as stated
in our letter of October 20tb, that drafts
paid that day of $553.00 and $226.00 covered
all outstanding freight charges for which
we were liable under the assignment, and
therefore released to Mr. McRae the coal
then on the tracks amounting to over 6^000
tons, which was duly shipped by him, and
we now bare no security for any additional
freight, but we think, if you are able to
satisfy Mr. McBae that fre^ht now claimed
is due, he will arrange to settle with you."
On the Uth of the month the raUway
company wrote the bank that. In addition to
the account rendered on the 2d instant, there
was another Item of $U33 for demurrage ac-
cruing during the month of October. This i
last item ought to have been included in !
what purported to be the hnal account ren- 1
dered by the railway company Movemb^ j
2d, but no prejudice, so far as the record
shows, resulted to the bank by reason of Its
omission, for it appears from the bank's
statement in its letter of November 7th and
from other evidence in the case that it had
on and prior to the 20th of October preced-
ing released to McRae the coal then on the
tracks amounting to over 6,000 tons.
[2] It (dearly appears from the corre-
spondence quoted and referred to above, and
from the other evidence In the cause, that
nothing done or said by the railway com-
pany was intended to waive, or could have
misled any reasonably prudent person Into
having that it had waived Its right to de-
mand and recover from the bank ail the un-
paid freight and demurrage charges which
the bank undertook and agreed to pay under
Its agreement with the railway company.
[8] By instrucUon B offered by the bank
the court was asked to Instruct the jury that
d^nnrrace could not be recovered, unless the
•Jury bdiered from the evidence that the
railway company notified the bank in writ-
ing, or aa otherwise agreed by the railway
company and the bank (If they believed that
there was any other agreement) of the ar-
rivals of the cars, and that such notification
contained Uie point of shipment, car Initials
and numbers, and contents. This action of
the court In refusing to give that Inatmc-
tlon Is assigned as error.
On March 12, 1909. Spangler, superintend-
ent of transportation of the railway company,
wrote McBa^ calling bis attratlon to the fact
that some shippers or consignees d^ired
daily notices of arrival of coal by car num-
bera, while others preferred a notice showing
the number of cars on hand at Norfolk and
the number In transit between Bluefleld and
NOTfolk, and requested him to Inform the
railway company which of these methods of
notice he i^erred, and to what address notio-
es should be sent On the ISth of the same
month McBae rejdled to that letter, and
stated tliat giving notice of tonnage already
arrived at Lambert's Foint and that m route
there was preferably and Chat sudi notice
to him at Norfolk would be soffldent This
form of notice waa thereafter used by the
railway company in aU Its dealings with him,
including the period in controversy. By the
assignment of Hdtae to the bank, the rail-
road company waa directed to deliver flie
coal so assigned to McBae as the bank**
agent, which was done. The bank never
raised any question or made any <^eeUon to
the method of giving notice Indicated by Ho-
Bae until after its letter terminating Its
agreement to pay freight and demurrage
<diargea, but recognised In Us lettw of No-
vember 7» idlOf and othwwtae, as apfimn
from the evidmce, its liability for fho demur-
rage diarge if It proved to be Just. The bank
through its agent, McBae^ had notioe of the
manner in whldi notice of ooal shlinnents
were given and acquissoed therein during
the period the assignments were in forob
Ttn court thoefore properly refused to give
the bank's instruction B, which declared that
the demurrage sued for could not be recov-
ered unless notice of dilpmoits of coal waa
given as Indicated in the instruction.
The remaining assignment of error to be
considered Is tlie refusal of the court to set
aside the verdict of the Jury.
The case having been, as we have seen,
submitted to the Jury without error on the
part of the court, the only question upon
this assignment of error is: Is the verdict
sustained by the evidence?
[4] It is contended by the bank that the
railway company had no right to charge de-
murrage until the cars of coal were at Lam-
bert's Point for delivery of the coal into
vessels. It appears that the terminal yards
of the railway company extend from Lam-
bert's Point piers to Portlo<&, a distance
of six miles. All coal Intended for Lambert's
Point piers comes in at the Portlock end of
the terminal and is then sent through to the
piers as vessels are ready to receive It Until
coal Is called for by the consignee, It remains
on the terminal yards at any convenient
point and demurrage Is charged dpon inter-
state shipments (as the coal In this case was)
In the manner prescribed by the Intestate
Commerce Oommlasion. By rule 1 of that
Commission, In force at that point It la pro-
vided that "cars containing coal shipped to
Norfolk or Lambert's Point Virginia, or
transshipment direct to vessels or to be
stored for shipment by vessels, when held
for or by consignors or oonalgnees fbr imload-
In^ forwarding dlrectlm^ or fbr any other
purpose^ shall be subject to these mles." By
rule 8 It Is provided Uiat the date of arriTal
of car at Norfolk terminals shall be subtracb-
ed from the date of the arrival of vessel Into
which it Is unloaded, or from the date ttie
car is otherwise released, and the dlfterenoe
between those dates will constitute the total
days detention, and this difference less ttu
free time provided for by
Digitized
BPBIOaS T. JAACBBSOH
B71
sUtntes the demurrage time for which $1
per car Is to be charged for the nnmber of
days detention beyond the free tlm& The
evldenoe showed that the demnrrage sued for
was based upon these roles. The cars were
upon the terminal yards of the railway com-
pany at Norfolk. The fact that those yards
were six miles In length and the cars were
located at varlona points on them and not
actually on the pier at Lambert's Point
furnishes no reason why demurrage should
not be paid on those cars for their detention
while awaiting the convenience of the con-
signee or the arrival of the vessel Into whidi
they were to be loaded ; for under the rules
of the Interstate Commerce Commlaslon de-
murrage charges ceased upon the arrival of
the vessel There is no evidence tending to
show that placing the cars at various points
on the tennlnal yards and not at Lambert's
Point during the tln» demnrrage was
charged in any way inejndloed the banlc.
Upon the whole ease the court Is of opin-
ion that there is no error in the Judgmott
complained ot, and that It should be afflrmed.
Afflrmed.
{OS Vs. wt)
SPBIGOg et aL V. JAMBRBON.
(Si^rane Court «t Anneals of Virglnfa. Jane
12, ms.)
1. Appux and Bbbob (I 843*)— B«vnBV—
Uattub Not Necesout to Dicisioit.
Tbe court will not construe Code 1904, |
8S92, provldiog that not more than two new
trials shall be granted to tbe same party in
the same cause, where the motion for a third
new trial was properly overruled Iv the trial
court
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. » 8331-^dll; Dec. Dig. }
843.»J
2. BnconmiT (t M*)— Bvinniroa— iDEifTrrr
or LuiD.
In an action of ejectmuit, evidence held
not sufficient to Identl^ the land oumpied by
the defendant as the land clsimed by the
plaintiff 1.
[Ed. Note.— For other cases, see EJectmrat,
Cent. Dig. % 279; Dec. Dig. f 04.«]
8. BjBonc^irr (18*)— Dnnnas— Faixubb to
01.4111 TrnJt-^BiiiTCT.
*Xlie failure of the defendant to claim ti-
tle or right to the premitea sued for In eject-
ment cannot be considered in determlDing the
Identity of the land, where the plaintiffr ev-
idence talis to make a prima fade case W
that point
[Ed. Note.— For other cases, see Ejectment,
Cent Dig. H 16-29; Dec. Dig. | fl.*!
4. Appsal and Erbob (<> 837*)— Subsbqubnt
Appbals— RxcoBO oh Fobmbr Appbai..
In passing upon the sufficiency of evi-
doice to support a verdict of the jury, the
court cannot look to tlie record of the evi-
dence introduced at m former trial of the
same case.
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. |1 3262-3272, 3274-3277,
3289; Dec. Dig. { 837.*]
A. E^ECTUBAT (I 8*)— TiTLB O^ PLAXNTIIT.
As a general rule a plaintiff, to recover
in an action of ejectment, must derive titie
from the commonweallh by a proved or pre-
sumed grant or establish title by adverse pos-
session.
[Ed. Note.— For other cases, see Biectment,
Cent Dig. H 16-28; Dec. Dig. | 9.*]
6b mvmaan (| 9*)— Fuob Possbwioh «
Plaintiff.
Where the defendant in. ejectment enter-
ed upon tbe peaceable possession of tbe
plaintiff without title or authority, the plain-
tiff may recover without proof of title.
[Ed. Note.— For other cases, see Ejectment
Cent Dig. U 16-29; Dec Dig. | 9.*J
Error to Circuit Court, Buckingham County.
Action by one Sprigga and others against
J. D. Jamerson. Judgment for the defend-
ant, and plalntlfla brii^ error. Affirmed.
Harrison & Long, of l^nchburg, for plain-
tiffs in error. A. B. Dlddnaon, of Bichmond,
flor d^^ndant in oror.
BUCHANAN. J; This la an action of eject-
ment In which there have been three trials.
In each of them there was a verdict for the
defendant The first verdict was set aside,
upon the motion of the plaintiffs, by tbe
trial conrt; wheUier for errors of law In sub-
mitting the caae to the jury or because tba
vwdlct was not sustained by the evidence
does not ajqwar. The tzlal court reused,
upon motion of the plalntlfb, to set aside
the verdict on the second triid, but upon a
writ of emff to tills court its judgment was
reversed fi>r errors of law, the verdict set
aside, and the cause remanded for a new
triaL Coles' Heirs, eta, v. Jamerson, 112 Ya.
311, 81T, 71 & Bb 618. Upon such new trial
ttiere wad a verdict again for the defendant,
which the plalntlfni moved to set aside, bat
the conrt overruled the motion and entered
judgment thereon. To that Judgment this
writ of error was awarded.
[1] The defendant Insists that the trial
conrt had no power to set aside the verdict
rendered on the last trial, and that even If
it had there was no error In tbe proceedings
for which it could have done sa
By section 3392 of the Code It Is provided
that "not more than two new trials shall be
granted to the same party In tbe same
cause." Although tbe provision quoted has
been In force In this state for more than a
century (Statutes at Large [New Series] voL
1, c 16, I 33), it has never been passed upon
or construed by this court In any reported
case. The same, or substantially the same,
provision is In force in a number of the states,
and there Is much diversity of opinion among
them as to Its ^ect See 2 Thompson on
Trials (2d Ed.) S 2727, and notes; 29 Oyc;
729-732; 3 Cyc. 457; 14 Bncy. PL ft Pr. 992-
995. In some jurisdictions It is held not to
restrict the common-law right of tbe courts
to grant new trials for errors of law, but
only from grantbig new trials upon the
ground that the verdict Is not sustained by
the evidence. See ^Isbo Lucas, S3 111. 479 ;
Trott r. West. 10 Terg. H^nn.) j4Q9; Kn<
*For ottaer csms see stme topic and SMtioa NUKBBB In Des. Dig. * Am. Dig. Keyi^^'il^
572
78 s6uthbastb!rm befoboxb
Tllle Inm Go. t. Dodaon, 8? 'Sena. (IS Lea)
109, 410, 4ie. 417; Barton t. Bnabe&r, 8 A.
K. Afanfa. (Kj.) tlSO, 1138; WUdy t. Bon-
ney's Adm'r, 86 Hiss. 77; Slilrts t. Irons,
47 Ind. 446, 460; Harrison t. OadMUn, S3
Mo. 117.
In West Tlnlnlft It la hdd tbat not more
than two new trials can be granted to the
same party in the same canse, although one
or both the Terdleti was set aside fbr ml»*
direction of the court or tot errors of law
(Watterson Moore. 28 W. Ta. 404; Wll-
llann t. Etwart; 28 W. Ta. 600, 2 S. BL 881);
and to the same effect were the earlier de-
dslonB In ttie state of Indiana. Boberte t.
Bobeson, 32 Ind. 4B6; Jndab t. Trustees, 23
Ind. 272. There Is a like diversity of opin-
ion as to whether the provision in Question
an>lles to the trial court alone or to both
the trial and appellate courts. That swA
atatutes do not apply to new trials granted
In the appellate court was held in III. <^t
By. Ca V. Patterson, 93 in. 290; Wlldy v.
Bonney*fl Adm'r. 36 Miss. 77 ; Shirts r. Irons,
47 Ind. 445. In Tennessee, Kentxuiky, and
Indiana it is held that it applies to appellate
courts as as to Oie trial court, where
the new trial Is granted the anwDato
court upon the merits of the tects of the
case, but not where the Judgment is reversed
for erroneona rtdli^ of the lower court in
the trial of the causa KnoxvlUe Iron Go.
V. Dobson, 88 Tom. (16 Lea) 400, 418-418;
Bniton T. Brashear, 8 A. K. Harsh. (Ky.)
lisa U88; Shirts v. Irons, 4T Ind. 445, 450.
The constitatlonaUty of the TennesBee
statute (which Is identical with ours) was
attacked in Louisville, etc., By. Go. v. Wood-
son, 134 TT. 3. 614, 10 Snp. Ot 628, 33 C Bd.
1082, upon the ground that it violated the
provisions ct the fourteenth amendment to
the GonstltutiMi of the United fitetes^ but
its Talldlt7 was sustained upon the ground
that as construed in that state It did not de>
prive the courte of the right to set aside
more than two verdicte where the ground for
setting aside a later verdict was for erao-
neous rulings of the court in the submission
of Uie ease to the Jury and not upon the mer-
its. No opinion is expressed In that case as
to whether or not the stetnte would have
been held valid If it had been construed to
deprive the courte of the rl^ to set aside
ft third verdict for vroneons rulings of the
court as well as uiMn the merits.
Since there Is such a divinity of opinion
In other JurisdlcUona as to the proper In-
torpretatlon of the stetnte In question, and
as ita eonstmctlon is not absolutely neces-
sary to a disposition of this casc^ because
the action of tlie trial court in refusing to
set aside tlie third verdict was clearly right
upon the morlts, this court ought not to un-
dertake to declare the meaning or effect
of the stetute until a case arises In which
Its construction Is required In (»der to dis-
pose of the case.
[1] The verdict of the Jury fn fhvor of the
defendant was based upon .the ground, as
steted therein, that the evidence telled to
Identic the land sued for. The will, codldls
thereto, and conveyances Introduced in evi-
dence and relied on by the plaintiffs to show
that they had title to the land sued for do
not describe the land tof metes and bounds,
or othovise^ so as to sliow tliat it la the
land described In the declaration.
Tb» plalntlfte introduced a witness named
Hays, who tmtlfled: "That he was 84 years
old, and had been acquainted with the land
occupied by the d^endant for 20 years ia
more; that he had lived there tot about 4
yeara with his parente; that they rented the
land <^ X Monroe OiOea; that he had ac-
companied his tether when he w&A to pay
rent; that It was the very same land now
occnj^ by the defendant; that the defend-
ant had been in possession ot the Isnd be
believed for 8 or 8 years; that he knew of
no other lands In BncUngham county owned
by J. Monroe Goles; that he did not know
whether Monroe Goles had any deeds to the
land or not or whether Mr. Heem, of Lynch-
burg, had ever owned the land, nor did be
know how many acres were in the tract.**
This witness (and he was the only witnees
wbo testified as to the Mmti^ of the land)
does not show that the land sued for was
the same land aa that occupied by the de-
fOndant While he stetes that his father
-rented the land which the dtfendant was
in possession of from Monroe Coles, through
whom the plaintiffO dalm, lie testlfles that
he does not know that Monroe Goles bad
any conveyance for tt; or that BCr. Meem,
through whom the plaintiffs daim, ever own*
ed the land te the possession of the defend-
ant The witness* stetement that he knew ot
no other lands in Buckingham county owned
by Monroe Ooles does not show that Goles
did not own other lands In the county. Nd,-
ther does the fact agreed, that M<mroe Goles
did not by his will devise any land In Bm^-
tinham county, ahow that the land sued for
is the same land as that In the possession of
the defendant
Olvteg the evidence, written and oral, In-
troduced by the plaintiffs all the wdght that
It is entitled to. It cannot be aald that tt
satlstectorUy shows that the land whiOh the
plalntlfls sued to recov^ was the same land
that was in possession of the defendant
[<] It is suggested In argument that the
failure of the defendant to steto in his
grounds of defoue under what title be
claimed, or that he claimed under any title
or claim of rlgbt, and Us failure to intro-
duce any evidence whatever, shows that he
was a mere Intruder on the land in his pos>
session, and that these facte should be con-
sidered in passing upon the question of the
identity of the land.
[4] Until the plaintiffs had made out a
prima fade case for recovery by showing
th^ rlgbt to the possession of the land sued
for and Identifying ^'H^Sat-d^S^^t
SUTF T. WXLOH
673
wa« not leQulred to show In what manner
or b7 what title he obtained or hdd posses-
sion, and his faflnre to do what he was un-
der no obligation to do could not strengthoi
the plaintiffs' case. If the erlden^ In the
case, as shown bj the record upon the for-
mer writ of error, bad been before the }ury.
It may be It would have been sufficient to
have Identified the land, as the plalntlffa'
counsel insists; but, while this court may
look to that record for some purposes, the
question of whether or not the rerdlct of
the Jury upon the last trial should be set
aside because contrary to the evidence can
only be determined by a consideration of
such evidence as was before the jury.
[B] Bnt even if the evidence had been suffi-
cient to Identify the land la the possession
of the defendant as the land described In
the declaration, the Jury could not rightly
have found a verdict in favor of the plain-
tiffs. The general rule Is that the plaintiff
In an action of ejectment must recover solely
upon the strength of his own title, and not
on the weakness of that of the defendant,
and the plaintiff's title mtmt be a legal title.
The title to be proved by the plaintiff In or-
der to entitle him to recover, as a general
rule, must either be a grant from the com-
monwealth, with which he connects Mm^^Tf
by a regular chain of title, or he must prove
such a state of facts as will warrant the
Jury in presuming a grant, or as will show
adversary possession for the statutory pe-
riod under a claim or color of title. Sulphur
Mines Co. v. Thompson's Heirs, 93 Va. 293,
309, 310, 26 8. B. 232; Tapscott v. Oobbs, 11
Grat (52 Ta.) 172, 174; Va. Mid. R. Co. v.
Barbour, Rec'r, 97 Ya. IIS, 122, 33 S. E. 554.
The plaintiffs made no effort to connect
themselves with the commonwealth, nor did
tliey show such a state of facts as would
have Justified the Jury in finding that they
had legal title to the land.
[8] But there are exceptions to the rule
as well settled as the rule Itself. The ex-
ce{)tlon relied ou In this case to take it out
of the general rule is that the defendant,
without title or authority, intruded upon the
plaintiffs or their ancestor, twbo was In
peaceable possession of the land when the
defendant entered and took possession. Tap-
scott V. Cobbs, supra. This contention Is not
sustained by the record. The evidence does
not show that the plaintiffs' ancestor, Mon-
roe Coles, was In the possession of the land
when he died ; neither does it show that the
plaintiffs were ever In jwssesslon of it, nor
that the defendant had tortiously entered
upon it
Upon the whole case the court Is of opin-
ion ttiat there is no error in the Judgm^t
complained of and that It should be af-
firmed.
Affirmed.
CARDWELI4 J., absent
ai5 Vft. 74)
HUFF «t sL V. WBJLCa.
(Supreme Court of Appeals of Virginia. June
12, 1913.)
1. Wills (| 330*)— Testahbrtabt Ihoapaoztt
— EviDBNCK— I KsraucnoHs.
Where, in a suit to contest a will on the
ground of mental incapacity of testator about 78
years old at the time of the executioQ of the
will, the testimony of the attesting witnesses
and neighbors sliowed testuneotary capacity,
iDstmctions correctly defining mental capacity
to execate a will by one enfeebled by age and
placing the harden of proof on proponent suffi-
ciently submitted the issues, so that the refusal
of requested instmcClons was not erroneous.
[Ed. Note.— For other cases, see Wills, Cent.
Dig. H 779-781; Dea DigriBBO.*]
2. Wiua (» 60*)— TsBTAianrrAXT Oapaoiit.
One who has sufficient capacity to under-
stand the nature ot the business in which he is
engaged in the execution of his will to compre-
hend generally the extent <^ his estate and to
recollect the objects of bis bounty, and to as-
sent to the provisionB of the will, poBSesses tes-
tamentary capacity.
[Ed. Note.— For other cases, see WiUs, Oeot.
Dig. H 96-100; Dec. DU- I 60.*
For other definitions, see Words and Phrases,
vol 8, pp. 6929-^14
8. Afpbaz. and Ebbob (I 1002*>~Bxv]XW—
CoimjcnNQ Evidence.
Opinions of witnesses that testator was not
competent to make a will based ou tacts not
sustaining the opinions do not conffict wl^ evi-
dence of witnesses to facts Aowing testamentary
capacity at tbe time of the execution of the wilL
and who unite in stating that tsstatoi's mind
was then clear and good, and he knew what be
was doing.
[Ed. Note.— For other cases, aes Appeal and
4. Apfiax, and Ebbob d 100S*>— Ybbdiot—
C0NCLU8ITENB88.
Thoogh the jnry are tb» Judges of the
weight and credibility of the testimony, and
though a verdict approTed by the trial court is
entitled to tbe highest respect In the appellate
court, the appellate court will set aside a ver-
dict clearly wrong.
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. {{ 3860-3870, 3948-8960; Dec.
Dig. { 1006.*]
5. Wills H 66*)— Tbstamentabt Gapacitt—
evidencb.
Where, In a suit attacking the validity of
a will on the ground of testamentary incapacity,
the testimony of tbe attesting witnesses and of
reliable neighbors showing the capacity of tes-
tator to make a will was not contradicted, and
there was other uneonflicting evidence sbowing
memory and capacity to understand business
affairs at tbe time of the execution of the will
and aabsegaently, a verdict of testamentary In-
capacity was contrary to <he evidence, and must
be set onde.
[Ed. Note.— For othet cases, see Wills, Cent
Dig. II m-lfiS. 161; DecTDig. 1 6Bw*r
Appeal from Olmilt Oourt, Rappahannock
County.
Suit by M. J. Welch against W. J. Huff,
executor of Edward H. Huff, deceased, and
others attacking the validity of the will ot
the deceased, ^niere was a decree Invalidat*
Ing the will, and defendants appeat Be-
•For otaw eassa am same tople sad aoetlon NUHBBB In Dso. Ug. ft Am. Dig. Key-No. Solss * Rep'r lad*
674
78 SOUTHEASTERN REPOBTEB
(Vt.
Plalntiira Instnictfoiu refosed hj tiie
court were as follows:
"(E) The court instmcts tbe Jury that
may person who Is capable at recoUectliig
tbe property he Is disposing of, the maimer
ot disposing ot it, and tbe objects of bla
bounty has sufficient mental capacity to make
a wlU. And, further, that the true test of
testamentary capacity is whether tlie testa-
tor tiad at the time of the execution of the
instrument sufficient mental capacity to un-
derstand the nature of the transaction he
was entering Into, and to assent to its pro-
visions.
"(F) The court instructs the jury that all
men are presumed to be of sound mind and
competent to make a will, and the person
who alleges Insanity or unsoundness of mind
in the testator in order to invalidate a will
must prove the insanity or unsoundness of
mind by a preponderance of the evidence.
"(G) The court instructs the jury tliat aa
a matter of law the testimony of the wit-
nesses who were present when the wiU was
executed is entitled to far more weight and
importance than the opinion ot witnesses
based upon the erratic conduct and eccen-
tricities of the testator, or based npon tacts
which may be proved and yet not be the re-
sult of unsoundness of mind. .
"(H) The court instructs the jury that
they cannot measure the testator's capacity
nor inquire into the wisdom and prud^ce
of the disposition of lils property, if the
jury believe from the evidence that he be
legally compos mentis, be he wise or be he
unwise, he is the disposer of his own prop-
erty, and his will stands as a reason for his
action.
"(I) The court instructs the jury tliat the
tact that the testator gave the instructions
for the drawing of the will, or his act of
reading it over after it was drawn, Is the
most satisfactory proofs of the testamentary
capacity of the testator.
"(J) The court instmcts the jury that per-
sonal afTectlon on account of relationship
does not necessarily mean that the relation-
ship must be legitimate, or that the testator
and the beneficiaries under his will must
belong to the same race.
"(K) The court instructs the Jnry that the
evidence of witnesses who were present at
the execution of the will is entitled to pe-
culiar weight on the question of testamen-
tary capacity, and especially Is this the case
with attesting witnesses.
"(L) The court instructs the Jnry that the
subscribing witnesses to a will are safe-
guards which the law places around the tes-
tator to guard against fraud and to ascer-
tain and judge of his mental capacity at the
time of the execution ot the will.
"(M) The court instmcts the Jury that tbe
owner of property who has sufficient mental
capacity to attend to ordinary business af-
fairs of life, knows wbat property he owns,
and how he wishes to dl^ose of ttie same.
has the right to dispose ot bis property fay
will or by deed as be may choosey and that
It retinlres less mental capacity to maka a
valid will Qian to make a valid deed. Tttm
court further instmcts the Jnry that a per-
son competent to make a wlU may dispose
of his property thereby In any manner 1m
may dioose. and that he la under no k«al
obligation to devise It to his relatives, bnt
that he may cat off one or all of bis rtia*
tlves and give it to a stranger, if he so de-
alres, and that the justice or propriety of
the will is not a question for the jury to
pass on because the law pute no restriction
on a man's right to dispose of bis property
in any way in wbicb his partiality, or pride,
or even caprice may prompt him.
"(N) The court Instructs the jnry that
when the doe execution, according to all tbe
requirements of law, of a will Is proved. In-
cluding soundness ot mind and memory on
the part of the testator, by the testimony of
two or more subscribing witnesses to said
will, and unsoundness of mind Is alleged as
a ground for setting the will aside, the fact
of insanity, or of unsoundness of mind, must
be established with reasonable certain^; the
evidence of insanity or nnsoundness should
pr^Mmdante or the will must be taken as
valid. If there Is only a bare balance of
evidence or a mere doubt only, of the sanity
of the testator, the presumption Is in favor
ot sanity, and If proved as above stated,
must turn tbe scale in favor of the sanity
of the testator, and the will most be sua*
tained."
The court gave the following Instructions:
*'(6) The court instructs the Jnry that there
Is no evidence in this case to support the is-
sue ot nndue influence^ and In reaching their
conclasion they are to eliminate the ques-
tion of undue Influence, and to consider only
the issues ot the due execution at the will
and the testamentary capacity of Edward
H. Huff at the time of the execution of the
paper writing dated Jannary 81, 1910.
"(A) The Jnry are Instructed that neither
sickness, old age, nor impaired intellect nor
all of tiiem combined are sufficient, stand-
ing alone, to render Invalid a will and even
if the jnry believe from the evidence that
any one or more or all of these conditions
existed in the case of the testator Edward
H. Huff when he executed the will In ques-
tion, and even though the jury shall believe
from the evidence that tbe testator at the
time of executing the said will was of ad-
vanced age or was infirm in health, and even
thongh they may believe from the evidence
that his intellect was Impaired to some ex-
tent, nevertheless If they shall further be-
lieve and find from the evidence that at the
time of executing the said will the said Ed-
ward H. Huff was capable of recollecting
the property he was about to dispose of, the
persons who were the objects of his bounty
and the manner In which he wished his pr^p-
erty distributed *fSO}^f,fte^^^jgfjui
Va.)
HUFF T.
WELCH
S75
understanding of the nature of the business
in wUcb he was engaged, then the Jury must
And that he had legal capacity to make a
valid disposition of his estate.
"(B) The court instructs the Jury that al-
thonsAi Edward H. Huff may have made oral
declarations prior to the execution of his
will to parties who were In no way Inter-
ested in his property or affairs that he would
leave his property to M. J. Welch or the chil-
dren of M. J. Welch, or other parties than
the parties named In said will, the said Ed-
ward H. Huff was in no way bound by snch
declarations, and he had the right to diange
his mind at any time prior to the execution
of said will, and, if the Jury believe from
the evidence that the said Edward H. Huff
at the time of the execution of the said will
knew what property he had and to whom he
wished ' to leave It. they must sustjtlu the
will of the said Edward H. Huff.
"id The court Instrocbi the Jury that It
is not necessary that a person should pcKsess
the highest qualities of mind in order to
make a will, nor that he should have the
same strength of mind which he formerly
may have had; the mind may be in some
degree debilitated, the memory may be en-
feebled, the understanding may be weak,
and the testator may be wanting in capacity
to transact many of the ordlnaxy aflaiis of
life, but it is suflldent U be possesses mind
enongh to ondiOTStand the nature of Qie baA-
nesB in which he la engaged in making his
will, has a recollection of the propert7 he
wishes to dispose' of thereby, knows and n-
calls the objects of his bounty, and the man-
ner in which he wishes to distribute bis
proi)erty among them.
"(D) The court' Instmcta the Jury that
every person over 21 years of age and of
sound mind la entitled under the law to
make a will and to dlspoM of his property
as he pleases and to dispose against or
among his next of kin as he may choose, or
If he choose he may even leave his property
to strangers.
"(O) While the burden of proof ts upon
those offering a will for probate to show
testamentary capacity on the part of the
testator at the time the wlU was executed
to the aatlsfiictloB of the Jury, yet the eonit
tells the Jury that there Is in all eases an
olsting presompUon In favor of Qie tee-
tatm's sanity and capacity, whtdi la to be
taken into consideration the Jury In de-
termining the question of competency.
"(P) The court instructs the Jury that the
testimony of credible witnesses present at
the execution of the will is entitled to pe-
culiar weight on the guestimi of testamen-
tary capacity, and that this is especially true
of attesting witnesses whose <bxty It Is to
ascertain and Judge of the testator's mental
capacity at the tim&
"(H) The court Instructs the Jury that
they cannot measure the testator's capacity
nor Inquire Into the wisdom and prudence
of his dlspositlOB of the proper^ If the Jury
believe from the evidence that he la legally
compos mentis, be he wise or unwise, he Is
the disposer of his own property, and his
will stands as a reason for bia action. He
is under no l^al obligation to will his prop-
erty to his relations, the Justice or pnqinlety
of the will Is not a question for Uie Jury ex-
cept that they may ctmslder that matter as
a circomstanoe bearing upon the testator's
mental capacity. If he la a capable testator,
he can will hia property as he chooses.
"(Q) The court Instructs the Jury that for
the testator to be mentally capable of making
a valid will, or to be of testamentary capaci-
ty. It Is sufficient if at the time of ocecuUng
said will the testator had an understanding
of the nature of the budness in whidi he
was engaged, a recollection of the propwty
he meant to dispose ot of the persons who
were the objects of his bounty, and the man-
ner in which his jtroperty was to be dis-
tributed among them. It it not necessary,
however, that the testator should actually
recall or recollect all of his property ; it is
sufflclrat U he was at tba time of executing
the will mentally capable of doing so; it is
not necessary that he should have compre-
hended the provisions of hla will in ttaix
legal form ; It Is saffldent if be fully com-
prehended it and undrastood at Oie time
of execution oC said wlU the actual disposi-
tion which he was thereby making or in-
tended to make of his property.
"The Jury are further Instrocted if they
shall believe from the ertdence that at the
time of executing said will the mind and
memory of the tetfator was snffldently sound
to enable him to know and understand the
extent and amount of bis property and his
rations to the objects of his bounty, and
the business In whlA he was engaged, then
he was of sound mind and memory within
the meaning of the law and th^ must find
for said wUL
"(B) The court Instructs the Jury that a
testator must have testamentary capacity to
make a will at the time at whidi socb will
Is executed; and, if the Jury shall believe
from the evidence that Bdwd. B. Huff was
mentally capable of making a will upon ttie
date of its execution, the same Is valid what*
ever may have been Us condition mentally
either pilor or after the time of sKecuting
said wilL
"The court instructs the Jury that the bnr^
den Is upon the propouoits of the will In
this case to establish that the paper writ-
ing In question offered as the last will and
testament of Edward H. Hul^ deceased, Is
the true last will and testament of tlie said
Edward H. Huff; and to do so they must ee*
tablish to your satisfiicti(HL the following
tacts:
"First. That the paper offered In evidence
and the whole paper was thoroi^ly under'
stood by the said Huff and Intended by him
to be his last will and testamafen*^ _
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78 SOUTHBAJSTBBN BEPORTBH
"Second. At the time <rf the wtlttng and
signing thereof the eald £ltifl was of wnind
and diq^OBing ndnd and memoiy. ' '
"Third. That the said paper wrlttng wae
dgnedoradmowledgedlQrthesi^dBnffln the
presence of John H. UpdOce and 0. H. Eeyser,
the subscribing witnesses thereto, who were
boUi present and In the preecuce of the said
B. H. Huff at Uie same Ume, and that said
sntwcrlblng witnesses subscribed the will In
the presence at tiie testator Bdward H.
Hull"
"(2) The coort fnrtbw Instructs die inxy
that one of the Issues Involved In this con-
test la whether the decedent Edward H. Huff
possessed suffldent mental capacity to make
a will on the Slst day of January. 1910, at
the time the paper writing offered In evt-
denoe in this case was executed; and the
jury are now told tiut the test of testamen-
tary capacity la that the tratator must have
had sufficient mind and Intelligence at the
time the paper writing was executed to un-
derstand.
"First The nature of the bushiess In which
he was engaged.
"Second. To recollect the property h^ was
attempting to dispose of, to know and un-
derstand his relation to his blood kin or to
others who might have claims upon him,
and to determine tlie objects of his bounty,
and the manner In whldi he wished to dis-
pose of bis estate with soise and Judgment
"And, If the Jury believe that the decedent
did not at the time the alleged wlU was ex-
ecuted possess mental capacity to know and
understand these things, then they must find
against the will."
"(8) The court further iBstmcts the Jury
that in determining whether or not tlie pa-
per writing In question Is the true last will
and testament of the decedent Bdward H.
Huff the jury bas the right to consUler the
nature and character of the will, and, if
they find from the evidence that It is con-
trary to natural Justice, they should take
that fact Into consideration along with the
other facts and drcnmstances in the case,
and the testimony of the witnesses In deter-
mining the question of capacity."
"(4) The jury are farther instructed that
testamentary Incapacity does not necessarily
require that a person shall actually be in-
sane. Weakness of intellect, regardless of
bow it may arise, may render the testator
incapable of making a valid will, provided
such weakness really dlsquaiifles him from
knowing or appreciating the nature, effect
and consequences of the act he Is engaged
in."
"(S) The court further instructs the Jury
that direct proof is not necessary to over-
throw a will, but any facts and circumstanc-
es are sufficient as evidence that will satis-
fy the Jury of the incapacity of the testa-
tor to make testamentary disposition of bis
property at the time of the execution of his
wlU.-
J. r. Strother, of Wadilngton, ai^ Hiden
A Thurlow, of Onlpeper,'fi)r appellants. Kdtib
ft Blchanb, of Warreitton, Grhmd^ ft Miller,
of Oslpeper, and H. G. Moffett of Washlnc*
ton, for appellee^
OAB0Wl]Ujh J. The purpoBB of thla salt
l8 to oonteet the will of Bdwud H. Buff, da-
cotsed, whUA had been admitted to probate
in the drcnit court of Bappaluqmock ooon-
ty, the biU attacking the validity of the wiU
being filed by M. J. Welcih, a nephew of the
testator, and the gromids npcm which It is
claimed that the paper writing In qneetion la
not the last will and testamuit of the deceaa-
ed are: (1) It was not executed and wit-
nessed as required by law ; (2) the said Ed-
ward H. Huff did not bave testamentary ca-
padty sufficient to etecute said inper pur-
porting to be his last will; and (3) undue
and improper Influents uerdsed over the
said Edward H. Huff by Lacy PhUlips and
some of her adult children, benefldarles nam-
ed la the paper writing purporting to be his
hist wilL
There was an Issue out of chancery to de-
termine the qoestionB raised by the plead-
ings, and the first trial thereof resulted in
a mistrial, and at the second trial the Jury
rendered a verdict finding that the paper
writing In question was not the true last will
and testament of Uie said Bdward H. Huff,
deceased, which verdict the trial court re-
fused to set adde and entered its decree
ratifying and confirming the finding of the
jury, from which deoree the plaintiffs in the
issue obtained this appeaL
The objection of the app^lee to the suflU
dency of the record with respect to the cer-
tification by the trial court of the evidence,
founded upon an error In copying the record,
has beoi met by the certification of the
clerk of an addendum to bill of exceptions
No. 2, purporting to set forth the evidence
and tberefore said objection will not be fur-
ther considered.
It appears that Edward H. Huff died in
Rappahannock county on the 10th day of
February, 1910, after nine or ten days of
illness, at the age of 78 years, and that the
paper writing in question was executed by
him on the date therein stated, to wit the
3l8t day of January, 1910, and was after-
wards duly probated as his last wUl and
testament whereby be bequeathed all of hla
personal property to his brother W. J. Huff
(spoken of In this record as John HuCC)t and
devised his real estate, consisting of an
undivided half Interest in a tract of land
known as the "Huff place," to said John
Huff for life, and fiien to the 10 living chil-
dren of Lucy Phillips and to the children of
Anna Robinson deceased, each of the 10 liv-
ing children of Lucy Phillips (all of whom
are named by the testator), "to take one-
eleventh of my said undivided Inter^t la
said real estate and the children of Anna
BobUiBOi^ deceased, one-eleveoth part; X
Digitized by Google
V*)
HUFV T* WELGSt
677
IMTS tbe Mdd chJMscB of Lucy PbllUps bdA
tbe cUldren of Anna RoUnson, deceased,
my InteroBt In tbe nM real estate after the
deatti of 1117 aaM brotber, W. J. Holt becavM
they the said Lncy PhiUlpe and her children
ban been fidtbful nmuits to me; havlnff
btteKtf ore deeded to my nepbsv, Mwctiiner
Wetefa, my Interest In tbe Bfdtnnan ^ce. lt
la my dealre that be haTe no part of my
wtatfe"
Tbe uet tbat tbe cbUdxen of Lvcy PhllUpa
are John HnlFa cSiUdrai la not qneaUoned.
Meltber the said teatatw nor 7obn Haft ew
married, and their only slater, Oolumblanna
Weldi. died some years ago, leaving soirlv-
Ing her a husband, Aldrldi Weldi, and a son,
M. J. Welch, spf^en of In tbla record as
"Halt' Welch, and who la the contestant of
said wUl fai this UUgation. It further ap-
pears from tbe record that some tbne before
the Civil War Edward and John Biift and
tbeir sister, ColamUanita Welcb, Inherited tbe
"Hnff place," snhject to an incumbrance
securing a debt of about 91,800, and that they
lived upon and held Uie said property in
common for -many years; that during this
time Edward HnfF, a skilled stone mason,
followed his vocation, wUle John Huff was
engaged in the hucksteriag trade about the
country, their earnings going Into the com-
mon or partnership Aind; that Aldrlch
Welch and the boys of John HnfT and Lucy
Phillips ran the place, and tb6 grown girls,
also tbe children of John Huff and Lucy
Phillips, together vrttti the latter, attended
to the housework; that by these united ef-
forts the debt of 91.800 on the "Huff place^
waa paid off and later another piece of ivop-
erty, known as tbe "Boltzman tract" vpas
pnrdiased, and that in 1892 iE:dwa^ and
John Huff had a division vrltb Golnmblanna
Welch whereby the "Holtzman tract" was
deeded to her as her share of Uie joint es-
tate, and she and ber husband moved over to
tbe "Holtaman tract," while Edward and
John Huff nern bad a (Urlslou between
thonselves, bat oontlnoed to live upon tba
•«Hnfl placer and to bold it and aU of their
property as Joint owners.
It furtbw appears tbat Lncy PblUlpa and
her dUldren, or some of tbem, lived on the
"Huff irtaoe" with Edward and John Huff
for at least 00 years, daring which time
neither Lncy Phllllpe nor any of her children
ever received any compensation for their
labor and sovlce; that Lucy PhiUlps and
her dilldrsi alvrays 'deported themselves
kindly and attentively towards Edward and
John Baff, nursing them In sickness and
looking after tbelr welfare and comfort when
they grew old and feeble. Lucy Phillips and
three of her chlldroi being with Edward
Huff coDtlnuonsly during his last illnees,
while a yourtb came from the state of Ohio
to see him before hbi death. It further ap-
pears that all of these chUdnm of Jobn Buff
.7SSJ9.-87
and liocy PhiUUia ara of good chattcfcer and
were at all times attached— In fact devotcdr-
to both Edvrard and John Buff and tbey to
them, as eivldenoed In part hr the fact that
Edward and John Huff gave to each of the
boys a horse and to each girt a cow when
tbey left tbe **Huir place/' and gave danoes
and marriage parties for than,~**ICalt^ Weldi
being also tendered and acc^>ted a "honw
bringing" at tbe "Haff pkMe" on tba oocaahm
of his marriage, and in these environments
the said testator, Edward Huff, as seems to
be conceded, lived his Ufe out, satisfied with
his surroundings, of which he^ of course^
bad full knowledge, yet made no protest
against them. On tbe other hand It appears,
and equally as clearly, that between Edward
and John Huff and "Malf Welch and his
family in later years there was but little
Intercourse, and that during the last illness
of Edward Huff "Malt" Welch, who had not
been at the '^□ff place" for several years,
visited him but two or three times, render-
ing little or no service In looking after the
welfare or comfort of the sick man, but this
duty, so far as he was concerned, was left to
devolve upon Lucy Phillips and her children,
which was faithfully performed. While Ed-
ward Huff, according to "Malt" Welch's own
statement, was able to and did attend church
regularly and to visit neighbors as late as
November or December next before his death,
he had not visited the home of "Malt" waidi
for more than two yeara.
The will which 18 here attadcad vns writ-
ten by Obarles H. Ke^ser, a practicing and
reputable lawyer of good standing, as aeeau
not to be questioned, and he testlfled In this
case that, when he arrived at the' home of
the ttttotor, tbo latter told witness that h«
wanted him to draw bis wlU; that the tea*
tator ate dinner with witness and others at
tbe table and went outdoors at least once
ttiat day ; tbat no.one was present during the
drawing of the will azcept wltnees and tbe
testator; tbat testator gava tbe neoessary
Instmetlons, dictated the names of the bene-
fi claries, and detected an error in tbe will as
first drawn; that the will was then redrawn,
and the error wbidt the testator detected
rilminated ; that In the meantime Wads Mas-
ele and Jobn Updike were sent tor to wit-
ness the will, but after learning the dlwo-
sltlon of the proper^ Massle requested to be
excused from becoming a witoess to the will,
because he thought it likely there would be
a contest over It, and he did not want to geA
mixed, up In a lawsuit; that testator theo
signed the will In the presence of Eeyser.
the draughtsman of It, and John Updlkft-
who subscribed tbe same as witnesses; tbat
testator was then sitting In an Invalid's chalri
reclining slightly, and again wb«i referring,
to the dl^altton he had made of his prop-
arty stated that that was tbe way he wanted
tt to go, and that If be had paid Loey FhU
' ■ ' Digitized by Google
B78
78 SOUTHBASTBBN BBPOBTEB
lips' dilldren for tbe work tbey bad done It
would amoDDt to much man than be was:
gtring them in hla wUL
Keyser, Updike, and Maaste, the wltneBses
at the factum, all testified, being the only
witnesses In the case who coold speak of the
testator's cooditlon Immediately at the time
of tbe execution of the pai>» In question, and
they unite in stating, without qualification,
that when the wlU was executed the testa-
tor's mind was clear and good, that he fully
nnderstood the traiuactlon and all about
what be was dolni^ Uassle stating not only
that tbe testator was folly capable of mak-
ing bis wlU, bnt that be told witness then
and there "that that was hla will, that that
was tbe way be wanted bis property to go,"
and urged him (Hassle) to witness the will,
and Massle's only reason for not doing so
was that "he feared there would be con-
test by tbe Welches'* and ho "did not want
to be bolliwed with having to testier In a
^olt"
Will Bowles, anotha ^ite neighbor of the
testator, and also of high standing, who talk,
ed with the testator shortly after dark on
the day bis will was written and executed,
testifies that tbe testator was folly capable
of making a will on that day If be bad
ttaon^t it ow before, and stated certain
tacts gathered fzom' the testator as to tbe
reasons which bad prompted him In prefer-
ring to dispose of bis property as be bad
done; and that be recognised witness and
"talked tnteHlgently.**
The trial court gave to the Jury an Instmc-
tlon, not objected to, that there was no evi-
dence In tbe case to support the Issoe of un-
due Influence, and in reaching thslr conclu-
sion they should ettmlnate that question, and
the fdia^ that tbe paper wilting in question
was not execoted and witnessed as required
by law has been inactlcally abandoned in
tbls oonrt; so that the real issue pr«Knted
is whetbOT or not tbe evidence warranted tbe
finding of the Jury with respect to tbe tee-
tamentary capacity ot the testetor.
The testimony offered to sustain the charge
of mental incapacity Is that of a number of
wttnesses who claimed to have known the
testator well and who express tbe opinion
tbat be was not competrat to make a will,
which evidence when analysed discloses that
the opinions of the witnesses are based only
on tbe drcnmstances that the testator was
old (78 years of age), rathw feeble, and bis
memory not as good as formerly, as evl-
doiced by bis b^ng at times unable to recall
the names of persons whom he bad known
tar years, or tbe name of a place or places
w\tb which he bad l>een ftimlllar, or on ec-
centric acts or expressions gathered at dif-
ferent times from testator's wbole life. None
ot the witnesses say that the testator had
abandoned his former and usaal interest in
his bnelnees affairs, or was Incapable of un-
derstanding and looking after them, or did
not have knowledge of bis propert7» or was
Incapable ot selecting the objects of his boun-
ty when he came to determine to whom be
would prefer to will bis property; in fact,
tbe nnconflicting testimony In the case is
that the testator attended to his ordinary
bustness affairs up to the time of the execu-
tion of his will and later, and was at tho
time Us will was execnted of suffldeoit In-
telligence to understand the nature of the
business in which he was engaged, recollect
the property that he wished to dUq>ose of,
know and recall the objects of his bounty,
and the manner In which be wished to dis-
tribute bis property among them.
Tbe plalntHh in tbe Issue (sibilants her^
asted for 10 instnidlons to tbe Jury, all of
which were refused, and In lieu thereof tbe
court gave 14 Instruetioiis, designated, re-
spectively, as A, B, O, D, O. P, H. Q, B, 1,
% 3, 4, and fi^ to wbidi refusal to give ap>
p^lants' instructions and tbe giving oi tbe
instmctlaia of the ooort marind 1, 2, ^
4, 6, O. H, and P the appellants eaccepted.
[1] The instmctlons given by tbe court, all
of whlcb will Kvpeax ivlth the olfidal reiMnt
of this (vAidon, were ample to solmilt to (tie
Jury fully and fairly the ease which the
evidence adduced tended to proves and we axe
tbertfora of opinion tbat fba oonrt cunmlt-
ted no reversible error In Its rulings with
respect to the InstructlonB refused or to
those given.
[2] "Tbe law requires. In d^ermlnlng men-
tal capacity, not so much of any particular
diaractw or intellect as the aUlity to make
obtain effbrts of tbe mind and memory.
Tbe rule of testammtary capacity Is tiiat
tbe testator must have auffldent mind and
memory to Intelligently understand tbe na-
ture of tbe business in which he Is wgaged,
to con^rehend generally tbe nature and ex-
tent oC the property wbldi oonstltnteB Us
estate, and whlcb he Intends to dbqraw of,
and to recollect tba olitJeets of his bounty.
If he possesses these attributes, he baa tiea^
tamentary capacity. Tba testator need not
have the same perfect and oompl^ under-
standing and appreciation of these matters
In all thdr bearings as a person In sound
and vigorous health of mind and body would
have; nor is he required to know the inreclse
legal ^ect of every provision made In his
wilL Absent-mindedness or mere intellectual
feebleness does not disqualify a person to
make a wUl, as the feeble have as much
right to dispose of their property as the
strong, but something short of Insanity la
sufficient to invalidate It One capable of
transacting ordinary business Is presumed
capable of making will although not of
sound mind." 40 Oyc. 100>4, and autborlttea
cited.
At page 1106 the same authority says:
"If the testementary requisites are found,
the will may be valid, although executed by
one of great age whose mind Is enfeebled,
whose body Is debilitated, whose memory Is
failing, and wbo-e^Jud|n««^^^
079
mpttSaXiy where tbe win !■ fairly made and
apparently emanating from a free will, or
wbere testator was a good bnsbuae man;
tnit not wliere an aged person Is so oife^led
mentally as not to understand wbat lie Is
doing, as when he Is Buffering from halluci-
nations or paralysis or softening of the
brain."
"TtM law prescrUies no Umlt In point of
b^ond whl^ a poson cannot dispose of
his vtopatty. A man 89 years of age Is
often as capable of making a deed or will
as at any other period of his llfeu TSta
greatness of bis 'age la not ptoot of mental
Incapacity.*' Howard t. Howard, 112 Va.
S66, 72 8. B. 133.
The authorities have not undertaken to
prescribe any particular degree of mental
acumen as the measure of one's capacity to
execute deeds or wills, but all agree that
tbe test is whether the party bad at the time
of the execution of the instrument sufficient
capacity to understand the nature of the
traiuactlon be was enterli^ into, and to as-
sent to its proTlslons. Wampler t. Harrell,
112 Va. 635, 72 S. E. 135.
In Jarrett v. Jarrett, 11 W. Va. 684, the
court, in dlscnsslng whether or not a grantor
in a deed had mental capacity at the time
of its execution, said, with respect to the
weight to be given evidence upon the ques-
tion of mental capacity, that the evidence
of witnesses present at the execution of the
deed is entitled to peculiar weight, and that
the mere opinions of witnesses not experts
are entitled to little or no regard, unless
th^ are supported by good reasons founded
aa ftuits which warrant them; and, if the
reasons and facts upon which they are
founded are frivolous, the opinions of such
witnesses are worth but little or nothing.
In the recent case decided this court—
Wooddy et aL v. Taylor et aL, 114 Va. 787,
77 B. E). 408 — the opinion by Harrison, J., In
disposing of strikingly similar testimony to
that offered in this case to sustain the charge
of mental incapacity of the testator to make
a will, says: "They (the witnesses) express
the opinion that he was not competent to
make a will, but, as was said in Beverley t.
Walden, «1 Va. 147, this U their opinion;
but, when we come to analyze th^r evi-
dence, we find that their opinions are not
justified by the foots upon which they are
based."
In Beverly r. Walden, 61 Va. 147, the
opinion by Christian, J., says: In such case
*'the testimony of witnesses • • • pres-
et at the factum,** and the written acts of
the party attesting his capacity, are "more
to be relied on than the"* mere "<vmion of
other witnesses based upon tacts which may
be true, and yet not be tlw result of unsonnd-
ness of mind." Porter t. Porter, 69 Va. 118,
15 s. B. soa
[I] Bxpressloos at oplnims by wUnesses
that the testator was not competent to make
a wUl based upon facta wtddi do not sustain
the opinions are not to be considered as con-
flicting with the evidence of the wltaesses
of the factum who speak of the testator's
condition Immediately at the Ume of the
execution of the paper in question and unite
in the unqualifled statement to the effect
that when the paper was executed tbe
testator his mind was dear and good, and
that he knew all about what he was doing.
Wooddy T. Taylor, supra.
[4] It is very true that In such cases as
this the proper Judges ■ of tlu weight and
credit due to the testimony of the witnesses
are the Jury, and their verdict, when sanc-
tioned, as in this case, by the trial court,
la entitled to the highest reject hi the ap-
pellate court ; but, wheal there has been a
plain and palpable deviation from the proof,
interference on tbe part of the appellate
court Is warranted. Young v. Earner, 68
Va. 96.
[S] We have here the clear and positive
testimony of not only the two attestiiqp wit*
nessu of the will, but that of Wade Maasls
and of Will Bowles, two reliable neighbors,
as well as tiiat of Hugh Phllllpa who lived
with the testetor up to the time of bis death,
as to the capacity of the testator to make a
will, none of which testimony confllcta with
any evidence InUoduced by the contestant
of the will ; moreover, there Is other uncon-
fllctlng evidence adduced by appellants, the
proponente of the will, plainly showing a
memory consistent with the testator's age,
and a capacity to understand his business
affairs and to direct their management, not
only up to the date of his will, but after and
practically to the last of his life.
We are of opinion that the verdict of the
Jury complained of is a plain and palpable
deviation from tbe pro(tf in the case, and
therefore the decree of the-'Clrcult court ash
pealed from has to be reversed, the verdict
of the Jury set aside, and the cause remand-
ed for farther proceedings therein not In
conflict with the riewu expressed In this
opinion.
Reversed.
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580
78 SOUTHBASTBBN BSPOaTBB
QiR Y*. m ■
BBCKDR VOVTBSSBS BY. GO.
(Bapreme Court of Appeola of Tirsiaii. June
12, tarn
1. HASm AHD SntTAKT (1 2BS*)—JvijmT to
SiBVAHT — AonOHS — DsOLASATIONS —
SumczEncT.
A de<^rati(m In an action for Injoriei to
ui employe operatiBt a boring mill, which al-
leles that the employ' waa aidgned to the
work the foreman with aireetions to haaten
Itt that he went to work oo a dark and toggs
momins, that the electric lights bj which the
shop was osoallr lighted were not boming,
that the light oTer the boring mill was out of
repair, that the absence of light made it nec-
essary for the employ^ to use a hand torch,
provided by the employer for emergeociea,
that he held the torch in one hand while op-
erating the miU with the other, and that while
operating the mill it became neeesaary to
lean over to observe the progress of the
work, and that In holding the torch orer the
machine to obtain light his hand was drawn
into the miU, but which does not allege im-
S roper constructiott of the mfll, or that the
efect In the electric light had existed for a
time sufficient to have afforded 'the employer
an opportunity to inspect and remedy It In
the exercise of reasonable care, states no
cause of action as against a demurrer, for, if
the torchlight as used furnished enough
Ught, the absence of the electric light was not
the sole and proximate cause of the injury,
and did not contribute thereto In any degree.
[Ed. Note.— For other cases, see Master and
Serrano Cent Dig. U 81&-^; Dec. Dig. 1
2. Habtkb and Ssbvant (| 268*)— Iitjubt
TO SEBTANT— GONTBIBUTOBT NSOIJGENCK.
The declaration, though construed as al-
leging tiiat the proximate caase of the acci-
dent was the absence of adequate light, is
demurrable on the ground of the employe's
eontribntory ne^gence.
rBid. Note.— For other cafles. see Master and
Servant, Cent Dig. U 816^: Dea Dig. I
258.*]
8. Masteb and Sbbvaut (! 129*)— Ih^tbt
To SEBTANI^DKFBCTITE MAOHINEBT.
An employe sustaining a penonal Injury
cannot recover on account of defective ma-
chinery, unless the defect was the proximate
cause of the accident
[Ed. Note.— For other cases, see Master and
Servant. Cent Dig. B 257-338; Dec. Dig. |
120.*]
4. PlEADIHO (I 214*)^>KinTBBXS— AnoB-
aions.
A demurrer to a pleading admits the taetm
alleged therein.
lOd. Note.— For other cues, see Pleading,
Cent Dig. II tf25~S34: Dee. Dig. | 214.*]
B. Hastkb and Sf btant (! . 28Q*>— Ikjdkt
TO SEBVANT — CONTBIBDTOBT NxOUOBNOE.
Where the facts are unchallenged, and
such that reasonable minds can draw no other
Infftrence than that an employe suing for a per-
sonal injury was or was not at fault, the court
must determine the question ai contributory
negligence.
[Ed. Note.— For other cases, see Master and
Servant Cent Dtg. {{ 1088, 1090, 1092-1132;
Dec. Dig. i 289.*]
0. Mastcb and Servant (| 222*)— Injcbt
TO Ssbtant— ABstmpTioK or Kibe.
An employe who operates a dangerous
machine tn the dark or without sufficient light
assumes an open and obvious risk, though h*
acts on the order of the employer.
[Ed. Note.— For other cases, see Master and
Servuit, Cent Dig. H 648-661 ; Dec. Dig. |
Error to COTpmtlon Ooart.of CUj of
Alexandrixu
Action by one Becker against tbe Sonthem
Railway ComiMLny. There was a Judgment
sustaining a demarrer to the original and
amoided dedaratloiu^ and plalntlfC briasa
error. Afllnned.
S. Q. Brent and H. W. Smith, both of Alex-
andria, for plaintiff In error. Francis £4
Smith, of Alozandria, tm defendant in emn;
HARRISON, J. This writ of error brii^
under review the action of the lower court in
snatalnlng the defendant's demurrer to tbe
plaintiff's original and amended declarations.
The amended declaration contains all the
averments of the original declaration, and
need only be looked to in disposing of the
questions to be considered.
[1] The action was brought to recover of
tbe defendant railway company damages for
personal Injuries, and the case stated by the
plaintiff In his declaration is that he was
employed in the machine shops of the de-
fendant company ; that at the time of the
injury complained of he was operating a
boring mill, run with great force by steam,
and was facing off a trailer box; that the
work had been assigned him by a foreman
of the defendant company, with directions to
hasten Its completion, and not to put It aside
until flalshed; that the defendant did not
provide reasonably safe and suitable ma-
chinery and appliances for the use of the
plaintiff, but negligently failed to do so, in
this, to wit, that on the morning of tbe a<y
ddent at 7 o'clock, the day being dark and
foggy, tbe plaintiff went to work on the
boring mill ; that tbe electric lights by which
the shops were usually lighted were not
burning, and that tbe light over the boring
Dilll was out of repair, which the defendant
knew or by the exercise of reasonable dili-
gence could have known ; that the absence
of tbe light over the boring mill made It nec-
essary for tbe plaintiff to use a hand torch
provided by the defendant for use in emer^
gendes caused by the absence of the electric
lighbsf that the plaintiff held thl^ torch in
his right hand, while operating the boring
mill with his left hand; that while thus oper-
ating tbe mill it became necessary for bim
to lean over to observe the progress of tbe
work, and that in holding the torch over tlie
machine, so as to obtaio sufficient light, and
without any negligence or want of care on
his part, his right hand was struck, caught,
drawn, and entangled In tbe boring mill, re-
sulting in tbe injuries complained of.
The declaration does not allege that the
•Ver otksr eases ■•■ sum lople aad seetlOB NUMBBB la Dm. EHg. A Am. Dig.
BBOKBB T. SaXiTBSBXt BT. 'OO.
borlug will was Improperly xoonstxacted or In
any way oat of order. IJbe thing oompUtta-
ed ol .axid tbe only negUgence alleged la the
defect In the light ojar tbe maebSne tbat
made It necessary for tbe plaintiff to nae tbe
torcbUght provided for nieh emei^ndea.
There Is no allegation tbat the alleged def^
In this electric light had existed for a snffl-
dent time to have afforded the defendant In
the exerdse of reasonable diligence an oppor-
tunity to Inspect and remedy the defect
There Is no allegaUeo that the torch was out
of order, that It did not give sufficient light,
that it was in any way Inadequate for tbe
purpose for which It was being nsed, or that
the use of the torch caused the acddent.
Tbe averment Is that while operating the
mill It was necessary to lean over to observe
the "progress of the work, and that in holding
tbe torch over tbe machine so as to secure
mffldent light the plaintiff's hand was Injur-
ed. These allegations can only mean that
tbe defendant provided a hand torch to be
nsed when the electric light was out. and
tbat tbe plaintiff was using the hand torch
"80 as to obtain sufficient light." and that
thus used tbe band torch famished suffi-
cient light, for the declaration does not sug-
gest that while using It tbe plaintiff did not
have adequate Ught If the hand torch as
used famished enough light, it cannot be
said that the absence of the electric light
was file sole proximate cause of the injury
or contributed In any degree thereto.
[2, 9] It Is unnecessary to dte authorities
to sustain tbe iHK^Ktsltlon that a plaintiff
cannot recover on account of defective ma-
chinery or appliances, onless it affirmative-
ly appears that the defect was the proximate
cause of tbe accident of which he complains.
WiUiams V. Norton (Nwl Oo.. 108 Va. 608, 62
8. B. 342. If, however, the declaration were
interpreted as alleging that the proximate
cause of the accident was the absence of
adequate Ught, th«ta the demurrer was prop-
erly sustained upon the ground tbat the
plaintiff was guilty of sacb contrlbdtory neg-
Ugence as to predude his right to recover.
[41 The contention is not tenable that the
lory is the only tribunal In this case to
pass upon the question of the plaintiff's con-
tributory negligence. The demurrer admits
tbe facts alleged to be true, and when the
facts are undisputed and decisive of the case
a qne^on of law Is raised, and the court
■honld dedde It Wbui Terminal Go. v. Mc-
Gonmck, 104 Ya. 400. 412. 51 8. B. 7S1.
[t] In Beach on Contributory Negligence
(2d Sd.) { 447. it Is said : "Wbeib the taeta
are unchallenged and are such that reasona-
hle minds could draw no other Inference or
conclusion from them than that tbe plaintiff
vras, or was not, at fault, then It la the
province of the court to determine the ques-
tion of contributory negligence as one ot
law."
in It does not appear from the declaration
when the plaintiff was directed to do tbe
wotk he was ddng at tbe time he was fn-
juired, nor is it suggested that he was or-
dered to do tbe work In an unllghted shop,
or tbat on the morning of the acddent his
superior was aware of the Cact tbat tbe
light over the machine was not burning.
Tbe plalnUfF went to the shop Is, the early
morning of a dark, foggy day. He found tbe
electric lights all out and the place in dark-
ness. His work consisted In the management
of a complicated machine driven by steam.
With full knowledge of' the conditions, and
especially of the fact that tbe usual electric
light over the machine was not burning, the
plaintiff attempted to do the woi-k, with the
result that in some way, not explained In
tbe declaration, his hand was caught and
the injury complained of sustained.
To attempt to operate a dangerous ma-
chine in the dark or without soffldent ligbt
Is such an open and obvloos risk that no
prudent person would encounter the peril.
When an employ^ is Injured under such dr-
cnmstances, be cannot escape the result of
bis own contributory negligence upon the
ground that be was acting on the orders
of the master, when obedience to those orders
involves exposure to such apparent danger
that no prudent person would Incur the risk.
Blaeon v. Post, lOQ Va. 494. S4 S. B. Sll, U
U R. A. (N. S.) 1038. If tbe work was at-
tempted without soffldent Ught, It Is clear
that the plaintiff was confronted by an open
and obvious danger, which he could and
should have avoided In Justice to b^mwlf as
well as to bis employer. Crane's Nest 0. Go.
V. Maoe, 105 Va. 624, 64 S. B. 470.
We are of opinion that, if the facts stated
In tbe declaration were proven as alleged,
the plaintiff would not be entitled to recover.
The demurrer to the declaration was there-
fore properly sustained, and the Jndgnwit
complained of must be affirmed.
Affirmed.
EICiTU, absent
I
Digitized' by Google
583
78 SOUTHBASTBBN RKPOBTKB
(IIB Ta. SOE)
WHITB T. AMBBIGAN MAT. UFB INS.
00.
(Snprems Oourt of Appeals of Virginia. Jane
12, 1013.)
1. TsuL (f 106*)— Dkicdxbeb to Evidbnos—
Admibsiohs.
A party who demon to tlie evidence of tbe
advene party thereby admits the truth of the
evidence of the advene part; and all just infer-
ences that the jury may properly draw there-
from, and waives all <n his own evidence ' in
conflict therewith, and all inferences, though
not in conflict, which do oot necessarUy result
therefrom.
[Ed. Note.— For other cases, see Trial, Cent.
Dig. If 854^856; Dec Dig. { 1S6.*]
2. Contracts (I 141*) — Ratitication of
B^uDULEMT Acts— Burden or Proof.
A party admitting that the adverse party
was induced by fraud to make a contract has
the burden of establishing by clear evidence that
the adverse party, after the discovery of the
fraad, waived it and ratified the contract, to
defeat a rescission.
[Ed. Note.— For ether caaee. aee Oontraets,
Cent. Dig. H 461t 1760, 17^7l786; Dea Dig.
I 141.*]
S. BnDBNOB (I 67*)— PRxsnicFTioNa— CoimK-
VAHca or OoNomoN — Princifai. and
Aoent.
The relation of principal and agent once
established presumptively continues, la the al>-
sence of proof to the contrary.
[Ed. Note.— For other cases, see Evidence,
Qaxt Dig. H 87, 88. 108; Dec. Dig. S 67.*]
4. CoBPOBA-noHS (S 80*>— Fraud Inducinq
PtTRCHABE of OoBPOBATB SIDOK— RB80ZS-
aoR— Dblat.
Men delay of a pnrehaser of corporate
stock to rested after the discovery of the
fraud, inducing the purchase resulting from rea-
sonable expectation on his part that the corpo-
ration will grant him proper relief will not
•stop him from rescind ing on the ground of
the inad, rights of credlton or innocent third
persons not intervening, and the position of the
corporation not belDg Injnrioiuly affaetod By
the delay.
[Ed. Note.— For otiur cases, see Oorporatlons,
Cent^DJ^^jl 244. 246-204, 1407. 1407H ; Dec.
0. COBPOBATIONB (1 80*)— PtTBCHABB OF STOOK
tKDUCBD BT FRAUD— WaIVKB.
A porchaser of corporate stocic who be-
fore the discovery of the fraud inducing the
purchase gives to the president of the corpora-
tion a proxy to represent him at a stockholders'
meeting does not thereby waive liis right to
rescind for the fraud.
[Ed. Note.— For other cases, see GorporatiouB,
Oent Dig. K 244, 240-284, 1407, 1407H;
Dec. Dig. 1 SO.*]
& Oobpobatiors <i 90*)— Pubohabb of Gob-
pobatb Stock— FBAtTDnunr KxpRBBBirrA-
noNfl— Ratification.
Evidence held not to show that one in-
duced by fnud to pnrehase corporate stock
ratified the purchase or acquiesced therein after
the discovery of the fraud.
[Bl Note.— For oilm cases, see Corporations,
Cent Dig. H 246, 883-419; Dee. Dig. % 90.* j
Error to drcnlt Court, Mathews County.
Action by tbe American National Life In-
surance Company against G. G. White. Tbere
was a judgment for plaintiff, and defendant
brings error. Reversed.
Bnford, Lewis ft Peterson, of Lawrence*
Ttlle. and J. Boyd Sears, <a MathewB. for
plaiDtur tn error. Harper tc GoodBMB. oC
Lynidibnrg, tor defendant In error.
WHITTLB, J. TUB l8 a motion b7
American NatlonU life Insnranoe ComqianT
(hereinafter designated as tbe plalntUT)
against OL C. White (hereinafter designated aa
tbe d^endant} to recorer the anwont of two
promissory notes evidencing the deferred In-
stallments of tbe purchase inice for 7fi shareB
of the plalntifTs sto^ sold by Its agemt to
the defendant
The defendant by special pleas of setoff
under Va. Code 1904, f 3299, Interposed tbe
defense that he bad teesi Induced to purchase
the etoCk by certain false and fraudulent
reiwesentattoDB made to him by the idaintlfl'B
agent, that consequently ha was entitled to
a rescission of the contract and to recoror
the cash payments made by him on the ato^
and also to be relieved from liability on the
notes upon which this owtton ms broni^t.
The plaintlfl demurred to the defendant'fl
evidence ; and to the ruling ot the court sns-
talnlng the demnner to the evidence, and
rendering Judgmmt against the defendant
for tbe sum demanded, this' writ of error waa
awarded.
Tbe allegation that the defendant was In-
duced to buy the stock by false represents-
tlons IB admitted. Adopting the language <a
tbe brief of the plaintilTs counsel: "The
case before the court presents this simple^
concrete question : Did tho defendaiU below,
who had been induced by the faUe rsfrMOH
tation* of the pUtintifTt agent to enter into
a opntract for the purchase of * * * the
ttoeh, toakte the fraud after itt ditooverv by
Mm, and by hi» oonduet ettop h/trnvAf from
interpotinff that fraud o» a defense to «»
action upon the contractt"
[1, 2] The foregoing question Ib to be too-
aidered and answered In light of the familiar
and f^repeated rule applicable to a demui^
rer to the evidence, namely, that tbe dunnr^
rant admits the tmth of the demurree's evi-
dence, and all Just Inferences that a Jury
might properly draw therefrom, and waives
all of its own evidence In conflict with that
of tbe demurree; and all Inferences from
Its own evidence, although not In conflict
with the demurree's evidence, wbidi do not
necessarily result therefrom. And, moreover,
the burden of proof lesto upon the plaintUE
to show by clear evidence that the defendant
after the fraud became known to him walv*
ed the same and ratified the contract Vir*
glnla Land Co. v. Haupt 90 Va. 533, 19 S.
B. 168, 44 Am. St Rep. 939; Wlson v. Car-
penter, 91 Ta. 183, 21 S. S. 243, 60 Am. St
Bep. 824; West End Oow T. Olaibome, 97 Ta.
734, 84 S. EL 900.
In Cumberland Coal, eta, Co. v. Sherman,
20 Md. 117, 149, 150, the court says : "Con-
firmation according to the books must be a
la Dse. Bli. * Am. Dig. K«gWeei«|^Jl*d0giil&
•For oUwr bssss bss same tepis aaA ssetloa NinCBBR
WHITB «. AMBBIOAN NAT. UVB Ilia 00.
688
solemn and deliberate act, • « • and,
particnlarl7 where the original transaction
was Infected with frand, the confirmation of
it is 80 inconalatent with Justice and bo like-
ly to be accompanied with ImpositloQ ttiat
the courts will watch It with the utmost
strictness, and not allow It to stand tmt on
the clearest eTldence."
In Wilson v. Carpenter, supra, 81 Va. at
page 192, 21 S. R at page 246, 60 Am, St
Bep^ 824, the conrt says: "No man can be
bonnd by a waiver of hla rights, unless such
waiver 1b distinctly made, with full knowl-
edge of the rights which he Intends to waive ;
and the fact that be knows his rights, and
intends to waive them, most plainly appear."
Cltliig Montagotfs Adm'r t. llaas^, 76 Ta.
307.
In the Ught of these well-vettled principles,
we shall briefly review the salient facts in
relation to this transaction.
In December, 1007, the defendant subscrib-
ed to 60 shares of the stock, and in January
following bought the remaining 25 shares,
making the cash payments and giving bis
two promissory notes for the deferred in-
atallments of the purchase money. At the
time of the sale and as an Inducement to
the defendant to buy, Knlp, the agent of tbe
plaintiff, represented that his principal would
at any time upon request repurchase the
stock of any stockholder who might choose to
dispose of the same.
[3] In the fall of 1908, the defendant hav-
ing heard rumors affecting the financial con-
dltioq of the company addressed a letter
of Inquiry to the president on that subject,
and likewise offering his stock for sale in
accordance with the promissory representa-
'tion of the agent The president replying
to that letter did not repudiate the agent's
representation, nor did he In terms decline
to repurchase the stock for the company,
but said: "Personally, I am loaded up with
all that I can carry, and cannot at this time
purchase any more." At a still later date
the defendant had a conversation with the
secretary of Qie plaintiff by long distance
telephone, and was informed by him that
the company would not pay a dividend for
the year IOCS as promised by Kulp. In Jan-
uary, 1909, the . defendant, who resided In
Mathews county. In company with a fellow
countyman. Dr. Vaden, who had also bought
stock of Snip, went to Lynchburg to attend
the' annual stockhc^ders* meeting. However,
though present, he did not vote or participate
otherwise in the proceedings ; but his inves-
tigations convinced him of the falsity of the
original representations of the agent wblch
induced him to subscribe to the stock. He
straightway, in company with Dr. Vaden,
sou^t out Kulp, and tbey tMtit insisted that
he redeem the promise made by him on be-
half of the company to repurchase tb^r
stock. In response to this demand Kulp
agreed Uiat he would either place th^r stock
dsewtaere or take it off th^ handiL In
point of fact he kept faith with Dr. Vaden,
and the company adjusted the matter to his
satlsfactitm ; but with respect to the defend-
ant the plaintiff ultimately repudiated Kulp*)}
agreement to repurchase the stock, on the
ground that at that time he had ceased to be
its ag^t, and was representing the defend-
ant. There was no evidence as to the terml-
nati<m of the agency, and the relation having
been once established it will be presumed to
have continued, in the absence of proof to
the contrary. 19 Am. ft E^g. Bncy. U (1st
Bd.) 75c; 81 Cyc. 1805 ; 4 Wlgmore on l&v.
i 2530.
In April, 1909, the defendant wrote to the
secretary and called his attention to the rei^
resentatlons of the agent which had involved
him In the transaction, and <m August 30,
1909, he wrote a letter of earnest supplica-
tion to Kulp informing him of his inability
longer to carry the burden and beseeching
him to fulfill his promises; and, finally, af-
ter persistently, but in vain, seeking relief
in accordance with the atipalations of bis
agreement with the agent, on July 14, 1910,
he caused a letter to be addressed to the
plaintiff, denying all UaMlity on acconat of
bis stock sutwcrlptlon.
[(] l!Tom the discovery of the frand by tbe
defendant until his final abandonment of the
contract, the relations of the parties had re-
mained In statu qua No further payments
had been made by the defendant on the sub-
scription, and no dividend or other benefit
had been received by him from the plaintiff ;
and neitber tbe rights of creditors nor of any
other innocent third party had Intervened,
nor had the position of the plaintiff Itaelf
been injuriously affected by the delay. It
thus appears that the delay of the defendant
in rescinding the contract after discovering
the fraud was the result of a reasonable ex-
pectation Ml his part that the plaintiff would
live up to the repeated assurances of its
agent and grant him the relief (o which he
was entitled. In these circumstances mere
delay will not estop a purchaser from inter-
posing the defense that the contract was
procured by fraud.
"Acquiescence or affirmance does not bind -
the stockholder, if induced by a reasonable
expectation on his part that the fraud would
be remedied." 1 Cook on Corporations, p.
435, par. 161, rfting West End Land Co. v.
Claiborne, 97 Va. 734. 34 S. E. 000.
In Grosh v. Ivanhoe, etc., Co., 96 Va.
171, 27 S. a 844, It is said: ♦'Whether a par-
ty seeking a reselsslcm of his contract has
forfeited his right to it by laches or miscon-
duct depends upon the facts and circum-
stances of the particular case. If the rights
of creditors have Into'vened, or an innocent
third party has acquired an Interest in the
property, or If, In consequence of his delay,
the position ev^ of the wrongdoer Is affect-
ed, a party seeking a rescission of his con-
tract on' the ground of fraud will be deemed
to have waived his rigfe^,|9gyfl^(9^ie
S84
n sotrrBaAsniBN BBPOBmat
r. Sontb Saleni, etc., Co.. 94 Ta. 28 [20 B.
n 691]; Add. on Oonta. 172; Hurt t. MU-
ler, 99 7a. 82 I2T S. a 881]). but there la
nothing of the sort In thla case. It la ad-
mitted that the defendant company has no
creditors to be affected by a readsslon of
the contract No attempt is made to ahow
that the defoidant company conld have re-
sold the lots had the aiqpeUant repudiated
his contract sooner."
' [f] The fact that the defendant gare the
president of the company a proxy to rep-
resent falm in a meeting of the stockholders
is also relied on as evidence of raUflcatlon
of the contract The meeting referred to
was in January, 1906, only a few days after
the snbecrlptlon by the defendant to the first
block of stock, and, of course, long before the
fraud was discovered, in such case giving
the proxy did not operate as a waiver of his
right to rescind the contract for fraud. Va.
Land Oo. V. Hanpt 90 Va. S3S, 19 S. Bl 168.
44 Am. St Rep. 939.
[I] In conclusion we are of pptnlon that
the evidence does not show a ratification of
flie ctmtract by the defendant or such ac-
quiescence therein as should estop him from
relying npon the defense that ttie contract
was procured' by the fraudulent representa-
tions of the plalntifTa agent
■ For these reasons, the Judgment of the dr-
cnlt court must be reversed, and this court
will enter such judgment as the trial court
ought to have rendered, overruling the de-
murrer to the evidence and awarding the
plaintiff in orror the damages proTlalonally
assessed by the jury.
Reversed.
OU Ta. tW)
SMITH'S AOITB %. BATKB.
(Bnpreme Ooort of Appeab of TIrgiBla. June
12. 1918.)
1. BXBCUTOBS AITD ADHimSTBATOBa (} 46*)—
Assets— DUTH Bbitetit— Insobablb In-
Where an nnlneotporated association or-
ganlxed wholly for eleemosynary purposes pro-
vided for a death benefit fond to be volnntari-
1t donated bymemben. the contract providing
that the total amount of the tubaeription was
to be paid to inch beneficiary as the member
uionld designate, and that he might diange the
banefldary tn notloe to the district agent of
the assodation, such benefit formed no part
of the member's estate, and hence was not re-
coverable by bli admtnlfltrator from the benefi-
dary on the theory that the latter bad no in-
snrable Interest in the mnnber'i life.
[Bd. NDt&— For other aues, see Bxecntors
and Administrators, Cjpnt Dig. 1 287; Dec
Dig. I 4<L*3 •
2. IWBUBAircE (H 7e7, 777. 778* 785*>-Iit-
TKBEST IM FUKD.
Neither the estate of a member of a bene-
ildal aasodatlon nor hla next of kin has any
interest In a death benefit fond where the
member fails to designate a l)eDefidary, or
where the beneficiary designated predeceases the
member, bas no insurable interest in his Ufe,
or toK any other naaon ts aot entitled to tiie
fond, which therenpott reverts to the aaso-
datkm.
[Bd. Note.— For other cases, see Insuraneaw
Gent Dig. » 192».1981, 1942-1944, 1MB,
1974; Doc Dig. H 767. 777. 778, 786.*1
Error to Glrcnit Court of City of Rich-
mond.
Action by Thomas Smith Jr.'s administra-
tor against Louis B. Hatk& Judgment for
defendant^ and plalntlfl brings error. Af-
firmed.
EMI ward L. Ryan and O'Flaberty ft Fulton,
all of Richmond, for plalntlfl in error. Sands
tt Swartwout and Lmh M. Bullae all of
Blehmond. for defendant In enor.
whittle; J: The plaintiff In error, aa
administrator de 6onl8 non of Thomas Smith,
Jr., deceased, brought this action of assump*
sit against the defendant In error, Loula
B. Hatke, to recover $1,297.80, which sum
was paid to the defendant In the following
drcumstances: On November 25, 1907, Thom-
as Smith, Jr., who was a subscriber to an
assodatlon entitled the "Voluntary Snbscrlp-
tion Fund of Pullman Conductors -and Office
Men," In accordance with the contract, rales,
and relations of the association, dedgnat*
ed the defendant as his beneficiary in case of
his death. Smith died March 6^ 1909, and
thereupon the assodatlon ^aid tJtie fund to
the defendant
Upon the trial of the case the defendant
demurred to the plaintiff's evidence, and to
the action of the drcidt court auatalnlng
the demurrer and rendering judgment' tbero-
on for the defendant ta wror, Hatke, this
writ of error was granted.
The following la the form of tbe oontraet
out of which the transactifm arose:
"Whereas, It baa been deemed advlaable
that a mntnal and voluntarr agreement bo
entwed Into the sobacrlbera of these prea-
ents and all other like rabscrlben, that an
tflBodatton be fbrmed to be wtltted—
'^oluntai7 Snbsoiiition Fond of PnUman
Conductors ftnd Ofllce Mrau
"Therefiore^ be It agreed, that In tbo event
of the deaOi from any canso whatsoeret of m
snbacrlber to this fond each and every other
sabscriber shall give and draate tSie som of
one dollar, nie total unonnt of sodi sob*
Bcrlptlon to be paid to sncli benefldatT bm
may bo designated by said subsciiberB; It
bdng understood that subscriber can at any
time diange the name of beneficiary up<Hi
due notice to district agent It Is further
agreed, that If any snbscrtt>er default In any
sin^e call for subscription, that his name
be stricken from the list of sabscrlbers, and
that he shall forfeit any claims fop beoeflts
under the terms of this agreement"
Rule 6: "All subscrlptlonB must be paid
within thirty days after notloe of death Is re-
cdved, and irtien subscriptions are oompleted
•For other ombi see ssbm topic and wcUoq NUlfBBR la Dee. XUg. * Am. Dig. Ki$n^
SBUTH'S AM'B BATKB
588
la evdi dMiict penmuit dieck or draft
win be made out in the name of Uie b«De*
fldary and HBt to goiaal Agent, who will
forward same to horn atatloB ot aecaaaeJ."
The asaodatloit-ls aok a partr to thla Utt
gatkm, and the plaintiff In ttcor aawrta no
The entire fobrlc of plalntUTa case reate
vpon the iHropoeitioiui CI) that the contract be-
tween the aaaocUtUm and Us Intestate la to
be regarded as an ordinary Ufe Inanranoe
policy npon the life of the lattw, wUdi npon
bte death constltoted an asset of hla estate;
and <2) that the titte of the estate to the
fond was not affected by SmKli's designation
of Hatke as Ms ben^dary, since. It Is said,
Hatke had no Insnrable Interest In Smith's
Ufe, either as creditor or In any other ca-
pacity. Therefore, that hla desi^tion as a
benefldary was a mere wager contract on
the life of Smith and was void as contrary
to piU>llc policy. Unless the first proposi-
tion can be maintained, there will be no oc-
casion to concern ourselves about the second.
In other words, unless the fund is an asset
of Smith's estate, the action cannot be main-
tained by bis administrator for Its recovery,
whatever may be the inflrmlties in Hatke's
title.
The case of the Cosmopolitan life Insur-
ance Company v. Eoegel. 104 Va. 610, 62 S.
B. 166, la relied on for the contention that
this is an ordinary life insurance policy,
and that upon the death of the insured title
to the fund, by operation of law, devolved
upon his personal representative. An exam-
ination of the record in that case shows that
the "Royal Tribe of Joseph" (In which order
Koeget held a benefit certificate or policy of
Insurance on his life for $2,000 for the bene-
fit of his wife) was an Incorporated organ-
ization by the laws of the state of Missouri,
nnder the supervision of the Insurance de-
partment, with a written constitntlon, gen-
eral laws, by-lawa, and rules fbr its govern-
ment It had a full corps of trastees, bonded
officers, medical examiners, and such other
agents as are usually found on the rolls of
oth^ motnal Bfe Insnrance companies; and
also prescribed a membenhlp ace limit, with
gradnatad scale of premtnm lates, payable
pezlodlcaUy. m short, it was a regularly
equipped mntsal benefit Insnrance company,
wltti supreme^ grand, and snbordlnate lodges,
and was carniiig on that sort of Ufe Insnr^
ance bnslness tbronghont the United Statea.
Obc authorities are generally agreed In das*
dfying such organlsationB as mutoal Ufe In-
surance eompanleai
[1] On the otiur hand, Oie assodatkm in
the Instant oaae la anlnconMmta^ and, as
its name Import^ is a mere 'Voluntary siU>-
scrlptlon fund of Pullman' condoctora and
ofllce men," organized wholly for eleemosy-
nary purposes; and containing no proTlalon,
under any contingency, for payment of the
fond Tcduntariir dcmated, in whole or In
part, to tlie snbscrUier while living or to his
estate after death. On the contrary, the
contract expressly stipulates In language too
plain to be mlanndentood that the total
amount of the suhscrUitlQtt is to he paid to
such beneficiary as may be designated by
the subscriber ; and moreover, that the sub-
scriber can at any time diange the name of
the beneficiary upon notice to the district
agent
[2] It has been sepeatedly hdd br ooorts
of high authority that under similar certif-
icates -neither the estate of Che sabscrlba
nor his next of kin has any interest whatso-
ever In the fond wbera be flUls to designate
a beneficiary, or where flw bauOdary des^-
nated predeeeasoe tihe subscriber, or has no
insurable Intorest In his Ute, or for any other
reason Is not entitled to the fund. In all
such cases the donation refverta to the asso-
ciation.
In Leftwleh >. W«Us; 101 Tsl SBfi,
8. E. S64, 0» Am. St Bep. 866, this court fa^
that under a similar policy the subscriber
liad no iMoperty rights tberdn, hot enly tlie
power to appokit a bsn^ldary. To the same
effect ape the following dedsloiu from other
states: Hellenberg t. Dlst No. 1 of L 0: of
a B.. 94 N. T. 6S0; Taylor t. Hair (a CL)
112 Fed. 918 ; Warner Modem Wetidnien
of America, 07 Neb. 233, 96 N. W. 89T, 61
L. B. A. 608, 106 Am. 6t Rep. 634, 2 Ann.
Cas. 660; Cook v. Improved Order Hepta-
sopfas, 202 Hass. 80, 88 N. a 684; Swift r.
S. F. S. & B. Board, 67 OaL 067, 8 Pac. 94.
Other aiifthoritles tq the same point could be
cited, but tho^ given snffldwtly snataln and
illustrate the prlndple Involved.
As corollary to the proposition that dece-
dent's estate has no property ri^ts in the
fund, It follows that his personal representa-
tive cannot question Bathers title thereto.
Hagnlre v. Hagutre, C9 App. Div. 14S, 69
N. T. Sun)> 61 ; Munhall r. Daly, 87 IlL App.
eSS; Johnson v. Van Bppa, 110 111. 661;
Miners T. Schumann, 64 N. J. £q. 414, S4
AU. 1066: Stoelker v. miomton, 88 Ala. S41,
e South. 680, 6 L. B. A. 140.
Upon these considerations we find no etror
in the Judgment of the circuit court, and' It Is
affirmed.
Affirmed.
■Cfigitizecf by Vi
Google
586
78 SOtrTHBASTBBN lUDPOBTEa
(US Ta. UQ
L&HBBBT T. BABKBTT.
(SnprenM Gbort of Appnli of Tlrglida, June
12, 1»18.)
1. StaTITTBS (8 168*)— RbPEAU BT XHPX.ICA-
Repeals by implication are not favored by
the courts, and ue presumption it always
against the Intentioii to repeal whan express
terms are not nsad.
[Ed. Note.— For other cases, see Statates,
Gent Dis. i 228; Dec. Dig. | 158.*]
2. Statutes (S 160*)— Repeal— Pbebtwftioh.
To justify the presumption of intention to
repeal one statute by another, the two statutes
must be irreconcilable, and, if by a fair and
reasonable construction they can be reconciled,
both must ataod.
[Ed. Note. — For other cases, see Statutes,
Cent Dig. { 229; Dec. Dig. S 159.*]
8. MnniOIFAL CORPOBATIONB (I 124*)— COUN-
CIL—VaCANCT—RePEAL OF iSTATOTH— "MU-
KIOIFAL OfFICEBS."
Under Act Feb. 17, 1906 (Laws 1906. c
24), authorizing the several cities and towns of
the commonwealth to appoint officers and em-
ploy^ and providing for the filling of vacan-
cies in all municipal otlices for the unexpired
term, members of the city council are not mu-
nicipal officers In view bf other statates and
in view of their powers not being confined ex-
clusively to local affairs, and hence such act
does not repeal Code 1904, { lOlSe, providing
that when any vacancy shall occur in the coun-
cil of a city the conncM shall elect a qualified
person to fill the vacancy for the unexpired
term, and vacancies of the common cooncil are
governed by the latter act and not tjie former.
[Ed. Note.— For other cases, see Municipal
Corporationa. Cent Dtc H 290-297; Dec.
Digfj 124.*
For other definitions, see Words and Phrases,
vol 6, pp. 4628) 4229; toL 8, p. 7726.]
Error to Gorporatlon Oonrt of CUj of
Alexandria.
Quo warranto proceedings by Uiton S.
Lambert against Bobert S. Barrett From
a Jndgmrat for defendant, plaintiff bxiiigs
error. Reversed.
J. K. M, Norton, of Alexandria, for plain-
tiff in erron 0. E. Nlcol, of Alexandria,
for defendant in error.
BUCHANAN, J. This le a qao warranto
proceeding in Which It was determined that
the defendant In error, Rol>ert S. Barrett,
and not the plaintiff In error, Urban S. Lam-
bert, was entitled to the office of member
of the common council from the first ward
of the city of Alexandria, made vacant by
the death of Huberjt Snowden, who was elect-
ed a member of the common council at the
regular election. held on tbe aeoond Tnesday
In June, 1910.
On the 23d day of April, 1912, the com-
mon council, acting under section 1015e of
the Code of 1904, elected Mr. Lambert to
fill the nnexplred term of Mr. Snowden. At
the general election in June following, Mr.
Barrett was elected by the qualified Toters
of the city to fill the vacancy caused by tbe
death of Mr. Snowden, In accordance with
an act of assembly approved F^tmary 17*
1906. Acts of Aasembly 1906, pp. 17, 18.
The contention of the defendant in error
is, and the trial court so held, that section
1016e of the Code was repealed by the act
of February 17, 1906, and that tbe vacancy
was to be filled In the manner prescribed by
the latter statute.
By section 1016e of the Code it Is ^ovfded
that: "When any vacancy shall occur in
the council of a city having one branch, or
In either branch of tbe council of any dty
having two brandies, by death, resignation,
removal from the ward, failure to qualtCy, or
tram any other cause, tba conocll, or the
branch, as the case may be, In which such
vacancy occura, ahall elect a qnaUAed p^
son to supply the vaeancr tot tha nnexplred
term."
The act of February 17, 1906, la a> Col-
lows :
"An act to authorize the several cities and
towns of this commonwealth to appoint
officers and employes in addition to those
expressly authorized In their respective
charters and provide «for the filling of
vacancies in all municipal offlcea tat the
nnexplred term.
"1. Be it enacted by tbe General Assembly
of Virginia, that the council of every dty
or town of tills commonwealth having In
their several charters the power to appoint
certain munlcpal officers shall, In addition to
such power, have power to appoint auch
other officers and employee as tbe coundl
may deem proper, or any committee of such
coundl, or any mnnidpal board, or the may-
or of the dty or town, or any head of a
department of such dty or town government,
may also appoint such officers and employes
as the coundl may determine, the duties and
compensation of which officers and employes
shall be fixed by the coundl of the dfcy or
town, except so far as the council may au-
thorize such duties to be fixed by such com-
mittee or other appointing power, and may
require of any of the officers and employes
so appointed bonds, with sureties In proper
penalties, payable to the dty or town in its
corporate name, with condition for tbe faith-
ful performance of said duties. AH officers
so appointed may be removed from office at
their pleasure Joint resolution of the two
branches, and where the appointment Is by
a committee or board, by a vote of sncb com-
mittee or board, or where such appointment
is by tbe mayor or head of a departmoit;
such removal may be by order of the mayor
or head of department In case ot vaeancdes
occurring in any municipal position so au-
thorized to be filled, a qualified person may
be appointed to fill such position for tbe un-
expired term by the proper appointing pow-
er; and in ease of vacancy in any munidpal
office which Is elective by the people. If there
be no general election during the nnexplred
■Por oUwr csMi SM sum topic ud mcUod NUHBEB In IHc Dis. 4 Am. Dig. K^^Ntk^^s^^l
Vil)
T.AMBTCBT T. BARKKtT
687
term at which mdi vqcancr can be legally
filled, tile ctt7 or town oooncU mmj tiect
a qnallfled petBcni to fill nicb vaeancy until
a gnallfled poson can be elected hj the
people and ahall have qualified for the next
succeeding term, or when anch general elec-
tion does occur during the unexpired term
at which such vacancT can be filled, such
ctt7 or town council shall elect a qualified
person to fill such vacancy until a qualified
person Is elected to fill such vacancy at such
general election and shaH have qualified."
The act of Tebruary 17, 1906, does not ex-
pressly repeal section lOlSe of the Code.
Does it do so by implication?
t1,2] It is well settled that the T«peaL\
of a statute by Implication Is not favored by
the courts. The presumption is always
against the intention to repeal where express
terms are not used. To justify the presump-
tion of an Intention to re[>eal one statute by
another, the two statutes must be irreconcUa*
ble. If by a fair and reasonable construc-
tion they can be reconciled, both must stand.
Fulkerson v. Bristol, 95 Va. 1, 6, 27 8. R
815, and autborltiee cited.
If members of the dty council of Alexan-
dria ate municipal officers within the mean-
ing of tbe act of February 17, 1908, there
can be no question that the provisions of
that act and the provisions of section lOlSe
of the Code are in irrecootdlable conflict,
and that section of the Code must be re-
garded as repealed by the act of February
17, 1906. The question, therefore, to be de-
tmtDined Is whether they are municipal of-
ficers within the meaning of the last named
statute.
Jt Is not easy, as was said In Burch t.
Hardwlcke, 80 Grat (71 Ta.) 24. 33, 34, 82
Am. Sep. 640, to define them (city officers or
municipal ofiScers) In all cases; but there
are many such provided In the charters of
many of the cities of the state. Among
these are, perhaps, city engineers and survey-
ors, officers having superintendence and con-
trol of streets, parks, water works, gas
works, hospitals, sewers, cemeteries, city in-
spectors and no doubt many others well
known In lai^e cities. Their duties and
functions relate exclusively to the local af-
fairs of the city, and the city alone Is Inter-
ested In their conduct and administration.
On the other hand, there are many officers,
such as dty Judge, sei^eant, clerk, common-
wealth's attorney, treasurer, sherlfT, high
constable, and the like, some of whom are
recognized by the Constitution while others
are not All' these are generally mentioned
as dty officers, and they are even so desig-
nated in the Constitution, but they are not
removable by the mayor. The reason is that
while they are elected or apiwinted for the
dty, and while their jurisdiction is confined
to the local limits, their duties and functions.
In a measure, concern the state. They are
Btat« agencies or Instnimentalitiea, operating
t» some esEtent tUmicSi ttw medlnm of dtr
diarteia In the preaerratira of tiie pnUilc
peace and good govemment However elee^
ed or appointed, however paid, they are as
much state oflicen as constables, justices of
the peace, and commonwealth's attorneys,
whose jurisdiction Is confined to particular
counties. See, also, Mltehdl t. Witt, Judge,
98 Va. 409^ 86 8. B. fi28; Smith r. Bryan.
Mayor, 100 Va. 199, 40 S. a 652; 1 Dillon,
Mun. Corp. (5th Ed.) | 97; 1 McQuUlan.
Hun. Corp. { 178.
Tested by the rule laid dovrn In the case of
Bnrcb T. Hardwidce, supra, it Ginnot be said
that the duties and functions of a dty conn-
dl relate exclusive tb the local affairs of
the city. While many, perhaps tbe great
body, of the powers and duties of a dty
coandl relate exclusively to the local affairs
of the dty and to matters In whldi the dty
alone la Interested, th^ oerdse powors and
pertbnn duties in which Uie public at large,
or tin statB, Is Interested directly. Under
the provisions ct section 1088 of the Code,
dty councils have the power to lay off, con-
trol, and keep In order streete, whidi become
state highways and belong to On puliile or
the state. White Oak Coal Co. v. Mandies-
ter, 100 Va. 740, 64 S. B. 044, 132 Am. St
Sep. 943. Their jurisdiction for oertain puis
poses extends beyond the corporate limits.
In criminal cases it extends one mile beyond
the corporate limito. They have the right
to erect waterworks outside of tbe dty lim-
its, and, in order, to protect the -water from
pollution and the works from Injury, thdr
jurisdiction extends five miles beyond the
works ; and, for the purpose of carrying Into
effect these and other powers, thcgr can enact
ordinances and prescribe fines and other
pnnlshmente for their violation. While these
powers and others do not relate exduslve-
ly to the local affairs of the dtles, they are
In a certain sense municipal officers (Mitchell
V. Witt, Judge, supra), and. If there were no
other legislation on the subject, the broad
language of the act of February 17. 1906,
might be suffldent to Include them. But,
as there is other legislation on the subject
all the statutes In pari materia must be con-
sidered and harmonized If it can be done by
any fair and reasonable construction. Mit-
chell V. Witt Judge supra; Fulkerson t.
Bristol, supra.
[3] If members of a dty council be held to
be munldpal officers, within the meaning of
the act of February 17, 1006, that act would
be In Irreconcilable conflict not only with sec-
tion lOlSe of the Code, but also with that
portion of section 1015a of the Code which
provides: "That all elections to fill vacan-
des in any (city) coundl shall be for the un-
expired term." If they are munldpal offi-
cers, then under section 1038 of the Code
the mayor would have the power to suspend
and remove members of the dty coundl, for
that sedlon provides that the mayor shall
see Chat the varloue ^gft^^ge^gje^Ogft
588: 78 SOUTHBASTBBN BBPOBTEB
betH ot the police and fire departments,
whether elected or appointed, faithfully per-
form their duties, and gires him the power
to suspend such officers and to remove them
for misconduct In ofiBce or neglect of duty.
Section lOlSe prorldes that vacancies In
either branch of the council shall be filled by
the branch In which the vacancy exists, but
if that section has been repealed by the act
of February 17, 1906, a vacancy in either
branch would have to be filled by the Joint
action of both branches of the council,, for
tt la dear, we thlidt, that every vacancy
which the last-named act authotlEes the city
council to fill must be filled by the Joint ac>
tlon of both branched of the council, where It
consists of two branches.
If the members of a dty council be munic-
ipal officers, within the meaning of the act
of February 17, 1806, then it seems to ns
clear that the mayor is also a municipal ofil-
cer, within Its meaning. If this be so, then
It will bring that act In Irreconcilable conflict
with section 1033 of the Code. That section
provides that, upon the death; resignation,
or removal of the mayor, his plaee shall be
filled and his' duties dtschai^ed by the presi-
dent of the board of aldermen, or the presi-
dent of the council, according as the dty
oonncU has or has not two branches, until
another mayor is elected and qnallfled. That
section further provides that, wttbin ten days
after sndi death, resignatloii, or lemoval of
th» mayor, the corporattfxi or hustings court
Shan wder a spedal election to be held within
SO days after fhi order In ttotered to fill
silch vacancy, ivovlded the nnezidred term
remaining after sndi election la as much as
one year, while the act of February 17, 1906,
provides that In case ot * vacancy In any
municipal office wbldi Is elected die
people, If there be no general Section daring
the unexpired term at which such vacancy
can be legally filled, the dty conncU may
elect a qnallfled person to fill sadi vacancy
until a qualified person can be deeted by
the people, and shall have qnallfled for the
next succeeding term, or, when such vacancy
can be fliled, such dty council shall elect
a qualified person to fill such vacancy until
a qualified person Is elected to fill such va-
cancy at such general election and shall have
qualified.
If the members of a dty coundl are held
not to be municipal officers within the mean-
ing of the act of February 17, 1906, as we
think they may be, that act does not repeal
section 1015e of the Code and the other Bta^
utes referred to. By such a constructloD the
apparently conQicUng laws can be harmo-
nized and all stand.
We are of ophilon, thereforov that the trial
court erred In not so holding and in declaring
that the plaintiff in error, Lambert, was not
entitled to fill the vacancy made vacant by
the death of Hubert Snowden untU the end of
(Va.
the term for which tlie latter was ^cted.
Ita judgment muat therefore be reversed,
and this court will enter such Jodgment as
it ought to han cateved.
Beversed.
KEITB, abaeat
"^""^ UiB Va. Ul>
MIDDLB ATLANTIC IHBflOBATION Ca
V. ABDAN.
(Snpreme Ooort of Mipeals o< niglBia. Jam
12, 1918L)
1. Bbokus (I M*) CoMmanom — Wtm
Eabned.
A broker authorized to sell a tract of land
who sells it to a purchaser ready, able, and will-
ing to complete the parcbase is entitled to the
agreed commiaslotu od the sale.
[ICd. Note.— For other casea, we Brokers, Cent.
Dig. S! 75-81; Dec Dig. fi 54. •]
2. TBUL (i 260*) — iNSTBUCnONS — CUSB BT
OTHKB iHSTBDOnORB.
In a broker's action tor commisilonL an
iiutmction that If defendant authorized plalatiff
to sell a tract of land, and if sold to pay plain-
tiff a specified commission, and if plamtUC sold
the land to C., and C was ready, able, and will-
ing to complete tbe purchase, to find for plain-
tiff, was sufficiently covered by an instruction
that, befote the jury could find lor plaintiff,
tliey muat believe that C. was ready, willing,
and able in good faith to temply with ma con-
tract, and that in determining bis willingness,
readiness, and ability they might consider all
the facta proven in the case, and hence its re-
fusal was not piejadidal.
[Ed. Note.— For other cases, see Tr&l,'OeDt
Dig. {I 651-669; Dea Dig. 1 260.*]
3. BsoKEBs (i 88*)— Aonona roa Ooionsszova
— IiTSTOucnoNa
In a broker's action for eommlsaioas, where
there was evideoee tiiat a puiduuer was found
who professed himself ready, able, and willing
to complete the purchase, but who aubsequently
failed to do so, and that the owner in entering
into a contract of sale with the purdiaser re-
lied on the broker's statements as to tbe pur^
chaser's readiness, ability, and willingness, it
was prefer to refuse an instruction to find for
plaintiff if the failure to carry out the contract
was due eiUier to the fanit of the owner or of
the purchaser, and not to the broker's fault;
since if the failure was due wholly to the fault
of the purehsser, and there was no default or
mlBcooauet on the part of the owner, the brdwr
was not entitled to recover.
[Ed. Note.— For other cases, see Broken, Gent
Dig. Si 121, 123-130; Dec Dig. S 88.*]
4. Bbokbrs ({ 88*)— AonoNB Foa Coioiiaaioini
— iNSTBUCnONS.
Id a broker's action for commissions, where
there was evidence tending to show tbst s pur-
chaser procured by the broker, and who pro-
fessed himself ready, able, and willing to com-
plete the purchase, was not financial^ able to
respond In damages for bis fkilnre to carry ont
the contract, and that in entering into the con-
tract tbe owner relied upon the statements of the
broker sa to tbe purchaser's readiness, ability,
and willingness, fnstrtictions that if a valid,
binding, and enforceable contract was made be-
tween the pnrchaser and the owner throagb tbe
broker,: and if the purcl(aser was financially able
to carry out tbe contract, the teoker fully per*
formed its duty, and was entitled to lis com-
miasionB, if the failors to carry ent the contract
was due to no fault .of its, that if the pnrchaser
waa finandally able to perform the contract, and
•Tor oUmt cum ms bum tople and ssottea NUMBBB In Doe. Dig. a Am. DIt. KoyNo. SwImA IUd'j
Digitized by VjO'
lODDIiB ATLAJTTIO IMMIOBATZON 00^ r. ABDAH
68&
nfnwd to do 10, tbe owner eoald have bion^t
suit acBliut bim and recorend the omonut tbat
the parebaser agreed to pay, tbat tbe broker
could not bave iostitated a luit oor done any-
tbing forihor to enforce compl^on of tbe
•ale, that It waa the dutj of the owner t« force
the parebaser to comply with the contract, and
that unlen the broker consented to the owner's
abaodoniog tbe contract to find for plaintUi;
were properly refused.
[Ed. Note— For other cases, see Broker^ Ooit
Dig. 18 121. 123-130: Dec. Die. I Sa*]
IL Bbokbbs (1 88*)— AomiirB ra CoioaBnoiiB
— InSTKUCnOHB.
In a broker's action for commissioH on a
■ale of land which the pnrcbaser procured fail-
ed to coinpiete after entering into a contract, an
instruction that if the owner after investiga-
tion as to whether a aoit against the poichaBer
would be available to compal him to comply
■ with the contract was advised by his counsd
that a soit would be expensive and useless, and
would avail hfm nothing, be was not bound to
bring such suit, was irajnoper, since it left it
entirely to the discretion of tbe owner's counsel
to determine wbether or not It was his client's
duty to sue, whereas an investigation should
have been made as to the facts bearing upon tbe
advisability of suimg and all. the facts obtained
submitted to the jury for their determination as
to whether a mlt would have been unainlllng.
Note.— For other cases, set Brokers. Cent
Dig. H 121. 128-180; Vtc IMg. | 8a«]
Error to Circuit Court, Cumberland County.
Action by the Middle Atlantic Immlgnu
tlon Company against Jobn J. Ardan. Judg-
ment for defendant, and plaintiff brlnsi er-
ror. Berereed and reroandad.
The following luatmctlona were requested
by plaintiff:
"U) The court Instructs the Jury that If
they beliere from the erldoice In this case
that the defeodaut authorized the plaintiff to
sell the tract of land mentioned in the dec-
laration at 910,000, and If so sold by plain-
tiff to pay plaintiff a commlsston of $400,
and tbe plaintiff sold said property to M. F.
Casto, of Deerbead, Kan., and said Casto
was ready, able, and willing to complete said
purchase, then they must find for the plain-
tiff.
"(2) The court instructs the Jury that If
they believe from the evidence In this case
that the defendant personally entered into a
valid, binding, and enforceable written con-
tract with M. F. Casto for the sale to said
Casto of the defendant's property at the
price of $10,000, and tbat at the time of en-
tering Into such contract aald Casto was able
to comply with the terms of same, and that
tbe failure to carry out said contract was
due either to the fault at the defendant or
of said Casto, but was In no wise due to
any fault of plaintiff, and said failure was
without the consent and contrary to the wish-
es of said plaintiff, then they, 'must find
for the plaintiff to the ez^oit ot bis com*
missions.
"(3) Ttie court instructs Uie Jury that if
they believe from the eridoiee that a valid,
binding, and enforceable contract was made
between said Casto and the defendant through
the plaintiff as his agent, and that said
Casto was financially able to carry out his
part of said contract, the plaintiff fully per-
formed its duty towards tbe defendant, and,
having fully performed ita duty, It ts en-
titled to Its commlasions, provided the fall-
are to carry out said contract was due to
no fault of the plaintiff.
"(4) The court instructs the Jury that U
Casto was flnan<toUy able to perform his
said contract and refused to do so, and the.
defendant's title to the property was good,
then the defendant could bave brought suit
against him and have recovered tbe amount
tbat Casto agreed to pay for said property
under big contract with the defendant | that
tbe plaintiff In case could not have in-
stituted said suit, nor have done anything
further to enforce the completing of aald
sale; and that it was tbe duty of tb6 defend-
ant to force said Casto to comply with said
contract, and, unless they shall believe from
tbe evidence that the plaintiff consented to
the defendant's abandoning said coiutract,.
they must find for the plaintiff."
But tbe court refused to give the said in-
structions or any of them to the Jury, and-
gave tbe following ioatructlons :
"(1) If the Jury believe from the evidence
In this case that the defendant after the In-
vestigation as to whether a suit against Oas-
to would be available to compel him to com*
ply with his contract and was advised by
his counsel tbat a suit would be expensive
and useless and would avail him nothing,
then he waa not bound to bring suit against
Casto, as the law does not compel a man to
do a vain and useless thing.
"(2) Tbe court InstrucU the Jury that be-
fore they can find for the plaintiff tfaey-
must believe tbat Casto was ready, willing,
and able in good faith to comply with his
contract, and that In determining his willing-
ness, readiness, and ability to do ao ther
may consider all the facts provei In this
case. . .
"(3) The court Instructs tbe Jury that, be-
fore they can find for the plaintiff, they
must believe from the evidence that the fail-
ure of Casto to complete his purebase was
due either to a defect In the title or some
default on tbe part of (be defendant
"(4) Tbe court Instmets the Jury tbat It
they believe from tbe evldenoe In this ease
that the defendant waa ready, willing.: and
able to comply with the contract on his part, .
and did all tbat was necessary to do this, but -
that Casto arbitrarily and without good cause
refused to ace^H the deed tendered Uu by
the defendant, they must find for the d«flMd.
ant.
The Jury *n to detennine -from all
the evidence In tbls case wbetber or not tlM
plaintiffs have made a sale of tbe defind- .
ant's ftrm as under tbetr coutnwt ttaiej wwe
bound to do, and the Jury u« the^Judgee of i
•VaretlMr obms see same toptu and sMtlon NUKBBR U Dee. Dig. * iLra. Dig. Kiy-H^10
590
TO SOUTHnASTBRN BBPORTBB
the vc^t iDf the evldenM and tbe credibil-
ity of tbe witnesses'*
Gregory ft Boulwar^ and Meredith ft
Cocke, all of Richmond, for plaintiff In er-
ror. A. B. Percy, of I^ncbburg, and Wm.
Justia, Jr., for defendant In error.
KEITH, P. The Ulddle Atlantic Immi-
gration Company brought its action in as-
snmpslt against Ardan to recover the Bum
of f400 alle^ to be due it as commissions
for negotiating a sale of certain real estate
owned by the defendant The defendant
pleaded nonaasnmpstt, and a Jury was im-
paneled, which found for the defendant, and
from the Judgment rendered by the court
upon that verdict the JiUddle Atlantic Im-
m^ratton Company obtained a writ of error.
On the ^ut of the plaintiff there was
evidence which proved or tended to prove
that Ardan had listed with the Immlgra-
tira Company a c»taln parcel <a land owned
by him in the county ot Cumberland, and
was to pay the plaintiff in error the sum of
$S00 upon the agreed price, ii a purchaser
was fonnd by It Subsequently the contract
was 80 changed by agreement between the
parties that the purchase price of the land
was to be $10,000; and the plaintiff In error,
U it negotiated a sale, was to receive $400
In commissions. The plaintiff in &ror pro-
duced a man from Kansas named Casto, who
professed himself as r^ady, able, and willing
to 'purdiase the propwty in question, and
was accepted as a purchaser by Ardan at
the agreed price, and a written contract was
signed by both Ardan and Casto, which
sUtes that in consideration of $10,000, $5,-
000 of which had been paid by che(^ Ardan
agreed to sell to M. F. Casto 470 acres of
land known as "MelroBe," lying in Cumber-
lend county, together with all live stock,
Implmenta, and hous^old goods. The bal-
ance of the purchase money was to be paid
by the assumption on the part of Casto of
a deed of trust then upon the land for $3,-
SOO, and the residue of $1,600 was to he
paid <me yeo^ from date, with 6 per cent
annual interest, and to be secured by deed
of trust on the property. Ardan agreed to
give Casto a good and sufficient warranty
deed, together with abstract of title and
plat of the property, and to give possession
of the farm and personal property immedi-
ately on acceptance of the deed.
It further appears that the check for the
cash payment was placed by Ardan In a lo-
cal bank, by which It was' prematurely for-
warded to a Kansas bank for collection with-
out having a deed and abstract of title at-
tached thereto, as had been agreed upon.
When the check was presented. It was pro-
tested for nonpayment and returned, and
thereopon an abstract of title and deed were
prepared and attached to a draft, which
when presented Casto refnsed to pay and al-
leged certain objections to the tltfe. There
Is evidence which tends to prove that when
the contract was entered into Oasto waa
ready, able, and willing to buy and pay for
the land.
On behalf of the defOodant In error, Ar*
dan, the testimony proves or tends to prove
that he was wholly unacquainted with Cas-
to, that he accepted Casto as a pnrchastt
upon the faith of r^resentatlons made by the
agent of the Immigration Company as to
Casto's flnandal responsibility, and that he
signed the contract only upon the assniranee
of the company that Gaato waa anxious to
buy and would pay the dieck for the cash
payment as soon as Ju^ Smith, of Cum-
berland county, had approved the deed and
abstract of title; that fearing the check
m^;ht be lost or destn^ed he deposited it in
the Bank of Cartersville to be kept there un-
til the papers could be pr^red and attach-
ed to it hut by mistake the cashier sent
it on b^ore this was done, so that the Check
reached the bank in Kansas in advance of
the other papns which should liave aoeom-
panled it and the cbedt was protested for
nonpayment; that in the meantime Mr. Per-
cy, a Vli^la attorney, had prepared a deed
and abstract of title and sent them to Judge
Smith for vertflcaUon, and Judge Smith sent
them to the ImmlgratlOD Company with the
stfUsemeat that th^ were aU right; and tiiat
these were attached to a sight draft and
sent to Castors bank, but he declined to ac-
ceot aptm the ground that Uie abstract oi
title was not satisfactory to his lawyers in
Kansas, because the first abstract -was not-
signed by any one, although It mis accom-
panied by Judge Smith's O. K. To cure this ■
objection, Ardan had anoth^ abstract made
out by Mr. Percy, and caused him also to .
cure certain defects alleged by the lawyers
in Kansas to exist in the title, and these
papers were again smt to Mr. Qufto's bank,
and were again, returned without payment;
that a third abstract was made by Mr. Per-
cy, which was equally unavailing; that Az^
dan was always anxious to complete the
purchase.
The evidence further tends to prove that,
when it was found that Casto would not
take the property, Ardan set on foot in-
quiries through his council, Mr. Percy. )
to the advisability of bringing suit against
Casto; that Percy reported that from such
Information as he could obtain he thought a
suit against Casto would be useless. Mr.
Percy in fala testimony, aft» stating In de-
tail what had been done with reference to
the abstract of title, the preparation of the
deed and the removal of the objections to
the title, was Interrupted by counsel for the
plaintiff, who admitted that the objections
referred to In a memorandum prepared and
sent to Ardan by Caste's counsel were not
worthy of consideration, and did not affect
the validity of the title. Mr. Percy then
goes on to say that, after he fonnd that Cas-
to would not take the property In accordance
with the terms of the contract; he, invMtlaat-
Digitized by VjOUVTC
MIDDI^E ATLAZmO IMMiaBATXOK CO. t. ARDAN
591
ed Mr. Gasto'B condition with a view of
btlnglog fluit, and after a moat ezbanstlTe
Investigation advised Ardan that a anlt
asalnst Caato would not reBiUt In securing
the spedflc enforcement of fb» contract, w
damages for its breach, as hla financial con-
dition was not of sncb a diaractv as would
warrant tbe bringing of a milt, or aiable Ar-
dan to collect tbe -judgment if be obtained
onc^ should Carto desire to evade the «i-
forcement; that he gave tbls advice reluc-
tantly, because he knew it was Important to
Ardan to have the contract enforced If It
could be; and that It was upon the advice
of Mr. Percy that be desisted from bringing
action.
[1] When the evidence was b^ore tbe ju-
ry, tile plaintiff asked for certain Instmc-
tloDs, which were rejected.
In Bankers Loan, etc, Co. v. Spindle, 108
Va. 426, 62 S. E. 266, It U said: "If a real es-
tate agent or broker, in pursuance of his
contract with a landowner, has found a
purchaser ready and willing to comply with
the vendor's terms, and has brought the par-
ties together, and tbey hare entered into a
valid contract of sale which the vendor can
enforce, and the sale has been completed so
far as the agent is concerned, he cannot be
deprived of his compensatioa b; the volun-
tary release of the vendee and tbe refusal
of the vendor to consummate the sale, with-
out the assent of tbe agent" And the same
doctrine Is maintained in Crockett t. Oray-
sou, 08 Va. 354. 36 S. K. 477, and In PaschaU
ft Gresham v. GilUss, U3 Va. 643, 75 S. B.
22a
In Coleman v. Meade, 13 Bush (Ky.) 358.
it is said: "The true doctrine we take to be
this: The broker undertakes to furnish a
purchaser, and is bound to act In good faith
In presenting a person aa such, and when
one is presented the employer is not bound to
accept him or to pay tbe commission, unless
he is ready and able to perform the contract
on his part according to the terms proposed ;
but If the principal accepts htm, either upon
the terms previously proposed, or upon modi-
fled terms then agreed upon, and a valid
contract is entered Into l>etween the principal
and tbe person presented by the broker, the
comml8sl<m is earned." See, also, Arents v.
Casselman, 110 Va. 500, 66 3. E. 820.
In Parker v. Walker, 86 Tenn. 566, 8 8.
W. 301, It was held that "a broker who
agrees for compensation 'to procure a pur-
chaser' for lands has earned his commissions
when he effects a valid written contract for
the sale of the lands upon terms and with a
purchaser acceptable to the owner. Neither
the purchaser's refusal to perform his con-
tract upon grounds not Imputable to the
broker's fault, nor the voluntary failure of
the vendor to compel him to do so, will de-
feat the broker's claim for commissions." In
the course of the opinion Mr, Justice Lur-
ton said: 'The broker in such case has done
all be can Ho, and all he undertook to do.
He has produced a pnrdiaaer able to oomidy
or one satlsfadory to the seller, few be has
accepted him as a mrchasw and willing to
piarchase; for ho has freely bound hlms^
by a valid agreement to bny the property.
The subsequent unwillingness to carry oat
his pundkase cannot affect the validity of
the agreement by which he has bound him-
self to take the proper^. This assent of
the omtracllng parties, and tbls valid agree-
ment, having been brought about through ttie
IntervenCkMi of the agent, completes bis ob-
ligation, and Is all be jondertook to do, and
Just what his principal employed him to do.
If such a purchaser, being thus bound, nn>
dertakes to avoid his agreement upon Insnffl-
dent legal grounds, the vendor may. If he
choose, compel a specific performance; but
If he elect to release him rather than to in-
cur the expense, or annoyance, or delay of a
litigation, he ought not in equity and Jnstlca
make such election at t3ie expense of his
broker."
[21 While the authorities we have cited
show that the first instruction correctly
states the law aa established in this com-
monwealth, we are of opinion that Instruc-
tion Na 2, given to the jury by the court,
sufficiently states the inlnclple which it an-
nounced, and therefore that the refusal to
give instruction No. 1 asked for by the plain-
tiff in error was not prejudldal. and this
assignment of error is therefore overruled.
[t] We think the second Instruction was
properly reused, for It renders the sdlw
liable for commissions whether "the fiUIure
to carry out the contract was due to tbe
foult of the defendant or of Casto," pro-
vided there was no fault upon the part of
the plaintiff. In a case where there Is no
fault upon the pari of the agent nor upon
the i)art of the seller, but the whole fault of
tbe miscarriage lay with the purdiaser, we
cannot agree that the plalntUT Is entitled to
his oHnmisslons. His claim rests upon his
having presented a purchaser ready, willing,
and able to complete the purchase. It is
true that In this case a purchaser was found
who professed himself ready, able, and wlll-
Ing to complete the purchase. As to the
truth of these representations, the evidence
tends to prove that Ardan relied solely upon
the statements of the agents of plaintiff in
error, he himself having no acquaintance
with or knowledge of Casto^ exc^t what he
derived from th«n.
If the plaintiff is entlUed to recover, it
must be for a breach of contract upon
the part of the defendant by reason of his
having omitted to do that which by his con-
tract he ought t« have done, or having done
that which by the terms of his contract he
should have refrained from doing. The re-
covery must be based upon some default or
misconduct on the part of the defendant
In Parker v. Walker, sui»a, after stating
that the broker is oitlUed to his compoisa-
tion if he has produced^. ^L^^^g[^
593
78 SOUTHBASTBBN BBFOBTEA
comidy, the oplnlim iwoceeds as follows : "If
snch a pnrcliaser, being tbos bound, under-
/ takes to arold bia agreement upon Insuffi-
dent legal groimda, tbe vendor may, If he
chooae^ compel a qwdflc {>erformanc« ; bat
If be elect to release blm rather than to In-
cur tiie expense, or annoyance, or delay of a
litigation, he ought not. In equity and Justice,
to make snch electlcm at the expense of his
broker." To all ot wUdi ve flTe oar ud-
qualifled assent
As la said In Walker on the Lav of Real
Estate Agency, { 464 : "Where a broker, under
a general contract of onployment to sell real
estate, obtained a purchaser satisfactory to
his principal, who made an enforceable con-
tract of sale, without being Induced to do so
by any representations of the broker as to
the purchaser's reqwnslbtllty, and without
any bad faith on the broker's part, the latter
was entitled to commissions, though, without
the principal's fault, the vendee failed to
perform the contract solely because of the
lack of financial responsibltlty at the time
the contract was executed."
It will be observed that the case Just stat-
ed was one in whii^ the contract was made
between the vendor and the purchaser wlth-
ODt any representations on the part of the
brokw as to the purchaser's responsibility ;
while In the case before us the proof la that
representations as to the purchaser's re-
sponsibility were made by the broker and
were relied on by the oMer, In the same
section It Is said that, "where a vendor ot
land Is not influenced by misrepresentaUons
oC his broker as to the financial condition
of his vendee, SBcb mlsrepres^tations do
not constitute a ground for refusing to iwy
the broker's -commiaslon^— citing Irwin v.
Ifouibray (aty CL) p N. T. Bupp. 430.
VThea we speak of mlar^esentatlon, we
do not mean to any that there is any evi-
dence proving or tending to prove that the
plaintiff in error knowingly deceived the de-
fendant In error, but merely that the evi-
dence tends to prove that the plaintUT In
error represented to Its principal that Casto
was a pnrdiaser reedy, able, and willing to
buy, and flnandaUy reapMislble tor hla eon^
tracts.
[4] We are of oplnltm that the tiitrd and
fourth Instructions were also properly re-
fused.
[I] Thla.-brlngB as to the consideration
of a qnestlon of grave Importance to a prop-
er decision of this case. Ardan having ac-
c^»ted Oasto as a pun^ser upon the fkltta
of the representations of his financial re-
sponsibility made to him by plalntlfl in er-
ror, and Casto having refused to comply
with his contract, was H tbe dnty of Ardan,
under the facta ^sclosed by this record, to
bring suit agaln«t Casto, tither to oompel him
to perform hia contract or to recover ^un-
ages for its breach, and was that qaestlon
pn^)erly submitted to the Jury?
The Instruction bearing upon this point
which was given by the court la as follows:
"If tbe jury believe from the evidence In
this case that the defendant, after the in-
vestigation as to whether a suit against
Oasto would be available to compel him to
comply with his contract, and was advised
by his counsel that a suit woald be expensive
and useless and would avail him nothing,
then he was not bound to bring a suit
against Casto as the law does not compel a
man to do a vain and useless thing."
The effect of this instruction was to leave
it to the discretion of Ardan's counsel to de-
termine whether or not it was tbe dnty of
his client to bring a salt against Casto to
compel a compliance with bis contract, and
this we think was Improper. In order to
excuse himself from the duty of bringing
the salt, an investigation should have been
made as to the facts bearing upon the ad-
visability of instituting such an action, and
aU the facta obtainable upon that question
should have been submitted to the jury;
and, if as a result It should have been made
to appear that a suit would have been un-
availing, Ardan would have been excused for
declining to Institute It, for tbe law doea not
compel a man to do a vain and useless thing.
We are of opinion that for the error com-
mitted with respect to hutmctlon Mo. 1
given by the court the judgment should be
reversed and the cause remanded for a new
trial to be bad not in conflict wtQi tOt Tiewa
stated in this opinion.
Bcveraed.
(USTa.fl6>
SOUTHIBItl? BT. CO. V. BICE'S AS>U*X.
(Supreme Court of Appeals of Virginia. Jane
12, 1913.),
1. NeOLIOENCI (I 70*)— COIfTBXBQTOBT NUr
LiQBNCB— 'Violation oy OsoiRAncE.
As a general rule a person negUgeoUy
injured cannot recover if he was at uie time
df the hijury dt^ng seme act In violatloi of
a statute jor ordinance which contrlfa^t^ to
his injury.
[Ed. Note.— t'or other cases, see Negligence
Cent Dig. H 101-107: Dec. Dig. » 7&*]
2. NeQUOBNCI (I 119*) — COHTUBUTOn
Negligence— PiEAniwG—Paoor.
Contributory negligence may be liiown
onder a plea of not guilty.
[Ed. Note.— For other cases, see Nudtgesee,
Cent Dig. H 200-216: Dee. Dig. S m*]
3. Death (i S7*) — Conteibittobt Neou-
OEHCE— PDSADI NO— PBOOF.
Under an allegation of the plea In an
action for intestate s negligent death that in-
testate "was guilty of contributory negli-
gence," defendant could Introduce any evidence
showing that intestate was per se gufl^ of
contributory negligence or drcumfltances tend-
ing to show contributory ne^igeace.
[Bd, Note^For other eases, s«e Deaths
Cent. Dig. t 74; Dec Dig. | S7.*] ..
4. Tbial^ 260*)— ItxrusAL or Inbtbuctions.-
The refusal to instruct that, while the.
jury were the jndges of the facts, the court
was -the judge of the law and it was the Jury's
•For oUmt csms sum topta and section NUHBBR tn Dee. Dig. A Abl Dig. Kay-Na
Digitized
BOVTHl&RN BY. OO. T. BIOB*S ADM'X
693
dntr to accept and act apon the law as itat-
ed In the instructlo&s, the Jaxr applying the
facta as they migbt determuie them thereto,
was not error, where the court instructed
that it was the jodge of the law as applied to
the cue, and the Jiuj were the lodges o( the
facte nnd the weight of the testimony.
[Ed. Note^Por other case% see Trial, Oent
Dig. 11 6fil-669; Dee. Dig. | 200.*]
& UASTIB AKD SmiVANT (I 274*)— IKJXJBIM
— AD1II8SI0K or Evidence.
As « rule it is not permiBBiU& In an nc-
tfmi for a railroad employe's death, to ahow
that deceased had the reputation among his
fellow employes as a fast runner and baa pre-
TlouB to the fatal accident disregarded speed
ordinances, etc.
[Bd. Mote^— For other cases, see Blaster and
Servant, GenL Dig. SI 989-948 ; Dec Dig. I
274.*]
C ttxtem JUTD SiBTAKT (I 2T4«)— Isjmns
. —Admission or Evidbmcb.
In an action for a railroad employ^ a
death by derailment of his engine, evidence
that decedent had the reputation of running
fast and had exceeded the speed ordinances
before the accident was not admissible, where
the uncontradicted evidence showed that he
was running his engine at 12 to 15 miles an
honr Instead of the maximnm of 4 milea an
hour permitted by the ordinances.
[Ed. Note^For other cases, see Master and
Servant, Cent. Dig. M 939-949; Dee. Dig. I
274.*]
Brror to Law and Bqalty Coort of dtf of
Ricdunond.
Action Rice's Administratrix against
the Sonthem Railway Company. From a
judgment for plalntlfT, defendant brlnna er-
mr. BeverMd.
Hvnford, Huntoo, Williams ft Anderson,
of Richmond, for plaintiff in error. Hunsdon
Gary, and Wm. <^nmp Tndcer, of Richmond,
for defendant In error.
BtlOHANIAM, J. Thla Ib an action to re-
cover damages for tiie alleged negligence of
the Soutbem Railway Company, which re-
sulted in the death pf the plaJntUTs intes-
tate, Jamea O. Bice.
TIm decedent was an englneman of the rail-
way company in charge of one of its yard
engines. Bis deatb was caused by the de-
railment and OTertumlng of his engine at or
near Fourteenth street, in the eLtj of ^ch-
mond. Conceding that the evidence Is suf-
ficient to show that the defendant company
was guil^ of ne^Igenoe In the construction
and maintenance of Its tnuA where the
engine was derailed, there was evidence tend-
ing to show that the deceased, when operat-
ing his train at the time he vas injured, was
violating a speed ordinance of the city of
Bichmimd, and that. If he bad been operating
bis engine within the speed limit, there
would have been no accident, and he would
have suffered no injury, notwltbstandlny the
condition of the track.
. . Tbe weed limit llxed by the ordlmmce for
eaglnes, eta, on a railroad trade In a street
wa^ not to ii) excess of four miles an hour.
and any one who pmvSUed It »t a greater
rate of speed w caused it to be donoi w a»-
slsted in di^ It or causing It to be dMM^ was
subject to a fine of 910.
Thene was evldenoe 0iat the engine opwat*
ed by the plalnturs deoedoit was moving
with IS loaded and S empty cars from tbe
eastwn end of the city over or acroea Four-
teenth street, on a slight uKrade, on its way
to Manchester; that Just before readdng tbe
tbe line of Fourteenth street, or while in
the street, the engine was derailed, passed
over the street, ovor tbe sidewalk, into the
yard on tbe west side of tbe street, over or
across a side track, thence to another ^de
track on which was standing a box car, with
which tbe engine collided and was overturn-
ed. The injuries causing the death of the
plaintiff's Intestate were from escaping
steam, resulting from the overturning of tbe
engine. Tbe evidence further tended to show
that the distance whidi the engine moved
after It was derailed before It collided with
tbe box car was some 130 feet or more, and ,
tb$A If tbe engine bad been running within
ttie speed limit It would not have graie after
It was derailed with Its train anything like
that distance.
The principal questlott Involved in this
writ of error Is as to giving and refusing
InAroctlona.
The contention of the defendant company
is and was that tbe plaintiff was not enti-
tled to recover if it appeared from the evi-
dence that at the time her decedent was In-
jured he was operating bis engine In viola-
tion of the speed ordinance of the dty, And
that the excessive speed at which he was
ronnlng his engine contrlbated to bis In-
Jury. Tbe plaintiff, on tbe other band, in-
Blsted and insists that such violation of the
ordtnanee did not bar her recove-ry unless the
Jury believed from the evidence that tbe
plaintiff's Intestate was operating his engine
at a negligent rate of speed, and, if so, that
such negligence contributed to his Injury.
In other words, the question Involved la
whether tbe violation of the ordinance sudt
violation contributing to tbe {dkintUTs Intes-
tate's Injury, amounted as a matter of Uw
to contributory negligence or was merely
evidence tiding to show contributory ne^^I-
gence. •
The railway company insists fliat tbe <aae
of Atlantic & DanviUe R. Co. v. Relger, 9S
Va. 418, 28 8. n 090. and tbe cases In wblcb
It has been followed, sustain tbe railwaj
compaqy'i intention, while, on tbe other
hand, tbe plaintiff rtfimg that the case of
ChoBapeake ft Ohio Ry. Co. v. Jennings, 98
Ta. 70, 84 & B. 986, directly, and certain
other of our cases lndlre<ctly, sustain ber
contention,
Witbont reviewing tiie cases relied cm by
either tbe plaintiff or defendant or attempt-
ing to harmonize the real or apparent con-
•Tor other easM im msu tapie sad SsetlOB MVUBBR la Dm. XMc * Am. Dig. ^V^^g^l^^^ftfjU^^fC
594
T8 SOnTBBASTBBN-BEFOBTEB-
fllct between tbem, it any, we wUl eonslder
the iinestlon InTolved here as one of first
impression In ttils stat^ since none of tbe
cases relied on by either side Resent the
question of the rl^t of an enslneman to re-
cover damages tram his employer for In-
juries saffered vrbm running his engine In
violation of a clt? ordinance and snch Tlola-
tion directly contributed to his injury.
[1] The text-books seem to be agreed that
the general-rule is that, if the person injured
was at tbe time he received the injury doing
some act in violation of a statute or ordi-
nance, he cannot recover, if such violation
contributed to his injury.
Shearman & Redfleld, in their work on
Negligence (5th Ed.) vol. 1. S 104, lay it down
as the general rule that: "If the plaintiff is
acting in violation of a statute or ordinance
at the time the accident occurred, and
such violation proximately contributes to his
injury, he Is guilty of contributory negli-
gence. But. If Bucb violation does not con-
tribute to tbe Injury, It Is do defense."
Labatt on Master & Servant, { 362, says:
"There can be no question that where a
servant's injury was proximately caused by
the fact that he was violating a statutory
or municipal ordinance, the meaning and
effect of which are perfectly clear, he cannot
recover damages."
In Cooley on Torts (8d Ed.) voL 1, pp. 273,
274, It Is said that the fact that a party in-
jured was at the time violating the law does
Dot put him out of the protection of the law;
be is never put by the law at tbe mercy of
others. If he is negligently injured on the
highway, he may have redress, notwithstand-
ing at the time he was upon the wrong side
of the road, provided that act did not con-
tribute to his injury.
29 Gyc. S25, In stating the general rule,
eays that: "If the person Injured was at
the time of receiving the injury doing some
act In violation of a statute or ordinance,
-such person cannot recover if such vlolatlou
contributed to the injury ; the violation
amounting to contributory negligence."
In 7 Am. & Eng. Enc Law (2d Ed.) the
general rule Is stated as follows: "It is
cot contributory negligence per se for the
Injured person at the time of his Injury to
be engaged In a violation of law, either posi-
tive or negative in its character. Before
an illegal act or omission can be held con-
tributory negligence, it must appear that
such act or omission was a proximate cause
of the Injury. It is usually held that the
mere collateral wrongdoing of tbe plaintifF
cannot of itself bar bim of tils action when
It did not proximately contribute to his in-
Jury." Thompson on Neg. (2d Ed.) | 11;
Beech on Contributory Neg. I 47; 4 DUlon,
Mun. Corp. note, p. 3004, casea
Tbe general rule as laid down by the text-
writers quoted and by others which might be
cited seems to be fully sustained bj rea-
son and authority.
The reason why no recorery i» pomltted
In such a case Is based upon grounds of
public policy. Hiat principle of public pol-
icy is this (as stated by Lord Mansfl^ in
Holmes T. Jolmson, and quoted with ap-
proval in Boiler v. Hurray, 112 Ya. 780, 783,
784, 72 S. BL 665, 38 L. B. A. [N. 8.] 1202,
Ann. Cas. 1813B, 1088): **Bx dolo malo non
oritur actio— no court will lend Its aid to a
man who founds his cause of action upon
an immoral at an illegal act; If from tlie
plaintifrs own stating or oth»wlse the cause
of acUon appears to arise ex turpi causa* or
tbe transgression of a positive law of this
country, there the court says be has no
right to be assisted. It is upon that ground
that the court goes; not for the sake Of the
defendant, but because they will not lend
their aid to such a plaintiff."
While this rule finds its application more
frequently in actions upon illegal contracts.
It applies to cases in tort It Is immaterial,
as was said by Judge Gray in Hall v. Cor-
coran. 107 Mass. 251, 253 (9 Am. Rep. 30):
"Whether the form of the action is In con-
tract or In tort, the test in each case is
whether, when all the facts are disclosed,
the action appears to be founded in a vio-
lation of law. In which tbe plaintiff has tak-
en part." See. also, 1 Am. A Eng. Enc Law
& Pr. 1024 ; 38 Cyc. 529. 630. and cases dted
in the notes to each; Newoomb v. Boston
Protection Dept. etc., 146 Mass. 086, 602,
16 N. E. 6S6, 4 Am. 8t Bep. 354; Broechart
V. Tuttle, D9 Oonn. 1. 21 AtL 828^ U L. B.
A. 33.
The case under consideration seems Co
come clearly within tbe general rule that
although a person has sustained damages, if
the damages arose out of an illegal act or
transaction in which be was mgaged, be
cannot recover.
In Newcomb v. Boston Protection Dept,
supra. It was said in the opinion of the
court that "no case has beui brought to
our attention, and upon careful examination
we have found none, In which a plaintiff,
whose violation of law contributed directly
and proximately to cause him an injury,
has been permitted to recover for it; and
the decisions are numerous to the contrary."
It was held In M.. K. & T. By. Go. v.
Roberts (Tex.) 46 3. W. 270. that an employe
(an englneman) could not recover damages
from his employer for injuries suffered while
running his engine within the limits of a
city at a higher rate of speed than that
fixed by ordinance, if such negligence proxi-
mately contributed to tbe Injury.
UtUe T. Southern Ry. Co., 120 Oa. S47,
47 S. E. 953, 66 L. a A. 509; 102 Am. St
Rep. 104, decides that an employ^ (engine-
man) of a railroad company cannot recover
damages from his employer for injury suf-
fered while running his engine In violation
of a penal statute or a municipal ordinance,
if such injury wu prozlmat^ caoseA by
sncb TlolatloiL GoOglc
I
Va4 BOUtHERN.BT. 00,
In eaeb of the two caaee last dted It was
sought, as In this case, to escape the effect
of the plalntUTs conduct In violating the or-
dinance, etc., upon the ground that the de-
fendant Itself was responsible for such vlo-
ladoD ; but In each It was held, and proper-
ly so, we think, that, If the railway knew
that the ordinance waa regularly rlolated by
Its employ^, it would not reliere the vio-
lator of the law of the effects of such vlo-
lation. It would be contrary to public policy
for the courts to relieve a person of the ef-
fect or consequence of his violation of law
upon the ground that the railroad company
and its employ^ were In the hatdt of vio-
lating the particular law.
The plaintiff Inalsta that even If the evi-
dence showed that her Intestate was rlolat-
log the dty speed ordinance when Injured,
and that such violation directly contributed
to bis Injury, and was therefore negligence
as a matter of law, instrucdona A, B, and B,
which BO told the Jury, were properly re-
jected by the court, becaose such violation
of the ordlnanoe was not stated In the rail-
way company's grounds of defense.
It, I] One of those grounds of defense (the
fifth) states: 'That the plaintUTs IntesUte
was guilty of contributory negligeMe." In
order to prove that the plaintiff's Intestate
was gullfy of contributory negligence, no
other than the plea of "not guilty" was neces-
sary. On motion of tbe plaintiff, the court
ordered the railway cominny to file the par-
ticulars of its defense, which was done. No
objection was made to the statement filed.
Under tbe fifth ground stated, the railway
company clearly had the right to introduce
any evidence wblcb showed that the plaln-
tifTs intestate was per se guilty of contribu-
tory negligence, or, being relevant, tended to
sbow along with the other facts and circum-
stances of the case contributory negligence.
From what has been said. It follows that
tile court is of opinion that the trial court
erred In refusing to give Instractions A, B,
and B offered by the railway company, and
In giving Instruction Na 7, which Is in con-
flict with them.
[4] The refusal of the court to give the
following Instroction offered by tbe rail-
way company is assigned as error: "The
court instructs the Jury that, while they are
tbe Judges of the facts, the court is the
Judge of the law, and it Is the duty of the
Jury to accept and act upon tbe law as staV
ed In the Instmctlons ; they applying the
fticts aa tbey may detomine them thereto." -
). T. BIOE'S ADM*Z 696
While the instruction in question correctly
stated the law, no ^prejudice resulted to the
plaintiff In error from the court's refusal to
give it, since the court stated to the Jury, aft-
er reading to them the other Instructions
given, that tbe court was tbe Judge of the
law as applied to the case, and they were the
Judges of the fiicts and tbe weight of the
testimony.
[B] Tbe court refused to permit the rail-
way company to Introduce evidence tending
to show that the plafntifTs decedent had the
reputation among his fellow employes as a
fast runner and had previous to the accident
in which he was injured, and at the same
point, disregarded the speed ordinance. This
action of the court is assigned as error.
The general role la that such evidence is
not admissible.
Prol Wlgmore, In his work on SMdence,
I 65, in discussing the admissibility of evi-
dence of that character, says: "A few courts
have shown an inclination to admit excep-
tionally the character of a person charged
with a negligent act (contributory negligence
if a plaintiff) as throwing light on the proba-
bility of his having acted carelessly on the
oceasl<m in question, provided that the otller
evidence leaves the matter In great doubt,
or that the evidence is purely circumstantial,
or (as sometimes put) that there are no eye-
witnesses testifying. • • • Such evldrace
is no doubt likely to be of some probative
value in such cases, and under the above
limitations is hardly contrary to the ordi-
nary policy of avoiding confusion of issues
(ante 64). As a matter of law, however, the
doctrine la maintained in a few JorladlctlonB
only and baa bean expressly repodlated In
many."
[I] Even In those Jurisdictions wbere this
exceptional rule prevails, as stated by Prof.
Wlgmore, the rejected evidence would not
have been admissible under the facts of this
case, since the uncontradicted evidence shows
that the engineer was running his engine at
a speed of firom 12 to 16 miles an hour Instead
of 4 miles, the maximum speed permitted
by the ordlnanee. The court pnqwrly reject-
ed the evidencei
For refu^Dg to give Instmctlons A, B, and
B offered by the railway company, and fbr
giving Instruction No. 7, the Judgment com-
plained of must be reversed, the verdict ot
tbe jury set aside, and the cause remanded
tor a new trial to be had not In conflict
with the views expressed In this opinion.
Berened.
Digitized by Google
596
n SOUTHiQASTBBN ABFOBTIQB
(UK Ta. tt)
OAMDBN T. TIBOINIA SAFE DEPOSIT ft
TRUST CORPORATION.
(Supreme Court of Appeali of Virginia. Juno
1. Baitkb awd Bankiito (I 317«)-TbU8T
Companies — Distbibutior or Asaere—
BlU. BT DlBECTOBS AND StOCEHOI.DEB»—
JUBISDICnOK.
Where & lafe deposit and tmat corpora-
tion bad large aBsets and liabilities, and not
only conducted a bank with branches through-
out the state, bnt acted aa a bonding company,
as executor and trustee, and bad received a
conveyance by its president, for the berftfit
of depositors and creditors, of real and per-
sonal proper^ valued at fZOO^OOO, and it ap-
pearing to its directors that it was doubtful
whether it could be successfully continued aft-
er ita president had been incapacitated by
illneas, they were authorized to file a bill for
the adminietration of the corporation's assets
In equity, so as to protect -the interests -of all
conceniea.
[Ed. Note.— For other cases, see Banks and
Banking, Cent. Dig. | 1222; Dec Dig. { 317.*]
2l Cobporations (S 810*)— DiBiCTOBa— Dr-
TIES— PbOPEB PEBFOBUANCK.
What constitutes proper performance of
the duties of a director of a corporation is a
question of fact, which must be determined in
each case in view of all the circumstances, the
character of the company, the condition of Ita
bnsinesfl, the usual method managing inch
companies, and all other xelerant facts-
[Ed. Note.— For other cases, see Corpora-
tiona, CeaL IHf. || 18S2-18@; Dec Dig. I
810.*^
S. Baku astd Bakkiiio <i 54*)— Dibiotobs
— NaTTJSB or DUTXEA— TBUfirTEBS.
The directors of a bank are not only
trustees for stockholders, but owe an even
earlier duty to depositors, the law requiring
a strict performance of those duties, it not
being sufficient to exculpate a director that no
actual dishonesty could be shown, or that it
could not be proved that he had been influenc-
ed by interested motives; he being required
to discharge the obligations of his trust with
fidelity for the benefit of stockholders and
depositors.
[Ed. Note.— For other cases, see Banks and
BuUn^Cent Dig. ^ 02-88. 106-107; Dec.
4. Bankis and BAnEiNO (S 817*) — Tbust
OOMPANIEft— ADVINISTBATION OW AB8ET8—
Bili^Majobitt or Dibectobs.
' Since directors of a trust company are
liable to stockholders and creditors for any
damage that may accrue by reason of any neg-
ligence on their part in case the assets of the
corporation are inadequate to satisfy ita lia-
bilities, they are authorised, in ease of doubt,
to file a bill for the adnUnistration of the
company'a assets In equity.
[Ed. Note.— For other cases, see Banks and
Bankinc, Cent Dig. | 1222; Dec Dig. { 317.*]
0. RlCntTEBS (I 74*)— TBDBT OOHFAKIBS—
Patkbitt or AaasTB— Injunction— Gon-
nuFT.
Where receivers were appointed for a
trust company, and an order granted requir-
ing surrender ot all asaeta of the company,
indudin; funds in the hands of branch man-
agers to the receivers, snd one of such man-
agers, with knowledge of the order, wrong-
fully paid the company's indebtedness to a
depositor to her, he wa« fuilty of contempt.
TEd. Note.— For other cases, see Receivers,
Cent Dig. |S 132-135; Dec. Dig. | 74.*]
& CoNTEXPT (i 81*)— SAxnTAonoir «r Judo-
MB NT.
Where a branch manager of a trust com-
pany, with knowledge of the appointment of
receivers therefor, and of an order requiring
the surrender of the compaiij'B funds to the
receivers, wrongfully paid a depositor's bal-
ance to her, for wUcn he was convicted of
contempt and ordered to be imprisoned untB
he paid over the amount or was disdiarged by
order of court, his payment of the money, or
his iuability to do so on account of poverty,
insolvency, or other cauae not ittribntable to
his fault, should ba accepted as a satij^actifni
of the contempt
[Ed. Note— For other caaea, see Contempt,
Cent Dig. I 272: Dec Dig. 1 81.*]
Appeal from Corporation Court of Alex-
andria.
Bill by Thomas 1. Fannon and others, aa
directors and stockholders of the Vlrgiiila
Safe Deposit & Trust Company, against such
company for the adminiatration of Its af-
fairs in equity. Receivers having been ap-
pointed, and R. Lee Camden, manager of the
defendant's Loringston branch, having paid
ont money on deposit to the depositor with
knowledge ot the leceiverehlp, an applica-
tion was made by them to recover the amount
BO paid from the payees and from Camden,
and, from a Judgment adjudging him goUtr
of contempt, be tppoala. Afflnned.
Harrison ft Long, of LTUchbuiv, for ap-
pelant 8. G. Brent; of Alexandria, for ap.
pellee.
KEITH, P. This suit originated in a bill
filed by Thomas J. Fannon and others, as di-
rectors and stockholders of the Virginia Safe
Deposit ft Trust Corporation, In which It is
stated that the defendant was incorporated
under the laws of the state of Virginia, with
ita prluc^l office and place of buslnesB in the
city of Alexandria, Va., and had been for
some years past engaged in the business of a
trust and bonding company In said city; that
It received deposits as a bank, and had no-
merouB branches in various parts of Virginia
where deposits of money were received, and
that said company acted as a bonding com-
pany, executor, trustee, etc ; that there were
deposits of large amounts ot money with the
company, and that it possessed large cesonic-
es and assets, ample It was believed to meet
all its obligations to d^>o8itorB and creditors,
and to all estates and trusts for whldi it was
bound; that owing to the Uhiess of the pres-
ident of the defendant, and being without
reasonaUe aasorance that he would be able
personally to conduct its affairs, for Bome time
to come, the complainants found themselves
unable to carry on the business of the de-
fendant; that while it was believed that the
assets of the corporation would be ample to
meet all of Its obligations, yet aa there would
be calls, in the near future, for large sums
of money, they doubted their ablU^ to raise
the same, deprived of the services of their
president, nor could they hope successfally
•VW Other easMsessaaatsptoaaaaseUmNUHBaBlBDaa. Dig.* Ah. IMg.K«dF^iNi^liB0
Va.) 0AMDE17 T. VmOIKZA BATE- DBPOSXT A TJEtUST OOBPOBATKnT 69T
io ccmdncC tbe traslneM of ttw defendant In
the future ; that beeaoM of thwe condltloiii
the porixraes for which the company waa
formed hare telled, and It cannot be longer
eondncted either pn^tably or to serve any
pnrpose of its creation or existence; that
for the protection of Its aaaeti for the benefit
of Its depofiltora, for those for whom It had
acted as executor, tmatee, etc., and for those
for whom It had glTcn bond. It was neces-
sary and Impwatlve that Its affairs be taken
cdiarge of by a court of egolty, that a re-
celrer or recelrers be appointed, and that Its
assets and resoarces be collected and realis-
ed upon and dlatrlbnted amongst those en-
titled thereto equitably as th^r Interests
might appear; that complainants are all of
Ita directors, except Its president, and have
approved this application to the court, as ap-
pears by a resolution of the directors attadi-
ed to and asked to be read as a part of the
bill; that in order to secure all depositors
and other creditors against any posslblUly of
loss, in any event, the presldwit of the de-
fendant had conveyed to it laige properties,
mostly valuable real estate, of an estimated
value of 9200,000. Wherefore the MHupIaln-
antd pray that the Yi^dnla Safe Deposit ft
Tmst Oorporatlon be made a party dc^end^
ant to the Mil and reooiMd to antwer,tlw
same, an answer under oatti btfng waived;
that a receiver or reoelTars may be appoint*
•d the said defendant; that lU aaseta
may ba collected and distributed and its a£-
flUiB wound op nndar orders of the amrt
To this UU ona of the plainttffs made oatb.
and at a subfleqinnt day the oorpontl« ap*
peared by ita connsd and filed its annrer.
In which it says 'that it admits aU tha aUa-
gattinia tt0 bill of ciHnplalnt and jolaa
with tbe oom^ainanti In tba Nqocst that a
receiver be cqipalntad Cor it, and liiat its
affairs may be wonnd up under wders ot this
coDrL"
Thereupon rec^vws were appointed of tbe
Vlrglnta Safe Deposit ft Trust Corporation
and all the brandies tbenot and were di-
rected to take dtarge of all the assets of the
d^endant and its branches, and all pn^rty,
real, tmrsonal. and mixed, to collect all debts,
and bold tfaa same subject to tbe orders vt
tile oourt.
On June 10, 1911, the receivers reported
that R. Lee Oamden, tbe manager of the
branch of tbe defandant company at Lovlngs-
ton, Va., bad paid out to Mrs. F. H. Eldd on
a certiflcato of deposit the sum of fS.lU.08,
and divers sums to certain othar parties,
which need not be further r^erred to.
The cause emnlng im to be heard on t3ie
J.5th day ot June, 1911, upon the papers foiv
merly read and the r^rt of the receivws, a
rule was directed to be Issued i^alnst B. I*
Kldd, Mrs. F. H. Kldd. his wife, and B. Lee
Camden, the manager of the Lovlngston
hrandi, ietumable wltUn 10 days, "to dTow
«anse» if any tbsy can, why tbay should net
be proceeded against for' oentenipt, and fur-
ther why Judgment shonld not bo aotMod
against tbsm*' for tbe aamint of tlw pay-
ment
' Kldd and his wlf^ and Camden, filed their
answers to this rule, and such proceedings
were bad as resulted in a decree of July 21,
1911, which recites that the sum of $24»3.S8
was turned over by Oamdoi, manager of tho
branc4i of the corporation at Lovingstoo, Va.,
after he had been notified that the recelvws
had been app<rfnted, to B, L. Kldd as agent
for his wife. Mis. F. H. Kldd; that the said
sum had not been retuined to ttie recovers;
and It was thereupon adjudged, ordered, and
decreed that the said B. L. Kldd, Mrs. F. H.
Kldd, and B. Lee Camden do restore, pay,
and turn over forthwith to the receivers la
the cause the said sum of $2493^ with In-
terest thereon from the 20th day of Decem-
ber, 1010, and a decree wa» entered in favor
Of the receivers against the said parties.
Jointly and severally, tor the said sum, with
Interest thereon. It was further decreed
"that, unless the said B. L. Kldd. Mrs. F. H.
Kldd. and B. Lee Camden, or some one of
them, shall, within thirty days from this
date, restore, pay, and turn over to J. K. K.
Norton and Howard W. Smith, receivers In
this cause, the sum of 93,198.33, with inter-
est thereon ftom the 29th day of December,
1910, tbe derk of this court Is directed and
ordered to Issue an attadunent directed to
the sheriff of Nelson eonn^, Vli^la, vequlr-
Ing blm to attach and take In custody the
persons of tiie said B. L. Kldd, Mrs. F. H.
Kldd. and R. Leo Camden, and deliver tliem
to the sergeant of the dty of Alexandrlat
* • • to bo by the latter bold and con-
fined In tho Jail of the eltf of Atocandxia,
Virginia, until the said sum and intmst
and costs bo paid aa above dtreoted, anises
sooner released by order of this eouit or
tiie Judge thereof."
From that decree Kldd and wife obtained
an appeal to this conr^ and tho decree of
the corporation court of Alexandria was ro-
reneA; tho cobrt bdng of ttpinim tbat "Im-
prlsoiunmt for debt passed away In this state
with tbe aboUtion of tbe capias ad satisfac-
iendum in 18^ and In a proosedlng for con-
tempt, where tJio contempt is not establish-
ed. It is error to sedt to enforce the return
of money Improperly paid by an order direct-
ing the Imprisonment of the defendant, If the
money be not paid." See Kldd v. Va. Safa
Dep* ft Tr. Corp., 118 Va. 612, 7B S. B. 145.
The court, in the course of Its oiAnion, said,
"We are of oidnlon that the evidence was not
Bufildont to find tbe appellanto guilty of the
ecmtempt wltli which they were diarged;"
and the opinion concludes as fi>llows: ' "The
decree of July 21, 1911, so far as It affecbt
tbe appellants. Is emmeous, and must be re-
versad, and the contempt proceeding as to
them dlamiased."
0*0 onlr aWN^ »B,f|f|d^»ieJW)§le
598
78 SOnTBIEASTBRN HSPOBTBB
L. Kldd and MriL 7. H. Kidd. At a ndwa-
gneut day B. Oamden filed hU petition
for an appeal from the same decree, wUch
was awarded July 20, 1912.
The errors assigned by Camden In Us pett-
tlon are, first, tbat tbe coort abould have dis-
missed the rule on the cronnd tbat It was
withoat Jnrlfldlctlon.
[1] The bUl was filed by certain indlTldv-
als styling themselves directors and stock-
holders of the defendant corporation. The
object of the bill plainly Is to bare all the
assets of the corporation admli^stered by a
court of equity, so as to protect the rights
and Interests of all concerned. The biU
states the case of the plaintiffs very briefly
and socclnctly. bat from its averments no
tlonbt is left that the affairs of the defend-
ant were much complicated. It conducted
not only a bank of depoedt in Alexandria
with branches in other parts of the state, but
it acted as a bonding company, as executor,
and as trustee. It had large liabilities and
resources, including an assignment by its
president, for the benefit of depositors and
other creditors, of real and personal property
of an estimated ralne, as stated In the bill,
of 9200.000.
[2] In MarshaU v. F. & M. Savings Bank
of Alexandrto, 8S Va. 676, S S. E. 586, 2 L.
R, A. 634, 17 Am. St Rep. 84, this court
quotes with approval from Morawetz on
Private Corporations, who, speaking with ref-
NOice to the duties of directors, says (sec-
tion 562) that "the plain and obrlous rule is
that directors impliedly undertake to use as
much dlhgence and care as the proper per-
formance of the duties of tbdr office re-
quires. What constitutes a proper perform-
ance of the duties of a director is a question
of fact, which must be determined in each
case In view of all the drcumstanceB, the
character of the company, the condition of its
business, the usual methods of managing
such Companies, and all other relevant tueta
most be taken Into ccmslderatlon."
[S] In the course of its opinion in tbat
case the court said: "The high decree of
confidence and reaponalbtllty resting upon di-
rectors of corporations has often led the
courts to regard them as trustees; and to
declare the relationship existing between
them and the stockholders to be that of tnu-
tees and eestnl qne tmstent, respectlTely. If
this can be asserted with regard to the gen-
er^ty of corporationB, It la peculiarly and
exceptionally true with regard to banking
coqNmttona The directors of a baiA are
not trnatees tat the stoCkboldm alime, bnt
they owe an vnai earlier dnty to ttie d^jwst-
tors. The law is, as it ooght to be, very
sealons in exacting the strict and thoron^
performance oC these dnties, and It la In the
scrutiny of possible breaches of them that
the rigid nles wbldi govern tmstees have
been applied. It Is not enough to exculpate
u director tbat no actual dishonesty can be
shown; that he cannot be podtiTelT proved
to hare been Infflunced by Intweated no-
tlTCS."
BaxSk being the vdattons tliat the Aieetora
occupy towards the corporation, the duties
wUch tb^ owe the creditors and depositors,
and the obligations which they incur it those
duties be not faithfully performed, it would
seem to follow that In the faiUif nl discharge of
their dntice it would be proper for them to ap-
ply to a court of equity so to administer the
affairs of the embarrassed corporation as to
diminish as far as possible the Injury to all
concerned, including creditors, depositors,
and stockholders. Owing to the relation ex-
isting between the directors and the corpora-
tion, they must be presumed to have an inti-
mate and intelligent acquaintance with Its
alfalrs, and to be able to direct and assist
in realizing its assets and in ascertaining
Its obUgatlons, and to ttiat end to a]M>ly to
a court of equity for its assistance.
[4] For anothen reason directors should be
allowed to file such a bill as that before ua.
If the assets of the corporation prove inade-
quate to satisfy its llabiUties, the directors
are liable to stockholders and creditors for
any damages which may accrue by reason of
any negligence on their part, and it would
seem to be nothing more than Just that they
should be allowed to come into court and
defend tbemselves by anticipation againrt
any possible charge of neglect of duty as
directors, or if such neglect in fact existed
use all the means at their disposal to repair
the consequences of their default to them-
selves and to others.
This bill is in no sense one to wind np the
corporation. Its sole object is to collect the
corporation's assets and distribute them equi-
tably among thoae entitled.
In Thompson on Corpontttons <2d Bd.) i
6485, it is said: "The mere insolvency of a
corporation, however extreme, will not oper^
ate aa a dlssolntlon of the corporation.
While this may be a ground for the appc^t*
ment of a recover or an assignment for the
benefit of all creditors, still a cori>oratl<m
may exist as a legal entity without any pnv*
erty or assets, and that by unfortunate busi-
ness transactions It baa become totally bank-
rupt, or by some extraordinary disaster has
been strlnied of all its property, so that it
is unable to contlnne Its business or pay its
existing indebtedness, still It is not dis-
solved."
Nor doe* the appointment of a receiver
opuate a diBsolnti<ni of tbe corporation; and
this Is true though the recover, In the dis-
charge of Us duties, may sell and dlqwae of
all tbe oorpOTatlon property. Id. | 6486.
We are of o[dnion that the court had Ju-
risdiction to appoint receivers, and to col-
lect and distribute the assets of tbe corpo-
ration.
As we have seen, the case of Kldd v. Va.
Safe. Dep. * Tt. Corp., anpra, weut off pnin
Digitized by VjOUQfC
Va.) OAMDEK T. YIBOIKIA SAFE DEPOSIT A TRUST CiOBFOBATION 609
want of proof to eatabUsb tlie contempt
Kldd and bis wiee bad no rdation to tbe
corporation otber than aa deposltora. Tbey
denied that when tbey collected tbe mon^
due upon the certificate of deposit thej bad
BDj knowledge of the appointment of re-
celvCTB to take charge of tbe assets of tbe
corporation, and the conrt held the proof
to he Insufficient to overcome that denial.
With reference to the appellant, however, tbe
case Is different He was the manager at
the town of LoTlngston, Nelson county, Vs.,
of a branch of the Virginia Safe Deposit &
Trust CorporaUoo. The trust company was
Itself In possession of tbe money deposited in
(hat bank and stood towards Its depositors
In the relation of a debtor to creditors. Gam-
den was the mere custodian and agent of
the trust company, the manager of its affairs,
and subject to its orders with respect to the
business intrusted to him.
LB] In bis answer to the rule he says that
about 10 o'clock on the morning of the 29th
of December, 1910, while he was waiting on
a customer, be received a telegram as follows:
"itecelvers were appointed last evening for
Virginia Safe Deposit &. Trust Corporation.
Close doors of your branch and transmit all
funds on hand to the receivers by express.
Becelve no further deposits. [Signed] G. J.
Rlxey, Pres. John D. Barbour, 3. K. H.
Norton, Receivers." That he was greatly
shocked bj the news, and at the earnest
solicitation of Kldd, who represented that the
loss of the deposit made by bis wlfje, which
represented the aavlngB of a lifetime and the
fruits of hard work aa a tracher, would re-
sult In her death, he yielded to his request
and paid to him the aum of 92,193.33, the
amount of the asld certificate ot dwoalt haid
by Hn. Kldd.
. Testifying aa a witness In Us own behalf,
in answu to a qvestlon propounded to him
by tbe court, as to wbetbw or not Kidd
knew that the bank had been put into tbe
hands of recovers, he said:
"I tUnk so.
"Q. Can yon be positlTe about that? A.
I think so. 1 know that I recall the fact that
Mr. Whitehead and Mr. Kidd— they promised
not Co giro out the fact that X had paid than
the mon^.
"Q. Was anything said If you should be
called upon to make good the money that
you paid Mr. Kldd and Mr. Whitehead at
that time?. A. I do not recall what Mr. Kldd
said about that I know that tbey both
promised not to gtve out the fact that the
money was paid them. At least I requested
them not to do so. I know tiiat" -*
Ho that it appears, not only that be re-
ceived a telegram notifying bim that tbe
corporation had been put into the hands of
receivers, and directing him to close the doors
of the branch of which be was tbe manager
and transmit all funds In his possession to
;he recelTers by expresi^ and lecein no fnr-
ther deposits, but that with full knowledge
of all ' these facts, and with consciousness
that he was doing that which he had not the
lawful right to do, he wrongfully paid vnt
the money, with an. In^unctleiL that Us act
was to be kept secret
In section 146 of High on Receivers it is
said that courts are reluctant to interfere by
recelvw with property of third persons, and
that the receiver should assert the claim by
independent action; but in this case the
court was not interfering with property of
third persons through its receivers. It had
required its receivers to take possession of
all of the property of the corporation, and
the receivers bad duly notified the manager
at Lovlngston of this order. All the property
Within his possession as manager was the
property, not of a third person, bat of the
corporation.
In section 144 of the authority Just quoted
it is said that: "The receiver of an insol-
vent corporation may, by petition in the
cause in which' he was appointed and with-
out tbe necessity of an independent suit, pro-
cure the transfer and delivery of a note
held by officers of the corporation as apart
of Its assets, even though such officers are
not parties to the cause. And when a re-
ceiver Is appointed over real pr<^rty, of
which the owner is In possession, the propa
course Is to apply to the court to liave the
owner deliver possession to the receiver,
since the latter cannot distrain npon the
owner in possession, as be is not a tenant
of tbe receiver. Such procedure does not
conflict with the principle that oo man Shall
be deprived of his property without due pro-
cess of law, since the surrender to the re-
ceiver does not affect the ultimate question
of .tbe right to the vtoperty, any more than
does the levy of an attachment; the pur-
pose being merely to secure the property
getting it Into the receiver's possession, so
that It may be safely delivered to the party
who shall be finally determined to be en-
titled thereto. And the order for the sur-
render of property to tb» receiver may, if
necessary, be enforced by prooeas of attacih-
ment" .
In Ames v. Trustees of Birkenhead Docks,
20 Beav. 332, it was said: "There is no ques-
tion but that this court will not permit a
receiver, appointed, by its authority, and
who Is, therefore. Its officer, to be Interfered
with or dispossessed of tbe property he is
directed to receive by any one, although the
order appointing him may be perfectly er-
roneous; this court requires and insists that
application should be made to the conrt for
permission to take possessIcMi of any proper-
ty of which the recover either has taken or
is directed to take possession, and it Is an
idle distinction that this rule only applies
to property actually In the bands of the re-
ceiver. If a receiver be appointed to re-
ceive debto, rents, or tolls, tlie rule applies
equally to att c^^^if^^g^i^^^^^
600
78 SOUTBSASTIOBN BOPOBTBR.
be permitted, wiUumt the sanction or au-
thority of the court, to Intow^ or prevent
peyment to the reeeArw of the dd>t8, rents,
or the tolls, whldi he has not actoally re-
ofltred, but which he Is appointed to reeelTe."
In Bk parte Cohen, 5 GU. 4H it Is said:
'Oourts (rf eqnitj * « • bave the power
to aKwlnt rec^Tco^ and to order them to
take posaeaslrai oS the imqpertr in oootro-
ren^, whethw In the Immediate possessloa
of the defendant or his agent, and In proper
casee they can also ordw the defendant's
agents or employte, althoo^ not parties to
the reonrd, to d^TW the spedflc property
to the reo^or." And It was further said
In that case that where the parties were
■erred with a rule to sliow cause why they
should not d^rer certain property in their
poBBMdoK to the recfilTer, appointed In a
caae to which they were not partiee, and in
obedience to the rule they appMred and con-
tested the matter before the court, that when
they appeared and filed their answer to
tills role the court aoaulred full Jurisdiction
orer their persons as well as the subject-
matter.
As far as we hare inoceeded In Oils casei
we are of o^tiiUxfi, as we have alieady stated,
that the bUl was a ^oper one for the ap>
polntmnt of reo^ms; that they were or-
dfced to take charge of aU tbe assets of the
corporatlm to be administered by the cmrt;
that the app^ant was didy notified (tf the
appolntmeirt of the recdvers and th^ dnttes
In the prendsee; and that In flagrant disre-
gard of his dntr he wrongfully paid over the
funds of whidL he was the costodlan, and in
BO doing was gnlUy of « omtunpt of court
W We -are .tartbet of indnlon tiiat the
payment of the money in accordance with
the temm of fbe decree, or inablUty npon
the part of appelant to pay It on account
(tf povu^, InaolvaMy, or othn cause not
attributable to any fault of hisi should be
taktti as a satlaftutlon, and all further pro^
ceedlngs for contempt sboold be discontinued.
Afflrme4>
(US T*. 160)
MUBGUIONDO v. NOWLAITS EX'E et aL
(Sopreme Court of Appeals of Virginia. Jane
12, 1&13.)
Wills (| 111*>— Bxkctdtion— Plaox or Sion-
INO.
SisniDg of a wUL required by Code 1901,
I 2514, to be *1n soch manDer as to make it
manifest that the name Is intended as a aigna-
ttire/* need not necessarily be at the end. and
so In case of an attested hol<«npkle will the
signature ot testator affixed in the presence of
tiie witnesses, In the naq^ of the last page,
nearly opposite the end. Is snffident
Ed. Note.— For other cases, see Wills, CenL
r. H 267-276: Dec DiiTf 111.*]
Error to Chancery Court of Richmond.
Will .of Settle W. Nowlan, offered by
Bobert BL Macombw, executor, was admitted
Df,
to probate, and Mary de Murgdendo^ one ni
the contestants, brings error. Afflbmed.
R. R. Hicks, of Norfolk, and H. M. Smith,
of Richmond, for plaintUT In error. Uere-
dltta ft Cocke and Leake ft Bnford, all of
Richmond, fW defendants In oror.
KBITH, P. Bobert B. Uacombw. named
as executor In a certain paper writing dated
March, 1910, ottered It fmr probate In the
chancery court of the dty of Richmond as
the last will and testament of Bettie W.
Nowlan. All itf the parties Interested In the
pr<Aate were summoned to aM;>ear btfore
the court, a Jury was asked for and Impanel-
ed, and, the testimony of the subscribing
witnesses having been Introduced, Mary de
Murgulondo, one of the partiee contesting
the will, demurred to the evidence: but the
court overruled the demurrer and entered
a judgmoit declaring the said paper writing
80 offered to be the true last wlU and testa*
ment of Bettie W. Nowlan, deceased, and
thereupon a writ of error was awarded the
appellant
The papn whidi was produced and probat-
ed as the yna of Bettie W. Nowlan, deceased.
Is written upon several sheeti^ and upon the
ma^ln of each sheet appears the name of
Bettie W. Nowlan. When the attesting wit-
nesses were called upon to witness the ex-
ecution of th^ will, each one' of the sheets of
paper upon which the frill appears, exc^t
the last, had already been signed by Uie tee-
tatrlx, who In the presence of the witnesses
affixed her signature to tbe mari^n of tlie
last sheet neariy opposlto to the end of the
will, wbldi concludes as firilows:
"Witness my hand and seal, which I have
set to this my will consisting of dx pages
of paper, each of whidi bears my signature
In the margin thereot; on tUs tbe — day
of March, 1910. at Richmond, Virginia.
"[SeaLr
' Then follows the atteetatioB of the wit-
nesses as follows:
"Signed, sealed, published and declared
by Bettie W. Nowlan, as and for her last
wlU and testament in the presence of both
of us, both being iveeent at the same ttme^
and both c< us In he^ presence and at her
request and In the pxesrace of eudi other
bav« hereunto subscribed our names as wit-
nessesL Hugh W. Jones.
*U O. Thomas."
In their testtmony before the Jury, these
witnesses to Qke will estalAished every for-
mality required by tiie statute law of this
state with re^tect to tbe execution of a will,
and the sole questiim for our' determination
is whether a signature of the testatrix upon
the margin of the will Is such a slgnatore as
Is oontomplated by our statute.
Our statute of wills, which Is found In
section 2514 of the Code^ ss originaUy passed,
wa^ as Is stated by Judge AUen in WaUer v.
4-or (Dthtr oSMs' MS nms topis sad' sseUoa kftACBXit la fisb. Dig. A Am. Uig. IS^I^^^^^iti
Vt.) MURQ0IONDO T.
WaUer. 1 Orat (42 Va.) 466, 43 Am. Dea
064, a tranBcrlpt of 29 Gar. 2 wltb tlie «x>
cation that It dlapensea with snbacrlMng
witnesses In cases ot wills wholly In the
handwTltlDff of the testator, while the Bng-
Ush statute required the will to be attested
and subscribed by three or more credible
witnesses, in holographic as well as in
other wUls. In 1840 our statute was amended
by the Introdnction of the words "in such
maimer as to make it manifest that the name
1b Intended as a stgnatare.'* Hiere hare
been nnmeioua cases before this court aris-
ing under that statute, but they were an
casee of unattested holograph wills.
In Rams^ t. Bamsey, IS Orat (B4 Va.)
664, 70 Am. Dec 488, V. Boy, 16 Orat
<S7 Ta.) 418, 84 Am. Dec 606^ and Warwiek
T. Warwick, 86 Va. 086, 10 8. B. 84S, 6 I*
a A. 77B, U was Md that the name ot the
testator ameartng In the wHI was not idaced
there "in such manner as to make it mani-
fest that tiie name was Intmded as a signa-
ture," and the wills were rejected.
Dlmdng v. Dinning. IDfi Ta. 467, 46 a BL
4ltZt was also a holograph will, in which the
name <tf the testator appeared as toUown:
**I, WUHam Dinning, say this is my last wlU
and testammtr— and It was hdd to be snf-
fidently signed. Judge Harrison, dellTerlng
the optailon, said: "The signature Is at the
sod of an apparently completed instrument,
and fallowed by cnly eight words, which do
not indicate a purpose to add anything more,
or to take anything from what had been
vrUten, hot, understood according to their
usual acc^tation, constitute an emphatic
dsdaratloi^ that the idgnature was intended to
authenticate all that had preceded It, as the
final consummation of the testator's purpose."
The wlU under consideration Is an attested
will, and the Virginia cases we have thns far
referred to shed but Uttle light i^on the
question to be decided.
Waller t. Waller, supra, was also a case
of an unattested holograph will, but in the
discussion of the case Judge Allen goes hito
the whole subject rery fully and with his
accustomed learning and ability, and his
opinion sheds a flood of light upon the case
under consld«ration, even tbough. strictly
speaking, it may, with respect to attested
wills, be considered in some degree obiter.
The will in Wallw t. Waller was a holograph
will, in which the name of the testator ap-
pears only in the exordium: "In the name
of God, amen, I, John Waller of the county
of Henry and state of Virginia, « • •
being desirous to dispose of all auOi worldly
estate as it hath pleased Ood to bless me
wltb, I give and bequeath the same In man-
ner fonowing." There was no end signature^
It was unattested, and the will was rejected.
Judge AUen In bis oplnlcn says: '"On act of
1840 requires written wflls. vriiether of real
w personal estate to be executed with ttie
same solemnities. That law gorems this
NOWLAN'8 EX'B 601
case and rdieTes us firom many of the In-
conTenloices growing out of the admission
of parol testimony to prove the testamentary
Intent The will, whether of realty or per-
sonalty, Is a statutory disposition of the
pKperij. The very paper must hare been
intended as and for the last will. Where
the 1^1 formalitlca are cMnplled with, it
stands as the last will, unless canceled or
revoked lu the mode prescribed. If those
formalities are wanting, parol testimony as
to testamentary Intent cannot supply th^
defect It Is the policy of the law to guard
against setting up or destroying wills by
such testimony. • * • Tbe inquiries now
to be made in regard to a paper offered for
probate relate to the 'connection of the in-
strument with the testator so as to guard
against forgery, the presence of those for-
malities required to establish its finality, and
the sanity and freedom of the testator to
show his knowledge of the character of the
act, his capacity to do It, and the absence of
all Improper constraint and Influence.
"In attested wills the connection betweoi
the testator and Instmmrat Is shown 1^^
the Mgning. Where the attesting witnesses
prove he' dgned the Instmment or another
In his pmence by his direction signed It tbr
him, the fullest evidence Is obtained that the
very paper produced Is the one executed.
"The force of this evidence was somewhat
Impaired when the courts held that It was
not necessary the subscribing witnesses
should see him sign, provided he acknowl-
edged the signature to the pap» they atte8^
ed, as a mere acknowledgment was not so
likely to be impressed on the mind as a
formal execution In their presence.
"As the identity or connection of the in-
strument with the testator la the main fact
to be determined by the proof of signing,
there was not much danger to be apprehend-
ed In considering a algnlng of such a will
at the top ; the whole being in his handwrit-
ing as a sufficient signing. Proof or tne
handwriting of itself connected the testator
with the Instrummt. and that proof was
aided by the acknowledgment of the testa-
tor In the presence of the snbecrlblng wit-
nesses. * * *
■ "The connection of the testatw with the
instrument being thns aaeertained In the
various modes adverted to, the finality ot
an attested wlU to esUbllshed by the pobll-
catlcm and attastatloo. No man publishes
an instrument as his last Will and teetammt,
and caUs aa wltnosssa to attest the fiut.
until he haa comi^eted the a^ The attest
tlon must be annexed or subscribed to a
complete instrument, and to which, whui so
subscribed, no addltiona can be made. To
the act itself the law attacliee testamcsataxy
Intoit that It Is a cowluded instrnmait, and
If the party Is under no restraint acts frady,
and to ot sane mind, m further i«iwf to
requisite to suataln the Instrnmait-as a wlU<
Digitized by VjOOgLC
602 7S SOUTHEASTERN RBPOBTSS (Vt.
and no proof oflw than • rerocattoa In the
mode preacribed will be received to show a
chance of teetamentery iirtent"
It wouU Beem, therefoxe, from die opinion
of Judse Allen tiiat tbe main fact of the con-
nection of the testator with the InBtrumoit
ma7 be establlsbed, not <mly by the rtgnatiue
of the testator In 0ie pieaoice of anbacriblng
wltneaaea, but by the mere acknowledgment
In th^ preeeoce of hla signature ; tint such
proof has beoi Aeoned sufficient in all the
later eases; and that the finality of an at-
tested wUl 1b establlsbed by attestation and
publlcfttlon, for, to repeat a pregnant sen-
trace in the opinion of Judge Allen, "no
man publishes an Instrument as his last will
and testament and calls on witnessea to at-
test tbe fact until he has oimipleted the act
The attestation must be annexed or sub-
scribed to a complete instrument, and to
wblch, when ao subscribed, no addltlona can
be mad&"
Meads t. Baite, aOS Blass. 6B8, 01 N. O.
016. 29 li. B. A. (N. S.) 61^ was an appeal from
a decree of the probate court disallowing an
instrument as the last will of Saiah J. Arm-
strong. The apprise requested the Judge to
rule as matter of law that the instrument
was not signed by tiie testatrix and attests
ed and subscribed in her presence by tbree
competent witnesses in accordance with the
requirements of the statute. The Judge de-
clined ao to rule, and found as facts that,
so tar as ttie will is in manuscript, the band-
writing including her name or signature is
that of Sarah J. Armstrong; that, although
sbe did not si^ at the end of tbe Instrument,
yet when she wrote her name at the be-
ginning of the will it was with the inten-
tion that this act was a signing of the will ;
that independently of tiie attestation clause
she by words and conduct acknowledged and
declared tbe will before the Bubscribing wit-
nesses; and that tbe subscribing witnesses
signed the attestation clause in her pres-
ence at her request and upon her acknowl-
edgment and declaration that It was her
will, although neither of them saw her slg-
nature. Harlng so found he ruled that "the
document was signed, attested, and subscrib-
ed within the meaning of the statute, and
that It was a valid wiH." The Supreme
Court said : "The case Is before us upon his
report. If the ruling requested by the ap-
pellee should have been given, a decree is to
be entered affirming the decree of the probate
court; otherwise a decree Is to be entered
reversing tbat decree, admitting tbe will to
probate, and remanding the case to that
court for further proceedings." In the course
of the opinion It Is said: "There can be no
donbt that she intended to make, and sup-
posed she had made, a valid will. The care
she took In writing the paper, In seeing to
Its attestation, and in putting and keeping
It In a safe place ahows that. Sbe does not
appear to haTft ben adviaed or aaalated by
any one. She personally superintended flie
wiiole work. There was, however, no signa-
ture at tbe end; and it Is contended by the
contestants that the single Justice was not
warranted in finding that sbe wrote her
name at the beginning anlmo signandl.
"The finding must be Interpreted to mean
not simply that after writing her whole
will she adopted aa her signature her name
as written previously in the exordium, but
that at the time she wrote her name tbwe
she intended that it sbonld stand aa her
signature to tlie will when completed, and
that this intent oontlnned to the aid. Such
a finding Is perfectly consistent with what
sbe did, and is not Inconsistent with any act
of hers. It explains any apparoit Incongru-
ity in the evidence. It welds all the circum-
stances into one harmonious whole and is
supported by the evidence."
It Is to be borne In mind tliat, when the at-
testing witnesses were called upon In this
case, five sheets of the will had been Identi-
fied by tbe signature of the testatrix upon the
margin of each page, and that In the pres-
ence of the witnesses sbe affixed her name
for tbe slxtfa and last Ume to the margin
of the will as and for her signature, and de-
clared it to be her last will and testamait
The Jury by th^ verdict have declared tbat
the will was duly executed, the Judge of the
probate court has approved their verdict,
and we have no <^olce but to affirm the de-
cision, unless we are prepared to hold tbat a
literal signing at the foot or end of the in-
strument Is necessary In all coses, and this
we are not prepared to do.
We gather from our statute^ from the de-
cisions of this and other courts, and especially
from the opinion of Judge Allen in Waller
T. Waller, that In holographic wills proof of
the handwriting establishes the Identity of
the paper and the connection of the maker
of the will with It; that the finality of sncfa
will depends upon the signature, which must
be made "in such manner as to make it man^
fest that the name Is intoided as a atgna-
toztf'; that, in the case of attested wills
not in the handwriting of the testator, the in-
strument is incomplete until attested by two
ndtnesses in the mode pnscrlbed by section
2514 of the Code; that when so attested U
becomes a complete and final testamentary
act, for, again to qnote the language of Judge
AUra: "The attestation must be annued or
subscribed to a complete lustrum «it, and to
which, when so subscribed, no additions can
be made. To the act ItseU the law attadies
testamentary Intent that it la a concluded in-
strumoit, and If the party iM under no re-
straint, acts freely, and is ot sane mind, no
further proof la requisite to sustain the in-
strument as a wUL"
We are of opinion that the Judgment eom>
plained of should be affirmed.
Affirmed
Digitized by Google
KINCHELOS T. GIBSON'S EX*Z
603
OU Vk. Ut)
KXNCfHKLOB «t T. GIBSON'S BOTX.
(Snprane Court of Appeals of ^rffada. Jans
12. 3913.)
1. Appeal ahd Ebbox {| 220*) — OBJxonoirs
IN LOWn OOUBT— BSFOBI OT RUBBn.
Qaestlons not raised by injections to «oin-
miasioner's report stating an account in the low-
er conrt win not be noticed on appeal.
[Ed. Note.— For other cases, see Appeal and
Error. Cent. Dig. SS 1325-1332; Dec. Dig. %
220.*]
2. BXBOTTTOBS AND ADHUnBTBATMU (| 483*)—
ExpBN DiTDBKs— Taxes.
Taxes accruing before the death of a tes-
tator, leaving practically all bis realty to life
tenants with rae remainder over, are imperly
paid by the ezecatrix, and she Is entitled to end-
it therefor.
[Ed. Note.— For other cases, see Executors
and Administrators, Dec Dig. f 483.*]
3. EXECUTOBa AND ADMINIBTBATOaa (| 483*)—
Cbbdits— Intbbest on Incuubbances.
An objection that an executrix should not
be credited with interest on incnmbrances be-
cause a liability of the life tenant will be ovei^
ruled, where it is shown that the profits of the
estates in the hands of the executrix, in an
amount equal to or greater than the interest
paid, had been applied for the benefit of the
estate in paying off incumbrancea
[Ed. Note. — For other cases, see Executors
and Adminiatrators. Dec. Dig. { 483.*]
4. liinC EJSTATES ({ 16*)— InTBBEST ON INOOH-
BBANCBS— LlABIUTT OF TeNAHT.
The rule that a tenant for life of property
subjected to incumbrances must keep down the
Interest accruing on such incumbrances during
the continuance of his estate does not apply
where the obvious purpose of the will was to
make a general charge of all testator's debts on
his real estate in event his personal estate prov-
ed insafficient
[Ed. Note.— For ■ other cases, see Life Bs-
Utes, Cent. Dig. i 86; Dec. Dig. 1 !&*]
5. Life Estates (( 18*)— Insubanct— DuTT OF
Life Tenant. .
Where a will gave practically all of testa-
tor's resl estate to his sister for life, remainder
to other collateral kin and all his personalty
and made his debts, a cha^ on the whole es-
tate, providing the order in which the realty
should be sold, the life tenants will not be re-
quired to maintain Insurance where it is prob-
able that most of the realty will be sold to pay
outstanding debts.
[Ed. Note.— For other cases, see life Bb-
tates, Gent Dig. | 40; Dec. Dig. 1 19.*]
ApiMal from Oircolt Court, Fauqnler Comi-
ty.
Suit for constrnctloii of will and for ac-
GonntlDff by Gibson's execatrlx against Gib-
8(01 and otlienk From the decree rendered J.
GlbB<m Klncbeloe and otbers appeaL Modi-
fled and affirmed.
Keith & Richards, of Warrentou, for ap-
pellants. Moore, Barbour, Keltb & McCand-
llsh and J. Stuart White, of Warrenton, for
appellee^
CARDWELL, J. The appeal taken in this
case Is from two decrees of the circuit court
of Fauquier coanty entered In the diancery
cause pending in said court under the style
of Qibaon's Executrix v. Gibson et aL. the
one entered on tlie 27Ui day of July, 1900,
and tlie othw <m the 81st day of January,
1911, which chancvy cause Involved ttie
ocmstrnctlon of the last irill and testament
of GUbCTt R Gibson, a lawyer, late of Fan-
qnler county, and a settlonent of his estate.
The said testator died In the early part
of the year 1007, and his will, bearing date
December 18, 1906, was admitted to probate
March 27, 1907, and Nellie R. Gibson, a sister
of the testator, qualified as the sole execu-
trix thereof, her sister, the other executrix
named, declining to qualify as such. Said
testator at the date of his wUl and at his
death appeared to own considerable person-
al estate and several parcehs of real estate,
but was largely Indebted, both primarily and
as surety for others.
By his will the testator purposed to bestow
his bounty, consisting of the personal and
real estate owned by him, upon bis collateral
kin, bat charged both his personal and real
estate ultimately with the payment of his
de4>ts, endeavoring to designate the order In
which the same should, if found to be neces-
sary, be subjected to sale for that purpose.
The first clause of the will devised a cer-
tain portion of teetatoT's farm called Snnny-
slde, containing 170 acres, more or- less, to
his brothers, Joseph A. and Douglas Gibson,
In trust for the sole and separate use of his
sisters, Mary J.. Margaret V., Fannie E., and
Nellie R. Gibson, during their Uvea, with
power to each to dispose absolutely by deed
or by will of one-eleventh part of said land,
to take effect at the death of the last sur-
viving of the four sisters. The remaining
seven-elevenths of this tract of land the tes-
tator devised by the second clause of his
will, after the death of his said sisters, in
equal shares to his other brothers and sis*
ters named and their descendants; but it
appears In the record In regard to this par^
tlcular tract of land that by deed executed
by said testator bearing date Dec«nbisr 24,
1883. though only fonnd among the papers
of one of the deceased's grantees after his
death and after the Institution of this suit,
the said testator. Gilbert B. Gibson, had con-
veyed this land (Sunny side) to John M. Gib*
son, Joseph A. Gibson, and Douglas Gibson,
as trustees, for the sole and separate use
of the four sisters of the testator named In
the first clause of his will, and Louisa Gibson,
who died before the testatw ; and It furthw
appears that throughout his life the testator
managed this farm for the benefit of these
sisters and accounted to them regnlaily for
the rents, Issues, and profits thereof, and
that there stood on his ledger an acconnt
showing a balance due by him at the time
of his death to these four sisters of $517.64
arising from his operations of the Snnnyslde
farm during the year preceding his death,
which Indebtedness the executrix of his will
paid to the slstm out of the assets of the
testator's estate.
MS. Ksr-WagSsrttMk
•rsr etiMr eases see asms to»le and seotlM NUHBSa ta Deo. Dig. * Am.
604
7B SOUTBGASTEBN BEPQBTOB
The third and towth danses of the will
have no material bearing upon the contro-
versy here. By the fifth datuse the aald four
Bisters of the testator are devised during
their Uvea the residue of Sunnyslde farm
and the testator's land boagbt of Lucius,
known as the Briar Patch, containing 230
acres, more or leas, and "the residue of my
personal property," and, farther, "If my per-
sonal property other than that I hare t«-
queathed spedflcally be not sufficient to pay
my debts, the Lacius tract must be the first
land to be sold for that purpose.**
The sixth clanse of the will provides that
upon the death of testator's sisters Mary J.
and Nellie R. Gibson the iQ>eciflc personal
property willed them by the fourth clause,
consisting of his household and kitchen fur-
niture as well as testator's residence and
adjacent land, should go to his niece, Anna
W. Elncheloe, for her life, and updn her
death to go to her daughter, Ada Elncheloe,
with certain other proTlsions for the disposi-
tion of this property in the event that the
said Ada Elncheloe should die without issne.
By the seventh clanse of the will It is pro-
rided that iu>on the death of the four said
listers of the testator his 7&-acre tract of
tand, being the reaidenoe of Sunnyslde, "or
MiV part of $ame or proceeds thereof if sold,
jfter the payment of my debts, that may
remain," should go to his grandnephew, J.
Gibson Elncheloe, and grandnlecest Orra
Mason Elndi^oe and Ada Elncheloe^ and
any children that might be bom to James M.
Klncheloe and Anna W. Kinchelo& This
residence of Sunnyslde, containing about 76
acres, together with other real estate of the
testator, waa at the time of his death sub-
ject to a specific Hen, evidenced by deed of
trust, to secure the payment of the sum of
t3,6{^ spoken of in this record as the Eliza
N. Gibson dower fund, and by the same
(seventh) clause the testator provided that
upon. the death of his said four sisters "I
give and devise the Lucius tract, containing
230 acres, more or less, or any part thereof
or proceeds thereof if sold, that may remain
after the payment of my debts" to certain
Biecea and nephews therein mentioned.
The eighth clause of the will is: "I devise
to my grandnephew, Ji Gibson Eindieloe,
my vacant lot 1& UppervUls^ Va., on which
the house thereon waa homed and my ground
lOkt of nine dollars a year on T. a. Dunbar's
lot with wbeelwilslit and blacfesmlth shop
thereon. My personal property beqneathed
under the fifth (6) dause of this wUl, If not
.azhausted in the payment of my debts, or
sucSi as may remain, If any, after the pay-
meat of my debts, I give absolutely to my
sisters, Mary J.. Margaret V., Fannie B. and
Nellie R. Gibsons'—and the ninth or last
dause of the wlU Is: "The poaonal prot^
erty la the fifth dause of this will te to be
first an^Ued to the payment of my ddita^
if not aoffident to pay all, than tba Ln«las
land la to be sold for that purpose and if
the proceeds of sale are not suffldent, then
the seventy-five acres of land or thereaboata
referred to In said fifth claaae li to be sold
for that purpose."
It will thus be seen that the testator's four
named sisters were by his will made life
tenants practically of his whole real estate ;
his dwdUug in the town of Dpperrllte, with
lot attached thereto; 170 acres a portion
of Sunnyslde farm; 230 acres, the Lndus
tract; 75 acrea, the reeidne of Sunnyslde;
and two lots of 25 and 5 acres; a total of
over 600 acres of land ; and also testator's
personal property, with remainder, after the
death of the last surviving of the four sto-
ters, over to certain other persons named, in-
cluding J. Gibson Elndieloe, Orra Mason
Elncheloe, and Ada Elncheloe, nephew and
nieces of the testator, and any other chil-
dren that might be bom to James M. Elnche-
loe and Annie W. Elncheloe, who were to
take the remainder after the said life estate
in the 79 acres, residue of the Sunnyslde
tract, but this, as well as the testator's other
real estate and his personal property, was
charged with the payment of bis debts and
was to be sold for that purpose, if found
necessary, in certain specified order, the said
TO acrea to be the last sold.
The real estate devised by the wlD was
taken charge of by the devisees thereof for
life, and after the estate had been managed
and administered for practically two years
from her goaliflcatlon the executrix of the
will In Febraary, 1900. filed the bill in this
cause, the object of whldi was to have the
direction of the court In the further admin-
istration of the estate and the ez parte ac-
counts settled by her as executrix and filed,
approved, and confirmed by the conrt in this
cause, filing with her bill the last of Iier said
accounte as the basis of this suit
Upon the cause bdng matured for bear-
ing, the court referred it to a master com-
mtsdoner to state and s^tle the accounte of
the executrix, the fourth dause of this de-
cree of reference spedflcally directing the
master to state and settle the accounts of
the executrix commencing from the date of
her qualification up to and including the sec-
ond year of her administration whldi waa
In effect to require a restatement of tiie ex
parte account of the executrix covering that
period, settled and returned to conrt of date
February 10. 1000. and In response to said
decree of rtference Commissioner G. Li.
Fletdier on June B, 1900, filed his report
Thla repturt and the accounts returned there-
with showed that tiift testator's estate, after
paying the expenses of administration and
the current accounts, still had ontetandlng
agalnat it an indebtedness of $16,402, and
that there waa in the hands of the executrix
applicable to the paymoit of said Indebted-
ness <»ily the sum of 96,171^40, thus leaving
an Indehtodnaai agalnrt ttia aatata of about
Digitizedb'/GoOgle
KINCHBLOE It,
OIBSDK'S KX*Z
t9.000 orer and abor* the aaseU In the bands
of the executrix, and under the control of
Uke omurt in thto.caose.
To UUs leport the Infant defendants 3,
Olbwni Klncheloe^ Orra Maaon KIn<dielo^
and Ada EUudielDe^ by tbeir guardian ad
litem, filed certain exeeptionB, which made
the contftPtlOTi that the oommlasloner In
stating the accounts erroneously charged
against the estate all of the interest accrued
and accruing on all the Indebtedneas of the
estate remaining unpaid* taxes, running ex-
pense^ etc, and gave all the Income from
the estate— rmta, issues, and profits— to the
life tenants; and that the interest on said
Indebtedness and taxes alone for the years
190T, 1906; and 1909 amounted to 11,811.60.
By Its decree of Jnly 27, 1909, the court. In
effect, ruled that the method adopted by
the cmnmlssioner in stating the accounts of
the executrix complained of In said excep-
tions was proper, but recommitted the cause
to ths commissioner for the correction of
certain minor errors In the accounts. liiter
the Lucins tract of land, in which said in-
fiint defendants had no interest, was decreed
to be sold, was sold, and the proceeds of sals,
together with other assets of the said tes-
tate's estate brought within tbe control o<
tbio court; produced a considsrable reduction
In the ontstanding indebtedness of tbe es-
tate, bnt not enough to pay an of its in-
debtedness, and then followed other decrees
In the cause leading up to a report by Gom-
misdoner netcher, filed on August 16, 1910,
showing an unpaid Indebtedness of the es-
tate amountiiv to 19,947.88 and a balance In
the hands of tlie ezemtrix of |S,8Ke.
To tills r^ort the said infimt detttidants
ffled exceptions, the sectmd of wlUdi related
to an indebtedness reported as an outstand-
ing liability against the estate and known
as the *'Oova debt," and made the conten-
tion that said debt had been paid, whlcb ex-
ception the court sustained, and thus elim-
inated the **OovOT debt" llie otbw of said
exceptions made again the contostlon that
tte Interest m the testator's Indebtedness,
taxes, eta, areditsd to the ezecntrix as
against the estate^ should have been paid by
the Ufe tenants of the testator's pn^erty
who received the Income therefrom under
tbe wUl of the testator, so that tbe 7S«cre
tract of land. In wfaleb said infnnt detfend-
axds have an interest Ktter the death of tbe
Ufe tenants, would be reliered from the pay-
ment at any of Uie unpaid deto of tta tes-
tator; that. If the charges of Interest, taxes,
e^, placed upon ttiese Infhnt defendants
were eliminated as a diazge against the
testator's estate and durged against the Ufe
tenants thereof, Uie estate would be about
relieved of any farther indebtedness, and it
wotdd be . nnnecessary to sell the ssld 76-
acre tract of land, bnt tbe court again over-
ruled this contention, and by Its decree anter-
ed Jftnuaiy ai, 1911, amended the oenunl^:
sitmer'B r&port so as to ,eonfonn It to the
court's ruling with reqyect to the "Cover
debt," and as amended confirmed the r^rart,
and directed a sale of the 76-acre tract of
land for the purpose of paying tbe remaining
outstanding indebtedness against said testa-
tor's estate, from which decree and that of
tbe 2Tth of July, 1909, this appeal is. taken
by the guardian aid llt«n of said infant de-
fendants.
As stated, Uis oontentlon ot appellanti Is
that, according to the true and proper con-
struction of said teatator's will, there was
placed upon tbe life teuvtts Mary Jane; Nel-
lie Bp, Margaret V., and Fannie B. Gibeoo,
the burdn of paying the taxes; Interest on
the debts secured on tbe property occupied
by them as life tenant^ cost of r^iialrs and
running expenses ; that the executrix should
not have received credit, In her settled ac-
counts, for taxes and interest accrued during
the period of 1907, 1906, and 1909 an^pald
by hw to tin amount, «s allseed, of $1.-
811.60; and tba^ If these Items of Intsiest
and taxes had not been allowed the execu-
trix, It would have Increased by that amonnt
the apparent balance In her hands appUcaUs
to the paymoit of debts, and oorrewondiiw-
ly decreased tbe excess of liabilities over
assets, and might have nveided ttw neces'
alty tot a sale ot the TS^wre tract of Und
In which the appellants are alone as remaln-
demm Interested.
We oonstder It irtioUy unnecessary to re-
view at length in this opinion the several ac-
counts of the executrix, MeUie B. Gibson,
stated and reported by Oommlasloner Fletch-
er and acted on by the drcnlt court, since
it appears that thoca are further acoounte
to be taken In the eanse in wtdtSx minor «v
fors. If any, in the former accounts may be
ccsrectod.
The decree of January 81, 1011, complained
of, does not hold that the executrix was en-
titled to credit for taxes yatA on the proper-
ty in the possession and centred of ttie life
tenants ; on the contrary, It expressly holds,
and In accordance wltb the settled law in
sttfOi cases (Downey t. Strouse, 191 Va. 22S,
4B 8. Z. 848),. that the Ufe tenanta are
chargeable with all taxes and necessary re-
E«Irs to tbe proper^ Remaining In th^r pos-
sessltH), and are required to keep tbe bnHd-
Ingi <m the pame Insured against fire; Ihe
poUdes to be takm out In the name of tb»
Ufe tenants and remaindermen and In the
name of tbe trustee, where bnUdlngs are on
property devised to Uie trustee;" Hie. fiid t
is, as shown by the record and pracUcally
conceded In tha bttef of conned fw appsl-
lante, tiiat the only taxes paid tqr the ex-
ecutrix and taken credit for in hw execu-
torial accounts were the taxes assessed
against the testator'a esteto for the year In
whidi be died, 1007, amounting to $162.22,
whifib taxes were iwoperly to t>e paid by the
axecatrl^ and the pa^neot thereof, wna
Digitized by Google
606
78 SOUTHBASTBBN BBPOBTBB
lightly credited to her In her accounts. It
also appears that, Instead of the lUO tenantfl
getting the Income from the real estate for
the first year of the testator's death, the es-
tate got it, and It. along with other assets,
was applied to the payment of his debts.
The controlling question, therefore, for
determination on this appeal is whether or
not the circnit court erred In not ruling that
the life tenante of the property held and en-
Joyed by them under the will of the testator,
Gilbert B. Gibson, were bound fbr ttie pay-
ment of all the accruing interest on existing
incumbrances npo&the property created by
the testator, and that payments of Interest
upon such Incumbrances made by his ex-
ecutrix were not properly to be allowed ha
In the settlement of her accounts as exeeo-
trlz.
[1) The graTamen of the complaint made
by appellants In th^ petition for this ap-
peal Is that the drenlt court in ite rulings
has not placed (as it should hare done) the
burden upon the four sisters of the testator
of paying out of their own means, the taxes,
interest on testator's debts, repairs and run-
ning expenses of the property they took aa
life tenants and held during the years 1907,
1906, and 1909, but instead the executrix was '.
given credit on her settled accounte for
taxes, interest accrued, and running ex-
penses during that period and paid by her to
the amount, as alleged, of (1,811.40. In the
brief of counsel for appellants, however,
oQier objections are made to the method
adqited in the settlement of the executrix's
accounts, and to certain paymenta allowed to
her as credita against the estate, based upon
a statement of Cacta^ but we cannot find in
the record that these objections were, by ex-
ceptions to the comndssioner's reports, raised
in the lowor court or brought to ito atten-
tlony nor is it pointed out either in the
objections made here or in the record when
the several items of interest paid by the ex-
ecutrix and credited to her, of which com-
plaint Is made, accrued; that is, whether
they accrued before or after the death of the
testator. The case was heard on the report
of the commissioner and the accounta filed
Oierewith September 16, IMO, and tba excep-
tiona tiiereto, and no complaint is made of
the court's mliiw other than that overmllng
the third of appellants' exceptions and con-
firming the r^rt as to tSie items referred
to in the exception, tIk: "All charges of In-
terest aa the indebtedness of Gilbert B. Glb-
• son at flie time of his death, as set out in -the
master commissioner's reporto of June S.
1800, October 7. 1909. AprU 20, 1010, and
September 16* lOia • • • ^
[2] We have seen that In her settled ac-
counts the ancntrix has taken no credit
for any tarem tot yeara other than the year
1007, and inasmuch as taxes accrue and be-
come personal charges against the owner of
real artate as of the flxat day of Vebmary
of eadi year, and as it is to be presumed
from the facts appearing In the record that
the testator, Gilbert B. Gibson died subse-
quait to tlie first day of Vebroary, 1007, tba
taxes for that year were a personal t^uurge
against him and a preferred charge against
his execatrlx, and therefore wwe properly
paid by her, and she was rightly allowed
credit for th^r paymoit in bet accounts.
[3] The record does not hear out tHe cm-
tenUon of counsel for appellanta that the
life tenants received all of the rents, issues,
and profits from testator's estate, and have
cast the entire burden of accruing interest on
the estate and, in effect, on the remainder^
men. It is true that the record shows that
the executrix took credit in the settlement of
her accounta for certain paymenta of inters
est In the years 1007, 1008, and 1000, but
when all the tacta appeaiii^ in tlie record
are looked to there was no other fair and
proper way to state the accounts of the execu-
trix for those years than as they were stated
and approved by the court The entire resi-
due of the personal estate remaining after the
payment of debts, like the real estate, was
bequeathed to the four sisters, who were
plainly the principal objecta of his bounty,
for life, while this remainder in the personal
estate after the payment of debts, unlike the
remainder to the real estate, was bequeathed
to these life tenants and not to others. In
the tlrst year after the quallficatlou of the
executrix, It appears that the personal estate
converted and applied to the payment of
debta against the testator's estate amounted
to over (13,000, the greater portion of which
was paid out by the executrix at once, and
as to the residue abe was charged with and
accounted for Interest thereon. It further
appears from the record that, instead of the
life tffliants getting the income ttom the real
estate for the first year following the testa-
tor's death, the estate got the benefit of it,
aa It had been applied to the payment of tes-
tator's debts. The commissioner In reporting
the settlemoit of the ex parte account of the
executrix for that year said: "After the death
of Gilbert B. Gibson, It was considered to
the best Interest of the estate not to dispose
of all the etocfc on the farm, but to operate
the farm in the usual manner and a^ tlie
cattle when fattened and credit the estate
with the proceeds." Pursuant to the plan re-
ferred to by the commissioner, aa the account
of the executrix for the first year shows, the
estate was credited 1^ the proceeds of B8
fatted cattle, which netted ¥3,68087, the
greater portion of wldeh cattle did not go off
until December following the death of the
testator, and no durge was made iw^lnst
the estate for housing,, graxing, and fatten-
ing said cattleu TUe account also shows that
the estate waa credited that year (1907) with
968 received from grazing other stock, and
with 0ie ptooeeda oC com xalsed, to the
Digitized by Google
EINCHELOE t.
ftmoDnt of $677^ maUnff an aggregate of
f3JS^ actnally recelTed tn the -vny of Income
credited to the estate from the farm landa
dnrlsg the rear fcdlowlng the teatator's death
and applied In the reduction of the debts
against his estate^
It Is onl7 fdalmed by the learned counsel
tor appellants that the aggregate of the Items
of Interest and taxes paid during the first
three years by the executrix and credited to
her In her accounts amounted to (1,811.60,
and vbea the taxes for the first year, amount-
ing to (152.2% Is deducted therefrom, the
amount of Interest Included. In the payments
on the debts during the first three years of
her administration was but |1,659.38; where-
as, as the record clearly shows, the estate
has received benefits from the estate devised
to the life tenants amounting to several hun-
dred dollars In excess of the aggregate
amount credited to her as payments of in-
terest during the same years, leaving wholly
out of view how much of the aggregate of
the items of Interest credited to the execu-
trix, of which complaint is made, accrued in
the lifetime of the testator. So that the rec-
ord, as we view it, does not sustain or Jus-
tify the complaint that the executrix has
been erroneously allowed credit for the pay-
ment of taxes and int^est In the settlement
of her accounts to the injury of the appel-
lants, and for the all-suffldent reason that
these payments for which the executrix took
credit were payments on the acknowledged
debts of the testator and the interest thereon
constituted as much an obligation on his es-
tate as the principal of the debts themselves.
The situation In which the testator left
his estate was simply this: His personal
property^ as he recc^;nlzed to be iwobable,
was not sufficient to pay his debts; certain
of his real estate at his death was Incum-
bered either by a trust charged thereon by
him in favor of his four sisters or by tmst
deed creating a specific lien before the mak*
log of his. will, to secure the payment of a
debt, spoken of in the record as the Eliza N.
Ulbson dower fund, the principal of which
debt was to become due and pa^ble at the
death of the said Btlza N. Olbson. and the
interest thereon to be paid to her annually
during her life ; spedflc liens being upon the
residue of Sunnyslde in which appellants
hare an interest, as well as upcm other real
estate of the testator.
The testator, a trained lawyer and a man
of affairs, Is presumed to have knovra that
his estate could not be speedily settled — ^In
fact, it plainly appears from his will that
he not only expected but desired that his
aged sisters, the first objects of his bounty,
should have the possession of his reel estate
pending the ascertainmeDt of the necessity
for a sale thereof for the payment of his
debts, and receive any Incidental benefits
that m^t arise ther^rom. He gave his
entire estate real mm well as puaooal, to one
aiBS0N*8 "EXTX. 607
set of beneSdarlea tar flfe^ wlUi remainder
to othen In tmxSi portlraia thereof as "mii^t
remain" after sale for the payment of MstM,
all diarged with the paymoit of Us debta^
and be directed not only tbe order In whldi
the sereral porttoui of hla estate dumld bo
subjected, If found necessary, to bis debtf^
bat the muata Uiweof, vis., by sala Had
he Intended Oiat the life t«ianta of his real
estate mm not to enjoy the ben^ts thereto
pending an adjustment of bis aflalrs and
the asoortalnment of tbe extoit of ble lur
debtedness, doubtless he would bare so pro-
vided In Us will by giving bla oecutrlx ade-
quate powers to effect bis Intent, such o tbe
power to take diarge of and opttate or rent
the estate, rathor than a bare power to adl
in a givotk CMitlngency certain portiras of it
in a atated order. Instead of conferring up-
on his encDtrlx such power, tba teetatw's
wlU dearly and opreealy provided that Um
only way in wUdi his real estate should be
subjected to bis debts should be by sal^ «f
pressly directing also the ordw In whldi
each paro^ sbonld be sold. Any adrantage
resulting to the Ufa takers Is merdy Inddoi-
tal to tbe terms In whlcta the testator dioae
to dispose of bla boonty, '*tbe ultUnate m-
presston of Us wishes," and the raualndo-
mta as wdJi as otbOTs took "com onee^ and
subject to ttie Inddente resulting from car^
rylug into ^eet that '^ultimate eipteeslon**
of the testator's wlsOiee "which stands as an
aU-suffldent reason for bla act and cannot
be challenged" by any <hm dalming there-
under. Fraaler r. Uttletim, 100 Ta. &, 40 S.
a 108.
[4] Tbe general proposition of law Uiat a
tenant fbr Ufe of property subjected to lu-
cumbranoes must keep down the interest ao-
crui^ on such Incumbrancea ftulng tbe con-
tinuance of his estate Is wdl established,
and is not here controverted, but tbe doc-
trine has to be quallfled whoe, as bi this
case, there Is a genial diarge of all of tes-
tator's debts on his real estate, in the event
that the posonal estate proved InsufBdent
to pay them. In such a case the graeral doc-
trine does not apply. Poindezter t. Green,
6 Ldgh ^ Va.) S04, whlcb la In many re-
spects like tlie case at bar, 18 Cyc 807 and
anthorltlea cited ; Trent r. Trent, Olbnar
(21 Ta.) 174, 0 Am. Dec. 094, where the opin-
ion by Roane, J., says: "Tbe right of pos-
sesslMk thus doubly guaranteed to the prea-
ent an>ellants (lift tenants) ought not to be
disturbed, until a diange of possessloa
should be made necessary. In fulfilment <tf
the dia^ imposed on this property by tbe
wlU; or until mismanagement thereof, or
mlaappllcatlon of its profits, should render
It lmi»oper Uiat the amiellees should bold
the poesesdon any longw. In either of these
evrats, however, tbe case ought to be previ-
ously made out to Justify the Interpodtion
of the court" See, also, Hobson t. Tancey.
2 Grat (43 Va.) 7S; Frazler t. Uttleton,
Bivn* Fxendi t. Trandenburg, lOS Ta. 1&
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008
18 BOUTHSlASTi^N BBPOBTBB
est B. B. UK, 9 U n. A, OX. B:^ S9S, Its Abl
St Bep. 888. 8 Ann. Otm. 690^ wlwn Um ^rm-
dple Is recognized.
If the testator in this case desired, u Ms
wUl plainly indtatM. Um life tenants to
take all of his real eetate, and have tbe use
of it until It became apparent that wme of
it had to bo sold for the payment of hla
debts, thoee who take under his will, whether
ae life taoants or remaindermen, are but
partakers of bis bonn^, and take it com
onere and wtOiitet to tbe liability that, when
It becomes aiq^rent that the personal estate
wlU not be mfficiuit to pay his indebtedness,
<ln the language of the will) **tlien" tbe real
estate derlsed to thnn In remalndo', both
Ufe estate and rsmalndeif, must be sold. No-
where in the win Is thene a aaggaBtUm of a
purpose on the part of the testator that his
esute was lo be sol^ected to tbe payment of
bis debts by rotting tbe sane; the only pro-
Tlslon made to that «id bting fbr a sale of
certain of his real estate In A glTUi erent
The derlae to aivdlants In raualnder Is
not tbe **resldnQ of tbe Bmmyslde tract,"
but the same "or any part of same or pro-
ceeds thereof If sold fbr tiie payment of my
debts that may rranalB." As we Tltfw th«
reCMd, It cannot be oueBtbrned that tbe ne-
«easl1y for tbe sale oif this pared' of Ibe tes-
tator's real estats fbr the paymrat of his
remaining outstanding Indebtedness had
arisen when tbe decree dlreedng Ita sale, of
which eonqdalnt is made, was entered; and
we bave beoi nnable to And In the setOed
aoconnts of the executrix Ibat any Injustice
has been duie ain>ellaat8. The accounts ap-
pear to have been stated upon correct prin-
ciples of law, and the exceptions taken to
tbe account dealt with in the decree of July
27, 1909, as said by the learned Judge of the
circuit court in his opinion made a part of
the record, "but merely go to the methods
of stating the accounts by the commissioner
and calling attention to apparent errors and
are largely argumentative of the main ques*
tlon submitted."
[E] Appellees, assign as cross-error somudi
of the decree of January 31, 1911, appealed
from, as holds that It Is the duty of the life
tenants to take out insurance, either for the
benefit of themselves or for the remainder-
men, on the buildings on the real estate d^
vised either to them directly or to trustees.
Whether such a burden could, in any case,
be Imposed by a court of equity upon a life
tenant for the benefit and protection of tbe
remaindermen, we need not express any
opinion here, but are of opinion that the
situation of the testator's property, as ap-
pears from the record In this case, did not
warrant the requirement of the life tenants
thereof In the decree of January SI, 1911,
with respect to Insurance of buildings there-
on, and the decree win be ammded by strik-
ing out of it that requirement; and as so
amended It, as well as tlie decree of July 27*
1909, will be affirmed.
Amended and affirmed.
KSOTH, pi, absent
Digitized by Google
INTERNATIONAL SILVBR 00. T. V. Q. HtTLIi A 00.
60^
INTBSBlrATIONAIi 8ILVBB CO. V. r. O.
HULL ft CO.
(SnpMiM Court of Georgia. iSmy 13* 1013.)
(ByUabuM ihe Court.)
Feaddulent GoNTKTAHon (| 47*) — Bulk
Sales or Mekghaiidiss— Vauoxtt.
It one desiring to purchase a stock of mer-
chandise io bulk demands and receives from
thfl vendor a written statement onder oath,
purporting to contain the names and addresses
of all the creditors of the vendor, together with
the amount of the vendor's Indebtedness to
each of them, and within the time required by
tbe statute due notice of the proposed sale,
the price to be paid, and the terms and
conditions thereof is given by the purchaser to
each of the creditors whose names appear on
the list so fumisbed, and thereafter the pur-
chaser in good faith pays over to tbe vendor
the purchase price agreed on, without notice
or reason to suspect that the vendor has omit>
ted from the sworn list the name of any of bis
creditors, the sale is not void, either in whole
or in part, by reason of the fact that the seller
omitted to name one of hto creditors, and the
purchaser failed to give that creditor notice
of tbe sale, though such creditor did not In
fact have an; notice of the sale, and though
the seller is InaolvenL
[Ed. Note— For other cases, see Fraudulent
Conveyances, Cent Dig. i 34; Dec Dig. |
47.»J
Certllted QiUBtton from Court of Appeals.
Action b7 the International Silver Compa-
ny against F. G. Hull ft Ca A qneatton Is
osrtliled by the Court of Appeals to the
Bavnmo Court Answered In tlie negBtlT&
See, also, 78 8. B. 610.
The Court of Appeals certified to the Su-
preme Court the following question for de-
cision:
"If one desiring to purchase a stock of
merchandise In bulk demands and recelveH
' from the vendor a written statement under
oath, purporting to contain tbe names and
addresses of all the creditors of the vendor,
together with tbe amount of the vendor's in-
debtedness to each of them, and within the
time required by the statute due notice of
the proposed sale, the price to be paid, and
the terms and conditions thereof are given by
the purchaser to each of the ci'edltors whose
names appear on the list so furnished, and
thereafter the purchaser In good faith pays
over to the vendor the purchase price agreed
on, without notice or reason to suspect that
the vendor has omitted from the sworn list
the name of any of his creditors, Is the sale
void, either in whole or in part, by reason
of the fact that the seller omitted the name
of one of his creditors, and the purchaser
tolled to give that creditor notice of the
sale, when it ai^wars that such creditor did
not In fact have ai^ notice of the aalt, and
It also appeus that the seller Is Insolraitr*
J. J. Norihcutt, of Acwortti, for plaintiff In
error. Joe Abbott, of Acworth, for defend-
ant In error.
LtTMPKIN, X Prior to 190S sales Of stock
of mercbandM in bulk could only be 'attack-
ed for fraud under the same rules aa were
applicable to sales genetally. Civil tio^e, H
3224, 4109; The Legislature was of the opln>
Ion that this was not snllldent to meet the
evil, or possible evil, ct a falling merchant's
making a secret sale of. bis stock' in bulk,
placing tbe proceeds b^^d readi, and leav-
ing his creditors helpless, unless they could
show both fraud on his part and notice to
the purchaser. Bven thai, a subsequent In-
nocent purchaser might take a good title.
It was deemed proper to give additional saf e<
guards to creditors In connection with sales .
<it sto<A« In bulk. The act of 1903 (now
codified In Civil Code, H 3226 to S22») was
passed. Section S226 makes It the duty of
every persbn who shall bargain for or pur-
chase any stock of goods, for cash or credit
before paying or dellv^ng to tbe vendor any
part of Uie purchase price, to demand and
recelre from the vendor a written statement
under oatib of the names and addresses of
all the creditors of the vendor, together with
tbe amount of the indebtedness due or ow-
ing to each. This duty Is placed upon the
proposed purchaser. Tlie duty Is placed on
the seller to furnish such a statement, and
also a statement of assets and liabilities and
of the cost price of tbe merchandise — ^the
cost price to be arrived at by an inventory
takm at the time by both. "Thereupon" It
Is made the duty of the purchaser to give
to each of "said creditors" notice of the pro-
posed sale and the price and terms (accom-
panied by a copy of tbe statement of the
assets and liabilities "as furnished him by
tbe vendor"), at least five days before the
completion of the purchase, or the payment
of the purchase money. Section 3227. By
section 3228 it Is declared that. If the pur-
chaser fails to comply with the duties re-
quired of him as therein spedfied, the sale
shall be deemed fraudulent aa against tbe
creditors of the vendor.
A consideration of these sections will show
that certain duties are imposed upon the
proposed purchaser and certain duties upon
the proposed vendor. If the purchaser fails
to comply with the duties Imposed upon
him, he gets no title as against creditors of
the vendor. If the vendor knowingly and
willfully makes and delivers, or causes to
be made and delivered, any statement of
which a material portion Is false, or falls to
Include the names of all his creditors, be is
declared to be guilty of a misdemeanor. Pe-
nal Code, I 718. But if tbe purchaser do-
mands from tlie voidor a written statement
under oath of the names and addresses of
the ^editors of the latter, with the amount
due or owing by the seller to each of them,
and the seller dellven a statement purport-
ing to contoln all of his creditors, and the
purchaser, In good faith and without any
*Tor otber cKus ■•• same toplo aaA seoUea NVHBBB In Dso. Dig. A Am.
78S.B.-39
610
knowledse or notice of tbe omission of tbe
name of a creditor therefrom, proceeds to
comply with the requlrementa of the statute,
there Is no declaration that he shall lose
his purchase because of the omission by
the seller of the name of a creditor. On the
contrary, in referring to the duty of the
purchaser to send out the statement of as-
sets and liabilities, after the two have taken
an inventory, the expression is used "as fur-
nished him by the vendor," indicating a leg-
islatlTe purpose as to such statement at
least that the purchaser was not to be held
liable for every possible omission of the
vendor, of which the purchaser had no no-
tice. And, in declaring when the sale shall
be presamed fraudulent, one expression used
is: If the purchaser shall pay or give any
evidence of Indebtedness for the purchase
price, or any part thereof, "without having
first demanded and received from said vendor
the statement under oath, mentioned in sec-
tion 3226, and without having first given to
each of said creditors the notice," eta There
Is nothing here to show that an omission
by the vendor of a creditor from the sworn
list should be visited on a bona fide pur-
chaser without notice.
It was argued that tbe statute required
the purchaser, not only to demand, but also
to "receive," from the vendor a list of all
of the creditors of the latter, and that he
had not received a list of all of them, If one
were omitted. But this is too exacting and
verbal a construction. The statute did not
make the purchaser a warrantor of tlie ab-
solute completeness and accuracy of the
sworn statement of tbe vendor, or punish
htm for the omission from snch sworn state-
ment of the name of a creditor, without
any fraud on his part, or any notice thereof.
It was further urged that, if It should be
held that an omission by the vendor from
the statement of one creditor did not avoid
the sale^ he might omit any number of his
credltOTB, and thus th^ mig^it get no notice,
and a fraud might be perpetrated upon them.
TUb Is possible. But the penal statute ap-
iwan to provide some obstacle to the wiU-
fol furnishing by . the vendor of an Incom-
plete Ust of creditors. And, moreover, the
statute now tmder consideration furnished
a comulatlTe protection to creditors. It did
not repeal the pre-existing laws against
frandnlent sales. If the vendor and pur-
chaser should collude to omit certain cred-
itors, and thus defraud them, or if the Yen-
dor should omit the names of one or more
creditors, with Intent to delay or defraud
them by sale, and the purchaser should have
notice thereof, the omitted creditors could
still have a remedy under <^vil Code, IS 3224,
3225.
A careful consideration of the statute
touching sales of merchandise In bulk leads
us to the conclusion that the question pro-
(Oa.
pounded by the Court of Appeals should
be answered in tbe negatiTe. AU the Jostle*
es concur.
01 Oa. App. mi
IMTBBNATIONAL SILTEB GO. T. F. O.
BULL & CO. (No. 4^)
(Court of Appeals of Oeoigia. June 1818.)
fSyUalut hy the Court.)
AimiUNcn OK Ahbwu to OBBnnsD Qttss-
noH.
The Supreme Court having. In answer to
a queition certified to It by this court in this
case a40 Ga. — , 78 S. E. 609), setUed, ad-
versely to the contmtions <rf the plaintiff in
error, all the issues involved in the caas, the
judgment of the court below is Banned.
Error from Superior Court, Gohb Ggnnty;
N. A. Morris, Judge.
Action by the International Silver Com-
pany against F. O. Hull & Co. From a judg-
ment for defendants, plalutlfl brings error.
Affirmed on answer (78 S. XL 609) to certtfled
question.
J. J. Nortbcntt, of Acwerth, tor plalntift
in error. Joe Abbott, at Acwortii, fnr defsikl'
ant in error.
POTTLBl, J. Judgment afilrmed.
02 Ge. App. 781)
ROBSON & EVANS v. WBATHERLT LUM-
BER CO. (No. 4,766.)
(Court of Appeals of Georgia. June 10, 1&18.)
(BflMut by tiU Oom%)
Sn-Orr and Cocinxsoujic Q 83*)— Bioht
TO IKTKBPOSX.
Tbe indebtedness set up In the plea con>
Btltnted a valid set-off against tbe claim of the
plaintiff, and the evidence of the defendaot es-
tablished piima facie the truth of the plea, and
the direction Ot a verdict for the plaintiff was -
erroneous.
[Ed. Note.— For other cases, see Set-Off and
Coonterclaim. Cent Dig. 11 1, 32, 54, DO ; Dec
Dig. 3 33.*]
Error from Superior Court, Baldwin CouO'
ty ; J. B. Park, Judge.
Action by the Weatherly Lumber Company
against Robson & Evans. Judgment for
plaintiff on Erected verdict^ and defendants
bring OTOT. Reversed.
Hlnes & Vinson, of MllledgevlUe, Cor plain- .
tlffB In error. Allen & Pottle, of Milledga-
ville^ for defendant In error.
HILL, O. J. The Weatherly Lumber Com-
pany brought suit on an accepted draft, and
on the trial the judge, at the conclusion of
the evidence, directed a verdict for the plain-
tiff. Error la assigned, on this direction of
the verdict
The defendants admitted tbe execution of
the acceptance and their apparent liability,
but claimed, as a set-off, damages on account
of the alleged breach of two previous con-
78 SOUTHEASTERN REPORTER
•For otber esMs Bw SUN tople ssd SMthm NUHBBR in Dm. Die.* Am. DIk. Key-No. SariM^ Rep'r Indnsv
"■ * "Digitized by VjOOglC
GEORGIA XXCELSIOK Ca t. HARTFELDEBr-GABBUTT 00.
611
tracts which they had made with Qie plain-
tiff. They bad prevloasly ordered ahlngles
and celling from the plaintiff; and they al-
leged, In their plea of set-off, that after they
had bought the shingles from the plaintiff
they sold them for a net profit, that the
plaintiff had breadied the contract by failing
to deliver tiie shingles, and that they were
oitltled to set off the amount of the lost
piDflt as against the claim of plaintiff In this
salt They claimed, also, that the celling
delivered by the plaintiff was defective, and
was worth $2 a thousand less than the oos-
tract price, and they claimed they were en-
titled to set off this difference as against the
plaintiff's claim. One of the defendants testi-
fied as to the nondelivery of the shingles
and the amount of damage resulting from the
nondelivery, and also testified as to the de-
fective condition of the celling delivered to
them. The dtfendants refused to pay for the
flhlngtea, on accoont of their noDdelivery.
Tta^ paid for the odllng. bat before It had
been examlaed and its dftfbetlye condition
dlscoTwed.
It te unnecessary to go further Into the
merits of the claim oi set-off; but it aeema to
DB that it was allowable, under the law of
mutual cLaims, or set-off, if proved, and that
the (Bvldtfioe was of soCh a character that It
should have been submitted to the jury. The
defendants testified that they accepted the
draft for the Inmbw which they bad bought
fn»D the plaintiff, In order that they might
be given an opportunity to plead this setoff
when sued on the acceptance. In view of this
Btatom^ of the defendants, the verdict was
directed for the plaintiff, on the theory that,
where one has a <daim against another aris-
ing from breach of contract, he cannot make
a subsequent contract with the same party,
in order that he may have an opportunity to
set off hla daim for damages arising out of
the tneatA of the former contract, when sued
on the latter obligatloa; and the case of
Madison Supply Oo. v. Brown Oarrlage Co.,
137 Oa. 195, 73 8. B. 344. and the cases dted
therein, are relied upon in support of this
position. In that case a promissory note,
glvra for certain personal property, was i>ald
voluntarily to the original payee by the
maker thereof, who subseauently purchased
personal property from the same vendor, for
the avowed purpose of refusing to pay there-
for, and of pleading a set-off and partial
fftllure of consideration to the first purchase,
because of alleged defects in the property
first purchased, which were known to the
buyer at the time he paid the note given for
the purchase price thereof; and it was held
by the Supreme Court that this claim of set-
off could not be allowed, because the buyer,
when be paid the note, had full knowledge
of the defects In the property first purchased,
fmd therefore could not set up the same as a
defense to his second obligation — ^In other
words, that the payment of the noto with
knowledge of the defects constituted a waiv-
er of the defects and oC any claim tor damag-
es arising therefrom.
Such are not the facts In the present case.
Here the acceptance sued on was not given In
payment of the shingles or c^lng previously
purchased. It was an entirely different
transaction. The evidence does not disclose
that the lumber for which the acceptance was
given was bought for the purpose of enabling
the d^endants to plead a set-off against the
pnformance of their contract; nor does it
appear that the defendants bad notice of the
defects In the celling when they made the
subsequent purchase, or when they gave the
acceptance. It seems to us that the purpose
the defendants had In accepting the draft la-
wholly ImmateriaL Tbey did not deny that
they bought the lumber tor which the accept-
ance was given, and as to tiiat lumber tbey
did not set up any defects, or any reascm why
tbey should not pay tor It Tlie main ques-
tion, so for as the zight of set-off Is con-
cerned, is: Did thv have ft valid claim
arising out of the previous two contracts,
whoi they were sued on their acceptance?
If they had, th^ would have the right;
witatever their motive in acc^tinff the draft,
to set off a debt which the plaintiff owed
them as against the debt which th^ owed
the plaintiff, and whether the defendants had
a valid claim arising out of the breach of
the two previous contracts depoided on the
evidence, and was a question to be submitted
to the jury, and we think the court erred
in directing a verdict for the pliUntliL
Judgmmt reversed.
CIS Ga. A99. itn
GEX>ROIA BZCELSIOR Oa T. HABT-
FEIJ)ER-GABBUTT CO. (No. 4.78B.)
(Court of Appsals of Georgia. June 10, 1918.)
(ByUahvt h» the Court.)
Saijcs (% S64*)— Trial (i 39*)— WrTHESras <i
255*)---Ri7BESHXNO Mehoet— Question vos
Just — DocmcsHTAvr fiivxDBnon—lHSTBUo-
TION.
Tills was an action on an open account, to
recover 21,597.68 for goods sold and delivered.
The verdict was In favor of the plaintiff for
$872.54. There was a general denial of the ac-
count, a special plea of (ailuie of coDsideratioQ,
and a crosB>action claiming damages on account
of the alleged failure of the plaintiff to deliver
the goods within the time specified In the con-
tract. There was snfficient evidence to author-
ize the jury to find that the account bad been
proved, especially in view of the fact that there
was no denial that the goods sued for had been
delivered. While, as to some of the items in
the account, the testimony may not have been
au£Scientlj definite, still a sumdent number of
items were proved to authorize a verdict for the.
amoant found by the jury. On the Issues rais-
ed by tlie special plea and the cross^tion, the
evidence was sufficient to authorize a finding in
favor of the plaintiff. It was not errooeons to
permit the pLaintiff's witness to attempt to re-
fresh his recollection from the cony;.oi the
•For otlier ouw bm uuzm toplo and section NUMBBR ik Da& Dig. A Am. Dig. K«y-ii&i!|i£Hl^.
612
78 SOUTHEASTERN REPORTER
(Ga.
count attachetl to the petition. . It wfis not ee-
sentlRl that the witneet sbouM have made the
mmnoraadnm hlmflelt henaay Finley, 118
Ga. 427. 46 S. E. 317. It was enough if be at
any time had personal knowledge of the correct-
ness of the entry of items set forth in the ac-
coant As to many of them he testified that
he did have inch knowledge. Whether, under
his testimony, he did have soffident luiowledge
In reference to the acconnt, was ' a qaestion
properly suhmltted to the Jnry. In the light of
the explanatory note of the trial Judge, the tee-
timony of the plaintiff's witness in reference to
the entries from the plaintiff's boolca was not
objectionable. Although the books were not
formally Introdaced In evidence, the court cer-
tifies that they were produced and used on the
trial, inspected by the court and counsel, and
the witnesses interrogated in reference thereto.
In this manner entries from the books were
read to the jury, and thus became a part of the
evidence in the ease. Under these drcum-
itances, the books were properly treated as evi-
dence, at least in so far as they relate to the
entries about which the witnesses had testified.
The trial judge charged the jury in substance
that, before the defendants could recover in the
eroM-action for damages Incnrred by reason of
an Independent third contract made by the de-
fendant on the faith of the contract with the
plaintiff, it must appear that the fa^t that such
third contract was made was communicated to
the plalntlE. This charge was not erroneous
because the trial judge failed to charge that
knowledge by the plaintiff of the independent
contract, or reasonable grounds of knowing the
same, would be sufficient The language of the
cliarge as given was sufflcient to express the
idea contained in the assignment of error. The
trial was free from sobstantial error, and the
court did not err in oyerraling the motion for
a new triaL
[Ed. Note.— For other eases, see Sales, Cent
Dig. 51 1065-1076; Dec. Dig. | 364;« Trial,
Cent. Dig. H 92-98 : Dec Dig. S 39 ;* Wit-
nesses, Cent Dig. {{ 874-$90; Dec Dig. 8
265.*]
Error from City Court of Savannah;
Davis Freeman, Judge.
Action by the Hartfelder-Garbutt Com-
pany against the Georgia E^xcelstor Company.
Jadgmoit for plaintiff, and defendant brings
error. Afflrroed.
Bfittt L. Coldlng, of Savannah, fbr plaintiff
In error. (Hirer ft OUver, of Savannah, for
defendant In mor.
FOnitS^ 3, Jndsment alDrmed.
(U Ga. App. 750)
GEORGIA BT. ft ELECTRIC GO. t. GROS-
BY. <No. 4,696.)
(Court of Appeals of Georgia. Juno 10, 1918.)
fSvttahv »y the Court.)
ATTOBirer AVD GLIEHT (i 189*)— LlEH FOB
Fee— SrrrLEUBNT or Surr.
After suit has been filed upon a cause of
action, the suit and cause of action must be
treated as one, and there can be no substantial
separation; and although the cause <i action
may be settled before the suit has been filed,
after the filing of the suit no person, whether
party or third person, can settle the suit or the
eauM of action so as to defeat ttie Hen of the
attorney for his fees, and tha attorney, not-
withstanding any settlement of the cause of ac-
•FwoUier eases
tlon, has the right to prosecute the suit in the
name of his client for the recovery of his fee.
[Ed. Note.— For other cases, aea Attorney and
Client Cent Die. H 407--4U; Dee. I)if. |
189.*]
Error from Ollr Oonrt of Atlanta; B. IL
Beld, Judge.
Action by H. M. Crosby against the Geor-
gia Railway ft Electric Company. From a.
ruling permitting the actl<ni to proceed for
the use of plaintiff's attorney, defendant
brings error. Affirmed.
Crosby sued the Georgia Railway ft Elec-
tric Company to recover damages for person-
al injuries alleged to have been received by
him while he was driving a wagon along
Dover street in the dty of Atlanta. His
cause of action was based upon the presence
In the street of a rotten pole, which fell
down on him while he was legitimately using
the street The pole was the property of the
Georgia Railway ft Electric Company, and
was In a public street of the dty of Atlanta.
It bad been permitted to stand In the street
a sufficient length of time to have rotted and
become dangerous to those who were using
the street. The Injury occurred on June 19t
1911, and the suit waa filed on June 21, 1911.
The dty of Atlanta was not joined as a
codefendant It seenia that at the time of
the Injury the plaintiff was an empIoy« ci
the cl^ of Atlanta, and subsequently to the
filing of the salt against the Georgia Hallway
ft Electric Company he settled with the dty
of Atlanta any claim for damages whl<A he
might have had against the dty for this in-
jur?, giving to the dty the following re-
lease : "In cottsideratiou of the sum of nine-
teen dollars and eighty centa, the receipt of
which I hereby acknowledge, I, H. M. Cro»-
by, do hereby release the dty of Atlanta
from all claims tor damages past, present,
and future^ on account of the falling of an
electric ligjit pole on me while driving one
of the wagons of the chief of cons traction
department This accident occurred on Do-
ver street In the dty of Atlanta on Jane 19;
1911. [Signed] H. M. Crosby." It la not
shown that the Georgia Railway ft Blectiic
Company, or any one acting In Us bdialf,
had anything to do with the procurement of
the settlement with the dty of Atlanta.
When the Case against the Georgia Railway
ft Electric Company was called for trial and
the foregoing facta were disclosed, the point
waa made by the railway and electric com-
pany that the settlement with the dty of
Atlanta operated In law to defeat the right
of the plaintiff to recover against It, and the
trial Judge so mied, and directed a verdict
against the plaintiff in so for as right of ac-
tion in himself was concerned. The plalnttlTs
attorney, however, insisted that he had m
right to prosecute the suit In order to r»*
cover a contingent fee of one-half of what-
ever amount might have been recovered In
the case against the railway and electric
I same tople ana seoUon HUUBBR la Deo. Die. a Am.
company. The trial Judge allowed the case
.to proceed to verdict and judgment In b^alf
of the plaintiff for use of the plaintUTs at-
torney. This direction was given the case
over Uie objectton of the defendant; and it
la contended that the trial Judge erred In al-
lowing the case to proceed and the plain-
tiff's attorney to recover for his fees. The
qaestlon whether the Judge ruled correctly
In holding that the settlement made with
the city of Atlanta operated in law to de-
feat the right of the plaintiff to recover
against the railway and electric company Is
not InvolTed, dnce no aception was takvi
u to that ndlng.
Cdqiiitt & Gonyen, of Atlanta, for plain-
tiff in error. Hlnee * Jordan, itf AOanta,
for defimdant in omr.
HILL, a X (after stattag fbe fkcts u
above). The rnllng of the trial oonrt In al>
lowing the case to pioceed for the use of
plaintiff's attorney la based nptm the conrfs
Interpretation of the law of Georgia relating
to the lien of attorns for their f^ The
ClTll Code (1910) I 3364, par. 2. provides as
fonom: "Upon suits, jndgments, and de-
crees ftv mmey, tber [attorneys] shall have
a Hen snperlor to an Ilois bat tax liens, and
no person shall be at liberty to satisfy said
snit. Judgment, or decree nntil the Hen or
claim of the attorney for his fees is fally
satisfied; and attorneys at law shall have
the same right and power over said suits,
Judgments, and decrees, to enforce their
liens, as their clients had or may have for
the amonnt due thereon to them." Learn-
ed counsel for the plaintiff In error insist
first that this lien attaches only to the suit,
Judgment, or decree, and the property re-
covered for his client, and that it does not
attach to the subject-matter Of the cause of
action; and, second, that the words In the
act, "no person," are intended to mean "no
person litigant," no defendant, or person oc-
cupying the same relative position as the
defendant We think the distinction sought
to be made in the first contention Is based
upon a misconception of the rulings of the
Supreme Court on that subject Unquestion-
ably no lien In favor of the attorney at law
attaches to the cause of action — that Is, to
the cause of action before the suit on such
cause of action Is filed — but upon the Institu-
tion of a suit on the cause of action the at-
torney's lien attaches to the suit, which nec-
eesarily includes the cause of action. A
cause of action can be settled by the parties
before a suit thoreon is filed, but after tiie
suit has been filed the suit and cause of ac-
tlon become one in substance, and neither
the suit nor the cause of action thereafter
can be settled so as to defeat tbe lioi of the
attOEiiey. It is manifest that the attorney
could not have a lien on a suit, unless the
suit s6t forth a cause of action, and neither
could he enforce such a Hen unless the cause
of action had been proved by the evidence an*
der tbe law applicable thereto. If for any
reason the suit Is finally disposed of by oper-
ation of law, or by a ruling of the court
thereon, the Hen of the attorney is necessari-
ly discharged. We think this is what is
meant by tbe Supreme Court in the case of
Brown V. Georgia, Carolina ft Northern By.
Co., 101 Qa. 80, 28 S. B. 634. Prior to the
adoption of our first Code a defendant was
not allowed to settle with the plaintiff to de-
feat a Uoi of the plaintiff's attorney, wheth-
er the defendant had notice of the existence
of the attorney's claim of Hen or not, and
tbe law as It then stood was incorporated in
that Code (Code of 1868, i| 1S69; 1990). Tbe
law as thus codified' remained without diance
untU the act of 1878 (Acts 1873, pp. 4SM<9-
One of the changes which tbe act of 1878
made in the law was that the mere filing of
the snlt cmstttnted aufflUdwt notloe of the
existence of a claim of a poasihle lien of tbe
attorney for fees, so as to prevent the <l/e-
f endant from making any settlement or satis-
faction of the salt to defeat the lien of tbe
plalntUTa attorn^ for fees ; and the act also
gave to the attorn^ the right to contn^
the case to eoUeet Ills fees In all respects as
folly as bis client These inovlslons of the
act of 1873 are In the Code of 1010, f 3364.
Coustmlng the plain longoage at this sec-
tion, it la clear Uiat after suit has bea filed
it cannot l>e settled so as to defeat tbe 11a
of the attorney for his fees.
The second point Insisted on by learned
counsel for the plaintiff In error^that the
Inhibition is limited to a party defendant or
litigant, or some one in bis behalf— is not
without logical force; for unquestionably the
purpose of the statute Is to prevent a defend-
ant l^om settling with Insolvent or dishonest
plaintiffs a suit which has been brought by his
lawyer, and thus deprive the lawyer of the
fruits of his labor ; but this court has no right,
however logical this construction seems to
he, to take from or add to the express lan-
guage of the statute on the subject That
language Is that "ilo person shaU be at Uber-
ty to satisfy said suit, Judgment, or decree
until the Hen or claim of the attorn^ for his
fees is fully satisfied," etc. Courts have no
right to restrict the application of the statute
to parties litigant or the defendant in the
case, where the express language of the Leg-
islature makes no su^ limitation, bnt ex-
pressly asserts the contrary.
Jndgniant afflnned.
OEOIiaLA.- BT. ± ELBCTBIO- pO. T- CflOSBT
Digitized by Google
n SOOTHBASTBBN RBFOBTflB
(a.c.
(U Ga. App. 78S)
HATWOOO T. KITCHENS. (No. 4,768.)
(Goart of Appeali ot Owntia. Jtuie lO^tSl^)
(Byllalt— hv tht Courts
JUBTICm 07 THE PuCK (H 112, 113*)— CO-
KBOIOH or VKBDIOT— ZNSTBUCTIOItS.
In the trial of a case on appeal in a joB-
tice'a court. It waa error (or the ma^iBtrate to
infonn the jury that he desired to take the
train in SO minutes; that be wanted a ver-
dict made, one way or the other, within that
time, in order to permit him to take the train ;
and that he wanted to get rid of the caae some
way in that time. While the amount involved
waa small, the evidence was sharply conflictioK
and somewhat volomlnoas, and tne conduct of
the pustice tended undnly to hasten Qie consid-
eration of the case.
[Eld. Note.— For other cases, see Justices of
the Peace, Cent Dig. ({ 364, 365 ; Dec. Dig.
iS 112, 113.*]
Brror from Superior Court, Glascock Coun-
ty; 6. P. Wftlker, Judge.
Action between W. W. Haywood and B. B.
Kitchens. Judgment for Kitchens. From
d^lal of ceittorarl, Haywood brings error.
Berersel
J. O. Newsom^ of Gibson, for plaintiff In
«iTor.
POTTLE, J. An action was brought In a
Justice's court by a physician on an open ac-
count for professional services rendered an
employ^ of the defendant The plaintiff
testified that he was employed by the de-
fendant to render the services, and that the
defendant expressly agreed to pay for them.
The defendant denied this, and contended
that the services were rendered, not to him,
bnt to his employ^ Several witnesses were
Introduced. The evidence was sharply con-
flicting, and would have authorized a verdict
either way.
Several assignments of error are made In
the petition for certiorari, in reference to
the manner In which the Jury was drawn,
and as to the composition of the Jury; bnt
none of these need be considered. At the
conclusion of the evidence the justice gave
the Jury the following Instruction: "Gentle-
men, take this case and decide It according
to the evidence produced to you. It is only
about a half of an hour until train time. I
want you to make a verdict, one way or the
other in time for me to get off on that train.
I want to get shut of it some way this time.
If you find for the plaintlCT, state the amount
you find ; If you find for the defendant, you
need not state any amount"
In Justices* courts the Juries are the Judges
of both the law and the facts upon the issues
submitted to them. The law does not con-
template that the Justice shall have the same
supervisory power over the trial as would
the Judge of a court of general Jurisdiction.
The truth is that, on the trial of an appeal
in a Justice's court, the magistrate is a sort
of a flgurebead. He is shorn most of his
power, and little Is him save his dignity.
He is not bound to charge the Jury at alL
In fact, it is decidedly the better practice for
him not to do so. Bendheim t. Baldwin, 78
Ga. 691. If he does, the Jury is not bound to
follow his Instructions. They can set up
their own views of the law In opposition to
those of the justice. But, while all this Is
true, the magistrate is generally held in
great respect by his neighbors. He is usual-
ly one of the leading men In tlie community.
The very position of the Justice on the bench
may, in the minds of the Jury, give to his
statements greater weight than would attach
to those of an advocate presenting to the
Jury his views of the law from bis position
on the floor. Hence it Is that, when the
Justice undertakes to diarge tlie Jmy, lie
must charge them correctly.
In the present case the Justice did not at*
tempt to instruct the jnry In reference to the
principles of law which should control them
in reaching their verdict But what he did
say to them had the tendency to unduly
hasten their consideration of the case. The
amount involved is small, but there Is much
evidence. The smallness of the amount did
not Justify undue hast& Thirty minutes
may have been ample, bnt it was more im-
portant that the Jury sliould maturely con-
sider the case and reach a correct conclusion
than that the JusUce should "get shut of It"
and catch his train. The certiorari should
have been sustained.
Judgment reversed.
(9S & c. It)
CANTET T. KcCLART-BROADWAT CO.
(Supreme Court of South Carolina. May 29,
1913. On Behearing, Jnne 1% 191S.)
1. Landlosd Ann TxifAira (| 2^*)— Reniv-
Liens.
Where, as part consideration for services
of a farm hand, the employer gives him the use
of land to cultivate, there could be no lien on
crops produced tiierefrom for rent
I&d. Note.— For other cases, see Landlord and
T^n^ Gent Dig. fi| 976, 979-Wl; Dec Die
2. Chattbl IfbsreAaH 188*)— Fuoanr w
Luns— AnvANcia oir Cbops.
An employer of a farm hand, who was
given as part wages land to cultivate. Is not en-
titled to a lien on crops produced, the lien not
being reduced to writii^, as asainst a factor
holding a recorded mortgage for advances to
the farm haod, who bought the crops and can-
celed the debt; Civ. Code 1912. \ 4165, ex-
pressly requiring such liens to be recorded.
[Ed. Note.— For other cases, see Chattel Mort-
gages, Cent Dig. SI 228-236; Dec Dig. |
138. •]
Appeal from Common Pleas Circuit Court
of Clarendon County; Ernest Gary, Judge.
Action by J. M. Gantey against the Mc-
Clary-B roadway Company, a corporation.
From a Judgment for plaintiff, defendant ap-
peals. Reversed. ^ .
•For ottw catss see same tople and secUoo NUMBBR In Dee. Dls. * Am. Dig.
T. HATCHER
615
DaTls A Wldenum, of Manplnft for appel-
lant J. J. Gantey, of Snmmerton, t<a re-
spondent.
PER OURIAM. The following Is tbe
agreed statement of facts: "The plaintiff,
J. M. Gantey, a landowner near Sommerton,
Clarendon connty, state of South Carolina,
at the beginning of the year 1012, employed
one Harper Gibson as a farm hand, and as a
part of his wages permitted him to plant
about seven acres of land upon his planta-
tion, sltnated In said count7 and state. That
during the year 1912 the plaintiff made ad-
vances to the said Harper Gibson In the sum
of f97.71 and th? said plaintiff has never
at any time reduced to writing any lien he
may have for the said advances. Ttiat dur-
ing the month of October, 1912, the said
Harper Gibson sold and delivered to the de-
fendant, McCIary-Broadway Company, two
bales of cotton grown ui>on the land so
planted by Harper Gibson during the year
1912. That the value of the said two bales
of cotton was, and Is, the sum of $68.88.
That the plaintiff dalms that the defendant
is unlawfully withholding said two bales of
cotton, or the market value of same, from
said plaintiff, and has thereby damaged said
plaintiff in the sum of «e8.88. That this
is an action In clato and delivery for the
possession of the said two bales of cotton,
or the value thereof, as provided under sec-
tion 299 of the Code of Civil Procedure of
South Carolina. That the present claim of
the plaintiff is for supplies the plaintiff made
to the said Harper Gibson. The plaintiff, J.
H. Cantey, has never been paid for the said
advances by the said Harper Gibson. That
before the commencement of this action the
plaintiff made demand on the defendant, Mc-
CIary-Broadway Company, for the two bales
of cotton in question, or the market value
of the same, bnt the defendant had long
before sncb demand sold the said cotton
without any notice whatever of the plaintiff's
alleged Men upon such crops for advances.
That on the 17th day of February, 1912, the
said Harper Gibson gave to the defendant a
diattel mortgage covering all crops made on
the said seven acres of land, wliich cbattel
mortgage was duly indexed In the clerk of
court's office for Clarendon county on Febru-
ary 27, 1912. That under the said mortgage
the said Harper Gibson received advances
from the defendant In the sum of f68J20,
which he owed the defendant at the time
the cotton was received ; the defendant pay-
ing the said Harper Gibson the differmce
between the value of the cotton and Harper
Gibson's account in money."
The Judgment of the magistrate in favor
of the defendant was reversed in the circuit
court, and the defendant appeals.
[1,2] The nse of the seven acres of land
being a part of the wages paid Gibson for
bis labor, the plaintiff had no lien on it for
rent Even if a lien for advances had ex-
isted, it could not be asserted against the
defendant, McClary-Broadway Company,
whose chattel mortgage was duly Indexed,
and who paid in cash the surplus purchase
money of the cotton, because it does not ap-
pear that the defendant had actual notice of
any lien for advances, and section 4166 of
the Civil Code of 1912 expressly provides
that such a lien la good against subsequent
purchasers and creditors only when indexed
and recorded.
The judgment of this court Is that tlie
judgment of the drcnlt court be reversed.
Reversed.
On Rehearing.
After a careful consideration of the matter
contained In the vrithln petition, this court
Is satisfied that it has not overlooked any
matter of fact or disregarded any provlsloD
of law. It Is therefore ordered that the or-
der heretofore granted staying the remitti-
tur be revoked and the petition refused.
(w a a «>
WILLIAMS T. HATCHER.
(Supreme Court of Sooth Carolina. 3rau 9,
1913.)
1. Pbocess (It 125*)— Depbcts— Waives.
A defendant who demands a copy of the
complaint, waiving no rights, expressly reserv-
ing same, and who accepts service of a copy
without waiving any right as to appearance or
otherwise, and who moves to strike part of the
complaint, reserving all rights, and who moves
to set aside the service of summons on the
ground that be is a nonresident and In the state
solely to attend court as an attorney and a
witness, does not waive bia exemptions; waiver
being generally a question of tntention.
{HM. Note.— For other cases, see Process,
Cent Dig. I 153; Dec. Dig. | 125.»]
2. Pbocess (i 126*)— SrtTiNo Aside Sebvioi
—Notice or Motion— SumcisNOT.
Where the complaint states that defendant
resides in a city in a sister state, the notice <tf
motion to set aside the service of summons on
the ground that he is a nonresident and in the
state solely to attend court as an attsmey and
witness need not suggest by what manner
plaintiff may obtain service on him.
[Ed. Note.— For other cases, see Process,
Cent Dig. i 164; Dec. Dig. | 126.*]
8. Pbocess (( 126*)— Noticx ot Motion to
SsT Aside— Authoeitt or Attobnet.
A notice of moUoQ to set aside service of
summons on the ground that defendant, a non-
resident, is in the state solely to attend court
as an attorney and witness may be signed by
his attorney.
[Ed. Note.— For other cases, see Process,
Cent Dig. | 164; Dec Dig. i 126.*]
4. Attobnet and Client (8 16*)— Pboowh ■
Sebvice— Bxemptionb—Attobnet,
A foreign attorney attending court In the
state la exempt from service of process.
[Ed. Note.— For other cases, see Attorney and
Client, Cent Dig. H 23, 24 ; Dec Dig. | 16;*
Process, Gent Dig. { 147.]
Appeal from Common Pleea Olrcnit Coort
of Spartanborg County; Frank & Gary,
Judge.
■For oUrar csset ms same toplo and section NUMBER In Dec Dig. A Am. Dig. Kej-No. SniM A Rw^r
Digitized by VJiOl,
616
78 BOUTHBASTBRN BBPOBTEB
(8. a
Action bj Bobert If. VtUUmS agalnrt U.
lUton Hatcber. From an order aetUos adde
servlca of ■lumnons, plalnttfl aK«als. Af-
flnned.
Harry B. Stokes, of MashrlU^ TetUL, and
Nlcbolls & NlchoUs, of Spartanbui^, for ap-
pellant John Gary Evans and Sanders &
De Pass, all of Spartanburg, for respondent
raASBB, J. Tbla is an appeal from an
order of Judge Frank B. Gary setting aside
tbe service of a summons. The defendant Is
an attorney residing in Macon, Ga. His cli-
ent, W. J. Massee, was arrested In Spartan--
bnrg, 8. O., and applied to Judge Sease for
a discharge under a writ of habeas corpus.
Massee was beld by the South Carolina au-
thorities pending extradition proceedings un-
der a requisition from the Governor of Ten-
nessee. The respondent had represented
Massee in his troubles in Tennessee, and Ms
affidavit claimed that his sole business In
this state was to appear as attorney and
witness for Massee in the proceedings before
Judge Sease, and as such he was exempt
from service of process in coming, remaining,
and returning. After the service of the
summons, the following notice was served
npon plalntUTs attorneys :
"Please take notice that we appear for the
defendant in the above-stated case solely for
the purpose of demanding that you serve upon
us a copy of the complaint in said case at
our offices, either in Cleveland building or
on tbe public square In the dty of Spartan-
burg. In serving this notice we waive no
rights, but expressly reserve the same. Jno.
Gary Evans, Sanders & De Pass, Attorneys
for Defendant.
"In conformity with the above notice, plain-
tUt on August 24, 1912, by his attorneys,
served npon Messrs. Sanders & De Pass and
Jolm Gary Evans, attorneys for defendant,
bis complaint"
The following acceptance of service of the
complaint was indorsed npon tbe original
complaint: "Due and legal service of a
copy (tf the within complaint accepted at
Bpartanborg, S. C, Aug. 24, 1912, without
waiving onr rights as to appearance or oth-
erwise as set forth in demand for copy com-
plaint Sanders ft De Pass, John Gary Evans,
Defendant's Attorneys.**
Tbe plaintiff snred an amended com-
plaint Service accepted as follows : "Serv-
ice of cow of amended conqilaint accepted
wabieet to conditions indorsed on original
cranplalnt Jno. Gary Bvana» Sandera ft De
Pass, Defttndanta Attorneys."
aaieraaftOT, defendant's attorns asked
oC plaintiff's attorneys an extension of time
to answer and then served the foUowiog no-
tice of a motion to strike out certain alio-
gatlotts of the eomplalntt '^nease take no-
tloe that, reeervlng to onrselTes all rights,
we will on Tuesday, Septembw 17, 1912, at
9:80 o'ciocfc a. m., or as soon Uiezeafter as
counsel can be beard, we wiil, upon our
amended complaint in the above-stated case,
move before bis honor, Frank B. Gary, dr-
colt Judge, at Union, S. to strike from
your complaint tbe following:"
There was an agreement as to the time
for the hearing of the motion and time allow-
ed to answer aft» the bearing. Tbe motlcn
was withdrawn and tbe following served:
"Messrs. Nlcholls ft MlcboUs, Attorneys for
Plaintiff : Please take notice, we will on
tbe first day of the next term of court of
common pleas for Spartanburg county, at 10
o'clock a. m., or as soon thereafter as coun-
sel can be heard, move the court upon tbe
annexed affidavit a copy of which Is here-
with served upon you, and upon all of the
papers in the case, to set aside the services
of the summons on the ground that the de-
fendant not being a resident of the county
of Spartanburg, or the state of South Caro-
lina, and being in the state solely for the
purpose of attending court as attorney and
witness, he was exempt from suit, and un-
der the facts stated in the affidavit he is not
amenable to suit or process in this state;
Jno. Gary Evans, Sanders & Do Faas, Attor-
neys for Defendant"
Thereafter the case shows the following:
"Tbe matter came <mi to be heard before the
Hon, Frank B. Gary, presiding judge, at the
November, 1912, term of the court of com-
mon pleas of Spartanburg county, upon all
the pleadings and papers berdnbefore set
forth, and on December 6, 1012, his honor
passed the following order, which was filed
in the office of N. KjOonard Bennett clerk, on
December 7, 1912: [Caption omitted.] The
summons and complaint faer^n were served
upon the defendant in Spartanburg county.
The defendant Is a nonresident of Sonth
Carolina. It aH>ears that when be was serv-
ed with the summons be was in this state
for the purpose of testifying as a witness in
a certain case then pending here and for tbe
purpose of acting aa dilef counsel in tbe said
litigation and for no other purpose. Hie de-
fendant now appears Cor the sole pnrpose of
objecting to tbe jurisdiction of the court He
contends that a nonresident is exempt from
process while here for the purpose of testi-
fying and of acting as principal counsel In a
pending case, and here for no other purpose.
It seems to me that the case of Breon t.
Lumber Co., 83 S. C. 225, 66 S. O. 214, 24
L. B. A. (N. S.) 276, 187 Am. St Bep. 808, and
the cases therein dted, are condusiTe of the
question, and show that the contention of
the defendant abonld be mistalued. It la
claimed, however, that tbe defendant has
voluntarily anbndtted Ums^ to the jnrla'
diction of the court by bis conduct subse-
quent to tb» attempted servtoe. X cannot
take tills view tbe matter, for It seems to
me titat the defendant has tSirot^bont at-
tenu»ted to reserve Ue right and to av<dd sub-
mitting himself voluntarily to/^ths juilsdky
Digitized by V^OO^C
VIRaiKIA BEACH DSVBLOFMJSNT 00. T. OOMMONWBALTH
617
tion. It la therefore ordered tbAt the at-
tempted service of the rommons herein npon
the defendant be, and the same Is herebf,
set aside and declared to be of no effect
I^Dk B. Gary, Presiding Judge. December
0, 1912." From this order there was an ap-
peftL Let the exceptions be reported.
The questloDS raised are : Did the defend-
ant waive Jurisdiction?
[1] 1. Waiver is generall7 a question of in-
tention. It is tme intention will be con-
clusively presumed from conduct, at times.
The antboritlea are not at one as to the con-
duct from which a oonclnslTe presumption
will be drawn. The leBervatlon of rights
WW ccmttnnally madc^ and the intention not
to walTe any rlchts aa a matter of fact is
dear throngbont - The qnestloD la: Has the
defendant done anything that, as a matter
of law, la a waiver? The anthoritlee, too
nnmeimn to dto, and too loose in eipre»-
■ion to attempt to recondle^ are generally
agreed that a gneral appearance an an-
■wer, and a motion in the cause are, as a
matter of law, waivers. Here the appear-
ance was flpeclal, to demand a copr the
complaint The answer was not served, and,
while a notloa ef motion waa glToi, it was
not made. The circuit decree found that
tliere waa no Intentlmi to waive as a matter
of fact, and thore waa no walT» In law.
Fltagerald t.-J. L Gaae Threshing Machine
Co., 77 S. EL 789^ dlfflera from this easek In
that case a motion waa mada Here there
WES only notice of intention to make a mo-
tion. The exceptions that ratae this ques-
tion are oveirnled.
3. The second question aa stated in appel-
lant's argnment, is as Anllowa: "(9) Hla hon-
or erred in siting aside the service of the
summons, the error being: (a) That the no<
tlce at the motion to abate waa insnfBctent
on its fiice In this : That it did not snggest or
point out by what manner plaintiff could get
service upon the defendant (b),That the
defendant did not personally sign the notice
of the motion, and the subacriptlou by de-
fendant's attorneys of Itself constituted a
voluntary submission to the Jurisdiction of
the court" These propositions must be over-
ruled.
[2] (a) The complaint stotea that the de-
fendant resldea In Macm, 6a.; he can be
served there.
[3] (b) We know of no reason why the no-
tice should not be signed by an attorney, and
no eotttroUing authority ' has been dted by
appellant If the position of the appellant Is
correct that an attorney Is an oflBcer of the
court, and the court's consent la presumed,
then there could be ho plea to the Jnrlsdle-
tlon because a nonresident is not presumed
to know the procedure, and. as soon as he
procured the services of an attorney, he
waives the Jnrlsdletlon. This exception la
overruled.
[4] 8. The third and fourth qnesttona aa
made by appellant's argument raise this ques-
tion: Are foreign attorneys, attending
courts in this state, exempt from service of
process? The answer Is, they are. The case
of Breon v. Lumber Company, 83 8. O. 226,
65 S. B. 214, 24 U B. A (N. 3.) 276, 187 Am.
8t Bep. 803, settles the question as to luir
ties and witnesses, and the same iwlnciple
ai^lies to attomfi^s. The words italldaed
by appellant, "e* a jMrfy or m a wttneat onii
for no other purpose tohatever," does not
mean that no other person will be exempt,
bat only those who come with no other pur-
pose except to attend court are «cempt The
showing here is that the rewondent came to
Sooth Otrolina for no other pnrpoee what-
ever than to aaalat in the hearing btfoce
Judge Sease.
The Judgment d the drcnlt court la at-
firmed.
OABT, C X, and WOOD^ HYDBICK^Ukd
WATTS, JJn concur.
dU Tk M)
TIBOIMIA BBAOH DBVBLOPlfflDNT Oa
•t aL V. OOMHONWBAI/FH
ex reL YABBELL.
(Supreme Court of Appeals of Tirglala. June
12, 1913.)
1. IiOTTiTonoif 9 MI*)— Aonoiva on Bohd—
Right or Action— DxasoLUTzoN or Injunc-
tion.
Under Code 19M, S 8442, reqaiilng an in-
junctioD bond to be condition^ to pay all soch
costs as may be awarded against the party
talQing the injuDCtion, and all damagea incurred
"In case the iojanctloD shall be dissolved," de-
fendants oannot defend an action on an injunc-
tion bond CD the ground that the Injunction was
dissolved because a new bond vras not given
by it as repaired, where at the trial of the
injunction suit leave was granted to if to take
further evidence after argument only upon con-
dition that the bond be enlarged; thus indicat-
ing that the ioJunctl<m would bs dissolved un-
less further proof were put In.
[EA. Note.— For other cases, see lajnaetion.
Cent Dig. II 264-271; Dee. Dig. | MS.«1
2. Injunction (| 252*)— AonoNS on Bond—
DAHAOSa.
Damages recoverable In an action for
breach of an Injunction bond are those whidi
are the natural and proximate result Of the
issuance of the writ
[Ed. Note.— For other caseji. see Tniinction,
Cent Dig. {| 586-668; Dec; Dig. I 2fi2.*l
3. Injunction (§ 252*)— Actions on Bond—
DaHAOKS— EXCESBIVE DAMAGES.
Svidenee in an action on an injonction
bond given in a solt to enjoin plaintiff herein
from erecting a public ba^onse en eertala
premises held to show that an award of $860
damages was not exeesslveb
[Sid. Note.— For other cases, see Injunction,
Cent Dig. U 686-598; DecTDIg. | W2.*}
Error to Circuit Court of City of Norfolk.
Action by the Commonwealth, on the r^*
tion of Terrell, against the Virginia Beadi
Dev^opment Company and others. Jndg-
•Tor otbsr cams Mpi sam« tople asotbyi NUUBBB In Die A Am. Plg. Ksy-No. Ssriss * B«]
Digitized by Vj'
618
78 SOUTHEASTERN BEFOBTBB
sent for complainant^ and defiBnaanti biing
etror. Affirmed.
Loyall, T&7lor ft White, of Norfolk, for
plaintiffs la error. X Edward Col^ of Nor-'
taSk, tax defmdant la error.
OARDWEOi, J. In the diancery caose
of Virginia Beach Development Company
against Metta J>. Matthews and others, the
plaintiff, on the 17th day of 3lay, 1002, ob-
tained from Hon. B. B. Prentis, Judge of
the drcnlt court of Princess Anne county,
an Injunction restraining and prohibiting
said defendants from erecting on the premis-
es of the said Metta D. Matthews, at Virginia
Beach, In the county of Princess Anne,
described as lot 10 and half of lot 9, In
square 11, eta, any building to be nsed as a
paUic batlihoDse or for any other purpose
than as an outhouse to the residence there-
tofore erected on the sold premises, and
from using any building on the said premises
for any other purpose than as a residence
or boarding house until the further order of
the court The injunction was conditioned
upon die plaintiff entering into and acknowl-
edging a bond with good securl^ In the
derk's office, of the circuit court of Princess
Anne county before the clerk of said court
in the i)enalty of $1,500, "conditioned to
pay all such costs as may be awarded against
the complainant and all such damages as
may be incurred, in case the Injunction here-
in mentioned shall be dissolved." Pursuant
to the order of the Judge of the drcnlt court
awarding the Injunction, the complainant,
Virginia Beach Dev^opment Company, as
iwindpal, and N. Beaman. as surety, exe-
cuted the required injunction bond In the
penalty of $1,600, conditioned as required
in the order awarding the injunction, and In
conformi^ with the terms of the statute.
Infra, In sndi cases made and provided.
Subsequently, In the same chancery cause,
a decree was entered on May 21, 1903, direct-
ing that, "unless a new inJuncUon bond Id
the penalty of $3,000.00 should be given by
the Virginia BeacB Development Company
within five days, the said preliminary In-
junction should stand dissolved." The said
bond for the $3,000 was not given, and on
the 6th day of March, 1907, a decree was
entered in the cause dismissing It at the
complainants' costs, on the ground that the
Injunction Issued therein stood dissolved by
the decree of May 21, 1903, the complainant
not having given the additional bond for
$3,000 required of it within five days &om
the date of said decree.
At the rules held for the circuit court of
the dty of Norfolk In the derk*s office there-
of on the first Monday In September, 1908,
the commonwealth of Virginia, at the rela-
tion of Xu D. Yarrdl, administrator of the es-
tate of Metta D. Matthews, deceased, and
Augustus Matthews, instituted this suit
i^ffUnst the Virginia Beach Development
Company and N. Beaman to recorver costa
and damages to the amount of $1,500 alleged
to have been Incurred to the saict Metta D.
Matthews and Augustus Matthews by reason
of the suing out by the defendant, the Vir-
ginia Beach Development Company, of tiie
said injunction in the above-named chancery
cause which was dissolved as aforesaid.
The case was twice tried before a Jury,
in the first of which trials the fay found
for the plaintiffs and assessed thefr damages
at $1,200 <no provision for Interest being
made In the verdict), and the court placed
the plaintiffs on terms to accept a Judgment
for $460, or else submit to a new trial; and,
the plaintiffs declining to remit a part of
the recovery, the verdict was set aside and a
second trial ordered.
In the second trial had on May 6, 1012, the
defendants demurred to the evidence, and,
subject to the dedslon of the court on the
demurrer, the Jury brought In a verdict as-
sessing plaintiffs' damages at $951.67, witta-
Inter^ from the 26th day of May, 1903,
which verdict the defendants moved the
court to set aside, on the ground that the
damages It allowed were excessive, but the
court, overruling the demurrer to the evi-
dence, overruled also the motion to set aside
the verdict of the Jury, and entered Judgment
thereon, to which Judgment this writ of error
was awarded.
There are two questions presented: First,
on the demurrer to the evidence, whether the
court should not have sustained the demur-
rer, on the ground that no cause of action had
been shown by the plaintiffs (defendants In
error here), as the Injunction had been dis-
solved, not because It was erroneously award-
ed, but only because the Virginia Beach De-
velopment Company had iu>t givoi the re-
quired new bond; second, whether the dam-
ages assessed, by the Jnry, subject to the
demurrer to the evidence, ate ezcesslreL
[1] With respect to the first question pre-
sented, plaintiffs in error cont^id that. In
order to recover damages resulting from
the granting of an Injunction, it must be
alleged and proven by the plaintiff, la an
action on the Injunction bond, not only that
the Injunction has been dissolved, but that
It was erroneously awarded.
The bond sued on In this Instance is In the
very tonus of our statute (section 3442 of
the Code of 1904), which provides that the
condition of an injunction bond shall be "to
pay all such costs as may be awarded against
the par^ obtaining the Injunction, and all
such damages as may be Incurred In case the
Injunction shall be dissolved. * • • "
It Is wdl setUed by the decisions of this
court that the liability of the obligors in
such a bond is determined by the bond alone.
Blaukenshlp v. Ely, 98 Va. 350, 36 S. R 484;
Columbia Amusement Ca v. Pine Beach Co.,
109 Va. 325, 63 S. E. 1002, 16 Ann. Oas. 1120^
and authorities dted.
In the last-named case It was held that a
plalnUff who has ^§fi9l$4y ^^9lS^^
Vo.)
VIRGINIA BEACH DEVELOPMENT CO. T. COMMONWEALTH
619
bond, and has obtained and acted npoa the
Injunction la estopped to deny hla UabUlty
upon the bond.
In Claytor t. Anthony, 15 Qratt (66 Va.)
018, It was held: "Dissolution necessarily Im-
ports that tbe damages are to be paid, unless
they are expressly remitted by the terms of
the order."
Tbe opinion of this court In Hubble
Cole, 88 Va. 236, 18 S. B. 441, 13 I^ R. A.
311, 20 Am. St Rep. 716, dted for plaintiffs
in error, says: "The defendant was undoubt-
edly bound by her deed; and if, without
sufficient cause (and the dissolution of tbe
injunction and tbe dismissal of the biU Is
conclusiTe of that), the defendant deprived
the plaintiff of the benefit and profits accm-
Ing to him thereunder, she should undoubt-
edly respond In damages.**
Several cases have been dted as support-
ing plaintiffs in error's contention here that,
before the obligors in an injunction bond can
be required to respond in damages to the
obligee In the bond, it mnst first be deter-
mined that the Injunction was erroneously
awarded, but those cases were ruled by a
statute different from ours, notably the case
of Palmer v. Foley. 71 N. Y. 106, in which the
dedsion of the court was based upon the
statute of New York (sectUm 222 of the Code)
providing that the condition of the under-
taking in an injunction bond should be that
the plaintiff will pay to the defendant such
damages, not exceeding an amount which is
specified, as the defendant may sustain by
reason of the Injunction, If the court should
finally dedde that the plaintiff was not en-
titled thereto.
The difference In the condition of Injunc-
tion bonds Is discussed at some length In
Jesse French piano Co. v. Porter, 134 Ala.
302, S2 South. 678, 02 Am. 9t. Rep. 31, where
the opinion says: "The bond is the contract
of the party executing It, the statute pre-
scribes its terms and conditions, and the
right of action arises immediately upon the
breach of Its conditions. The promise la to
pay all damages and costs if the injunction
Is dissolved. The ftilure to pay all damages
and costs sustained by the suing out of the
writ after the same has been dissolved is a
breach of the bond, and there is nothing in
the statute nor In the bond which iMstpones
the right of action until after a final hearing
on the merits. There are cases to be found
whldi bold that there can be no assessment
of damages tox suing out the writ until a
final hearing of the cause In which the writ
IsBued. We apprehend that these cases, how-
ever, are based npon a statute different from
ours, or upon a bond differing from the one
sued on."
In Alliance Tr. Co. r. Stevrart, 115 Mo.
236, 21 S. W. 793, the bond given and sued
on was conditioned on the payment of " 'all
damages that may be occaedoued by snch In-
jtmctlon,' and of *aU sums of money, damag-
es, and costav which shall be chaised against
It It the injunction shall be dissolved.'"
Held that, "in an action on the Injunction
bond, the defendant could not maintain that
the injunction was improperly issued In the
first place, and that therefore only nominal
damages should be awarded against him, for
the very terms of the statute and of the ob-
ligations of the bond required the payment
of damages should the injunction be dissolv-
ed." See, also. Gray v. Railroad Co.. 162
Ala. 262, 60 South. 862 ; Roacta t. Gardner. 9
Gratt (50 Va.) 03 ; Whlta r. Clay's Bz'on.
7 Leigh (34 Va.) 6a
The injunction In the case at bar was dis-
solved, and the bill upon which It was award-
ed dismissed before this action on the In-
jtmctlon bond was instituted, so that if it
were true, as plaintiffs In error contend,
that the Injunction was dissolved and the
chancery cause In which it Issued dismissed,
not because the Injunction was erroneously
awarded, bnt only because the Virginia Beach
Development Company had not given the re-
quired new bond, that fact can avail them
nothing as a defense to this action. Besides,
It is shown upon the face of the decree pro-
viding that, unless the new Injunction bond
required be given within the time specified
the injunction therefore issued In the cause
should stand dissolved, that the cause had
been regularly matured, the depositions of
witnesses taken and also facts agreed to ;
that the case was then before the court for
a complete hearing on the motion of the de-
fendants in error to dissolve the Injunction ;
and that it was after argument commenced,
when counsel for plaintiffs in error asked
leave to take further evidence, which was
granted upon the condition expressed In the
decree, that the injunction bond be enlarged
to $3,000, thus unmistakably indicating that
plaintiffs In error well understood that upon
the record as It then stood, unless strength-
ened by additional proof, the injunction
would be dissolved then and there upon a
full hearing npon the merits of the case. In
these drcumstances plaintiffs In error cannot
escape liability to defendants In error in
this action upon the theory that the injunc-
tion was dissolved because a new bond re-
quired of the complainant in the chancery
cause was not given and not because tbe In-
junction was erroneously awarded ; and
therefore the trial court did not err In over-
ruling the demurrer to the evidence.
Are the damages assessed by tbe Joz^ ex-
cessive?
[2] "Damages recoverable In action for
breach of an injunction bond must be such as
are the natural and proximate result of the
Issuance of the writ" Jesse French Piano
Co. V. Porter, supra.
The declaration in this case alleges that by
reason of the Issuance of the injunction the
plaintiffs incurred the payment of costs
amounting to 9101.67; that the bathhouse,
which was partially constructed, had to be
left without a roof, and the lumber for the
Digitized by LjOOglC
620
78 SOUTHEASTERN HEPOBTEH
same, Mng exposed to the weather, com-
taencied to rot and was damaged to the extent
of $400; tbat the plaintiffs lost entirely the
sum of $200, expended for labor, and also, by
reason of the said Injunction were compelled
to erect a stable elsewhere, at a cost of $50 ;
and also lost the rent upon said bnlldlngs
and premises, amountlitff to the sum of
$1,500.
This Injunction was In force fully one
year, and at the trial of this cause tbe court,
without objection on the part of plaintiffs In
error, instructed the Jury as follows:
"Ins. No. 1. The court Instructs the Jury
In finding damages in this case they may
take into consideration the costs in the In-
junction suit, the rental value of the bath-
house In Question, as shown by the evidence,
from the time the said Injunction was award-
ed on May 17, 1902, to tbe time tbe same
was dissolved on May 26, 1903, and any de-
terioration, if any, that may be proved by
tbe evidence to the property during the ex-
istence of said injunction, provided the sum
shall not exceed $1,500, with interest from
the day of tbe breadi of the condltlonB of
aaid bond."
"IM. No. 2. The court Inatructa the jury
that the burden of proving damages is on the
plaintiffs, and the jury can only find such
damages as are proved by the evidence; they
must not guess, but must base their findings
upon the evidence introduced In the case."
The verdict of the Jury was, as stated, for
$951.07, with Interest from May 26, 1903,
and when the amount of the costs In the In-
junction suit, $101.67 (which was not dis-
puted), is deducted, the verdict allowed only
tbe sum of $850 as tbe rental value of the
bathhouse In question from the time tbe in-
junction was awarded to the time it was dis-
solved, and for tbe deterioration of the prop-
erty during the existence of tbe injunction.
[3] There was evidence tending to prove
loss to defendants In error by reason of dam-
age to the bathhouse, left only partly con-
structed, and the amount expended in labor
which was totally lost, as alleged in their
declaration ; so that the verdict of the jury
does not cover the rental value of the prop-
erty, as contended for by plaintiffs in error.
But, be that as It may, W. J. O'Keefe. a
totally disinterested witness examined on be-
half of defendants in error, and who had
lived on the beach for twenty years, had
rented and used similar property to- that
here the aabject of litigation, and was fa-
miliar with the condition and value of this
Bpedflc property in 1902 and 1903, when
asked as to bis experience and familiarity
with beach property and the rental value
thereof, and the value of concessions, and
what was a t&it rental value for the "Mat-
thews bathhouse," as located. In 1902 and
1908, answered: "In 1902, with the amuse-
ments and everything adjolnli^ this bath-
house, I really tbought a thousand dollars
would have been a proper value for it, be-
cause it had one of the best locations on the
beach, because of tbe moving of the pavilion
to the old hotel, and tbe excursions around
it— the excursionists were around this prop-
erty, and the bathhouse on the ground bad
a big advantage over one further away, ad-
joining the amusement end of it. That la my
experience with bathhouses, and I have run
them."
This witness further stated tbat tbe candy
stand, as located on this property and used
by its owners afterwards and Intended to be
used when enjoined, had an annual rental
value of $175. There Is other testimony In
tbe record corroborating that given by flie
witness O'Keefe.
Upon the whole case we are of opinion tbat
tbe Judgment of the circuit court la without
error, and therefore It is affirmed.
Alfirmed.
CULPEPER NAT. BANK et aL WBENN
et ftl.
(Supreme Court of Appeals of Virginia. Jane
12, 1918.)
1. Deeds <| 93*)— CONSTBtrcnoR— iRTSimoir
or Pabties.
Effect must be ^ven to tbe Intention of
the parties to a deed. If reasonably dear and
free from doubt.
[BS. Note,— For other cases, see Deeds, Oent.
Dig. H 282; DwL TUgTl 88.*}
2. Deeds (| 98*)— CoMBWUonoN— Immmoir
or Pasties.
In detennlning the parpose of the parties
to a deed, all parts must be cooBtraed together.
[Ed. Note.— For other cases, see Deeds, Cent
Dig. K 281, 282; Dee. Dig. f 93.*]
3. Tbusis (I lS3*>-OeHnstrono]r — EarARs
Cohveted—Feb Simpul
A deed of partition conveyed the land In
trust "for tbe sole, separate, and exclusive use
of* grantor "daring her lifetiiDe and at her
death in trust for her children," and the coo-
cluding inragraph provided that^ if at any time
grantor conveyed any part of the land by deed,
the trustee should nereafter bold tbe same in
trust for audi person as may bs appointed and
directed' by such deed of the grantor. Held,
that Exantor intended to reserve to herself the
full power to dispose of the land at any time^
and hence tbe deed vested a fee simple in her.
[Ed. Note.— For other cases, sea Trusts, Gent.
Dfg. 1 198; Dec; Dig. | 108.*]
4. DeEUS (S 97*)— CONSTHacnON—HAJBENDUU
Clause.
The rule, that the habendum clanse of a
deed yields to the granting cfatose when repi«-
nant, does not apply where the intention fif the
parties can be ascertained with reasonable cer-
tainty from the whole instrument
[Ed. Note.— For other cases, see Deeds, Cent.
Dig. n 267-273, 434-447; Dec Dig. { 97.*]
5. Deeds (| 28*)— Coicstbuction- HABENDtw
Olaubb.
The purpose of a habendum daoss is to de*
flue the estate taken by the grantee.
[Ed. Note.— For other cases,- see Deeds, GenL
Dig. I 53 ; Dec. Dig. | 2S>r
•Fw outer omm ••• mum teple aad eeetloB NUUBBB In Dee. Dig. * Am. Dig. Key-:
621
fli Deeds (| 97*)— GoffarnDunoN— Hubnduh
Clause.
If th« whole deed shows that It was in-
tended by the habendum clause to reatrict or
enlarge tbe estate conveyed by the granting
dause, the habendum clause wiU controL
[Kd. Note,— For other cases, see Deeds, Cent
Dig. U 267-273. 434-4^rDee. Dig. f 87 •]
Appeal from Circuit Court, Oulpeper
Suit br tbe Oolpepor Kational Bank and
otbem against Saiah BL Wrens and otbera.
From a decree In part tor complainants, tlwy
appeal. Beversed.
Hiden & Thurlow, Qlbson ft Nottlngbam,
and Walte & Perry, all of Cnlpeper, for ai>-
pellants. Grlmsley ft MUtor, of Cnlpeper, tor
appeUees.
HARRISON, J. This suit was brought
by the appellants to enforce the Ueu of their
Jadgmeuts against a tract of land alleged
to be owned by tbeir debtor, N. J. Taylor.
In the progress of the suit the title of tbe
debtor to the property sought to be sub-
jected was questioned, and thereupon an
amended bill was filed making the adverse
claimants parties defendant. Upon final
hearing the drcolt court entered a decree
holding that N. J. Taylor, the Judgment debt-
or, only owned an estate in the land for
the life of Sarah BL Wrenn, and that upon
ker death the fee simple passed to h« chil<
dren, named as defendants In the amended
bllL From tbat decree this • ai^ieal was
taken.
The record- shows tbat Isaac Brimmer died
some time prior to the year 1868, leaTing
considerable real estate in the county of
Gulpepe^, and two daughters, Eliza Anne
Edwards and Sarah E. Wrenn, as his only
heirs at law. By deed dated June 29, 1S89,
these two sisters partitioned this landed
Inheritance between them ; each of them, to-
gether with the husband of Sarah B. Wrenn,
uniting in the partition deed. Abont ten
days after this partition deed was execut-
ed, Sarah E. Wrenn, her husband uniting,
conveyed with general warranty of title 102
acres of the land held by ber under such
deed to James and Sarah E. Mlchener, de-
scribing it as land which descended to ber
from her fotber; and on July 23, 1S73, she
and her husband conveyed with general war-
ranty of title a further tract of 137 acres of
such land to William H. Payne, as trustee
to secure to Samuel B. Wormley fl,SOO
loaned by bim to tbe grantors, describing
tbe land conveyed as derived from Mrs.
Wrenn'a father. Tills tract of 187 acres ot
land was subsequoitly sold under ttie trust
deed and bought by tbe creditor, S. B. Wors-
ley, who sold and conveyed the same to N.
J. Taylor, and la tbe land which the appel-
lants now aeek to subject In his hands to,
the satisfaction of their Judgments.
The question presented by this appeal In-
volves the proper constrnctton of ttie deed of
partition, dated Jui^ 29, 1868, between Sarab
E. Wrenn and ber sister, Eliza A. Edwards.
Tbat deed conveys tbe lAnd In qnestiott to
Daniel A. Grimsl^ in trust "for tbe sole,
separate and exclusive use of Sarah E.
Wrenn during her lifetime, and at her death
in trust for her chUdroi.** The concluding
paragraph of the deed, after tbe metes and
bounds are given, is as follows: "And if at
any time the said Sarah E. Wrenn shall con-
vey the whole or any part of the said land
by deed duly executed according to the laws
of Virginia, then the said Daniel A. Grlms-
ley sbalt thereafter hold the same In trust
for such person or persons as may be ap-
pointed and directed by such deed or deeds."
[1, 2] In Temple v. Wright, 94 Va, 338, 26
S. E. 844, it is said: "Every deed is suppos-
ed to express tbe Intention of the parties,
and however unusual the form may be, it is
a primary and cardinal rule of construction
that effect most be given to that Intent when-
ever It is reasonably clear and free from
doubt ; and, In ascertaining the pnri>ose and
object of the parties all parts of the deed
must be taken and considered together, it l>e-
ing a rule of law too well settled to need
citation of authority that. In the construc-
tion of any instrument, It must be construed
as a whole."
This statement of the law has been fre-
quently repeated by this court; Its latest ex-
pression on tbe subject being found In tbe
case of Morris v. Bernard, 77 S. B. 468, de-
cided March 13, 1013.
[3] When the deed under consideration la
read as a whole, It seems to be clear that In
conveying her lands to a trustee tbe grantor,
Mrs. Wrenn, Intended to reserve to herself
the full and complete power of disposing of
the same at her will and pleasure, thua vest*
Ing in herself a fee-simple estate.
It Is, tioweVer, contended- on b^alf of tbe
appellees that tbe granting clause of tbe
deed conveyed to Mrs. Wrenn only a Ufie
estate with remainder to ber children, which
cannot be taken away by any snbseanwit
provision of the deed.
[41 There la no question as to tbe tac^cal
common-law mie relied on by appeUees that
the babendnm clause ot a deed yields to tbe
granting clansa vhetB there Is a repognanee
betweoi the estate granted and tbat limited
in the babendnm. That role baa, however,
piacticaUy become obsolete; It certainly baa
no application wbete tbe intention can be
ascertained wltb reasonable , certain^ from
tbe wbvAo InstrumeDt, and no legal obstacle
lies in tlie way of giving effect to aax!b in-
tention. Temple v. Wright, supra.
[f , I] In Pack V. Whltaker, UO Va. 122, 65
S. B. 496, it Is said, citing DevUn on Deeds:
"The purpose of the habendum is to define
tbe estate whicb the grantee is to take in the
property conv^ed, wbethw a fee^ life estate.
Die ti0^mmJ^&€tS^^
•For oOMT CUM SM ssma toolo and ■mUob NUUBBA la 1>m. DI|. A Am.
622
78 SOUTHEASTBRN REPORTEB
or other Interest** Farther cttlng the same
author, it is said: "If it appears from the
whole instrument that It was intended by
the liabendom to restrict or enla^ the es-
tate conveyed by the words of the grant, the
habendum clause will prevail."
Applying these well-settled rules of con-
struction to the deed under consideration, it
cannot be doubted that, when Mrs. Wrenn
exercised her unqnestlooed right to dispose
of the property, she conveyed to her grantee
a fee-simple title. The deed is practically
a conveyance in trust to Mrs. Wrenn for life
with remainder to her children, unless she
should convey the land, and then In trust
for such person or persons as she may ap-
point or direct by such deed or deeds. This
language cannot properly be construed other-
wise than as giving Mrs. Wrenn a fee In the
land passing by the deed. The decree appeal-
ed from entirely ignores the clear and expUc^
it intention expressed In the last or haben-
dum clause of the deed and gives effect alone
to the granting clause, whereas, as already
seen, the purpose of the habendnm is to de-
fine the estate which the grantee is to take,
and must prevail if It appears from the
whole instrument that It was intended by
the habendum to restrict the estate conveyed
by the words of the grant
It follows from the construction given to
the partition deed of June, 1869, that N. J.
Taylor, the Judgment debtor, who holds un-
der Sarah E. Wrenn, has a fee-simple title to
the land sought to be subjected by the ap-
pellants.
The decree appealed fcom must therefore
be reversed, and the cause remanded for tar-
ther proceedings not In conflict with the
views expressed in this opinion.
Beversed.
(US Va. 2S)
ST. STEPHEN'S EPISCOPAL CHURCH
flt oL v. NORRIS' ADM'R et aL
(Suprane Court of Appeals of Vliglnia. Jane
12, 1918.)
1. Religious Societies (| 16*>— Capacity to
Take by Devise.
Wh«re an entire estate consisting of realty
and personalty was devised to a church, a cer-
tain amount to be used for tombstoDes for
testator and his relatives, and half of the prop-
erty to be need in putting a fence aronod the
dinrch yard, the choreb, prohibited by Code
1904, I 1398, from takln* and holding a devise
of real estate, was not the beneficiary, but the
mere trustee as to that portion to be devoted to
erecting a tombstone and the fence aronnd the
chuicbf and, if it conld not administer the
trust as to toe realty, a court of equity, which
does not penult a trust to fall for want of a
trustee, would administer the trust, and would
discharge its interest from the personal prop-
erty which It could take^ and devote the real
estate or its proceeds to the purposes of the
trust, and hence the devise was not .void.
[Ed. NotBT— For other cases, see BellKiooB
SocieUes, Cent Dig. || 108-^108; Dec Dig. i
16.*]
2. Wnxe (S 446*) — CoNsrsucnov — Coh-
STBUcnoK IN Fatob or Will.
It Is not the policy of the law to seek
grounds for avoiding devises and bequests, but
rather to deal with both so as to uphold and
enforce them if it can he done consistently with
the rules of tew.
[Ed. Note.— For other eases, see WlUs, Osot
Dig. I 062; Dec Dig. } 44&^
Appeal from Circuit Court, Culpeper
County.
Contest betweoi the administrator and
heirs of one Norrls, deceased, and St Steph-
en's Episcopal Church and others. Decree
for contestants, and contestees appeaL Be-
versed and remanded.
Moore, Barbour, Keith & McCandlish,' of
Fairfax, and HIden & Thurlow, of Culpeper,
for appellants. Walte & Perry and Orlmsley
& Miller, all of Culpeper, for appellees.
HARRISON, J. W. C. Norrls, of Culpeper
county, died unmarried and wlthont issue on
the 11th day of May, 1909, leaving a will
dated June 80, 1896. This vrill disposes of
the testator's real and personal estate as
foUows :
"I have (22.42 on my person and (SlSJiO
in bank. If I die, I leave everything real
and personal to the Episcopal Ch. (St Steph-
ens) of Culpeper, They to allow me sepul-
Cher in Ch. yard and also my sister, who Is
to be brought from Catonsvllle, Md. (600.00
is to be devoted to buying six tombstones for
my mother, father & self & sister, & two
aunts an account of whose birth, death, Ac.
will be found In my bible, which has my
name on the back in scdlt letters. I desire
half of my property to be devoted to putting
a brick or Iron fence around the Qi. yard*
with an inscription stating it to be In mem-
ory of my sister, Annie E. Norria."
Between the date of this will and the
date of the testator's death he had convert-
ed the most valuable portion of his real es-
tate into personal properly, so that at the
time of his death very much less than half
of his estate remained In the form of realty.
The heirs at law of the deceased attack
the validity of that portion of the will which
disposes of the real estate, upon the ground
that the church cannot take and hold real
estate by devise, being prohibited from so
doing by the provisions of section 1398 of
the Code of 1904.
[1] It Is not denied that nnder the statute
invoked the chnrch cannot take and bold a
devise to It of real estate. The testator does
not, however, as contended, leave his entire
estate as a gift to the church. It is true
that in the beginning of his will the testa-
tor says, "I leave everything real and per-
sonal to St Stephens Episcopal Church," but
when the will Is read as a whole, and the
intention of the testator Is ascertained from
the language used, It is plain that he did not
leave the whole estate as a gift to the church,
for in clear and unequivocal terms he dedi-
•For otber cuw ■•• mne tople snd sseUon NUMBBB la Xtao. Die * AmrDlg. Key-No. SerlefVReoXWF!^'
■ - ^ ■ ■ ' -■ ■ ' -DiSHiz^d b/vj(JOQl(c
-GBAWFORb T. B<MWOItTH
623
cates one-Half at ila eaUte tti be used tor
Utae erection of a fence around the cbnrch-
jKtA, wUdi is to bRva an Insfslptlon Uwre-
on ahowlnff Oiat It la a memorial to bis de-
eeaoed alater, and fnrtbw ap^nqjirlatea 9600
of bla eitate for. tbe imrcbaae of tombstonee
for himself and certain other members of
bis family. Then can be no question that
the testator conid lawfully dedicate the whole
or any part of his estate, even thoi^ it con-
sisted entirely of realty, to the erection of
this memorial and tbe purchase of the tomb-
stones mentioned. As to that portion ct tbe
estate dedicated to these porposea, tbe
ctanrch Is not tbe benefldary bnt a bare trus-
tee, holding tbe same for the objects named,
and. If for any reaaon the church through
its asents cottid not administer the trust, the
court would adndnlster it and accomplish
the purposes of the testator; It being well
settled that a court of eanlty will not permit
a trust to fall for the want of a trustee.
The will la not expressed in an artlfldal
manner; its plain meaning, however, is that
the testator gives one-half of his estate to
tbh erection of the fence as a memorial to
his deceased tiates; 9600 thereof for the
purchase ot tombstones for himself and oth-
er members of his family, and the residue
of tbe estate Is glvm to the church. The
disposition made of Uie estate necessarily In-
volves an equitable eonveralon ot tbe real
estate left into mmiey, otherwise the purp|>8-
es of the testator could not be ^ectuated;
but if this were not so there would be no vio-
lation, in Uils case, of the statute inhibiting
a churdi from taking a devise of real es-
tate. Mudi the greater portion of tbe es-
tate left was personal property, and a court
of equity, in furtherance of the purposes of
the testator, would discharge the Interest of
the church, under the will, from that portion
of tbe estate which it could take without ol>-
Jectlon. uid devote the real estate or its
proceeds to building the memorial and buy-
ing tbe tombstones, which was not an Illegal
Intent and violated no law.
[2] Every sane man most be allowed to
make his own will, provided he violates no
law or public policy In dlsposlDg of his es-
tate. It Is not the policy of the law to seek
grounds for avoiding devises and bequests,
but rather to deal with both so as to uphold
and enforce tbem If it can be done consUt-
ently with the rules of law.
As Lord Hardwicke said : *^e bequest Is
not void and there Is no antborlty to con-
strue It to be void, If by law it can possibly
be made good." Perry on Trusts, { 709.
It is plain that the manifest purpose of
this testator, in the case at bar, can be car-
ried out and his estate appropriated as he
directed without violating In any respect
the provisions of the statute inhlbltlug a
church from taking real estate by devise.
We are, therefore, of opinion that the circuit
cotnrt erreH In so construing the will under
conslderatlfm as to gtv« Oe real estate pass^
lug thereunder to the heirs at law of the
testator, thereby diminlahing, to that aiient,
the fund dedicated the testator to the
erection of a memorial to his deceased slstw.
The decree appealed from must be revers-
ed, and the cause remsnded for farOier pro-
ceedings therein not in conflict with the
views expressed in this opinl<m.
Beversed.
KEITH, R, absent
(n W. Va. fitt)
GBAWFOBD et aL v. BOSWORTH.
.(Supreme Court of Appeals of West Tliglnla.
May 27, 1913.)
(Si/Uabw hv the Court J
1 iNJTTNcnoii ({ 2e«) — Acnoif at Law —
CONCUBBENT jDSISnionON— fiQUITT.
' A suit at .law cannot tw enjoined, and
the litigatioQ traneferred to a court of equity,
merely on tbe auertiou of defenses that are
pleadable at law.
[Ed. Mote.— For other cases, see iDjanctioii,
Cent Dig. H 24-49, 54-61; Dec Dig. § 26.*]
2. InjuNonoN (I 199*) — Action at Law —
DlSaOLUTIOn-^nBaEQUBRT Pbocbbdihos.
Upon dissolntion of the Injunction In inch
suit in equity, it is error for the court; with-
out cross- pleadings by defendant, to rejfer tiia
cause to a cocsmfBsioDer and decree recovery
against the plaintilfi on the contract sued on
at law.
[Ed. Note.— For other cases, see Injunction,
CenL Dig. S 417; Dec Dig. J 19Q.*}
8. INJUNCTIOM (S 26*) — AOTIOHS AT LAW —
MULTIPLICJTT OF SCITS.
Where the liability of four persons aris-
ing from a dngle contract Is several and dis-
tinct, equi^ has no jurisdiction to enjoin sep-
arate actions at law thereon on the ground of
multiplicity of suits.
[Ed. Note.— For other cases, see Injunction,
Cent Dig. if 24-49, 647^1; Dec. Dig. { 26. *j
Appeal from Circuit Court, Bandolph
County.
Action by Lucy B. Crawford and others
against Albert S. Bosworth. From a decree
for defendant, plalnUfCs .appeal. Reversed.
W. B. Bfaxwell and U A. Bowors, both of
Elklns, for appellants. J. L. Wamsley and
Harding & Bardlhft all ot Elklns, for ap-
pellee.
LYNCH, J. To enjoin the proaecntlon of
an action at law against each of the four
plalntlfCs, to cancel, as fraudulent and with-
out consideration, tbe agreement, dated May
16, 1008, out of which the causes of action
arose, and to settle herein the entire litiga-
tion, are the objects sought by the plaintiffs.
Having overruled defendant's demurrer,
the circuit court, Mjtoa final hearing on an-
swer and proof, and the report of the com-
missioner to whom tbe cause was referred
to ascertain and report the debts due tbe
def^dant herein and plalntllt In the actions
*Fer otliar essw sse sun* tople sad aeetlai HUIIBB& lal>M> DIs. < Am.
78 SOUTHEASTBBN RBPOBTEB
at law, oBtered a decree ot recovery acalnst
tbe plaliitifls, and tbey api)ealed.
[1] That failure of consideratloii in whole
or In part, and fraud In tbe ^ocarement of
contracts, are available as defenses at law,
is settled b7 section 5, c 126, Code 1906, and
Oall T. Bank. 50 W. Va. C87, 40 S. E. 390.
Railroad Co. t. Railroad Co., 56 W. Va. 45S,
460, 462, 40 S. B. 632, Connell t. Tost, 62 W.
Va. 67, S7 S. E. 299, Myllus r. Masslllon, 70
W. Va. B76, 74 a B. 7^ and Annentront v.
Armentront, 70 W. Va. 661. 74 S. B. 907. The
facts of the Annentroat Case, and tbe action
of tbe court thereon, alone afford ample an-
Uiorltr for the determination of this case
adversely to plalntlfFa' contention, Eqntty
will not Interfere where there Is adequate
ramedj at law. Bven where there Is con-
cnrroit Jurisdiction, the tribunal "which first
obtains possession of the subject must ad-
Judtcftte, and neither party can be forced
Into another Jnrlsdiction.''
f S] Nor Is there merit In ttie contention In
this case that equity has cognizance to avoid
mnmplidty of salts. The liability of plaln-
tUta. If any* under the agreement of May
16, 1903, Is amral, not Joint Bach Is liable,
if at all, only for commlgatoa on her share
of tbe proceeds «f sales. Tbe defendant did
not— In tact, could not properly— sue thereon
Joln^. Nor can tiiey Jolntiy complain be-
cause of tbe several actions at law.
[2] The defendant, under tbe prlndides
announced in Armentront v. Armentront, su-
1^, Is not, under tbe p^dblg^ enUUed to
tbe relief granted b^ tbe decree fxt February
17. i9ia
The conclusion, therefore. Is that the cir-
cuit court exred in its rallngs upon defend-
ant's demnrrer, and all the proceedings sub*
Mquent thereto. The decrees of February 26,
1909, November 20, 1909, and February 17.
1910, will be reversed, the demurrer sus-
tained, and the bill dismissed, without ptej-
ndlce to the rlght each of the plaintiffs to
defend in tbe actions at law.
(72 W. Va. BBB)
THOMPSON BALTtHOBB A O. B. CO.
- (Supreme Court of Appeals of West Tirgtnia.
May 27, 191S.)
(ByUaimt by the Court.)
RaiutOADa (I 482*) — Fnts Bit bt Locoho-
n VES— E VI D ENCE.
The origin of a fire by sparks from a
locomotive may be established by circumstan-
tial evidence which joitifies a reasonable and
welt cronnded Inference that tbe fire was of
sucb origin, and rebati the probability of tbe
fire having originated from any other source.
[Ed. Note.— For other cases, see Railroads,
Cent. Dig. iS 1730-1732, 1784-1736; Dec Dig.
I 482.*]
, Error to Circuit Court, Berkeley County.
Action by John Ia Thompson, for use,
against the Baltimore & Ohio Railroad Com-
pany. Judgment lor plalntUt; and defrad-
ant brings error. Affirmed.
Faulkner, Walker & Woods, ct Martina,
burg, for plaintiff in error. H. B. McCor-
mlck, of Charles Town, and G. B. Martin, of
MarUnsburg, for defendant In error.
ROBINSON, J. Tbe dwelling house of
John L. Thompson, situated along the main
Une of the Baltimore & Ohio Railroad, was
destroyed by fire. Claiming that the fire
originated from sparks emitted from a loco-
motive, Thompson sued the railroad com-
pany to recover damages for the loss. At the
trial the defendant demorred to the evidence.
The court overruled the demurrer and en-
tered Jodgment for the plalntlfL
By this writ of error defendant challenges
the ruling of the trial court on the demnrrer
to the evidence. It Is submitted that the
evidence does not entiUe plaintiff to Ju^-
ment The correct test on a defendant's de-
murrer to evidence Is: Woold the evidence
warrant a verdict for the plaintiff? In tbla
case, we are clearly of the opinion tiiat.it
wonld. The court committed no error la
giving plaintiff Judgment
Defendant insists that It is not proved that
sparks from a locomotive caused tbe Are.
Plainly from the facts and circumstances in
evidence a Jary would be warranted in tbe
Inference that the fire came from an engine
on- the railroad. "Circumstantial evidence
to raise an inference Is often all that can be
had to show the origin of the fire." Baldwin
on American RaUroad Law, 440. See. also,
8 ElUott on Railroads, | 1243; 18 Amer. ft
Eng. Enc. of Law, 613. In this case, the
evidence, though circumstantial, is sufficient
to Justify a reasonable and well-grounded
Inference that the fire originated from de-
fendant's engine 18<^, or its helper. The e^-
dence Is such as to rebut the probatdlity ot
the fire having originated from any other
source. Upon such evidence a Jury could
base a verdict 83 Cyc. 1381-1385. Defend-
ant ai^es that these engines passed the
premises too long a time before the fire was
discovered to have been the cause of tbe
fire. But from facts and circumstances that
are shown a Jury could have reasonably
found otherwise. Indeed ohe phase of the
testimony would fix the starting of the Are
on the porch roof next to the railroad very
soon after the running of the train to which
engine 1805 and its helper were attadied.
Since under tbe evidence blame f6r the fire
must be attributed to defendant, then pre*
sumptively It was negligent Jacobs v. Rail-
road Co.. 68 W. Va. 618, 70 S. E. 369. As to
engine 1806 and Its helper, defendant offered
no evidence to repel the presumption of neg-
ligence. So the origin of the fire and neg-
ligence in setting it out are both legally im-
putable to defendant
The Judgment will be affirmed.
•ForoUMT CUM
■M usM tgpU and nctlon NUUBEB In D»c Die a Am. Dig.
V*}
IiOQNEY T. COMBdK>NWEALTH
«25
(US Ts. ML)
. LOONEZ T. COMMONWIOAI/CH.
^pnm« Ooort of Appeals of ^rgUla. Jnn*
1. GmOiTU Law (H 121, 1180^- — Chahgk
or Viinnt— DisoBBTion or Tbiai. Goun.
A motioo QDder Cod« 1904, i 4036, for a
chaufc of veoue on the ground of prejudice
acainst accused it addressed to the discretion
of the trial court, and its rulioK will not be
distarbed aoless It plainly appears that the dis-
cretion has been improperlr exercised.
lEd, Note.— For other cases, see Criminal
Law, Cent. Dig. » 241, 3044: Dec Dig. U
121. U60.*]
2. CRiHiirAX. Law (| 1148«)^ubt (I 7*)-
SuuuoHivo Jxrar — MonoH to Sumhon
JUBT TBOll ANOTHKK CorWTT— DlBCBKTlOB
or GouBT.
A motion under Code 1904, i 4024, for a
Jiiry from anoUier count; is addressed to the
olseretion of the trial court, and its mlins will
not be disturbed unless it plainly appears that
the discretion baa been improperly exerdsed.
[Ed. Notc.-^or other cases, see Criminal
Law, Gent. Dig. IL80!HHHDS2: De& Dig. J
Jnry, GMit blg. 1 12; Dec Dig.
& JCBT (I 7*)— Suioiovxiio Jtnnr new Oth-
n CouirrT— Monoif— TiUE to Makx.
A motion under Code 1004, | 4024, for a
jury from another codnty must preceda B mo-
tion for a change of renae.
[Bd. Note.~For other caaea, bw Jury, Oiot
Dig. 1 12; Dec. Dig. | 7.*]
4. Gbehihai. Law (| 1144*) — SumoiUMO
JUBT rSOH ANOTHXB GOCjrTT OB COBFOKA-
TION— GbOUNDS.
Where a motloB for a 5ar7 'rom another
eoimty was based ton the ground that an im-
partial jury could, not be obtained from the
county, the conclusive presumption arising from
the fact that an impartial jury was anbsequent-
ly secured In the county la that the motion was
nnfoDDded.
[Ed. Note.— For other caaea, see Criminal
Larw, Cent Dig. « 2736-27W, 276«-2771. 2774-
2781, 2901, 301&-3O37; DecL Dig. { 1144.*]
B. Cbimmal Law (| 122*) — Jdbt (I T*) —
QtnsTiONa Rxniw able— Motions Depknd-
iHQ ON Conditions at Tiki of- Trial.
A motion for a change of venue on the
ground of prejudice againat accused, and a.
motion tor a jury from another county or cor-
poration, depend on conditions existing at the
time of trial and are renewable on new trial
wtien the exigendea of the sltnatlon require it.
[Ed. Note.— For other cases, see Crtmtnal
Law, GenL Dig. 1 254: Dec Dig, f 122;*
W, Ont Dig. I 12; t>ee. Dig. |V*]
6.. Jtmr (I 70*)— StnoioNiNo Jttbt— Siatu-
TOBT PBOTinONS.
Code 1004, 1 4018. prorldlag that the writ
of venire fame in caae of felony shaU com-
mand the officer to summon 16 persons taken
from the list furnished by the derk, and pro-
viding that the list shall contain the names of
20 persons drawn by the deck in the preaenee
•f the presiding iodga or, in his absence, of
one of the commissioners In chancery, and a
reputable citizen not connected with accused or
prosecutor, and declaring that for good caose
altpwn the prsatdtaig Judge ma Street more
than 20 nanea to be drawn and ahatt q>edfy
the number of names to be drawn and sum-
moned, the number drawn not being more than
4 in excess of the number to be summoned, is
mandatory, and there mQ*t be a aubstantial
compliance th«rewith, and. In the absence of
any canae. It i« iiiu»rpp« to prepare a list con-
tBining tM names of 60 jwrsons, and to order
the officer to summon 30 from that list, and
where the persons sammoned on a, second ve-
nire were practically the same as those sum-
moned on the first venire, which was quashed,
on the gronnd that it was drawn in the pres-
ence of the commieaioner in chancery, who was
the active bead of the' prosecution, the statute
waa diaregarded, though when the second ve-
nire waa ordered the judge and the clerk fa)
form drew the names from the Jory box.
[Ed. Note— For other caaes, see Jon. Cent
Diir. H 810-880, 840, 800: Dec Dig. | m*]
7. Cbihirai. Law (| S6S*)— Btidbno»~-Rbs
Where there was no connection between
a difficulty between accused and a third person,
and the sabseguent killing by accused of dece-
dent and the killing occorred at a different time
and place, and decedent waa not concerned in
or present at the prior difficulty, the details
and merits of the prior difficulty could not be
shown, for tiiey were no iiart of the res gestn.
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. | 804; Dec. Dig. { 868.*]
8. Municipal Cobpobations (| 122*)— Obdi-
nahcs8— adhib8ibilitt.
Tb% mere fact that ^• reeoflds of the
council of a town were kept In a crude maaaer
in an account book or ledger which had been
used for other purposes, and which contained
other matter than the by-laws and ordlnancea
Of tile town, and alto contained a sheet of
trpe-written matter concerning the bnsln«w of
the (own, injected between the by-laws and or-
dinances and the certification and signatures of
the clerk and mayor, Ad not render the records
inadmissible to prove an ordlaanDe, wliere aa a
whole tbey contained a anffident anthnitlea-
tioD of the ordinance.
[Ed. Note.— For other cases, see Munidpal
Coi^rationa, Cnit Dig. H 281-289; Dee. iHg.
9. Cbiuinal Law (t 834*)— Bbqubstbd Iif
STBUcnoNft— MomncATioN.
A regaested iostruction that though dece-
dent at the time he was shot was attempting
to arrest accused, yet if in making such at-
tempt he shot at accused, and thereupon, be-
cause of the shooting, accused, believing him-
aelf in "Imminent danger of being killed or sus-
taining great bodily Iidniy,** kUled decedent,
the klDing waa not morder, thongh accused had
previously threatened to . kill any one who
might attempt to arrest him, was properly
modified by moestiag after the quoted phrase
the words "and being withoBt ftuUt In pcqvok-
Ing the difficulty."
[Ed. Note^For other caaea, sot Criminal
^w^^Ceot Dig. B 2018. 2014; Deo. Dig. |
10. HouioiDx (1 161*)— Resibtino UNUwrui.
ABBEST— BUBDEN OF PbOOF. .
Where an officer having a lawful warrant
attempted t9 arrest accused, the presumption,
in absence of evidence to the contrary, is that
the officer discharged hia duty in a lawful man-
ner, and accused, resisting the arrest and kill-
ing the officer, has the burden of sbowiug that
the officec'i conduct Justified resistance.
[Ed. Note.— For other cases, see Homlddcb
Cent Dig. U 276-278; D«c Dig. { ICL*}
Error to Glrcnlt Court, Craig Cotmty.
Harvey D. tiooney'was convicted ot mur-
der in.tbe titat d^ee, and be brings wror.
Reversed.
Igttr otbsr easss see same ttvle aad aeetloa NUllBHa In Dse. Dig. A Am.
78S.B.-40
626
IB SOUTHBASTBBN BBPORTEB
O. B. Harvey, ot GUfton Force, and Wm. B.
Anen, of CoviDffton, for plaintiff in error.
Sunnet WilUamB, Atty. Oen^ and J. P. Jon«^
of New Oaatic^ fur the Commonwealth.
WHimJ!^ 7. The plalnatt In error,
Harrey IX Looney, was found gnllty of mnr-
d«r Ux the first degree and In accordance
with tlie Terdlct of the Jnz7 was sentenced
to death by the drciilt conrt ot Craig conn*
ty. The case Is before ns on a writ of er>
ror to that jndgtDent
The prisoner, when pnt npon trial, mored
the conrt for a change of venne nnder secr
tlon 4036 of the Code. The grounds for the
motion being that the conntr of Craig is a
small mountainous county sparsely settled,
and that in the town of New CasUe the
coun^ seat and. scene of the bomidde, and
throughout the entire county, great preju-
dice and 111 will exited against the accused^
both on account of tlie bomidde and of
numerous other difflcultlea In which he had
been Inrolved ; that the deceased had a large
relationship and connectloa In the conmmnl-
ty -and many we^tby and Influential friends
who were taking an actlre part against him,
and by whom the entire bar ot the countar
had been employed to aid the prosecution.
Moreover, that he had been informed of
threats to lynch Mm In the event of bis ac-
quIttaL For these reasons the accused al-
leged that he coald not secure a fair and
impartial trial in the county. The affidavits
of 0 persons were offered In support of the
petition, and of 20 persons In opposition to
the change of venue, and the court over-
ruled the motion. Thereupon the accused
submitted a motion under section 4024 for a
venire to be summoned from some other
county or corporation, which motion was
likewise overruled. The action of the court
upon these motions constitutes the first and
second assignments of error.
[1, 2] The trial court, in the exen^ of the
powers conferred upon It by sections 4024
and 4036, must of necessity be allowed a
wide discretion, and it is the established rule
that this court will not reverse the Judgment
of the trial court uniess It plainly appears
that such discretion has been Improperly ex-
ercised. Wormeley's Case, 61 Va. 658, 672,
673; Chahoon's Case, 62 Ta. 822; Sands'
Case. 62 Ta. 871, 882-884; Richards* Case,
107 Va. 881, 69 S. H. 1104; Bowles' Case,
103 Ta. 816, 48 S. E. 627.
[S, 4] It is also the general rule that a
motion for a Jury from another county or
corporation should precede the motion for
a change of venue; and, where the motion
is based on the ground that an impartial
Jury cannot be obtained in the county or
corporation, the condDsive presumption from
the fact that an Impartial Jury haa subso'
quently, been secured In the county is that
such motion was unfounded. Wright's Case,
74 Va. 880; Joyce's Case, 78 Ta. 289; Wal-
ler's Case, 84 Va. 492, 496, 5 S. E. 364. Cas-
es may arl^e, however, where the genwal role
would be inapplicable and a motion tot
change of venue should precede a motion for
a Jury from another county. See Dzzle t.
Commonwealth, 107 Va. 919, 60 S. E. S2.
[I] We are ot opinion that there Is no
reversible error In these assignments ; never-
theless, as both motions depend upon condi-
tions existing at the time of trial, they are,
as a matter of course, renewable upon a
new trial whenever the exigencies of the sit-
uation may call them Into requisition.
[I] The third assignment of error Is to
the refusal of the court to quash the second
venire fadas. The fftcts touching this as-
signment are not disputed. . On motion of
the prisoner the first venire &cias and list
of veniremen was quashed because the ve-
nire was drawn In the presence of C W. Ley-
man, the commissioner in chancery desig-
nated for that purpose; it appearing that
he was the active head of the prosecution.
Thereupon the Judge asked the sheriff it the
persons summoned under the venire whldi
had Just been quashed were present In court,
and, l>eing Informed that they were still In
attendance, he retired with the derk to the
clerk's office and shortly returned Into court
with a list of veniremen and a new venire
facias. The accused submitted a motion in
writing to quash the second list of venire-
men and venire fadas for certain reasons
enumerated in the motion, which motion the
court overruled. In that connection the court
made the following statement: "All the
names remaining in the Jury box were drawn,
and all the available Jurors in the box util-
ized, Induding such of the Jurors as were
upon the venire facias which was quashed
in this case as were eligible Jurors. That
resulted in the drawing of 60 names. The
Judge of the court supposed that probably
at least 30 of the Jurors that had been drawn
under the former venire fadas were in at-
tendance upon the court, and naturally ex-
pected that Uie sheriff, being ordered to sum-
mon forthwith, would summon the same Ju-
rors that were drawn under the former
venire facias, the court understanding that
there was no intimation that those Jurors
were drawn fraudulently or there was any
improper or fraudulent conduct in the draw-
ing of these former Jurors; and, further-
more, that if a Jury free from exception
cannot be gotten out of those in attendance
upon the court under the former venire
fadas, and who are summoned under the pres-
ent venire facias, of course the statute will
be pursued until the proper Jury la ob-
tained. When the court ordered the second
venire fadas affer the first one was quashed,
the Judge of the court and the clerk retired
to the derk's office. The derk produced the
Jury box, unlocked It, placed It on the table,
and with a piece of paper in front of him
prepared to record the names of the eligible
jurora The Judge drew the folded ballots
from the box in the presence of the clerk,
no one else being ep^t^i^^A^j^T^Kd
Va.) LOONET T. OOMMONWKALTH 627
the clerk, read the name of tbe juror, dls-
CDSsed nlth the clerk where he lived, bis
proximity to New Castle, his relationship,
If any, to the prisoner, as well as to Mr.
Oecar Martin, and selected 60 names from
tbe box. which exhausted all of tbe eligible
ballots In the box. The clerk then pre-
pared the venire tacfas In due form. Insert-
ed the names so selected and delivered the
writ to tbe sheriff, by which he was directed
to snnunon SO of that number."
Section 4018 of the Code prescribes the
manner of selecting and summoning a venire
in a case of felony. The ordinary course of
procedure is for the list to contain the names
of 20 persons drawn by the clerk of the
court or his deputy from the names in the
box, as provided for by sections 8142 and
8144. The drawing must- be in the presence
of tbe Judge of the court or, ta his absence,
of one of the commissioners In chancery
designated for the purpose under section
3146, and also a reputable citizen not con-
nected with the accused or the prosecutor
or, in case of homicide, with the deceased,
who shall be called upon for that pui^rase by
the clerk conducting the drawing. If the
attendance of the commissioner cannot be
obtained, the drawing shall be In the pres-
ence of two reputable citizens not connected
as aforesaid and called upon by the clerk.
If there Is drawn from the box the name
of a person who has died, removed from the
county, or Is related to the accused or the
prosecutor or, In case of homicide, to the
deceased, or lives within three miles of the
place where the crime la charged to have
been committed, such name shall not be plac-
ed on the list, but all other names drawn
from the box shall be i^aeed on the list as
they are drawn ; and when 20 names have
been so placed the drawing shall cease. The
section further provides that for good cause
shown the Judge may direct mora than 20
names to be drawn and placed on the list
and more than 16 persons to be summoned.
In sudi case he shall spedfy the number
of names to be drawn and the number of per-
sons to be summoned, and the number drawn
shall not be nMre than 4 In excess of the
number to be summoned. The eondnding
paragraph of tbe section declares that no
irregularities or errors in drawing the name?
or in making out or copying ox signing or
failing to sign the list, or in snounoning
tbe persons named In the list, shall be cause
for summoning a new panel or for setting
aside a verdict, or granting a new trial, un-
less objection thereto was made before the
Jury was sworn, and unless it appears that
the irregularity, error, or failure was inten-
tional, or was such as to probably ca.vMe In-
justice to tbe commonwealth or to the ac>
cused.
The record shows a i^n d^mrtora from
imperative provisions of the statute In sever-
al essential particulars. No good cause, or
indeed any cause, was shown for directing
mora than SO naoua to ba drawn and BiaxeA
In tile list to be summoned. Nevertbeleas,
tbe second list of veniremen contained the
names of 60 persons, and tbe order of the
court and venire facias directed the officer to
summon only 80 from that list Moreover,
the mandatory provision of the law that,
when more than 20 persons are ordered to
be drawn and summoned, the number drawn
shall In no case be more than 4 In excess of
the number to be summoned was wholly dis-
regarded.
The manifest object of tbe foregoing pro-
vision of the statute Is to secure a drawn
list of veniremen and to render it Impossi-
ble to pack the Jury. Sixty veniremen, it la
true, were In form drawn from the Jury box ;
yet the persons summoned on the second
venire were practically the same persons
summoned on the gnashed venire. Substan-
tially tbe same result would have followed If
there had been no drawing, and the court
had merely ordered the sheriff to resnmmon
the original veniremen.
In these circumstances, the iKrsons to be
snmmoned were known in advance, and the
solemnity of drawing the veniremen was an
empty form. It was clearly the intention
of the Judge, by the method adopted, to
secure the names of the 30 veniremen In at-
tendance on the conrt ; yet, had the statute
been complied with, there would have beoi a
list of S6 persons Inst^ of 80 pom whom
to select the Jury.
In what has been said we do not wish to
be understood as In any way refiectlng upon
the integrity of the honorable Judge of the
circuit court It was conceded that he acted
In good faith. He did not think that the
ground for quashing the original venire fa-
cias Involved tbe eligibility of tbe veniremen,
but merely the fltaess of tbe commissioner In
chancery to participate In drawing them;
and his sole purpose In pursuing the method
adopted was to facilitate the trial of the
cas& Still the probity of his motives can-
not Justify the utter disregard of these
imperative and essential provisions, and such
omission to comply with tbe statute consti-
tutes reversible error.
In Hall's Case. 80 Va. &5S. 661, the court,
speaking through Lewis, P., says: "These
provisions of the statute, in respect to im-
paneling Juries, are not directory merely, but
Imperative:. They are rules which are made
essential In proceedings involving life or
liberty, and it is the right of the accused to
demand that they be strictly complied with.
The disregard of them Is to deprive the
accused of that 'due process of law' which is
provided by the Legislature, and which is
required by the fundamental law of the
land."
The importance of the observance by the
courts of these safeguards thrown around
the accused cannot be overstated. As was
well said by Judge Harrison in Hoback's
Case, 104 Va. 871. 879, 880. 52 S. E. 575, 578;
"Jurors as triers of the fact wield far more
sower tban the lodge 0B,gt^,^^»^i9(t(g[e
fS38 78 SOUTHEASTBEN BEPOBTEB (V**'
trial of an accosed person, an(l' the Leglsla-
tnre baa seen fit to aaCecnanl tlie rights of
the C(Hnmonwealth and the accused tgr the
enactment of a mandatory provision for the
C!fVi8tltati<m of this In^Mrtant branch of the
Judical eastern, which the courts are not at
liberty to disregard, even if they deemed It
expedient to do so." Jonea' Gaseg 100 Va.
842, 41 8. B. 801 ; Patrick's Case, 78 & B.
628, in Thldi an opinion has been handed
down dniing the present term.
We mar obe^e that Hardy's Case, 110
Va. 910» 87 8. B. S22, does not aostaln the
action of the trial courf; In the particulars
we have been discussing. In that case the
irregularity complained of was that the sher-
iff summoned the entire list of 40 persons
drawn as veniremen instead of 30, as ordered
by tfae court; an irregularity which could
not have prejudiced the accused.
[7] The fourth assignment of error In-
toItcs the admission by the court, over the
objection of the accused, of the details and
merits of an antecedent controversy between
the prisoner and W. O. Caldwell. There was
no connection between that difficulty and the
subsequent shooting of the deceased. It oc-
curred at a different time and place, and the
deceased was not present or concerned in the
altercation. The evidence was not connect-
ed with the liomlclde and was no part of
the res gests ; it was therefore inadmissible.
Joyce's Case, 78 Va. 287 ; 0*Bo7le'a Case.
100 Va. 78B, 40 S. E. 121.
[I] The firth assignment of error
lengea the authentication of the ordinance of
the town of New Castle upon which warrants
for the arrest of the prisoner were based.
It Is true that the records of the conndl
were kept la a crude and careless manner In
an account book or ledger which had been
used tot other purposes and contained matter
other than the by-laws and ordinances. And,,
moreover, that a sheet of typewritten matter,
conconlng the business of the town, was
injected between the by-laws and ordinances
and the certification and signatures of the
clerk and mayor. But, considering the reo
ord as a whole, we think it contains a snffl-
•dent authentication of the passage of the
-ordinance in gnestion and was properly ad-
mitted in evidence.
The sixth and last assignment of error
which demands onr att^tlon relates to the
ruling of the court in relation to instructions.
[l] While the record shows that the ac-
cused excepted to the refusal of the court to
give a number of instmctlona, and also to
its action In modlQIng other InstmctlonB,
those to whidi onr attention was ntedfically
drawn by the oral argument were 11, 14, 15.
11^ and 20.
The court modified 11 by Interpolating
the words, **being without ftii^t In provoking
tlM af^ay," and 16 by words of like import
Instnictipn 11. as modified, is as follows:
*99tJOtb»t IMM
"The court further butmctS tiie Jury fliat,
although they may believe from the evidoice
that the deceased at the time be waa shot
was attempting to arrest Uie accused, yet If
they further believe from the evidence that
in making such attempt be shot at tbe Ac-
cused, and thereupon, because of said shoot-
ing at the accused by the deceased, the ac-
cused, believing himself tn Imminent danger
of being killed or sustaining great bodily
injury, and bdng without fault In provokii^
the affray, returned tbe fire and killed tbe
deceased, * * * such billing waa not
murder,, notwithstanding the jury may be-
lieve from the evidence that the accused had
previously threatened to kill any one who
might attempt to arrest him."
This Instruction does not undertake to de>
fine the degree of guilt of the accused, if
any, in the circumstances set forth In the in-
struction. But upon substantially tbe same
hypothetical statement of facts the Jory are
told In instruction 18 that the kUling would
be justifiable (more accurately ewoMoble)
homicide. Both the instructions without the
modification would have been erroneous, and
inetmctlon 14 ts amenable to tbe same objec-
tion.
[II] Instructions 16 and 20, which are
practically identical, are not a correct ex-
position of tbe law. Instruction 15 told the
Jury "that, when the commonwealth relies
upon the fact that the homldde was com-
nUtted by the defendant during the resistance
to a lawful arrest, it has the burden of
proving the legality of tlie arrest beyond a
reasonable doubt"
Where an officer armed with, a lawful war-
rant attempts to make an arrest in obedience
to ito mandate, the prima fade presumption,
in tlie absence of evidence to the contrary,
Is that be will discharge bis duty in a lawful
manner; and the burden rests upon the
accused, who undertakes to resist tbe ar-
rest, to show that the officer's ccmduct was
such as to Justify such resistance:
As a new trial must be granted upon other
grounds, it is unnecessary to consider the
court's actlcm In overruling tlie motion ot tb»
accused for a continuance.
For the errors to which attention baa bem
called, the Judgment most be reversed, the
verdict of tbe Jury set aslde^ and tbe case
remanded for a new trial to be bad tbereln.
Beversed.
KBIXH, P« ^MMnt
(115 v«. m}
PATRICK V. COMMONWEALTH.
(Sopreme Court of Appesli-ef '^rgial*. Jne
16, 1913.)
1. Just {| T0*>— IicpArtELiira— Pbeseroi or
Gohhonwuiah's Attobhst.
Code 1901, I 4018, providiog that the
drawin2 of the names from the jary box to be
PATRICK T. COMUONWSAI«TH
pieced OD the juj Ust •hall ba in the preience
of the preiiding judge or, in his absence, of one
of the eommlenoaere In chancery and a repo-
table dtlien not connected with accased or
pToaecntor ott in mm of homicide, with dece-
denL when read In connection with section
8140,' aathorixinK ^e drawing of juries tn civil
cases in the presence of the attorn^ (or the
commonwealth, does not change .the oommon-
tew ml* that no one shall take part in the ae-
lecUon of jurors who does not eUiad indifferent
to the parties, and It is improper (or the eom-
monweiutb's attorney to be present during the
drawing In felony cases.
fEd. Note.— For other cases, see Jury, Cent.
Dig. H 310^830, 340, 360; Dee. Dig. | 70.*]
2. JDBT (1 70*) — iKPAItKUnO — STATDTOBT
Provisionb.
Under Code 1904, i 4018, providing that
names drawn from the jury box shall be placed
on the list, and that, when 20 names have been
drawn and placed on the list, the drawing shall
cease, unless, for good cause shown in a felony
case, the pf«s)dlng judge has directed more than
20 names, the action of the clerk in drawing and
{)Iacing 30 names on the list is unauthorized
n the absence of ao order of the preaiding
Judge.
fEd. Note.— For other eases, see Jury. Cent
Dig. II 310-330. 340. 350; Dec. Dig. | TO.*]
3. JUBT (I 70*) — IllFANBUNQ — StATCTOBT
PB0VISION6.
An order on the court's own motion, which
direete the derk in "dniwlDg the list of Tenlra
facias for the trial at erimuBl caaes** to draw
the names of 80 persons and the sheriff to
summon 28 from the Hat, Is Id violation of
Code 1004. I 4018, authorising the fudge "for
good cause shown m any fdony caa^^ to direct
that more than 20 names he drawn apd placed
on the Hst and more than 16 persons eommon-
ed. and does not justify the clerk In drawing
and placing 80 names on the list
[Bd. Note.— For other eases, see Jury, Cwit.
Dig. H 310-330. 840, 300; Dee. Dig. i 70.*]
4. Jinn' (I 82*)— luPAnxunG— "InwmoiTAi.
iBBBanuBims. • *
Tbo irregnlarity In drawing and placing on
the list of more than 20 names without an or-
der of court duly made is an intentional irregu-
larity within Code 1904, | 4018, authorising the
drawing and placing on the list of only 20
□amee, unless the judge for good cause shown
directs the drawing and placing of more names,
and is not within the euratlTe provision that
no Irregularity in drawing the names or in
making the list shall be cause for summoning
a new panel, or (or setting aside a verdict, or
granting a new trial, unless the irregularity
was Intentional.
[Ed. Note.— For other cases, see Jury, Cent,
gj. 1^ 28^^307-^,^ 331. 882, 848. 809. 867,
5. JuBT (i 110*)— iHPAKluiio— OanonoNB
—TaiE TO Mask.
An objection to the action of the court in
not directing a venire facias to be issued to
complete the panel, when a sufficient number of
jurors was not obtained from the persons sum-
moned and in attendance, not made untU after
verdict, comet too late, and a motion to set
aside the verdict on that ground is properly
overruled.
[Ed. Note.— For other cases, see Jury, Cent-
Dig. H fiOe-OlS, 615-^23; Dea Dig, | 110.*]
6^ GannNAL Law (| 814*) — Iwbtbdotiotts—
AfPUCABIUTT TO GAEB.
An Instruction based on the theory that
there was evidence that accused was at fault
In bringing on the difficulty in which the homi-
cide was committed la erroaeotu^ when In tact
there Is no such evidence.
[Ed. Note.— For other eases, aee Criminal
Law, Cent Dig. If 1821. 1888, 1839, 1800^
186S, 1883. 1890. Ift24, 197»-1986. 1087; Dec
Dig. I 814.*]
7. JtnT (I 70*) — IMPAKEUITO — STATDTOBT
PBOVIBIOnB.
The statute governing the selection of ju-
rors should he complied with, and the fact that
it Is Inconvenient to the court to do so, or
that a compliance will cause a delaj in the
trial, does not justify n departure from the
statute.
[Ed. Note.— For othst eases, see Jury, Gent
Dig. H 810-880. 840^ SOO; Dec IXg^ I TO.*!
a CoNSnrUTIONAL Ia,W (j 70*)— JT7DIC1AI,
FrrNcnoNS— WI8D0M of stattttbs.
The court must execute the legislative wiQ,
as evidenced by plain statutes, without any re<
gard to its own views as to the necessi^ or
wisdom thereof.
[Ed. Note.— For other cases, see Constitu-
tional Law, Gent Dig. || 12»-1^ 187; Dec
Dig. I 70.*1
Brror to Circuit Oonrt. Wise Gonnty.
JoBtana Patrick was conTleted of mnrdn In
the second degree, and he brings error. Re-
rersed and remanded for new trlaL
Bond & Bruce, of Wise, for plalntlfl In
error. Samu^ W. WUliams, Atty. Gen.» for
tba Commonwealth.
BUCHANAN, J. The accased waa indicted
for mnrder in the circuit court for Wise
county. Upon hla trial he waa found guilty
of murder in the second degree and his term
of conflnemeot in the penitentiary fixed at
13 years, and Judgment was entered in ac-
cordance with that finding. To that Judg-
ment this writ of error was awarded.
The action of the court refusing to qoaab
the venire facias la assigned as error.
[1] The first objection made to that writ
Is that the list of names famished bj the
clerk, to the sheriff from which to summon the
jury for the trial of the accused was drawn
In the presence of the commonwealth's attor-
ney of the county. In violation of section
4018 of Pollard's Code.
By that section it Is provided that the
drawing of the names from the Jury box to
be placed upon such list shall be done In the
presence of the judge of the court, or in hla
absence in the presence of one of the coarfs
commissioners in chancery designated by the
Judge of the court for that purpose by an
order entered of record and a reputable dtl^
sen not connected with the accused or the
prosecutor or, in case of homldde, wltii the
deceased ; and, U the presence oif such com-
missioner cannot be obtained, such drawing
shall be In tba presence of two reputable cltl-
sens not connected with the accused, the
prosecutw, or, In caae of homicide, witii the
deceaaed. While section 8146 of the Code av-
thoriies tlie drawing of juries In dvO cases
in the presence of the attorney fbr the com-
monwealth, there Is no authority for tala pres-
•rer etlier eases ■•• same topic sad saetloa MDUBaR la Deo. Dls. a Am. XHg. Key
630
78 SOUTHBASTBRN REPORTER
(Va.
ence when Juries are to be drawn In felcmy
cases. On the contrar;, it la clear trom sec-
tion 4018 ot the Code, when read In connec-
tion with section 3146, that such official was
pnrposdy not Included among those who
should attend the drawing of juries In felony
cases. The reason for such omission Is ap-
parent He Is counsel for the commonwealth,
one of the parties to the proceeding In which
the jtiry Is to sit It has always been the pol-
icy of oar law, as far as human caution
coald reasonably provide, to see that the offi-
cials who select juries, aa well as the Jurors
themselves, should stand impartial and on-
prejudiced. To permit counsel on either side
to take part In drawing a Jury for the trial
of a cause in which they are counsel would
be to disregard that principle of the law,
both common and statutory, which has al-
ways sought to guard the purity of the ad-
mlnlstratloa of Justice from even the suspi-
cion of partiality.
The rule of the common law is that no one
should take part in the selection of Jurors
who does not stand Indifferent between the
parties, and there is nothing In our statutes
which chaoses that rule. See Woods r. Ro-
wan, etc, 6 John. (N. T.) 133 ; Munshower t.
Patton, 10 Serg. & R. (Pa.) 334, 13 Am.
Dec. 878; Peak t. State. 00 N. 3. I<aw, 179,
12 Atl. 701, 705; People t. Teague, 106 N.
0. 676, 11 S. E. 666;' 24 Oyc. 226, 227; 12
Ettc. PL & Pr. 420.
[2, t] Another objection made to the venire
fitdas Is that it directed the sheriff to sam-
mon 26 persons from a list of 80 names, In-
stead ot 16 persons firom a list of 20 names,
as required by section 4018 of the Code.
It was held In Jones* Case, 100 Va. 842, 41
8. E. 951, that a venire facias whldi directs
the Bummpnlng of a different number of ju-
rors from that required by the statute in a
felony case was Invalid process. Since that
decision section 4018 has been ftmended. It
now provides that all names drawn from the
Jury box diall be placed on the list as drawn,
except the names of persons who are dead
or have removed from the county or corpo-
ration or are related to the accused or pros-
ecutor, or, In a . case of homicide, to the de-
ceased, or who are known by the clerk or oth-
er persona attending the drawing. If the case
he In a circuit court of a county, to live with-
in three miles of the place where the crime
is charged to have been committed, and when
20 names have been so drawn and placed ap-
on the list the drawing shall cease, and a
copy of said Ust shall at once be made and
slgne^ by the clerk and the persons attending
the drawing and flied In the clerk's office. It
also provides that the venire facias shall
command the sheriff to, summon 16 persons
from the list of names furnished him by the
clerk, which shall contain the namea of 20
persona for that purpose. That section fux-
tXier provides that "for good cause shown in
uy f donjr ease the jndce of the court, In
term time or vacation, may direct more tliui
twenty names to be drawn and placed in tba
Ust • •
No anch order was entered In this caae,
and the action of the clerk in drawing and
placing 30 names on the list was wholly un-
authorized and in plain violation of the sec-
tion, unless, as claimed by the Attorn^ Gen-
eral, the following . order authorised tbm
clerk's action:
"Virginia:
"At a dicnit court continued and held for
Wise county at the oourtbouse Oiereof on
Mffliday, A^ 24, 1911. Preset the same
Hon. Judge presiding as on last Saturday.
"On motion of the judge of this eonxt, it
Is ordered that the clerk of this court here-
after in drawing the list of Vttdre facias
for the trial of criminal cases draw the
names of 30 persons as required by law and
the sheriff shall summon 26 persons from
said list as'preacribed law.'*
That order was not entered In this or any
other felony case, but was a general order
made npon the court's own motion. It was
entered In April, 1911, nearly a year and a
half before the accused was Indicted and
long before the homidde for which he was
tried had been committed. The order was
not only unauthorized but In violation of the
provisions of section 4018 and furnished no
authority for the clerk's action In this case
to draw and place upon the list more than
20 names. The clerk not only had no au-
thority to draw and place npon the list more
than 20 names, but he was prohibited from
doing so, for that section expressly dedares
that when 20 names have been drawn and
placed upon the Ilat "the drawing shall
cease." Looney'a Case, 78 S. B. 625, this
day decided.
[4] It is clear under ttfe Jones Case, supra,
and the decisions dted In the opinion of the
court In that case, that the motion to quash
the venire facias on this ground ought to
have been sustained, unless the failure to
comply with the provisions of section 4018 In
that respect Is cured by the further provi-
sion contained' In it that "no Irregularity or
error In drawing the names or in making out
or copying or signing or falling to sign the
list or in summoning the i>ersons named on
the list shall be cause for summoning a new
panel or for setting aside a verdict or grant-
ing a new trial, unless objection thereto was
made before the Jury was sworn, and unless
It appears that such Irregularity, error, or
failure was Intentional or is such as to prob-
ably cause Injustice to the commonwealth or
to the accused."
The objection to the venire fadas was
made before the jury was sworn, and there
can be no question that the Irregularity or
error In drawing and placing npcm the Jury
list more names than the statute authorized
or permitted was Intentional. This bejig so.
it ftiUevra that the irregulaxlty^mplaltud of
Digitized by VjOOglC
Va.)
GHEBAFEAKE ft O. BT. 00. t. CHAPMAN
631
1b not within the cnratlTe proTlsioiui of sec
tlon 4018, and that the court ought to have
sustained the motion to qnuh the rentre
facias on that ground.
Whetlier or not the unauthorized presence
of the commonwealth'a attorney at the draw-
ing of the ]ary was probably prejudicial to
the accused need not be decided, as It la not
likely to occur In drawing the next Jnry, and
as the judgment complained of has to be
reTersed upon another ground.
[S] Error Is also assigned to the action of
the court In not directing a venire facias to
be Issued to complete the panel irhea a snf-
flclent number of Jurors was not obtained
from the persona summoned and In attend-
ance on the court, as required by section
4018 of the Code. There being no objection
to this action of the court until after the
jury was sworn, indeed until after verdict
found. It came too late, and the motion to
set aside the verdict on that ground was
properly overruled.
[6] Error Is assigned to the action of the
court In giving instruction No. 4 artced for
by the Commonwealth and in refusing to ^ve
instruction No. 8 offered by the accused, As
offered, and giving It as amended by the
court , The ground of objection to these In-
Btructlon«, as given, la that they were based
upon Uke theory that tiiere waa evidence
tending to show tiiat the defendant was at
fault in bringing on the difficulty in which
the homldde was committed^' when in tact
th^ was no such evidence. If Oils be true,
the fnstmctlona as given vrere emmeons, and
upon the nract trial, if there be no such evi-
dence, instructions based upon that hypothe-
sis oi^ht not to be given.
[7. 1] As there are now In onr hands six
felony cases, either upon the docket or upon
petition for writs of error, In whldi the prin-
cipal errors assigned are based upon alleged
TiolHtions or disregard of oiur statutory pro-
visions in reference to the selection of ju-
rors, It may not be improper for this court
to impress upon the trial judges the great
Importance, If not absolute necessity, of see-
ing that these statutes are strictly complied
with. Our statutory provisions on the sub-
ject are plain and not dlfflcnlt to enforce.
They were enacted, not only for the purpose
of securing fit jurors, but to avoid even the
suspicion of partiality or corruption In their
selection. The fact that it may sometimes
be Inconvenient to the court or cause delay
in the trial of a cause is no sufficient rea-
son why the statutes should not be strictly
and rigidly enforced. The legislative intent
in these matters should absolutely control the
action of tLe judiciary. The courts have no
other duty to perform than to execute the
legislative will, without any regard to their
own views as to the necessity or wisdom of
the enactments. SedgwIdE on Stat Gonstr.
325.
•For eUitr euM •■• sum tople and Mottua NUUBBB b Dm. DI^ * An. Dig. Kay-
The judgment complained of must be re-
versed for failure to comply with the law 1&
drawing the number of names to be placed
on the jnry list, the v^lct set aside, and
the cause remanded for a new trial to be
had not in conflict with the views expressed
in this opinion.
Reversed.
KBITH, P., absent
CUE Tft. SI)
CHESAPEAKE A O. BT. CO. v. CHAPMAN.
(Supreme Court of Appeals of l^rginia. June
1. ApFKAI. and EBBOa (| 107*)— VAXIANOft—
Wbxt and Declaration.
Where plaintiff obtained leave to amend
her declaration by Increasing the ad damnum,
and more specifically describing the land alleg-
ed to have been injnred, bat did not amend the
writ, an alleged variance between the declara-
tion as amended and the writ could oot be re-
viewed on a writ of error, defendant not hav-
ing craved oyer of the writ nor made it a part
of the record.
[Ed. Note.— For other cases, see Appeal and
Error. Dec Dig. | 197.*]
2. Appeal and Kbbob (i 197*)— Weit to Ar.-
lAQi Ebbob — Vabiancb — QuxsnoN NOT
Baissd at Tbjal.
Plaintiff having obtained leave to amend
the ad damnum and description of the property
alleged to have been injured in the dedaration.
but, having failed to amend the writ, defend-
ant did not move for a continuaoce, nor indi-
cate that it would be surprised or prejudiced
in making its defense by the amendment of the
declaration, but pleaded generally thereto, and
went to triaL Held, that defendant waived the
variance if any, and coidd not object thereto
for the first time on a writ of error.
[Ed. Note.— For other eases, see Appeal and
Error, Dec Dig. { 197.*]
5. Abateuent and Bxtital (S 40*)— Tau-
ANCB Between Declabation and writ —
Remedies.
A variance between the amended declara-
tion and the writ, though involving an objec-
tion that the writ waa illegaUy issued and ex-
ecuted, is nevertheless matter of abatement
which can be taken advantage of only by plea
or demurrer, as expressly provided by Code
1004. H 3259, 3260; and, when issne ia join-
ed on the amended declaration, it ia conclu-
sively presumed that the amendment ia harm-
less, and did not prevent defendant from mak-
ing a fall defense to the action.
[Ed. Note.— For other cases, see Abatement
and Revival. Cent Dig. !§ 141-143, 147, 153-
156. 168, 174, 188, 205-211; Dec. Dig. i 40.*1
4. Appeal and Ebbob (5 970*)— Tbial (| 59*)
— Obdeb of PBoor— Discretion.
The order of the examination of witnesses
lies chiefly in the discretion of the trial court
and its exercise will rarely, if ever, be control-
led by an appellate court especially where no
prejudice or injury to the objecting party is
shown. ,
[Ed. Note.— For other caaes. see Appral and
Error, Cent Dig. ||, 3849-3851 ; Dec Dig. {
970;* Trial. Cent. Dig. |i 138-140, 142, 143,
145; Dec Dig. S 59.*] , , — ,
6. Evidence (| 5S6«)— Weight and Sunx-
CIENCT— ArFIBUATIVE AND NBOATIVB TS8TI-
UONT.
An instruction that the positive testimony
at a single credible witness that aaw o
633
78 SOPTHBASTBRN REPORTER
heard a partiealar tUof at a particular, time
oa^ht oraiQarily to outweijch that of a number
of wttoesses equally creoible, who, with the
same opportoQitlea, tevtify that the; did not
a«e or hear It^ bnt the negative statement of
a credible witaeai, who bad the same oppor-
tanit? to see or hear and whose attention be-
canse of partfealar circnmatances Was equally
drawn to the dispated point, becomes positiTe
evidence, and is for the iary to decide between
the two viewB, was proper, and fid not invade
the jQry's province m paMUg on the weight of
the evidence.
[Bd. Note.— For other caeea, see Bvidence,
Cent Dig. il 2432-2436; Dec Dig. ! 586.*]
6. BAILaOADB (f 4S2*)— FiBKB— Etidencb.
In an action for injuries to plaintiff's land
hj lire, evidence heJd to sapport a finding that
the fire that burned over the land was aet out
by defendant railroad company.
[Ed. Note. — For other casee, see RaUroads,
Cent Dig. fiS 1730-1732, 1734-1786; Dec Dig.
7. Appeal aicd Ebbob ({ 1001*)— Tebdiois-
bvidenob— supfovi.
The ^ary may discard the preponderance
of the evidence as unworthy of credence, and
accept that of a single witness on which to
base a verdict, and hence a verdict cannot be
disturbed if the evidence of that witness is snf-
fldent standing alone to sastain it under the
rule that it may not be set aside, unless there
is a palpable Insafficiency of evidence.
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. Il 8929^ 892S-89S4: Dec
Dig. if 1001.*1
EkTor to dreult Oonrt, Orange OonDty.
Action by Josephine M. Chapman against
the Chesapeake & Ohio Railway Company.
Judgment for plaintiff, and defendant brings
error. Affirmed.
Browning & Browning, of Orange, and
Henry Taylor, Jr., of Richmond, for plain-
tiff In error. Qordon ft Gordon, of Louisa,
and T. R. Staatikidford, of Orange, for de-
fendant In error.
CAKDWELL, J. This writ Of error brings
under rerlew a Judgment of the dicult court
of Orange county in an action bron^t by
defendant in error, Mrs. Josephine M. Chap-
man, to leoorer of plaintiff in error, Obesa-
pMfee ft Ohio Railway Company, damages
to growing timber on lier lands, occasioned
lire allied to lUTe been set out from
<me of plaintiff In error*B engines, <q;ierated
in running Its trains along its tra<^s betwem
tiie towns of Gordonsrllle and Orange, Va.
One count in tbe declaration Is grounded
on negUgoice in setting out tlie fli^ and the
other tm tbe statute, which makes a latiway
company liable in damages tor an injury or
loss from fire set out by it
Tbe defendant In error and ber busband,
GoL Chapman, eacb own a tract of land ly-
ing side by side, and both abutting on the
right of way of the plaintiff in error between
Gordonsvllle and Orange, the railway at
that point running a little east of north.
Each of said tracts of land extend from the
railway company's right oC way In an easter-
ly and southeasterly dlreetiott for about a
mllo or a mile and a quarter to and b^ond
a road known as tba Ridge road running
parallel with the railroad through and acron
the lands of tlie defendant in error and CoL
Chapman, the lattu's land lying to Oie south
of the former's.
The theory of defendant in etrot Is that
shortly after the passage of one of plaintiff
in error's trains, running between Orange
and OordonsvUle, between 10 and 11 o'clock
on the morning of Wednesday, the 7th day of
April, 1909, certain fence posts used to in-
close tbe railway company's track throng
the lands of CoL Chapman were aet on fire;
and. If this fire was not communicated from
the burning posts to his adjoining lands, it
was communicated by sparks thrown from
one of plaintiff In error's engines Into the
broom-sedge field of Col. Chapman, and from
thence communicated Itself to the woodlands
of Col. Chapman and from his woodlands to
the woodlands of defendant In error, result-
ing In the damage to her atanding trees of
whiob she comidalns.
On the other hand, plaintiff in error, while
not controverting tbe fact that one of Its
trains set out tbe fire which burned the
broom-sedge field of the "Eaeton tract" be-
longing to CoL Chapman and that It is liable
to him for whatever damage he has sustain-
ed thereby, contends that the fire which
reached the lands of defendant in error and
caused the damage to her growing trees
thereon for which she sues was communicat-
ed to her lands from a forest fire starting
the Sunday night or Monday before In the
woods a short distance northeast of Gordons-
vllle, near tbe point where the De Souroux
road intersects the Ridge road, with the
origin of which forest fire plaintiff in error
had no connection; that this fire continued
to burn on Monday and Tuesday preceding
the Wednesday of the fire in question and
progressed down the Ridge road northerly,
on tbe south side thereof, until it reached
the lands of George Go«>dnun and Hu^
Goodman; and that it then crossed to tbe
north side of the Ridge road and communi-
cated itsdf to tbe lands of George Goodman
and Hugh Goodmant and from Hugh Good-
man to tbe lands of GoL Chapman, and from
the latter'B lan^ to tbe lands <d defendant
In error In tbe forenoon of Wednesday, April
7tli, when the alleged damage to her timber
was done.
Upon tbe plea of the general Issue, "not
guilty," Oie case was tried, and the Jury
after S view of the scene of the flre^ and
hearing Uie evidence adduced before them,
rendered a verdict tbr defendant In error
(plaintiff below), assesdng her damages at
$2,500; but the trial court being of opinion
that tbe quantum of damages found by the
Jury was excessive or not supported by the
evidence, though sufficient to sustain the
verdict for $1,266.60, put defendant In error
•For etlMr eases see sssm teple sad seotloa NUUBBR la Das. Dig. a Am. Dig.
CH£8AFEAKE * O. RT. 00. r. OHA^BCAN
633
to her election wtaetber to release and remit
the damages asseesed by the Jnrj in excess
ot $1,266.60 or to bave the verdict set aside
by the court and a new trial granted; there-
opon defendant In error, under protest, re-
leased and remitted all of the damages as-
seeaed by the Jury In excess of $1,266.50,
whereupon the court overruled plaintiff In
error's motion to set aside the verdict^ and
entered judgment thereon, to which Judfcbent
this writ of error was awarded.
The original declaration filed at rules
b^d in the clerk's office of the circuit court
on the third Monday in April, 1910, claimed
damages to the amount of $1,200, baaed upon
tte burning over of about 182 acres of de-
fendant In error's lauds, thereby consuming
ell the growth on the dleared land and the
dry leaves and combustible matter upon the
woodland, kiUing, Injuring, and greaUy dam-
aging the growing timber npon the woodland;
and after the case had been remanded to
rales for a new writ to be issued upon the
declaration, which was done, and the case
again put on the court's do(&et for trial,
and after subsequent continuances from time
to time oatU the April term of the ooort,
it was called for trial, whereupon, de-
fendant in error, immediately before the jury
waa Impaneled and sworn to try the Issue,
aaked leaTe to emend lier declaration by
inserting at tbe proper place "422 acres,"
Instead of '182 acrei^* appearing In the deo-
larathm, and by Inserting "fStWM dam-
ages'* In lien of 'WOOJOO damageir claimed
in tbe deelaratlMi, which moUon the court,
■over the (AJectbon of plalntur In error, ffrant*
ed; and theceopon tbe case went to trial
npon the lasne joined on the idea of tbe gen-
eral Issne.
The ruling of the court permitting the
amendment of the declaration just stated
is made tbe foundation of idaintlff In errov^
Orat assignment of error here.
[1] As there was no ofCer at tbe time to
amend tbe writ in lllce manner as tbe deo-
laration was amended, plaintiff in error
contends that the amendment of the dPclara-
tlon produced a variance between the writ
and the detdaratlon, and tliat the judgment
of the trial court sbonld be reversed for
this cause.
[2, 3] Whether there Is a varlanoe between
the writ and the declaration caoDot be ]U'
dldally determined from the record, since
no oyer was craved of the writ for the pur-
pose of making it a part of the record. If
the amendment of the declaratlOD produced
the alleged variance, plaintiff In error conld
have cnaved oyer of the writ for the purpose
of making the variance aiNpear, and there-
upon, if the variance appeared, moved to
quash the writ because of the variance be-
tween it and the declaraticm; but this was
not done, and bad It been done doubtless
defoidant In error would have aaked and
been granted leave to amend the writ in
like manner as tbe debtaratlon was amended,
and thus cured the variance. Neither did
plaintiff In error move for a continuance of
the case, nor did It Indicate In any way that
it would be surprised or prejudiced In mak-
ing Its defense by the permitting of the
amendment of the declaration, but Instead
pleaded generally to the declaration as
amended and went to trial. In these circum-
stances theories of surprise and injury in
making its defense advanced for the first time
in this court cannot avail plaintiff in error
as a valid reason for reversing the judgment
of the trial court complained of. It is true
that the objection involved here Is not that
the writ was Illegally Issued and executed,
but the matter is none the less la abatement
only, which was not taken advantage of by
plea or demurrer, but issue Joined on tbe
case made by the amended declaration, and
therefore it Is to be conclusively presumed
that the amendment la harmless and In no
manner prevented or hindered plaintiff fn
error in making full defense to the action.
Tabb V. Gregory, 4 Call (8 Va.) 229.
That the amendment of the declaration
objected to was proper In the circumstances
disclosed by the record needs no citation of
aathorlty. The original .declaration gave
only a general description of the lands of
defendant In error alleged to have been
burned over and stated the number of acres
to be about 192, while the amended declare-
the jury that positive testimony la rather to
locus in QUO burned over by th6 fire alleged
to have been set out by plaintiff In error, an
amendment which the court would doubtless
have required had objection been made by
plaintiff in error that the original declaration
was too general In its description of the
locus In quo.
Sections 3250 and 3260, Code of 1904, do
apply and were Intended to control In Just
such cases as this. They are as follows:
"In other cases, a defendant, on whom
the process summoning him to answer ap-
pears to have been served, shall not take
advantage of any defect In the writ or re-
tum, or in any variance of the writ from the
declaration, unleea the same be pleaded in
abatement And in every such case the
court may permit the writ or declaration to
be amended ao as to correet tbe Tarlance,
-and permit the return to be amended upon
such terms as to It shall seem juat"
"Where the declaration or bill shows on
its face proper matter for the jurisdiction
of tbe court no exception for want of anch
jurisdiction shall be allowed nnlees it be
taken by plea In abatemmt No such plea
or any other plea In abatement shall be re-
celved after the defendant has demurred,
pleaded In bar or answered to tbe declaration
or bill, nor after a decree nisi or conditional
judgment at rules."
[4] The error complained ot, rtferring to
plaintiff tn err<Hr's blU of exceptlona No. 3,
la predicated npon tbep^^^^^bf<^(Sg[e
634
78 SOUTHEASTERN REPOBTEB
court in permitting oTer Its objection wlC^
noases EL P. Taylor and Col. Chapman, for
defoidant In error, to testify as to the con-
formation of the ground where the Are which
caused the Injury she sued for was alleged
to have been set out This evidence ts ob-
jected to mainly on the ground that It was
admitted at the wrong stage of the trial,
and waa therefore "certainly Incompetent"
The question presented goes merely to the
order of Introducing the testimony, and this
court has repeatedly held that the order of
the examination of witnesses lies chiefly In
the discretion of the trial court, and Its
exercise is rarely, if ever, to be controlled
by an appellate court; and Its action in this
regard Is not reviewable where, aa in this
case, no prejudice or injury to the party
objecting is shown. Burke v. Shaver, ^ Va.
345, 23 S. E. 749; Southern Ry. Co. t. Stock-
don, 106 Va. 693, 56 S. a 718; Mclntlra T.
Smyth, 108 Va. 736, 62 S. E. 830.
The third assignment of error is predicated
upon plaintiff In error's exceptions Nos. 3
and 4, relating to the admissibility of. cer-
tain evidence, which assignment la not press-
ed either In the petition for this writ of error
or in the oral argument, and as we think
It is clearly wlthont merit; It will not be
further considered.
[I] The next error asalgned relates to
Instmctlon Na 1 giren for defendant in
error, which Is as follows: "Tba court In-
structs the J1117 that the podUve testimony
of 8 single credible witness that lie saw or
heard a particular thing at a particular
time ought ordinarily to outweigh that of a
number of witnesses equally credible, who,
with the same ofvortimitiea, testify tiuit
they did not see or hear It, but the nogatiTe
statement of a credible witness, who had
the aame opportunity to see or hear and
whose attention, because of parttcnlar cir-
cumstances, was equally drawn to ttie dis-
puted point, becomes posltlre evidence and
it is for the Jury to decide betweou the two
views."
In ttie ocHuplalnt made by fdalntUT in
ror of this Instmction mndi stress Is laid up-
on its first clause and little, if any, impor-
tance is attached to the remaining portion of
it The insistence of counsel for plaintiff in
^or is that the first part of the instruction
invaded the province of the Jury in passing
upon the wdght of the evidence, and that the
latter part of the instruction quall^ing the
language used In the first part of it does not
cure the error complained of.
We do not understand the Instmctlon,
when read as a whole, aa an expression or
Instruction from the court to the Jury as to
which theory of the case they should adopt
or to in any way trench upon the pren^-
tlve of the Jury as the exclusive triors of the
facts. The office of an instruction given by
a trial court to the Jury is to guide them as
to the law awllcaUe to the ease that Oie
evidence teaia to prove, and must be so
framed that it leaves the Jury untrammeled
in passing upon the credibility of the witnesses
testifying in the case and the welgSit to be
given their evidence.
The instruction here in question has not
beSn directly passed upon by this court but
the rule of taw it propounded to the Jury,
with respect to positive and negative testi-
mony^ has been well established In ISils
state and In other Jurisdictions.
The opinion of the court delivered by RIely,
J., in Southern By. Co. v. Bryant 95 Va.
212, 28 8. B. 188, says: "It Is consonant
with reason and human experience that the
positive testimony of a single witness whose
credibility Is nnlmpeached that he saw or
heard a particular thing at a particular time
and place ought ordinarily to outweigh that
of a number of equally credible witnesses,
who. with the same opportunities, testify
that they did not see nor hear it The par-
ticular thing might have taken place, and
yet from inattention they may not have seen,
nor heard it or, though conscious of seeing
or hearing it at the moment of Its occur-
rence, may have afterwards forgotten It
from lapse of time or defecttve memory. In
such case the evidence of the one witness Is
positive, while that of the many is merely
negative. But where a witness who denies
a fact In qnestion has as good opportunity to
see or hear it as he who affirms it and bis
attention, because of special drcnmstances,
was equally drawn to the matter controvert-
ed, tlw general rule that the wftoess irtio
affirms a fact Is to be bdieved rather than
he who denies it does not bold good. The
denial of the <me in sniA case constitutes
positive evidance as well as the affirmance
of the other, and prodiKes a omfllet of tas-
tlmotiy.**
It is true that the eoort there was diaena*
sing the evidence in the case to rea^ the
condwdon which It did, Qiat the trial court
had not erred in overruling the motion to set
aside the Jury's vodlct as contrary to the
law and the evidence; still the rule of law
and the reason therefor with reject to
positive and negative testlmmy waa folly
recognised In language very nearly the same
as is embodied in the Instmction complained
of here.
In Southern By. Oo. v. cyBxyan, 119 Ga.
147, 4B S. B. 1000, the Supreme Court of
Georgia held that it was not error to charge
the Jury that positive testimony is rather to-
be believed than negative, with the qualifica-
tion that "other things are equal, and the
witnesses are of equtfl credibility." Railway
Go. V Bigham, 105 Ga. 498, 30 S. B. 934.
The cases of St Louis, etc.. Co. v. Brock,
09 Kan, 448, 77 Pac. 86, and Pyne v. Dela-
ware, etc., R. R. Co., 212 Pa. 143, 61 AU.
817, are authority for the proposition that
whiere there Is positive evidence given by
those In charge of a train tti^t the whistle
Digitized by VjOOglC
CHESAPEAKE A O. BT. CO. t. CHAPMAIT
635
wai sounded at a crossing, and negatlTe
evidence of those witnesses wltbln bearing
that tbey did not hear it, the conrt ibonld,
on request, call the attention of the Jury to
the fact that the law gives a preference to
posltiTe over negatlTe testlnwny.
In the case of Rhodes t. United States, 75
Fed. 740, 25 a O. A. 186, It was held not to
be error to charge the jury that ft Is for
than to consider how much certain testimony
of a negative character is worth as against
positive testimony, and tliat ordinarily the
evidence of a witness wbo swears positively
that he saw something la more valuable than
tliat «f witnesses who say that they did not
see it So In a number of the decided cases,
among them DeL, I.., et&, K. Go. v. Devore,
U4 Fed. IfiS, B2 a a A. 77. and Indiana I.
& I. B. Co. V. Ototot, 212 la 428^ 72 N. B. 387,
It la beld that an instmcaon that positive
testimony of witnesses that It whtotle was
blown and a bell rang is oitttled to more
weight than testtnumy of other witnesses
that did not bear the one or the other is not
erroneous, provided the instruction contains
the qoallflcatlon that "other things are equal
and the witnesses are of equal credibility,"
The Instruction No. 1 we have before us
sets forth clearly the requisite qualification,
where the Jury are told that the law gives
a preference to poeitlve over negatlTe testi-
mony; it instructs the jury as to the law,
but does not, as is so earnestly argued, ex-
press or Intimate an opinion on the part of
the court with respect to the weight of the
evidence; and we are therefore of opinion
that there Is no error In the giving of the
instruction.
Exceptions were taken to defendant In
error's Instructions Nos. 2, 3, and 4, and a
general objection thereto made In the peti-
tion for this writ of error, but no error Is
pointed out In either of these Instmctlons,
and as we are unable to discover any they
will not be considered further.
[I] The remaining assignment of error re-
lates to the refusal of the trial court to set
aside the verdict of the jury because con-
trary to the law and the evidence, and be-
cause of excessive damages allowed.
As has been observed, the questton of fact
anbmltted to the jury was whether the fire
which reached and burned over defendant
In error's woodland was set out by one of
plaintiff In error's trains on the same day,
April 7. 1809. or bad Its origin In the wooda
a short distance northeast of Gordonaville,
starting on Sunday night or Monday next
preceding April 7th. and spoken of In the
record as the "forest Ore," the theory of de-
fendant In error being that the fire canslng
the damage to her property, of which she
«omplaina, was set out by plalntUf In error's
Iraln running between Orange and Oordous-
vUle between 10 and 11 o'clock on the morn-
ing of Wednesday, April 7tb; while the
theory of tfalntlfl In error is that the 'iftir-
est flre" starting on the Sunday night or
Monday before continued to bum and spread
from Monday till Wednesday, communicating
itself first to the lands of George Ooodman,
second, to the lands of Hn^ Goodman, thence
to the lands of Col. Chapman, and from the
latter's lands to the lands of defendant In
error, in the forenorai of Wednesday, April
7th.
As is usual in snch cases, there la a mass
of testimony appearing In the record, mnctr
of whldi Is Irrelevant, and It la wholly un-
necessary Cor na to attempt to review it In
this opinion. Much streas Is laid by counsel
for lOalntUt In error upon the alleged tact
that the verdict of the jury must rest main-
ly upon the testimony given by defendant In
error's witnesses, Sam Brown and I* I. Bonn
eey, who make xwdtive statements as to the
origin of the flre on GoL Chapman's lands,
and bow It continued to bum until It reach-
ed the lands of defendant In error Wedms-
day evening, April 7th; while a nimd>er of
witnesses for plaintiff In error (though not
similarly situated) ahow that tile statements
ot Sam Brown and Bums^ could not possi-
bly be true. Streas li also laid npon the
fact that Bumsey when testlf)^ In this
case was himself the plaintiff In another suit
against plaintiff In error tor tixe reoovor at
damages caused by the same flre.
The evidence In the case has been care-
fully looked to, baring due regard for tbe
familiar rule governing Its consideration, and
we cannot say that the jury's finding ot the
fftct that the flre which caused the danuige
for which this suit la brought was set ont
as alleged in defendant In error's declaration,
la not supported by snfflclent evidence; nor
would we be warranted In holding that the
damages for which the court entered judg-
ment on the verdict with defoidant In er-
ror's consent are excessive.
[7] The case, as we have seen, was fairly
submitted to tbe jury under tbe InstmctlonB
of tbe court, the evidence throughout was
conflicting, and "In snch case the preponder-
ance of the evidence cannot influence the ac-
tlon of tbe court In considering a motion for
a new trIaL The jury may discard the pre-
ponderance of evidence as unworthy of cre-
dence, and accept tbe evidence of a single
witness upon which to base their verdict, and
upon well-settled principles the verdict can-
not be disturbed if the evidence of that wit-
ness Is sufficient, standing alone, to sustain
It Under repeated decisions of this court,
the verdict of a Jury cannot be set aside un-
less there Is a palpable insufficiency of evi-
dence to sustain It." Morlen v. Norfolk &
A. T. Co.. 102 Va. 622, 46 S. E. 907. and au-
thorities cited.
It follows that the judgment of the cir-
cuit court here complained ot has to be af-
firmed.
Affirmed.
WHITTLE, J„ abaentPigiEized by GoOglc
m
78 SOUTHEASTBBN RBFOBTES
(Ta.
.{IIB Ta. IBT)
'STRA!r[ON*S AI>M>B t. MBW TOBK UFE
INS. CO.
(Suprema Gonxt of Appeals ot TlrglnU. June
12, 1813.)
1. INBITBANCB (f 367*)— NONrOBIXITUafi AND
Loan Pbovisiowb— Consteuctioh— BIffect.
A life policy provided that it conid not be
forfeited after three yean from laaue, and if
any subaeqaent premium waa unpaid the policy
woald be indoraed for pald-np insurance, pay*
. able at the death of the insurer, specified in
the table, less any indebtedness on the policy,
provided demand waa made therefor, vitii sur-
render of the policy, within six months after
default; that ii any subsequent premium was
not paid, and the poHcy was not surrendered
according to the preeedinar provisions, Uie in-
rarance, after payment of any iDd^tedneaa,
would be extended, without request or demand,
for the amount of its face during the time pro-
vided for extended insurance, and if the in-
lured was living at the end of the term the pol-
icy should cease. Insured proatred a loan on
hfi policy, agreeing that if the note was not
paid when due the policy should automatically
cease to be a claim, and the company should
retain all cash received as part compensation
for the rights granted, except as might be pro-
vided by file nonforfeitnre benefits, etc. At
the time of Insured's default In payment of the
note, he made no request tor paid-up insur-
ance vrithin the time specified, and after pay-
ing hie indebtedness to the Insurer there still
remained of the reserve apportionable to the
policy a sufficient amount to purchase extend-
ed Insnfance for a term beyond the time of in-
sured's death. Beld, that the loan provision
should be construed iu connection with the pro-
visions of the policy, and that the Insurer was
not entitled to require payment of the Indebt-
edness from other funds tk order to prevent a
forfWture. but that the reserve should be ap-
plied to the payment of the loan and the pur-
chase of extended Insurance; and hence the
policy was in force at tiie time of insured's
death.
[Ed. Note. — For other cases, see Inaurasce,
Cent Dig. H 085. 938; Dee. Dig. { 3S7.*]
2. IltSUBAKTCB (I 146*)— JBVmmTUBX FbOTZ>
BION8— CONSTBUCnON.
A life policy containing ttonforfdtnre pro-
visions, b^g the work of the insurer, win be
constraed moat strictly agaittat the Insurer and
in favor of the insured, m order to prevent a
_ forfeiture.
[Ed. Note.— For other caees, see Insurance,
Cent. Dig. n 292, 294-298; Dec. Dig. » 146.*i
to Gorporatloik Court of Olty of
Lynchburg.
Action by Alexander B. Stratton's admin-
Istiator against the New Tork life Insnr-
anc« Company. Judgment for plaintiff for
less than the relief demanded, and be brings
error. Reversed, and Judgment rendered for
plaintiff for the full amount soed tor.
Ttaos. J. WllUams and Wilson * Manson,
all of Lynchburg, for plaintiff In error. Kirk-
patrick ft Howard, ot I^nachbarg, tm dofcndr
ant in 'error.
GABDWBLL, J. This la an action npon
notice under the statute, brought by the ad-
ministrator of Alexander B. Btratton, Jr., de-
ceased, against tbe New York life Insurance
Company to zeooru of tbe latter tlw amount
of an insurance policy alleged to have beeo
held by tbe plalntUTa Intestate and In force
at the time of bis death.
It appears that the defendant company
issued to plaintlCTB Intestate <m April 26,
1898, a policy of Insurance for tAe aum <tf
12,000, which policy contained what is called
"a policy loan agreement"; that on October
80, 1906, tbe insured obtained from tbe com-
pany a loan of (100 upon bis policy as collat-
eral, executing tberefbr also a "policy loan
agreement," which loan bad not been repaid
in cash at the date of the insured's death,
caused by drowning, on tbe 13tb of Novem-
ber, 1007; that when the premium on the
policy for tbe year beginning April 26, 1907,
became due, the Insured made a contract
with the insurance company in regard there-
to, wtalcb is evidenced a writing, signed
by the insured, called a "blue note" (on ac-
count of tbe color of tbe paper on which
written), wMcb note was for tbe sum of
$28, with Interest, payable on or before Au-
gust 26, 1907, and set forth that tbe note
was accepted by the insurance company, to-
gether with $10.20 in cash, on the following
express agreement : "That although no part
of tbe premium due on the 26tb day of April,
1907, under policy No. 802036 Issued by said
company on tbe life of A. B. Stratton, Jr.,
has been paid, tbe Insurance thereunder shall
be continued In force nntil midnight of tbe
due date of said note; that If this note Is
paid on or iMfore tbe date it becomes due,
such payment, together with said cash, wlU
then be accepted by said company as pay-
ment of said premium and all rights under
said policy shall thereupon be the same as
if said premium had been paid when due;
that If this note is not paid on or before tbe
date it becomes due, it shall thereupon an-
tomatlcaUy cease to be a claim against tbe
maker, and said company shall retain said
cash as part compensation for the rights and
prlTll^es hereby granted, and all rtgbta un-
der said policy shall be the same as If said
cash had not been paid nor this agreement
made; that said company has duly given
every notice required by its rules or thd
laws of any state in respect to said premium,
and In further compensation for tbe rights
and privileges hereby granted the maker
hereof has agreed to waive, and does hereby
waive, every other notice in respect to said
premium or this note, it being well nnder-
Etood by said maker tb&t said company would
not have accepted this agreement if any no-
tice of any kind were required as a condition
to the fuU enforcement of all Its terms."
When said note matured on August 26,
1907, the Insured, Stratton, executed another
"blue note" for $18, payable on or before
October 26, 1907, reciting that the note waa
accepted by tbe company at tbe request of
the maker, together with $20.20 In cash, on
a certain express agreement, which is practi-
cally tbe same as contained in the "blue
Dig. KHfiflled
•Tor oUier oases same tl^le taA moOoa HUMBBB la Deo. Dl» A Am.
STRATTON^ AOM'B r^SXW TOBE UVE 1KB. 00.
«37
note" gmted from Above, ythm 0ie last-
mentioned note became due on October 26,
1907. It was not paid, and a new note was
sent to the Insured for execution by blm,
bat It was never executed or returned to tbe
company, and upon the lapse of the policy by
reason of tbe insured's failure to settle this
note the company wrote, on the 2&th of Octo-
ber, 1007, to the insured, requesting him to
revive his policy, and to that end inclosed a
note for $12, with the request that he exe-
cute and return the same along with $6.15 in
cash, to be received by the company In settle-
ment of the premium on his policy for the
year beginning April 26, 1907, which note
was not executed by the 'Insured, nor was
the in cash paid.
This, It appears, was the idtuation exists
Ing between the Insured and the insurer up
to November IS, 1907, on which date tlie
Insured died, and proofs of his death were
duly furnished the company, as required by
the terms of the policy. It Is admitted, how-
ever, by the company that at the date of the
lapse of the policy on October 26, 1907, after
deducting tbe loan of ^00 npon it, as afore-
said, and any other Indebtedness upon the
policy from the reserve due the insured
thereon, there was a balance of $42.22 to the
credit of the Insured then In the hands of
the company, which, according to its appli-
cation, would either have purchased for tbe
insured IIOS of paid-up Insurance, or would
have served to secure for the insured an
ttctension of the policy, at Its face value of
92,000, for a period of one year and three
months f rom Aprii 2S, 1907. Whether or not
It was competent, under the drcumstauces,
for the company to apply the said balance
to the purchase of paid-up Insurance, or said
balance should have been applied Id, the pur-
chase of extended insurance, are questions
unsettled by the agreed statements of facts
appearing In the record.
The Insurance company, before any action
was commenced on said poHcy, tendered to
the Insured's personal represeutatlve $105 in
settlement of Its llablllly under the policy, :
which was not accepted, and thereupon this
action was brought
When the cause was called for trial, a Jury
was waived by both parties, and all questions
of law and fact were submitted to' the court
for decision upon the Issue joined; where-
upon the court, upon two statements of facta
agreed to by the parties, entered Its Judg-
ment for the plaintiff in the mm at $105, In-
stead of the sum of $2,000, the face value of
the policy claimed by the plaintiff, to which
Judgment the plaintiff applied for and ob-
tained this writ of error.
The principal question presented is: To
which of the two ways should the balance of
$42.22, admittedly to the credit of tbe In-
sured at the date of the lapse of his policy
on October 26, 1907, after deducting the $100
Joan upon the policy, have been applied— to
the purchase of pald-iv lasqnnoab w to the
purchase tor the Insured of an extension, of
his policy at Its full face value of $2,000 for
a period of one year and three months from
the 25th of April, 1907? A decision of ibis
question necessarily must turn upon the con-
struction and Interpretation of the contract
between the Insurer and the insured as evi-
denced by the policy and the "loan agree-
ment"
The provlstons of the policy whidb relate
to the question are set out under the head-
ing of "Benefits and Provisions," and are as
follows:
"2.— Nonforfeiture.
"This PoUey Cannot be Forfeited after It
shall have been In Force Three Full Teats
as Hereinafter Provided.
"First — ^If any subsequent premium is not
duly paid, this poUcy will be indorsed for
the amount of paid-up Insurance payable at
the death of the Insured, specified In the
table on the preceding pag^ less the value of
any Indebtedness on this policy, iwovlded de-
mand is made therefor with surrender of
this policy within six months after such non-
payment; or,
"Second. — ^If any subsequent premium Is
not duly paid, and It this policy Is not sur-
rendered as provided in the preceding clanse^
tbe Insurance under this policy will, aftw
the repayment of any tndeUiedneas, be es>
tended withont request or demand therefor,
for the amount of two thousand dollars, dur-
ing the term provided In the table on the
preceding pag^ payable only If the Insured
dies within said term. At the end of said
term, If the Insured is thai living, this policy
shall cease and determine.
"Third.— The insarance provided for In
tbe two preceding dauses shall be based
upon edmpleted insurance years only, and
shall be subject to the conditions of this poll'
cy, but without txaOiBt payment of pzemit-
ums and wUhoot loana or partic^tini bi
surplus."
We need not advert to the "table" referred
to In the foregoing provisions, set out In full
on the second page of the policy, under the
beading of "Special Advantages, Table of
Loans and of Surrender Values In Paid-up
Insurance, or Extended Insurance, etc.," fur-
ther than to say that the terms prov^ed
therein do not n^Utate against the view for
whl(^ plaintiff In error contends, that un-
der the provisions ot the policy, upon de-
fault In the payment of any premium, the In-
surance was aatomatlcally extended, without
any action whatever on the part of the In-
sured, provided there was to his credit on
the reserve fund an amount sufflcl^t to pay
the company any Indebtedness due It from
the Insured, and to purchase for hUn ex-
tended insurance for at least one year frofn
the due date of the premium on the policy
as to the payment of which default was.
mad«, to wit^ » April g^tim/MmPile
688
Inmireil made demand for paid-up Insurance,
which demand was not in this case made.
Under the "Nonforfeiture" provisions of
the poUcT. when It lapsed on October. 1907,
for nonpayment of the premium for the year
beginning April 26, 1907, and no demand had
been made for paid-up Insurance, as Is con-
ceded, did the policy become forfeited, and,
if not, was not the insured entitled to the
benefit of extended insurance In accordance
with the terms of the second clause thereof?
[1] That the policy was not forfeited, but
was ^tended as In full force for a period of
one year and three months from April 20,
1907, during which period insured died, and
the Insurer became liable to the personal
r^resentatlve of the deceased for the amount
of the face value of the policy. Is also con-
ceded, unless the right to this extended In-
surance was lost to the Insured by the non-
payment in cash of the $100 loan he had ob-
tained from the insurer, notwithstanding he
had to bis credit with the insurer a fund
BUfllclent to repay the said loan and to pur-
chase an extended Insurance under his poli-
cy for a period extending beyond his death.
As it seems to us, there was no Indebted-
ness due from the Insured to the insurer
when the policy lapsed on October 26, 1907,
but, on the contrary, the company was, after
deducting the indebtedness of the insured
to it, due the insured a balance of $42.22, an
amount sufficient to purchase an extended
insurance for a period beyond his death, and
he had not applied for paid-up Insurance for
the amount of this balance, and that by the
very terms of the contract between the par-
ties the Insured had the right to rely, as
doubtless he did, upon the provision con-
tained In clause second of his policy that he
should be entitled to have the balance to bis
credit with the insurer applied to the pnr>
chase of extended Insurance, unless be de-
manded paid-up insurance and surrendered
bis policy.
i'he position taken by the Insurance com-
luny (defendant In error here) is that plain-
tiff In error's Intestate owed it $100 of bor-
rowed money, and while it owed the insured
$142.22, instead of striking a balance and
giving to the Insured $42.22 worth of ex-
tended Insurance, It had the right to and did
dmand that the $100 loan be first repaid to
it, not out of the $142.22 to the credit of the
insured, but from other sources, before it
was called upon to give to the insured $42.22
worth of extended Insurance. In other
words, defendant In error denies that the in-
sured had the right to set off against his
loan of $100 the $142.22 to bis credit with de-
fendant in error, and contends that because
the $100 loan Iiad not been paid from other
sources no part of the $142.22 to the credit
of the insured, though applicable to the re-
payment of the loan, should have been ap-
plied to the purchase of extended Insurance
under the policy.
Thia contentioB is not borne out by the
(Va.
language of the contract between the parties.
Under the heading "Oeneral Regulations" In
the contract la this clause: "Any indebted-
ness to the company, including any balance of
the current year's premium remaining un-
paid, will be deducted In any settlemoit of
thla policy or of any benefit thereunder."
The defendant in error might have had the
right to declare the policy In question forfeit-
ed by the nonpayment of the premium there-
on for the year beginning April 26, 1907; but
this It did not do^ but Instead treated the
policy as In force, and sought to have the
unpaid premium paid until after the death ot
the Insured, and for weeks after it occurred,
certainly up to the time It beard of the In-
sured's death. It la oat prd%nded tbrnt the
policy waa fbrfeited by reason of the non-
paymeat of a premlom matared thereon, bat
becanse of the nonpa^nent of borrowed mon-
ey tinder the "loan agreement," whieb la^ in
effect, to claim that ilie ^irase "after the
reE«yraent of any Indebtedness," contained In
the policy, tiwolntely forfdted the rl^t to
extended Inanranoe Immediately npon the in-
sured's contracting a debt with his Insarer;
and tills, too, regardless of bow small the
debt or bow large a sum there might be to
the credit of the insured, by way of resorve
upon hlfl policy, In excess of the contracted
debt Had there been no debt for a loan
contracted pursuant to the provisl<His of the
policy In this Instance, It would hardly be
claimed tliat defendant in error would iiave
bad the right to declare the policy for-
feited, as it did on December 24, 1907, over
a month after the death of the Insured, when
it had In its hands on October 26, 1907,
money enough to purchase for the Insured
extended Insurance for a period extending
beyond his death, so that the forfeiture ot
the policy, as remarked, la not based upon
the failure to pay a premium due thereon,
but upon the nonpayment, from other sources
than the res^e fund to the credit of the in-
sured, of a debt for mon^ borrowed.
Forfeitures are not fovored In law, and
when they are mere penalties for the nonpay-
m&it of borrowed' money they ue not al-
lowed.
In N. y. Life Ins. Oo. Gonry, 115 Ky.
100, 72 8. W. 736, 61 L. IL A. 268, 103 Am.
St Rep. 297, it Is said: '*Tbe courts hava
uniformly h^ In favor of the Insurer that
agreements for the forfeiture of the poli<7,
when premiums were not paid when due, are
valid, and their enforcement Is upheld. This
la said to be becanse 'on the prompt payment
of the premiums depends the mutually of the
contract and the ability of the inanrance
company to meet its obligations.' But both
the reason and the rule are restricted to the
matter of premiums alone. Forfeitures are
disfavored in law. When they are mere pen-
alties for the nonpayment of borrowed mon-
ey, they are no^ ^^^^ b^*JflP^^"*
78 801TTHB1ASTEBN BEPOBTHIB
STBATTON'S ADM*R T. NEW YORK LIFE INS. 00.
^9
UieiDselves are, uuconsdonable oppresalonfl
of the unfortunate."
Ab said by this court la Knlghta of Colum-
bus T. Burroagbs, 107 Ta. 688, 60 S. B. 46»
17 Ll B. A. (N. S.) 246, "courts are aatnte
* * * to discover modes of escape from
declaring a forfeiture."
The case of N. T. L. Ina. Co. r. Curry,
supra. Is also authority for the proposition
that when an insurance company loans money
to one of its policy holders It Is in no differ-
ent position from any other lender of money;
and in lending Its mtmey it is subject to the
same geuwal rules and principles governing
banks, trust ccmipanies, and other such cor-
porations engaged in lending money. This
general mle la that a borrower, say from a
bank, when hia loan falls due, bas the right
to oBaet against the loan any amount to bis
credit with Qie bank, a privily wbldt works
equally In favor of the bank, and it is diffi-
cult to perceive a reason why an insurance
company lending money to its poIi(7 holders
should not be subject to the same rule, espe-
cially so in the absence of a different rule
stipulated for and clearly expressed in the
contract between the parties. The "table"
made a part of the policy here in question
was not, 1^ appears to us, put there to re-
strict the rights of the Insured, but to give
expresdon to the agreement that at the end
of three yean from the date of the policy
there was a certain reserve value to the cred-
it of the bolder of the policy, which reserve
increased each year that the policy continued
in force, and that upon the lapse of the
irallcy for the nonpayment of a premium ma-
turing thereon, the Insured, under the head-
ing "Special Advantages," showing what this
reserve value would purchase at the end of
any year, had the right, by refraining from
demanding paid-up Insurance therefor and
surrendering hla policy, to rely upon the pro-
vision made for blm In his contract that this
reserve fund, after deducting therefrom "any
Indebtedness to the company. Including any
balance of the current year's premium re-
maining unpaid," would be applied to the
purchase for him of extended insurance.
"The 'table' could not prescribe the amount
of continued or paid-up insurance in case of
Indebtedness of any kind, because the extent
of the continued or i>ald-up insurance would
be dependent npon the amount (tf the Indebt-
edness to be first deducted before the con-
tinued or pald-np iusuance was coihpnted.
The 'table* Is Inserted ip. the policy to show
the rights of or benefits to the insured in
continued or paid-up Insurance In case of de-
fault at qtedfied times In paying the premi-
iim to become due on the. policy. • • *
"The time that the insurance would be ex-
tended, or the amount of the paid-up insur-
ance, was definitely fixed and determined in
the policy In all cases where it 'was possible
to so fix and determine the time or Qie
amount in advance. In all cases of indebted-
ness the continued or paid-up insurance was
dependoit upon the amount of Indebtedness.
The fact of an Indebtedness to the defendant
did not forfeit the right to continued or i>aid-
up insurance, but simply left the time of the
extension or the amount of the paid-up insur-
ance dependent upon a computation to be
made when the amount of the lndel)tedneBB
was determined."
Taylor v. N. T. life Ins. Co, 197 N. Y.
324, 90 N. E. 064.
We are unable to appreciate the force of
the argument on behalf of the defendant in
error that the "loan agreement" changed
the contractual relations between the insur-
ed and Insurer. This agreement does provide
that if default should be made in the pay*
ment of any premium on the policy, or any
interest on the loan on the date when du^
the defendant In error, without demand or
notice of any kind, might deduct the amount
due .on the loan from the reserve on the
policy computed as stipulated for in the
agreement, and the balance of the reserve
fund 80 computed would be taken as a aingle
premium of lif6 insurance at the published
rates of the company, and shall he applied to
the purchase of pald-np or extended insurance
upon the life of the insured under said
policy, at the age of said Insured on said
due date^ payable under the same conditions
as the original policy, without prendnm re-
tom, participation in profits, or further pay-
ment of praniums; but the purpose of this
"loan agreement" was doubtless intended as
providing a method of collecting and aecnr-
ing to defendant in error, the insurer, tibe
loan of $100, which method was by fore-
closure of the policy, and upon foreclosure
the only privilege remaining in the insured
was the right to paid-up insurance for an
amount to be computed by the insurer after
the Indebtedness had been deducted from the
reserve value of the poUcy. We cannot con-
strue this "loan agreemrait" as a waiver on
the part of the insured, dther expressly or
impliedly, of any of his "nonforfdtnre" priv-
ileges under the policy, but these privil^es,
as It seems to us, nmalned intact to the in-
sured, subject, however, to the lii^t of the
Insurer to cancti and forecloee the policy
whenever it diose so to do aCtw default in
the payment of any premium past due and
owing on the policy, or in the payment of In-
terest due on the loan made thereon; but,
again, it is to be observed that defendant In
error did not avail itself of this right, and
did not attempt a foreclosure of the policy
until after it liad incurred a loss thereon by
reason of the death of the Insured weeks
before any acUon towards a foreclosure of
the policy was taken, and after it had treat*
ed the policy as in fall force, and bad en-
deavored to collect the "blue note" taken for
unpaid premiums, or to get from the insured
renewals of this nota The foredosnre of the
policy was neither automatically ^ected on
October 26, 1907. upon the fallure/ltf theJiifi .
Digitized by VjOOQ Kc
H SOUTHEASTBRN RB^RTER (Ta.
64<r
stired to pa7 the *^1u6 note** dne 6n that
date, nor was It effected on that date, or,
after, and before tlie death of the l&sured,
by any affirmatlTe action on the part of the
defendant in error. To effect a foreclosure
of the policy, some afflrmatlTe act was re-
quired on the part of the defendant In error.
Brady t. Pmdentlal Ins. Co. of Amer., 0
Misc. Rep. e, 29 N. T. Supp. 44 ; 8 Cooley's
Briefs on Ins. 2261, 2278; O'Brien v. Pm-
dentlal las. Co. of Amer., 12 Misc. Rep. 127,
83 N. Y. Snpp. 67.
As we have seen, defendant In error took
no action towards effecting a foreclosure ot
tibe policy here In question until weeks after
the death of the Insured. On the contrary,
Instead of availing Itself of Its right to fore-
close immediately on default In the payment
of the "blue note" falling due on October 28,
1907, defendant in error delayed the fore-
closure of the policy until December 24, 1907,
and in the meantime conducted a correspond-
ence addressed to the Insured, endeavoring
to have him reinstate his policy, all of Its
letters admitting that the "nonforfeiture"
benefits of the policy were In force pending
foreclosure by the company, and one of these
letters, dated October 29, 1907, Inclosed to
the insured, to be signed by him, a "blue
note** for the amount of the balance of un-
paid premiums, upon the face of which note
appears the following: "This note Is deposit-
ed with the New York Life Insurance Com-
pany pending the consideration by said com-
pany at its home office of an application for
the restoration of policy No. 8^036 on the
life of Alex'r B. Stratton, Jr., which policy
by the nonpayment of premium due April
26, 1907, is not now In force, eacept a$ may
be provided by the nonforfeiture benefUa oon-
tained therein." (Italics ours.)
We again advert to the provision of the
policy that provides that. In order to entitle
the Insured to paid-up Insurance, he must
have made demand therefi>r, and there is no
pretense that such demand was ever made;
and, farther, that the "nonforfeitnre" pro-
visions of Qie policy stipalated that in these
drcnmstances the only benefit remaining to
Uie insured waa the right to extended In-
ga ranee.
The ease of Eagle r. N. Y. Life Ins. Co., 48
tnd. App. 284, 91 N. IL 814, relied on as aa-
Uiorl^ In ttils ease, does not sustain the po-
sition taken hy defendant In error. In that
case the insnranoe comiuny foreclosed the
loan made on the policy, and the question
decided was whether the provision In. the
loan agreement providing for foreclosure
without notice was Illegal; and the court
merely held that audi provision was legal,
and that the foreclosure in that case had
been properly made. No snch qoestion Is
involved in the case at bar.
[2] It is said In ttao opinion of tbla court
by Burks, J., In Oeoi^ Home Ins. Co. t.
Elnnler's Adm'r. 28 Grat. (68 Va.) 105, and
afterwards dted In later cases : "The maxim
that 'the words of an instrument shall be
taken most strongly against the party em-
ploying them' is peculiarly appropriate in
the construction of a policy of Insurance, and
especially of such conditions as we are now
considering. The instrument is wholly the
work of the underwriter, and is usually fill-
ed with a multitude and variety of stipula-
tions seldom read by the assured when he
accepts the policy, and. If read, rarely, if
ever, understood. Abounding In forfeitures
and In provisions, generally harsh and diffi-
cult of performance, It should be strictly con-
strued against the Insurer and liberally in
favor of the Insured. A modem writer on
insurance thus states the rule: 'No rule, in
the Interpretation of a policy, Is more fully
established, or more controlling and Imper-
ative, than that which declares that In all
cases it must be liberally construed In favor
of the insured, so as not to defeat without
a plain necessity his claim to indemnity,
which, in making the insurance, it was his
object to secare.* May on Insurance, 182."
In the l^ht of this universally recognized
rule of constmctlon, and In view of the
agreed facts made a part of the record In
this case, until the poU^ in question was
foreclosed, the ownership of It and the as-
sured's rights under It were not affected;
one of these rights being that of having bis
indebtedness to the insurer paid out of
title amount to his credit from the teaexn
fund stipulated for in the policy, and the
balance of this reserve applied to the purchase
of extended insurance, and that, too, without
any request or demand on ills part Tboe
being enough money to the credit of the in-
sured witii the company to pay It tlift loan
he bad obtained on hla policy and to efrntin-
ue the policy as otended insurance for one
year and three months from tlie time of de-
fault in the payment ot the iffendnm wUdi
matured April 26, 1907, during which period,
and before the defendant in error attempted
to exertise its ngtit to foredoee the policy,
the inanred died, the Mnomoit of d^eadant
In error to pay $2,000 to the deoeaaed's per-
sonal repraaentatlTe became abeolate and
flnaL
For tbe fOxegoinB nason^ we are of oi^
ion that the judgment of tbe trial coart Is er^
HHieona^ and It wlU tber^ore be reversed and
amanlTed, and this court will enter here judg-
ment for ^,000 in favor of plaintiff in error
against defendant In error for the face vaioe
ot tbe policy ened on, wltii Interest thereon
from the 13th daj ot November, 1808; tlU
paid, and oosts.
Reversed.
KBIT% ■hmt
Digitized by Google
BAFFERTT v. HEATH
(105 T». 1«)
BA7FBBTT at aL T. HEATH «t aL
(Siwramt Oonrt of Appeal* o£ Tirslnla. Jane
12. 1918.)
1. BXOHAMOB 01 PbOFKBTT CI S*)— BXCHAZTQI
or Bku. PaoPEBTT—BKScissioN— Fraud.
Where one exchanging an apartment house
fw a faiin falsely represented to the owner
•f tbit faim the Taloe of the apartment house,
the cost thereof, and the annual rentals, the
owner of the farm, relj'iog on the representa-
tions in making the exchange, was entitled to
a TMciuion on the ground of fraud.
[Ed. Note.— For other cases, see Bzcbange of
Property* Gtnt Dig. H 8, 7; Deo. Dig. 1 8.*]
S. QaKCSLunoK or IiinBDiiaiin (| 28*) —
EqClTABLB Rkukt— TBEica.
A party suing to rescind a contract can
<A)tain relief only on equitable terms, and,
where equity finds that a condition exists which
renders it impossible to restore the parties
substantially to their original position and tliat
to rescind will result In Injustice, a reedsrion
will be denied.
[Ed. Note.— For odter cases, see Cancellation
of Xuammanti, Gnit. Dig. | 82; Dec Dig. {
28.*]
8. Bzcsanoi w Pmesbxt ^ 6*) — Bxaou-
BiOH— Bquxtabu Bkliet— tnavi?.
'Where an owner of a farm, induced by
fraud to exchange it for other property, ac-
oonsted for the income recelred from the other
property, and promptly sought a rescission
on the ground of the fraod, the mere fact that
the adverse party, guilty of the fraud, had
placed a mortgage on the farm, did not defeat
a rescission.
_^)d. Note.— Few otber cases, see Bzefaaage of
Pro^rty, Cent Dig. f 1 S, A, 8-10; Dec. Dig.
Appeal from Circuit Court, Ifathewa
County.
Suit by one Heath and others against ODe
Bafferty and others. From a decree for
complainants, defendants appeaL Afflnned.
John S. Barbour, of Fairfax, Sleman ft
Lerch, of Washli^on, D. 0., and J. Boyd
Sears, of Mathews, for appellants. Sale,
Mann ft Tyler, of Norfolk, and Henley, 6ar-
Dett ft Hall, of WIlUamsbuitE, for appellees.
KEITH, P. Heath was the owner of a
term in Matbeira county containing about
200 acres, with Improvements upon it, lying
upon the waters of North river, together
with about 2,000 bushels of oysters planted
in that river adjacent to the farm, all of
which be .valued at the sum of $60,000. He
entered Into negotiations, through the South-
ern Pann Agency, of Lynchburg, with
Charles B. Bafferty for the exchange of his
farm fOr property In the dty of Washington,
known as the Versailles Apartment House,
which resulted In a contract dated September
18, 1910, by whldL Heath agreed to sell
Bafferty his farm In Mathews county, with
all the crops, tools, implements, furniture,
and otber personal (woper^ thereon for the
sum of tM.000, and to take tn payment the
Versailles Apartment propwty In Washtac-
ton on the basis of $200,000, subject to flist
and second liens amounting to |184,500;
Bafferty agreeing to take the- difference
$5,500 in preferred stock in the Versailles
Apartment Corporation, and to pay cash
$1,000 additional for preferred stock at par.
In addition to the first and second liens
aggregating $134,500, there was a third lien
upon the Washkigton propert^t, amounting
to about $13,000^ which Baflerlj undertook
to satisfy.
On the 22d of September, 1810, Heath and
his wife made a deed conveying to Baf-
ferty the property set out in the agreement
of September 18tJi. It seems to have been
contemplated by the parties that Bafferty
was to have made a deed ot even date to
Heath for the Versailles Apartment Hoqs%
but there was some delay for reasons not
necessary to mention, and the transaction
was not consummated until some time in
December.
By deed dated the 29th of November, lOlC^
and recorded on December 8th of. that year,
Bafferty and wife conveyed to the Ver-
sailles Corporation the Versailles Apart-
ment House, subject to Incumbrances of
$184,600.
The negotiations between Heath and Baf-
ferty finally culminated as follows: Heath
couT^ed all of his Viiglnla property to Baf-
ferty by an absolute deed, and Bafferty con*
veyed the Versafllea .^urtmoit House' to. the
Versailles Corporation, which was authorized
to Issue $60,000 worth of preferred stock
and $100,000 worth of comm<m stock, Baf-
ferty agreeing to take $6,500 of preferred
stock and to bny $1,000 worth of that stodc
for cash at par; and it was this stock, pre-
ferred and common, that constituted the
consideration received by Heath for his
Mathews farm and personal property.
The deed from Heath to Bafferty Is dated
September 22, 1010. On the 28th of Novem-
ber, 1010, Bafferty conveyed the same prop-
erty to a trustee to secure a loan of $16,000
made to him by the Gloucester-Mathews
Bsnk. With this loan he satisfied the thlM
lien resting upon the Versailles Apartment
House, which In his negotiations with Heath
he had undertaken to pay, and also paid the
$1,000 In cash for the shares of preferred
stock which he had agreed to poretuue from
Heath at Its face value.
At the conclusion of the transaction, there-
fore, the title to all of Heath's Virginia prop-
erty was In Bafferty, subject to the Incum-
brance which he had placed upon It to secure
the Gloucester-Mathews Bank; the title to
the Versailles Apartment House, subject
to two liens amounting to $134,500, was In
the Versailles Corporation; and all of the
stock of that corporation except preferrM
stock to the amount of $6^600^ whidi was
held by Bafferty, and a few shares of com-
mon stock held by different parties^ was lield
by the appellee Charles Heath.
Heath went into possession of the apart-
•for fttbsr cans see same toplo sad ssetlon NUMBBS in Dw. Dig. A Am. Dig. Key
78 8.B^-4I
642
78 SOnTHBASTEBN BEFORTEB
meftt hotuw, but wery soon became dlssatts-
fled with his bargain, and on the 6th of Feb-
rnary 1911, he filed hla bill aettliig oat In
detail the fhcts that we have atoeady stated,
and cbarglns that be had been Induced to
part wtfli his propertr as a resalt of a care-
fuUj concocted sdheme to defniad him, and
in reliance npcm r^>reaentatlons made to
him by RafTerty which bad proved to be
wholly fiilae; that Baffer^ had assnred him
Uiat his WashlBRton dty property had cost
him ¥210,000 and was produdiv an annoal
net revenue of |10,000; and that in addition
to these rerbal assurances he had exhibited
a statemoat, wltl<A Is filed as an exhibit
with the biU, from whldi It appears that
the apartments wwe ytoldlng a net reraine
of more than |10,000.
[1] We do not deem It necessary to go Into
a history of the organlcatlcm and conduct of
the Yosailles Corporation, fnrtbOT than to
say that Its only asset was the VersalUefi
Apartment House, upon which there were
three liens, amoimting in the aggregate in
round numbers to $148,000. The evidence
proves beyond doubt, we think, that these
representations were made, and that in re-
liance upon them Heath was Induced to en-
ter into the contract which he now seeks to
have rescinded, and that these representa-
tions were false and known to be false when
they were made. The evidence shows that
the value of the properly was far less than
Rafferty represented It to be— bnt let that
pass as a matter of opinion only. It appears
that It cost far less than he represented It to
have cost, and upon the evidence It is doubt-
ful If It could be sold for enough to satisfy
the Ileus upon It; but the most material
misrepresentation which be made was as to
the rents whldk were actually belns rec^ved
upon it Upon consideration of the whole
evidence we cannot resist the comdnslon that
the whole transactlcm was the outcome of a
carefnlly contrived plot to deceive and to de-
fraud the appellee.
It seems to be superfluous to cite authori-
ty upon such a case, and we shall content
ourselves with only a few.
In Wilson, Trustee, v. Carpenter, 91 Va.
183, 21 S. B. 243, 50 Am. St. Bep. 824, It is
said: "The false representation of a mate-
rial fact, constituting an Inducement to a
contract fOr the purchase of real estate, on
which the purchaser had a right to rely, Is
always ground for a rescission of the con-
tract by a court of equity. The Intent of the
party making the representation, and his be-
lief in Its truth, are alike wholly ImmaterlaL
It is sufficient that ttie statement Is material,
was relied on by the purchase, and was In
fact untrufc"
In FitzgerftUI t. rnmlcel* 109 Va. 608, M
8. B. 041, a case whldi has a great many
points In common with that under consldera-
tion, this court said: "If the purchaser of
property has not equal means of Information
with the seller, and he has the right to rely
upon repreeentaOons made by the atHlac with
reference to the property, evidence to show
that he did not rdy upon such z^presei^-
tlona must be of the clearest and most satla-
faetory charactw. In such cases there oui^t
to be no room for inference or mere Implica-
tion." Bee^ also, GerrlgUo t. Fettlt. 118 Ta.
683, 7S 8. E. 803.
The appellee seema greatly to ndy i^on
the inability of the conrt to place the parties
In the same portion which they occupied be-
fore the agreonent was entered Into whidi tt
is sought to rescind.
[2] As the plaintUf comes Into a eoort of
equity asking r^ef, he can only obtain it;
of course, upon eqidtable terms. If, there-
fore, In a particular case a court of equity
finds that a condition exists whldi renders
it Impossible to restore the parties substan-
tially to their original position, and that to
rescind the contract would result in an In-
justice, the rescission vrlll be refused.
[S] But we are of opinion that no such
condition exists In this case. The appellee
acted with the greatest promptness. The ex-
change of the property was not finally con-
cluded until some time In December, 1010;
It was promptly repudiated and a demand for
rescission made almost Immediately; and the
bill In this case was filed on the 0th of Feb-
ruary, 1911. The legal title to the apart-
ment house was never In Heatb, the appellee.
As has been said, he took it subject to two
liens by mortgage or deed of trust, and tbe
legal title was therefore outstanding in the
trustees or mortgagees. The equity was con-
veyed by BafTerty's deed of December 8.
1910^ to the VersaiUes Corporation, and all
that Heath ever received were the shares of
stock, preferred and oommon, In the yeraallles
Corporation, and the rents of the apart-
ment house fOr a short period, all of which
he accounted for. The only material altera-
tion in the condition of the parties was the
result of the act of the appellant who placed
a mortgage upon the Mathews property to se-
cure the Gloucester-Mathews Bank. That in-
cumbrance is a legal and binding lien wfalcdi
must be paid and the proceeds of which pass-
ed to and were enjoyed by Baffer^. It-
would be a strange result Indeed if be could
defeat the rescission of a contract procured
by his fraudulent misrepresentation upon the
plea that he had reoelTed and was in the tfOr
Joyment of fmits of his fraudulent praetloes
which he ms unable or unwilUi« to restore.
The decree annealed from as tax as possi-
ble in every partlcnlar prosorvee the rii^ts
of eivezy party to tha coatmrwv, and Is
Oiarefore affirmed.
Affirmed.
Digitized by Google
JORDAN T. WAUCEB
643
(116 T«. 101)
JOBDAN «t d. T. WALKEB.
(Sai^miu OoaR of Appeals of Yirgtnla' 3uam
12, i9ia)
1. Appeai. and Bbkob a 927*)— Brmnr— Di-
inTRBKB TO EtIDKNCB.
On a demurrer to the eridence, where it
i« such that a jury might have found for the
demnrree, it !■ tlw duly of the Ooart of Ai^
peala to ao find.
[Ed. Note. — For other casei, see Appeal and
Error. Cent Dig. if 2012, 2917, 8748, 8768,
4024; Dec Dig; | 927.*3
2. Fbaud 0 22*)— Dkcnr— Ddtt to Innnx-
OATB.
Where a defendant, who was a director «t
a corporation and had knowledge of ita In-
solvent condition, represented to plaintiff, who
was also a director, to induce him to purchase
defendant's stock and that of another, that the
corporation was not onl; solvent, but bad a
surplus of $3,000 In excess of its liabilities and
capital stock, and immediately afterwards it
was found that the corporation could not be
continued, and on a safe of its assets in re*
ceivership proceedings the assets were only suf-
ficient to pay creditors SO per cent, of their
claims, it was no answer to defendant's lia-
bility for fraud that plaintiff should not bare
relied on sncb lepresentations, bat should have
Investicated .the oozporatlon's eondUicni for him-
self.
[Ed. Note.— For other caaea, see Fraud, Gent
Dig. H 19-28; De& Dig. | 22.*]
3. FBAtTD a 20*}— Dicxn^SnXAlfOS— Rte-
KDT.
Where a party represents as true what be
knows to be false in such a way as to induce a
reasonable man to believe It, and the represen-
tatiou is meant to be acted on, and he to whom
the representation Is made beueres and acts on
it and in consequence ■uetalmi damage, there li
BUch a fraud as will support an action for
deceit at law or a bill for rescission of the
transaction In equity, whether the representa-
tion is made innocently or knowingly; the
fraud in the one case being constmctiTe and in
the other actnaL
tBd. Note.— For other cases, see Fimnd, Cent
t. H 17, 18; Dec Dig. t 20.*]
4. Fbaud (i 22*)— Faub RB»BaXNTAnOIfS—
DuTT TO Inquire.
One to whom a representation has been
made is entitled to rely on it as against the
maker without further Inquiry.
_rBd. Note.— For other cases, see Frand, Cent
Dig. U iSSS; Dec r>ST^^*i
& FBAtTD (I 64*)— DBCBIT— BBLIAIfOE ON RBP*
BBSBNTATI0N»--QUB8TIDN FOB JlTRT.
In an action for fraud, whether plaintiff
relied on defendant's representations, or wtieth-
er he acted in whole or in part on his own
knowledge, is for the Jury.
[Ed. Note.— For other cases, see Fraud, Cent
Dig. H 66%, 67-71; Dec Dig. | 64.*]
Error to Circuit Court, Oreensrllle Comity.
Action by L. O. Walker against B. W. Jor-
dan and otbera. Judgment Cor plaintiff, and
defendants bring oror. Affirmed.
S. y. Southall, of Emporia, and K. B. Da-
vis, of Petersburg, for plalntlffB in error.
Buford, Lewis & Peterson, of LawrenceviUe,
and E. O. Palmer, of Emporia, for defendant
tn error.
CABDWELIi, J. Tba material taida out
of wbidi this litigation arlsea are aa follows :
Tlie TOlar-Bmltb Hardware Company, Iscor*
porated under tbe laws of Tli^lnla, was
organised on January 1, 1906, with a capital
stock of fl2,500, divided Into aharea of HOD
each, bavtog its principal office at Emporia.
Oreoisvllle count7. Va., of wbldi etotik W. T.
Tlllar held $3,000, J. H. Smltb $3,000, Rupert
Ivey $500, L. O. Walker $3,000, B. W. Jordan
$2,000, and a D. Tlllar $l,00a AU of tbe
stodLboIders at that time resided in tbe town
of Emporia, and at the organization of tbe
company L. O. Walker l>ecame one of its
directors and Its vice president, bat owing
to other business engagements he was unable
to give fata personal attention to the affairs
of the company, and soon afterwards remov-
ed from Emporia and engaged In business
elsewhere, and before the year 1909 he had
ceased to be a director or to hold any official
connection with said company. W. T. Tlllar
was president of the company from its or-
ganization, and J. H. Smith its business man-
ager, who together with R. W. Jordan and
L. G. Walker were Its directors, while B. D.
QMllar was a clerk in the store kept by the
company, both Jordan and B. D. Tlllar being
connected with tbe company "tbe entire time
it was running," and both were familiar with
Its affairs and knew its financial status. The
business of the company, it seems, was pros-
perous during the years 1906 and 1907, and a
dividend of about 10 per cent on Its stock
was declared In January, 1907, and again in
January, 1908; but, during the year 1908,
the company purchased and operated for a
while a manufacturing plant which resulted
iu financial losses, whereby the capital stock
of the company was somewhat impaired.
Early In 1909 L. Q, Walker became dissatis-
fied with tbe management of the affairs of
the company : First, because J. H. Smltb, its
manager, had overdrawn his account to tbe
amount of $1368; and, second, because the
company had engaged In tbe manufacturing
business, which he regarded as being beyond
the scope of the business for which tbe Com-
pany had been chartered. And thereupon
he (Walker), accompanied by his counsel,
went to Emporia to Inquire Into these two
matters, and in ascertaining the status of
Smith's account Walker's counsel had to be
assisted by the bookkeeper of the company.
This investigation, it appears, resulted in a
determination on the part of Walker to in-
stitute legal proceedings to require Smith to
settle his account, and perhaps to remove
him from the position of manager, and to
prevent the company from engaging further
in the "mill" business, which determination
on the part of Walker was communicated to
Jordan in an Interview about March 18, 1909.
On tbe day following this Int^riew, Jordan
wrote to Walker, who was then at Danville,
Va., endeavoring to dissuade bim from In-
stituting tbe threatened legal proceedings.
•rarotlMsaBMBBesBmtepleaBdsseUaBlfUIIBBBtaDse.Dls.AAa.Ols. XvHij^giKM%B«0':
644 78 SOtJTHBASTERN BBPORTEB (Ta.
and sqggesttiig the plan of troylng np enongb
of tbe stock of the company to give control
of ttie management of Its affajrs, and ex-
pressing a wUllngness to sell his stock and
to aid In acquiring other shares of the stock.
Then followed a lengthy correspondence be-
tween these parties, In which It appeared
that Jordan and B. D. Tlllar were, in fact,
endeavoring to effect a sale of their stock,
hot Walker throughout stated ttiat he did
not wish to buy, and that he would only go
so far as to unite with Jordan to get new
parties Interested In the business and to
acquire a controlling Interest In the stock,
80 that they might manage the business more
satlafoctorily ; Walker believing then, as he
bad every reason to believe, from what had
passed between him and Jordan, and to con-
tinue to believe from their subsequent deal-
ings, that he and Jordan were co-operating
in good faith to accomplish the same par-
pose. And it seems not to have occurred to
Walker that such was not the case until
after he had become the purchaser of the
holdings of Jordan, B. D. Tlllar, and Rupert
Zvey In the company.
As a result of these negotiations, Walker,
on July 31, 1909, went to Emporia with the
view of Interesting a Mr. Harper In the busi-
ness, and to have him (a capable man) un-
dertake the management of the company's af-
fairs, and there and then Jordan, assisted by
B. D. Tlllar, went over the books and fur-
nished Walker with a statement showing
what the company owed. Its assets, etc., by
which it was made to appear that the busi-
ness could pay all of its debts, pay the stock-
holders what they had put In, and still have
a surplus left of about $3,000. Harper, how-
ever, did not become Interested In the busi-
ness, and later, and after further interview
with Jordan, Walker, relying upon the truth
of the statement as to the condition of the
company's affairs made up by Jordan and
B. D. Tillar, decided to take ovpr to himself
the stock of Jordan, B. D. Tlllar, and Ivey,
and accordingly, on August 3, 1909, he made
settlement with these parties for their stock
and placed fala (Walker's) brother temporari-
ly in charge of the business. Having pur-
chased this stock under the circumstances
narrated, Walker left Ehnporla, and In the
course of a few days received from his broth-
er, who had been temporarily put in charge
of the business, a letter stating that the af-
fairs of the company w^e in a desperate
condition. He also received a letter from W.
T. Tlllar of similar Import, and acting upon
this information he returned to Etoporla and
sought an interview with Jordan, the result
of which was that Jordan did not deny the
truth as asserted hy Walker, but refused to
take back hia stock, fu Walker claimed he
had agreed to do, giving ,as hla only reason
tof refusing to do so that he had hypothecat-
ed the note given by Walker' in part paymcait
for his (Jordan's) stock to a third party.
, XUft.actUik «u bmDtht Walkw «&
the 8d day of January, 1910, against B. W,
Jordan and B. D. Tlllar to recover damages
for false representations made by them aa
to the financial condition of the said com-
pany, by means of which representations the
plaintiff alleged that he was induced to pur-
chase 85 shares of the capital stock of the
company for the aggregate sum of $2,650.
There were two trials of the case — the
first at the April term of the circuit court,
1910, resulting In a verdict for the plalntU^
which verdict was, <hi October 3, 1911, set
aside by the court and a new trial ordered.
On the second trial, at the conclusion of the
evidence the defendants demurred thereto,
in which demurrer the plaintiff Joined, and
in the conditional verdict rendered by the
Jury they assessed the plaintiff's damages
"at the sum of $2,^, with Interest on V1.1S(^
part thereof, from the ith day of November,
1900, and on $1,500, the residue thereof from
the Sd day of February, 1910, until paid,
subject to a credit of $1,600 as of the 3d
day of February, 1010, the amount of the
note executed by the plaintiff to the defend-
ant R. W. Jordan for the stock purchased of
him.'* The court overruled the demurrer
and rendered Judgment for the plaintiff in
accordance with the verdict of the Jury, to
which Judgment the defendant obtained this
writ of error.
In addition to tboae already stated, a
material fact alleged, and which the evidence
tended to prove, was the taiae representation
made by plaintiffs In error, and which oper-
ated as a principal inducemeot to defendant
In error to buy the stock In question, that
the entire liabilities of the company did
not exceed $12,000, when In fact they were
almost or quite double that amount Bely>
ing, as he alleges, upon the truth of this and
the other fttlse r^resentatlons made by
plaintiffs in error, defendant In error pur-
chased of Jordan 20 ^res of his stot^ and
6 shares owned by Ivey, on which Jordan had
procured an option for the purpose of ena-
bling him to make a more advantageous sale
of Us own stock; and of B. D. Tlllar 10
shares. He executed to Jordan a note for
$l,SpQ in port payment for his sto<^ and de>
llvered to him a certified check ft>r $400 for
Ivey's stock; and paid Tlllar in cash $500
and executed his note for $250, which TUlar
discounted at bank and defendant in error
paid to the bank at maturity. The acsr^ta
of the prices so paid constitutes the amount
of damages awarded by the verdict of the
Jury and the Judgment of the trial court in
favor of defendant in error, which verdict
and Judgment, In effect, and wm« doubtless
so intended, restore tbe parties to the lltlga*
tlon to tl\e position they would bare occuttfed
bad not tbe sale of the stock In question to
defendant in error been consununated.
The questions arising upon the issue prfr
seated in the record are: (1) Was tbere a
ta.ise r^reseitfaUon of a mateiial fact maA
b7 plaintlfli In ostpiz^e tj^io^Edgiein
VM JORDAN T. WALKBB
«rror7 (Z) Did tlw plalntUb In error know
Uw r^teaentadon wu tB)ae, or was it moda
Igr them ao recUeaaly as to amount to frandf
^ Did the r^resentatlon operate aa an In-
dnceinent to defendant In error to purchase
the stock? Was the defendant tn error
JnttUed under tte drcamatanoea In relying
upon the reipresentatlon? 09 Did Hie de-
fendant In error, notwltbatanfflng the repre-
sentattim, undertake an indqtendent ezaml*
nation of hla own to aecertaln the UaUUdes
ot the companyT (Q) Did defendant In er*
IDT suffer damage as a result of the repre-
sentation?
The case thus presoited was peculiarly one
for the determination ot the Jury, since the
ecmdnslais to be drawn fmn the evldoice
were not so certain and Incontrorertible
that fair-minded men might not have differed
with reepect thereto.
^me ptalntlffli in error were dearly diown
the evidence to haTe been In a position to
faiow tlie truth or falsity of the r^resttita-
tlona made by tliem to defendant In error as
an induoement to him to buy th^ stock,
while defendant In error was not Phdntlff
in error Jordan was a director continuously
from the organization of the company until
August 4, 1909, the date of the sale of Us
stode to defendant in wror; he had been
dected Ttce president In the place of de-
fendant In error, and hdd that postUon dur-
ing the year 1909 until be sold bis stock;
was an expert bookkeeper and acted for a
time as treaanrer of the company; knew as
early as the summer or &11 of 1008 that the
company was flnandally anbamtssed and
Oat on April 1, 1909, the bookkeeper for the
company resigned her position because her
salary of $M per nKmth coold not be paid.
EUb coplalntltt in error, B. D. Tlllar, was
connected with the company "the entire time
It was running," in the capacities of sales-
Buui. one of the directors and manager, and
In these circumstances the two, pretending
their co-operation with the defendant In er-
ror to bring about a better condition of the
affaire of the company so that Its business
might be more satisfactorily conducted, made
up on the night of July SI, 1909, a false
statement of the liabilities and explaining
the apparent solvency of the company, and
also falsely declaring that the company had
then recently paid off a considerable portion
of its Indebtedness, which statement was fur-
nished to defendant In error by Jordan and
B. D. Tlllar; they well knowing that he
wonld act upon it as well as upon other rep-
resenlatioDs made to him as to the condition
of the company's business, for the manifest
reason that he (defendant in error) had been
away from Emporia for a long while, and
bad every reason to believe that Jordan, at
least, was co-operating with blm, in good
faith, In the efforts to put the company upon
a better footing, and that Its affairs conld
be thereafter successfully conducted.
[t] .We do not consider It nnesssary to x*^
64S
Tfow tlie evidence In the case further Oun
has been don^ since the testteiony of Uw
principal actors in the transaction of whicb
defendant in error complains is conflicting
on all essential points, and there Is evidence
amply snfllclent to have Justified a vodlct by
the JiU7 In favor of defendant in error upon
every question of fact presented, and it is
'har^ necessary to dte anthorl^ for the
proposition that. If the Jury could hare so
found, this court, upon ttie demurrer to tiie
evidence, must so find.
The rule is dearly stated in OL Ai O. By.
Co. V. Corbln, 110 Va. 700, 67 S. B. 179, where
it is hdd: "Upon a demurrer to the evidence,
where the evidence is such that the Jury
might have found for the demurresb it is the
duty of Qie court to enter Judgment in liis
favor."
[2] Plaintiffs In error's own evidence does
not, by any meana, refute- the charge that
they represented to defendant In error, not
only the solvency of the company, but that It
had a surplus of $3,000 In excess of Its lia-
bilities and capital stock, when In fact it was
then hopelessly insolvent, and that In the
recdverahlp proceedings which ensued short-
ly afterwards the assets were found sufficient
to pay the creditors only about 30 per cent
of their debts, and therefore the stock was
utterly worthless; but they insist that,
though this was all true, defendant In error
Is not entitled to recover in this action as
be did, or ought to have Investigated for
himself to find that the representations tliat
had been made to him as to the flna"«^qi con-
dition of the company were false.
"Where It Is established that there has
been any fraudulent representation by which
a person has been Induced to enter Into a
contract, it is no answer to his claim tP be
relieved from it to tdl him that be ml^t
have known the truth by pnm^er Inquiry. He
lias a rlfl^t to retort upon his objectmr, 'Ton.
at least, who have stated wh^t Is nntrne^ or
have concealed the truth for the purpose of
drawing me Into a otrntnc^ cannot accnss
me of want of caution because I relied Im-
plicitly upon your falraesa and lionesty.**'
West End I* Co. v. Claiborne, 87 VA. 734, S4
a B. 900.
[3] If one represents as true what he
knows to be false. In snch a way as to In-
duce a reasonable man to believe It, and the
representation is meant to be acted on, and
he to whom the representation is made, t>e-
llevlng it to be true, acta on it and In con-
sequence thereof sustains damage, there Is
snch fraud as will support an action for
deceit at law, or a bill for rescission of the
transaction in equity. Whether the represen-
tation is made Innocently or knowingly, If
acted on, the effect Is the same. In the one
case, the fraud Is constructive ; In the other,
it is actual.
[4] "One to whom
been made Is entitled '
648
78 SODTBBASTBRN BBP0BTE9B
maker, and need make no farther Inqntry.'*
GerrlgUo Fettlt. 118 Ya. S38, 76 S. B. 808.
See^ also, Bafferty t. Heatb, 78 & B. 611,
Jnst decided by this court; Strand v. Grif-
fith, 07 Fed. 88i 88 a a A. 444; 20 Qrc
pp. 60, 62.
[I] The authorities are onlform In holding
that whether a plaintiff In such a case relied
upon the defendant's represratatlon, or wheth-
er he acted In whole or in part npon his own
knowledge, Is a qnegtlon for the Jni7>
An effort is made by the learned oonnsel
for plaintiflb in error In this case to extri-
cate B. D. Tlllar from the legal consequences
of tbeir deceit in Inducing defendant in error
to purchase their sto(^ but we are wholly
tmable to appreciate the force of the argu-
ment in support of this contention. It may
be that plaintiff in error Jordan was the
more experienced and shrewder of the two
engaged in the transaction which resulted In
procuring the d^endant in error as a pur-
cbaser of their stock; still they (brothers-
in-law) were participants in and the bene-
flciaries of the wrongs of which the defend-
ant In error complains, which wronis could
not have been made effectual without the co-
operation therein of Tlllar with Jordan.
From their own testimony they represented
to the defendant In error the liabilities of the
company as being only about half the actual
amount, when they knew well at the time of
the existence of other Indebtedness which
they did not mention. It also very clearly
appears from the evidence that the state-
ment of the witness W. T. Tillar, Introdnced
by plaintiffs in error, in his letter of August
7, 1909, to defendant in error, was an ac-
curate statement of the facts: "I feel like
you have been misled and misinformed as to
the true condition of this business. Some
of the parties who sold you their stock of-
fered to sell to me recently and eridently
were glad to unload their stock <hi you."
The Judgment of the dicoit court is ri^t
and is therefore affirmed.
Afflrmed,
OIB Va. M)
JAGOT T. OBOSSHANN SEED * SUPPLY
CO., Inc.
(SoiKeme Coort of Appeals of Yir^nia. June
12, 1913.)
L Afpux and EmoB ({ 1058*)— BIabiclbss
Bbbob — EsBonnous Aniassion of Bvi-
DINCB.
Where the court charged that a contract
of sale of seed by sample contained ona an
implied warranty that the goods were of the
quality set out In the contract and sold by
sample, and that the jury must not consider
any evidence of the failare of the seed to ger-
minate, the error, if any, in permitting wit-
nesses to testify as to representations as to the
seed, made prior to and not contained in the
contract, was not prejudicial.
[Ed. Note.— For otiier cases, see Appeal and
Error. Cent. Dig. H 4178-4184: Dec. Dig. 1
1053;* Trial, Cent Dig. 1 977.^
2. SaLKS (I 267*)— CONTEACTS— WABBAniXES.
A salesman of a seller of seed exhibited
to a buyer a samide package containing the
words: "Standard sample * • • crimsoa
Calm Clover seed." ^le buyer ordered 1810
crop Crimson Clover seed. The seller accepted
the order, and forwarded an invoice reciting
that the seller did not guarantee any of the
seeds sold, and, if not accepted on tlut condi-
tion, the buyer most return them at once.
The buyer accepted the goods. Held, that the
only warranties made by the seller were that
.the seed were of the 1910 crop and of the
qi^li^ of the sample.
[Ed. Note.— For other cases, see Sales, Cent.
Dig. H 760, 761 ; Dec DigTl 267.*]
S. Sai^ (S 288*)— Iuplud Wabbantt— Ao-
CEFTANCB OF GOODB— DAMAGES FOB BSEACH
OF WaERANTT.
A buyer In a contract of sale by sample
with tilie warranty that the goods shall corres-
pond with the sample, who accepts the goods
after opportunity for inspection, is not thereby
prevented from recovering damages for breach
of the warranty, though the retention and nse
of the goods without any complaint warmnts
a strong inference that they comply with the
contract.
[Ed. Note.— For other cases, see Sales, Cent
Dig. H 817-823; Dec Dig. | 288.*]
4. Sales d 442*) — Implied Wabbantt —
BuAOH or Wabbautt- Measubb of Dam-
AQBS.
The measnre of damages for breach of war-
ranty of goods sold is the difference in the
value of the goods at the time and place of
delivery If they had conformed to the contract
and the value at sneb time and place of the
goods actually delivered, subject to a dedaction
for the unpaid price.
[Ed. Note.— For other cases, see Sales. Coit
Dig. Sf 1284-1301; Dec Dig. S 442.*I
e. Sales (S 181*)— Cohtbact— Bbeach.
Evidence heUi to support a finding that a
seller of 1910 crop of seed by samite breached
his contract by foilure to deliver seed of the
crop of that year, and seed conforming to the
sample.
tEd. Note.— For other cases, see Sales, Gent
S. H 473-491; Dec Dig. i 181.*]
Error to Hustings Court of City d PetsBS*
burg.
Action by William Jacot, trading as JacoC
ft Mullen, against the Orossmann Seed ft
Supply Company. Incorporated. Judgment
for defendants and plaintiff brings error.
Affirmed.
The following are the Instructions given
by the court
"a) ^Is is an action by the plaintiff,
Jacot ft Mnllen, to recover of the defendant,
the Orossmann Seed ft Sui^ly Company, Inc,
the sum of tl JOO, with Interest from Septem-
ber 11, 1911, due by n^tiable note; It be-
ing claimed that said note was given for the
balance of the purchase price on account of
120 sacks of crimson dover seed sold the de-
fendant by the plaintiff in September, 1910.
The defendant seeks to defeat said recovery
upon the ground that said seed were sold
as of the crop of 1910 and by sample, and It
avers that said seed were not of the crop
of 1910, or of the quality of the sample by
which the sale was made; but, on the con-
trary, were of an older crop, of an Inferior
•Ver at&sr sssss sss same tepls saA ssotta MUHBBa 1b Deo. ZHg. ft Aa. Dig. Ki^lgftj
Va.)
JAOOT T. GBOBSMANM SEED ft SUPPL.T 00.
647
qaaUt7, and sterile and utterly worthless, by
reason of which the defendant has sustained
great loss and damage to tb6 amount of
93,066.42, and prays that the same be set off
and allowed agalnat the sum of money al-
leged to be doe and payable to the plaintiff.
"tf) The court further Instmcts the jury
that If they believe from the evidence that
the defendant signed the written bid or offer
to buy Introduced In evidence, and that the
plaintiff by telegram of S^tember 16th, and
by letter of September 17, 1910, accepted
said bid or offer, and a sample of the seed
sold was, at the time of said bid, exhibited
to the defendant by plaiatiff*B agent, as rep-
resenting the kind and quality of seed offer-
ed, then said written bid, telegram, letter,
and sample constitute the contract of sale
between the plaintiff and the defendant, and
no representation or recommendation made
the defendant at the time by plaintiff's agent,
can var;, take from, or add to Its force or ef-
fect
"(8) The court further instructs the Jury
that the contract between the plaintiff and
defendant contains no wuranty of the qual-
ity and germinating properties of the seed
sold, except an Implied warranty that they
were of the kind and qnaUty set out in the
contract and as i^wn by the sample; and
tliat thegr most not consider any evidence or
statement of any witness as to the fiUlure of
said seed to sprout or germinate, except as
evidence tending to show what was the qual-
ity or condition of tbe seed when d^vered as
compared with the quality of the seed sold
with reference to the sample 1^ which the
sale was made.
The court further Instrvcts the Jury
that the letters of the plaintiff to the de-
fendant of January 18, 19, and 28, 1911, do
not constitute any warranty, and must not
be considered In that Ught; bnt can only be
considered by the Jury as evidence tending to
show what was the qnalHy ot ttie goods the
Iilalntlff imderstood had been sold as shown
by the sample.
**(S) Tbi court farther Instmcts the Jury,
where a qtedflc article, sndi as crimson
clover seed, of the grade *calm,* and of the
crop of 1910, Is sold and bought, there la no
warranty, express or implied, that they are
snitable for the purpose for which they are
purchased, althoi^h the sellw may have
known the purpose to whtdi the buyer intend-
ed to apply them ; and. In the absence of an
express warranty, the seller will not be held
liable, however defective th« seed may tarn
out to be
"<6) The court farther Instructs the Jury
that, if seed are sold by description and by
sample, no warranty of quality or fitness for
a particular purpose Is implied, except that
when they are described as of a particular
grade, and of a particular crop, a warranty
that they are of such grade and crop is im-
plied ; and, where there la a sale by sample
there Is an implied warranty that the bulk
of the seed la equal to the sample in kind and
quality. A sale by description and sample
carries with It an Implied warranty that the
seller shall deliver seed of the kind and
quality of such description and sample.
"(7) The court further Instructs the Jury
that If they believe from the evidence that
the seed sold the defendant in September,
1910, were, at the time they were weighed,
set aside and marked in the Lackawanna
Warehouse Company's storehouse in Jersey
City, N. J., of the crop of 1910, and of the
same grade and quality as the sample ex-
hibited by plaintiff's agent to the defendant,
then the Jury should find for the plalnUfr
and against the defendant
"(8) The court further Instructs the Jury
If they believe from the evidence that the
seed so weighed, set aside, and marked were
not of the crop of 1910, but were older seed,
and of an inferior grade and quality to the
sample, then the Jury should find for the de-
fendant and against the plaintiff.
"(9) The court further instructs the Jury
that. If they find for the plaintiff, the amount
of their recovery should be the sum of $1,-
700 with Interest from September 11, 1911.
If the Jury find for the defendant, the meas-
ure of its damages is the difference In the
value of the seed at the time of delivery in
February, 1911, at Petersburg, If they had
been of tlie kind and quality of the descrip-
tion and sample by which they were sold,
and the value at such time and place of the
seed actually delivered, but such amount
cannot exceed ¥3,066.42, the sum claimed by
the defendant's plea. From the amount so
ascertained by the Jury mtiat be deducted the
sum of $1,700, .the dlfferoice beHng the
amount to which the defendant Is entitled. If
the Jury should find for the defendant"
Roper St Davis, of Petersburg, for plaintiff
In error. Wm. B. McIIwainei of PetcMbaxg,
for defendant in error.
KEITH, P. William Jacot, trading a»
Jacot ft Hullen, made a motion for Judgment
In the hustings court of the city of Peters
burg against the Grossmann Seed & Supply
Company, Inc., to which the defendant plead-
ed the general Issue and four special pleas.
In the first of which It is alleged that the de-
fendant had purchased of the plaintiff a quan-
tity of crimson clover seed, which the plain-
tiff undertook and promised the defendant
should be good merchantable seed, which
proved not to be true, and that the clover
seed were sterile and utterly worthless, to
the damage of the defendant; the second
plea sets out that the defendant bought of
the plaintiff a quantity of standard crimson
clover seed of the quality of a sample then
and there exhibited by the plaintiff's agent,
who undertook that the seed purchased
should be ol the «nalll^,^^|^^]^,nj^(^
648
78 SOUTHBASTBBN BEPORTEB
and than exbSUted, and Out by tlie breacb
of tbis Qndflttftkins Qie defendant bad nt'
fered damages; the tMrd plea states that
the plaintifl undertook that the aeed pur-
chased should be good uid merchantable
and up to the standard of germination and
purity reaoleed by the atatnte of Virginia In
ancb case made and provided, and that by
the breacb of this undertaking the defend-
ant had Bulfered damages; and the fOurtb
special plea alleges that the plaintiff under-
took and promised that the seed purchased
were good and merchantable seed, and of
such power of germination as to be suitable
for aale and planting during ttae summer of
1910, and that by the breach of this nnd^
taking damages were sustained.
The Jury found the Issue for the defendant
and assessed Its damages at the snm of
$3,066.42, less a credit of $1,700. and to a
judgment on that Terdlct this writ of error
was awarded.
The facts in evidence are as follows: On
September 16, 1910, Werner, the agent and
salesman of William Jacot, went to the office
of the defendant In the city of Petersburg,
and exhibited to Grossmann, the president
of the defendant corporation, an envelope
containing a sample of seed which he pro-
posed to sell, on the back of which was
printed the words: "Standard Sample. Pre-
serve for Reference. Crimson Calm Clover
Seed From. Jacot & Mullen, Seed Merchants,
No. 1 Water Street, New York." The words
"OrimsoD Calm** appear to have been placed
on the envelope In a blank space left for the
purpose with a rubber stamp or stencil, all
the other words being printed, and the word
"Calm" indicated the grade of the seed, the
plaintiff having several grades of crimson
clover seed; that known -as "C^lm" being
the lowest grade. The sample having been
examined by Grossmann, the president, and
Ivey, the secretary and treasurer of the
defendant corporation, they determined to
purchase some of the seed If a satisfactory
price and terms conld be agreed upon, and
In pursuance of this determination there was
prepared by Werner and signed by the de-
fendant corporation a written bid for ac-
ceptance. Said bid for acceptance is In the
words and figures following:
Bid for Acceptance.
Order No.
Messrs. Grossmann Seed & Supply Go.
Ship to PetersbuTb Ya.
How Ship: p. D. When: As below.
Terms: As below.
120 bags, each aboat 220 lbs., 1910 crop crlm-
am clover seed, at $6.7S per bosbel of 60 lbs.
L o. bb New York, payable by your 120 days
note to be dated Oct 1st, 1910, goods to be car-
ried In warehouse In New York or New Jersey,
bayers to have warehouse receipt. Insurance to
be covered by Jnoot & Mullen.
Jacot A MnllBn.
Per G. H. Werner.
% collection charges to each narty.
Grossmann Seed « Sundy Oo.
IntMmt ft* tm Get. 1st.
TUs offer was ftoe«pted 1^ Isoot A Mullen
telegram, which is in the words and lis-
urea as follows:
New York, Bept 16. 1910.
Grossniun Seed ft Sapply Co., Petersbarg, Vs.
Accept your bid made Werner will confirm to-
morrow ouil. Jacot & Mullen.
And on the next day tliiey confirmed Ow
telegram by letter. The sample of seed es-
blblted was not left wltb the defendant for
the reason that It was the only sample the
salesman had, and he did not know whether
the defendant's bid would Ite-acc^ited, but
on September 21, 1010, Invoice for tlie seed
was forwarded to defendant In a letter in
which It is stated that another sample drawn
from the lot of seed sold to the defendant
was being mailed to it, but it does not appear
that this sample was ever received by tba
defendant
On the lnv(^ce for the aeed Inclosed in On
letter of September 2lBt tlie following note
waa written across' the face: **We do not
guarantee any of tlie seeds sold In this bill,
nor will we be responsible for the crop there-
from. If not accepted on these conditions
th^ must be returned at once." And it
aK>eara tbat this statemmt was read at the
time by tlie presldatt of the defendant cor^
poratlon.
In pursuance of this contract of sale 120
bags of crimson dover seed were set aside
and marked In 13ie Lackawanna War^onsa^
Jeraey 01^, N. 3^ and a negotiable waro-
house receipt for said seed, issued by Uie
Lackawanna Warehouse. Company on
tember 26. 1910; was forwarded to the de-
fendant. The warehouse receipt was en-
closed in a letter as follows:
New York, Sept 26th, 1910.
MesiTS. Grossmann Seed & Supply Co., Peter»'
burg, Va.
Gentlemen: We beg to Inclose berewlQi ware-
boose receipt for the 120 sacks ci Orlmson Clo-
ver sample Calm, as we ureed to send you. and
also an acceptance at 120 days from Oct 1st,
which wo win ask yon to accept and retam
to OS.
Very truly yoors, Jaeot A Mullen.
On October 4, 1910, the defendant forward-
ed to the plaintiff an acknowledgmoit of
said warehouse reodpt and Its note toe the
snm of 12,970, dated Oetobea 1, 1910, and
payable 120 ^lys after data, in settlement
for the seed. This note was subseqnmtly
curtailed and renewed at various times, un-
til September 11, 1911, when, payment being
refused the defendant upon the last note
given. It was protested and the present salt
instituted, which resulted, as we have seen,
in a Judgment for the defoidant by which it
recovered back all that It had paid re»<
son of the transaction.
About the 1st of February, 1911, the de>
fendant, the Grossmann corporatton, sent
the war^ouse receipt to plaintifl and tfr
auestad him to ahUf^a^^g^yl^^^^
JACOT V. OBOSSMANN SEED * SUPFI.T 00.
were 8hlppe9 via the Old I>omlnl<m Steam-
dfcdp Company and the Norfolk & Western
Ballway Company and were rec^Ted by tlw
defendant In PetersbOTK on Vtbruary 0, 1911,
and stored by tbe defttidaiit In It^ ware-
lionse In said dty.
It appears that In the snmmer of 1911 and
np to September 20, 1911, nine days after
tbe last note had been protested, the defend-
ant proceeded and contlnned to aell these
seed to its cnstomers tn the connt les around
Petersburg, and, although the seed were In
the actual possession of the defendant, In
the dty of Petersburg, after Febmary 9,
1911, and although the defendant conld at
any time after said date bare inspected the
seed. It was not until after S^tember 9,
1911, after the note glren In payment had
several times been curtailed and renewed,
and after practically all of the seed had been
sold by it, that the defendant claimed that
the seed were not of the quality of the sam-
ple exhlUted what the sale was mad&
There was erldeoce diowlng that the seed,
waa well cared for In tbe warehouse at New
Jersey and after it was delivered to tlw
Qrosnnann Company in Febrnary, 1911, and
from this evidence the Jury had the right
to infer that there was no deterioration in
the quality of the seed between Et^tember,
JSnXi, and BevtembCT, 1911. except sndi as
was inevitable ttom the efflux of time, but
it Is also shown In evidence that It was the
rule to hoy aeed of -the crop of 1910 for sale
to be used In the season of 1911, and that
Oda was understood by all parties, and fap>
ther that the quality ot the seed, if proper-
%r cared for, would not be seriously Impaired
within that time. There waa evidence that
when the samite was exhibited to Groas-
mann Company by Werner, the agent of the
plaintUf in error, it was carefully examined
by expert seedamen and found to be of good
quality in all respects. It further appears
that tbe seed when sold to fannen ftiled to
cermlnate; that there was graml oomplaint
made, as a result of which, after due Investi-
gation, Groasmann Company refunded a
large sum of mone; to those to whom Uie
seed bad been sold, and that they have un-
dertaken to maJce lestltntton to all. who pnr^
chased crtmsoa dovw seed fhnn them.
[1] Tbe first error aadgned la baeanae the
court permitted the witnesses Oroeamann and
Ivey to testify with regaxd to reprawntatltmB
alleged to have been made by plaintliTs
ag«it W«ner aa to ti» seed aold prior to
and not contained In the wiittm ocn^ract In
regard to the aale of said seed which bad
already been Introdneed In crldancek
We do not .thlnfe that In any vtew of the
case tUB, ruling of tte uoort constitutes i»>
verdble error, as the InatructionB which tbe
court eim plainly Informed the Jury ttMA 4be
contract under InvesUgatlcm oontalned *^
warranty at the qnalitj. and gevmbiatlng
properUea of the aeed sold, exo^t an Implied
warranty that fiugr wo* ot Iba kind and
quality set out in ttie contract and tta ahown
by the sample, and that they must not con-
sider any evidence or statement of any wit-
ness as to the failure of said seed to sprout
or germinate, except aa evidence tending to
show what was the quality or condition of
the seed when delivered as compared with
ttie quality of the seed sold with reference
to the sample by which the sale was made."
[2] After the evidence vraa placed before
the jnry, the plaintiff asked for 16 instruc-
tions, all of which the court refused to give.
We shall not undertake to deal with these
inatmctions seriatim, as it could not be done
In an opinion of reasonable length. The In-
structions given by the court were suflOdent
to inform the Jury as to the law applicable
to the facts. The trial court was of opinion
that the only warranties of the seed sold by
the plaintiff to the d^endant disclosed by
the evidence were that the seed were of the
crop of 1910 and of the qnall^ of the sam-
ple exhibited and examined at the time of
the sale, and upon these two propositions we
think the Jnry were correctly instmeted.
[S] The second and ninth instructions nak-
ed for by tbe plaintiff in error and reftaaed
by the court present the questhm upon th«
solution of which this case depends.
Na 2 Is as follows: *^e court Instructs
the Jury that if they believe from the evi-
dence that the 120 sacks of crimson clover
seed were actually received by Orosamann
during the lattw part, of January or first
part of February, 1011. and that the said
Orosamann did not within a reasonable ttme
after the rec^pt by him of said 120 bags of
seed inspect the mme, then the said defend-
ant accepted the seed and waived any defect,
if any there was, In said seed, and the Jury
shall not consider as evldmoe in thla .case
any of the statements made by witnesses as
to the failure of the seed to sprout, or ger-
minate when sowed In the ground in. July*
1911, or later, or as to any teata made In
September, 1911, or latw."
And lnstructl<m Na 9, also cefaaed by the
court, la aa foUowa: 'The court Inatmcta
the Jury that If th^ bellere from tbe evi-
dsnoe that the aala of tba crimson dofw seed
In Qoeatlon here was a aale by aample, and
U thay further beUarft that tha 120 baga ot
crimson clover seed came Into the actual pos-
sesalon of the defmdant on or about tha
9th ot February, 1911, then tbe conit In-
atraeta tha J«ry that It waa tbe duty of the
said defendant, then or within a reasonable
tima tbareatter, to iuveet the 120 bags ot
clow aaad. In odrder to ascertain whether tbe
bnlk<tf the aeed corresponded wtlb tbe aampla
tv which tiie seed wcrsi punAased by the da-
futdont; and tba court farther laatmcta tbe
Jozy tbat If tbqr tiaUaro from the arldaDoe
tbat .UijB da*^ant did not. wltUn a xfl^aoa-
|ible time after th» raeeipt by It ot the 120
basa.of olorer.qead tn qaaatloi^ tawact t^
same, that the defendant cannot^iiow domf
plain ot any alleged taUfil»tiii£ctl9 Wkw)^C
660
78 SOUTHISASTEBN RBFOBTBB
(7a.
seed to be OQual In quality to tbe samiOe by
wbleh the seed were porcbaeed."
In 2 Mecbem on Sales. | U86, U U said:
"Tbe expiess warranty, therefore^ stands up-
on dlfferait groond In reference to accept-
ance trom that occupied, according to many
authorities, by the implied warranty or con-
dition; and it is well settled where an ex-
press warranty accompanied the contract
that while, by accepting the goods, the buy-
er may lose bis right to subsequently reject
them, he does not thereby necessarily lose
his right to rely upon the warranty. The
express warranty survives acceptance, and
by the great weight of authority gives the
buyer a remedy notwithstanding tbe defects
were visible or open to discovery at the time
they were received. The buyer may reject
them, but he is not compelled to do so; he
may retain them and rely upon the war-
ranty."
In Zabriskie v. Central Vermont B. Co.,
131 N. Y. 72, 29 N. B. 1006, it Is said: "Up-
on an executory sale of goods by sample, with
warranty that the goods shall correspond
with the sample, tbe vendee is not preclud-
ed from claiming and recovering damages for
breach of warranty, although be liaa accept-
ed the goods after an opportunity for In-
spection."
In HoUoway Jacoby, 120 Pa. 583, 16 Atl.
487, 6 Am. St Sep. 737, the buyer had paid
for the goods (com) in advance; on rectipt
he found It defective; be kept it and sold It
on the best terms he could, giving no notice
to the seller until after tbe sale, and two
months after receipt He then brought an
action for damages on the warranty, and was
held entitled to recover.
In Mimiesota Thresher Mfg. Co. v. Hanson,
3 X. D. 81, 64 N. W. 311, the court said:
"The retention and use of the property with-
out notice (to the seller) of defects, under
the great preponderance of tbe later — and, as
we think, better— authorities, affects only the
right to rescind. Tbe buyer may still re-
ly np4Hi the breach of warranty to defeat
a recovery In whole or in part in an action
brought by tbe seller to recover the purchase
price. Continued use of the properly, with
knowledge of defects, and without notice or
complaint of the seller, may be more or less
persuasive as evidence of waiver of defects,
but cannot establish such waiver as a mat-
ter of law."
See WlUlston on Sales, U 488, 489, where
the rule Is stated that "acceptance of title
does not, as matter of law, Indicate a waiv-
er of claims for InteHor auauty of the pMds.
is supported by a laqce number of decisions
In this country, and ta the unquestioned law
of England:'*
yft are of oplnlfni that this view Is sup-
ported- by tbe better reason as well as by
authority ; but that, while Qie m«ely taking
of title to tbe floods does not vamuu Ota
conclusion that the buyer has agreed to take
Oiem in full satisfaction of all the seller's
obligations, the retention and use of the
goods for a considerable period without any
complaint warrants a strong Inference that
the goods are either what the contract called
for. or that the buyer Is satisfied to acc^t
them instead of such goods; and that for
this reason It Is important to give prompt
notice of any defects which may exist
We do not think, therefore, that there la
any error sbown in the ruling of the court
upon the Instructions to the prejudice of
the plaintiff In error upon the point consld-
ered.
[4] Instruction No. 9, given by tbe court,
as to tbe measure of damages, correctly states
the rule as applied to the facts of this case.
[fi] Nor do we think the court erred in re-
fusing to set aside the verdict as contrary to
the evidence. It Is true there is no direct
evidence that the seed which are the subject
of this controversy were not of the crop of
1910; It is difficult to conceive how there
could have been direct evidence of that fact
upon the part either of tbe plaintiff or of
the defendant It Is plain, however, that the
affirmation of the fact that the seed were
of the crop of 1910 was made by the plain-
tiff in error, and it was intended to Influence
the defendant in error as an affirmation of
auality, and was so relied upon. There was
no warranty of the germinating properties
of the seed sold, but there was evidence that
seed of good quality of the crop of 1910
were good, merehantable seed; that It was
the well-recognized course of business to buy
of the crop of 1910 to be seeded in tbe season
of 1911 ; and that the lapse of a yMr would
not materially affect the quality of the seed.
If this be true, then the fact established be-
yond doubt that tbe seed had practically no
germinating qualities strongly tended to
prove that th^ were not grown in tbe sea-
son of 1910, and tended to prove a breach of
the affirmation or warranty that tbey were
seed of that year's growth.
With reference to the oorreqwndence of
the bulk with the sample^ the sample itself
was not produced In evidence before the Ju-
ry; It was not In the possession of the de-
fendant In error. It was exhibited at tbe
time of the purchase, but was retained by the
agent of the seller. . But the testimony of ex-
pert seedsmen was before the jury that flie
sample exhibited was by them carefully ex-
amined, not only with the eye bat with a
magnifying glass, and was fbnnd to be freSh
lo<Alng. bright seed, while the bulk of the
seed were darker than the sample.
Upon the wluOe case we are of opinion that
the judgment of the hustings court dionld
be afflnned.
Aflrmed.
OABDWSLI4 J., absent
Digitized by Google
PHILLIPS T. CXTT OF FORTSMOUTB
651
015 Ta. 18(0
PHILLIFS et al T. GIIT OP POBTS-
MOUTH.
<8apniM Ooart of Ai»peals of Tirgiiila. Jinw
1% 191S.)
1. Wathbb AitD Watkb Goubsks (i 203*) —
CoMTUCTs BCTwasn Citt and Watkb
COUPAirr— OONBTBtJCTION.
Where & city agreed to pay a water com-
pany 8 qiedfied rental for water supplied to
certain hydrants, and also that U any city
taxes, leviea, or aaaeaamenta for any public
purpose should be Imposed on the property or
Torks necessary for the supply of water the
rental should be increased by an amount equal
to such taxes, levies, or aasessnwnta, and the
company's entire capital stock was invested In
and represented by its proi>erty and works nec-
essary for the supply of water, a tax on iti
capital stock was a tax on Its ^opcrty nece**
sary for the supply of water.
[Ed. Note.— For otiier eaiea see Water* and
Water Courses, Cent. Dlf. f| S89, 2B0-SS0;
Dec Dig. i 208.*]
2. AMiainanTs (| 28*>-Biohtb Absiohabu
—Right or Aonow— "Chom in Actioh."
Where a ci»itract between a dty and a
water company provided that the rental for
water should be Increased by the amount of
any tax levied uitou the company's property or
works necessary for the supply of water, a
right of action by dw company for the recov-
ery of a tax BO levied and paid was a "chose
in action," within Code 1904, S 2860, providing
that the assignee or beneficial owner of any
chose 1q action not negodable may sue tiiere-
on in bis own name.
[Ed. Note.— For other eases, see As^nments,
Gent Dlf. H 41; Dec. Dig. | 28.*
For other definitions, see Words and IPlmuHi,
vol a, pp. 1146-U48; vol. 8; p. TflOS.]
3. MUKIOIPAL OOBPORATIONS (8 967*)- TAXA-
TION'—EXElfPTION— WHAT OON8TITUTE8.
A provision of a contract between a city
and a water company that the rental for wa-
ter should be increased by the amount of any
cit7 tax on the company s property or works
necessary for the supply of water was not an
exemption of the property or works from city
taxation ; and hence tiie right to such increased
rental passed to another company with which
the contracting company sabseqaently mexged
or consolidated.
[Ed, Note.— For other cases, see Municipal
Corporations, Cent Dig. SS 2062-2067; Dec.
Dig. I 967.*j
4. MUNICIPAZ. COBTOSATIOHfl (| 977*)— TAXA-
TION—ReCOVEBT ow Tazu Paid— PATUin!
IKT0I.VI1XAIUI.T.
The payment of a tax was not rendered
involuntary, within the rule that taxes paid
voluntarily cannot be recovered back, merely
because the city ordinance levying .the tax
imposed .a penal^ for nonpayment when due.
[Ed. Note.— For other cases, see Municipal
Corporations, Cent Dig.. H 2099-2103; Dec
Dig. f 977.*]
Brror to CSxcnlt Ooort <oC Clt7 of Poxfti-
mouth.
Action by A. J. PhUUpa and another MaluBt
the City of portuooath. JadKment tor de-
fendant, and plaintiffs bring error. Beveraed.
The declaiatlon was as followat
"Declaration.
•n^espan on the Case in Asaampait
"A. J. PhilUpa and T. J. Wool, plalnllirB,
complain of the dty of Portsmouth, dsfrad-
ant, of a i^ea of trespass on the case In a»-
sumpslt, for this, to wit: That heretofore,
to wit, on the IStb day of September, 1887,
the Portsmouth ft Suffolk Water Company,
and the city of Portamouth, entered into a
contract under seal, and to the court here
shown, by which, for valuable comiderBtlon,
tiie Portsmouth ft 'Suffolk Water Oompany
agreed to complete certain works for the
supplying of the dty of Portsmouth with
water, and by which the said diy of Ports-
mouth covenanted, amongst otbOT things,
that, the Portsmouth ft Suffolk Water Com-
pany, faithfully performing Its part of said
contract, It, the said dty of Pwtsmontb,
wonld pay to the said Portsmouth ft Suffolk
Water Company, for TOter supplied to cer-
tain hydrants descrihed In said contract,
and for pnbUe imrposes and uses set out in
said contract, the sum of 97,900 per annum,
or at the rate of $7B per hydrant, per rear,
payable every three monOu during Uie first
ten years of said contract, and for eadk ad-
ditional hydrant over and above 100 It, the
said dly of Portsmouth, would pay to the
said Portsmouth ft Suffolk Water Company
at the rate of 976 per hydrant per annum
during Qie first ten years of said contradi,
and that finr the next ten years of the edst-
ence of said contract it, the said dty of
Portsmouth, would pay to the said Ports-
month & Suffolk Water Company the sum of
950 per hydrant per annum for eadi hydrant
then set by the authority of the dty of
Portsmouth, or thereafter set or to be set by
the authority of the dty of Portsmouth, with-
in the corporate limltB of said dty of Ports-
mouth, payable every three months ; and the
said plaintiffs say that said contract further
provided that If at any time any dty taxes,
levies, or assessments for any public purpose
should be imposed on the property or works
necessary for the supply of water, aa set out
in said contract, the annnal rental above
set out should be Increased to an amount
equal to said dty taxes, levies, or assess-
ments (paving assessments excepted) ; and
the said plalntlfl says that the Portsmouth
ft Suffolk Water Company furnished water to
said hydrants for the use of said dty dur-
ing the yean 1901, 1902. 1903, and 1904' in
accordance with said contract, and falthfull>
performed its part of said contract, and that
during the years 1901,. 1902, 1908, and 1904-
dty taxes for public pniposes were imposed
to the amotint of 91|812.60 for eadi of said
years on the capital stock of the Pwtsuonth
ft Suffolk Water Company, all of which
capital stock was Invested in and represent-
ed by the property and works necessary for
the supply of water, amounting in the aggre-
•Ferethw
see same teple and secUOB NUMBBR In Dee. Dig. 4 Am.
652
78 S0UTHBA8TBRN BBFOBTEIB
gate for ralA four years to $5,250, which said
amoants were paid aa follows: On October
31, 1901, $1,312^; on October 31, 1902, »1,-
312.50; on October 81, 1903, ¥1,312.60; and
on October SI, 1904, $1,312.50. by the said
Portsmouth & Suffolk Water Company to
the city of Portsmouth; whereby and by rea-
son of said contract the dty of Portsmouth
became indebted to the Portsmouth & Suffolk
Water Company during the year 1901 lo the
sum of $1,312.50, in the year 1902 In the
sum of $1,812.50, In the year 1903 In the
sum of $1,312.50, and In the year 1904 in the
sum of $1,312.50, aggregating the sum of
$5,250, in addition to the annual rental for
said hydrants; and the said plaintiffs say
that while said dty of Portsmouth paid the
said Portsmouth & Suffolk Water Company
the -annnal rental of $50 per hydrant as
hereinabove set out, it wholly neglected and
refused to pay said additional rentals of
$1,312.50 for each of said years of 1901, 1902,
1903, and 1904; and the said plaintiffs fur-
ther say that in the year 1902 the said Ports-
mouth & £iuffolk Water Company was, pur-
suant to an act of the General Assembly of
Virginia, consolidated with the BerUey &
South Norfolk Water & Electric Light Com-
pany and the Nansemond Water Company, so
as to form one company by the name of the
Portsmouth, Berkley & Suffolk Water Com-
pany, by means whereof the Portsmouth,
Berkley & Suffolk Water Company became
Tested with aU the property, property rights,
franchises, and, privileges of said Portsmouth
& Suffolk Water Company, and subject to all
the responslbiUtlee of said company, and that
subsequently, to wit, on or about the 17th
day, of April, 1911, the aald Portsmouth,
Berkley & Suffolk Water Company assigned
unto the plaintiffs said claim against the de-
fendant, together with Interest thereon, by
means whereof the said dty of Portsmouth
then and there became liable to pay to the
said plaintiffs said sums aggregating the sum
of $5,250. with interest on $1,312.50. a part
thereof, from the Slat day of October, 1901.
and on $1312.50, another part thereof, from
the 31st day of October, 1902, and $1,312.50,
another part thereof, from the 31st day of
October, 1003, and $1,312.50, the residue
thereof, from the 31st day of October. 1904 ;
and being so liable it, the said defendant, in
consideration thereof, undertook and then
faithfully promised the said plaintiffs the
said sum of $5,250, with Interest as afore-
said, when it, the said defendant, should be
thereunto afterwards requested.
"Yet the said defendant, not regarding its
said promises and undertakings, did not, nor
would it at the said time when it was so re-
quested and demanded, nor at any other
time before or afterwards, pay said plaintiffs
the sums aforesaid, or any part thereof but
hath hitherto neglected and refused, and
still doth neglect and refou^ to the damage
of the plaintiffs^ $10,00a
"And for tbU alwib to wit; tbat lieretofoteb
to wit, on the day and year aforesaid, the
said dty of Portsmouth entered Into a con-
tract in writing and sealed with Its seal, and
to the court here shown, with the Ports-
mouth ft Suffolk Water Company, by which
it, for valuable considerations, agreed that,
the said Portsmouth it Suffolk Water Com-
pany faithfully performli^ its part of said
contract, it would pay to the Portsmouth &
Suffolk Water Company, for water supplied
to certain hydrants described In said con-
tract, the sum of $7,500 per annum at the
rate of $7S per liydrant per year, payable
every three months during the first ten years
of said contract, and for each additional liy-
: drant over and atmve 100 It, the said dty of
Portsmouth, would pay to the said Ports-
mouth & Suffolk Water Company at the rate
of $75 per hydrant per annum during the
first ten years of said contract, and that for
the next ten years of tlie existence of said
contract It. the said dt7 of Portsmonth,
would pay to the said Portsmouth ft Snffolk
Water Company the sum of $50 per hydrant
per annum for each hydrant then set by tbfi
authority of the dty of Portsmouth, or
thereafter set or to be set by the authority
of the dty of Portsmouth, within the corpo-
rate limits of said dty, payable every three
months ; and the said plaintiffs say tliat said
contract further provides tliat If at any time
any dty taxes, levies, or assessmoits for
any public purposes should Iw imposed on
the property or works necessary for the sup-
ply of water, as set out in said contract, the
annual rental above set out should be In-
creased to an amount equal to aald dty tax-
es, levies, or assessments (paving assessments
excepted); and the said plaintiffs say that
It furnished water to the aald hydrants dur-
ing the years 1901. 1902, 1903. and 1004 in
accordance with the said contract and faith-
fully performed Its part of said contract, and
that during the years 1001, 1902, 1003. and
1904 dty taxes for public purposes were im-
posed to the amount of $1,312.60 for eadi of
said years on the capital stock of the Ports-
mouth & Suffolk Water Company, whldi cap-
ital stock was invested In and represented
by the property and works necessary for the
supply of water, amonntlng In the aggregate
for said years to $S,250, which said amounts
were paid as follows : On October 31. 1901,
$1,312.50; on October SI, 1902, $1,812.60; on
October 31, 1903, $1,312.50; and on October
31, 1904, $1312.50, by the said Portsmouth
ft Suffolk Water Company to the said city of
Portsmouth ; and the said plaintiffs say tbat
under the ordinance of the aald dty of Ports-
mouth, unless said taxes were paid on or be-
fore the 1st day of November of each year,
that then a penalty of 0 per cent of the
amount of aald tax will be Imposed, and to
avoid said penalty the aald Portsmonth ft
Snffolk Water Company, on the 81st day of
October. 1901, paid the amount of said tax,,
to wit, the sum of $l3i2JS0, and on the 31st
day of October, HOOH, It paid ti^. Bum otfU-
' " ■- Di'gi^izedby VjOOglC
Vft^ PHii^Lcrai r. cnrr
ZiZJSa, and OS tbe 8lBt day ot October, 19C3,
It paid tbe' sum 6t $1312.S0, and on tlie 3;lBt
day of October, 1904^ It paid tbe anm of il,-
812^; and tbe said plalntlfla waj tbat said
taxes asseased, aa aforesaid, vmn Ul^l, and
were Imposed witbout aatborlty of law,' and
were paid, as aforesaid to avoid said penalty
ct S per cant nnder protest; and tbe said
plalntlfCs fortber say tbat in tbe year 1902
tbe said Portsmoath ft SnfEolk Water Oom-
pany was, pnrsoant to an aA of tbe General
Assembly of Virginia, consolidated with' the
Berkley ft South Norfolk Water ft filectric
XAght Company and the Nanaemond Water
Company, so as to form on* company by the
name of the Fortamonth, BerUey ft Suffolk
Water Company, by means v^iereof the
Portsmontli, Berkley ft Snff(dk Water CoiA-
papy became Tested with all of the property,
rights, franchises, and privileges of said
Portsmonth ft Suffolk Water Company, and
snblect to all the responslbUItlea of said
company, and that sntHieqnently, to wit, on
or about the 17tb day of April, 1911, tbe said
Portsmouth, Berkley ft SnflOlk Water Com-
pany assigned to plalntUb said claim against
tbe said defendant, ti^ther with Interest
thereon, by means whereof the ssld of
Portsmouth then and tbere became Indebted
and liable to the piaintiffB In'-^ said sum
of 95,260, with Interest on |l,3l!2JfO. a part
thereof, ttom the Slst day of October, 1901,
on $1312^ another part thereof, from tbe
Slst day of October. 1902, on $1,812^)0, an-
other part tb^reo^' from tbe Slst day of Oc-
tober, 1903, and on |1,812JK^ another part
thereof, from the Slst day of October, 1904,
and being so UaUe and Indebted it, the said
defraidant, in CMuddaatlon thereof under-
took and then fslthfully promised to pay to
the said plaintiffs tb^ sum of 90,290, with
interest as aforesaid, when It, tbe said de-
fendant, should be thereunto afterwards
quested.
"Yet tbe said defendant, not regarding its
said promises and undertakings, did not, nor
would it at any time it was so requested and
demanded, nor at any time before or after-
wards, pay said plaintlfls the sums afore*
said, or any part tb'weof, but hath bltberto
wholly neglected and refused, and stlU doth
neglect and refuae^ to the damage of the
plaintiff*, 9lO^QOa''
The demurrer of tbe defendant Is aa fol>
lows:
"The siUd defendant says that the declara-
tion in this action and each and evory count
thereof. Is not sufficient In law, and states
the. grounds of demurrer tailed on to be as
follows :
"Fitst That the Ux Imposed by the city
of Pprtnnonth im the capital stock of the
Portsmouth ft Suffolk Water Company for
tbe years . 1901, 19Q2, 1903^ and 1904. was not
a tu, Icry,' or assessment Imposed upon any
proper^ .'or works of the Portsmouth ft Suf-
ts3k Water Company, or Ita auccesson^ neoesr
OF POBTSMOUTH QSBl
sary for the supply of iratei^ af oo^tempja^
ed by tite proTisTona of the' contnCct, between
tlie dty of Portsmonth and the Portsmouth
ft Suffolk Water Conipany, as set out In the
plalntifb' declaration, and hence '.there waa
no obligation on ttle defanduit to pay the
Portsmouth ft Soffott Water Company, or ita
successors, or the plalntltfi^ the sums de-
manded' In the dedaratl<m aa increased hy-
drant rental.
"Second. That the plalntlflte;, not being part
ties to the contract between the defendant
and the Portsmouth ft Suffolk Water Compa-
ny, mentioned In the declaration, and not be-.
Ing the assignees of'sald contract, or of any
part thereot but the assignees at, If any-
thing only of a mere (ihose in action, to wit,
the additional rental alleged to be due by
the defendant to the Portsmouth ft Suffolk
Water Company for the years 1001, 190%
1903, and 1904, Cannot maintain this action
In their own' names for the violation of any
rights growbig out of nid contract
"Third. That the provision of tbe contract
between tbe dty of Portamonth and the'
Portsmouth ft Suffolk Water Company, men-
tioned in tbe declaration, that if at any' time
any dty tax. levy, or assessment fbr any
public purpose shall be Imposed upon any
of the property or worfca of the' company
necessary- for 'the suK)ly ' of water the reat*
al agreed In said contract shall be Increased
to an amount e^nnl fo said dty tuc, assess^
ment or levy. Is' In effect an exempttW of
the pnH>erty or works oi the said- company
necessary for the supply of water- from dty
taxation, and did not pass to tiie Portamouth,
Berkley ft Suffolk Water Company under-the
act (tf merger or consolidation of '19CQ.
"Fourth. That the dedaratiMi does not al-
1^ facts snOdent to show tliat the pay-
ments of tbe tB.xeB complained of were in-
voluntary, or were made under sudi drcnm-
stances aa would entitle the Portsmouth ft
Sutroik Water Company, or Its succeooBB, or
tbe plaintiffs, to recover the same.
"Fifth. That the plaintlffa not b^g the
persons In whose name the taxes for the
years 1901, 1902. 1003, and 1904. mentioned
in the declaration, were assessed, or the per^
sons who paid the same, they cannot main-
tain an action in their own names to recover,
them back.
"Sixth. And for other good and sufficient
grounds.
"Whereof," etc
K. R. Hicks, of Norfolk, for plaintiffs In
error. J. W. Happer and Frank U Cro<^ker,
both of Portsmoutii, for defendant In error.'
KEITH, P.. [1] The flxat groipd of de-
murrer to the declaration in thlf caae la:
"That the taf Imposed by the cUiy of Ports-
mouth on the capital atoic^ of the Porta-
month. ft 8uff<rik Water Company for the
yea]» 1901. 1002, ISO^, and 1904 waa not a
t«, or «i«^^ ta*=^^^g
854
78 SODTHBASTBBN BBFOBTBR
proper^ or works of the Portsmoath ft Suf-
folk Water Oompauy, or Its successors, nec-
essary for the supply of water, as contem-
plated by the provisions of the contract be-
tween the city of Portsmouth and the Ports-
mouth ft Suffolk Water Company, as set out
In the plaintiff's declaration. • * • "
One of the provisions of the contract set
out In the declaration is that "If at any
time any city taxes, levies, or assessments
for any public purpose should be Imposed on
the property or works necessary for the
supply of water, as set out In said contract,
the annual rental above set out should be
Increased to an amount equal to said dty
taxes, levies, or assessments, ***** Had
the declaration stopped there, there would
have been much force In the contention of
the defendant, but it goes on to state that
during the years 1801, 1902, 1903, and 1904
city taxes for public purposes were Imposed
to the amount of $1312.50 for each of said
years on the capital stock of the Portsmouth
ft Suffolk Water Company, all of which capi-
tal stock was invested In and represented
by the property and works necessary for the
supply of water, amounting In the aggregate
for said four years to fS,250, which said
amounts were paid. It would seem clear,
therefore, that if the capital stock was in-
vested In an4 ^presented by the property
and works necessary for the supply of water,
and the tax was levied upon the capital
stock, that it wa$ of necessity a tax upon the
property and works necessary for the supply
of water, as set out In the contract
In Farrlngton v. State of Tennessee, 05
U. & 686. 24 L. Ed. 658, it Is said : "The
capital stock and the shares of the capital
stock are distinct things. The capital stock
Is the money paid or authorized or required
to be paid . In as the basis of the baslness of
the bank, and the means of conducting Its
op^tkma. It r^reaeuta whatever It may btt
invested In."
And In State Bank of Ta. t. Bldimond,
79 Va. 115, it Is said: "The capital stock,
and the shares of. the capital stock, are dis-
tinct things. The capital stock and the
shares may both be iazed, and it is not dou-
ble taxation."
Aa is said in the brief for the defendant
In error, there Is eome confusion among the
authorities In their definition of capital
stock; the term sometimes being applied to
the diares of stodc in the bands of stock-
holders.
In Cook on Stock and Stockholdos (2d
Ed.) I 3, it Is said: "Strictly the capital
stock of a corporation is the money con-
tributed by the corporators to the capital,
and is usually represented by shares issued
to subscribers to the stock on the Initiation
of the corporate enterprise."
And In 10 Cye. at page S64: "The term
■capital stock' In an act of incorporation Is
said to mean the amount Contributed or ad-
vanced by the shareholders aa members of
the company, and does not refer to the tangi-
ble property of the corporation."
But whatever obscurity or confusion may
elsewhere exist as to the precise meaning
and force of the term "capital stock," the
averments of the declaration before us, ad-
mitted to be true by the demurrer, put the
matter beyond the range of controversy ; for
it is expressly charged that the whole of
the capital stock was invested In and repre-
sented by the property and works necessary
for the supply of water, and a tax upon the
capital stock, in the sense in which It Is used
In the declaration, was undoubtedly a tax
upon the property in which it was invested.
The first ground of donurrer la therefore
overruled.
[2] The second ground of demurrer is:
"That the plaintiffs, not being parties to the
contract between the defendant and the
Portsmouth ft Suffolk Water Company, men-
tioned in the declaration, and not being the
assignees of said contract, or of any part
thereof, but the assignees of, if anything,
only of a mere chose In action, to wit, the ad-
ditional rental alleged to be due by the de-
fendant to the Portsmouth ft Suffolk Water
Company for the years 1901, 1902, 1903, and
1904, cannot maintain this action in their
own names for the violation of any rights
growing out of said contract."
It is not claimed In the declaration that
the contract between the Portsmouth ft Suf-
folk Water Company and the city of Ports-
mouth was ever assigned to the plaintiffs.
The contention is that the plalntiffls are the
assignees of a debt dne to the watw compa*,
ny, and that claim ts a cboae in acti<»i, with-
in the terms of section 2860 of the Code. In
reference to this section Barton, in the first
volume of hia Practloe (2d Ed.) pw 236, says
Qiat 'It now includes also open accounts In
the use of the words 'or other chose in ac-
tion,' upon whidi now suit may be brouc^t
In the name ot tlia assignee, although former-
ly it could be only for his benefit The lan-
guage of the statute coTers the right of the
assignee or b«uificlal owner to assert in his
own name the right to recover on any chose
in action; whereas the former statute left
every other Instance except those specified
in the language of the act to the rules as
they were at common law."
[3] The third ground of demurrer is: "That
the provision of the contract between the
dty of Portsmouth and the Portsmouth ft
Suffolk Water Company, mentioned in the
declaration, that if at any time any city tax,
levy, or assessment for any public purpose
shall be imposed upon any of the property
or works of the company necessary for the
supply of water the rental agreed in said
contract shall he increased to an amouut
equal to said city tax, assessme'nt, or levy, Is
in effect an exemption of the property or
works of the said to»S!^,^^\J,gl»?e
va.)
PBILUFS T. CITT
OF IPOBTSMOUTB
655
snpplr of mter from taxation, and did
not pass to the Fortainoatli, Berkley ft Suf-
folk Water OmuMUiy xmia Qie act of mexgu
or conaoUdatlon of 1902.**
If tb» prenllaea were sonnd, tbe oonclnaUm
would fallow; but Is Oie contract stated In
the decdantlon an exemption of the proper^
and works of the company from taxation?
In Grant t. City of DaTeoport, 86 Iowa,
886, the ordinance construed was assailed
as Tlolattve of article 8, | 2, of the Constitu-
tion, which declares that the property of cor-
porattons shall be Uable to taxation the same
as the property of Indlvldnals. said the
court, "we placed the same construction upon
the ordinance as tbe counsel for appellants
seems to, we should probably concur with
him In his legal positions and conclurions
thereon. But It seems to us that when tbe
while ordinance Is construed together it does
not amount to an exemptloQ from taxation.
It. In effect, applies tbe taxes as tbe^ would
otherwise become duc^ in part payment of, or
In part consideration fbr, the water rent
The city pays tbe amount of money apeclfled,
and tbe taxes upon the franchise and the
propw^ required for the management of the
works, as water rent It might have requir-
ed tbe payment of the taxes, and then return-
ed the amount as part pay for wattf rent
Tbe manner of doliv it cannot defeat tbe
power to do it**
In Monroe Water Works r. 0.tj of Monroe,
110 Wis. 11, SB N. W. 685. It Is said: "An
agreement for immunity from taxation wlU
not be recognized, unless condied In terms
too plain to be mistaken. • • • Where,
however, the agreement is express, and the
intention evident, to exempt proper^ and Re-
lease it from tax burdens, it is void and will
not be enforced. • * • The rule Is equal-
ly well established that It Is competent for
a dty and a company to agree that, as the
price of services to be rendered, the dty will
pay a sum equal to the amount of municipal
taxes to be levied."
In Ludington Water-Supply Co. v. City of
Lndington, 119 Mich. 488, 78 N. W. 561, it
was contended that the provisions of the con-
tract under consideration relating to taxes
were invalid, for the reason that the dty had
no power, under its charter, to exempt prop-
erty from taxation, and that this contract
was an attempt to exempt tbe property of tbe
plaintiff in excess of a certain amount from
Its share of the public burden. The opinion
says : "The contract does not purport to pro-
vide that the property of the plaintiff shall
not be assessed. Its terms Indicate that it
was Intended by both parties that It would
be assessed, and that the plaintlfr would pay
the taxes on the property up to a certain
amount, and the defendant all in excess, as
a part of tbe consideration for tbe supply of
water. The dty no more exempts the proper-
ty of the plaintiff from taxation by such an
agreement than does the mortgagor who
agrees to pay the taxes levied against the
mortgaged property exonpt the mortgaged
property from taxation. K)sslbly neither
possesses the power to exempt property from
taxation. Certainly neither bas done it"
' In Cartersvllle, etc., Co. Mayor, eta, of
Cartorsvllle, 89 Qa. 683. 16 S. E. 25, It was
held that: "While a city cannot exempt a
gas company from munldpal taxation, it can
contract to pay fbr gas a sttpulated sum per
lamp, and In addition thereto a sum for all
the lamps supplied equivalent to the anlount
of taxes Imposed upon the company, provided .
this additional sum Is a flair and Just allow-
ance to compensate for the actual ralue of
the light service, and the stipulation is bona
fide and not in the nature of an evasion of
the law prohibiting exranptlon tnm taxes.
The present action Is not brought to recover
money voluntarily paid aa taxes, but for a
balance due under tlie contract for lighting
tbe dty ; this tutlance being measured in part
by tbe amount of taxes assessed and collect-
ed by the munidpal government from ^e
gas company."
Se^ also, Los Angeles t. Los Angtileo Olty
Water Works, 49 Gal. 638.
We aro of opinion that the third ground of
demurrer is Insnffident
[4] The fourth gronnd of demurrer is:
"That the deelaratlon does not allege facts
snffldent to show that the payments of the
taxes complained of wero involuntary, or
were made under such drcnmstances as
would entitle the Portsmouth A Suffolk
Water Company, or ite successors or the
plaintiffs, to recover the same."
This ground applies to the second count In
the declaration, and raises the question fre-
quently presented as to whether or not a pay-
ment of taxes was voluntary or involuntary,
within tbe meaning of the law. If voluntary,
they cannot be recovered back; If Involuntary,
the recovery may often be had.
It Is contended by the plaintiffs in error
that tbe payments here were involuntary,
because the ordinance under which the tax
was levied Imposed a penalty of 5 per cent
if the tex was not paid when due. Tbe
claim of plaintiffs in error is that the imposi-
. tlon of a penalty Is a spedes of durras, and
that where the tax is paid to avoid this ad-
ditional burden it Is altogether different from
the payment of a tax and the claim that it
was Involuntary merely because the tax was
lUegaL
Tbe subject of the recorery bMfe of Illegal
taxes paid under protest was fully considered
by this court in the case d Pboebna t. Mhn- ■
battan Club, lOS Ta. 144, tt2 S. a 839^ 8 Ann.
Cas. 667, and we shall content oonelves upon
this i/oint with leferrlng to tlie oidnloa of
Judge Buchanan In that case and the author-
ities then dted. We do not think that the
imposition of a penalty differentiates the two
cases; that they an in prindide indenttcal;
and that the case dted controls that under
conalderatlon. To hold that the iiBpoBltJon,ot , ,
Digitized byVjTJQ^L
650
T8 80UTHBASTEBN BEPOBTEK
(W.Va.
a penalty wl^ch la designed to accelerate tbe
prompt payment of taxes, constitutes a du-
ress would be to render the payment of the
great bulk of onr taxes involuntary and sub-
ject to be recorered back, and subject tbe col-
lection of taxes to all tbe inconveniences
and ills pointed out by Judges Carr and
Tucker in Mayor ot Rlclunond r. Jndah, 5
Lelgb (32 Va.) 305.
What vre have said sufficiently disposes of
the flfth ground of demurrer ; and upon the
whole case we are of opinion that the court
erred in sustaining tbe demurrer to the first
count in the declaration, but properly sus-
tained the demurrer to the second count, and
for the error In Its ruling with respect to
tbe first count Its Judgment mnat ba xttrened.
Beveraed.
(a w. va. iH)
BBKEDUM T. FIBST OITIZIBNS' BANK
et al
(Supreme Court of Appeal* of West Virginia.
Veb. fiOk 1918. Beheating Denied
Jane 80^ 1018.}
(SvUabiu 6y the Oowrt.)
1. Banks and Banking n*)— Insolvxr-
CT— RECEivEssniP— Bffkct.
Tbe appointment of a receiver in a credl-
ton^ suit, brought to wind up the buaioeBS of
an insolvent bank and distribute its assets, does
not preclude creditor* other than tbe plalntiS
in .the ' bili from setting uo in the same suit
by Gnws*bili grounds of relia against tbe plain-
tfflt the officers, stockholders, and OtheV eredi-
ton not set forth or admitt^ in the bUL
.1^. Note.— For other casea. see- Banks and
Banking, Gent Dig. H iA5-a7a)&; Vie, D\g.
i 77.*]
2. Banks and BahkIno Q| 7T*>— Ihbolwh-
jbt Soeb case, the assets of tin bank, io-
cluding rights of action against its officers and
stockholders for losses occasioned by their mis-
conduct and misappropriatioil ot funds, consti-
tate a tniat fund for the benefit of creditors and
they may come in, -not only to share tn the dis-
tribution thereof, but also to NQuire etdleetion
of the assets.
[Bd. Note.— For other cases, see Banks and
Banking, Gent Dig. (S 165-176^; Dec Dig.
S 77.*] .
8. Banks and Bankinq ^ 77*)— Inbolvbn-
0T-^S8BT&
in such case, grounds of relief against
officers and stockholders have been omitted
frmn the hill, and the receiver has not institut-
ed any suit or other proceeding to enforce each
claims, cross-bills by creditors, not seeking to
vrithdraw such assets from the anAt, nor to In-
terfere with tiie custody or pessnnion of the
receiver, may be filed.
[Ed. Mote.— For other cases, see Banks and
Banking, Gent Dfg. SI 165^0%; Dec7 Dig.
I 77.*1
4. Banks and Bankiiio Q 6S*)— Inbolvbn-
OT— ASSnS— HlOHT op ActtON-^FraKT;
-. An officer ol an insolvent bank, held lia-
ble in such a. suit, for all of his indebtedness to
the bank and losses occasioned by his mlscon-
doct or Delect of doty, keqaired to restore all
of his i misapBntpriatlona; and deprived of the
benefit of aJl . preference be has obtained, mo
t^r claims waviAt l^m o:h socK accoanGi are
passed upon In the decree, cannot properb be
denied participation in tbe distribution of tbe
assets on account of his deposits and other
claims against tbe bank. In such case his en-
tire liability should be ascertained and decreed
against him. and then be should be allowed to
participate in the distribution, on pamient or
collection of a soffident amount to uisnre Tata-
ble distribution among all credltms Inelvding
himselt
[Ed. Note.— For other cases, see Banks and
Banking. Cent Dig. H m-118, 116-120; Dee
Dig. } (i8.*J
6. Banks and Bankxno d B8*)— Insoltw-
OT— ASBSTB— BlOHT OW ACTION— OFFSET.
A creditor of an insolvent bank, though an
officer and held liable for losses, misap|)ropria-
tiona, and prefereoces, nmy set off against his
deposits liability on hia Individual debts and
notes and mi his joint and several note^ bat
not his liability as sorety or Indwser, nor as
a joint debtor.
[Ed. Note.— For other cases, see Banks and
Banking, Cent Dig. || 111-118, llS-120; Dec
Dig. I (A.*)
ft. Banks and Bankino (I 80*)— Inboltkn-
OT— Gums— EmcT or Assiqriixnt.
It is error to postpone, in a decree of dis-
tribution of the assets of an insolvent bank,
the assignee ot depoi^t accounts therein, tboagh
be Is an officer held liable for losses and mis-
apprcvtiations and preferences. In this re-
spect such claims should be treated as if th»
had .been his originally, unless there Is an equi-
ty against them in ftivor of the bank.
[Ed. Note.— For other cases, see Banks and
Bankiiv, Gent Dig. H 184-196; Dec. Dig. f
80.*]
7. BANKB'.AND BaHKIHO (I D7*)— iNBOLTIll-
CT^LiABiUTT or OmCEBS.
In the settlement of the affairs of an In-
solvent bank, its president Is properly charge-
able with the amounts (tf wormlMS notes aad
overdrafts of corporations, p^onoteS and con-
trolled by him and hia associates, discounted
by tbe bank with his knowledge, under his di-
rection and with notice on his part of ttie finan-
cial ability ot the maker*, inferable from his
relation with them and participation in tbe
management and control thereof.
[Ed. Note.-~For other cases, see Banks and
Banking, Cent Dig. H 106-110; Dee. Dig. f
B7.*l
8. Banks and Banksnq d 01*)— Oftickbs—
Bksionation.
An officer of a bank who has sold his stock
and tendered hia resignation is nevertheless a
de facto officer, if his resignation has not been
accepted, nor the vacancy in the office filled,
and his acts and the surrounding circumstances
-prove he continued to act tor the bank and par>
ticipate In the management and control of its
affairs.
[Ed. Note.— Fw other eassi^ aee Banks and
Banking, Gent Dig. H 8^-80; Dee. Dig. | Bl.*]
9. Banks and Banrina (| 62*)— Insolvcn-
OY— LzABiUTT or Omous.
Ad officer is liable for withdrawal from an
insolvent bank, after knowledge of its insolven-
cy, of deposits made and controlled by him,
thougb he is not sole owner thereof.
[Ed. -Note.— For other cases, see Banks and
Banking, Cent Dig. U 208-200^; Dec Dig.
S 82.*]
10. Banks and Bankino- (| 74*)— Insolvsn-
, CT— PbAfebihces. „
Transformataon by an officer of a falling
bank of ita certificates of deposit beM b.v'him '
into a well secured debt held by the banbdij
surrender of the.certifica^ In part pwm^.ft
yie jfebt and ts^ing a' new jfot^ feym t^ ^SPt^
•For other easss ses ssaia topis and asotloB NVHBXR ta'Dse. Dig. 4 Am. Dig. I^tl
BENEDmi T.TIB8T OmZENS* SAMK
667
■ecared snd payable to himself constltutefl a pref-
erence, the benefit of which muat be inrrender-
ed in the aettiement of the aflUra of tlM bank.
[Bd. Note.— For other caaea. aee Bai^ and
BauUnr. Cent Dig. | ISO; Dec Dig. | 74.*]
11. Bills ard Noras (| STS*)— CBBrmoAras
ov DxPosiT— Bora Fivk Pusohabbb.
Gartiflcatea of deposit to a bank, fraudo-
lend; iBaaed, are valid obligationa in the handa
of a holder iSumOt for nlae withont notice of
the fraud.
nBd. Note.— For other casea, aee Billa and
Kotea, Cent. Dig. H 066-«70; Dec. Die I
S73.*]
12. Banks aitd Baukxho (I 68*>— Omons
— LlABIUTT.
Officers of a bank, participating in mia-
Rppropriationa and tnnaactions occasioning
losses, are jointly and aeverally liable for indi
misapproprUtlona and loasea. and there may be
a separate decree against any of th«tn.
IBd. Note.— For other cases, aee Buka and
Banking. Cent Die. H 111-113. llS-120; Dec.
Dig. IM-n
18. Bahks and BAimne d 41*)—Ir8olt«n-
0T--AS8STS— SUBSCUPTIONB OW STOCK.
In the settlement of Uie affairs of an fn-
Bolvent bank, the unpaid tabscriptlons of stock-
holders coaatitate a part of the asseta, a^
stockholder* may be reanired to restore divi-
d«ids nnlswfally and improperly declared out
of funds and assets other than profits, and paid
In cash or applied In satisfaction of tinpsia
snbserlptiona.
TEA. Note.— For other cases, see Bariu and
Banking, Gent Dig. f 6K; Dec Dig. I 41.*]
14. Banks and Banking (I ?<(•)— Inboi,t«n-
OT— LXABtLITT OT 8T00KB0LDEBS.
In a creditora' auit againaC an insolrent
bonk, the aUtntory liability of stockholders foe
amounts equal to their , snbscriptlons and in ad-
dition thereto may be Invoked, and such
amonnts hronsht in fo» -distributMa with the
eta of the bank.
. [Ed. Note.— For other cases, see Banks snd
BanklDg. Gent Dig; {{ 158-164; Dec^ Dig. 1
76l*]
15. Banks and Bankihs (| 76*)— iNSOLTXir-
or— CasDiTOBs' Bxjit.
Id such auit. a transfer of stock, made
Vtth Intent to avoid the aUtotory liability and
defmad creditors of the bank, may be assailed
^ cross-bill, if it has not been attscked by the
plaintiS or the receiver.
[Ed. Note.— For other casea, see Banks and
Banking, Cent Dig. {S 158-164; Dec. Dig. I
7e.«]
16. AxvmuL AHD Xbbob a 80*)— Dicnions
BSTIXWABUB • PBOTZBIOIIAXi OBDEBS ARD
Decbbes.
provisional orders and decrees, not final
in character, but reaerriag for future adjudics'
tion matters in UtLgatton, are not appealable.
IGd. Not^— For other caaea, aee Appeal and
Error, Cent Dig. Si 428, 4S2, 438, 460. 4C6,
4Sf, il)4-S0di Sk^ Dig. I 80>3
Appeal from Circuit Goort, Biaisball
Conntj,
' BUI 111 flQnitr M. li. BeDcdmn Bgalnat
the Flfst dtttens' Buik and- otfien. From
tlie docns; plalnUir and defbndants Jolm A.
Hosrard, tspwiial lec^Ter, ana August "W^endt
appeal: Semned Id par^ modlfled'In part,
afflnbed In part, and ranaddad.
■ ■ - T> Tai. r.r.- . ■ Jm.
T. S. Riley and J. W. Hits, both of Wheel-
ing, George J. Wolf, John S. Waller, and John
O. Wicks, all of Pittsburg, Pa., and Wm. M.
O. Dawson and Ualcom Jackson, both of
Charleston, for appellants. J. C. Simpson, of
MoundsvlUe, and Caldwell ft Caldwell and
McCsmlc A Qarka^ all of Wheeling for ap-
pellees.
POFFBNBABGBB, P. The appellant M.
L. Benediun, to whom there was decreed in
this suit brought to yvind op the affairs of
the First Citizens' Bank of Cameron more
than $94,000 on account of deposits in his
own name and those of other i^rsons by him
and interest thereon, and against whom large
amounts were decreed, far in excess of the
amount allowed him, on account of bis lia-
bility <m eertatn notes to which be was a
party as maker or tndorser, overdrafts al-
lied to bare been permitted by blm as presi-
dent and director of the bank, preferences
given by withdrawal of deposits, and losses
occasioned by his n^llgence and misconduct
was denied the right of set-ofF as to the notes
on which he was liable and also participation
in the distribution of the assets of the bank,
as to all snms decreed to him, until after all
other creditors shaU have been paid ; and he
has appealed from the decree. The bank
closed Its doors on the 24th day of December;
1906, in pnrsnance of an order of the board
of directors thereof, made on the preceding
day. Benedum commenced this wait on the
26th day of December, 1903, and on that day
Secured the appointment of a receiver to tak^
charge of the assets of th*e bank. The bai^
itself and moat of the stockholders were
made parties defendant Iii response to no-
tice of the applteation for the appointment of
a receiver, the bank, by its president Wm.
M. Kincald, filed an answer, admitting sub-
stantially all the allegations of the bUL On
the 1st day of March, 1904, J. M. Marsh and
numerous other creditors of the hank filed
their petition, praying to be made defendants
which prayer was granted. On the I8th day
of June, 1904, George N. Hoffman, G. W.
Hazen, and W. A. Hasen filed a similar peti-
tion, tile prayer of which was granted, and
on the 2d day of July, 1904, these defendants
and others filed answers and croea-bllls in
the cause, setting forth numerons grounds
for relief against M. L. Benedum, tortaet
president, A. B. Fox, former cashier.' Wm. M.
Kincald. president and all of the directors
and stockholders. These cross-bills charge
many gross acts of negligence on the part of
Benedum and Fox and violations of law both
by them and the Bto<Aholders and (rtlier 0-
fectors, among wbldi wetto two unanthotlzed
dedaratlona of dividends, one of which was
avenM to have been credited on unpaid anb-
Aiirlptioua and the other paid fai caah. Large
loMs to the nagligenee and misconduct
of the directors and stockholders were charg-
ed. Tt' la also aiteged Oat Behedum aiid Fozt
JM— L.
9fot Other casss we mm» toplo ana ssetlea NPIIBBR la Deo. Dig. * Am. Dig. Key
78&&-42
658
78 SODTHGASTEBN BBFORTBB
(W.Va.
knowing the InsolTont condition of the bank,
ftandnlentlr disposed of their stock to avoid
statutory liability thereon. Uablllty of the
atockholOera under the statute in amounts
eanal to their respectlTe subscriptions and In
addition thereto, as security for creditors,
was asserted, and the benefit of the statute
Invoked. A demurrer to the cross-bUls, as-
signing their InsafSdency as a whole and the
Insufflcloicy of certain parts thereof, was
overmled exc^ as to three portions, those
charging liability on account of the dividends
declared, the frandnlent assignment of the
stock by Benedum and Fox, and Oie statuto-
ry Uablllty of the stockholders in excess of
their BubscrUttlona. Thereupon Benedum filed
his answer and special reply to the cross-
bills, and put In Issue all of the allegations
thereof against him.
[1,2] The propriety of the overruling of
the demurrer is cballenged upon two prin-
cipal grounds, the exclusive right la the re-
ceiver po take Into his possession all of the
fcssets of the corporation and enforce UabUl-
4ee of the Btoticholders and others, and the
relation of the matters or grounds of relief
set up in the cross-bill to the subject-matter
of the original bill. The admitted insolvency
of the bank wholly changed Its character and
gave rise to new rights on the part of credi-
tors, depositors, and stockholders. Its assets
Immediately became a fund to which all had
the right to resort. In them they Ipso facto
acquired Interests. The liability of the offi-
cers constituted a part of the assets of the
bank. , Though the relation of trustee and
cestui que trustent did not previously exist
between the officers of the bank and the de-
positors, the liabilities of the officers as
agents or trustees of the corporation were
assignable and constituted part of the bank's
assets, and In them the creditora had an In-
terest as well as in Its other assets. Though
they were in the possession of the receiver
or he bad title to them, and could sue for
and recover them, his possession was for and
on behalf of all the Interested parties, in-
cluding the depositors and other creditors.
He alone no doubt could have Instituted sep-
arate actions at law against the derdict or
fraudulent officers of the bank, had that
course of procedure been adopted, for he had,
as successor of the bank, the legal title or
right of possession, but this argues notlilng
against the right of the creditors tp assert
In this suit their equitable claims against
such sums as are due from the officers of
the bank, on account of losses, misappropria-
tions, and preferences, as parts of the fund
to which they have a rii^t to resort for sat-
isfaction of their claims, If such liabilities
may be enforced In this suit The assertion
of these rights here did not disturb the pos-
session 01 title of the receiver nor in any
way interfere with the exercise of Ua pow*
era.
Though there are some decisions to the
contnuTi the better opinion is that audi
claims and demands are ct^nlzable in a suit
to wind up the bualneea of a bank and dis-
txibute its assets. "Those rights of the bank
are choses In action* which are eqnltahle as-
sets in the some that they are rights to re-
cover tor breaches of trust They are as-
signable, and survive against the perstmal
r^resentatlve of the deceased officer.
* * * This right of the creator can never
be Insisted upon except wlien the bank is
insolvent, for as loi^ as the bank la able
to pay, and does pay. Its creditors, no credi-
tor is injnr^ 1^ or can complain of Oe offi-
cer's breach of his duty toward^ the bank.
But, the bank being insolvent, two principles
come Into play: First, the assets ought to be
equally distributed among the creditors; and,
second, the suit b^ng a creditors' blU, all
creditors have a right to come Into tbe afr
tion, and must come Into the action, nus
UiCt being conceded, the necessity for a Judg-
ment at law and a return of *nnlla bona* la
dispensed with. Sndi beliuc the nature of
the action, It Is quite us^ess for us to say
that without a statute such an action does
not Ue at law, because no creditora* bill lies
at law. But, since the right against the offl<
cer which the creditor Is asserting belongs to
the bank, the corporation must be made a
party, just aa the debtor whose rights are be-
ing asserted must be made a party. In the
next place, if the bank luts an assignee or
a receiver, he must be made a party, because
the bank's choaes in action belong to him;
and since he is the custodian of those rights.
If he is a receiver, an officer of the court, no
suit ought to be brought, unless he has re-
fused to bring a suit, and thus renotmced his
Intention of enforcing the obligation on t)e-
half of the bank." Zane on Banks and
Banking, | 86. As the officers of a bank are
virtually Its trustees, or, at least, may be
treated as such, losses occasioned by their
negligence and c«*tainly funds misappropri-
ated are proper charges In the settlement of
their accounts. Personal representatives of
deceased [>ersons are chargeable with such
Items. Plnckard v. Woods, 8 Grat (Va.) 140;
Hooper V. Hooper, 32 W. Va. 641, 9 S. B.
937; Anderson v. Plerey, 20 W. Va. 324;
E}van8 V. Shroyer, 22 W. Va. 581; Iteltz v.
Bennett, 6 W. Va. 417. Guardians are charge-
able with such items. Hunter v. Lawrence,
11 Grat (Va.) 111. 62 Am. Dec 640; Truss
V. Old, 6 Rand. (Va.) 5&6^ 18 Am. Dec 748;
Bonsh V. Griffith, 65 W. Va. 752, 65 S. B.
168. ^lYustees eo nomine fall under the same
rule. Perry on Trusts, | 848. These cross-
bills are. In effect, creditors' bills, not mere
de<daratl<ais against the ct«porate officers
for injuries occasioned by their alleged de-
celt and fraud. Claims of the latter dass
for unliquidated damages might not be ger*
mane to the purpose of the bill, nor prova-
ble before the commissioner. Iliese croea-
bUls charge the assets of the bank, hudndlng
all sums due from Its trmtw^ wtth 4ri)t%
not Claims tor damiyp^^^ GoOgTc
W.Va,)
BBNEDUM T. FIBST CITIZENS' BANK
659
[3] Though a number of decisions say an-
wilUngness, neglect, failure, or refusal of the
receiver to sue must be shown by a creditor
as a prerequisite to his right of action, many
of them are Instances In which creditors
sought by their suits to withdraw from the
custody of the receiver and the jurisdiction
of the court in particular cases the assets of
the Insolvent corporation. That Is not the
character of these cross-bills. They are filed
Id a cau^e In which a receiver had been ap-
pointed, and do not attempt any interference
with his possession or custody. While they
relieve him of the necessity of suing to get
In these assets or filing In this cause the
necessary pleading to accomplish that result,
they set up no right of withdrawal of any
assets or interference therewith. Their sole
purpose is to charge the officers and directors
of the bank. Treating these claims against
the officers as causes of action arising out of
breaches of trust and assets of the corpora-
tion to which creditors may resort for satis-
faction of their claims, as well as Its other
assets, the matted of the cross-bills was ger-
mane to the subject-matter of the bill ; and,
although the creditors might appear before
the commissioner and file their claims and
have them adjudicated, no reason is perceiv-
ed why they might not also set up in this
cause these breathes of trust without any in-
trusion upon the right of the receiver. De-
crees for the amounts due by reason thereof
would be In his favor and for the benefit of
the creditors. The original bill might proper-
ly hffve contained the auctions of the
cross-bills and likely would have done so, had
it been filed by a creditor or some person
not indebted or liable to the bank on any ac-
count; and failure to include them necessi-
tated further auctions of vital matters req-
uiBite to bring into the salt all the creditors
were entitled to. rnie cross-bills were filed by
permlssitm of the court, and did not conflict
with Hny proceedings Instltnted by the le-
oelver. He had not sued to get in these
assets.
[4] The decree holds Benedum liable, in-
dividually In some Instances, and, in others,
Jointly and severally with Fox and others,
on notes amounting, together with their in-
terest, to 182,480.03; on account of losses
from the discouirting of bad notes, amount-
ing with their Interest to f84.709.76; jointly
and severally with Fox in two instances, and
with Fox and Harklns In one, for overdrafts
amounting to $15,311.24; for a preference
amounting with interest to |29.200, lb a
transaction relating to a note for $36,000, se-
cured by a deed of trust, which he took over
to himself partly In exchange for certificates
of deposit in the bank ; and for withdrawals
amounting to $10,144.97. Though required by
the decree to restore to the assets of the bank
these preferences and losses, ' all that have
been decreed against him so far, he is de-
nied participation In the distribution of the
assets until all the other creditors shall have
been paid. As authority to sustain this dis-
crimination, Elliott V. Farmers' Bank of
Phlllppl, 61 W. Va. 641, 57 S. B. 242, Is re-
lied upon. The court's holding In that case,
however, was based upon the special and
particular facts disclosed by the record. In
the opinion Judge Miller said: "The court
below, acting on the principles of these au-
thorities, evidoitly concluded, and we think
rightly, that there had been such gross neg-
ligence and Inattention to the business of the
bank on the part of the directors, before and
after Insolvency, in relinquishing rights, and
in acquiring for themselves unjust advan-
tages over other creditors, as to require that
they should be postponed until the claims of
all other creditors had been fully satisfied."
The conclusion evidently rested upon the as-
sumption of undue advantages obtained, loss-
es occasioned and never made good, misap-
propriations not restored, and' other acts by
which the complaining stockholders and of-
ficers had profited to the detriment of the
general creditors. Here the position Is dif-
ferent The decree deprives Benedum of all
preferences, makes good all losses occasIoDed
by the negligence and misconduct of the di-
rectors and officers, and compels restoration
of all misappropriations, so far as ascertain-
ed and determined.
The theory of the trial court seems to have
been to make available for the depositors, by
the postponement, a sort of general liability
on the part of the managing officers for un-
defined and general damages for wrecking
the bank by violations of law and other
wrongs of omisrion and commission. This
view, however, goes beyond both the plead-
ings and the evidence, and Includes a spedea
of liability not germane to the bill or anb-
Ject-matter of the suit These depositors
sue here as creditors of the bank, and as-
sert and prosecute the bank's claims and
demands against the offlcors, not their own
causes of action for fraud and deceit For
Injury occasioned by misrepresentation as to
the bank's solvency, inducing deposits and
thus causing loss, each depositor would Uke-
ly have to sue alone and at law. The cause
of action would be his, not the bank*^ and
sole, not joint with other depositors, and the
recovery would be his own, not a mere asset
of the bank an)licable to repayment of his
deposit as a d^t Nor la the bank or any*
body on its behalf suing for general dam-
ages, if such a' demand could be asserted by
a cestui que trust against the trustee, in a
court of equity — a very doubtful proposition
to say the least The remedy of cestui que
trustent against trustees Is an accounting in
equity. If 'the property has been lost or mis-
appropriated or sold for Inadequate prices or
other wrongs done by the trustee, the prop-
erty loss, not damages for wrongs, is the
basis of the accounting. Norman's Bx'r v.
Cunningham, 6 Grat t^J^^t,^ b^U^t^glc
660
78 SOUTHBASTBRN REPORTER
(W.Va.
Piatt, S How. (U. S.) 833, 11 I* Ed. 622;
Raker r. Whiting, 8 Siinm. 475. Fed. Cas.
No, 787; Freeman v. Cook, 6 Ired. (41 N. C.)
373 ; Bradley v. Lace, 99 lU. 234 ; TrecotMck
T. Austin, 4 Mason, 16, 29. Fed. Cas. Mo. 14,-
164; Jobnson v. Ames, 11 Pick. (Mass.) 181.
But U the stockholders or creditors could
assert, against the officers, a claim tor such
general damages In a creditors* suit, the data
tor the assessment thereof would have to
be produced in evidence. All losses of erery
form, gains prevented, and loans and debts
lost could not be charged up, without refer-
eace to the conduct of the officers In the par-
ticular instances, because of unlawful acts
or misconduct not contributlog in any way to
the results in such cases. Bad loans may
have been made and lost despite the utmost
diligence and good faith. Advantageous bar-
gains may have escaped and proflts been lout,
aotwlthstandlng an tiouest exercise of judg-
ment and diligent inquiry. Surely a court
of equity will not Inflict panltive damages
or decrees for smart mon^. We do not con-
strue these cross-bUls as asserting any sach
dalaiB, nor see in the evidence data for an
assessment of such damages. While the an-
swer charges in general terms the failure of
the bank oa account of the bad and tmproTl-
dent management of Benedum and Fox, this
charge seems to have been intended as the
tMUds of several and personal liability on
their part for t^e specific losses and misap-
mc^rlatlons xxdnted oat and complained of.
As Benedum is required to make good and
nstore all theses m far as Ua UabUity haa
tnm flzed, and other slniiiar claims against
faim seem, to be pending and undetermined,
DO reason for postponanent of bla debts to
those of other creditors, as regards the as-
sets reported 1^ the reeelTW, Is percdred.
The only safe and Just course Is to ascertain
his entire liability, and then allow him to
partlc^te In the distribution, on payment to
tbe receiver of a snffldoit amount to insore
ratable distribution of the ass^ among all
the creditors Including himself. Should It
become necessary to resort to unpaid sub*
scrlptlons or amonnts recoT^ed under the
statute, the mle applicable to distribution of
-such assets may be different
[I] The decree further discriminates against
Benedum by postponing him In the distribu-
tion of the assets as the ovrner of the fol-
lowing d^Kislts, appearing upon the books
-of the bank: Bowman Farm Oil Company,
484.50; British Columbia Company, $410.13;
Hammet Farm Oil Company, f272.S6; In-
gram Farm OH Company, $136.93; Ingram
Farm Oil Cbmpany, $474.60; and Owens
Farm Oil Company $40.75 — amounting In the
aggregate to $2,107.23. There Is no basis
for such discrimination. He could Justly and
fairly purchase these deposits, assuming that
be did purchase them wholly or In part It
involved no injustice to other creditors. Bis
AfslgnoEi^ could lawtoUy and. Justlj sell, and
be could buy, such interests as tbey had. Of
course, be took them subject to any extstiog
equities in favor of the bank.
[5] Denial of the right to set off his de>
I>osit8 against his liability on certain notes
la complained of by the appellant In pr<q^
er cases the right of set-off is available be-
tween an Insolvent bank and its depositors.
Morse on Banks A Banking, f 337; Bolles
on Banking, p. 856; Jones on Insolvent ft
Falling Corp. { 652 ; Bank v. Armstrong, 146
U. S. 409. 13 Sup. Ot 148, 36 L. Ed. 1050.
Until insolvency occurs, depositors are mere
creditors of the bank, and this relation is
not destroyed by the broader or more Inti-
mate one of trustee and cestui que trust, re-
sulting from the fiict of Insolvency, It In-
cludes the former, but does not extinguish It
A claim of tbis kind was denied in Lamb v.
Panuell, 28 W. Va. 663, but only because the
claims were not mutual. It was an attempt
on the part of a surety to set up his liability
as such against his individual debt In an-
other aspect of the case the claimant was
endeavoring to obtain the benefit of a pref-
erence, which the law did not allow. Only
mutual debts are allowable under the law
as set-offs. Liabilities on account of misap-
propriation or attempted preferences are not
vrithin that class, for the obvious reason that
a set-off thereof would conflict with legal
principles, denying the benefit of misappro-
priations and unlawful preferences. Mor does
the law permit the set-off of a Joint liability
against an individual qub. Elliott v. Bell, 37
W. Va. 834, 17 S. B. 399: Gboen v. Onthrie,
U W. Vs. 100; Perkins t. Hawkins, 9 Grat.
(Ta.) 640; Porter v. NekervU, 4 Rand. (Va.)
8S0. But Joint and several demands may be
set off. JElllott V. Bell, cited. Mor can a
sniety set off the debt ot his principal agabist
his own Individual debt or his Individual
claim against a debt tor whlcb he Is liable
OS surety, exsept under peculiar drcum-
stonces. Cboen t. Outhrle, IS W. Ya. 100;
Edmunds r. Harpor, 31 Grat (Ta.) 687. This
rule denies the ri^t of set-off to persons li-
able as indorson, because they are sureties.
Bank V. Baker, 93 Ta. 510, 26 S. B. 600;
Daniel Xeg. Instr. H 1303-1305.
Under these principles the court properly
refused to allow Benedum to set off against
his deposits the decree against him and
Fox for $14,130.45 on account of a promis-
sory note executed by one Rostock and
others to them and indorsed by them; the
decree against him for $600 on a note execut-
ed by him Jointly with J. B. Myers and Fan-
nie Myers; the decree for $6,755.56 against
him. Fox and Harklns, on account of a Joint
note, payable to the First Citizens* Bank,
signed by the Cameron Glass Company, on
the face tt^ereof. and by them on Its back;
and the decree for $3,8^.17 against him snd
Fox on account of a note discounted for the
Upshur Glass Company and the proceeds of
which were used In the bnslne^ at the said
Digitized by VjOOglC
BBOnDDITli v.FIBSr omZSlNB* BA^
Ml
QMnpaiiT; It betng » ooncexn Ui8tl7 muiaced
and eontzolled by Banednm. BvbsCuitUUy
tbls last Item was a mlsa]»>roprlatloa of tbe
bank's fnnda. Bat be la anlltled to set off
against his deposits the decree for 9UEX)0
acainet him and Fox oo aecooit of th^
note made Jointly and severally with E^dgar
B. Bostock, and the decree against him for
1100 on account of a Joint and sereral note
executed by htm and J. L. Fisher.
[1] As some of the decrees against the ap-
pellant are founded upon official negligence
and misconduct as a director and loesldeDt
the bank, his relation tq the Instltatlon is
a question discussed at great length In the
briefs. Harlng made an alleged sale of his
stock to one Bnglehart on the 26th day of
July, 1903, a date prior to some of the trans-
actions complained of, and having at or
about that time rendered his resignation,
which the board of directors did not accept*
it is urged that from and after that date he
was not an offlcer or director of the corpora-
tion. Though the severance of his relation
as a stockholder rendered him Inel^ble to
the office of director or president, that dr-
cumstance Is not conclusive, since he could
still be liable as a de facto officer ; and, if
thereafter he assumed to act for and on be-
half of the corporation and was in ftct,
though not in name^ the president, he was
a de facto offlcer. Hullngs v. Lumber Oos
88 W. Va. 361, 861. U S. B. 620; Clark ft
Marshall, Cwpk 1 662; Cook, Ck»rp. { 6S3. As
has been stated, Benedum's resignation ten-
dered In July, 1908. was not acc^ted. nor
was the vacancy flUed until December 28,
190& U the bank had any president during
this interim, Benedum must have been the
incumbent of the atticn. WUnmnn say he
dtd exercise the powers of the <MDce and a
few Instances of offldal action are shown.
On the 12th day of October. 1908, he In-
dorsed the bank's name oa a not^ designat-
ing hlmsdf as presidott In the same month
be transformed 920,000 of certificates of de-
posit In the bank Into S wttU-secured note of
J. Fay Watson wMdi the bank bad held.' On
the Cue of the matter the bank douanded
paymemt of Watsm. -who applied to Benedum
for a loan which was made, and $20,000 of
the Watson d^ to the bank was paid In Its
own certUkates of deposit, Benedum taking
a new note from Watson well secured. This
transaction was v^ much for the benefit of
Benedom and to the detrlmrat of the bank.
Two days before the bank dosed its doors a
flO,000 transaction took place between it and
stockholders of the Wetul Window Otass
Company, in which Boiedum and Pox were
considerably Interested. He and A. EL Fox
were business associates. Interested together
in the bank and many other enterprises.
Both claimed they had disposed of tb^
sto^ and resigned at the same time. Fox,
notwithstanding the tender of his resigna-
tion, continued to act as cashier until the
bank dosed. Both attended the meeting of
the directors on the 28d day of December,
1903, and participated in the proceedings
then had, locAlng to the winding up of .the
corporation, dosing Its doors, and procuring
the appointment of a receiver. Benedum
himself says Klncald was then elected
president because there was a doubt as to
whether he (Benedum) was prestdont. Af-
ter ths tender of his resignation In July,
1903, much of the bad paper of the business
concerns in which he and Fox were Interest-
ed together was still carried by the bank and
Benedum continued to be Its largest custom-
er, the bank holding large deposits of his as
well as a good deal ot his paper. In Ttew
of all these drcumiBtanoes, we are unable to
say the court erred In finding he was a de
facto officer until December 23, 1903.
[7] The decree holds the appellant liable
for the amounts of the following notes, to
none of which he was a part? as maker, In-
dorser, or guarantor, on the theory that they,
were bad debts, negUg^tly and retUessIy
made, and partially for hla benefit as tbe
promoter of tbe oiterprlsss exeentlng than:
A Marshall Window Glass Company note for
S29,660, a note' «f tbe same company for
HSOO, a note <rf the tTpslmr Glass Cmnpany
for $7,600, and a note of the Wetsel Glass
Company for $8,580.88. Bwedum was the
promoter and president, and Fox the treasure
er of tbe Cameron Glasp Company, a part of
whose Indebtedness to, the bank, represented
by notes and overdrafts, was converted Into'
a note of Its successor, the ICarsball Window
Glass Company, for |29,6C0. In violation of
both the statutory law and the by-laws «f
the bank, the Cameron Glass Company had
been allowed to become largely Indebted to
the bank. On December 28. 1901, it had an
overdraft of $4,628.23. and on March 4, 1802,
of $16,982.81. On AprU 1, 1902, a note tor
$16,688.46 was given for ^e Cameron Com-
pany's overdraft and the form of the indebt
eduess changed. Thereafter its overdrafts
were as follows: October 4, 1902, $17,188.89 ;
AprU 9, 1903. $22,633.88 ; July 19, 1903. $21,-
000; December 23, 1903, $6,042.40^ in-
creased on the same day to $0,022.12 by the
transfer of a fund or overdraft on another
account known as the federation account. In
the meantime, about April 27, 1903, the
Cameron Company sold and transferred its
plant, machinery, and everything, exc^t tbe
glass on hand, to a new company known as
the Marshall Window Class Company for
$29,650. taking its note therefor. At that
time the plant was estimated to be worth
only about $80,000 and constituted all the
property the Marshall Window Glass Com-
pany had, so far as the record discloses, and
the Cameron Glass Company, having thus
sold its idaut and being largdy Indebt^, was
insolvent, so that its Indorsment constituted
no security. A deed of trust was taken on
the plant to secure the note, but that security
was obvloudy torafflclrt^.^^b^V^W^I
662
78 SOUTHEASTBBN RBFOBTER
(W.Va.
yeu tbe plant wu destroyed by Are bo that
It wbolly fiilled. At tbe time of this trans-
formation of the Oameron Glass Company
Into the Marshall Window Glass Company,
the formor owed the bank In notes abont
934,400 and large orerdrafteL Bfestdes, there
was a heaTy oTerdraft in the federation ac-
coont of the company, tor which It was lia-
ble, so that its Indebtedness to the bank was
fSO^OOO or $60,000, and it owed other debts
to other persons. The note for $29,6S0 was
substituted for the Cameron Company's notes
to that extent, leaTli^ a balance of fStTSO-
on account thereof, no settlement fbr whldi
Is shown. BoHi the Upshur Class Company
and the Wetasel Olass Company were organiz-
ed hy Braednm and Fox. The former seems
to hare been tbe older, and was largely
financed by overdrafts for the purpose In the
name of Benednm, ag^t Some time after
Its organization, Benednm and Fox sold out
thetr Interests In It to other persons for f 14,-
20O, taking a series of notes therefor, exe-
cuted by W. H. Howard as agent of the
mak^ the 'sto<^holder8 of the company.
These notes were discounted by the Citizens'
Bank of Cameron and the proceeds placed
to tbe credit of M. Benedum, agent They
were never paid, but in EJecember, 1903, a
note of the Wetzel Window Glass Company
for 910,000 on which there was a balance
due of 99,450 with some interest was sub-
stituted for a part of them. It seems that
the proceeds of the Howard, agent, notes
dlBConnted by the bank were largely used in
the promotion of the Wetzel Window Glass
Company. All these enterprises 'seem to
have be&i mere speculative ventures, having
no solid basis, and, of course. Fox and Bene-
dnm, the promoters and managers thereof,
knew all about their condition, and must
have known their assets constituted no suf-
ficient security for their large notes discount-
ed and overdrafts permitted In the bank.
Whether Benedum can be said to have re-
ceived the benefit of these sums of money,
or is responsible for having made the loans
and permitted the overdrafts with knowl-
edge of the insufficiency of the security, the
result is the same. If he actually received
the benefit thereof, he is bound to make
restoration, and, if he knowingly made bad
loans or permitted tbem by bis inattention to
the business of tbe bank, he is liable for the
losses resulting, and in neither case can he
be permitted to set off his deposits against
these liabilities, for, in the former, he would
obtain a preference, and in the latter take
the benefit of his own wrong. In view of
the facts here stated and others disclosed by
the record, we are of the opinion that tbe
circuit court did not err in holding him liable
for these notes.
These obscvvatipiu; prlndplea, and omclU'
slons apply with equal force to the overdrafts
decreed against Benedum, except In those In-
stances in which the court erred I9 holding
or finding the existence of eretdxafts. One
of these was fbr 91%081.0T, made by the
Cameron Olass Con^umy. Belated to it Is a
decree for 9224.20 as Interest on the same
orverdrafL Another Is for 918S.80 on account
of the overdraft of the S. D. Outward Farm
Oil Company account Lastly, tfaero Is one fbr
91,698,89 on account of an overdraft In the
name of H. L. Benedum, agent We poctf ve
no error in any of these. But In this eosaMc
tion thwe Is an erroneous chatge against
him as to a withdrawal of 93,920.59, pertain-
ing to the same account On Decembw 21,
1903, there was In the bank to the credit of
that account 93,139, against which checks
were drawn on that date amounting to 93,-
920.59. This oreated an overdraft of 9781.'
09 which, with the Interest thereon and on
other overdrafts to December 24, 1903, a^re-
gated 91,171.66. The checks constituted a
withdrawal to the extent of the amount of
money then In the bank to the credit of that
account, 93,139, but not 93,920.69, and an
overdraft to the extent of the difference be-
tween these two sums, 9781.59. As this is
the amount decreed as an overdraft, together
with interest, tbe error Is in the decree for
the withdrawal, and the extent thereof 9781--
59 as of the 21st day of December, 1903.
[I] On account of funds withdrawn from
the bank from November 9, 1903, to Decem-
ber 21, most of them In December, and
all after the insolvency of the bank must
have been apparent the court decreed against
Benednm sums aggregating 910,144,97, and
with their Interest at the date of the decree
to 914,709.18. They were as follows: Bene-
dum and Fox account 9560; M. L. Benednm,
agent 93,920.69; Buckhannon account U. L.
Benedum, agoit, 9750; Benedum Bros., 9235.-
70; 0. Y. Benednm, Trustee, $3,000.25; Bow-
man Oil Company, 9715; Hammet Oil Com-
pany, 9217.43; and British Columbia Com-
pany, 9756. As these accounts were under
Benedum's control, he is properly chargeable
with them in so far as the findings as to
amounts are correct He either got tbe bene-
fit of them, or was the Instrumentality of
their wrongful withdrawal. The amount
charged on account of the withdrawal from
the M. L. Benedum, ag^t account is too
large, however. Deducting from the total the
erroneous charge of $781.59, with its Interest
from December 21, 1903, to June 11, 1911,
found to be 9352.01, the amount the court
should have decreed on account of these with-
drawals is ascertained to be 913,575.48, and
the decree will be modified accordingly.
[II] The charge on account of the J. Fay
Watson transaction is sustained by the evi-
dence. Seeing the failing condition of the
bank, and holding certificates jof deposit there-
in for la^ amounts the bank was unable to
pay ln«aBh,,he took over the Watson secared
dd)t in exchange for ^,000 of these certlfl-
cates and 910,000 in cash, and so obtained a
preference ovw the other credltoriLlnhibitetf
Digitized by vjOOglC
BENEDUH T. FIRST OITIZiaf S* BANK
668
by law. TboQgb the bank may hare thua ob-
tained ¥10,000 in cash, it, with tbe other $20,-
000 represented by the certificates, was se-
cured to Benedum by deed of trust he
took over from Watson. Against this view as
to Benednm's mottve Is urged his failure to
withdraw his considerable deposits and his
continued patronage of the bank. But the
bank was no doubt unable to pay hla depos-
its, and for some montbs before its doors
were actually closed he made few additional
cash deposits of any consequence to the cred-
it of any of his numerous accounts, and some
of them were withdrawn very soon after
they had been made. No error Is perceived
in the allowance of a 5 per cent commission
to the attorneys of the cross-bill plaintiffs on
the general fund, created for the creditors
by this suit, to be apportioned and charged
against the several creditors In the distribu-
tion. But this provldon of tbe decree will be
so modified as to make It conform to the de-
cree as here altered respecting tbe rights of
M. L. Benedum. No commission to the attor-
neys of the cross-bill plalntiCFs can be allowed
on such portion of the fund as shall go to
blin. The decree In its present form may not
give it, but, as a matter of precaution. It will
be made clearer by a modification.
The action of the court In refusing to find
and hold the notes of W. J. Bryan, amount-
li^ to more than f25,000, conaUtute a part of
the assets, 1& complained of; but, as the
court merely continued the hearing and con-
sideration of the motion for such a finding
and did not finally dispose of it, the assign-
ment is not well taken.
[11] An adJudicaUon of the liability of the
bank, in the sum of ¥7.275.36, Inclndlng Inter-
est, in favor of the Securl^ Savings Com-
pany of Ck>lumbii8, Ohio, on aoooant of two
certificates of d^Kwit Issued to Engldiardt
and by him assigned to the company, 1b the
subject-matter of <me of tlie assignments of
error. Tbe eertiflcates were frandnlenOy la-
sued, but, as they are negoUable and no
knowledge of the fraud, on tbe part of the
holder, Is shown, we see tao error In ^ de*
CTBB as to that item.
[121 There was no error In decre^g sep-
arately against Benedum. Two or more trus-
tees partidpating In a breach of trust Incnr
joint and several liability to the cestui qae
trust Barksdale v. Flnttey. 14 Grat (Va.)
338; Rowe v. Bentl^, 29 Orat (Va.) ^6;
MUIer T. Holcombe's Bx'r, 9 Grat (Ta.) 665.
[1 3] The cross-assignments of error, going
to the action of the court in snstaluing the
demurrer to certain portions of the crosa-blll
and striking them out, are well taken. As
to the dividends, they were diarged to have
been declared and paid, not out. of any prof-
its of the bank, but out of the capital stock
and to its serious Impairment Tbe trial
court seems to have based its action In bub-
lalnlng the exc«$)tlons to these portions of
the cross-bills on the theory <tf indeflniteuess
and uncertainty. In our opinion this theory
is untenable. A fact was ctiai^ed, without
the details, which made the declaration and
payment of dividends improper and unlawful.
Apparently the subsidiary facts were not
within the knowledge of the cross-bill plain-
tiffs, as they say, and were within tbe pecul-
iar knowledge of the officers of the bank, of
whom the plaintiff Benedum was one.
[14] The other two cros»-assIgnments of
error involve the question whether or not
tbe statutory liability of stockholders for
amounts equal to their subscription of stock
and in addition thereto Is available In a cred-
itors* suit against an Insolvent bank. In
some jurisdictions It Is held they are not,
because the statute was designed for the pro-
tection of creditors, and not the bank, and
does not contemplate the recovery of these
additional amounts as part of the assets of
the bank. Where the statute Is so construed,
each creditor must sue separately and in-
dividually for the amount of bis loss. Though
the terms of our statute are very general
and Indefinite, we'are of the opinion that the
legislative design was to make this liability
a fund to which creditors may resort col-
lectively for satisfaction of their claims In
full or pro tanto,. as the case may be. The
whole spirit of our law is against preferences
and inequality in the distribution of tbe as-
sets of an Insolvoit person or corporation
and collective terms are used ^ statute.
It says: "The stockholders of every bank
* * * shall be personally liable to the
creditors thereof over and above the amount
of stock held by them respectively, to an
amount equal to their respective shares so
held for all liabilities accruing while they
are such stockholders." If this fund Is in-
tended for the common benefit of the cred-
itors, as we think it Is, it is virtually, though
not In name, an asset of the bank, for It Is
distributable along with the other assets. It
could not be apportioned and distributed
without referenOe to other assets. Hence It
becomes necessary, In the apportionment
thereof, to marshal the assets, and, for the
purpose, bring all the funds together, from
which it follows that a fraudulent transfer
of stock by a stockholder to avoid ttila lia-
bility to the creditors in general and also
the rigbt to invoke the benefit of the stat-
ute against all stockholders are germane to
a, bill to wind up the business of an Insolroit
bank and distribute Its assets.
[15] We think, therefore, the court erred
In sustaining the exceptions to tbe portions
of the cross-bills, relating to fraudulent
transfers of their stock by Benedum and
E^oz and tbe invocation of the statutory
liability of the stockholders. What has been
said on the subject of postponement suffices
to sustain -the action of the court In refus-
ing to postpone tbe deposit account of Boie-
dum Bros.
The finding of tbe commissioner that the
Camden Pottery Compaigfg^|j^^v>5R?yel^lC
661
78 SOUTHKASTIDRN BBPOBTEB
(W.Va.
beld by Sadie U. Benedum as collateral se-
curity for a note of that company la chal-
lenged, because M. L. Benedum, speaking
from recollection in the course of his testi-
mony, said he bad bought It. We agree with
the trial court that this is not sufficient to
overcoue the commissioner's finding. Bene*
dum had Just said he did not remember
what accounts he had purchased. The com-
missioner goes into details, showing how it
Is held by another person. The commission-
er charged Benedum with a note of 0. B.
Harper, upon the statement of the receiver
that he had a pendl memorandum signed
by Benedum, In which be had guaranteed, or
agreed to pay, the nota, Not having It with
him, the receiver did not file It as a part
of bis deposition at the time nor at all. The
court sustained an exception to the finding,
bat did not reserve to the cross-bill plaintUfs
or the receiver the right to file It hereafter.
Since there is evidence of the existence of
the paper and conseqneat probability that
the claim can be proved, this right should
have been reserved. Hager v. Melton, 66
W. Ta. 62, 66 S. B; 18. In other respects
the ruling is correct, and as to this It will
be corrected.
In so far as the decree of Jone 24, 1911,
denies the appellant M. L Benedum right of
participation in the distribution of the assets
of the bank, respecting any of the several
sums adjudged or decreed to him lu any ca-
pacity or on any account, until the other
creditors of the bank shall have been paid in
full, and denies to him the right to set olf
against his deposits In said bank the $1,500
note and the $100 note, hereinbefore men-
tioned. It will be reversed, set aside, and an-
nulled ; and In so far as it requires said Be-
nedum to pay, on account of withdrawals and
interest thereon, the sum of $14,700.18, and
purports to allow the attorneys for the cross-
bill plaintiffs a commlsblon of 5 per cent on
so much of the fund created in this cause for
the benefit of creditors as Is collected or re-
ceived by the special receiver under It, sub-
ject to certain specified exceptions, the same
will be modified and corrected, so as to re-
quire said Benedum to pay, on account of
withdrawals and Interest thereon, the sum of
$13,676.48, and SO as not to allow snid com-
mission to said attorneys on such portion of
said fund, or any part of such portion, as
shall be payable to said Benedum in the dis-
tribution thereof. Said decree will be fur-
ther modified and limited so as to leav^ opva
the question of said Benedum's liability on
the. C. S. Harper note. In all other respecta
the same will be affirmed.
'The decree of the 28th day of April, 1006,
is reversed, set aside, and annulled in so far
as it sustains the demurrer and exceptions
to certain portions of the answers and cross-
bills of Gea N. Huffman et al. and J. M.
Marab <t aL» and strikes out the same. In
all .other reqpects said decrte is affirmed.
Appeal of John A. Howard. Special Becelrer.
til] The aiveol ot John A. Howard. «pe-
clai recover, complaining of ttw dlBaUow-
ance to him of credit In Us account, f6r oa»
tain attom^'s f6es paid oat on acooont of
the ooUectlon of oertaln claims^ was im-
providently awarded and should be dismissed.
Deuidng the evidence to sustain these claims
unsatisfactory and Insufficient, the court dis-
allowed than <mly provisionally, e^reasly
declaring In tl^ decree that none of ooch
matters were finally passed upon.
Appeid of Angust Wendt
A decree entered November 8, 1911, al-
lowed the special receiver $1,000 out of the
funds In his hands on acooont of compensa-
tion for his services, but reserved for future
adjudication the question whether the re-
celver's compensation and expenses shall ulti-
mately be decreed against the plaintiff or
paid out of the fund. From this decree
August Wendt has annealed. Bis appeal was
improvidently awarded. The decree Is not
final, and does not settle any principle nor
change the title or possession of propaiy.
It Is a mere proviskaial allowance oat of a
fund In the costody of the conrt
cnw.va.ni)
STATD T. TINOYITS et oL
(Supreme Court ot Appeals ot West Vligliila.
May 20, 1913.)
(8$lMma H the Ocmt.)
1. PLEADINQ a 486*)— SOEBB FaOU»-AlMB
BT VEEUICT.
Upon a writ of scire, fadai for award of
execution on a jndgmeot previously recovered
and which recitM' said jadgmeDt, the plea of
mill tiel record, though proper, and concluding
with a veri^tion, but Introduclog no new
matter, amounts simply to the geDeraltsaoe, sad
omission to enter a similiter or general reply
is cured after verdict or finding of the court
[Ed. Note.— For other caaee, see Pleading
Cent Dig. 11 1482. 1483; DeoTDIg. | 430.«1
2. COUBTS (I 117*)— BlOOBD — IXPSaOKHBNT
BT Affidavits.
The record of a court having Jurisdiction
of the partt(>8 and of the subject-matter, and
the facts recited therein upon which final Judg-
ment was proDoanced, cannot, after the end of
the term, be Impeached by certificates of court
officers or ex parte affidavit of the parties.
[Ed. Note.— For other cases, sea CoortL Cent
Difr I 874;.Dee. Dig. 1 117.*]
Srror to Ctamlt Coml^ Lewis Ooanty.
Action by the Stete against Isadore Tln-
oTlts,' W. W. Bronnon. and others. Jodg-
Doit for tfolntife, tuid defendant Bnumoa
brings &TOC. Afflnned.
W. G. Bennett, of Weston, John W. Davis,
of Clarksburg, and B. S. Stathers, of Weston,
for plaintiff in error. Wm. O. Ccmley, Atty.
Gen., for tiie Stata
MILLER, J. The present writ of error,
obtained by defendant W. W. BrannoB,,ls to
•For etter esMs ■•• ums lople osS ssotton MUKBBB ia Dm. Die * An. Dig. kWi^
666
ft Judgment of DecraibO' 3, 3910, airardlnc
execution upon a former judgment pronounc-
ed against Mm on July 3, 1807, and iqxui
wMcb latter judgmoit no execution luid been
preTion8l7 Issued.
[1 ] The first point urged la that the Judg-
ment was pronounced without Issue Joined
on defendant's plea of fwl ttel record, this
plea, as it is claimed, and as the order re-
cites, concluding with a rerlficatlon. We see
nothing of merit in the point The writ of
sdre facias recites the date, the amount, and
the parties to the Judgment, recovered In the
same court, and on which execution was
awarded. The writ is both summons and
declaration in such cases. 35 Cyc. 1VS2, And
though the plea of nut Hel record is a proper
defense, Greathouse v. Morrison, 68 W. Va.
TU, 71^ 70 S. EL 710, yet in this case it
amounts to nothing more than the general
laane; it Introdnees no new matter. Henry
T. Ohio BiTer R. S. Co^ 40 W. Va. 234, 21
S. B. 883. And thoofi^ concluding with a
verlflcatton nothing but a similiter was call-
ed for to cqmidete the issue, Hogg's PL &
Forma, 203, dtlng for tbe proposltton. Hunt
T. Mayfleld, 2 Stew: (AU.) 124; and HaU t.
WUUams, 6 Pick. (HUk) 2S3. 17. Am. Dee.
SSa. It la weU settled ttiat when tbe general
issue has been pleaded, but there has been
Do idmillter, the verdict cores the error, and
tbe omission of the similiter will not be per-
mitted as error in the appellate court 8
Bne. Dig. Va. & W. Va. B^. S96L
[1] Treating the Issue as properly made
op on the plea, the next point Is, that there
was no eridraee offered to sivpwt the writ
ot dedaratlon. In support of this conten-
tion plaintiff in error relies mainly on the
Judgment order awarding the execution and
certain ex parte aflldaTlts attempting, to Im-
peach verity of the snpplementol recwd
brought up (m certlorarL Tbe Judgment or-
der relied on, after reciting the pleadings,
says: "And tbereapon, the Court upon in-
speetlfm of tike said writ of adre fadas,
orders and considerB that tbe State may
have execution against the said W. W. Bran-
non, upon the Judgment heretofore entered
herein for the sum of Three Hundred Dol-
lars," with interest and costs. It la daimed
that this Judgment is conclusive of tbe fact
that the court without evideiice, and upon a
mere Inspection of the writ, pronounced the
Judgment complained ot We do not think
the redtal In the judgment concluslre. Be-
sides the supplemental record shows thst au
order was entered December Q, 1910, at the
same term of the court, In and by which It
is certified that tbe record of the Judgment
upon which execution was awarded, was re-
ceived in evidence and considered by the
court Ex parte affidavits are filed here
seeking to impeach the verity of that record,
and tending to show that that order of De-
cember 6, 1010, was not In fact made in term.
bnt after adjournment, and after tbe original
record filed here had been made up and cer-
tified by the clerk of the circuit court It
is conceded, however, that this objectionable
order was entered on the order book before
the adjourning order was signed by the
Judge. Can the solemn records of a court
be so Impeached? We think not To so hold
would be against all authority, and would
be dangerous In tbe extreme. We do not
think the affidavit or certificate of the Judge
himself can be received for this purpose, cer-
tainly not in an appellate court In this
case a certificate of tbe Judge filed by plain-
tiff in error among other things recites:
''When I endorsed said order for record, I
supposed and believed it represented correctly
what had transpired In court There being
so many matters befk>re me In court I could
not r«nember in detail all that occurred In
any particular case, and cannot remember
what was read In evidence, or by wbom read,
nor do I now say that the recitals in said
ordOT are incorrect but do remember dls-
tlncUy, that after the entry of the order of
which Mr. W. W.' Brannon complains, he
became earnest and insistent In bis objec-
tions thereto!,**
The rule is well settled that the record of
a court having Jurisdictloix ot the parties
^nd subject matter, is a verity and cannot
be attacked. Braden v. Beitzenbergw, 18
W. Va. 286; Stato t. Vest 21 W. Va. 706;
Bank v, Houston, 66 W. Va. SS6, 848. 848;
66 S. B. 465.
We must, therefore, affirm tbe Judgment
LY2TCH, absent
(n V. Va. SU)
UBAN8 V. BABNES et *L
(Snprttoe Oonrt of Aroeals of West ^Egiola.
May 13, 1913.)
(ByUabt bv *k« Court.)
AnATBHKfT AND BaVXTAA (| 78*)— DSAXH OV
Joint Duxndant.
The common-law rule abathig an action on
the death of one of two or more joint defendants
Is not w> altered bj section 2 of chapter 127 of
tbe Code of 1906 as to aathorise revival ot the
actloa against the penonal representative of
the deceased joint defendant Said section
merely prevents total abatement and enables
the plaintiff to keep the action alive against the
surviving defendants.
[Ed. Note.— For other cases, see Abatement
and Revival, Cent Dig. {| 40a-411. 417-428;
htc Dig. I Vs.*]
Error to Circuit Court Taylor County.
Action by Nathan H. Means against Jos-
eph Barnes and others. Judgment for plain-
tiff, and defendant G. H. A. Kunst adminis-
trator, brings error. Beversed and re-
manded.
Jphn L. Hechmer, of Grafton, for {htaintiiff
in error. Warder & Bobtnson. of Grafton,
for defendant in error.,.
- •pyr other cmw see uma toplo aad Hctloa NVIIBBR In Deo. Dig. ft Am, pis., Kar-Ko. BerlM Bm't
Digitized by'vlj*
666
78 SOTITHBASTSRN BEPOBTEB
(W.Va.
POFFBNB UtOIIIR, P. The plaintiff In er-
ror Is ttie administrator of Adolphns Ann-
strong, deceased, whom the d^endant In er-
ror sued Jointly with one Joseph Barnes for
the recoTeiy of a debt Pwdtaig the action,
Armstrons dl^ and titese was an attonpt to
rerlve tita action against his administrator,
and an abatement of the action as to Barnes.
An order of reriTal was entered on the mo-
tion of the plaintiff before a writ of scire
fiidas was sued out This, ctf conrse, avall--
ed nothing. Afterwards a farther order was
entered, redtlng the alleged revival, and
abating the actton as to Barnes. After the
sdre facias had been served and returned
there was another order of revival agaiiist
the administrator, followed by a rerdlct and
judgment
At common law, a total abetment of the
action was occasioned by the death of one of
two or more Jolat defendants. This result
Is avoided by a statute (Code, c. 127, | 2)
saying the action may proceed against the
others, If the cause of suit anrvlTes against
them. In Hennlng v. Famsworth, 41 W. Va.
548, 23 S. E. 663, the statute was relied up-
on as autborlzlt^ and requiring the salt to
proceed against the surviving defendants and
the personal representative of the deceased
party. Eteclarlng this position untenable, the
court proceeded to Interpret the statute ful-
ly. In 80 far as it says revival against the
personal representative of the deceased par-
ty is not authorized, the opinion Is only per-
suasive authority, since that proposition was
not involved In the case. Its reasoning, how-
ever, Is clear and sound In principle. By the
common law, the death of one of two or more
Joint defendants occasioned a total and ab-
solute abatement of the suit, and nothing fur-
ther could be done In It against any of the
parties. The statute, In terms giving only
partial relief from this common-law rule, en-
ables the plaintiff to keep the action alive
against the surviving defendants. Beyond
this its terms do not reach, and the court Is
powerless to add anything to them. This
Is the true interpretation of section 2 of
chapter 127 of the Code, and section 4 of
that chapter does not undertake to say In
what cases, there may be a revival. It
deals only with the mode and manner of
revival, as Judge Brannon has well said.
The text of Barton's Law Practice, voL
1, p. 252. I 79 (2d Ed.), Is applicable to
the Virginia statute, which la entirely dif-
ferent from ours, expressly ivovldlng for
revival of the action against the personal
representative of the deceased party and
prosecution thereof as a separate action
against him, as though the deceased had
been the sole defendant
Tlie second clause of section 2 of the stat-
ute relates to sole, not joint, parties. Death
of Joint parties Is dealt vrlth by the first
clanse. The New Jersey statute, interpreted
In liaher t. AUen. 88 N. X Law, 208. in all
sabatantlal respects Ufee ours, was analysed
and applied tn conformity wltti the rules and
princiideB here declared. Power to revive
against the personal representative <tf Uie de-
ceased Joint deftedant was doiled. Dlaom-
tlnuance of the action was declared as the
legal resalt of the abatement as to the nir-
vlving defoidant In the statot^ two aee-
tlons were devoted to the snbject-matter of
our single one, and the court said the first
r^ated to Joint parties and the other to aole
parties. Further authority for the ooncla-
.don here announced will be found In 4 mn.
Inst 974; S Ency. PI. & Pr. 886; New Ha-
ven, etc, Oo. V. Haydai, 119 ICass. 861;
Oayle r. Agee, 4 Port (Ala.) 607.
As the death of Armstrong terminated ti»
action against him and his estate beyond
power of revival, the judgment will have to
be reversed, the verdict set aside, and the
action dismissed as to the administrator of
Armstrong's estate.
cn W. Va. H0>
PBTEON T. HOIJiBT «t aL
(Supreme Oourt of Appeals of West Tbflida.
May 27, 1818.)
(Syllahui hy Me Oourt.)
t HuinciPAL CoBPOBA-noiTB (f 48*) — Bi-
PABTISAN GOUnSSION.
The charter of the dtr of GhaiiestOD. pro-
viding for bipartisan commission government;
does not limit par^ representatioo to the polit-
ical parties establlsbed and maintained for
general purposes. For any municipal election
held under it new partiea may be formed oat of
membera of pre-exlitent parties.
[Ed. Note.— For other cases, see Manidpal
Corporations, Cent Dig. H 12t, 128, 18(K-1^
Dec. Dig. { 4&*J
2. MumoxPAK. OoiPon&TxoirB (| 48*) — Cirr
OOCnOXIi— MUBSBBHIP.
A candidate of a new party, entitled to a
seat in the city council under the terms of said
charter, cannot be denied such light because the
party he represents was formed by membeis of
an old part; and bears Its name, qualified
the word "independent."
{Ed. Note.— For other cases, see Uonidpal
Corporations. Cent Dig. H 127, 128, 180-133:
Dec Dig. I 48.«) " •
Petition by a P. Peyton for writ of man-
damus against J. A. Holley and others. Writ
awarded.
Mollohan, HcOlntte & Mathews, of
Charleston, for petitioner. John A. fniayer,
T. S. Clark, and L. D. Tickers, all of Charles-
ton, for respondents.
POFFENBARGER, P. In the dty election
held in Charleston, April 21. 1913, undw Ita
charter providing what Is known as the com-
mission form of municipal government candi-
dates were nominated, under the general elec-
tion law, applicable to dty elections, on five
tickets, Democratic, Independent Ddnocratie,
Independent Republican, Progressive, and Re-
publican. Candidates were placed on all
•For otiwr «asM ■•• ■sine tqtle and MotioB HUHBKR la Dm. Dls. * Am. Dig.
OABRiaON T. VILLAOB OF FLATWOODS
667
of tbem for membera of the council, each
ward being ^titled to elect four, not more
than two of whom, belonging to the aame
political party, are disable to Hate In the
council at the same time. Under the law, the
four candidates receiving the highest number
of votes are declared elected, provided only
two of the four can be taken from the candi-
dates of one party.
In the Seventh ward, the two regular Dem-
ocratic nominees had very considerable leads
over all otbers. Next to them came H. S.
Matthews, a Progresdve candidate, with 207
votes. Next to him stood C. P. Peyton on the
independent Democratic ticket, with 100
votes, and then L. D. Vlckers on the Pro-
gressive ticket, with 170 votes. On this re-
sult, the board of affairs, acting as a can-
vassing board, declared Matthews and Vlck-
ers elected, along with the two candidates
on the regular Democratic ticket, leaving
Peyton out, with more votes than Vlckers
tiad, because he bad always affiliated with
the Democratic party in national, state, and
some local elections, and had run on what
was known in the dty election as the Inde-
pendent DemocratlG ticket Peyton asks a
writ of mandamus to compel the board of af-
fairs to reassemble as a board of canvassers
and declare him elected.
11,2] A voter may belong to one political
party for state and national purposes and an-
other for municipal purposes, and his party
alllllatiODs generally do not class him polit-
ically as to municipal elections. Hasson v.
Chester, 67 W. Va. 278, 67 S. B. 731. And
a new political party can be formed at any
time for a particular election or for partici-
pation In elections generally. Morris v. Bal-
lot Cktmmlssloners, 76 S. E. 446. These cases
assert the right of such parties to have the
names of their candidates printed on the bal-
lots, when nominated as provided by law.
Peyton was so nominated as a caodidato of
a new party. That his party may have been
composed entirely of former Democrats is
Immaterial. In the general election of last
year» we had a new party composed of for-
mer Bepubllcans, and in 1896 there was a
new party, called the National Democratic
par^, conq>osed entirely of former Demo-
crats.
Nothing perceived In the charter of the dty
of Charleston modifies this general law. Of
course^ It Is Intended to secure bypartisan
government; bat It does not comtemplate In-
destructlblUty of mating parties, nor en-
deavor to prevent the birth of new oneo. Nor
does It contain any eipresaion of Intent to
limit tlie right of party participation in dty
elections to the political parties maintained
for general political purpoeea. To give the
statute such a construction, It wonld be nec-
eaaary to depart from Ito language and treat
it aa containing terms the Leglslatore did
not use.
If bad faith on the part of membera of an
existing par^ In nominating candidates as
representatlvee of a pretended, not real, new
party would vary the rule, we have no proof
of it here, and It Is, therefore, unnecessary
to enter upon an inquiry as to the rffect of
such conduct.
The relator challenges the constltutionaUty
of the statute, declaring it to be within the
inhibition of test oaths and other restrictions
upon individual right; but nothing presented
here calls for an inquiry as to its validity.
It Is not necessary to a decision of the case,
and courts will not pass upon that kind of
a question, except in cases of such necessity.
EdgeU V. Conaway, 24 W. Va. 747; Shepherd
V. Wheeling, 30 W. Va. 479, 4 S. U. 63B;
Rutter V. SulUvan, 25 W. Va. 427.
These conclusions result In the award of a
peremptory writ asked for.
(71 w. Vk. W)
GABRISON V. VILLAGE OP PLATWOODS,
MOORE V. SAME.
(Supxent Court of Appeals of West Virginia.
May 18, 1918.)
(Syllahiu hy the Court.)
Dedication (j 44*) — Evidekck — Sufficibwct,
Evidence AeM insufficient to establish dedi-
cation of land to public use.
[Ed. Note.— Por other cases, see Dedication,
Cent Dig. !| 8&-87; Dec. Dig. i 44.*]
Appeal from Circuit Court, Braxton
County.
Suits by G. H. Garrison and by one Moore
against the Village of Flatwoods. Decree
for defendant In both actions, and plalntift
appeal. Bevened. and decrees rendered.
Jake Fisher and Hlnes ft Kelly, all of Sn^
ton, for appellants. Hall Bros, and Hay-
mond & Pox, all of Sutton, for appellee.
BOBINSON, J. The cases styled above
are Identical. The Issue in the one la the
same as that In the other. By agreement
the same evidence has been made to apply to
both. It Is proper therefore to dispose of
than together.
JfCadi anit has for Ibi object the perpetual
joining of the town authorities tnm tak-
ing the enclosed and improved ground of the
plaintiff theredn for the widening of a street
Two adjoininc li^ oa» owned 1^ Garrlaoi^
and the Other by Moore, abnt on a atreet
called Bqolres Street Tbeae lota to the fall
extent now claimed by the pUUnttffs in these
anlto bare long bea In their poaseaaion, w
in tlie posseaslon of those un^tor whom
they hold, under exclusive fence enclosure.
Squires Street, running iv the side of Oie
two lota, for a long time haa been laid ont
and need as a street about twenty feet wide.
The town authorities, tdalmlng that Squiree
Street had been dedicated as a street thirty
feet wide by the owner of the farm m whldi
Dig. Kv-H^JfRI^ rf^ JMft'O^gte
•rer 9tb»t easM ssine topis and Mctloa NUMBBB In Des. ZHg. 4 Am.
668
7S SOnTHBASTBRN BBPORTBB
(W.Ta.
the town grev np, were proceeding to widen
It to thirty feet by taking & atrip of each
lot, when Qarrtson and Moore by tiieae anlts
obtained InjmictlonB. Pleadings and proofs
were fnlly submitted in the cases, and upon
a hearing the Injunctions were dissolved and
the plaintiffs were ordered by the decrees to
permit the widening of the street
A careful review of the record leads us
clearly to the conclusion that tlie court erred
in denying relief to plalntlffa. It will serve
no useful purpose to detail and discuss mnch
of the mass of facts and circnmstaDces
shown. Out of it all there prevails that
which is dedslTe agalnat the town— a dedica-
tion to the public of the ground sought to be
taken is not proved.
Susan C. Squires owned the farm out of
which the lota and the street were laid off.
The town rests Its claim on a dedication by
ber. She had certain building lots surveyed
out of the farm in 1889 by James Morrison,
long before the incorporation of the munic-
ipality. If a plat of this work was ever
made, it was never recorded, and no lots
were ever sold by reference to It Morrison
laid off a street where Squires Street now
Is, and M« reoottecUon U that he made It
tliirty feet wide. The western line thereof—
the one now in dlspute—waa ran by him
where the town now Insists it should be.
Morrison says that it came considerably In-
tide the enclosure of the garden and yard of
the farm home, np to the well curb, that
Susan C. Squires objected, and that she and
her husband had words about snch location
of Oie line, but that they decided to let the
line remain tliere. Another witnesa testifies
that he heard Mrs. Squires protesting against
such location of the Un^ but does not know
what was done In the end. ^nils la absolutely
the only evldrace toidlng to bind Mrs.
Bqulres to a location of the western line of
Bqnites Street over on what is now the prop-
erty of plaintUEs. Some declarations of her
husband that the street was to be thirty fe^
wide are shown, but contrary declarations
by taim are also proved. Tbe iwoperty was
tbe separate estate of tMs married woman,
ttarely all tiiat we liave seen so ftr woald
not take her land from her. Moreover, the
street was never thrown open according to
tbe hne to whl^ Mrs. Sqnlrea made olijee*
Hon. Some time after MorrlAm's mirTer, a
way, that which has long been used as
Bqulree Street, was opened from the farm
house down to the turnpike. Bo Mrs. -Squires
enforced her objection to the line Borveyed
by Morrls(nL She opened the way some etght
A* tea feet narrow«r than he had laid It off,
and made It eonform to tile yard and garden
foice. Her unequivocal act In laying oat
this way was to make it of the width ttuit
did not cficrooiih on the land whleih la now
the lots of plelntifla.
Moore hdw owns what was the farm
house yard and garden, and Oanlson owns
the land extending therefrom to the pike, all
adjoining the west side of the way as actu-
ally opened to the public by Mrs. Squires.
The mere running of the line by Morrison
plainly did not bind Mrs. Squires Irrevocably
to let tbe public have her land in accordance
with It. Besides, no plat recorded by her, no
deed made by her in the sale of lots, ever
recognized Squires Street as being located toj
the Morrison line or as being thirty feet wide.
Indrad no deed by her for any lot on the
east of Bqulres Street ever called for such
a street at all, or for any street where
Squires Street now is, though she conveyed
lots which now adjoin It Her only recogni-
tion of Squires Street In a deed was In the
conveyance made by herself and husband to
tbelr son for the lot In the angle at the Inter-
section of Squires Street and the pike, wMdi
lot is now a part of the property owned by
Garrison. This lot of course is on the west
side of that street But she did not recognize
the line surveyed by Morrison when she
xoade this deed in 189S. She therein con-
formed to the Une of the street as she had
opened It This t&ct conclusively appears
from the evidence. The deed calls for a poat
at the comer of the pike and Squires Street
The surveyor who made the survey for the
deed locates this post several feet to tbe east
of the Morrison line. Its location corresponds
with the location of Squires Street as actu-
ally opened by Mrs. Squires. Here again
she by the deed to ber son Ignored the Une
run by Morrison. Again she eq;treased bar
disapproval of It
But the town says that this deed by Mrs.
Squires, calling as it does for Squires Street
is a dedication of that street As betweoi the
grantor and the grantee it is a dedication.
As to the public; under the drcnmstances
proved in these cases, we need not say. How-
ever Obat may be, It Is not a dedication of
that street as one thirty feet wide. It may be
that by opening Squires Street and by call-
ing for It In this deed, intentUm to dedicate
Is shown on tlie part of Mrs. Bqnlres. But
she opened it only about twenty ftet wlde^
and her deed recognizes It exactly In the
same way. Stie did not open it on that wlilch
Is n6w the properties of Garrison and Moore,
nor did she In the deed to h« son colling
for Squires Street include any of the lot
now belonging to Garrison. This deed to the
son is plsinly against a dedication of tbe
atrip which the town seeks to open. Tet that
deed ahd the Une by Morrison is really as
Aiueh as the case discloses to prove dedlca-
tton on the part of Mrs. Squires of a street
thirty feet wide.
The gist of the town's contention la that
since Mrs. Squires recognised Squires Street
In the deed to her son, since she conveyed
other lota tor wlilch it would he omvenlent
oatl^ and since Morrison bad surveyed It
thirty feet wide, It was thus dedicated as a
public street thirty feet wtd& thereby in-
Digilized by VjVJOV iL
W.VaJ
LTKOH T. MiatRIUi
669
dnding a strip of Ow properties of plalnttflk.
Bnt bow can tlie Morrison snrrey control flie
call for SQolres Street In ttw single deed
calUng for tbat street, wben It !a eom^slyely
shown that the rarrey from Which the deed
was made does not follow the Blorrlson Une,
bnt follows the way as actually opened and
need. While the deed may be erldenoe 4)t
a dedication of Sqnlres Street, it certainly
can not be taken to recognize Squires Street
as Including part of the land vrtdch the deed
itself conveys. Further, the fact that Snsan
C. Squires conreyed other lots that would
have more convenient access by Squires Street
afCords no evidence of dedication — ^particulars
ly no evidence of the width of that street
She conveyed these lots by no fixed or re-
corded plan and gave no recognition In her
deeds to the existence of any such street
Ber only mention of sach a street In a con-
veyance la In the deed to her son. And, as
we have shown, the located call of that deed
for Squires Street is squarely against the con-
tention of the town. It places Squires Street
right where plalntUfs In^st It should be.
The decrees will be reversed. The reUef
prayed for by plalntUfs will be granted by
decrees entered here.
(n W. Ta. EU)
LTNOH et aL V. MBRBILL et aL
(Snpteme Court of Appeals of West Tifglnla.
May 20, 1913.)
(BvUahuM lut th« OxmrtJ
1. Balis d ei*)— OoNgmuonoH— Bimutoht
Sale.
Whether a tale of personal property is
complete, or only executory, is to be determined
from the intention of the parties as gathered
from the contract, the sitaation of the thing
sold, and the circumstances aarrouDdbag the
sale.
rBOL Nota.-r-For other cases, see Sales, Cent
Dig. H 163-170; Dec. EMg. I 61.*]
2. Sales (1 109*)— PASsiice or Tma.
Where the goods sold are saffidentiy des-
ignated, 00 that no question can arise as to
tlie thing intended, it is not absolutely neces-
sary to the passing of tltie that they should
be u a deliverable condition, or tbat the quality
or quantity, when the sale depends on either
Or biotb. flhonld be determined. They are mere
drcumstances indicating intent but ore not
conclusive.
TEd. Note.— For other coses, see Sales, Cent.
Diir. H 016-628; Dec Dig. | 190*]
EkTor to Circuit Court Wirt County.
Action by J. S. I^ynch and others against
Will Merrill and otbera Judgment for
plaintiffs and defendant little Kanawha Log
A Tie. Company brings .error.. Reversed, and
new trial granted.
George W. Johnson, of Martlnsburg^ and
William Beard, of Parkersbnrg, for plain-
tiff in error. U H. Bamett. of Glenville,
and Brannon & StatheTO, of Weston, for de-
f«nda&ts In error.
DYNOH, X This Is B writ of error ob-
tateed by tbe Uttle Eanawba Log k Tie
Company to a Judgment ftor plaintiffs. The
action, originating before a Justice, Is to
determine tbe right to tbe possession of S2
sawlogi^ if to be bad, and. If not to re-
cover their nine and damages for detention
ttiereof.
Tbe defendant log and tie company claims
title to tbe logs under a contract wiOt Beall
dated February IS, 1909, whereby at an
agreed price per cubic foot Beall sold the
logs to It, to be "rafted*' or deUvered as
rafted at the month at Dnck run In the
Little Kanawha river, tbe company to fur-
nlfdi, and It did fnnrisb, "chain dogs" and
anchor ropes for the purpose. Tbe logs be-
ing cut at the date ef the contract Beall
proceeded wltb the work; bnt tbe exact date
of completion Is not shown, though seme of
the witnesses say the raft was completed in
a floatable condition as early as April 20th.
If then completed, the logs ware rafted at
an earlier date.
The plaintiffs trace title to the logs
through a sale by an officer under an execu-
tion against Beall received at 4 o'clock p. m.
April 19tb, and levied about May 10th; the
sale being made May 2l8t
Tbe summons as issned fixed the value of
the logs at $240 and damages at (100, tbe
aggregate of wblcb exceeded the amount for
which a Justice could render Judgment Be-
fore appearance of defendants Merrill and
Petty, by plea or otherwise, except to object
thereto, plaintiffs with leave amended the
summons by redudng the damages to $60,
thereby bringing the total within the Juris-
dictional amount Defendants then entered
the general issue of non detinet and, there-
after, according to the record, moved to
dismiss for want of Jurisdiction, and, on
denial thereof, proceeded to trial, ending in
a Judgment fot plaintiffs.
On appeal to the circuit court defendants
Merrill and Petty, disclaiming title to the
logs and averring title thereto in the log and
tie company, the latter, purspant to an or-
der requiring it to appear, state and defend
its title, If any, thereto, appeared to the ac-
tion, and likewise moved a dismissal thereof.
Upon the refusal of the motion, the court, at
the instance of the company, continued the
case until the next succeeding term, wben a
trial was had, resulting in a verdict and
Judgment thereon for plaintiffs.
The defendant company complains of the
court's ruling an the motion to dismiss, and
cites In support of its contention former de-
cisions of this court Bnt tbe cases cited
do not and could not discuss the question,
because It was not therein involved. They
hold, as will appear from examination, that,
when there Is conflict between the amount
claimed or proven and Uiat stated In the
summons, the latter, and not the former, de-
termines the right to maintain the action.
•Tor oow CUM MS same tople and sfetion NVlCBBk In Dm. iHb. * Am. Dig. KvM«e8«3«^ W
670
78 SOUTHBASTEBN BBFOBTBB
(W.T«.
The cue of Hynds Far, 70 Iowa, 433, SO
N. W. 883* dted, does tend In some d^iee
to MapDort tbe Tlev urged by the company.
Bnt that case doee not dte any authority,
nor do the tacts stated tbueln correspond in
all respects with the facts of this case. In
sc far as It holds that the parties may not
waire the Irregularity, If any. It does not arc-
cord with our views. Under the drcom-
stances of this case, to dismiss would make
substance yi^ to mere tedmlcallty, and to
sustain the motion after two trials, in both
of wlilch tlie parties Joined, would operate
to delay, if not deny, speedy termination of
the litigation sought by this action.
t1»2] The trial, however, proceeded upon
tbe wrong theory, as appears from ttie In-
structions in bills of exception 8 and 10, and
thereby the Jury may hare been and proba-
bly w«8 misled. The first Instruction told
the jury, In substance, that if anythlug re-
mained to be done, such as measuring, count-
ing, and branding tbe logs, title thereto
could not vest In the defendant until they
were measured, counted, and branded, omit-
ting entirely the Intention of the parties as
to the time at which title should vest In the
purchaser. Morgan v. King, 28 W. Va. 1, 57
Am. Rep. 633; Bank v. Napier. 41 W.. Ta.
481, 23 S. B. 800; Bnsklrk v. Peck, 87 W.
Va. 360, 60 S. B. 432; JnsUce v. Moore, 69
W. Va. Bl, 71 8. E. 204, Ann. Caa 1912D,
17; Moore v. Patchln. 76 S. E. 426. "Wheth-
er a sale of personal property is completed,
or only executory, Is to be determined from
the intention of the parties as gathered from
tbe contract, the situation of the thing sold,
and the circumstances surrounding the sale."
"Where tbe goods sold are sufficiently desig-
nated, BO that no question can arise as to
the thing intended, it la not absolutely neces-
sary • * * that the goods should be
in a deliverable condition, or that the qual-
ity or quantity, when the price depends up-
on either or both, should be determined;
these are (^rcumstances Indicating intent,
but are not conclusive." Hood v. Bloch, 29
W. Va. 244. 11 S. E. 910. This instruction,
omitting, as It did, this essential element of
intention, should not have been given; nor
should the one contained in Mil of exceptions
10. The facts did not warrant tbe latter.
The logs were hauled and substantially,
though perhaps not skillfully, bound together
in a floatable condition about the date of the
execution under whltA plaintiffs trace tttl&
They were, as already stated, at first levied
on as a "raft," and not as separate logs. If
so, th^ had been hauled, and doubtless raft-
ed, although it may be that some of tbe logs
purchased by defendant In addition to those
Involved In this action were not hauled at
tliat time. Bnt they were not levied on or
sold under the execution, and therefore are
not now involved.
Defendant's instructions contained in bills
of ezcqttton IS and 16 shoald have beea
gtvea, for reasons bmtofore stated. Tbey
properly i»roponnded tbe law aiq^llcabla to
the facts of the casa
The court should have permitted tbe wit-
ness BeaU to answer the questions by de-
fendant's counsel, shown in bills of exceptloa
2, 3, 4, 0, and 6, because plaintiffs* witnesses
J. M. Lynch and M. B. Summers testified to
tlie same matter, and no suffideut reason ap-
j>ear8 for refusing Beall's on the same sub-
ject If a proper inquiry, Beall shoald with
propriety have had an opportunity to admit
or doiy tlieir statements.
Invalidity of the sale under the execution,
because the purchaser was not presmt at the
time of sale, is also relied on by defendant
At tbe Instance of the constable, he offered
$100, a definite and fixed sum, and to that
extent only was the constable authorized to
cry his bid. 2 Freeman on Executions {2d
Ed.> I 292, says: "The officer making the
sale cannot act as tlie agent of a person de-
sirous of bidding. He can neltta« bid for
himself nor for another. We apprehend that
tbis rule must be confined to cases in which
tbe ofllcer, In acting, as agent would be ex-
pected to e»rcise his dlscretton In making
bids, and to purchase the property at the
lowest price for which it could be obtained.
It ought not to be extended to cases where
be is authorized by letter, or otherwise, to
offer a specified amount on behalf of an ab-
sent bidder." This we think Is the true rule.
From what has been said, the conclusion
Is to reverse tbe Judgment set aside the ver-
dict and grant the defendant a new trial.
(71 W. V*. BIX)
BAKER et aL T. WORKMAN et aL
(Supreme Court of Appeals of West Tlri^Ia.
May 20, 1913.)
(Svllahut by the Oowrt)
ConsnruTiONAL Law (| 61*) — JuDietAiT--
lAOISUTIVB POWBBS.
Sections 2 and 9. chapter 4T, Oode 1906.
do not contraveoe article 6 of the Constitution
(Code 1906, p. iv) because they Invest the dr^
colt court with a discretion to determine tiu
exact extent of territory to be included In s
municipality seeking to be incorporated, and
with discretion to direct the clerk to iasne a
certificate of in«>rporation tberefor. Morris v.
Taylor, 70 W. Ta. 618, 74 S. B. 872.
[Bd. Note. — For other cases, ^ee ConstitntioD-
al Law, Cent Dig. H 108-107; Dee. Dig. i
6L*J
Appeal from drcuit Court Mli«o Gonnty.
Bill by Undsoy Baker and ottwrs against
William Workman and others. Decree for
plaintUBi, and deCradants appeal. 'Affirmed.
Marcnm ft Marcum, of Huntington, and
Sheppard, Goodykoontz & Scherr, of William-
son, for appellants. O. R. a Wiles, of Wil-
liamson, for appellees.
WILLIAMS. J. On the 7tb Of June. 1910,
the county court of Mingo county issued a
•For oUi«r e»NS ••• sanw topic and Motion NUMBBR In Dec Dig. A Am.
W.VaJ
OAMFBELL T. MTBBS
671
license to WUUam Workman to sell ai^ritu-
ous llgaors at retail In the town of Eermlt,
In said county, without bla having obtained
permission tberefor from said town. In July
following Llndsey Baker and William T.
Mead, citizens of the town, brought this salt
to enjoin Workman from selling liquor In the
town. Harry Scherr, as special commission-
er, had sold the bnlldlng In which the busi-
ness was to be conducted to S. U G. Rhodes,
and they were made parties defendant to
the blU. On the 11th of July, 1910, the Judge
of the circuit court of said county. In vaca-
tion, awarded a temporary injunction. Aft-
er due notice to plaintiffs, defendants moved
the Judge, In vacation, on the 29th of July,
to dissolve the injunction, and he made a va-
cation order refusing to dissolve It; and de-
fendants have appealed.
Workman admits that he did not obtain
permission to sell liquor from the council
of the town of Kermlt, but avers that It
was not necessary for the reason that the
town was not lawfully Incorporated. It
Workman was selling liquor without a prop-
er license, he could be enjoined, on the
ground that his business was a public nui-
sance. Devanney t. Hanson, 60 W. Va. 3,
63 S. E. 603. And If the town was lawfully
incorporated, the county court could not li-
cense the sale of liquor within its limits
without its consent, and Woxtonan's license,
Issued by the conoty court alone, would not
protect him.
The certificate of incorporation was Issued
to the town of Eermlt by the circuit court of
Mingo county on ISth of December, 1909, pur-
suant to chapter 47 of the Code. Counsel for
appeUante admit that the only questioQ pre-
amteH to na Ua dedston relates to the con-
stltntlonallty of aectloiia 2 and 9 of chapter
47, Code 1906. Sectton 2 wai amended and
T»4aiacted by cliapter S4, Acts 1907, but the
amendmait did not divest the oirart of the
discretion tfven it, which is the matter, as
connsel contend, that rendeis those sections
nnccHistltatlonal. Article 5 at the Oonstlto-
tion (Code 1906, p. It) requires that the ex-
ecutive, legislative, and Judicial branches of
the government shall be kept separate and
distinct from each other. And because the
sections of the statute in question invest the
circuit courts with the discretion to deter-
mine the exact extent of the territory to be
included In the municipality, and with discre-
tion to issue the certificate of Incorporation,
they are, therefore, claimed by defendant to
be unconstitutional.
At the time the appeal in this case was al-
lowed, there was another case pending In this
court, on appeal from the circuit court of
Harrison county, wtilch has since been decid-
ed. Involving this Identical question. Mor-
ris V. Taylor, 70 W. Va. 618, 74 S. B. 872.
We there held that the statutes In question
did not contravene article 5 of the Constltii-
tlon; that the discretion there conferred on
the circuit court was Judicial and adminis-
trative, rather than legislative. We adhere
to that opinion, and It controls the decision
of this case. It is only necessary to refer
to Judge Poifenbarger's opinion in tbitt case
for the reasons to support our decision in
this. The two cases present the same iden-
tical question of law.
Tile order refusing to dissolve the Injunc-
tion will be affirmed.
(nw.Ta.4lo
OAMPBBLL V. MTBR8 et sL
(Sapreme Court of Appeals of West VlrginU.
Hay t, 1913. Behearing Denied
June 80, 191B.)
(Bifltabv9 fiy the Court.)
Lost Inbteumbnts (i 14*) — JuBisDicnoK —
Action AT Law.
Unless, at the time of trial, it is deitr<7-
ed or barred by limitation, a payee of a lost ne-
gotiable promisBory note cannot maintaia an
action at law thereon against the makers there-
of; a court of law beat without authority to
require indemnity against recovery thereon by
a bona fide indorsee.
[Ed. Note.— For other cases, see Lost Initru-
mentB, Cent Dig. » 27-29; Dec Dig. | 14;*
Action, Cent. Dig. | 142.]
Error to Circuit Court, Jefferson County.
Action by J. T. Campbell against W. SI
Myers and others. Judgment for plalntlCC,
and defendants bring error. Judgment re*
versed, verdict set aside, and action dis-
missed wltiiout prejudice.
Marshall McOormiclc, of Boanoke, Va.,
and T. 0. Oreen, of Obarleetown, for platn-
tUfs in error. F. Lt. Bnshong and O. N.
Campbell, both ot caudestown, Cor defend-
ant in «ror.
LYNCH, J. Plaintiff sued and obtained a
Judgment before a Justice. On appeal and
verdict of a Jury, the circuit court entered
Judgment for plaintiff, and defendants ob-
tained a writ of error.
The object of the proceeding is the collec-
tion of a lost negotiable note, dated In July.
1907, payable to plaintiff or order six months
thereafter, and not Indorsed by him. It
was overdue at the date of the action. The
paramount and practically the only questltm
for decision Is one of Jurisdiction, the Jury
having not improperly determined all other
issues favorably to plaintiff. Defendants
urged, without avail, before the Justice and
the trial court, want of JurisdIcUon In a
court of law to entertain the action. They
now rely on the same defense here.
The anthorlties in this state and Virginia
hold that equity is the proper forum In such
cases, because therein, and not on the law
side, Indemnity may be required of plaintiff
against loss should the instrument be subse-
quently found in the possession of another,
to whom it may have been Indorsed by the
•For otlwr omm sm sum tepto and McUoa NtlHBBB la Dm. Dig. * Am. Die. KvHoeA«M^
672
78 SOUTHEASTBBN BSUPOBTBB
(W.Ta.
payee before matarlty. In tbis case Uie
payee testifles tliat he had not Indorsed the
note. Bnt his testimony In this respect would
not, of course, be condu^Te against the
claim of the rlgbtfol indorsee, If In tact so
Indorsed. An indorsement after maturity
would* to some extent, affect the reason gen-
erally assigned for equitable cognizance.
But even then equity bas Jorlsdlctlou. The
cases, dlscusstng tbe subject, and binding
here, are in equity ; and, while some of
them indicate a concurrent JurisdlctioQ at
law, they in effect agree, for reasons hereto-
ton stated, that equity alone Is tbe proper
forum on lost negotiable Instruments. Har-
rison T. Field, 2 Wash. (Va.) 136; Shields
V. Com., 4 Baud. (Va.) - 541 ; Thornton t.
Stewart, 7 Leigb (Va.) 128 ; Hunter v. Bob-
Inson, 5 W. Va, 272; Hickman t. Painter,
11 W. Va. 388; Mitchell v. Chancellor, 14
W. Va. 22: Bank v. Morrall, 18 W. Va.
646; Hall t. Wllktason, 35 W. Va. 167, 12
S. B. 1118. See, also, Uttle v. Cozad, 21 W.
Va. 183; Matthews t. Matthews, ft? Me,
40, 63 Atl. 831. M Am. St Bep. 464, 466. and
note.
2 Daniel on Neg. Inst (Kh Ed.) states the
rule at section 1475 to be: "In Btagland,
where tbe line of demarcation betw^ l«eal
and equitable Jurisdiction is well defined,
and strictly observed. It Is well settled that
the remedy upon a lost negotiable isstm-
ment can be sought only in a court of equi-
ty, which alone can require Oa plaintiff to
secure the defendant by execution of sofll-
dent Indenml^, and adndnister fully ttie
equities between the parties. If the instm-
mmt be payable to bearer, or indorsed In
blank, it is obvious that it m^[ht reaeh tbe
hands of a bcoia fide holder for value, widi*
out notice of the loss, and that if tbe parties
liable were- compellable to pay tlie amount
thereof to tiie owner In a snit at law, with-
out indemni^. each parlies might, .without
the ^^test ne^igenee on their part, be
ftwced to pay It a second time to sacb bona
flde holder. The courts of law, whitdi pro-
ceed in accordance with eetabllsbed and un-
bending forma, do not possess the elastie
machinery necessary to require the owner to
make suitable indemnity against the loss
which might thus occur, or tbe lesser loss
produced by defending a suit brought by a
party in actual jtossesslon of the instrument
And, therefore, such cases are remitted to
the exclusive cognizance of courts of eg<
ulty." likewise, at section 1478, the author
further says that, while in some states an
action is maintainable against the makers of
negotiable notes lost before maturity, courts
of law being competent, as supposed, to pro-
vide Indenml^, "tbe weight of authority and
reason are against - jnrlsffiction in nxSi
cases." '
In Moses v. Trice, 21 Grat (Va.) 666, 8
Am. Bep. 609, an action of debt, the question
arose whether an action at law could bs
maintained on a lost negotiable note ; and It
was held that a court of law had no juris-
diction in such matters. Judge Staples said:
"In England the doctrine is firmly estab-
lished that such an action cannot be main-
tained, and the sole remedy of the owner is
in a court of chancery, which can adjust the
equities of tbe parties, and require suitable
indemnity as a condition of relief. Ban-
sard V. Bobinson, 7 Barn. & C. 90; Bamui
V. Crowe, 1 £xch. 166, 18 Eng. Law & Eq.
514. lu this country, there has been some
conflict of opinion on the subject; but tbe
great weight of authority Is In harmony with
the Kngllsh doctrine. In some of tbe states,
statutory remedies hare been provided, by
which most of the difficulties standing in tbe
way of actions at law have been removed."
But In states where the common law
vails, the courts generally, though not al-
ways, refuse to take jurisdiction upon lost
Instruments of the Character sued on In this
case.
For the reasons stated, the judgment is re-
versed, the verdict set aside, and tbe action
dismissed, without prejudice to the right of
plaintiff to institute other proper proceedings
for recovery on tbe cause of acUon alleged.
<n W. Ta. SM)
mi^E SUPPIiT CO. T. STATE BOABD
OF CONTBOL.
(Supreme Court of Appeals of West Vlri^nla.
Msy 20, 1913. Behearing Denied
Jane 80, 1913.)
(SyJlalua htf the Court.)
States (J 19X*) — Action Against — What
OoNSTiTUTEa— "State Boabo of Comtbol."
The Sute Board of Control is a direct
governmental agency of the state*, an action
on a contract made by that board in the line
of its state agency Is in realty and substance
a salt against the state itself and cannot be
maintained.
[Ed. Note.— For other cases, see States, Cent
pig. {1 179-184; Dec. Dig. | 191.*]
Error to drcnit Court, Cabell Coonty.
Action by the Ulller Sni^ly Company
against the State Bomrd of Ocmtral Judg-
ment for defoidant, and pi«taH*r brings »•
ror. Afflnned.
George 8. Wallace, of Huntington, for
plaintiff in error. William Ct. Conlcgr, Atty.
Oen., for defendant In error.
BOBINSON, J. May a suit be main-
tained against the State Board of Clontrol for
goods, wares, and merchandise furnished to
one of the state institutions upon the alleged
order of that board? Is not such an action
one against the state, within our constitution-
al limitation which reads: "The State of
West Virginia shall never be made defendant
in any court of law or equi^"? These are
ttie questions brought to us. Th^ arise upon
•ror oUnr eMM mom tepu aad HsttoB NUMBBK Is Dse. Dig. * An Olc. Ker-No. Sm
■ . • ■ . ■ ■ ■ Digitized by
W.Va:)
9ARTIK T. DItAPKit GOAL A COKE CO.
rating of the. trial court In' sustaining
a demarrer to the plialntUTs diisQlaratlop.
; Osr dedskn that the -acttw canoot be
•malDtalnedr-tbat it was rli^ttty-dlatnlased <m
demnirer. The State Board of Control Is a
direct goternmental agency of the- state.
Tm^ the statste cseatbic that board made
It a coWnaticm. Bat still as sach corpo-
ratlou It Is only a state goTemmental ag^
cy. When It acbi, it acts for the state
in the admEtnlstratton of state affairs. Its
enitracts are the contracta of the state.
Farther true, the statnte says It may sue and
ttH sued. It may he that by appropriate pro-
cess some mere ministerial duty of the board
may be controlled. This we do not decide,
for the qnestton is not avtr before us. Cer-
tain It is, DO ooutract er ivoperty rlgbt of the
state can be brou^t into litigation In the
courts by a suit against that board. The
state has a direct, Immediate, and total In-
terest in ererj valid ontract made by the
8tete Board of Control, and In truth and in
substance any suit on a contract with that
board IB a suit against the state. Principles
recognized and discussed In Miller r. Stete
Board of Agriculture, 46 W. Va. 192, 32 S. SL
1007, 76 Am. St. B^. 811. are oontroUlng
here. They need not be repeated. It la said
that the board Inrolved In that case was not
a corporation. That fact makes no distinc-
tion. It was a state agency, though not in-
corporated. Frlndplea applicable to an unin-
corporated state agency, In relation to wheth-
er a suit against it is In substance one
against the state, are as clearly applicable to
a corporate agency of the state. The same
test appllffl. That test la: Is the matter in-
Tolved the state's matter?
In Railway Co. v. Conley, 67 W. Va. 129,
67 S. E. 618, this court held that the partlcii-
lar suit against a state officer could not be
considered one againiA the state Itself.. But
in that decision the principle we now apply
was plainly recognized. It was distinctly
made to appear, by way of ficceptlon, that
whenever a suit against an officer or agency
of the state InvolTes a contract right or lia-
bility on the part of the state government,
or property belonging to It, the suit Is In
reality one against the state itself.
Reference has been made to Tompkins t.
Kanawha Board, 19 W. Va. 267. It suffices
to say that the defendant therein was not
an agency in the gorermnent of the state —
not one having to do directly with the admin-
istration of state government aa the Bteto
Board of Control has.
Let us append that which has been deduced
from the cases as the generally accepted view
of the subject in hand; "Suite against officers
of a stete as reprraentlng the stete In action
and liability, and in which the stete, al-
though not a party to the record, is the real
par^ against which relief la sought and in
wbldi a Judgment for plaintlfF, although
nominally against defendant aa an Individual,
could operate to control the action of the
stete or mbiect it to liability, are suite
against the stete. A broad line of demarca^
tion , separates such suits, in which it Is
Bou^it to compcd tbB performance^ by afflmar
.tlTe flffldal acticm on the put lot defendante,
of an obligation which belongs to the stete
iB tte political capacity, from suite agalnat
defendante personally on account of wrongs
done or threatened to the personal or prosKP-
ty rights of idatetii&i without anthorily or
iindar color of autlmrity nnonutttntional axid
void. It seems ttiat the rule which fortilda a
suit against stete offioers because in eftect.a
suit against the stete applies only where the
Interest of the stete Is through some cmitract
or property right, and It te not enough that
a stete should have a mere intoest In the
vindication of Ite laws, or In th^ enforce
meat as affecting the public at large or the
rl^te of individuals or f»rporations; it must
be an interest of value In a material swise
to the stete as a distinct entity." 36Cyc910.
An order affirming the judgment will be
entered.
Ca W. Ta. «B)
GARTIN v. draper coal ft OdKB CO.
(Supreme Court of Appeals of West Vli^inia.
Jan. 28, 1918. Behfearing Duiled
June 80. lOlS.)
(SyUabu* by ike Court.)
1. Pi.aADiiia ^ 64*)— DaoLARATion— Du^uo*
ITT.
The allegation, in a single coaot of a dec-
laration, of Dumeroaa acts of negligence, all
actionable and involved in the game transac-
tion, does not render the declaration bad on
demurrer.
[Bd. Note.— For other casn, see Pleading,
Cent Dig. II 134-137; Dec Dig. | 64.*J
2. PiuDiNO (11 193, 867*)— DnOLUUTZov—
Dtjplicitt.
At common law such a count would be bad
for daplicity, advaatege of which could have
been taken by special demurrer. Special de-
murrers having Iwen prohibited by 'Stetete, the
exception must be taken by a demand for aped-
fication of the particular ground of action.
[Ed. Note.— For other cases, see Pleading,
C^n^^D^|||^ 428-M8, U78-119B; Dee. Dig;
8. PLKADina (H 198, 406*) — Deicubbkb —
Gbounds.
Defective statement of an element In a
cause of action is not available aa ground of
ingafficienc; on a demarrer to the declaration,
and, in the absence of a demand for a more
particnlar statement, the defect is deemed to
bare been waived.
[Ed. Note.— For other cases, see I^eadlng,
Gent Dig. H 426-448, 1355-1369, 1861-1365,
1367-1374. 1386; Dec Dig. f| 193, 406.*]
4. BfABTBB JkHD SXBVANT (| 96%*>— IlTJCnm
TO SravAKT— Fnixow Sebvants.
To obtain the exoneration from liability,
conferred by the stetnte requiring operatorg of
coal mines to employ mine foremen, such op-
erators most comply strictly wit^ tee condi-
tions presoribed In tee act
[Ed. Note.— For other cases, see Master and
Servant, Dec. Dig. $ 95%.*]
la Dec Dig. * Am. Dig. K-I-I^g^J.,* ^'fj^-,^e
•For otbar cum sm nmr topic and aacUoa MUMBBK
78 8.E.— 43
874
78 SOUTHBASTEBN BBPORTBB
6. Hasteb xvm Sbetaht 95%*)— Ihjubies
TO SEBVAMT— FBtXOW SlRVAITTB.
Employment of a person as mine foreman,
who hu us domicile oDtside of the state, is
a violation of tiie statnte and makes such «m-
ployfi the mere common-law agent of the em-
ployer and his Tice principal In respect to non-
assignable dnties delegated to him.
[Ed. Mote.— For other cases, see Master and
Servant, Dec. Dig. | 96%.*]
A. MA8TU AITD ^BVANT (S 85%*)— IRJUBIU
xo Sebtaht— Fellow Skbvants.
The statute requires the mine foreman to
have both his domicile and Ms actual residence
in the state.
[Ed. Mote. — For other cases, see Master and
Servant, Dec. Dig. S 95%.*]
7. Mabtbb and Sebtaht ({ 284*)— Injubieb
TO SeBVAITT— ACTIONB-^UESTlON FOB JUBT.
If a person employed as mine foreman bc-
toally resides in the state and the evidence
is inconclusive as to his domicile, his eligibility
to employment as foreman Is a gnestion for
Jury determination.
[Ed. Mote.— For other cases, see Master and
Servant Gent. Dig. || 1000-1132; Dec. Dig.
I 28C*T
8. Mastbb and Sebvaht (H 267*) — Ihjubibs
TO SEBTANT — AonOHB — ADiaSBIBIUTT OF
Btidehce.
On such an issue, the court may proper-
ly exclude a statement of the mine foreman as
a witness that he considered himself a citizen
of the state at the time of bia employment, and
also a statement that he had voted in the
county, unaccompanied by any indication of
the time at which {le had voted.
[Ed. Mote.— For other eases, see Master and
Servant, Cent Dig. Ii 909. 911; Dec Dig. |
267.*] ,
9. Masteb and Sebvant (I 95%*)— Ihjubieb
TO Sebvant — Fellow Sebvants — Mine
FOBEUAN — SnPEBINTENDBNT.
The positions of statutory mine foreman
and mperintendeut of the same mine are In-
compadble in the sense that the owner of the
mine cannot claim the protection of the stat-
ute against liability for negligence of the fore-
man in respect to (M>mmon-law nonassignable
duties imposed npon the foreman by the stat-
nte. if he employs the same person for both
positions.
[Ed. Note.— For other cases, see Master and
Servant. Dec Dig. | 95%.*]
10. Mabteb and Sebvant (i 96%*)— Injubies
TO Sebvant — Fbixow Sebvants — Mine
FOBEHAH.
If amine foreman, diereunto anthortsedby
the operator of the mines, employ a minor and
place him in a dangerous place to work, with-
out apprising him of the danger and instruct-
ing him as to means of avoidance thereof, and
■ach employ^ is injured or killed as a result
of such action, the operator is liable, notwith-
standing the statute makes it the duty of mine
foremen to Instmct the men workkig under
them.
[Ed. Note.— For other cases, see Master and
Servant, Dec Dig. i 96%.*]
11. Masteb and Sebvant (S 270*)— Injubieb
TO Sebvant— AcTiONB— Evidence.
In an action against a coal mining com-
pany for the wrongful death of a miner 17
years old, in which both the eligibility of the
person employed as mine foreman and author-
ity in htm to employ servants and assign them
to duties are questions for jury determination,
evidence of the assignment of the decedent to
work in a -room having a dangerous roof with
a machine peculiarly liable to jar down slate
and rock, witiiout full explanatloik of Urn dan-
ger and instmctions as to precaations for its
avoidance, is admissible.
[Ed. Note,^For otlier cases, we Mastar and
Servant Cent. Dif. H 918-^, 9S2; DttC Die
I 270.*]
(Additiottat Bfttabui »y Sditori4a Btmff^
12. Mabtbr and Sbsvant (| 9S%)— iHJimn
TO Sebvant — F^zxow wtaitib — Minx
FOBEICAN— * 'CiTIZEH."
In the statute exonerating mineowners
from liability oa employing mine foremen who
are citizens, the word "citizens" includes only
citizens actually residing in the state and en^
titled to participation in the government
[Ed. Note.— For other cases, see Master and
Servant, Dec Dig. | 96%.*
For other definitions, see Words Aid Phrases,
vol 2, pp. 1164-1174; vol. 8, p. 7602, 7608J
18. Masteb and Sebvant (f 284*)— Injubibs
TO Sebvant— ACTIONS— Question fob Jcbt.
Evidence AeU to warrant submissloD to
the jury of Uis question of authority in a mine
foreman to employ and discliarge men.
[Ed. Mote.— E\>T other cases, see Master and
Servant, Gent IMc H 1000-1182 ; Dec Dig. 1
284.*]
Ehrror to Gircult Oomt, Logan Goonly.
Action by William Oartln, admlniatiator,
against the Draper Coal & G<^ Gonquny.
From an order setting aside a verdict for
plainUfl, be brings error. Berened and ren*
dered.
B. T. England, of I^ogan, and Marcnm A
Marcum, of Huntington, for plaintiff In er-
ror. IJII7 A Shrewsbury, of Logan, and
Campbell, Brown & Davis, of Hnntlngtou,
for defendant In error.
POFFBNBARGER, P. PlatntUTs dece-
dent, a boy IT years old. and a sorant fst
the defendant comi»ny, was UUed in tta
mine by fall of slate. A verdict for 16,000
against the company was set aside by the
court under the Impression Uiat It had erred
in the trial of the cas& Upon this writ of
error, reversal of that order and Judgment
on the verdict are sought
[M] In support of ttie action of the trial
court, there Is a cross«sBlgnment of error
based on the overruling of the demurrer to
the declaration. fHiough the declaration was
not skillfnUy drawn and might have been
■hade more direct and certain in some of its
material allegations, it sets forth numerous
acts of n^llgence and tlien says, "By means
whereof a large and ponderous piece of slate
and a large quantity of stone and earth" fell
npon the decedent It chaiges general fail-
ure to comply with the statute requiring the
employment of a citizen of the state, with
Ave years of practical experience, as a mine
foreman, failure to provide safe machinery
and appliances, to operate the mine with or-
dinary care, to provide sufficient props and
stays for the roof, and to give the decedent
informatioQ as to the danger of the work
and InstructlonB to enable him to avoid dan-
ger and injury. It also cliargea palpable de-
fects in the mine roof and the use of a ma-
*For other oases see same toplo end seoUon MUMBBB In Dee. Dig. A Am. Dig. Ksy-No. Sutas A Rep'r Xnduss
Digitized by VjOOglC
OABTIN T. DBAFBK OOiJj A OOKE 00.
075
cUae unsafe and nnanlted to the work the
servant was doli^ at the time of the ae<
ddent It also charges the employment of
an Inexperienced, Incompetent, and impractl-
eal person as mine fbreman "Instead of em-
ploying Bodi a person as Is required" by the
mining laws of the state, nmidc^ment of a
nonresident of this state or a dtlwn of an-
other state as mine foreman Is not directly
charged, bat the express all^atlons Indicate
Intent to rely npon foilnre to comply with
the statute lo dils respect In this nnskin-
fnl mannw, gronnds of action are stated In
the dedaratlon and the Injury attributed to
them by the aTerment of Injury by means
thereof. At common law this would have
made the declaration bad for dnpUdty or
double pleading, but it was a formal defect,
remediable by special demurrer. In this
state the special demurror has been aboHsb-
ed and Qie remedy for suidi detect Is a de-
mand for spedflcatlon of gronnds of the ac-
tion or defense. Lydlck t. Railroad Co., IT
W. Ya. 427, 446; Jacobs t. Williams, 07 W.
Ya. 878, 67 S. EL 1113; Code, c. 125, | 29.
The eq»resslon of Intent to rely upon viola-
tion of the statute by tbe employment of a
n<mresldait as mine foreman, by the terms
already referred to, brings that wrongful act
Into the declaratlott as an element. These
Indefinite terms constitute, under our deci-
sions, an allegation uncertain and Insufflcioit
at common law but sufficient under our Bta^
nte. In the absence of a demand for specifi-
cation. Jacobs T. Williams, cited ; Transpoi^
tatlon Go. t. OU Co., 60 W. Ya. 611, 40 8.
E. S91. 56 L. B. A. 804, 88 Am. St Bep. 893;
Clarke v. Railroad Co., 39 W. Va. 732, 20 S.
B. 696; Wheeling T. Black, 25 W. Ya. 266.
Admission of evidence excepted to on the
ground of Inadmissibility, exclusion of evi-
dence offered, and refusal to give an Instruc-
tion asked for are relied npon as errors In
the trial Justifying the setting aside of the
verdict It is necessary to the proper dispo-
sition of these claims and contentions to
state the general grounds of liability assert-
ed by the plaintift and the general character
of the evidence.
The plaintiff proceeded in tbe trial upon
two theories or claim b of liability, violation
of the statute In the employment of a cltl-
sen of another state as mine foreman, and
delegation to the mine foreman of nonassign-
able duties of tbe employer outside of and
beyond his statutory duties, the employment
of men and assignment of thdr duties In
the mines.
14] It Is said the employment of a person
not belonging to the class of persons desig-
nated by the statute as eligible for employ-
ment as mine foreman, citizens of the state
having had five years experience as miners,
does not give the employer tbe protection of
the statute In respect to the duties prescrib-
ed for mine foremen, nor make the mine
foreman a fellow servant of the other em-
ployes In respect to acts which at common i
law would be breaches of nonassignable du-
ties of the maater. In other words, it Is
claimed the prlnc^ilea announced In Wll-
llann Goal Od., 44 W. Ya. tS99^ 80 8. XL
107, 40 H B. A. 812, iCeBClllan t. Goal Co,
61 W. Ya. 6^ 07 a B. 128, 11 L. & A.
(N. B.) 840, and Sqnllache v. Coal Co.. 64 W.
Ya. 887, 02 S. B. 448, do not apply, If the
persm empltqred as mlna foreman was not a
dtlsen of the state.
Gonqdlanee with the statute In question
absolves ttu employer from very great n-
sponsiblllty and casts It npon the mine fore-
man. The^reasmi for requiring the lattw to
be a atSaeSx of the state Is not disclosed by
tbe terms of tbe statute^ As he Is substi-
tuted, to some extent, for the employer and
made liable both dvilly and criminally, we
may well suppose intent to subserve the in-
terests of tbe state and also titiose of his
fellow servants 1^ requiring him to have
his domicile in the state and thus be wltbln
the reach of the process of Its courts.
sons injured by his negligence or dereliction
of duty aod having the right to look to blih
for damages might find It Inconvenient and
detrimental to their Interests to be compel-
led to go to a distant state to sue talm. R
is against state policy to send a citizen to
the courts of another state for redress of an
injury or vindication of a right Likely the
Legislature intended compliance with this
requirement as a protection to the Interests
of tbe numerous persons brought into rela-
tion with the mine foreman by virtue of the
statute and 'compelled to look to him as the
source of redress of wrongs. Failure to
comply with the statute In this respect
therefore, would no doubt in many cases
work serious Injury which the Legislature
did not Intend to permit Obviously there
Is no reason why a dtizea of another state
may not be just as competent as regards
skill and ability, to perform the duties of
ndne foreman as a citizen of this state. This
requirement was evidently not intended as
a means of securing familiarity, on the part
of the mine foreman, with mining condi-
tions In this state, for it requires citizenship
only at the time of employment and a cer-
tain amount of experience in mining with-
out reference to the location of its acquisi-
tion. Nevertheless there are substantial rea-
sons for requiring dtlzensliip In the state
on the part of the mine foreman, and as tbe
statute substitutes the foreman for the own-
er or employer, on the latter's compliance
with certain conditions, but not otherwise,
noncompliance therewith leaves blm in tbe
situation In which he would be without such
a substitute. Although a nonresident fore-
man might do just as well as a resident fore-
man, the statute confers no authority to
substitute him for tbe owner. Expressio
unlus est excluslo alterlus.
[5, 4,12] There Is a divergence of views
among counsel as to who is a dtizen with-
in the meaning of tbe statute.
Digitized by
tlXiKll Willi-
. 78 SOUTHEASTERN BEPO^TEK
(TC.Va.
"ctttzen'* l0 wHDetlmaB used In ttie Testiic^
sense Qt "Ij^lmbltant" In such cases the
context is suppraed to dtadose legislative In-
tent to Include actual residence as a part of
tbe definition or purpose In the particular
Instanca Gtttxensbip la broader In meaning
than Inhabitancy. A nuin may be a citizen
and not an actual resident No doubt in
some connections the word "citizen" may be
regarded as having been used in the sense of
'Inhatiitant" only. It depends upon the leg-
ialative purpose as well as the terms. Noth-
ing in the context here indicates purpose to
narrow the meaning of the word "citizen" to
that of "inhabitant" No doubt' the mine
foreman must be a resident citizen, an in-
liabltant as well as a dtlzeu, but there la no
indication of intent that simple inhabitancy
of the steto shall render a person eligible to
employment as mine foreman. Our conclu-
sion is that only dtlzena, persons actually
residing In the state and entitled to partid-
paUon in the government thereof and man-
agement of Its affairs, are eligible to enqploy-
ment as mine foremen.
[7] Conclusiveness of the proof of dtlsen-
ship is insisted upon for the defendant in
error as justiflcatlon for the Betting aside of
the verdict Kitdien, the mine foreman,
spent a number of years as a miner In vari-
ous places in Kentnd£y. Just when he first
came Into the state of West Virginia Is not
disclosed. He says he worked, at Belmont.
W. Va., and Handley, W. Va., but does not
give the years of such work. Then he went
to Ironton, Ohio, where be wa» engaged in
the coal business for about six yeara From
Ironton he went to Williamson, W. Va., and
worked as mine foreman for a period of
four months. Then he was at Tvrln Branch,
W. Va., as mine foreman, one month, and
from that point he went to Ft Branch, W.
Va., where he worked In the same capadty
for one year and 20 days, after which he
went to work for the defendant company on
the 20th day of January, 1Q08. Be brought
his family to Logan county the latter part of
February, 1907, nearly a year before he waa
employed by the defendant company. He
went to Ft Branch January 1, 1907, and his
family came there about a month and a
half later from Ironton, Ohio. They were
also with him during the last three months
of his employment at Williamson. He owns
a dwelling house and seven or eight acres
of land at Ironton and, when out of employ-
ment, goes there to reside. Some time after
the death of the miner whose administrator
is plaintiff here, his employment ceased and
he moved his family back to Ohio. While
employed here, he lived in dwelling houses
owned by his employers and purchased no
residence In the state. During a portion of
his employment here as mine forraian, his
family were at their home in Ohio.
Domicile is so largely a matter of inten-
tion that it Is often a question of fact The
legal definition thereof la not difilcnlt of ap-
plloatlon when the facts do not give rise to
conflicting, inferences as to the intention. All
authorities agree as to the essentiality of
two elements: Actual r^dence and intent to
remain indefinitely, anlmo manendi. Deter-
mination of the latter requisite Is the diffi-
cult point here. For the defendant In er-
ror, White V. Teunant, 31 W. Va. 791, 8
S. B. 596, 13 Am. St Rep. 896, and Dean v.
Cannon. 37 W. Va. 123, 16 S. B. 444, are re-
lied upon as asserting euffidency of the evi-
dence to prove the requisite Inteut as to per-
manency. As stated in the opinions of those
cases, an intent to remain forever Is not
necessary. There may be mental reservation
or an indistinct purpose to leave at some
time In the future. But. upon the acquisi-
tion of a residence in another stete, the
domicile is not changed unless the intention
to return to the old home, animo revertendi,
ceases. The length of residence and Ite pur-
pose are Immaterial, so long as there remains
an intention to return. Intent to move a
second time to a third state or country la not
incompatible with domicile in the place of
actual residence, for the authorities say ev-
ery man must necessarily have a domicile
somewhere. He loses his domicile by, re-
moval with Intent not to return. Then his
domicile Is at the place at which he stops for
actual residence and remains there until he
moves again without Intent to return. But,
If be moves from a domicile with intent to
return to It he does not lose it, for which
reason he does not gain a new one. In
White V. Tennant, Judge Snyder said: "A
change of domicile does not depend so much
upon the Intention to remain In the new
place for a definite or indefinite period as
upon it being without an Intention to re-
turn." The evidence is dearly not conclusive
as to the intent with which Kitchen took up
his residence In this state. Hence it was a
question for the Jury.
[8] On the examination of Kitchen, the
court struck out the following answer to a
question as to his citizenship in January,
190S: "Well, I considered I was a citizen of
the state of West Virginia." On motion his
atetement that be had voted at a school
election In Ixigan county was stricken out
An exception was taken to proof of an ad-
mission by him that he lived in Ohio. The
answer of the witness as to his citizenship
was nothing more than an expression of opin-
ion. He said nothing as to tils Intention at
the time. Without any Intention whatever
to remain In the stete, and fully intending
to return to his former place of residence,
he might have expressed the opinion that he
was a dtizen, or so regarded himself. There
was no error in excluding the answer. The
admission as to his home was admissible.
It bore directly upon the question of Inten-
tion, The time at which he voted at a school
election not having been steted, the court did
not err in striking out the testimony as to
it Toting and attempte to vote are compe-
Digitized by Google
■ tent evidence on ttie qaestlon of domicile.
Sufiotot on Domldle^ 'l 435. U the fletoid-
ant bad in^ided to rely aerlonsly npon this
act of Kitchen a& erldence of dtizensUp,
they should have abown the Totlog to have
been done prior to the injury to the decedent
It may have occurred afterwards and after
bis employment ceased. We do not think
enoi^h Is shown to render the drenmstance
admissible.
Obviously the state of the evidence and
the mllnss of the court properly left It to
the Jury to say whether, by leaqpn of the
violation of the statute, the man acting as
mine foreman was a mere common-law agent
of the employer and, as to nonassignable
dudes. Its rloe prindpai. On that finding the
entire statutory ^tem. In so &r as It ab*
solves the employer from liability, falls and
becomes Inapplicable. Provision of a safe
X^ce to work, malntoianoe thereof, employ-
ment of competent sravants, Instmctlon to
mlncff employes, and all other common-law
duties and liabilities remain In full force.
The n^llgence of Qie Ineligible foreman as
to Budi matters is his master's negligence,
and common-law prlndples govern in the
formulation and trial of the Issues.
[I] The second theory of liability nmilicts
with the terms of the statute, making it the
duty of the mine foreman to Instruct miners
working under him. Though employed and
assigned to their work by him. under au-
thority as agent, conferred by the employer,
the statute places the duty of Instmctlon
upon him. not the employer. Code Supp.
1909, S 405. By another provision, found in
section 410. Code Stipp. 1909, the miner is
required to prop his room for his own pro-
tection. These are new provisions Inserted
chapter 78 of the Acts of 190T. Code
Supp. 1909, c. IBH. These statutory duties
of the mine foreman, however, conflict with
the duties of his agency for the employer,
r^npecdng other nonassignable duties, when
such agency has been conferred. Superin-
tendency of a mine is representation of the
owner, who stands In a certain relation to
the mine foreman created by the statute.
Upon bim the foreman Is reqaired to make
requisitions for materials, machinery, and
supplies for maintenance of the safety of
the mine. If these two positions are held
by the same person, It Is necessary for him,
acting in one capacity, to make demands
npon himself in the other to comply with
the letter of the statute. Compliance with
its letter in this manner would violate Its
fliplrlt The agent's Interest In one Erection
would oppose his Interest In the other. His
Buperintendency would be In the natnre of
an Inducement to neglect and avoidance of
his duties as mine foreman. In other worda,
the two positions are Incompatible with the
spirit of the statute and the relatloe it ee-
tablisbes. As superintendent, he could Ig-
nore his own negligence or Incompetence as
foreman to the detriment of both miners and
ovniei:.. ..It was, not tbe porpoae of the gt^tute
wholly to relieve mine operators of se^pwsl-
bUlty. It must have a reasonable Interpreta;
tion and construction. .We borrowed It from
Pennsylvania, and Its spirit as understood
and applied there is Its spirit bece^ though
the terms and provlsiona of the statute In
the two states differ somewhat In detail
prqvlslons.
In Wolcntt V. Coal ft Coke Co., 226 Pa.
204, 70 AtL 197, the court held: "While a
mine foreman la a follow servant of the min-
ers en^Ioyed in the mine, yet If tbe company
which employs him makes him also the su-
perintendent of the mine, and through his
negligence tbe root of an entry foils and in-
jures a miner, the company wlU be liable in
damages for hla negligence to tbe person in-
jured." While the opinion In that case re-
fers to some special provisions of the statute
not found In ours, the basis of It is ttie in-
compatibility of the two positions. The
court says: "The duties imposed by the act
on the mine foreman do not relieve the su-
perintendent from tbe duties which be owes
to the employes of the mine. When the
owner employs a certified mine foreman and
puts him in diarge of tbe Internal workings
of the mine, he has done all that the law re-
quires bim to do and he Is not required
through his superintendent to Inspect and
look after the interior of the mine. The law
presumes that the certified foreman Is fully
competent, more ao even than the sui>^n-
tendent or the owner, to keep tbe mine In
proper and safe oonditton, ^nd hence It does
not Impose the further and additional duty
on the owner of requiring tbe auperintwdent
to look after the Interior of the mine and
hold him responsible for tbe negligence, of
tbe superintendent in falling to perform mcb
duty. • • • Suppose tbe positions of mine
foreman and superiutoident had been filled
by different parties, and the knowledge tbat
the former had not performed b^ duty and
removed It, would It not have been the duty
of the superintendent to have -.taken the
necessary steps to have remedied the defectT
In other words, when the snpedntendent
knows that the mine foreman has, for any
reason, become unfit to perform bis duties,
or ia ne^igent in Uie performance of them
and permits the mine to become dangerons
and unsafe, Is It not the snperlntendent's
duty to take tbe necessary steps to remove
the danger and place tiie mine In a safe
condition?"
Our statute prescribes no duties for the
superintendent by name^ as the Pennsylvania
statute does, but he is the mere representa-
tive ot ttw owner upon whom our stataito
does Impose duties. He or his agent is bound
to maintain In hla mine a competent and
qualified mine foreman for the protection of
the miners. This provision must have effect
according to Its spirit and pnrpoB& If, hav-
ing employed a competent man ^/^^
e
678
78 80DTBBA8TBBN BBPOBTOB
(W.Va.
the owner knows he la habltnally and per*
slMenUy negligent and snbjecting Ui fellow
■erranta to danger and tails to remove him
or In some way effect a remedy, he Is not
complying with the purpose ot the statute.
Hence notice to him of the interior conditl<His
of the mine and transactions therein will,
uDder certain conditions, Impose liability. The
statute was not designed to shield him from
noncompliance with its substantial require-
ments. If the same person la mtoe foreman
and superintendent and duties as mine fore-
man are omitted, the employer is given notice
In law through the agency of the same person
as the superintendent, and responsibility Im-
mediately attaches.
The ground of incompatibility of these
two positions may be found in legal princi-
ples, outside of the statute. There may be
a Joint agency by contract, express or Im-
plied, but, In the absence of such an agree-
ment, one person cannot take advantage of
an agency created for the benefit of another
and appropriate It or the fruits thereof to
his own benefit. Robrbough v. Express Co.,
50 W. Va. 148, 40 S. E. 398, 88 Am. St. Rep.
849; Bank t. Pamlture Co., 57 W. Va. 625,
60 8. B. 880, 70 li. R. A. 312. Surely the
employer of a mine foreman, a quasi public
agent whose duties are Imposed and defined
by law and involve conflict with the employ-
er himself, cannot, by agreement with blm,
limit such duties or change their character.
Nor can it be supposed the Legislature In-
tended to authorize the existence of any re-
lation between them that' might constitute
an inducement or cause for neglect of the
performance of such dudes. It is perfectly
apparent that the position of superintendent,
conferred upon a foreman, would, In many
instances, have that effect As mine fore-
man the employer is supposed to have the
safety of the mea in mind at all times and,
if necessary, to the exclusion of everything
else. The superintendent has for his domi-
nating purpose the production and marketing
ot coal for the profit of the owner. The two
positions In the hands of the same man are
tbna natnrally in conflict
[II] TOe mine foronan here is not shown
to have been, in all respects, the superin-
tendent ot the mine In his charge, but It la
claimed he was authorized by the owner to
employ mvants to wotk in the mine and
assign them to their dnttes. In so far as
these acts InvolTe the safety of the employes,
either the individual assigned to a particular
duty with reference to his own safety or
others who might be Injured by his Incom-
petency, they are nonassignable duties of the
owner which the statate does not impose
npon the mine foreman. If, therefore, the
opmtor delegates them to the mine foreman,
he thereby makes him a superintendent pro
tanto, and, if the latter, in the exercise
thereof, comes in conflict with bis own du-
ties as mine foreman, the result Is logically
the same, as regards tbat act,, as If he wen
the snperintendent In the toUeat aenae ot tlie
term.
The employment of miners and assignment
to their duties necessarily comes In direct
conflict with the duty of instruction. The
desire for promotion of the work and the
largest possible yield of iffodnct has a nat-
ural and inevitable tendency to induce the
foreman, acting as superintendent, to for^o
and neglect tbls particular duty and also to
permit men to work in dangerous places,
contrary to the statutory duty of the fore-
man. Hence, If the operator confers such
authority upon the foreman, he Is not en-
titled to the benefit of the statutory -provi-
sions Imposing duty of instruction upon the
foreman and making it the dnty of the miner
to prop his room. In this respect, the whole
spirit of the statute Is violated.
[13] Insufficiency of the evidence ot au-
thority In the mine foreman to employ and
discharge men is relied upon in this connec-
tion, but, under principles declared in Ewlng
V. Fuel Co., 65 W. Va. 730, 65 S. B. 200, 29
L. R. A. (N. S.) 487, the evidence warranted
submission of the question to the Jury. Kit-
chen testifies that he employed and dis-
charged men generally. He said the com-
pany had a superintendent who had some-
thing to do with the employment and dis-
charge of men, but this does not destroy the
effect of his other testimony. He was com-
petent to testify to his own agency. Garber
V. Blatcbley, 51 W. Va. 148, 41 S. B. 222;
Piercy v. Hedrick, 2 W. Va. 458, 98 Am. Dec.
774. He was in cbarge of the defendant's
mine for more than a year and says he em-
ployed and discharged men generally. The
exercise of these powers for so long a time is
sufficient evidence of authority from the de-
fendant, even though It had a sn];>erintendent
who did something not named abont the em-
ployment of men.
The decedent, a youth 17 years old, had
worked In the mine as a trapper, driver,
and helper on a cutting machine. He tiad
never operated a machine except as a helper
under the snperrlsion and direction of an
experienced operator. Abont three days be-
fore his death he was set to work by the
mine foreman with this machine in a room
near the outcrop of the coal where the roof
was dftngeroos by reason of what are called
hill seams and prerlons blasting In the utry
which necessarUy loosened the date to some
extent
[in Bvldenoe tendbig to prove the nnault-
ableness ot the machine tor use In such a
room was admitted over the objectton of
the defendant The company had several
machines, one of the Sullivan type and all
the others of tbe Harrison make, and wit*
nesses were permitted to say It was peculiar-
ly dangerous to use tbe Sullivan machine In
a room In which the top was loose or dan-
gerous because its use was Ukelv to , Jar
DigHized by VjQOyiL
BELL T. JACKSON
679
slate or rock down from the roof. A com-
parlBOB of the machines In this respect was
made by the witnesses, showing that the
SnlllTan machine stmclE heavy blows and
had a heavy reboond, irtille the Harrison
madilnes strack moch lifter blows without
glTlDg any jar from rebound, and were not
so likely to cause a fall of slate. This ert-
denoe was admls^ble In connection with the
assUmment of an Inexperienced and youthful
servant to a dangerons place for work. The
rule of law absolving employers from duty
to fumlafa servants particular kinds of ma-
chines and appliances has no application un-
der the drcumstances. Had the servant In
question been an adnit or fully Instructed
and advised as to the danger of using such
a machine In such a place, the principle re-
lied upon wonld apply, but there Is no evi-
dence of such instruction. Kitchen says bp
told him to be cartful wltii the maeblne and
that the root of that room was not like the
roof In ro<mia In whldi be bad been working,
bnt'tbls falls far short of full Information
oa to t3ie danger snd meana of avoidance.
Minor servants are entitled to more than
men notice. Tlie law Imposes upon tiie mas-
ter duty to Instmct them, ^e decedent
should have been advlaed aa to the necessity
for props, thdr number and arrangemoit In
view of the tmugnal character of tbo loot^
and also as to the kind of precautions to
ad<^ in the operaticm of the machine.
In substance and effect, defendant's In-
stmctlon No. 15, refused, la covered in Its
instructions Nos. 11 and 18. ' Its purpose
was to give the defendant tiie benefit of the
presumption of capacity on the part of the
decedent to comprehend and avoid danger
and place upon the plaintiff the burden of
rebuttiDg It by proot The other two In-
structions do tbat, not In the same, but
equivalent, terms.
Seeing no error Justifying the action of
the court in setting aside the verdict, we
reverse the order complained of and render a
Judgment on the verdict.
(M 8. a Kf)
BELL V. JACKSON.
(Supreme Court of Soutb Carolina. March 14,
1913.)
X Appeal ako Baaoa (| 108*)— PMAniNO (i
11*)— APPBAI.ABU OaoEB— Obdkb to Make
GOVPUIHT MOBB DUINITB AND CSBTAIIT.
An order requiring plaintiff to make his
complaint more definite and certain in specified
particalars, being one involving the merits, is
appealable.
[Ed. Notev— For other cases, see Appeal and
Error, Cent. Dig. H 099-710; Dec. Dig. {
103;* Pleading, Cent. Dig. | 81; Dec. EK^ 1
II.*]
2. PXXAnXHQ a 9*) — OoKPLAZlfT — BtaTB-
MKNTa.
The complaint stating the facts constitut-
ing plaintiff's cause of action, as required by
Code Civ. Proc 1912, { 192, be cannot be re-
a aired to add allegations of law, as wbether
tie cnase of action is legal or equitable— that
is, whether It la an action on the note set out
in the complaint, or an action on it and an
equitable mortgage alleged in the complaint—
and for foredosnre thereof, nor can he be re-
quired to set ont mere evidentiUT matter.
[Ed. Note.— For other cases, see Pleading,
Cent. Dig. I 29; Dec Dig. | 9.*]
3. PLBAOIMO (I 82*) — GoHPLAZn — StATB-
MKNTS.
Plaintiff may not be required to set out In
his complaint the terms of Instruments given
him by defradants, but, if defendant has for-
gotten their terms, he may proceed in the
method provided by Code Glv. Proc 1912, |
192, to obtain an inspection and copy of them,
[Ed. Note/— For other cases, see Pleading,
Cent Dig. H B3-57; Dec Dig. | 82.»]
Appeal from Common Pleas Giicnlt Court
of Marlboro County.
"To be officially reported."
Action hr 3. P' Bell against J. W. Jackson.
From an order for amendment of the com-
plaint, plaintiff appeals. Reversed.
The complaint and ordw for ammdment
are as follows:
"Complaint
•rrhe plaintiff, J. P. Bell, complaining of
the defendant, J. W. Jackson, alleges:
"a) Tbat the defendant, J, W. Jackson,
heretofore, on the 24th day of August, A. D.
1912, executed and delivered to plaintiff his
promissory note, of which the following Is
a copy: *|23,500.00. Dillon^ S. C, August
24th, 1911.. On the 1st day of December,
after date, 1 promise to pay to the order of
J. P. Bell, twenty-three thousand Ave hun-
dred and no-100 dollars. Value received.
Payable at the Farmers' A Merchants' Bank
of McColL To be discounted at the rate of
eight per cent per annum, and if not paid at
maturity to bear Interest thereafter at the
rate of eight per cent per annum, and agree
to pay all costs of collection, Including ten
per cent attorney's fees, if not paid when
due. J. W. Jackson.'
"(2) The said note is a purchase-money
note, and was given to plaintiff to secnie
the unpaid purchase money of the following
described land, to wit: 'All that certain
piece, parcel or tract of land, situate, lying
and being In Hlllsboro township^ county a€
Dillon, and state of South Carolina, known
as the Dr. Craig place, the same comprising
three different tracts of land, as described
In the deed from Dr. Wade Sta<^hon8e to
Daisy D. Craig, dated November 1, 1900, and
recorded In the clerk of court's office for
Marlon county, In Book QQQ, page 643, and
therein described as followsL* [Here follows
description.]
''(3) That at the same time the said note
was given, to wit, on the 24th day of August,
1911, and as a part and parcel of tlie same
transartion, the said J. W. Jackson executed
an Instrument In writing to plaintiff, by the
terms of which, among other things, he ac-
knowledged and agreed that the $23,600, set
•For oUmt cmw m* suns topic and Metton NDMBBR In Doc Dig. A Am. Dig.
680
TB SOUTHEAST EiUN REFOBTKB
oat In tt> note tbcm mgnaooed, wpiiaeuUd
tk» onNid pURbuft pitoi of tta tad bania-
■bet* dMgfUnd, sad was glren (o Mcon ttw
psjmait of tlw unpaid imrchaM iiriott ct
Mid tad, and tbat die aald tad waa to
atand good for tba panlMae moner flieroot
tbe amooBt at wlildi la oat out Sn ttie abore-
mciitloiwd note.
''(4) That the abore-mentloiied oote^ ae-
conllng: to tha terma thereof, becajne doe and
payabla on ttia lat day of Deoamber, A. D.
1911.
**(IS) That no part of aald aam of 128,00^
to wit, the pnrchase mon^ of the tad above
described, baa bem paid, except tbe aam of
13.608.88, on tbe 8th day of September, 1911,
wblch aald payment baa been duly credited
00 the aald note.
**((ft That by the termi of flie aald note the
aald J. W. JftdtM>n acreed to pay all costa of
collection, tatAvOing 10 per cent ettomey'a
feea, If the aald debt ma not paid when dne.
That thera la now dn^ ontitandlns, and un-
paid, on the pnrdiage price of aald land, the
Hum of 110^1,12, and Intereot thereon from
the lat day of December, 1011, at ttie rate
of 8 per cent annum, and In addition
thereto 10 per cent of the whole amount In-
TOlred ai attoney'a feea, aa provided In aald
note. Wherefore, plaintiff praya Judgment
axalDBt the defendant:
"(1) For the sum of $19391.12, and Inter-
efit thereon frOm tbe Ist day of December,
1911, at tbe rate of 8 per cent per annnm.
"(2) For 10 per cent of the whole amount
Involved, an attorney's fees, according to the
terms of the said note.
"(3) That the entire sum f6r which Judg-
ment Is given herein be declared by the court
to be for the unpaid balance of tbe purchase
money for the tract of land hereinbefore de-
scribed, and to be and constitute a mortgage
on said land for the purchase money thereof
"(4) That the defendant, and all persona
claiming under him, be forever barred and
foreclosed of all rights, title, and Interest,
and equity of redemption, In the premises
hereint>cfore described, or any part thereof.
"(5) That the said premises be sold, under
the order and direction of this court, and
the proceeds of said sale, after deducting
the costs and expenses of this action, and
of such sale, and any taxes that may be a
Hen upon the premises, be applied to the
amount due upon the note hereinbefore men-
tioned, with interest on the same from tbe
Ist day of December, 1911, at the rate of
8 per cent per annum, until paid, as provid-
ed by Mild note, and Id addition thereto the
sum of 10 per cent of the whole amount In-
volved, as attorney's fees, for the coUection
of aald note, aa provided therein.**
"Order.
"This matter comes before me upon a no-
tice duly served upon the plaintifTa attorney
on a motion to make the complaint in the
above^tltled action more definite and eer-
tebi in die parttentaa wmiliiBieJ and eat
f ortb In tbe aald notice.
"After bearing the argnncnt of eornd.
and iq>on motta of D. D. IfcCoI^ Ja., air
tomcv for Uie ^fiioAMnf aban named. It la
ordered that 'the aald plaintiff do make Us
complaint more definite and certain by stat-
ing wbetho' or not tbe alleged cauae of m>
t%m attempted to* be set up In the aald com-
plaint la baaed tqwn tbe pronUnoiy nota
therein mentioned, or whether the aald causa
of action la baaed upon a real eatate aiort-
gage.
"It Is alao oidersd that tbe pUlntlff be re-
quired In the evoit that he bases his said
cause of action mm a real estate aaortgage,
or a contra<^ In the nature of a zeal estate
mortgage, to set fortb definitely and clearlj
the terma and contents of the aald mortgage
or agreement, alao auch other facts as may
be necessary to enable the defendant to
know what la the exact nature of the instru-
ment of writing relied upon by the plaiatUC
as the basis of his cause of action.
"It ia alao ordered and adjudged that the
plaintiff be required to make his complaint
more definite and certain by showing the
manner in which the written instrument, con-
stituting the baids of plalntUTs cause of ac-
tion. Is claimed to give to the said plaintiff
a Hen upon a tract of land described In the
complaint ; and also that the plalntlfl be re-
quired to allege with definiteness and cer-
tainty such facts as the plaintiff relies up-
on to establish a lien upon the said tract
of land and to entitle the said plaintiff to
maintain this action in the county of DlUoo,
where the said land lies.
"It Is also ordered and adjudged that the
plaintiff be required to allege with more defl-
nlteness and certainty at what time and in
what manner the defendant made the pay-
ments alleged In paragraph five of said com-
plaint and also that the plaintiff be re-
quired to allege with deflnlteuess and certain-
ty the nature and contents of the written in-
strument upon which the plaintiff relies as
tbe basis of his cause ot action, and to allege
with deflniteness and certainty whether or
not the promissory note ipentloned and de-
scribed in tbe complaint is the only writ-
ten instrument upon which plaintiff relies
as the basis of his cause of action, and that
the plaintiff allege definitely and clearly the
nature and contents of any other- written In-
strument relied upon by him as the basis of
the cause of action in this case.
"It is also ordered and adjudged that in
the event that the plaintiff does not allege
the existence and execution of any other
written instrument except the promissory
note set up in the complaint that so much of
his complaint as attempts the enforcement of
a specific lien upon the said tract of land
by a sale of the same be, and the aame is
hereby, declared Irrelevant and redundant
and be stricken out upon tlM-jnotlon of tbe
plaintiff. Digiji,^^ Google
HABDEN T. fftXT^
681
"The Plaintiff la required to show clearly
end definitely, by bis complaint, whether
he intends to institute a salt against the
defendant upon a mere promissory note, or
whether he intends to seek Uie foreclosnre
of a real estate mortgage, or some paper
In the nature of a real estate mortgage ; and
If plaintiff seeks to foreclose a mortgage, or
a paper In the nature of a real estate mort-
gage, he must, by proper allegations, describe
the same with sufficient clearness and defi-
niteness that the defendant may be able to
make answer thereto; that defendant have
20 days after service of said amended com-
plaint witldii wtalcb to answer same."
I. W. Le Grand, of Bennettsrilla, for ap-
pellant McGoU & HcOoll, of BennettsTllle,
for respondent
HYDBIGE, J. [1] The order Inrolres the
merits, and Is therefore appealable. Pickett
T. FidcHty Co., 62 S. C. 684, 30 S. E. 614.
[S] Section 192 of the Code of Procedure of
1912 says that "the complaint shall contain
a plain and concise statement of the facts
constituting a cause of action, without unnec-
essary repetition.** The only fault that can
be found with the plaintifTs complaint Is that
H lacks omdseneas, and contains too madb
TCfietition. He stated th» facts constitut-
ing his cause of action. Itie order of the
drcuit court requires falm to add allega-
tiona of law, to wit whether his action is
legal or equitable ; that Is. whether it is an
action on the note set out in the complaint,
or an action on tba note and eanUable mort-
gage all^d in paragraph 3 of the complaint,
and for the foreclosure .thereof; also, the
nuumer la which said writtot Instrument is
claimed to i^tb plaintiff a lien. These an
questions for the court The order also ze-
quires him to set forth In the complaint at
least a part of the evidence upon which he
relies to prove the facts alleged. IMdentiary
matter ought not to be set out In the plead-
ings: They should cmtain wly allegations
of fact— naked facts— accompanied by as few
modifying adJectLves as the exlgentdea of the
case will permit
[S] D^endant knows, or ought to know,
what instruments he gave plaintiff. If he has
forgotten their terms, the Code of Procedure
provides a method whweby he may obtain an
Inspection and copy of thun.
Order reversed.
QART, 0. J., and WOODS, WATTS, and
FRASER, JJ., concur.
(U Oa. App. IS)
HARDIN T. STANSBU <No. 4,806.)
(Oourt of Appe^ of Oeoriia. June 20, 1018.)
fSyHahMt the Court.)
1. Bbokxbs (S S6*)— Right to CoxMissioir.
Where property placed in the hands of a
broker fin sale Is aubseqaently sold by ths
owner, the broker Is entitled to hb commMon
if he was the procnring canse of the sale, al-
though the rale was actually 'consummateo by
the owner. Graves v. Hunnicntt, 8- Qa. App.
99 (2), 68 S. E. 5S8; Doonan v. Ives, 73 Ga.
295.
lEd. Note.— For other cases, see BrokwL
Cent Dig. H 85-89 ; T)ec Dig, { ML*]
2. Vkbdicft. SUSTAZnSD.
No error of law Is complained o^ and the
verdict is sui^rted by evidence.
Urror from City Court of Bainbcldge; H.
B. Spooner, Judge.
Action by A. S. Stansel against R. S. Hard-
la. Judgment for plaintiff, and deftodant
brings error. Affirmed.
R. G. Hartsfleld, of Balnbrldge, for plain-
tiff in error. Harrell ft WUson, of Baln-
brldge, for defendant In error.
- HILI^ 0. J. Judgment affirmed.
OS Oik App. u)
HARDEN T. STATE. (No. 4,918.)
(Court of Appeals of Georgia. Jane 26, 1918.)
(Syllabut iy the Court)
1. GsnnNAL Law Q 824*)— iKsrsnonoHs—
Requmt.
In the absence of an apjiroprlate request,
the court is sot required, Id the trial of one
charged with the offense of larceny to cell the
attention of the Jury to sped&e facts or oir-
cunutanoes ■ adduced In the evidence which
mfght Indicate the InQOceQce of the accused.
For this reason the court did not err in omittitig
to call the special attention of the Jury to evi-
dence tn the- record tending to show that the
defendant's possession of the hog in question
was bona fide and under a fair claim <» right.
[Ed. Note.— For other cases, see Grimisat
I^w, Cent Dig. 81 1906-2004; Dee. Dig. f
824.*]
2. GauaiTAi;, Law (I 824*) — IiraiBuoxion —
GiBcumTAimju. Bviinif ci.
Where the proof of gollt of one accused
of crime depends wholly upon drcumetantial
evidence, it is error to omit to instruct the jnry
that to warrant a conviction on drcomstantial
evidence the. pr6of must not only be consistent
with the bypotbeels of guilt, but must exclude
every other reasonable EypotbeBls save that of
the guUt of the accused (Pen. Code, { 1010);
and it is the duty of the trial Judge to so in-
struct the jary. even though there be no re-
quest to that effect Biley v. State, 1 Ga. App.
651. 57 S. E. 1031 ; Hamilton v. State, 96 Ga.
301, 22 S. E. 628; Jones v. State, 105 Ga. 649,
31 S. E. 574<; Toler v. State, 107 Qa. 682, 33
S. E. 629; McElroy v. State, 125 Ga. 39, 68
S. E. 769 ; Weaver v. State, 139 Qa. 320, 69
8. E. 488, and citations.
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. §S 1996-2004; Dec. Dig. I
824.*]
Error from Superior Court, Miller County;
W. G Worrill, Judge.
Henry Harden was convicted of larceny,
and brings error. Reversed.
W. I. (3eer, of Colquitt, for plaintiff In er-
ror.- J. A. Lalng, of Dawson, B. T. (Sasttilow,
So). GoL, ef Guthbert, asd R. B. AnuM, of
Atlanta, flor the Btata
BUSBBLL, J. Judgment revi
•ror otbec. tM!M sat sasis topic sad wetlqp HUHBHB I>«e> D^..* pig. Kejr-i4(^'SlIHit' £
erse^U , ,
682
T8 SODTHKASTBRN BEPOBTER
Q3 Oa. App. 71)
ROBERTSON T. RUSSELL. (Na 4^28.)
<Goatt of AppMla of Oeoigla. June 25. 1918.}
(8vllahu$ by the Court.)
1. GEBTIOBABI <S 31*)— JUDQUtlTT 27*)—
Void JniraiaNT.
"Tbe writ of certiorari does not lie to set
aaide a verdict or judnnent which is not mere-
ly erroneous, but absolutely -void." Levadas ▼.
Beach, 117 Oa. 178, 43 S. E. 418. See, also,
Bass V. City of MUledniville. 122 Ga. 177. &0
S. E. 69 ; SimpUng t. Hester, 8 Ga. App. 160,
69 S. ID. 322.
[Ed. Note.— For other cases, see Oertiorari,
Cent. Dig. H 43. 88-90; Dec Dig. J_ 31;^
Judgment. Cent Dig. | 38; Dec. Dig. $ 27.«]
2. JUBTICES OF THI FEACB (| 119*)— PlAOB
or Holding Coubt.
A judgment rendered by a jostice of the
peace at a place other than that at which the
coort could lawfully sit is void. Hilson t. Kit-
chens, 107 Ga. 230, 33 S. E. 71, 73 Am. St
Kep. 119; Carter t. Atkinson, 12 6a. App.
300, 77 S. E 370.
[Ed. Note.— For other cases, see Justices of
tbe Peace, Gent Dig. H 878-876; Dec. Dig. %
11».*]
Error from Superior Courts Catoosa Gounr
ty; A. "W. Fite, Judge.
Action between A. B. Robertson and J. B.
BusselL From a Jadsment for tbe latter, the
former brings error. Revised.
Wm. B. Mann, of Dalton, tor plaintiff In
error. W. H. Payne, of Chattanooga, Tom.,
for defendant in error.
POITLE, J. [2] It appears from the an-
swer of tbe magistrate that on account of the
Inclemency of the weather the court was
moved atxint 40 yards from the usual place
for holding conrt and In sight of that place.
The Judgment rendered against the plaintiff
In certiorari was probably void, as was held
by the trial Judge who sustained the certio-
rari. Corter T. Atkinson, 12 Ga. App^ 88(k
77 S. E. 870.
[1] If the Judgment wag void, certiorari
was not tbe remedy. A void Judgment Is no
Judgment, and may be disregarded and treat-
ed as an absolute nullity. Tbe Judge of tbe
superior court should tlierefore have over-
ruled the certiorari, since it was not avail-
able as a remedy to aet aside a void Jndc-
ment
Judgment nrersed.
03 Qa. App. U)
SOUTHERN BY. CO. t. FLEMING^
{Na 4,670.)
(Court of Appeals of Georgia. June 25, 1913.)
(Syllabut by the Court.)
Appeal and Ebrob (§ 1051*)— Uabulbss E»-
BOB— ADUISSION of EVIDENCE.
This case is fully controlled by the decision
of this court in Central of Georgia By. Co. v.
Itiitler Marble & Granite Co., 8 Ga. App. 1
<3, 4), 68 S. E. 775, and by tbe decision of tbe
Supreme -Court la Louisville A Nashville R. Co.
T. Venable, 132 Ga. 001 a). 64 S. E 466. Un-
der these decisions, tbe evidence daaaaM tlie
verdict tux the plaintiff, and any error ia the
admisslOD of testimony was immaterial.
[Ed. Note.— For other cases, see Appeal aoA
Enor^^Ceat Dig. U 4161^^0; Dee. Die- S
Error from Superior Court, FrankUn Coun-
ty; D. fW. Meadow, Judc&
Action by J. W. Fleming against tbe Sontb-
em Railway Company. Judgment tos plain-
tiff, and defendant brings error. Affirmed.
W. B. Little and G. L. Goode, both of
Caniesvllle, and A. G. & Julian McCurry, of
UartweU, for plaintiff In error. W. L*.
Uodges, of Harcwell, and Claude Bond, of
Toccoa, for defendant In error.
HILL, C J. Judgment affirmed.
(IS Ga. App. tl
KERB v. HOLDEB. (No. 4,395.)
(Court ot Appeals of Georgia. J une 25, 1918.)
(Byttttbua hp the 0«urtj
1. Apfeai. and Ekbor (S 641*)— Bill or Ex-
ceptions— CEBTiriOATIO N .
The bill of exceptions will not be dismiss-
ed because the judge certified that it was "due,"
instead of "true" ; it b^g manifest, from the
context, that this was a mere clerical error,
and that bis intention was to certify that the
bill of exceptions was true.
lEd. Note.— For other cases, see Appeal and
Error, Cent Dig. S| 2789, 2790; Dec. Dig. |
641.«1
2. Appeal and Ebbob (| 323*) — Fabtiu —
Bill or Exceptions.
Where there are two defendants, one may
except without the other; and it is not neces-
sary to make the party not excepting a party
to the bill of exceptions, when it is apparent
tliat his rights cannot be affected in any wise
by the decision of any question presented for
adjudication in the writ of error. Civil Codo
1910, a 6176; W. U. Ta Go. v. Griffith, 111
Ga. 551, 86 8. B. 869.
[Ed. Note.— For other cases, see Appesl snd
Error. Cent Dig. H 1796, 1798-18^; Dec
Dig. i 323.*]
8. Appeal and Ebbob (S 274*)— Puesbhta-
TiON of Ebbob— SurFiciENOT.
If the ruling or decision complained of as
erroneous preceded the final jndgment, and if
it is spedscally made the subject of exception
and of proper assignment of error, and the
final judgment is excepted to, not because of ad-
ditional error in it, but because of the antece-
dent ruling complained of, which entered into
and affected the further progress or final re-
salt of the case, a general exception to the final
judgment, and an exception to and a specific
assignment of error on the antecedent ruling,
will suffice to give the reviewing court juris-
diction relatively to the point under considera-
tion. Lyndon v. Georgia Ky. & Electric Co.,
129 Ga. 354 (3), 58 S. E. 1047.
[Ed. Note. — For other cases, see Appeal and
Error, Cent Dig. U 1591, 1592, 1606, 1606,
1607, 1024, 1631-1646; Deft Dig. i 27i*J
4. Evidence (% 423*)— Payment (J 9*>— Uk-
Diuu— Pakol Evidence,
A note in which it is stipulated that a
certain sum will be paid means that this sum
will be paid in money, and neither the maker
nor tbe Indorser will be heard to plead or
prove that there was an agyeBtteot^h^|wbich
la DMh Dig. * Am. I>ls.>«l«i^')Mlil£^£i^l£^
•tte stasr eaMa am ssm* t^lo sad seetlaa HUHBBB
Oil)
CITIZENS* NAT. lAFZ INS. 00. T. BA.OAN
the note was to be satisfied with something else
than money. CItU Code 1910, H 4266, 5788;
Staideton Monroe, 111 Ga. 848. 86 8. h 428:
Bmnr t. Orogan. Ud O*. 60l 43 S. B. 625;
American Harrow Co. t. DoMa, 119 Ga. 186,
45 S. E. 933; Berendt T. Bipps, 120 Ga. 228.
47 S. B. B95.
[Bid. Note.— For other cases, see Bvidetrce,
Cent. Die H 1957-1965; Dec Dig. { 423;*
Payment, Cent Dis. 81 34, 38, 40. 41. 46, 49,
S3; Dec Dig. | 9.*]
B. Etidence (S 423*)'-PuEADiNa (| 364*>—
Paboi. EviDKifo— Plea— Stsikinq Oitt.
Since the contract expressed by a general
liidorBMnent by the payee of a promissory note
eaonot be TUied by ozml evidence of an agree-
ment between the parties different from that
evidenced by the note itself, the trial judge, in
an action against the maker of stich an indorse-
ment, did not err in striking a idea setting np
that the note was given to the defendant for
the rent of land to the maker for a certain
year, and that the plaintiff, as holder of the
note, permitted the maker to divert crops rais-
ed upon the land to the payment of other debts,
some of them dne to the plaintiff, altihongh
this debt for rent constitoted a first lien apon
the crops, and although the plaintiff, at the
time the defendant indorsed and transferred
the note to bim, agreed to collect it out of the
crops raised by the maker in the yeu for
which the land was rented.
[Ed. Note.— For other cases, see Evidence,
Cent Dig. |8 1957-1966; Dec. Dig. | 423;*
Pleading, Cent Dig. 8| 1092-109S; Dec Dig.
I 354.»]
IbTor ftom City Court at Floyd Connl^;
3. H. Keeo^ Judge.
Action by O. B. Holder against Mrs. M. A
Kerr and another. Judgment tot plaintiff,
and defendant named brings error. Affirmed.
M. B. Bnbanks, of Rome, for plaintiff In
error. Lipscomb, Wllllngham &. Wright and
Nathan Harris, all of Bome^ for defendant
In error.
BUSSEIil^ J. Judgment affirmed.
(U Oa. App. »)
CmZENS* NAT. LIFE INS. CO. T. BAOAN.
(No. 4,832.)
(Oonrt of Amwals M Geor^ June 26^ 1918.)
fSyUalut iy the Court.)
1, Witnesses <S 94*)— Tbaksactionb witb
Decedents— Intebest of Witness.
In a suit upon a policy of life Insnrance.
where the issue is as to payment or nonpay-
ment of the premiam, an agent of the insurer
is not incompetent, under Civ. Code 1910, 8
5868 (4), to testify that the premiam was paid
to him oy the insured, and that he had not
remitted it to the insurer. In such a case the
pecuniary interest of the witness was the same,
no matter which part? prevailed. If the plain-
tiff recovered, tbS' witness was liable to the
Insurer for the amount of the premium. If the
defendant prevailed, on tiie theory that the
contract of Insurance had never been execut-
ed, the witness would be bound to pay the
amount of the premium to the legal represent-
ative of the insured. Crawford t. Parker, 96
Ga. 156, 23 S. B. 196; HideU v. DwineU, 89
Ga. 632, 16 S. E. 79.
[Bd. Note.— For other cases, see Witnesses,
Cent Dig. 88 249-267; Dec. IMg. 8 94.*]
2. Appeai, and Bkrob ^ 1050*)— Habvuess
Brbob— Admission or Evidence.
A verdict will not generaUy be set aside on
accooDt of the adndssion of teatimonj of a
fact as to which the witness is shown to have
had no adequate knowledge, when other com-
petent evidence of the same fact has been ad-
mitted without objection.
[Ed. Note.— For other cases, see Appeal and .
Error, Cent Dig. If 1068. 1069, ^53-4157.
4166; Dec Dig. % 105a«]
3. Tbial <8 191*)— iNSTBuomnrs— Applioa-
BILITT TO BVIDEKOE.
An agent for the defendant testified posi-
tively that the insured paid to him the premium
in cash. There was no evidence to warrant
an instruction upon the theory that the cancel-
lation by the insured of a debt dne him by the
agent woold not be payment of the premium
according to the terms of tlie policy. There
was tesumony offered for the purpose of im-
peaching tibe agent, to the effect that he had
stated that no money hod been paid bim by the
insured but that a debt due the agent by the
insured bad been canceled. If this Impeaching
testimony was credible, the agent's testimony
on the subject of payment should hav^ been
disregarded ; but the testimony offered for im-
peaclunent did not antfaorise on Instractlon ap-
on the theory that the previous statements
made by the witness were the real tmtb of the
transsction.
[Ed. Note.— For other cases, see Trial, Cent
Dig. 8» 420-481, 436; Dec Dig. % 191.*]
4. Insurance (8 361*) — Payment of Pbb-
uitTM— Failure or Agent to Seuit.
There was no error in charging that if
the policy was delivered and the premium paid
to the defendant's agent, the company would
not be relieved from liabilitr merely becanae
its agent failed to remit to it tbe amoont of
the premium.
[Ed. Note.— For other eases, see Insonnee.
Cent Dig. { 928; Dec Dig. 8 8^1'*]
5. Tkial ' (8 256*)— iNSTBUcnoHS— Request
roB MoBB Specific Chaboe.
In the absence of a request for more spe-
cific Instructions, the foUowmg charge is not so
deficient in fullness as to require a new trial:
"A witness may be impeached by disproving the
facta testified to by bim; a witness may be Im-
Eeached by contradictory statements previous-
j made by him as to matters relevant to his
testimony and the case; and if be may have
been sought to have been Impeached, he may
he sustained by evidence of general good char-
acter. The credibility of the witness is a mat-
ter to be determined entirely by the jury. Nor
would the court have you to infer, from what
the court has said to you, that any witness has
been Impeached, or that any witness has spoken
an untruth. The credibility of the witnesses
is a matter entirely for the jury to determine."
Although not so Instructed in terms, the jui7
must have understood that they should not be-
lieve the witness, if they thought he had been
successfully Impeached.
[Ed. Note.— For other cases, see Trial, Gent
Dig. 88 628-641 ; Dec Dig. 8 256.*]
& Evidence (| 77*)— PSBaVMpnoNa — 8up-
PBESSIOH OF EVIDEKOB.
The fact that a party called only one of
three witnesses who had an equal opportunity
to know the fact sought to be established does
not authorise an inference that the other wit-
nesses would have testified differently, or war-
rant an instruction to this effect to the jury.
[Ed. Note.— For other cases, see BHdoioe,
Cent Dig. 8 97; Dec Dig. 8 77.*]
7. Tbial (8 260*)- Instbuctions— Requeot,
Other than as above dealt vrith, the per-
tinent and legal requests to charge which were
Di^ * Am. Dig. Kv-iigr^fltf ?!»'tWgle
•For etbsr easas m» sssw topic and sseOon NUHBIS b Dso.
68i
76 fiOtTTHEAfflEBk BSXPORTflB-
(Oft.
refaaed weire aut>stftotIa]lr coTered
charge giren to the Jury.
[Ed. Ndte^FoT other caaei, aee TriaL Gent
Dj*. U 661-668; Dec Ug. IftSO.*!
8. BumuunoT of Btidbkob.
Xlie evidence warxmnted the Terdlet
Error from Olty Conrt of Leesburs; EL K
'Lonr. Jodse. ■
Action by Pearl H. Bagan against the Oltl-
aena* Nattonal life Inanrance Oompany.
From a Judgment for i^alntU^ defautant
brings error. Affirmed.
B. B. Forrester, of Leesbnrg, and I. H.
Hofmayer, of Albany, for plaintiff In error.
H. A. Wllklnaon, of Dawson, for defendant In
MTOr.
FOTTLB, J. Judgment affirmed.
(U Oa. App. 6)
SOUTHERN BT; CO. T. OLZVEB.
(No. 4,890.)
(Conrt of Appeals of Georgia. June 25. 1918,)
(Svllabut hy the Court.}
CsBTioBAKx (i 43*}— Bond— AppBovAXf— SDm<
GIBHCT— NBGESeOTT.
The. statement bj the trial magiatirate In
hla certificate to a petition for certiorari, that
the petitioner baa given bond and aecunty as
required by law, is not an equivalent, nor a
sufficient aabatitnte, for the magiatrate's ap-
proral of the certiorari bond. Any attesting
officer mar legally witness a certiorari bond,
bat onlr tiie officer whoae decision ia to be re-
viewed has .autbority to approve it; and If
the bond is unapproved at the date of its filing
with tiie petition it Is laanffident to anthorize
the clerk to isane the writ, and no snbaeqnent
approval (which m!ght be implied from the
magistrate's certificate or otherwise) can cure
the deficiency. "A writ of certiorari in a civ-
il case, unless sued ont in forma pauperis, la
void, if tbe same be iasued before the appli-
cant has given the bond required by Civ. Code
1910, I S186; and the bond, to render it ef-
fectual, must be approved by the judge or Jus-
tice of the conrt in which the case was orig-
inaJIy trifd." Dvkes v. Twiggs County, 115
Ga. 699-701, 42 S. B. 37, 38. "No snbsequent
action approving or ratifying the bond will save
the certiorari from dismissal." State v. Wynne,
4 Ga. App. 719, 62 S. E. 499.
[Ed. Note.— For other cases, see (Certiorari.
Cent. Dig. H 74^ 80, 91-97; Dec. Dig. |43.*J
Error, from Superior Court, Hall (bounty;
J, B. Jones, Judge.
•Action by W. Oliver against the South-
em Bailway Company. From a Judgment
of. the sup^or court dlnnisslng certlonit
defendant brings error. Affirmed.
Adams & Qulllian, of Gainesville, and OL
B. Faulkner, of Bellton, for plaintiff in error.
J. D. Underwood and Wm. M. Johnson, both
of GalnesvlUek for defendant In orror.
BUSSELL, J. On the call of the case
In the court below the defendant in cer-
tiorari moved to dismiss the petitlon,^ because
the certiorari bond did not show on Its face
that it had been approved by the Justice sf
the peace who tried the case. The Judge
of the superior court sustained this motion
and passed an order dUmigring the certio-
rari.
We are of the opinion that the court prop*
erly dismissed the certiorari The plaintiff
In error relies upon those decisions of the
Supreme Court in which it was held that,
if It appeared from the record that the certio-
rari bond had in fact been approved, the
certiorari should not be dismissed, and upon
the fact that, inasmuch as the magistrate
who tried the present case certifies, in his
certificate as to the payment of costs, that
the petitioner has given the bond required
by law, this statement of the magistrate can-
not be otherwise considered than as an
implied ai^roval of the bond which appears
In the record. After a careful review of all
of the decisions of the Supreme Court upon
the point now before us. we are convinced
that there cannot be such a thing as an Im-
plied apitroval of a certiorari bond. The state-
ment of the magistrate who tried the case,
in his certificate as to the payment of the
costs, that the petitioner for certiorari "hsB
given the bond required by law" Is not the
equivalent, on a sufficient substitute, for
that express and unequivocal approval of
the bond which must be evidenced by the
signature of the magistrate prior to the fil-
ing of the petition and the Issuance of the
writ There can be no such thing as ratifi-
cation of a bond by Its acceptance-
In Dykes v. Twiggs County, 115 Ga. 698,
42 S. B. 86, the -Supreme Court held tha^ "a
clerk of a su[>erior conrt has no authority
of law to Issue a writ of certiorari, not ap-
plied for In forma pauperis, unless the plain-
tiff files with his petition for certiorari such
a bond as that required by the Civil Code,
I 4639 [OvU Code of 1910, S 5185], which
must, either on Its face, or by other written
evidence bearing the official signature of the
Judicial officer before whom the case was
tried In the first Instance, show that It has
been duly approved by him." In that case
Justice Fish followed the rulings made in
Wingard v. Southern Bailway Co., 109 Ga.
177, 34 S. B. 275, and Stover T. Doyle, 114
Ga. 85, 39 a E. 939, and pointed out that
the use of the expressions that "the record
must show somewhere that such Justice did
accept and approve the bond," used In Hes-
ter V. EeUer, 74 Ga. 869, or that "the fact of
approval may be evidenced • • ♦ by any
conduct on the part of the trial Judge show-
ing his acceptance of the bond," used in Ham-
ilton V. Insurance Co., 107 Ga. 728, 83 S. B.
705, and similar language used In Wingard v.
Southern Bailway Co., 109 Ga. 177, 34 S. E.
275, was due to the peculiar facta of these
cases and was purely obiter. In the Win-
gard Cas^ supra, the Judgment of the Jndge
of the snpeMor court was reversed, and it
rer «tM Mae* Nt aana teple and aaetlon NOMBSfi in Dae. Dig. « Am. nit:t&(^m<hdB9fl^^(S^i^l^!i
SMITH ▼. STATS
Was held Uiat the Jtidge erred In refusing to
eostalD a motion to dismiss the t>etltlon for
certiorari, because It did not apl>ear that the
bond filed by the plaintiff in certiorari was
Japproved by the Justice of the peace In whose
court the case had been tried. The precise
ruling of the court was that, "the certiorari
harlng been Issued In the absence of a duly
approved bond, the writ was void, and the
motion to dismiss the same ought to have
been sostained," and for this reason, as
pointed out by Judg« Fish in the Dykes Case,
ihe dictum of Justice 'Lerwls that "while the
law does not require any formal certificate
■of such approval, or any special method of
showing the acceptance by the magistrate of
the bond, yet It must appear from the record
-that such acceptance and approval were
had," was a statement upon a question not
then before the court for decision.
In Stover v. Doyle, 114 Ga. 85, 89 S. E.
939, it was held that the bond given by the
applicant for certiorari, in order to be ef-
f^ctoal, must be approved In some manner
by the ]udge or justice of the court in which
ithe case was originally tried; and this lan-
guage might seem to . give support to the
argument of the plaintiff In error in the
present case but for the ruling in the Dykes
Case, supra, and but for the fact that It is
very apparent from die decision that the
language In the headnote was used Inadvert-
ently. The exact point before the court was
^e dismissal of a petition for certiorari,
<ipon the ground that the certiorari bond
had not been approved by the Judge of the
■conrt In which the case was tried; and the
Judgment of dismissal was afilrmed. It was
therefore unnecessary to rule upon the mode
•ol approval that might be adopted, and evi-
dently, from the opinion of the learned
presiding Justice, It was not intended to
provide any other mode of approval than
that which would be Implied In the plain
meaning of that word, for in the opinion
Judge LumiAln says: "The statute ueceB-
-sarlly means an approved bond, and accord-
Jugly this court. In Hamilton v. Insurance
Co., 107 Oa. 728 [33 S. E. 706], held that
•when a writ of certiorari issues upon the
■filing of a bond, which has not been ap-
proved by the Judge or Justice of the court
in which the case was tried, the writ is to be
tteated as a nnllii?." The court then de-
■clines to overrule the decision in Wingard v.
jSouthem Railway Co., 109 Ga. ITl, 34 S. XL
275, and Carpenter v. Southern Railway Co.,
112 Ga. 16S. 37 S. B. 186. holding Uiat the
^Mses of Monmler *. State, IS Ga. 076, knd
Watson T. State, 8b Oa. 237, 11 S. E. 610,
an ap^tcable only to wdts of certiorari In
■criminal cases.
The niUnsB 1b Btown t. State, 124 Ga.
■411, CE2 S. B. 745, and tat Johnston t. State,
T Ga. App^- 249, D60, 87 8. U 684, are based
«pon tbla distinction, polntetf out bs Presid-
ing Justice X^umpUn In the Stover Case,
supra. In ^erring to the Uemmler and
'A'^atsoB Cases. The present case, however,
la one of certiorari to review the Judgment
in a civil case, and It Is clear that, as to
dyll cases, the ruling In the Dykes Case,
supra, la controlling; for It has been fol-
lowed in Miller Co. v. Anderson, 118 Ga. 432,
49 S. R 365, and In Alabama Midland Ry.
Go. V. Stevens, 116 Ga. 790, 48 S. EL 46. And
even as to criminal cases the distinction to
which we have above referred as dependent
upon the ruling In the Memmler and Watson
Cases seems to be considered no longer
existent or controlling; for the rule laid down
In Dykes v. Twiggs County, supra, was fol-
lowed In HiU V. State, 116 Ga. 833, 42 8. KL
286. and in Brown v. State, 124 Ga. 414, 415,
62 a E. 745. Whatever may be the conflict
as to the role in certiorari In criminal caaea,
there can be no doubt that the correct role
In certiorari brought to review Jnd^ents
In dvU cases is that stated la tbe headnote
of this dedslon.
Judgment affirmed.
(U Oa. 84)
MAYWEATHER v. MAYOR, ETC., OF CAB-
ROLLTON. (No. 4,931.)
(Court of Amwals of Geoigla. Jons 26^ 3913.)
(BvUaima »y f Jk« GomHJ
Conviction ScsTAinsn.
The evidence authorized die conviction <rf
the defendant, and there was no error in over*
mllng the certiorari.
Error from Superior Conr^ Carroll Goon-
ty ; R. W. Freeman, Judge.
ElU Mayw-eather was convicted in tbe
mayor's court of Garrollton, and from denial
of certiorari in the superior court he bringa
error. Affirmed. '
Smith & Smith, of Carrollton, for platntUC
in error. J. O. Newell, of Carrollton, for de-
fendant in error.
RUSSElIf, J. Judgment <»ffliti4^
(U Or. App.
SMITH v. STATE. {No. 4,886,)
(Court of Appeals of Georgia. Jnne 26, 1018.)
1. CBnnnAz. Law (| 696*>— ComnnrAircre^
Gbocnos.
There was no abase of discretion in refus-
ing to grant a continuance on the ground of the
absence of a witness, whose evideikee was want-
ed by the accused to attack the credibility <^
one of the state's witnesses, especially since
the verdict did not depend alone upon the twh
timony oC tbe witness whom be sought to Im-
peach.
[Ed. Note.— For other eases, sea Criminal
^^^Cent Dig. SI 1328-1330: Dee. Dig. |
2. Cbiminal Caw (| 824*)— iNBTBuoiaoir ok
ivPEACBiso nEBTmoirr— NscnttTT or Bs-
qUBST.
It has been npaatedly hald that, In the
absence of a timely xeauesU failure ' "
Vte Bthw CUM SM liUM bttk'a^ Mctlos NtmSfelt In Da^ Dig. A Am. Dig: Kv-Na.^UikH'^ib«^
686
78 SOUTHEASTBRN lUlPOBTEB
(Qa.
iuigt to dbarge on the aabject of impeachment
of witnesses is not TeTeraible error. Perdue t.
State, 135 Qa. 278, 69 S. E. 184: JaekMHk T.
State, 135 6a. 685, 70 S. B. 245; Hunt T.
State. 8 Ga. App. 878, 6» S. B. 42.
[Ed. Nott—For other cases, see Criminal
Law, Cent Dig. |i ■199&-20M; Dea Dig. f
824.*]
8. iNSTBCCnOIf ON Statkusht.
The charge of the trial court on the pi1ioii>
er'a statement waa aalwtutlallj in the language
of statute.
4. Definition of Biasonabix Doitbt.
The definition of the term "reasonable
doubt," while not apt or necessary, could not
possibly have misled or confused the Jurj u to
the meaning of the term.
5. No Bbsos— Vkbdict Sustaxkbd.
No error of law appears, and Uw evidence
supports the Terdict.
Error from £sni>erior Conr^ Johnson Coun-
ty; K. J. Hawkins, Judge.
B. K. Smith was convicted of crime, and
brings error. Affirmed.
B. B. Blount, of WrightstiU^ tor plaintiff
in error. U. L. Stephens; SoL Geiu, of
WrigbtSTill^ for the State.
HIIjL, a J. Judgment affirmed.
(JS Oa. App. SI)
HABBISON T. STATE. (No. 4.872.)
(Court of Appeals of Georgia. June 26. 1813.)
(SvOdbut by tKt CovrtJ
FoBGERT (U 6, 35*>— Intent to IhenxuD—
BuBDBN or Fboof.
The intent to defraud being an essentUl
element in the offense of forgery, aud affirma-
tive proof thereof being necessary to authorise
a ConTfctlon, and there being no proof of such
intoit in the present case, the Tetdict of guilty
was nnanthonced.
[Ed. Note.— For other cases, see Forgery,
Cent Dig. 58 4-6; Dec DUTH 5, 36.'
For other definitions, see Words and Phrases,
ToL 3, pp. 2900-2910; toL 8, pv 7665.]
ifirror from Superior Court, Clynn County ;
C. B. Conyers, Judge.
J. F. Harrison was convicted of torgery,
and brliu^ error. Beversed.
J. T. Powell, of Brunswick, and Thomas &
Glbbs, of Jesup, for phdntifl In error. J. H.
Thomas, SoL Gen., of Jesnp, for the State.
POTTLE, J. The accused was convicted
of forging his employer's name to an order,
ivon. which he received a check whldi he ad*
mlts be cashed. He claims that the money
rec^ved from the check was expended fbr
the braeiit of hla employer, by buying feed
for live stock belonging to the employer.
The state was hound to show an Intent to
defraud. The employer does not potitiTely
deny receiving and using the feed, and the
circumstances Indicated that he did. It was
wrong to sign the employer's name to the
order without his consent; but, unless there
was an Intent to defraud, no crime was com-
mitted. The drcumstanees indicating that
the prosecutor was not In fact deftands^ the
conviction was unauthorized.
Judgment rerersed.
(U OS. App. »)
SCABBOBO T. KALHON. (No.
(Court of ^ipeals ot Ocor^ June 2S, IMS.)
(Syllaliu hv the CowrU)
ouabantt (i 61*}— dischaboe of guarantob
—Acceptance of Note.
The decision of this court in this case at
a previous term is controlling upon all the
qnwtions now Invtdved, and the court did not
err in rendering Judgment against the defend-
ant.
[Ed. Note.— For other cases, see Guarantj,
Cent Dig. { 71; Dec. Dig. i 6i.*]
' BmHT from (3ity Court of Tlfton; B. BTe»
Judge.
Action by O. H. Kalmon against Frank
Scarboro. Fnmi a Judgment for plalutur, de-
fendant brings wror. Affirmed.
L. P. Skeen, of Tlfton. for plaintiff Id
error. C W. Fulwood, of TiftoUf for d^end-
ant in mot.
POTTLE, J. This was an action on a eon-
tract of guaranty. Ttva facts as set forth Sn
the petition are fully stated In the o^lon
of this court In Salmon t. Scarboro, 11 Ga.
App. S47, 73 S. E. 846; when the case was
here on demurrer to the petition. The priu-
dples then decided control the case, nie
ftict that one of the guarantors did not con-
sent to the execution of the promissory notes'
by the debtor was Immaterial, as was also
the fact of the execution of the notes them-
selves. The contract of the guarantors was
to pay if the debtor failed to pay at maturity.
The creditor is not attempting to enforce the
notes, nor to enlarge the guarantors' liability,
nor to Increase their risk. The notes were
merely a form of security for the paym«it
of the account, and reaUy operated to the
benefit of the guarantors, rather than other-
wise. T^e notes contained a waiver of home-
stead; and if the guarantors pay the debt
and take a transfer of the notes, they will
be in a better position to enforce their claim
against the original debtor than if they held
simply an assigned open account We cannot
see how the execution of the notes by the
debtor oi>erated to discharge the guaraotora.
See Case v, Howard, 41 Iowa. 479; Smith r.
Dann, 6 HUl (N. Y.) 643.
Judgment affirmed.
da os. App. m
(aa)ABTOWN SDPFLT CO. et aL v. HOOP*
BB et aL (No. 4.82a)
(Ckmit of Appeals of Georgia. June 2S. 1913.)
(BylMnu Jtv the Court.)
Husband and Wife (S 209*)— Tbksfass d
81*) — Conversion or Common Pbopebtt—
Bight of Action— Joint Tbebpassbhs.
The suit was for the value of a bale of
cotton alleged to have been tortloualy takoi
•FteaUwr eases see same tsple and ssetles NVMBBB la Dse. Dig. A An. X>lg.[K^gpi^«k.
Oft.)
BEABOABD AXB LINE BT r. DAVIS
687
from the plaintiffi hj the defendants and con-
Tcrted to their own nse. The evidence waa
■affident to anthorise a recovery 1^ both of the
plaintiffs, who were husband and wife; it ap-
pearing that both owned the land on which the
cotton was grown and that the bale of cotton
had been delivered to the husband by the ten-
ant in part payment of rent due both the hoe-
band and the wife on a rent note, though the
note had ' beoi executed to the huaband alone.
Tbe evidence was also sufficient to show that
the d^endanta were joint trespassers, and, this
being so, all were liable in damages for the
greatest injury done by any one of ihem. Civil
Code 1910, i 4612. The verdict was fuUy sup-
ported by the evidence^ and then li no metit
In any assignment of error contained in the
motion for a new trial.
[Ed. Note.— For other cases, see Husband and
Wife, Cent Dig. IS 766-772; Dec. Dig. | 209;*
Trespass. Gent Dig. { 70; Dec Dig. { 31.*]
Error from City Court of Pollt Coanty ; F.
A. Irwin, Judge.
Action by J. N. Hooper and another against
the Cedartown Supply Company and others.
From a judgment tot plaintifts, defendants
brli^ &TOT. Afflmaed.
WoL W. Mimdy, of Cedartown, for plain-
tiffs in error. .John K. DavlB^ of Cedartown,
Cor defendants in uror.
POTTLE, J. Judgment afflrmnfl.
(U Oa. App. 14)
SBABOABD AIB LINE RT. T. DATIS.
(No. 4.776.)
(Oonrt of Appeal! of Georgia. Jnn« 26, 191S.)
(BpOubiu lnf tha Court)
GOBPOBATIOHS 0 607*)— PBOCBSB— SEBTXOB—
AlfKKDUKNT or BeTCRN.
Where, in a suit against a corporation,
the officer's return of service shows that the
corporation has been served, It is permissible to
amend tlie return so as to show that service
upon the corporation was perfected by handing
a copy to a named person as its agent In charge
of its office and business in the county where
the suit was brought
[Ed, Note.— For other cases, see Corporations,
Cent Dig. I! 1971-1974, 1976-2000; Dec. Dir-
I 607.*]^
Error firom Snperlor Oonrt, Mcintosh
County; W. W. BhepparO, Jndge.
Action by Marcus DbtIs against thn Sea-
board Air Line Ballway. Judgmmt for
plaintiff, and defendant brings error. Af-
firmed.
C N. Feidelson and Anderson, Cann &
Cann, all of SftTannah. for plaintiff in error.
Cbas. M. Tyaont of Darien, for defgidant In
error.
POTTLB, J. Suit was brou^t In a jus-
tice's court against the Seaboard Air Line
Railway, and the officer's return of service
was as follows: "I have this day served a
copy of the within summons upon the S. A.
L. By. Co., Mch. 20—12. Louis BaUey, Gon-
Btable." The defendant failed to appear, and
a default judgment waa entered in faror of
•ireretbwoas«saeaaaiaateplaBndBsstloB2nniBBBUiO«i.Dls.*Aa.DlK.Kar-2«i^tofiikt%ll^;
the plaintiff. To the levy of the execution
the defendant filed an illegality, setting up
that the judgment was void for want of a
legal return of service. On motion of the
plaintiff the constable was allowed to am«id
his return of service by stating that he bad
served the defendant "by handing a copy of
the within summons to R. E. Yoemans, its
agent at Darien Junction." The record
shows merely that the return was amended
by sbovrlng the manner of service, but coun-
sel for both Bides state In their brief that the
amendment waa In the language above quot-
ed. It will therefore be dealt with. The de-
fendant's certiorari waa ovemded and it
excepted.
The return of the officer Is but evidence of
service. It is the fact of service that gives
the court jurisdiction of the defendant and
not the entry of the officer. It is, of course,
necessary, before the court can proceed, to
have t>efore it evidence of advice. But the
return of service itself is not jurisdictional.
It there Is an entire absence of. a return, or
if the return as made Is void tiecauae idiow-
ing service upon the wrong person or at a
time and place or In a manner not provldeo
by law, tbe court cannot proceed. If, how-
ever, the fact of service^ appear, but the offi-
cer's return la Irr^ular or Incomplete, It
should not be treated aa no service, but rath-
er as famishing defective proof of the fact
of service Jones v. Bibb Brick Co., 120 Oa.
S2L 48 8. E. iSL The return of service waa
defective In the presmt cas^ because the
return fitiled to set forth the mode of service.
OivU Code, I 226& If the return ahowa serv-
Ice iwon the wrong person, the court has no
authority to oiter Jodgmeot by default.
News Printing Co. v. Bmnswlde Pub. Co.,
113 Oa. 160^ 88 8. B. 833. Such a return is
not mexeiy defective or irregular; It ia ab-
solutely void aa to the defendant, and con-
stitutes no evidence of servloe. An Irregular
return may be amotded so as to set forth
the real truth In referoice to tbe servlice ac-
tually made. Civil Code, 1 STOO. Spch an
amendment may be made on the trial of an
Illegality in which tbe anfflciency of the
service la attadted. Marsh v. PfaUllpi^ 77
Oa. 486.
In the presoit case the officer's return waa
not void, but merdy Irregular. The law re-
quired service to be made npon the Seaboard
Air Line Railway. The officer's return
shows that he served the Seaboard Air Line
Railway. The only question was whether he
had served the corporation in the manner
required by law; that is, by service upon
an agent In the county having charge of Its
business. If the officer had said in his re-
turn that he had served the defendant by
handing a copy to a named person, as agent,
the return could have been amended so as
to show that this Agmt was In charge of the
corporation's business in the county. South-
T8 SOpTH^lASTBRN BEPOBTEU.
ern Express Co-, r. National Bank of TUton,
i Ga. App. 899, 61 S. E. 857. And so, where
the . officer's tetnm shows service of some
sort upon the corporation, it may be amended
BO as to show that serrlce was perfected in
the manner required tqr law.
Judgment affirmed.
<13 Ga. App. SB)
PITMAN T. HODGES. (Na 4.815.)
(Oooit ot Appeals of Geoi^a. June 26^ lOlS.)
' (Syllalmt hv th€ Court,)
PutaniRo (I 248*)-nAii»iDinHT.
An acUoD ddod an acconnt for goods Bold
and delivered and for money expendeid for the
use of the defendant cannot be converted by
smendnwnt into an tction for the breach of a
contract bj the defendant to purchase the
plaintiff's mterest In a copartnership of which
they were both members, aod for the benefit of
which the sooda and money were fornlBhed.
[Ed. Note.— For other cases, see Plesding,
Cent Die 11 889, 687, «8ft-706, 708; Dec Dig.
I 24a*]
E^r from City Oourt of BandersvUle;
B. W. Jordan, Judge.
. Action by O. T. Hod^ against H. B.
Pitman. Judgment for ptalntUT, and defend-
ant brings error. Berersed.
J^ J. Harris of Bandersrlll^ for plalntifr
In error. Drang ft Evans, of SuidersvUI^ for
d^endant In error.
POTTLE, J. Hodges sued Pitman on an
open acconnt The petition was in the usual
form, alleging Indebtedness In the sum of
$^5, besides Interest, on an account, a copy
of which was attached to the petition. The
account contained a number of items for
sums paid for machinery, fixtures, eta, and
other- items, under different dates, of divers
quantities of syrup. The plaintiff offered an
amendment setting up that the plaintiff fur-
nished to e partnership, of which he and de-
fendant were members, certain money and
articles as shown in the bill of particulars
attached to the petition, and that the de-
fendant contracted to pay to the plaintiff the
sums set forth In the account, for the plain-
tiff's interest in the partnership business;
that the plaintiff did surrender his said In-
terest, and the defendant failed and refused
to pay the amount agreed on. An objection
to this amendment, on the ground that it set
forth a new cause of action, was overruled,
and the plaintiff recovered a verdict The
case Is here upon a bill of exceptions assign-
ing error upon this ruling and upon the
overruling of a motion for a new trial.
As the petition stood before amendment
the suit was one to recover for money paid
for the use of the defendant, and to recover
for goods sold and ddiverod to him. The law
implied a promise by the defendant to reim-
burse the plaintiff for the sums expended and
to pay for the goods received by the defend-
ant There may, however, have been an ex-
press promise to pay, bat this would not
have prevented recovery on the account
Hence It Is that In a suit on an open account
for goods sold and delivered the petition may
be amended by alleging a special contract and
setting forth the terms and conditions of the
promise. Such an amendment Is, however,
allowable only for the purpoee of alleging the
perttnent facta and drcnmstances under
which the sale and delivery were made, and
not for the purpose of counting upon the
contract as a distinct cause of action. Tnm-
lin V. Bass Fuma^ Co., 93 Oa. S84, 20 S. EL
44; Uay Mantel Co. v. United States Blow-Pipe
Co., 93 Ga. 778, 21 S. E 142 ; Ala. Const Co.
V. Continental Car Co., 131 Ga. 365, 62 S. E.
160. The suit cannot by amendment be
changed from one to recover the price of
goods sold on open account to an action for
damages for the breach of a contract Such
an amendment -would Introduoe a new cause
of action and present issues which could not
arise under the cause of action originally
declared on. See Groover v. Tattnall Snpply
Co., 10 Oa. App. 67», 73 S. B. 1083 ; HartweU
Ry. Ca V. Kidd, 11 Ga. App. 771, 74 S, B. 3ia
In the original petition the plaintiff, In effect,
alleged that'he had sold and delivered certain
described articles to the defendant and had
paid ont cettain money for his use. In the
amendment it is averred, in substance, that
the defendant agreed to purchase the plaln-
tlfTs interest in a copartnership for a certain
sum, -and failed and refused to comply with
this, contract.' '^hia fs but an effort to re-
cover, from the defendant for breach of a
contract .of purchase, and It bears no re-
semblance to the suit as originally brought
It happens that the sum. to be paid as the
purchase price was to be ascertained by look-
ing to the value of certain goods and the
amount of money which the plaintiff had
furnished to the partnership, but the cause
of action disclosed by the amendment Is,
ueverthelees, ' essentially for the breach of a
contract by one partner to pay the other's
Interest Ip the partnership business. It Is
true that in the amendment there is no ex-
press prayer for recovery upon the cause of
action therein disclosed, but there conld not
have been any other purpose than this in of-
fering the amendment and proof of the facts
therein set forth would have shown a fatal
variance between the original petition and
the proof. The court erred in allowing the
amendment and ftU that occurred tbereaftw
vafi nngatoij.
Judgment reversed.
•yarrtlnf essiswe ■■■w lwioagiaeeUaaWUMBMUD Pea. Pig.* Am. Dig. Key-He. 8iclM*He»TXad«e«
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(TS W. T». 278> ...
FBRGTTSOM r. GLADT FOBK LUHBBR GO.
fflapreme Court of Appeals of West Tirfiiiia.
April 16, 1913. Rebearlng Denied
June 80, 1913.)
rSvnabM by the 0«wrtj
"L. MAffm AND Sebtaut (J 189*)— DuTi <w
UaSTKB— SUPXBXMTBRDKIfOE.
The maater is not bound to be preeent at
all times to superintend the work and sive di-
rections to his employes, but aiar employ a
foreman for that purpose.
[Ed. Note.— For other eani. see Master and
Servant, Cent. Dig. SI 427-^ 437-M8; Dee.
Dig. I 189.«]
2. Maotkb and Sebtant (1 189*)— Iiijxmr to
SSBVANt— NkGUOENCB Of FOBBUAIf.
The master's liabilitT for Injury to Us
aerrant, reaultiiis from the uegUgeDce of his
foreman in cham of the work, depends upon
whether the negusent act relates to a noaaa-
aignable duty of the master.
[Ed. Note.— For other cases, see Master and
Serrant. Cent. Dig. H 42{M8S, 487-448; Dec
Dig. S ISO-*]
8w Warn AND Sbbtant (| 216*)— Injust to
SKBVANT— NbOLIQSNCB of FOBEHAN— Nov-
A8BIGNABLB DUTT.
A case in which the master la held not lia-
ble (or the negUgenee of its foreman, which
caused plaintiff's injury, on the ground that the
negligence was one of the riska which plaintiff
had assumed, and did not relate to the master's
DonasBlgnable duty.
[Ed. Note.— For other eaaesjHe Ifaator and
Servant. Gont. Dig. H S67-:678; De& Dig. I
216.*]
Error to Olrcntt Ooart. Bandolpb Ooiinty.
ActloD bgr Andravr Fergason againat tbe
Gladr Foric Lumber Companr. Judgmoit
for plaintiff, and dfltendaat brings error.
Beveraed and remaoded.
Talbott & Hoover, of Blklns, fdr plaintiff
In eiTor. J. I* 'W^inslcy and W. B. Bater,
both of Kklna, (or dafendant in! error.
WILLIAMS, X Wik of error to a Jodg-
ment of the drentt court of Randolidt cotin-
ty in favor of plaintiff for (8,000. In an ac-
tion of trespass on the case for damages on
account of a personal injury alleged to have
been caused by defendant's negligence.
Defendant was the owner of a large saw-
mill and lumbering plant, and in connection
therewith operated Its own private rail-
roads, losing cars, and engines fbr the han-
dling of its logs and lumber. There was a
Ude track or switch connecting with Its
main line upon which cars were placed for
repairs. Plaintiff was employed as a day
laborer upon tiie mtllyard, and at the time
of hla injury was assisting Mr. Hamner, the
blacksmith, to put a drawhead in one of the
cars, barbig been directed to do so by 8. V.
Polling, the yard foreman. There were two
or three other cars on the siding, between
the broken car and tbe switch. Some time
In the afternoon Mr. Poling went to the sid-
ing where the men were at work, and aSked
Mr. Hamner If he conld 'c<miplete the repairs
tihat evening, stating be would Uke to put
plaintiff on another Job on Monday morning.
This was on a Saturday. Mr; Hamner re-
plied that he could finish by working a little
over time that evening, and told Mr. PoUng
to see the engineer and tell him not to back
tbe engine In on tha switch while they were
at work, and be said he would do so. This
conversation waq in the presencie and hearing
of plaintiff, and he was thereby informed
that the engine was liable to be run on to
the switch against the cars. PoUng neglect-
ed to warn tbe engineer, and the engine was
backed upon the switch, shoving tbe loose
cars against the one on which plaintiff and
the blacksmith were working, breaking plain-
tiff's leg and otherwise injuring him. It la
shown that Poling actually forgot that the
men were at work on tbe car, and was acting
as fireman on the engine at tbe time of
accident, threw the switch, and signaled to
the engineer to back onto the aiding. These
facts are tolly proven, and axe not denied.
Deftodant offered do pnxMC, but ree^ Ita
case upon a donnrrer to plaintUTa avidanoe.
The court overruled the demurrer and rm-
dered Judgmaat for the damagea aaaeaaed bj
the JnzT.
The case turns upon the answer to this
question: Waa PoUnft ttae yard foreman,
whose negligence was the proximate cause
of plaintUTa Injoryr a Ttoe principal. In r»-
i^ect to tba negllgait act; or awrely a Cal-
low aervaat? PlBtotura-connsd aasnme. In
their brief, that because Poling was foreman
and had antiiorU? to direct ttie movemento of
tbe men under him he was therefore a vice
principal. But that does not naosBaarllr fol-
low. The law la, aa recognized by thla court,
the oonrto of tlie United States, and of most
of the states, that the UablUty of the ma».
ter for injury to tbe aervant depends upon
whether the n^(Iigent act relates to a duty
which the master is bound to perform, and
not niton the supf^or position of the negli-
gent servant If the negligence causing the
injury respects a duty which the master owes
to his servant, the master ia liable, whether
the negligence be that of a superior, or of an
inferior servant All persons engaged In the
performance of the same general work, al-
though working In different grades or de-
partments, are fellow servants^ notwithstand-
ing one of them may be a foreman over the
others.
[1 ] The law does not Impose upon the mas-
ter a duty to be present always, to give per-
sonal supervision to the work and directions
to his servants. But It enjoins upon him
certain other duties. He is bound to use
reasonable care to provide his servants a rea-
sonably safe place in which and with rea-
sonably aafe machinery and appliances with
which to work. He must exercise reasonable
care In the selection of comitetent servants;
and, if tbe work is so complicated and classi-
fied that dangers incident to tbe pecformanc
9tb«r CMM AM jMUl topis sa« isfttaa nuhbui ib dm^iMs. a a». x>to> Kv^'fiSitbbl?
78 8.B.-44
690
78 SOnTHBASTBBN BBFOBTBB
(W.Tt.
of It cannot reasonably be antldpated anA
guarded against by tbe serrants, he must
establish reasonable rules for their protec-
tion. Having performed bis duty In tbese
respects, the law discharges the master from
liability for Injury to the servant reBulting
from the employment The servant assumes
such risks as are Incident to the nature of
the employment, whether on account of acci-
dent or negligence of a fellow servant. Plain-
tiff does not allege that defendant was negli-
gent In the selection of Its foreman, or Its
laborers, or that It failed to formulate rules
regulating tbe manner of carrying on the
work (even If such rules In this case were
necessary), or that the place or the applianc-
es were unsafe. The only negligence averred
Is the act of backing the engine against the
cars on tbe switch. That the foreman's neg-
ligence was the proximate canse of plain-
tUTa Injury is fully proven. But his negli-
gence In respect to that act is not the negli-
gence of defendant Before we could attri-
bute hla negligence, to it, we would have to
say that It was Its duty to be present all the
time, to superintend and direct the move-
ments of its men; and that Is not the law.
[I] Defendant's foreman Is not Its alts
ego, or vice principal, for all purpraes. Xfo
Is snch only isi respect to the perfiwmanoe of
fl»)Be duties -wbUSi the company owes its
semste. If ^ury result from his negli-
gence In the perftnrmance of those duties,
then the master Is liable; and in nepeet to
mth nonassignable duties the same mie le-
Bpectlng the master's liability applies, wheth-
er the n^Ugenoe be that of a foreman or of
bis snbordlnate. Acts relating to his duties
cannot be delegated by tbe master, so as to
escape Uab<y for negligence in tbe doing
of them. And, on tbe <^er hand. If tbe neg-
ligence which Is the approximate cause of tbe
Injury does not relate to the master's duty
to bis servants, he is not liable, even though
the negligence be that of a superior servant
The master's liability is determined by the
nature of the negligent act and not by the
grade, or position, of the servant who com-
mitted it This proposition has been so fre-
quently asserted and discussed In former de-
cisions by this court that we deem it unnec-
essary to elaborate further upon it In this
opinion. We dealt with it in the recent case
of Miller v. Umestone Co., 70 W. Va. 644, 75
3. E. 70, and we refer to tbe discussion there
as being equally applicable to the facts in
this case. See, also, the following authori-
ties, most of which are dted in the opinion
In Qiat case : 2 Z^abatt on Master and Serv-
ant, 608; Jackson v. Railroad Co., 43 W. Va.
880, 27B.B.278, 31 3.E.258,46ti.B.A.
337; Enlcelcar t. Bailroad Co., 64 W. Ta.
278i m 8. E. 8U, 17 L. R. A. (K. 8.) 370; Ud-
frted T. Bailroad Co., 34 W. Ta. 260, 12 8. E.
612; New England Bailroad Ca v. Conroy,
Adm*r, 175 U. 8. 823, 20 8np. Ct 86, 44 L.
Dd. 2Sli Durst T. Steel Co, ITS Pa. 162, 83
AtL U02; Mlelke T. BaUroad Co., 103 Wis.
1, 79 N. W. 22, 74 Am. St Rep. 834; Fraser
V. Lumber Co., 46 Minn. 235. 47 N. W. 785;
McGinty T. Reservoir Co., 155 Mass. 183, 29
N. B. 510.
[3] Plaintiff was aware of hie danger. He
knew that if the en^ne was allowed to back
against the cars, while he and the bladi-
smlth were at work on one of them, he was
liable to be injured ; he also knew that the
engine would be backed onto the switch at
quitting time. If Poling did not noti^ the
engineer of their presence, and be assumed
the risk of Pollng's possible follure to do so.
Paling's premise to the blacksmith, in the
presence of plaintiff, that be would see tbe
engineer and direct him not to back the en-
gine on the switch while they were working
on the car. was his personal undertaking for
their safety, not an undertaking for defend-
ant, and plaintiff trusted him to perform it
The negligent act was not in resi>ect to a du-
ty which the law Imiwses on the master, and
hence defendant Is not liable. Pollng's prom-
ise to notify the engineer, and thereby pre-
vent what all realized was certain to happen
if be was not nottfled, was an undertaking
by one fellow servant on behalf of another,
and Ids neglect to perform it cannot be at-
tributed to defendant The evidence wholly
tails to prove any negUgence tm its part
Plaintiff's injury was sevwe and bis mis-
fortune Is regrettable; he seems to have bem
guilty of no negligence Mmaelfc But, in view
of Uie evidence, there Is no principle of law
wbidi Justifies the Judgment In bis favor, and
we are therefore compiled to reverse 1^ set
aside the verdict and, tbe case having been
submitted on a demnrrer to tbe evidmoe,
render final Judgment here for defendant
Note by MILLBR, J. <ROBlNSON, J., con-
curring). I question the correctness of this
decision. Plaintiff was injured while at
work on a car standing on a track at the
repair shop, a part of the plant where be
was employed to work. True, in this instance,
plaintiff may have relied on the promise of
a fellow servant to see to it that the engine
was not shifted onto this track while be was
at work there; but was defendant not negli-
gent In not providing ^Inst sndi Injuries
by establishing proper rules and regulations
for moving engines and cars on that track to
avoid such accidents? A rt^ that engines
and cars should not be thrown upon Uiat
track without proper signals or warnings
would no doubt have avoided tbe injury of
which plaintiff complains. I see little room
for differentiating this case from Boblnson v.
City & Ehn Grove Railroad Go., 76 S. B. 861,
recently decided. In that case defoidant
wfts held liable tor injnry to an employe tor
failure to so render his place of en^}loyment
safe. Tbe case Is a close one I adxolt, but
if nninfiuaced by tbe <qdnlon of my Asso-
ciates, I stood alone, I am incUned to tifnjc
I would have TaaebediQiidlfflvtai^ttdl^UB.
MoYET V. BUTOBSa
691
(RW.ya.siS)
UcTET et bL T. BUTOHBK «t «L
(Bnprane Coart of Appeals of West '^gliiljL
Ibr 30, 1913. Rehearins Denied
Jnse SO, 191B.)
1. WnxB 246*)— Rkobdihg Fouoir Wm.
— Sbttino Asidb— Liuitations.
A col^nty court lias no jarfBdictlon, by seo-
tion 2S, chapter 77, Code 1906, after fire Tears
from the date of Ha order admittinf to record
an exMuidlfled copy (tf a «U1 trim another
State, aa therein preaeribed, to set aside aach
order, ai>on the petition and motion of an Inter-
ested party began bat not conclnded before the
expiration of Uie five yeara. By failing to act
vlthln the fire years the jnrladktion of the
court lapses. The statute Operatea not only
upon the parties proceeding, bat npon the jn-
nsdictlon of the conrt to proceed thereafter.
[Dd. Note.— For other cases, see Wills, Cent.
Dig. H 082, 683; Dec Dig. { 246.*]
2. PBOHiBmoH (ilo*>— WBSNLnw-temHO
Audi Recosd of wixx.
Prohibition lies in such caaea to prevent
farther action bj a county court proeeeoing un-
der the statute after the period of limitation
has ran.
[Ed. Note.— For other cases, see Prohibition,
Cent. Dig. %% 37-06; Dec. Dig. { 10.-]
Petition of Tena McVey and George Woof-
ter for writ of prohlMtlon againat Bpbialm
Batdier and otben. Wilt amrded.
Henry BrftmiOD and W. W. Brannon, both
of Weston, for petitioners. H. N. Ogden and
W. S. Meredith, both of Fairmont, for xe-
apondenta.
HILLES, J. Petittoners seek to prohibit
the County Oonrt of Taylor Connty, and the
conunlsslonerB thereof and odier^ from fur-
ther action In a proceeding begun December
16, 1912, and pending therein, on the petltloD
and motion of defendants Butcher and oth-
ers, to have set adde the order of said
court, made December 20, 1907, admitting to
probate an authenticated copy from the pro-
bate court of Monroe Goun^, Ohio, where
the testatrix resided, of the last win and
testament of Louisa Ann Armstrong, known
also as Louisa Butcher and Lou Smith, de-
ceased.
The record shows that on the flling of said
petition with notice attached, said connty
court, December 16, 1912, entered an order
providing for publication to non-resident de-
fendants, and fixing AprU 7, 1913, as the
return day and the day for hearing on said
petition and motion. Whereupon, on Febru-
ary 18, 1913, an application was made to this
court for a writ of prohibition, and upon
which the present rule to show causa against
it was awarded.
The statute goTemlng the subject, section
25, chapter 77, Code 1906, provldea: "Where
a will relative to estate within this State
has bera proved without the same, an au-
thenticated copy and the certificate of pro-
hate thereof, may be offered for probate
In this State. When sueb oapj 1« so offered.
die court to whkh, w flw daA to whom, It
Is offered, shall presume. In the absence of ev-
idence to the contrary, that the will was dtUy
executed and admitted to probate aa a will
of personalty In the State or country (tf tibe
testator's domicile, and shall admit ndi
copy to probate as n will of personalty In this
State ; and if it appear from such copy that
the will was proved In the foreign conrt of
probate to have been so executed as to be
a valid will of land in this State by the law
thereof, such copy may be admitted to pro-
bate as a will of real estatb But any person
Interested, may, within five years from the
time such authenticated copy hi admitted to
record, upon reasonable notice to the parties
interested, have the order admitting the same
set aside, upon due and satisfactory proof
that such autbenUcated copy was not a true
copy of such win. or that the probate of sudi
win has been set a^de by Cb^ court by whkih
It was admitted to probate, or that such pro-
bate was Improperly mad&**
We dedded in Woofter t. Mats, 76 8. BL
131, that the relief provided by this stetnto
was exclusive; that equity had no Jurisdic-
tion, general or statutory, to set aside the
probate of a foreign will admitted to pro-
bate here on an authenticated «^ as pro-
vided by that section.
Jurisdiction of the county court to fur-
ther proceed Is challenged upon two grounds:
First, that more than five years bad elapsed
after the date of the order of ancillary pro-
bate, and bef(»« the date appointed fbr hear-
.ing. Second, that if the first ground be not
good, the writ should go to prohUdt the court
from consldeilDg grounds of revocatten not
specified In the atatute.
Of course If the first ground be sustained,
the second need not be specially considered,
for If the court is noir without Jurisdiction
to condder grounds spedfled. It Is pat»t it
has no poww or authori^ to consider grounds
not spedfled in the stetute.
Ab already noted the order sought to have
act aside was entered December 20, 1907.
The present proceeding was begun December
16, 1912, within five years from the date ad-
mitting the will to record, but the court fixed
April 7, 1913, a date beyond the five years,
for the hearing, so that, according to the con-
tention of the petitioners, the court thereby
lost Jurisdiction. The stetute plainly says
the party Interested may irithin the five
years prescribed have the order of probate
set aside. It does not in terms say he may
do so by proceeding within that time. Re-
spondents contend, however, that the stetute
Is not a limitation upon the Jurisdiction
of the court, but upon the right of the inter-
ested party to proceed, and that if Jurisdic-
tion is acquired to proceed within the five
years, the court has the right at any time
thereafter to pronounce Judgment Which of
these views of the stetute is the correct
onet
•Far ether caasa s» sams topia aaJ ssetton NUMBBB to Dec. Pis. 4 Anu
78 SOOTHBASTBBN 'BBPO&TBB
'.[1] A correct a&Bwer to the question de-
pends largely on tbe nature of the remedy
prescribed. It la conceded that tbe remedy
ia purely statutory, and that without the
statute It would not exist It is a creature
of the statute, and not the affirmance of a
temedy existing Independently of the stat-
ute. At common law no such right existed,
and no rule of practice ^ves It Besides pub-
lic policy and justice call for the prompt
administration of estates. Other provisions
of the same chapter, our chapter on wills,
relating to tbe probate and contest of domes-
tic wills clearly evince this purpose. And
that tbe language of section 25 was not care-
lessly or inadvisedly chosen, we think quite
manifest from the language of section 29,
relating to order or sentence of the court
respecting domestic wills. That section gives
right to an aggrieved party, within one year
thereafter to "i^e liis petition in the circuit
court of such county, • • • appealing to
that court" in which latter court the pro-
ceeding shall he de novo, as If no proceeding
tiad taken place in the county court So
much respecting the purpose and language of
the statute. Besides these reasons involving
the language of the statute, it is a familiar
mle of construction that a purely statutory
remedy ot this character must be conflued to
tbe very case provided for, and extended to
no other, and that it cannot be made avail-
able enept by strict adherence to the letter
ot the statutory luroTiaions, that nothing Is
to be taken aa Intended except what the very
letter of tbe statute authorizes. 2 Lewis'
Sutherland, Stat Cbnst fS 6M-608; Black
on Int. of Lawa, p. aoSw *
Bnt what of the theory that the atatate Is
« Bmttatlon on partiea aggrieved, and not on
the JnrlBdiction of the eoait7 Undoubtedly
the fltatote operates as a limitation on the
parttes ; bnt If the thing pmdtted, the rem-
edy given, may not be availed of ncept by
tbe action of tbe oonrt within the period
prescribed, la not ttie Jurisdtotlon of the court
also limited and presciibed thereby? We
think necessarily sa Unlike sectiMi 6, dkap-
ter Code 1906, relating to Umltattras of
actions general^, the statute here Involved
□ot only operates to limit the action, but to
hound the Jurisdiction of the court to pro-
nounce Judgment It has been held by high
authority, with respect to probate proceed-
ings that the statute operates not merely up*
on the suit but likewise upon the power of
the courts. 23 Am. & Bog. Bucy. Law, 139,
siting Luther v. Luther, 122 lU. 658, 18 N.
R 166, Sinnet v. Bowman, 161 lU. 146, 87
N. E. 885. The slxtb syllabus In the latter
■case reads: *'The seventh section of the stat-
ute of vrlUs, allowing the contest of wills by
bill in equl^ at any time within three years
after their probate, is not a statute of limita-
tion, but is a mere Isrant of Jurisdiction, to
be exerdsed only In case it is Invoked within
the time prescribed, and that Jurisdiction ex-
tends to an Investigation of every ground up-
on which the validity of the will may be as-
sailed." Page on Wills, at page 372, says:
"The statute of limitations In contests dif-
fers from the ordinary statute, in that It la
Jurisdictional In its nature, and can not be
waived by consent of the parties, since after
the limit fixed by stetute, the court has no
Jurisdiction of the subject-matter of tbe con*
test" Citing Meyer v. Henderson. 88 Md.
585, 41 Atl. 1073, 42 Atl. 241. See, also, Nlch-
ol's Estate, 174 Pa. 405, 84 Atl. 666, dted
by the same author in the preceding para-
graph. The latter case Is particularly appli-
cable to the case at bar. The syllabus says:
"A decree of probate of a will is conclusive as
to personalty after three years, and as to
real estate after five years; and the mere
fact that there is an undisposed of caveat
pending before the register of wills during
the time does not affect tbe rule." The
Maryland case Is to the same effect
Assuming that the court had Jurisdiction
for a time between the date of the order fil-
ing the petition, and tbe date of the expira-
tion of the period of llmitetlons, did not that
Jurisdiction lapse by Its failure to act within
that period and Immediately upon the expi-
ration of the time limit? We think the
stetute can receive no other construction.
Analogous statutes are found in our code,
and have received that construction. As for
example, section 114, chapter 60, Code 1006,
prescribing the time within which a Justice
may enter Judgment and set aside Judg-
ments already entered. McClain t. Davis, 37
W. Ta. 330, 16 S. E. 629, 18 L. B. A. 634;
Brand v. Swindler, 68 W. Va. 671, 70 S. B.
362 ; Packet Co. v. BeUvlUe, 55 W. Va. 660,
47 S. E. 301. These decisions support the
proposition that a court acquiring jurisdic-
tion by a proceeding begun within tbe period
of llmltetion may lose that jurisdiction by
falling to act within the time when pre-
scribed by tbe statute. Nlchol's Estate, and
Meyer v. Henderson, supra, also support the
proposition.
[2] Upon these prln<lplea so firmly esteb*
liahed we are of opinion that the county court
is without authority to further proceed in
the case before it and that the writ of pro-
hibition sboold go as prayed tor. Writ
awarded.
(a W. Ta. »U
FESRT T. OHIO VALLBT BLDOTBIC BT.
CO.
(Supreme Court of Appeals ai West Virginia.
April IS, 1918. Behearing Denied
June 80. 1918.Ji
^flfyftoftw* the Oowt.)
1. MasTSB AND Sebtant (If 226^ 21S*)— As-
BUKmoH OF Bisk— Eliotbicitt.
A servant employed to reset electric poles,
requiring his cUmbins amongst live wires for
the purpose of attacoins a pulley to the old
nSRBT T. OHIO VAIXET EI.ECTBIO BT. CO.
898
poles, used In holstinK the new ODes, aBsomes
tiie risk of OH ordibarr dangers incident to so
haiaidons an employmentt bnt not the riak of
■nkBoivn and abnormal danfwa dua to tin niaa>
ter*t negligence.
[Ed. Note.— For other ouea. see Master and
Servant Cent Dig. U 65&^7; Dec. Dig. U
228, m*]
2. Mabtkb abd Sbbtart ({ 119*)— Ikjust to
SERVAHlV-AcnONABUE N«aiJOM0»— Smo-
TBICITT.
It is negl^ienea (or which the master Is
liable to a servant so emrdoyed, who Is injured
or killed on acconnt thereof, to permit a joint
or connection to be made in a Ufhij diarged
electric wire and remain onlnanlatea, and so
dose to one of the metal braces supportlnf a
croBsarm on the pole as to charge it
[Ed. Note.— For other cases, see Master and
Servant. Cent Dig. { ZIO; Dec Dig. 1 119.*]
8. Master and Skbvaivt (i| 119, 217*>-Saf»
Place to Wobk— Insncnoif by Sibvant—
BLECTBicrrr.
The master, aegnieadns In flie vae which
hie servant makes of the old poles In perform*
log bis work, Is bound to see that toe wires
thereon are not In an abnormally dangerons
condition. The rale In regard to reasonably
safe appliances with wUch to work appBea,
and the servant is not reqatrad to make in-
spection.
[Ed. Note. — For other cases, see Master and
Servant. Gent Dig. || 210, 574-600; Dec Dig.
H 119, M-*)
4. MaSTEB ARD SEBTAIfT (| 289*)— IffJITBT TO
SeSVANT — CoitTBIBUTOBT KBaUOBIlOB —
QuEsnoif FOB Jttbt.
In view of the avtdeDce in this casew tin
question of contribotory ne^enca la Md to
he a fact for the Jnry to determine.
[Ed. Note.— For other cases, see Master and
Servant, Gent Dig. {{ 1060, 1000, 1002-1182;
Dea Die. | 388.*r " ' '
Bmr to (Srcntt Court, Otbell Oonn^.
Action t^* Joba W. Perry, admlniatrator,
etc, against tbe Ohio Yalley Electric Railway
Company. From Judgment for plaintiff, de-
fendant brings error. Affirmed.
Vinson A Thompson, of Htintlngton, for
plalntifr in error. U D. Isbell, J. W. Parry,
and Bolt & Duncan, aU of Hnntineton, for
defendant In error.
WIUjIAMS, J. Trespass on fbe case by
Oie administrator of Clifford B. Duiker, de-
ceased, to recover damages for his unlaw-
fnl death, alleged to have been caused by
defendant's negligence. Verdict and Judg-
ment for plaintiff for $7,500, and defendant
was awarded a writ of error.
[1] Deceased was in the service of defend-
ant as foreman of a gang of men engaged in
erecting electric iwlea. Two methods are
commonly employed In raising them. One is
to lift them by means of c^lke poles, and the
other Is, if they are being erected to take
the place of old ones, to hoist them with
block and tackle attached to the old pole.
On the 12th of September. 1910. deceased
was preparing to hoist a pole at the corner of
Third avwine and Seventh street In the dty
of Huntington. He ascended Cbe old pole,
which waa equipped with a primary wire
carrying 2300 voltage, a transforms, and
telephone wires, and had fastened the block
and pulleys to the pole, just above the lower
or third croesbeam, and had b^n to de-
scend, when J. W. Sturgeon, defendaot'a
general line foreman, who was standing near
the foot of the pole, called to falm that the
"fall" line was not pKitwrly adjusted; that
It should hang next to the pole. Instead of
on the outside of the blo^, aa It was. De-
ceased then returned, adjusted the rope, and
in descending the pole caught hold of one
of the metal braces snpiwrtlng the crossarm.
The brace being highly charged with elec-
tricity, and his body coming In contact with
one of the telephone wires, a short, circuit
was formed, and be was killed. There was
an onlnsulated joint, three Inches long, in
the primary wire, which, by contact with
the brace, caused It to become charged with
a deadly current of electricity.
Workmen in climbing the pole were liable
to come In contact with the exposed joint,
and It was liable to come In contact with
the brace. It was negligence to leave it in
such a condition. Mitchell v. Coal Co., 67
W. Va. 480, es S. E. 366; Thomas v. Elec-
trical Go., S4 W. Va. 386. 46 S. SI. 217; and
Thombnrg T. Railroad Co., 6S W. Ya. 870,
64 S. E. 858. It la a common practice among
pole climbers to take hold of the metal
braces, and, If the wiring la normal, there la
no da^er in doing bo.
II] But nonliabill^ la claimed on two
groands: (1) Assumption of risk, and (9
contributory n^;ligenc& The BTailablllty of
the first defense iepenilM upon the scope
of deceased's employment. If be was employ-
ed to flo any and all Idnda of work In repair-
ing an old line whldt he knew was abnormal-
ly daugeroos, then he assumed the risk of
all the dangers Incident to that kind of work.
If be knew the wlres^ as well as the poles,
were out of repair, and was employed to put
both in proper condition, while the curroit
was on the wires, the cause of his death
was one of the assumed risks, and plaintlfl
cannot recover. If such was hia knowledge
and such the scope of his undertaking, he
must have expected to encounter such dan-
gers as the one that caused his death.
But if he was simply employed to set poles,
and did not know that the wires were in an
abnormally unsafe condition, he bad a right
to assume that they were no more dangerous
than similar wires, in like use, ordinarily
are. If such be the case, the exposed vrire
was an extraordinary hazard which he did
not assume, because It is not reasonable to
suppose he could hare anticipated a condi-
tion so abnormal and unusual. The law does
not burden the worianan with the assump-
tion of extraordinary risks. He assumes
only such as an ordinarily prudent man knows
•rw etasr esM* MS same t«la sad seettoB NUMBflilaOMrns^A^rD^^
694
78 SOUTHEASTERN BEPOBTEB
(W.Va-
are Inddent to the employment HoweTer
dangerous the employment, the workman Is
never held to assume risks not ordinarily
Incident thereto, and of which be baa no
knowledge. 1 Labatt, ( 270.
The scope of deceased's employment was a
fact for Jury determination, and we think
they could rery properly Infer from the tes-
timony of defendant's own witnesses that It
was limited to setting poles. He had worked
as a member of the same gang of which he
was made foreman, under another foreman
hy fbsi name of Shafer, from some time In
June to some time In August, 1910, when
Shafer quit He then applied to W. W.
Magoon, defendant's general manager, for
the position of foreman, and was employed
as such. Mr. Magoon testifies that he then
said to him: "Ton must remember that
this work down here takes a very careful
man, a man who knows bow to handle live
wires, becanae that work has got to be dtme
with live wires, In order to ke^ onr service
going in town.' He said, 'I can handle that
all light,* and I then gave him Instructloca
I said, 'All rlgh^ go ahead,' and he took
charge of the woriE." On cross-examination
he said: **Q. He was removing old polea and
putting In new ones at the time? A. He was
working In tbe line of his work; yes, sir.
* * * Q. His dnty was simply to put in
new pfdes, was it? A. No, sir; his duties
were to make all corrections on that line,
clianglng the wires and general line of woric."
Bnt he had been working in this gang, either
as a common laborer or as foreman, from
June to September 12th. and there Is no
proof that he ever transferred a single wire
from an old pole to a new one.
J. W. Sturgeon, who was the "line fore-
man," testified, on his examination In diief,
as follows, viz.: "Q. Do you know who had
charge of the work that was being done there
at that place, Mr. Sturgeon? A. What do
you mean, what time? Q. At tbe time this
accident occurred? A. Mr. Dugger had
charge of setting the polea Q. Was there
anything else being done? A. Nothing, only
setting poles, at that time." On cross-exam-
ination he testified as follows: "Q. Ton were
foreman there, were you, Mr. Sturgeon? A.
I was foreman over the whole line; yes, sir.
Q. And Dnggw was under yon, was be? A.
Yea, sir."
[3] The rule In regard to a safe place and
safe appliances applies In this case, because
the old pole was a means or appliance which
deceased used In the performance of his
work, with the master's acqolescence. It
was therefore defendant's duty to see that
the wires on the pole were In a reasonably
safe condition. Deceased was bound, of
course, to take notice whether tiie straigth
of the pole waa sufficient for tbe pnipose for
wliieb he was about to use 1^ hecanse the
new one waa being erected to take Its place,
and that was suffldent to put him on goard
aa to any defect In the pole; but he was not
chargeable with the duty to use extraordi-
nary care to avt^d unknown danger from im-
perfect wiring. There being no proof Uiat
the line waa being repaired because the wires
were bad or imperfectly strung, deceased
was not bound to use extraordinary caution.
He was not required to Inspect the wiring
to see if there were hidden dangers or latent
defects. This case Is distinguishable from
Whorley v. Lumber Co., 70 W. Va. 122, 78
S. E. 263, dted by counsel for defendant In
that case Whorley was assisting In installing
machinery in a sawmill, and was injured by
the bursting of a steam pipe while he was
listening a leaky joint In it In the presoit
case deceased was killed while making use
of an electric pole^ an already completed ap-
pUance^ as a propo: means of accomplish'
tag the work he was set to do. He was ne-
ther Installing nor repairing the appliance
that killed him. The case Is more analogous
to Madden v. Minneapolis, etc. By. Co., 32
Minn. SOB, 20 N. W. 817, In which Madden,
a brakeman on a gravel train, was injured
because of a defect In the <M XibA over
whi<di gravel and ties were being hauled for
the purpose of repairing It Tbe company
was hdd liable^ Bays the court: "The 2act
that the work In whl<ai plaintift was em-
ployed was that of repairing or making prep-
aratlons to repair the track did not dimin-
ish its duty to furnish safe and snllable
means and instruments to do his work. As
it rsQuired him in that work to use the old
track, It ahonld have had it reasonably safe
for the purposa." That the appliance— tbe
old pole in tms case-^was not erected and
equipped with r^eroice to its use aa a means
for erecting new poles, can make no differ-
ence In the application of the prindple that
it is tbe master's duty to furnish reasonably
safe appliances, because defradant knew that
the poles were constantly so used, and acqui-
esced therelD. The proof is that block and
tadde, attached to the old pole, waa a usual
and customary means employed In raising
poles. "The master's acquiescence in the use
of an appliance for some purpose other than
that for which it was Intended puts him in
the same position as If the appliance had been
originally furnished for that purpose." 1
Labatt I 28- The same rule was applied In
the following cases, which are very similar
to the Madden Case: Dunn v. New York,
etc B. B. Ca, 107 Fed. 666, 46 G. a A. 546;
Lauter v. Duckworth, 19 Ind. App. 535, 48
N. E. 864. The rule applied in cases of in-
Jury to a servant by falling platforms, erect-
ed by the master for the use of his servant,
is the ^per rule to be ai^lied here. In
such cases It is uniformly htid: (1) That the
•wrant la not bonnd to make Inspection;
<2) that tbe workmen wbo prepare tbe place
or tKdlanoe art not ftilow wmnti to tboso
Digitized by Google
B£ED T. BACHMAM
696
who are employed to work In the place or with
the appliance ; and @) that the master is liable
If the defect causing the injury was unknown
to the servant McLean t. Standard Oil Co. of
Indiana, 21 N. Y. Supp. 874; ^ Benzing v.
Steinway & Sons, 101 N. Y. 6 N. E. 449;
Goldle T. Werner, 60 lU. App. 297, aflBnned
in 151 III. 651, 38 N. B. 95 ; Hlnes Lumber
Co. v. Hgiaa, 172 IlL 315, 50 N. B. 225. 64
Am. St Rep. 38; Giles t. Diamond State Iron
Co. (Del.) 8 AtL 368; and Cole t. Warren
Mfg. Co., 63 N. J. Law. 626, 44 Atl. 647.
[4] Whether deceased was guilty of negli-
gence, contributing to his death, was like-
wise a question of fact for the jury. It is
contended that his failure to see that the
tin taped joint In the primary wire rested
against the metal brace was proof of his
negligence, it is proven that be was an
experienced lineman, and that he climbed
the pole in the usual manner. He ascended
It on the side opposite the txansformer, and
the metal brace came between hlza and tbe
exposed joint In the wire. There is evidence
tending to prove tJiat a perstnt In Ha port-
tlon could not see whether the wire came in
contact wlUi the brace or not; -and, it be-
ing an nnosnal condition, he may not have
been on the lookout ft>r it He may have
noticed that tbe insulation on other parts
of 12ie primary wire^ whldi be «ould aee,
was sound and in good condition, and he
may have supposed that tb» parts he could
not see were equally good. He had a right
to assume that defendant had perfwmed
Its duty, and that the wires were normal,
boOi as to place and eonditlonr because tbe
evld^ice is tbat It is tbe custom to tape such
joints when niad& The jtrimaiy wire car*
ried 2.300 voltage, and the nntaped Joint
so dose as to touch the brace, made the posi-
tion of deceased extraordinarily dangerous.
He was not bound to anticipate such danger.
A number of persons were present around
the pole, when deceased was killed, among
them, defendant's line foreman, and none of
them knew that the primary wire was
against the brace. It was not discovered
until afterwards. That no other witness saw
it is evidence tending to disprove that de-
ceased was negligent And tbat witness
'Rodgers climbed the i>ole a few minutes be-
fore, and found it charged and hot is not
condudve that deceased was negllgoit. Why
did not Rodgers discover tbe cause of Its
b^ng charged? Such evidence Is a sword
cutting both ways, and the Jury considered it
There were two theories of the case, de-
pending upon the scope of deceased's em-
ployment as affecting the risk which he had
assumed, and both were fairly presented by
the court's instructions to the Jury.
We find no error and affirm the Judgment
* Reported In toll In tbe New York Sopplenuit!
reported u & memorandum deotelon witboat opinion
In «S Hon. 6SS.
(72 w. V*. *a)
BEED V. BACBBIAN et sL
(Supreme Court of Appeals of West mxflala.
May 13. 1913.)
1. Uonraaon (I 809*)— Tsusns Sua— Ao-
noiT TO Sit Aainn— Suviioibhot or Eti-
DBNO.
Reed, Bachmsn, Beoo, Swope, and Beeves,
being joint purchasers and grantees— except
Swope, wbo. though not named as grantee, had
an equitable, but not legal, tiUe to one-fifth in-
terest tberetn— conveyed the lands In trust to
Hall to secure part of tbe purchase money
therefor. Beed snd Bacbman, having by grant
from Reeves acquired his interest In the lands,
also conveyed the same in truat to Hall to se-
cure the parchase money therefor. Bachman
thereafter by grant from Swope acquired his
equitable interest Reno died, owning bla fifth
interest Under tbe authority of both trust
deeds and "as required by law," Hall sold the
three-fifths interest of Beed and Bacbman to
Dontt, who bad no Interest therein, except as
beneficiaiy ooder the first trust Hall sold to
Cain snd Doutt tbe fifth conveyed to Beed and
Bachman by Reeves, and conveyed to the pur-
chasers the Interests so sold by him under the
trusts. Cain and Doutt thereafter conveyed to
Bachman the interests so conveyed to them.
Reed knew of the sales and deeds thereunder
to Bachman 19 years prior to suit assaitUag the
same as fraudulent
Htld, that the fnnid diargsd Is not sostaiAsd
by proof.
[Bd. Mote.-^!Nw other cases, see Hoi
Gent Dig. Ii ]j09a-U0O: Dec Dig. S 36^.*]
2. Mostoaexs (I 869) — Tbustb fiUu— Ao-
TioK TO Sr abzdb— Bumounox or Bvi-
DBRCE.
In absenee of frandt Bachman aeqnfred
good tiUe.
[Ed. Kote^For other eases, see Mwteagss,
Cent Dig. U 1098-1100; Dec Dig. | m*]
(AmUtmdi SylUh%» »ff Editorial 8iaf.)
8. MOBTOAGBS (S 369*)— Tbubtbb Saue— Ac-
tion TO Srr AsioE— BuBDEii OF Pboof.
A party who seeks to have sales made by
a trustee set aside for irregularity, want of no-
tice, or fraud has the burden of proving his
contention; it being presumed. In the absence
of evidence to the contraiy* that the sales were
regular.
[Bd. Mote.— For other cases, see Moi
Cent Dig. H 1098-1100; Dec Dig. { ~
4. Equity (| 71*)— Lachbs.
Unless a person seeking to annul another's
title in land for fraud in its inception sets with
diligence, equity will deny relief.
[Ed. Note.— For other cases, see Eqnity,
Cent Dig. SS 204-2U; Dec Dig. I 71.*]
Appeal from Glrenlt Court, Pleasants
County.
Action by Joseph S. Reed against M. Each-
man and others. From a decree for defend-
ants. plalntUf aiveals. Affirmed.
H. P. Gamden, of Farkersburs^ O. D. Smith,
of St Marys, and B. A. Brannon, tO. Weston,
for appellant Tan ^Hnkle & Ambler md
ti, N. Tavenor, all of Parfcersburv, for ap-
peUees.
LTNCH, J. Denied relief on final hearing
upon bill seeking partition of lands in Pleas*
ants ooonty, answers den^g xl|^ thereto.
•rw otksr esses eee saaw tople and seetlw NUIIBBB la Doe. Dig. * Am. Dig. Ker-lWi^i^iliPA Be^V
78 SOCTHSASTBRN ftVPOBTBB
(W.V«.
eKidUta BnA proof, plaintiff sMks review and
rerersal bere. The defendants are the wid-
ow and belre at law at Martin Bachman,
who died in 18^4^ claimants of portions at
the lands nnder grants 1^ tdm wUle UTis&
Cranteea of other portions nnder Jndldal
proceedings sabseqnent to Ms death, lessees
for cU and gas purposes, and others. The
land% in which plaintiff claims a seren-tenths
Interest, were conveyed Angnst 9, 1870, by
Patterson, Braford, and Dontt to Beno,
Beeves, Beed, and Bachman. The acreage,
though not material, is not readUy ascer^
tatnahle frrau the record before ns; bnt it
Is razlonBly stated from 1,000 to 1,000 acres,
the deed stating the latter aiiantll7<
Though not named In the deed as grantee,
the bill alleges, and the defendants, who
by thedr answen^ refttr thereto, admit, Qie
proof showB, and various subsequent deeda
state tliat David Sw(v« waa a joint purehas*
er of the lands, each talcing an undivided
one-fifth, interest therein. He, tlierefore. has
or had at least an equitable Interest, en-
forceable agtinat his eopuvdiasna. 1^
failure to name him in the deed evidently
resulted from inadvertence or error on the
part of the draftsman. On July 2, 1874,
Beeves conveyed his interest to Beed and
Bachman.
[1, ]] The interests asserted by plaintiff in-
clude the Beno and Swope two-fifths, and
one-haU of the Beeves fifth, together with
his own, constituting seven-tenths of the
whole tract ffis claim to the Beno and
Swope Interests resta upon the averments of
the bill, denied by answers, that at the time
of the purchase from Patterson and others
he paid therefor, upon an agreement with
.Beno and Swcqpe that unless reimbursed he
should have thdr interests, and that they
fiUled to reimburse him. No one represent-
ing either Reno or Swope is a party to this
salt except Heno's widow, who, the bill al-
leges, Is his sole heir at law ; but of this
there Is no proof. She Is a nonresident of
the state, without notice to answer, except
by order of publication, and does not ap-
pear herein for any purpose. The evidence,
of which more will be said later, In support
of Beed's claim to these interests, is of a
general and tnconcluslTe character — that
Reed, through Reeres. paid $3,600 of the $5,-
SOO consideration for the lands in 1870, and
r^mbursed Reeves therefor. In any event,
Beed cannot now, except upon full and satis-
factory proof, not produced, maintain his
dalm to the Swope interest, because, in 1876,
Swope conveyed to Bachman all his right,
title, and interest in the lands mentioned.
Therefore it. may be said that, tbos far,
Reed's interest la his original one-flftb and
half of the Reeves fifth, and that Bachman's
Interest Is his original one-fifth, half of the
Beevei ttfth, and the Swops aviltabla in-
terest '
But the title is still further involved. On
the same day that Patterson and others con-
veyed the lapds to Beed and others, they In
turn, Swope Jolidns^ conveyed, the samehfkidB
to W. W. Hall, trustee to secure the pay-
ment of tba residue of the unpaid purchase
money, namely, 92,000, divided into notes
payable In different amounts to each of the
grantors In the deed. likewise, Beed and
BaChman, on the day Beeves conveyed hla
interest to tliem, conveyed the same interest
to Hall to secure ttie purchase money there-
toT to Beeves. Acting imder these two trusts.
Hall sold to Oaln and Doutt the Beeves fifth
for fSCO, and to Doutt an undivided three-
fifths interest in tlie original tract for $790.
The date of these sales, although evidently
on or p(ior to March 23 and April 80, 1877,
is not mOTe definitely shown. On the first
dat^ and subsequent to the sale, Hall con-
veyed to Gain and Doutt the Beeves interest,
and to Dontt oa the second date the three-
flftfas Interest in the lands, *Selth all the
right; 0tle^ and Interest of Beed, Beno, Hwope^
Reeves, and Badunan therein, to have and
to hold the s^d real estate unto the said
A. B. Dontt, Ida helm and assigns, forever."
Each of these deeds redtes that Hall sold
under the authority of eadi trust and "aa
required by law." By way of ezidanation
for failure to sell the tract in its entirety
under the tmst of August 9, JSno, and for
selling thereunder the three-flfths only, the
HaU deed to Doutt fOr the tfarefr-flfths re-
cites that prior thereto Doutt had released
to Bachman the otiier two- fifths, because
theretofore Patterson and Braford bad been
fully paid their share of the purchase money.
The record shows sudi release by IX>utt to
Bachman, executed in d4e fOrm and record-
ed. Gain and Dontt, on Apill 13, 1877, con-
veyed to Bachman, for 91,000, the interert
conveyed to th^ by HaU's deed of Mardi
23d ; and for a Uke sum Doutt on A^ 30^
1877, conveyed to Bachman the three-flfOis
Interest conveyed on the same day to Urn
by Hall. Bach of these deeds acknoiriedges
payment of the consideration therein red ted.
Thus It will be observed that Bachman paid
for theee interests a sum in excess of that
paid by his grantors to HaU, trustee.
[S] Reed challenges the validity vt the
HaU sales under the trusts for irregularity
or want of notice, and the purchases by
Badunan from Cain and Doutt as fraudu-
lent The defect in the notice relied on is
pot indicated, except by argument to the ef-
fect that as Doutt released the two-flfths
interest only 12 days before HaU's deed to
Dontt for the three-fifths, the notice was
not and for lack of time could not have
been, published and posted as required by
law. But HaU's deeds. In effect say notice
was so pubUshed and posted. For aught ap-
pearing to the contrary, HaU may have ad-
vertised the tract in its entirety, and not an
Interest only. The other defect is that no-
tice was not personally served od Reed. The
statute did not then require such notice or
personal service an^tt*^^^r«.^^iyj^
iiir.vilO
BEBD T.BACHMAH
697
deed, nor does It now, except where he *'ot
his agent or personal representative be with-
in the county, at least twenty days prior to
t&e salft" Code 1900^ c. 72, | 7. first s6
amended in this state by chapter 140^ Acts
18^ There Is no avermoit or ptoot of this
essential ctmdltton" flemnndliig service, even
if then repaired. Reed does not wpetiUt any
other defect Evoi if spedfled, he aissiiined
-the burden of proving it Lallance v. Slsber,
29 W. Ya. 012, 2 S. B. 775. If none are
spedfled and proven, "it 'win be prraumed
that tlie land was properly advertised," uid
tlurt '*the trustee conformed to the ' law."
Bnrke v. Adair, 23 W. Ta. 189; Fowler v.
S6 W. Ya. 112. 182, 14 S. EL 44T.
The charges In the bill indicative of fraud
are, first, that Seed had paid his share of
the orl^nal purchase money, and of the
purchase money tov the Reeves Interest, and
thatt' therefore, he was not in default, and
that it waa Badunan's fault, If any, Whldi
made the sales by Hall necessary. The other
ground of fraud Is the charge of cons^racy
between Cain and DoutC and Bachman,
Whereby, as alleged, the first two were to
buy the lands and subsequently convey them
to Bachman. This latter averment ia de-
nied by answers, and Is not supported by
any proof whatever. Seed seeks to sustain
the first charge by Beeves as a witness. But
his testimony on this sabject is uncertain,
inconclusive, and Qnreliabl& It is scarcely
conceivable that any man 61 years of age
«ould remember so distinctly, and aver with
such ndnnte detail, what he states in his
testimony concerning transactions occu!rring
nearly a third ot a century before hi« exam-
ination In fact, he admits that his z«coUec-
tion of these evoits was stimulated by read-
ing the record of a former appeal, brought
' to him, as he also admits, by the plaintiff
and his dauj^ter for examination before tes-
tifying, for which he r^>»tedly calls while
on the witness stand, and without wbicA It
may be doubtful whether he would be able
to recollect what he so volubly and confident-
ly asserts. He speaks fllppantiy of himself
as the "moneyed man" In tbe transaction,
and later, as if by apology, he says, "Reed
and I were the moneyed men," when the
evidence shows that both of them borrowed
whateviv was paid by them, if any was paid,
from Reeves' mother, who.' as Reeves now
says, took a deed of trust from- Jacob Beed,
a brother of Joseph Reed, as security there-
for, and that he (Reeves) took the same witii
him to Pleasants county and caused it to
be admitted to record. This deed was not
produced. Had it t>een produced, or its at>-
sence explained. It would at least have tend-
ed in some degree to corroborate Reeves and
lend some credit to his testimony. It may
therefore, with propriety, be presnmed that
no such trust then existed, or ever did ex-
ist
Again Reeves confidently contradicts the
statements of the plalntiCTs bill and the re-
citals in the deed ot trnst by Reed and Badkv
man to Ball, trustee^ In eadi of which It is
explicitly stated that Reed and Bachman
united in Uie making and execution of tbe
two notes thereby secured. He says each
exectited separate not^ not Joint notes.
Both notes are dated Jnly 2, 1874^-«ne for
f877, due at one year, the other for $942. at
two years, Tbe second note Reevee 'says he
assigned to Cain after its matnrtty. It be*
came due In 1876. He returned to Pittsburgh
tii 1871, never thereafter seeing the lands, as
he admits. Tet he says Cain, with ^^m he
was evidently intimate, asked him in 1876
how he was '"making out dp there," dearly
meaning tm the lands, five years after he
had permanently abandoned them, in fact
two years after he had in Pittsburgh sold
his interest to Reed and Bachman.
Admitting the averment? of the Ull as suf-
fldentiy charging fraud, of whldi some doubt
may be properly es^ressed, there Is no proof
thereof, except the discredited statements of
tbe witness Reeves — and he speaks only of
paymente by Reed— -unless fraud la presumed
from the ads of Cain, Hall, Doutt, and Bach-
man, all of whom, except Cain, and he Is In-
capadtated by age, died long before tbe In-
stitution of this suit This condition, there-
tote, leads'us directly to the inquiry whetirn
the salea and deeds thereunder by Ball to
Cain and Douti; and by them to Bachman
were in fftct fraudulent as to Reed, and, It
not fraudulent, whether Bacfaman's purchas-
es operated as deferred payment, for the
joint t>eneflt of Bachman and Reed, of the
debts secured the HaU trusts. In oUier
words, did Badunan's pdrchues from Cain
and Doutt Inure to the comnum benefit of
Reed and Bachman? Reed relies for relief
on both grounds.
First it is noted that, in the bill, plalnUfl
alleges that Bachman informed him in Pitts-
burgh In 1884 of these sales and purchases.
As to Reed, of course^ this allegation must
be taken as true, whelhar denied or not by
answers. Btit it is not denied. He thai
knew, 19 years before ttie institution of this
suit that HaU had sold, that Doutt and Cain
had purchased and conveyed to Bachmnn,
and that Bachman was then, In ^ect, holding
or daimliv to hold the lands thereunder. It
is true he also says in the bill that Bachman
told him, at tlie same time, that he had pdr-
chased for their Joint benefit But this aver-
ment is denied by answers, and not supported
by proof. In fact, there is no proof that Reed
saw Bachman In Plttebnrgh in 1884. or at
any time or place after 1870. His statement
in that respect reste wholly upon the allega-
tions of his bill, which, as stated, must be
taken as true, except In so far as denied by
answers.
Thus It Is apparent that the question pre-
sented for dedslon is not the purchase by
one cotenant of an outstanding titie or in-
cumbrance prior in time or right to that of
the cotenants, nor of a purchase.by aiul oof
Digitized by VjOOy I
698
78 SOUTHEASTERN BEPOBTEB
tenant of tbe Interest of another cotenant in
the common property. But, admitting the ex-
istence of a cotenancy between Reed and
Bachmao, the question Is whether a trust re-
lation arises from the purchases by Bachman
from Cain and Doutt, who bought tbe inter-
est of both Beed and Bachman at a sale un-
der a deed of trust thereon authorized by
both ; neither deceit nor fraud appearing.
That Cain and Doutt could so purchase and
obtain and hold title thereunder against Reed
and Bachman la unquestionable. Under
these circumstances, they were as free to
purchase thereat as any other person or per-
sons. Cain had no prior interest In the
lands, and, so far aa appears, never had.
Doutt was, of course, one of tbe former own-
ers, a grantor In the deed of 1870, and bene-
flc^ry under the deed of trust securing the
unpaid balance of the purchase money there-
for, and bence interested in tbe sale to that
extent only. But that Interest did not dis-
qualify him as a purchaser ; nor was It suf-
flcient to impugn his motives as a bidder at
a public sale of the property subject to the
lien of the trust They could, therefore, as
tbey In fact did, covin, deceit, or fraud not
otherwise appearing, purchase and obtain
deeds therefor from the trustee, acting under
ample authority and "as required by law."
Having so purchased and obtained deeds
therefor, they became the fee-simple owners
of the Reed and Bachman Interests, and le-
gally authorized to hold or dispose of the
same at their pleasure. They could, with
propriet7, sell and convey to Bachman ; and
be, with equal propriety, could purchase and
acquire title from them. No valid reason is
or can be assigned why he could not, pro-
vided, of course, no fraud or deceit entered
into his acquisition of the title thereto.
Reed admits be was on the verge of In-
solvency aa early as 1878, the year of tbe
panic; that he made a general assignment
for the benefit of his creditors in 1876, not
therdlD mentioning hla Interest in th^
lands, except under the terms, "ell my es-
tate, real, personal, and mixed, wherever
situate"; that In 1877. the year of the HaU
sales and deeds he filed several petitions In
bankruptcy In Pennsylvania, In 1878 and 1879
be obtained a discharge from all bis liabil-
ities, paying only 8 per cent thereof, and
in none of which was any effort made to
charge or otherwise dispose of the interest
now claimed by him in the Pleasants county
lands. Notwithstanding Reed's financial con-
dition, and knowledge, acquire by blm from
Bachman, as he says, as early as 1884, of
the Hall sales and deeds, he delayed tbe asser-
tion of any right or daim of benefit from the
sales or deeds until iiftu tbe expiration of
19~ years from tbe date of bis knowledge
thereof. During these Tears in &ct from
1870 to 190S, lie at no time, so far as dis*
idosed, asserted or oideavored to assert any
Interest or claim to an interest in tlie lands
•r tbe rents, issues, oi profits thereof Wby
he thus delayed, under these drcomstances.
he does not pretend to say, except for vague
and doubtful reasons averred by the bill,
which are unsustained by any competent or
trustworthy proot In fact not a word falls
from the lips of any witness by way of ex-
planation for this unusual and extraordinary
delay.
[4] The rule seems Tmlversal that one seek-
ing to hold another as trustee for his benefit
mu^t act with diligence. Otherwise, equity
will deny relief. So, where fraud Is charged.
This rule, and the validity of the Bachman
title, find support in Morris v. Roseberry, 46
W. Ya. 24, 82 8. E. 1019. There the plain-
tiff and defendant were cotenants with oth-
ers as owners of the lands by descent The
cotenant In possession failing to pay the tax-
es, the lands were sold therefor, and pur-
chased by one not formerly interested In the
title, who thereafter, upon receipt of the
amount and interest necessary under the
statute. Joined with the clerk of the county
court in a tax sale deed to the cotenant so
in default The sale and tide thereunder
so acquired were sustained as valid, although
less than 10 years elapsed between the date
of purchase and suit Laches Is held ap-
plicable as a good defense to defeat recovery
in many Instances within a less period than
the statutory bar. In Patrick v. Stark, 62
W. Va. 602, 09 S. EL 606, it is stated that
"the equity rule of laches is applicable to
proceedings to enforce all trusts affecting ti-
tle to land, for the establishment of which
resort must be had to parol evidence, with-
out regard to classification as express, im-
plied, resultant, or constructive tmsts."
Here, Beed relies on a trust or fiduciary re-
lation fttrblddlng purchase by Bachman. But
Bargamin t. Clarke, 20 Grat 644, holds tbqt
when this relation Is no longer admitted to-«
exist, or time and long acquiescence have ob-
scured the nature or character of tbe trastr
or other circumstances give rise to presump-
tions unfavorable to its continuance, In all
such cases a court of equity will refuse re-
lief, upon the ground of lapse of time and
its inability to do exact Justice. In this case
there are such circumstances. This Is the
rule of general application, where the co-
tenant buys an outstanding superior tiUe.
To participate In its benefits, the cotenant
must, within a reasonable time after knowl-
edge thereof, elect not only to claim the ben-
efit thereof, but must also offer to contribute
to the expenses Incident to the purchase; and
"if be unreasonably delays until there is a
change in the condition of the property, or
in tbe drcnmstances of Uie parties, be will
be held to have abandoned all benefit arl^ng
from tbe new acquisition." But Reed not
only nnreasonably delays after knowledge,
but makes no offer to contribute to the ex-
pense of Bachman's purchases or taxes dnce
paid by bim. In tbe meantime tbe oonditio»
of tbe property and tbe circumstances of the-
parties have materially changed— tbe prop-
Digitized by VjOOg[C
STATS T. BCERBILIi
699
erty by tmproTements, the partlw by death
and Infirmity. The active participants, those
who knew all the facts, are dead. None now
live who may defend Bachman's title by
a denial of the averments of the plaintiff's
blU, in support of which he, although exam-
ined as a wltnesa, knew nothing, and said
nothing on which counsel rely to maintain
his right to the relief now sought
It is urged that the decision on the former
appeal settles the principles of the case ad-
versely to the Bachman claims. That appeal
settled nothing except upon the facts alleged
in the bill, the truth of which the demurrants
admitted- But here the facts then so admitted
are denied, and are unsupported by any
proof, or by testimony deemed sufficient as
proof thereof. As an Illustration, the former
opinion dwelt at length and repeatedly on
the Bachman admissions to Reed In the al-
leged conversation In Pittsburgh in 1884.
when now there Is not a word of proof in the
record of any 8U<^ conversation or admls-
tsion, althon^ the denial of the answers
challenged Beed to produce proof In Its sup-
port
For reasons stated, and in view of the
principles herein announced and sustained
by the authorities cited, the conclusion is
reached that there Is no error in the decree
of which the plaintiff complains. Therefore
an order may be entered liere affirming the
same.
<7t W. V«. H0>
STATE T. HERRILH
{Supreme Court of Appeals of West Tirglnla.
Blay 18. 1913J
f8vUabu9 If the Comi.}
1. HoHioiDB (I 228*)— EviDXROa—GoBPirB De-
licti.
Upon ao indictment for murder (in this
case infanticide), before a conviction can be
had, or the accnsed can be required to answer,
the oorput delicti mnst be satiBfactortly proved
either by direct evidence or by cogent and irre-
•istible grounds of presumption, and that sacb
death was not due to natural or other causes
in which the accused did not participate.
[Ed. Note.— For other cases, see Homicide,
Cent. Dig. » 471-476; Dec. Dig. | 228.*)
3. HoHiciDi (I 250*) — EviDsnoK — Som-
OIEMOr.
A case In which the evidence was not suffi-
cient to establish the fact of die crime ehwg-
ed, and to justify the verdict and judgment of
conviction.
[Ed. Note.— For other caaes, see Homicide,
•Gent. Dig. H 61S-617 ; Dec. Dig. | 250.*]
Error to Circuit Court, Tucker County.
Ona Merrill was convicted of voluntary
manslaughter, and brings error. Beveraed.
«nd new trial granted.
O. O. Strleby and Cunningham A Stalllngs,
all of Elklns, for plaintiff in error. A. A.
Ully, Atty. Gen., and John B. Morrison, Asst
Atty. G«i., for the Stat&
MILIiER, X Upon an Indictment for tiie
murder of an Infant child, bom out of wed-
lock, by defendant, its grandmother, the ju-
ry found her guilty of voluntary manslaugh-
ter, and the judgment of conviction thereon
was that she be conflned In the penitentiary
for not leas Utan' one nor more than Ave
years.
The one question, presented in numerous
ways, is, was the corpus delicti established
Justifying the verdict and judgment, which
depended solely on circumstantial evidence?
The mother of the child was defendant's
daughter, a girl of less than sixteen years.
To establish the fact or body of the crime
the state rested Its case mainly on the tes-
timony of a young phyEdcian, temporarily at
the place of the birth, and according to his
own statement of but two years experience,
to the effect that before the birth of the
child defendant stated to him that her daugh-
ter had been sick several times and had
never complained or felt the movements of
the child and gave it as her opinion that the
child was probably not living, but If living,
very weak, and If so she reconmiended that
he make no effort to revive it; that It
would be a good thing to take it to the home
of another daughter, who had a nursing
child— to lose It; that after Its birth defend-
ant threw a blanket over it and when told
by him that she should not do that she an-
swered, that there were i>eople in the house,
and what should she do, to which he answer-
ed, have them removed, which she did; that
it was agreed between them, mother and
grandmother, that the child should be so tak-
en, and that defendant took the child, and
after being gone some fifteen or twenty min-
utes she returned very much excited, saying
she had run the whole way ; that same eve-
ning he visited the mother, and on inquiry
defendant said the baby was fine; that the
next morning he went first to the home of
the other daughter to Inquire about the
child, did not see It, and from there drove
directly to defendant's house, where he saw
her and Inquired of her about the child, and
who said the child was doing well ; later de-
fendant said an uncle had come and taken
the child to Baltimore.
In addition, this witness testified that
about six days after the child's birth, he
gave notice to the public authorities, who
visited the premises, and in a short time
found the child dead and burled under a
stable In the back yard, and that he next
saw the child after it was found at the cor-
oner's Inquest, and identified it as the child
of which he had delivered defendant's daugh-
ter, principally by the string tied on it by
him at its birth. On cross-examination he
admitted knowing that several doses of mor-
phine had been administered to the mother
by another doctor, shortly before be took
charge of the case ; that her appearance was
that she had a good dose, and that he had
*For oth« wes m* auoS toplo and aMtlon NU116ER in Doo. Dig. ft Am. Dtg. Kar-zJ^Mit'tt R«j-Q£!£u^
78 SOUTHBASTERN jSEPORTEB
(W.Ta.
tdjoadlt adrolnlst^red ■ d<we ; . and he i^ve
St as his opinion (hat this drng would hare
bad no effect on Qie child, but admitted that,
when the child came It was In a very low
state of vitality, bat after fifteen or twen-
ty minates It breathed and cried, that Its
skin was more dark than normal, darker
than the average child, the reason for which
he did not know; later he denied having
Mid the child was In a low state of vitality,
but had said it didn't breathe at first Whne
denying that it was done upon or on his
suggestion, he admits that It was customary
with Catholics, when a child is born like
this one. to baptize It, and that when defend-
ant, as he claims, administered baptism he
held the child for her and made no objection
to it
And being recalled, and Interrogated with
reference to what he saw and did after the
child was fonnd and taken to the undertak-
en, where he first saw it he said the child
was as it was exhibited in the court room at
the trial, except it had more clothes on It
that at first the clothes were loosened, and
everything removed except the cloth on the
body and the one that come down over its
face^ that he examined the shoe string tied
aronnd the neck on the outside of the cover-
ings, and gave it as bis opinion that It was
tied ttght enough to choke it "Q. Would
you say it would or did choke it? A. Tea,
sir. Q. How would it suffocate it? A. By
the cloth." And being again cross examined
he testified aa f fallows: "Q. Doctor wh^
yon spoke of the cloth having been drawn
tightly over the child's face, yon dont mean
to say by .an external examination or look at
the dilld that yon could tell whether it was
dead btfore that cloth was tied over It? A<
I removed the cHoth at th^t.time from the
t&oe, but not the string aronnd Uie tiiroat
but I didn't untie the string. Q. Ton don't
mean to say you could tell if It had been
dead before or whether tt died from the
string tied around Its neck, .or the doth
drawn over its face? A. No one could tell
that"
The only oOux evidence offered by the
state was the testimony of McYeigb and
Williams, town sergeant and assUtant and
Donkln, the nod^taker, relating to the find-
ing of the child, Its condlUon when found,
partlcnlarly as .to how it was wrapped, and
the string about Its neck. As to the string
aronnd Its ne(^ the undertaker said It was
drawn he thought very tight McV^h, the
town sergeant Bald, respecting Uie finding
of the body and its ctmdltlon when fftund:
"It was vrrapped in a piece of musUn, and
thai wrapjied In a piece of tldclng. • • •
There was a piece of mnsUn or pillow slip
or something of that kind polled down over
its head and wrapped around the neck two
or three times with a shoe string ; then there
was a shoe string wrapped three times
aronnd the neck and tied, then that one end
of the muslin or pillow slip was brought
around the. body a^d pinned vrlth a safety
pin bud (hen li was wrapped in a piece of
bed ticking, three pieces wrapped aronnd the
neck and tied." He further saya.'ihat when
they tore the rag off of the face be "noticed
that the nose was pressed down flat"
The record shovra there was a coroner's
inquest but the result of that inquest or
what took place, and the scope of the In-
vestigation is not disclosed. The record Is
silent as to whether a post mortem examina-
tion of the bpdy was had. There were doc-
tors and at least one hospital .at the place
of the birth and death of the child. No
marks of violence on the body are shown,
from which death could have results The
state relied solely on the theory of suffoca-
tion or strangulation, due to the coverings
over or the string fonnd tied around the
neck, and yet showed none of the general
evidences of death by strangulation or suff>
cation, which scientific Investigation or evm
common observation usually disclose. Books
on medical Jurisprudence are replete with
information on tills Important subject, for
the guidance of court and counsel. See 3
Wharton ft StiUe. Med. Jar. 79-86, on the
subject •infanticide"— "Death after Labor;"
also the chapter on "Strangulation," in the
same volume, beginning at page 811. Why
was this Important phase of the case neg-
lected? There was no evidence even of tbe
most BU[>erficlal signs of strangnlatton or
snffocation, which the books say are nsaaUr
present It Is unnecessary to repeat hen
what the books say on this subject it satDces
to refer to the books, and to say that in this
case no attention appeara to have been given
to It on the trfaL
Of oonrse we do not mean to Intimate
tiiat conviction would not be Justified with-
out the application of all the sdentlflc tests
referred to In the books, tt is probably true
that competent experts could not have beat
found in the community where this ease
originated and was tried, but If the books
speak truly, many of these evidences ore
apparent to any one, not requiring mu^ U
any, scientific knowledge.
Shall courts and Juries allow those accused
to go to prison on bare suspirion of motive
or drcumstanoe when more unerring evi-
dences of crime If any are at hand and dtber
neglected or siqwressed? Aa awUcable to
this case we think It should be so. Witness-
es tm dtfendant two daughters, a servant
^rl, and two physicians gave evidence
which, If true, tended strongly to exculpate
defendant from gnilt, or to show that the
death of the infant was or may have been
due to tiie polsonouB drugs admlnlsterad to
the mother, or to natural causes. Tba moOt-
or of the child, for instance^ swore tiiat socnt
after its birth, when no one else was in the
room, she got up, and found tbe dilld dead*
and herself wrapped it up and put it In her
trunk, to hide tt from view, until she could
put It away, and that she
Digitized by '
STATBt.
•r, bad xmpared it and bnrled It tamporarlly
nnder tiie stable ^riiere it was ftmnd. She
goes Into rather ndnnte details on ttala anb-
ject, and eiEidains «onflteting stories told, and
impntos some of them to agreements vith
the doctor, wboae testimony Is relied on
the state.
[1] Of coarse irtiere tbere Is conflict
Jury are the judges, and the eonrt can-
not properly Inrade tiielr province.^ Bnt
Ind^endently of any conflict in the evl-
dence. fbB qnestion goli^ to the very fonn-
datloQ of the prosecution Is, has the state es-
tabllsihed lor eompetmt proof t3ie fiftct of the
crime charged? After consideration of all
the erldence and tin anthoritlee bearing on
the subject we do not think It has done sOw
Ohne many saq>lcloas &cts and drcnmstanc-
es are shown. Bnt saqtlchm alone will not
do. That the body of tiie Utde one was laid
away as It was. Is, nnd«r the fiicts and dr^
comstances of its blrtb, reconcilable as wdl
on the theory of Innocence as of gnllt of flie
accused, and so are most If not an other sos-
pldons fiicts and drcnrngtances. The books
all say 0iat befbre Inquiry as tD the gnlltr
agent shonld be ottered npon the fiict that a
crime has t>een committed should be estab-
lished by proof. In onr case of State t.
Flanagan, 26 W. Va. 110, a leading and well
considered case, point 6* of the syllabas
states the rale thus: *at Is a fundamental
and inflexible mle of 1^1 procednre, of nnl-
Tersal obligation, that no person diall be
nqnlred to answer or be Involved in the con-
seqttences of gnllt wit3ioat satisfactory proof
of the corpus deUcU eltlier by direct erldencd
or by cogent and Irresistible grounds of pre-
samptlon.'' State t. Parsons, 89 W. Ta. 404,
19 8. IL 876, says: '*Both the corpqs d«Uctl,
or criminal act, and the agency of the ao-
cnsed in such act, mnst be proven before the
jury beyond ft reasonable doabt** In the
Flan^^ Oase, at page 123, Judge Snyder
says: "While tba discovery of the body nec-
essarily affords the best evidence of the fact
of the death, and the identity of the Indlvld-
nal, and more frequently also, the cause of
the death, yet in such cases the oorpM <l»
UeU cannot be' saM to be {woved until it be
fully and satisfactorily proved that sndi
death was not caused by natural causes, ac-
cident, or by tiie act of the deceased." Oth-
er cases laying down or recognizing the same
rules are. Brown v. Oommonwealth, 88 Va.
879, 16 S. B. WO; Goldman v. (>>mmon-
wealth, 100 Va. 865. 42 S. B. 923; McBride
V. Commonwealth, 95 Va. 826, SO S. E. 467 ;
Smith V. Commonwealth, 21 Grat 820. But
why multiply citations? It is universal law.
As lllustratfons of the rule respecting the
proof of the fact of the crime, and fastening
it on the accused, counsel have referred us
to the following cases. People v. Palmer,
100 Y. 110, 16 N. n 629, 4 Am. St Rep.
423 ; State v. WlUlams. 62 N. C 446, 78 Am.
Dec. 248-257 ; Hatchett v. Com., 76 Va. 1026;
Harris v. fitate^ 28 Tex. App. 808, 12 & W.
1102, 19 Am. 8t Sep. In r» Davis, t
Olty H. Bee (K. Y.) 4B; liS^T. State, TO Ckk
498; Josef v. State^ 34 Tex. Or. B. 446, 89
S. W. lOOT. In the ^xginla case dted de-
fendant was Indicted for pfrfaonlng X.
There was no post mortem examination, and
no analysis of the contents of tba stomadi, or
of the vessel whltih contained the liquor ad-
nUnistered, and which was said to contain
pc^n. The accnsed adnUnistsred the llq-
nor, but there was no proof that he knew It
contained poison, if it did contain poison, nor
was any motive or provocation shown.
Held, that a verdict of guilty woidd be att
aside, and a new trial granted. In the
Georgia case, on tHe trbil of an indictment
for murder it was proved that tlte detoidr
ant had been delivered of a child, whidi was
found some distance from her house, and was
returned to hw in a healthy condition. The
next mominjE It was dead. A phytddan tes-
tlfled that there were no maAa of violence
upon the chOd, and that he did not know
whether It had died from exposure or been
smothered. It was there held that the evi-
dence was insuffldait to warrant a vwdlet
of gallly. In tlie Texas case of Josef v.
State, it is said: **0n a prosecution fbr infhn-
Udde, there was evidence that the infant
was found dead in a cistern, near a house in
which defendant and a woman occupied a
single room prior to and at the time of the
murder; fliat when ofllcers, with a physldan*
came to Oie house, four days after the mur-
der, defOndant objected to their entering;
that previous to the examination of the wo-
man, to which the def^dant strenuously ob-
jected, to determine whether she had been
recently confined, defiendant dented any
knowledge of the fact of her confinement;
and that a cord around the infant's neck was
tightly drawn, which physicians testified
might have caused death by strangulatton.
Ph}*8lclaQS testified from an examination of
the corpse that the child was bom alive, and
the woman testified that she gave birth to
the child, and upon its death, immediately
after birth, placed it, without the knowledge
of any person, in the cistern. Held, that the
evidence did not warrant conviction."
[2] We must not be understood as holdlikg
that the fact of the crime, and of the guilty
agent cannot be established by circumstan-
tial evidence. It can. by all authorities ; but
not on mere suspicion. Probably the case of
Cluverios V. Commonwealth. 81 Va. 787, as
well Illustrates the ai^licatlon of the mle as
any. But the facts shown in that case,
which were many, Indudlng the marks on
the &ce and the hands of deceased, and her
general appearance, showing that she had
been first struck on the head by some one
and then thrown Into the water, proved be-
yond any reasonable doubt that she had been
foully dealt with. But the strength of that
case is not paralleled by this, far from It On
the main theory of the State, that the child
died from strangulation from Jhe ^^(^^[
702
78 SOUTHtDASTEBK BKPOBTHIB
aroonA Ifai neck, the main witness, the nt-
toi^Unc phyddan, said "no one conld tell
that** Why was be not examined on the
more unerring evidences of saffocatlon and
Btrangalatlon, present or absent, In tire child?
No one can tell that At least no one did.
We are loaUi to dlstuib rerdtcts of Jnrles
In BWdi cases ; bnt npon the authorities dted,
and the absence of Important evidence, of
whldi we mnst take judicial notice, we can-
not with dear conscience allow defendant to
go to prison on the record as presented.
Onr opinion is to rererae the Judgment
and award defendant a new trlaL
<72 W. Va. 507) ' '
FINK T. UNITED STATES COAL & COKE
CO.
(Sa^eme Court of Appeals of West VlrginU.
May 13, 1913.)
(ByUabiu by the Ocmrt.i
1. ANTHAL8 (S 48*)— Running at Laeqb—
CouuoN Law— Unbdlt and DAnoiHOUS.
Tbe common law, inhibiting the running at
large of domestic antmala, ii not In force in
tills state, except as to snen of them as are un-
ruly and dangerous.
[Ed. Note.— For other cases, see Animals,
Cent Dig. SS 143, 144; Dec. Dig. i 48.*}
2. AirniALs (§ 48*) — Runhiho at Labqk —
Common Law— ''Unbult and Danqbbous."
"Unruly and dangerous" animals, within
the meaning of the law, are such as are likely
to injure ouier domestic animals and persons,
not such as merely endanger real property by
trespass thereon.
[Ed. Note.— For other cases, see Animals,
Cent Dig. if 143. 144: Dec. Dig. { 4&«]
8. ANIUAU (S 8&*)— TBBSPA88INO— RlOHT TO
DiSTBAin.
No Statute of general operation through-
out thia state confers right upon a landowner
to seize and hold domestic animals found tres-
passing on his land as a remedy for enforce*
ment of payment of the damages done by them,
unless they are estrnys, or the land is inclosed
by a lawful fence, and the animals have tres-
passed on the same a third time, after notice
ui writing to the owner of the two previous
trespasses.
[Ed. Note.— For other cases, see Animals,
Cent Dig. K 390-396, 402-408, 415; Dec. Dig.
I 95.*]
4. ARIUALS (I 95*)— TBEBPASSINO— BlQHT TO
DiSTBAZN.
To avail bluiBelf of the right of acquisi-
tion of Utle to trespaasing animals, given byi
section 3 of chapter BO of the Code, the claim-
ant must clearly show strict and full compU-
ance with Its provialons and maintenance of a
lawfol fence.
[Ed. Note.— For other casevi see Animals,
Cent Dig. 11 S90-396, 402-40S, 415; Dec. Dig.
I »5.*1
B. Set-Off and Countebclaiu ({ 35*)— CoN-
TEBsioN — Unliquidated Damaoes fob
Tbespabs.
In an action for the value of animals tak-
en and sold aa having been forfeited to the
owner of lawfully inclosed premises, by virtue
of proceedings under section 3 of chapter 60 of
the Code, the damages done to the property
by the animals can neither he recooped nor set
off against their value.
[Ed. Note.— For other case% see Set-Off and
Counterclaim, Cent Dig. fS ; Dec. Dig. §
36.*]
Brrmr to Olrailt Court, HeDowcil Ooun^.
Action by Laura E. Fink agalnat tlie Unit-
ed States Ooal ft Coke Oompanj. Judgment
for plaintiff, and defendant brings oror.
Affirmed.
Anderson, Strother & Hughes^ of Welch, for
plaintiff in error.
POFFENBARGER, P. Claiming to have
maintained a lawful fence around a certain
lot of which It had possession aa lessee,
known as the "Clubhouse Lot," the defendant
caught and irat up 15 of the j^lntifTB hogs
on said lot, as having trespassed thereon the
third time, after notice to the owner of two
previous trespasses thereon, and afterwards
sold them as his own, claiming title thereto
by virtue of the provisions of section 3 of
chapter 60 of the Code, saying the owner or
occupier of lawfully inclosed grounds upon
which the third trespass is committed, after
notice in writing of two previous trespasses
thereon, shall be entitled to such animal. On
the writ of error to the Judgment In favor of
the plaintiff for $103.5(^ there are nnmerona
aaslgnmenta of error.
Proof of plalntlfTB title to the hogs at the
date of their seizure Is full and comidete, and
the only Kiosslble ground of Justification for
their sale by the defendant Is the statute
already referred to. An effort was made to
prove compliance with Its requirements and
acquisition of title by procedure under It
There was proof of numerous trespasses br
the hogs, and also of the service of sudi
notice as the statute requires, before the date
of the last trespass and seizure of the ani-
mals. But the evidence clearly fails to estab-
lish the maintenance of a lawful fence. The
lot on which the hogs were found adjoined
a railroad right of way and borders on a
deep railway cut On that side of the tot
there la no fence. The other three aides are
Inclosed partly by picket fences and partly
by a board fence, the former about 4^ feet
high, running from the back line to the rail-
road cut, and the latter about 5^ feet high
and inclosing the side oK)oalte the railroad
cut The embankment to which the pi<±et
fences extend was from 15 to 25 feet deej^
solid rock at the bottcm and e^irth at the
tofi. A witness says the slope from the top
for a distance pf atwut 10 feet was on a
grade or angle of about 45 degrees, and then
the rock was perpendicular from that point
to the bottom of thB cot At the point at
which the foicei came to tba cut, the same
witness says the embankment con^sted of 12
feet of rodi and from S to 5 teat, of slep&
There Is no proof of connection of the foice
with the perpendicular rock embankment
One witness says the fence extoided down
the edge of the embankment at both ada,
and denies the ezlatence of (vportonity fbr
animals to pass around the aids of the fence,
between the fence and the embankment An-
•For ettMT cues see suns topic and SMtlon NUMBER In Deo. Dig. a Am.
W.Vft.)
FINK T. UNITED STATES COAL A COKE CO.
703
other eays the fence Joined the anbankment
Just a few Inches from the top of the slope,
and he thinks an animal could not pass be-
tween the ends of the fences and the cat and
get into the lot K^tber of these witnesses
nor any other says the fence extended down
over the 45-degree slope to the top of the
rock embankment. The former says an ani-
mal could not pass between the fences and
the embankment; bat the slope was a part
of the embankment, and the latter witness
says the fence extended but a few Inches
down the slope of from 3 to S feet Plain-
tifTs hnftband swears there was an opening
at the end of the fence through which people
traveled going to and from the dabhouse, and
this statement Is nowhere denied. In re-
sponse to a question aa to this, one of the
defendant's witnesses said: "They would
have no occasion to do that, because the gate
was not over six feet from the end of the cut"
Beplylng to a pointed question as to whether
men could fo out at that openli^, it they
wished to do 80, he said: "If th^ wbfbed to go
aronnd the embankmeiit, the i^te is not oTer
10 or 16 feet from the cut at the moat** An-
otbet witness says he does not think there
waa Boch an opening, but admits he never ex-
amined the fence at that point One of the
witnesses for the defendant admits that the
bogs entered the lot through the holes they
rooted under the fence, and by working tbe
gate open. The statute requires the fence to
be ao constructed that animals* cannot creep
through It and it must be maintained In that
condition. The rooting propensity of a bog
Is well known, and it cannot be supposed
the Legislature intended to abaolve the own*
er <tf the premises from duty to repair such
holes as might be made in that way.
In Its rulings upon prayers for instruction,
the court properly treated the evidence as
Insufficient to warrant instnv^n respecting
the maintenance of a lawful fence. Accord*
ingly at the Instance of the plaintiff, one in-
struction was given, authorizing a verdict for
the plaintiff, If the Jury believed the de-
fendant, through its authorized agent, took
possession of the bogs, and appropriated
them to its own use by sale or otherwise,
and refused all others asked for by the plain-
tiff. At the request of the defendant It
gave one instruction, denying right of recov-
ery, unless the Jury should believe the de-
fendant by Its duly authorized agent unlaw-
fully took possession of the plaintiff's bogs
and appropriated them by sale or otherwise
to its own use, and refused a number of
others, one directing a verdict for the de-
fendant one allowing a set-off for damages
done by the hogs against their value, one
defining a lawful fence of posts, planks, and
pickets to be one 4 feet high, so built that
hogs could not creep through or go under It
without rooting, one autborlzlng a verdict
for the defendant If the Jury should find It
had glveii five day^ uotloa of two previous
trespasses by the hogs on the grounds occu-
pied by the defendant inclosed by a lawful
fence and a third trespass by the animals
after such notice and another telling the
Jury as matter of law the defendant's
grounds were inclosed by a lawful fence at
the time of the alleged trespass.
[4] The interpretation of the evidence un-
derlying these rulings was correct No con-
nection between the fences and the perpen-
dicular rock wall la shown, if we assume
such a wall or cUCF can be adopted as part of
the fence, a question we do not decide.
Again, there is no denial of the existence of
a hole In the fence at the embankment or a
footway around the end of the fence. On
the defendant's side the testimony on that
point Is evasion or assumption, while on the
plaintiff's It Is positive and direct The ex-
traordinary right of title by forfeiture must
be established. If at all, by clear and full
proof.
[1-3] The court properly sustained the ob-
jection to defendant* a special plea No. 1,
denying right of recovery because the hogs
In the declaration mentioned were unlawfully
trespassing on the grounds and premlaeB of
the defendant; special plea Ko. 2, denying
right of recovery becauae the bogs were taken
on grounds of the defendant Indosed by a
lawful fence; special plea No. 8, denying
right of recovery because the bogs were un-
ruly and dangerous and were seized while
imlawfnlly trespassing on the defendant's
premises; special plea No. 4, abnilar to
special plea No. 8; and special plea No. 6,
alleging nonaccmal of the cause of action
within one year next preceding the date of
the commencement of the suit ^e common
law inhibiting the running at large of domes-
tic animals is not in force in this state.
Blaine v. Railway Co., 9 W. Va. 252 ; Baylor
V. Railroad Co., 9 W. Va. 270. No statute
gives a general right of seizure and detention
of such animals found trespassing upon the
lands of another, whether Inclosed or unln-
closed. There Is an optional stock law, the
provisions of which are embodied In chapter
60 of the Code, giving such right of seizure;
but it is not effective until put in actual
operation by popular vote, and there Is no
suggestion in the record of the adoption of
that statute in the magisterial district of Mc-
Dowell county in which the seizure was
made. Section 1 of chapter 131 of the Acts
of 1882 absolutely prohibits the running at
large of any stallion or Jack, and condition-
ally of any bull over one year old, or buck
sheep over four months old, or boar over two
months old. As to bulls, buck sheep, and
boars, the statute Is optictnal, and must be
adopted by a popular vote of a county to be-
come effective. The decisions above referred
to say the common law la in force as to un-
ruly animals; but obviously it means animals
that are dangerous to persons or other ani-
mals, not merely auch aa are likely, to tree-|
Digitized by VjOOglC
70A
IS SODTBEASTEBN BBPOBTBB
pus upon real estata tience ttiere Is no
'iffanant of the law,ln this eUte tor tlio prop>
•oaldODs stated by apedal pleas Kos. 1» 2, 8,
and 4. As the action Is tor tbe Taloe of the
hogs, the one-rear statute of Umltattons does
n(>t apply.
[SJ The prayer for an Instruction authorls-
iDff recoupment or set-off of the damages
done by the hogs against their mine was
properly oTCrruled. The injury to the prop-
erty was a wrong separate and distinct from
the aniropriatlon of tiie hogs, and the claim
therefor did not arise in any sense out of a
contract Recoupment is peculiarly and only
a contractual right, and is limited to damag-
es tor breadi of the Identical contract <hi
whi<A the plf^tlff sues. DUlon t. Bakle, 43
W. Va. 602, 27 S. E. 214; togle r. Black, 24
W. Va. 1; Baflroad Co. v. Jameson, 13 W.
Va. 833, 838, 81 Am. Bep. T75. Debts only,
not mere claims for nnllqtiidated damages,
can be set off against the plaintUTs demand.
Goal & Coke Ca t. Hull Coal Cow, 67 W. Ya.
SOS, 68 B. 124. Tbe claim as to whldi
right of set-off was urged la one for mere un-
liquidated damages growing out of a tort
Tbe Judgment is affirmed.
(96 S. C. U7)
STATE T. ELLISON.
(Sopicme Court of South (^roUna. June 28,
1913.)
1. Gbivinai. Law (5 823*)— IirarrBcronoNS—
Cube bt Otheb iNSTEUCTiONa.
Od a trial for homicide, where the court
earefally defined each grade o( homicide, point-
ing out distinctly tbe characteriBtica oi eacb
grade, repeatedly warned the jary that it was
the state's duty to prove the offense beyond a
reasonable doubt, and that it was ita duty to
acqnit if the state ' failed to prove accused's
gouti either of murder or manslaughter, beyond
a reasonable doubt, it waa not error to charga
that when the jury went Into their room they
should first determine whether or not accused
had established bis idea of aeltdefenas tlie
greater weight of testimony.
[Ed. Note.— Ffw other easts, see Orimlnal
Law, Cent Dig. » 1992-lMOk 8168; Dec
Dig. I 828.-]
2. HouiciDs (f 308*)— IirBTBnotiom— Mui-
BLAnaHTER—PBO VOCATIO N.
On a trial for homicide, It was proper to
charge that if one person insullted another
moat greriously by uttering about bim and in
his presence language calculated to arouse the
wrath of an ordinary man. and which did
arouse vach wrath, in consequence of which,
and not because of any preformed purpose, tbe
killing occurred, this was not mAnaiaoghter but
murder, because, having been done by mere
words, there was not wifDdent legal provoca-
tion, especially where tbe court carefully de-
fined each grade of homicide, pointing out dis-
tinctly the characteristics of each grade, and
charged repeatedly that the state was bound to
prove tbe offense beyond a reaaonable doabt,
and tiiat the jury ahould acquit if aeeoaed's
guilt of eitlier murder or manalangbter was not
proved beyond a l«asonab]e doubt
[Ed. Note.— For other cases, see Homicide,
Cent Dig. M 642-647; Dec. Dig. f 808.*]
8. HoinciDB a 300*) — In sTETJonoirB — Sblv^
Dkfensk— Dtrrr to BrrsKAT.
On a trial for a.bomidde committed in ae>
cused'a store, an instruction that it was not
necessary to define what was known as tiio
"Law of the Gastle," tiecause there was no
evidence in the case tending to show that ac-
cused at tbe time of tbe fatal encounter was
in his dwelling bouse or yard, but that tbe law
of the premises might be applicable, and that a
man on bis own premises was not Imund to run,
was proper, especially where tbe charge whai
read as a whole showed no reversible error.
[Ed. Note.— For other cases, aee Homidde»
Cent Dig. 81 814, 616-620, 622-630; Dec Dig.
S 300.*]
Appeal from Cloieral - BesslonB Circuit
Court of Andermn County; Qeo. A Pifnc^
Judge.
John O. Ellison was convicted of man-
slaug^tw, and be a)H>ea]a. Affirmed.
Tbe homldde as shown by the evidence
was committed In accused's store.
Bonham, Watkins & Allen and T. F. Wat-
klns, all of Anderson, and J. P. Carey, of
Plckrais, tor ^^^dlant P. A. Bonham, SoL,
and A. H. Dean, both of OiMUvUlSh for the
State.
WATTS, J. The defendant was tried at
the May term of court of general sessions tor
Anderson county, 1012, betore Judge Prince,
on an indictment, whl<!h charged him with
the murder of B. A. Hunt, and was couTlcted
of manslaughter. A motion tor a new trial
was made and refused, and defendant was
sentenced, and from this conviction and sen-
tent;e be now appeals and assigns error on
tbe part of trial Judge In four exceptions.
[1] Tbe first alleges It was error for the
judge to say: "Now Mr. foreman and gentle-
men of the Juiry, when you go into your room
first determine whether or not the defendant,
in this case, has established his plea of self-
defense by the greater weight of testimony.**
The error Is that tbe first duty of tbe Jury
was to determine whether the state had made
out its case beyond reasonable doubt wheth-
er the deceased had been killed by the de-
fendant before the defendant was called up-
on to prove his plea of self-defense by the
preponderance of the evidence^ We have
examined the entire charge of the circuit
Judge, and we are pleased to say that he ex-
ercised the greatest care In defining each
grade of homicide, pointing out distinctly the
characteristics of eadi' grade, warning the
Jury, repeatedly and at intervals, of Its be-
ing the duty of the state to prove the offense
beyond a reasonable doubt and also of th^
duty to acquit the defendant if the state
failed to prove defendant's guilt of either the
crime of murder, or that of manslaughter,
beyond a reasonable doubt In each Instance^
and the extract from the charge embodied in
this ground of appeal Is based upon sound
law, especially In view of the wholesome defl-
•ror otlMT 0«Ma SM same and smUoo NUUBSB Id Dm. Dig. 4 An. Dig. ^'^^ d^T^^^'
BTBELB ▼. ATLANTIG COAST UNfl &. CO,
f05
State T. BowMI, 1BB.a4M,MB.K.28:
State T. FergtBon, 91 8.' (X 23S, 74 & B. 602.
The exceptions are overroled.
Jv^meat afllzmed.
QAKZt a and BTDBICK anA FBAS'
ER, J J., eonair.
(K 8. c. m)
STEELH V. ATLANTIC COAST LINE R.
ca
(Supreme Court of South Carolina. June 28,
1913.)
1. TOBTB Q 22*>— AcnoNB— PaBUXB.
Joint tort-feasors may each be med Mpn-
tately.
[Ed. Note.— Far other eaaesL see Torts, Oeat
Dif. H 20. 31; Dee. Dl^$aL*]
2. AcnONB (I 38*)— GaCSBS— MiSJOINDEB.
Where the complaint In an employe's ao-
doo agaiQBt a railroad company and another
for injariee alleged a eoncttrrent chain negtl*
irent acta which combined to produce one In-
JuiT, charging part of the negligent acts against
both defendants jointly, and part against the
railroad company alone, there was no mia-
joinder of cansM aa against tha railroad eom-
pany*
[Ed. Note.— For other cases, see Actlona.
Cent Di*. H 549, CeB; DecTlMK. S 88.*1
3. Pabtiis (I 91*)— MisjoiNDKB or Doxrd-
autb— Pasties Entitled to Object.
Where the complaint In an employe's ac-
titm against a railroad eompanr and another
for injuries alleged a concurrent chain of neg-
ligent acts which combined to produce one In-
jury, part of which were cbaned against both
defendants and part against the rariroad com-
pany alone, if there was any misjoinder of
parties, the railroad company, being a proper
party, could not demur because of the mis-
joinder of an improper party.
[Ed. Note.— For other cases, see Parties,
Cent Dig. f 149; Dec. Dig. t »-*]
Appeal from Common Pleaa Circuit Court
of Florence Coonty; Tfaos. S. Seaae, Judge.
Action by W. M. Steele against the Atlan-
tic Coast Line Ballroad Company and anoth-
er. From an order oTerroUng a demoiter
by the defendant named, it appeala. Af-
firmed.
F. Ij. vniknz, <tf Florence Cor vpellant
Bftgsdala ft Whttlng^ «f Ttanaoa^ flu z«-
spondent ■
FBASER. J. In the argument of appel-
lant there 1b the following atatement of ita
case*:
"Thla ia a aolt for damagea ialleged to hare
resulted bom peraonal Injurlea to jdalnUfl,
a Bwltduoan and car oonpler, while In tlift
dlschacge of hla duties on the 28d day of De-
conber, l&U, In the Florence yards of At-
lantic Coast Line Ballroad Company. The
complaint aUegea the bruising, breaking, and
maiming of plalntUTa left band and wrlat
It forthm aUegea that the hijury was cans*
ed by the nei^^ence and wztHwrnl acta of de-
fradant in aereral parttculara, to wit: ntst.
In the fUlura of the defmdant Atlantic Ooaat
Line Ballroad Company to provldd safe and
nitions of fhe crime of morder and mai^
fllanghter contained in the general Aarge oi
the Jury, wherein he was tiarefal to point out
what proof inu required, and the Jniy could
not have been ndaled, and this ground is
orermled.
[21 The second ezc^itlon diarges error on
the part of the Judge In saying to the jury:
"I meet you on the street I insult yon meat
greTlous^ by ottering about yoo and In your
preeeice language calculated to arouse the
wrath of the ordinary man, and It does
arouae your wrath, and In consequence of
the aroused wrath, and not becauM of any
prefbrmed pnrpose, yon strike me dead; the
law says that Is manslaughter-^no, the law
■ajn ttiat la murder, where it la done by mere
words. That Is murder because there la not
sufficient legal provocation." This exception
Is overruled for the purpose stated In otoi^
mllng the first exception, and for the ad-
ditional reason that It was in accord with
the law, as laid down In State t. Jacobs, 28
8. C. 29, 4 8. B. 799; State t. Levelle, 84
8. 0. 120, 18 & n. 819, 27 Am. St B^. 799;
State T. Davis, 50 8. O. 424, 27 S. B. 906.
82 Am. St Bep. 837.
[3] The third exception alleges error on the
part of his honor when charging on the prop-
osition of what la necessary to make out
the plea of self •defense, in saying to them:
"I will not undertake to define to yon what
Is known as the 'Law of the Castie,* because
there la no evidoice In this case tending to
show that the defendant was, at the time
of tile fatal encounter, In his dwelling bouse
or his yard, but the law of the premises may
be app^cable In this case, and X charge yon
that a man on his own premises Is not bound
to mn." This exception Is overruled, tor
the reason the Judge's charge when read In
All will show no reversible error, and his
reasoning is sustained by the principle laid
down In State t. Summws, 36 S. a 460, IB
8. E.860.
The fourth exception allies error In
charging the Jury, In reference to manslaugh-
ter, in using this language: "The law never
recognizee mere words as sufficient provoca-
tion to reduce killing to manslaughter. How-
ever Insulting those words, however calcu-
lated to arouae the wrath of the ordinary
man, and however the Jury may be con-
vinced that those insulting words did arouse
the wrath of him who did the slaying, the
law says that no words ever amonnt to a
Boflldent iwqvocation to tednco a kllUng to
manslaughter." This exception la orermled,
fbr It was a correct proposition of law, when
taken with his honor'a dbaq;e aa a wbole,
and is auatained by the principle laid ^wn
In Btato T. I>avi«, supra, 50 8. a 42i 27 8.
S. 800, 82 Am. 8t Bep. 887, and this la not
in conflict with the law aa laid down in State
r. Wwkham, 24 & C 284; State t. Oobb, 65
8.a825,488.B.654,95 Am. St Bep^ 801 ;
•Itooi^^wiMM same t«pM and
706
78 SOUTHBASTBBN REFORTEB
(S.C.
suitable appliances; second, In tbe wUlfnl-
ness of botb defendants, acting tbrough the
defendant Cnimpler, in requiring plaintiff
to go into a position of danger and to use
unsafe and defective appliances; third, in
the wlUfolness of the defendant Atlantic
Coast Line Railroad Company In causing the
cars to be brought together with great force
while the coupling devices were out of re-
pair; fourth, in the failure of both defend-
ants, acting through the defendant Cmmpler,
to open the knuckle on one of the coaches
In question before attempting to make the
coupling ; and, fifth, in the wanton and will-
ful failure of the defendant Atlantic Coast
Line Railroad Company to make the coupling
as the cars came together. It will be noted
that the negligent acts relied upon to create
the liability in favor of plaintiff are charged,
first; against one defendant alone, and then
agaJjost the two Jointly. The defendant At-
lantic Coast Line Railroad Company demur-
red instead of answering the complaint, bas-
ing its demurrer on the ground that several
causes ct action have been improperly unit-
ed; this defect in pleading appearing upon
the face of the complaint. It charges that
a cause of action against it alone for failure
to provide suitable appUanceo, in providing
which the defendant Crun^tler bad no part,
cannot be joined in the same complaint with
a cause of action against the two defendants
for the Joint neglect of duties Inqposed by
law upon both of them.
"Upon hearing the demurrer his honoTt
Judge Sease, made an order, overruling same,
whereupon tlds appeal was taken, upon one
"Exceptions. '
"His honor erred, it Is respectTulIy sub-
mitted, in not sustaining the demurrer in-
terposed by the defendant Atlantic Coast
Line Railroad Company, and in not holding
that plaintiff in his complaint had improper-
ly Joined two causes of action, one against
the defendant Atlantic Coast line Railroad
Company, tor n^Ugent, wanton, and wlllf ol
fsilore to provide and maintain safs and
suitable appliances for coupling together its
cars, this cause of action being against the
Atlantic Coast line Railroad Company only,
and another against Atlantic Coast Line Rail-
road Oom{iany and the defendant L. L.
Oompler jointly on acconnt of the Joint and
cimcurrent negligent, wanton, and willful or-
der and direction of the defendant Atlantic
Coast Line Railroad Company as principal.
He should have held that two such causes of
action cannot properly be united In one com-
plaint, and should have snstalned d^md-
ant's demurrer."
[1-t] It wlU be observed that the state-
ment does not show separate acts of negli-
gence, each of which produced separate In-
juries; but a concurrent chain of negligent
acts which combined to produce one Injury.
The demurring defendant (tbe railroad com-
pany) Is alleged to be negligent In each link
of the chain. Where there are several Joint
tort-feasors, each may be sued separately.
I^ therefore, the railroad company had beai
sued separately, Its objection would not ap-
ply. The objection raised is that It is sued
for several causes of action and a Joint and
several cause of action. The objection there-
fore is to a misjoinder of parties, rather
than to a misjoinder of causes of action.
Whether the demurrer be to the one or the
other, the demurring defendant must show
that he Is prejudiced by the misjoinder. The
codefendant Crumpler might complain be-
cause he might be made to suffer In a general
verdict for a negligent act for which it was
not ever claimed that he was responsible.
The demurring defendant Is, according to the
statement, alleged to be reqwnsible tor each
and every act complained of. Grumpier did
not demnr and the defendant company la not
injured. 14 Ibcy. of PL ft Prac 212, 213.
"It is wfliU settled that the objection of mul-
tifariousness or misjoinder is a personal one,
apd that only a defendant who ia prejudiced
thereby can be lieard to com^itin of it.
* * * Generally, moreover, a proper de-
fendant can not demnr for the misjoinder of
an Improper one." The case of Hlnes t.
Jarrett, 26 S. a 480, 2 S. D. 303, to which we
have been referred, is not authority beraw In
that case there were separata injuries at dif-
ferent times. Here there was one InJnry at
one time.
The Judgment appealed from Is affirmed.
GART, C. J., and HTDRIGK and WATTS,
JJ., concur.
(M & a n)
FORE et al V. RBRRX et aL
(Supreme Court of Bontb Caroliaa. Mardi 18,
1913.)
1. Advebsb- FossBSBioN <S 114*)— Evximco—
Weight and SuFviciENcr.
Id ejectment, where defendant 'relied on ad*
verge possession under award ot arbitrators,
and wuere, altbongh bis testimony was of too
general a nature to show that bis pedis posses-
eio extended over the entire tract, he testified
that be had been working it ever since, this
was some avldetaoe -that he went into puwMSKm
of the aiaUs laad* w at. least some portion
thereof. ,
[Ed. Note.— For other casra. see Adverse Poa-
eession. Cent Dig. fi 68^ 616, OBti, 686; Dec.
Dig. S 114.*]
2. AOVBBSB POSSKSSIOIT (| 104*>— PiBSOlIP*
TioiT or Gaaniv— Dsa&BruTf.
To raise the presumption of a grant, there
mast be 20 yeanr poBsession exclusive of the
period ot infancy of the person against whom
tbe grant is presnmed. but the failaie of the
presumption is personal b> the infant, and can-
not inure to the benefit (tf oUier tenants in com-
mon with the infant
[Ed. Note.— For other eases, see Advene Pos-
session, Gent Dig. H 695-W2; De& IMg. |
104.*]
*For ottaw CMW mm
wnw teple ana mgUod leiUUBSR In Dec. Dls. 4 Am. Dig. K«r-No.
Digitized by
8.0)
FORK T. BERBir
707
8. AbbitbatioA Ain> Awjud (H 82*)— Fowm
AS SSTOPFEI.
Ad agreement to Btibmit to arbitration a
diapote as to the title to land which did not
densnate the arbitrfttorB, bat on which two per-
aons not shown to be laoM to whom tba mat
ter was submitted, indorsed a decision in tmvot
of one of the parties, would not act as an es-
toppel against the other, since an agreement to
anDmlt to arbitration does not constittite an
actual sabmission, and the fact that such per-
sons signed the award was not sufficient evi-
dence taat the; were the arbitrators selected.
[Ed. Note.— For other cases, see Arbitration
end Award, Cent. Dig. H 4iW-450; Dec. Dig.
i 82.*]
4. Advrbbx Possession (| 71*)— Coloi of Ti-
TLB— SoryicniNOT o» Wbiting.
A written agreement to submit a dispute
as to the title to land to arbitration, wUch did
not designate the arbitrators, and on which
persons not shown to have been the arbitrators,
indorsed a decision in favor of one of the par-
ties, was a sufficient written instrument to
constitute color of title under Gode Civ. Froc.
1902, I 102, providing that whenerer it shall
appear that a person entered Into iMasesslon of
premises under a claim of title, foundiog such
claim npon a written instrument as being a
cMiveyance of the premises, and that there nas
been a continued ocenpaney and possesaioa of
the premises Indnded ui the Iiutmment, or of
some part thereof, nnder such claim for 10
years, the premises so included shall be deemed
to bavs been held adversely.
[Ed. Not&— For other cases, see Adverse Pos-
aesEdon, Cent. Dig. |i 415-129 ; Dec Dig. |
71.*1
5. BTiDUfCK (I 460*) — Pabox. BnDBNCi —
iDBimrtCATIOW OF Pbopebtt.
A description of land In a written instru-
ment relied on as color of title as a 800-acre
tract of land in dispute between parties named
was snflScient. and parol evidence conld be »•
sorted to, to identify the land.
[Ed. Note.— For other cases, see Evidence
Cent. Dig. » 211&-2128; Dec. Dig. f 460.*]
e. ADTZBSB PoSSBBBIOir a AS*)— COLOB OF TI-
TLE—PUBFOSB.
The object of color of title Is not to pass
title, but to define the extent of the claim, and
extend tiie possession beyond the actual occu-
Sincy to the whole pn^rty described In the
■trument.
[Ed. Note.— For other cbjrs, see Adverse Poe-
sessloB, Cent Dig. || 887-393; Dec Dig. |
68.*]
7. LZXITATIOR OF AOTlOnB (S 76*)— SUSFBR-
BION— IlfFAirOT,
Where limitations against the recovery of
real property commenced running In a person's
lifetime, the ranning of the statute was not
■oapended after his death during the infancy
of such person's heir.
[Ed. Note.— For other cases, see liimltatlon of
Actions, Cent Dig. S| 417-120; Dec Dig. |
76.*1
Appeal from Common Pleas Circuit Court
of Marion County; S. W. O. Shlpp, Judge.
"To be offlclally reported."
Action by T. L. Fore and others against E.
B. Berry and others. Judgment for defend-
ants, and plalntlfh appeal. Affirmed.
The referee's report was as follows;
"By consent this case was referred to me
as special referee, by order of this court, dat-
ed April 12, 1910, to take the testimony and
report my findings of fact and coocIosIihis of
law with leave to report any specUl matter,
and in accordance with this order I have talc-
all tbe testimony offered, wbieh U hereto
annexed.
"The complaint alleges that Willis Fore
was at and before his death seised In fee of
a tract of land in Uarlon county, containing
300 acres, more or less, bounded now or for-
merly by the lands of the estate of W. Evans,
Hugh C. Dew, Gewood Berry, and Charles
Haselden, being a tract of land conveyed to
the said WIIUb Fore by A. Q. McDuffle, man-
ter; that Willis Fore and his wife. Sarah M.
Fore have both died intestate; that the
plaintiffs are the only heirs at law of Willis
Fore and Sarah M. Fore, and are seised in
fee and entitled to the possession of the
premises described in the complaint, but that
the defendants without right or title with-
hold the possession from them to their dam-
age in the sum of fl,000. The defendants,
all answerli^c this complaint separately, ad-
mit the lncorporati<m of the defendants
Tllghman Dumber Company and Marion
County Lumber Company, and that the plain-
tiffs are the heirs at law of Willis and Sarah
M. Fore, but they deny all the other allega-
tions of the complaint and jdead tlw statute
of limltatloiui and the jnesnmptbm of a
grant
"From the testimony I find that Willis
Fore acquired fee-simple title to the premises
described In the complaint by virtue of a
convince made to bim by A. Q. McDuffle,
master, on December 8, 1879^ and that Willis
Fore went Into possession under tlils convey-
ance and continued In possession until Jan-
uary 4. 1886. On that date a written agree-
ment was made between E. B. Berry and
Willis Fore, the material portion of which
Is as follows: 'Whereas, there olsts a dis-
pute between said parties a> to the title to a
tract of land etmtalnlng three hundred acres,
more or lees; and, wJiereas, we desire to set-
tle s^ dispute wttbout resort to law, ve,
the said B. B. Berry and Willis Fore, tiere-
by agree to leare flie point in dispute to ai^
bltratlm.* Tba agnemeat alio proTtdes that
each party shall adect one arbitrator, with
the rli^t <a the two thus chosen to select a
third if neeessa^, the ^elalon of two ar'
Utratfflrs to be binding. On fiie baA (tf
this agreement 1b Oie foBowing Indorsement:
'We. the undersigned, 8. W. Bmy and B. F«
Hays, btlag chosen as arbitrators In Oie
within mentioned case, tutve decided In fa-
vor of O. B. Berry. S. W. Berry. B. F.
Haya.'
"Under this Instrument the def«idant
B. Besry went Into iwssessloo on January 4t
1886, and has beoi in continuous possession
up to the present time. The defendants
Tllghman Lumber Company and Marion
County Lumber Company are both made
parties to the action for the reason that they
claim certain tlmbw rights tinder E. B. Ber-
•For oUmt eases sss same tople and ssotlen NUlCBBB la Dae. Dig. A Am. Dig. Key-Noo^iTiyit:l|,pl
708
TB SOin^BASTSRN BDPORTBB
Tj, Tbe TQ^unan liomlMr Oompanj clalnM
Its TigbtB br Tlrtne of » deed fnun HL R
Barry to Ttlghman liomber CompaAy, dated
Febnuxy 21^ 1899, and tbe Marion Goniitr
tomber Oompany by TMne of a deed from
B. B.' Beriy to Gape Faar lumber Company,
dated July 7» ISdS, and a deed from Oape
Fear Lumber Oonqiany, dated Angast
[II "B. B. Berry teattfles tbat he went Into
poaseaaion of Qte land described In ttae cook-
^alnt on January 4, isao, and tbat be haa
been In poaaeaaion opoilyr adveraftly, and ez-
dnalTe of all otber rISbti and claims. ^Tbla
testlnuay is of too general a nature to war*
rant tbe Inference tbat Us pedis poasesalo
bas utoided over tbe vttire tract of land.
Seetlim 108 (tf tbe Code ot Prooodnre states
dke neceasary elements of an adverse poasea-
aion under a written Inatroment, and tbis tes-
timony of O. B. Berry Is ratber In tbe na-
ture of bis opinion on a queatlon of law. Be
says, bowerer, *I have been worldng It ever
atnccL' Tbla, therefore, Is some testimony tbat
he went into possession of tbe arable land, or
at least some portion of it There can be no
doubt that be went Into possession of some
of the land in 1886 under this written Instru-
ment, and tbat bis possession has been con-
tinuous, open, and notorious, and exclusive
ot all other claims up to the present time.
WlUls Fore died intestate on October 14,
1891, leaving as his sole heirs at law his
wife, Sareb M. Fore, and bis children, the
plaintiffs In this action, namely, T. L. Fore,
bom January 0, 1871, Mary J. Fere (Dndlccr),
bom June 13, 1872, Trao^ E. Fore, bora
Noveoaber 17, 1874, Rebecca Fore (Hayes),
bom November 29, 1878. and W. K. Fore,
bom January 31, 1880. Sarata M. Fore, tbe
wife, died Intestate on August 31, 1906, leav-
ing the plaintlfb as her only belrs at law,
and on November 21* 1907, plaintiffs com-
menced this action for the recovery of the
land described in the complaint
It} '^e defense of a presumption of a
grant vras not argued and was apparently
abandoned, both defendants and plalnttfft)
donbtless recognizing the mle that to raise
llie iveaumptlfm of a grant tiiere must be
20 years* posseasUm exclusive of the period of
infancy, and alao that tho failure of the pre-
samptton Is personal to the infant u>d can-
not IttVro to tbe boieflt of the other tmants.
Massey t. Adams, 8 S. O. 264; Garrett v.
Weinbefs, 4S8.a28,2SB.a.S. The en-
tire eont»tlm Is over the statnte of limita-
tions and the admisalblllty In evidence ot the
arbitration agreement and award under
which E. B. Barry wont Into poaeearion. The
plaintUb contend tbat the defense of the
statnte of limitations must foil, because tbe
bar of the statute was not complete when
Willis Fore died in 1891, and that it was sus-
pended during the infancy of any of his
neln, they being tenants in common, and
that onder sectloB 108 of the Code Of Pxo-
oednitt Quv have 10 years In whtdi to begin
ttils action after the majority of the yoni^-
eat child, W. £ Fore, bom January 81, ^80.
The plaintiffs also earnestly object to tbe ad-
mission of tbe arUtratlon agreement and
award <m Uw gnnmd that It does not eimtaln
a sndldent description of the premises, tbat
it does not appear from 13ie writing itself
what property Is referred to, and tbat parol
evidence of extrinsic drcnmstances Is inad-
missible to show what land Is referred to.
Hiey also object to the paper on the addi-
tional grounds that Che paper la InsnflBdent
as an arbitration agrettnent, tliat land Is not
a proper subject of arUtratlon, and that ti-
Ue to land cannot be tranafbrred by arUttap
tion.
[3] rrbe deftedante Insist tbat this arbi-
tration agreement and award Is a complete
bar to this action; that the effect is the
same as If a deed bad been executed by
WlDls Fore to E. B. Berry; that while the
agreement and award cannot of Itself pass
title, y^ It will act as an estoppeL Thla
rule Is expressly recognized In the case of
Garvin v. Garvin, 5S S. O. 800, 88 S. B. 458,
but I do not think the mle applicable in this
case, for the reason tbat the agreement to.
submit the dispute to arbitration does not
constitute an actual submission, because the
Instrument does not designate the arbitra-
tors, nor is there any testimony tending to
show that the persons who signed the award
were really tbe persons to whom the matter
was submitted. The mere fact that the;
signed the award Is not sufficient evidence
tbat they were selected to arbitrate the dis-
pute. This point was considered in tiie case
of Cothran v. Knox, 13 S. O. 009, whwe an
arbitration and award were set iqi in bar of
an action. The court aald in this case;
Tbtf e Is also the same uncertainty as to the
persona to whom the matters were submitted
for arbitration. The only evidence tending to
show that Wosmansky was one of the per.
sona selected la the vague impression of Mil-
ford that both parties agreed that Woania»
sky ahonld asi^dat him In making the settie-
ment for certainly tbe mere fftet tSiat Wos-
mansky signed the paper purporting to bs
the award cannot be regarded as evidence
that he was one of the persons selected as
arbitrators; while the testimony of Oason,
tbe only other witness relied upon to show
the submission, not only falls to show that
Wosmansky was agreed upon as one of the
arbitrator!^ bnt on the contrary, shows that
hla name was noi even mentioned. This tes-
timony is manifestly insufficient to show who
were "the Jnd^ of the parties' choice,** and
this, tiierefore, constitutes another objection
fatfli to the award.' See, also, tbe case aC
Lynch Goodwin, 6 S. O. 144.
[4, 1] "However, die instrument is good as
color of tide, and none of the objections
urged by plalntlfl are valid objections to Its
use for that pnipoee. The sufficiency of de>
DigHized by VjOwviv^
«.G)
VOBB T. BEBBT
•erlptlMi In the wrlttns appears be -the
most serious av«atlon ag to Its Bufflciency as
color of title. That the InstnuueDt under
which a party holds adversely by. color of
tftle must define the extent of the claim is
P^ectly well settled.' Garrln v. Garrln, 40
S. C. 444, 19 S. E. 84. It Is also equally as
well settled that a contract to cooTey cannot
be enforced unless the property is described
in the writing. In both cases, rights to cer-
tain property being asserted solely by virtue
of a writing, it is perfectly clear that the
writing must designate the particular piece
of property upon which the writing Is In-
tended to operate so that it can be found,
and no good reason can be suggested why
a stricter rule should be applied in one case
than the other. In the case of Kennedy v.
Gramllng. S3 S. O. 867, 11 S. B. 1081, 26 Am.
St Bep. 676, the court says: TThus, where
there is a proposition to sell and an agree-
ment to bny the hoose In which plaintiff re-
sides, there is no doubt that parol evidence
would be admissible to show in what par-
ticular house be did reside, as there could
not be a shadow of doubt that both of the
parties — the one In making the offer and the
other in accepting it — had reference to the
same property ; and that Is the great point*
In the arbitration agreement the land Is de-
scribed as a 300-acre tract of land In dis-
pute between Willis Fore and B. B. Berry
on January 4, 1886. This la a more specific
description than that in Kennedy v. Gram-
llng, and there Is no reason why parol evi-
dence of extrinsic drcnmstances should not
be resorted to as in Kennedy v. Gramllng.
If the only element of description had been
a 800-acre tract of land, then it would have
been Insufficient Humbert v. Brisbane, 25
8. G. S06.
"The rule in reference to description In a
paper asserted as color of title is thus stated
in 1 Cyc. 1090, as follows : 'So a description,
though indefinite, is sufficient if the court
can, with the aid of extrinsic evidence which
does not add to, enlarge, or in any way
change description, fit it to the property
conveyed by the deed. It Is necessary, how-
ever, that the description be such that it
can be rendered certain by such evidence.*
See, also, the case of Eubanks v. Harris, 1
Speers, 188, dted in note. In a note to the
above text of Cyc. will be found a number
of examples from decided cases of descrip-
tions held sufficient and others held Insuffi-
doit All that appears to be necessary is
that ttiere should be such a designation that
the land may be identified by the description.
Kirkland v. Way, 3 Rich. 4, 43 Am. Dec. 762.
The paper and the parol evidence In Ox\b
case sufficiently identify the land.
[1] *The other objections urged to the pa-
per are without foundation In so far as they
attack Its validity as color of title. The ob-
ject of color of title is not to pass title. In
that case It would be title, not color of tltl&
Ike enlj office ot color of title is to d^lne
Uie extent of the claim and to extend the
possession beyond the actual occupancy to
the whole property described In the paper.
Color ot title is tbua defined In the case of
Turpin V. Brannon, 3 McCord, 261 : 'I think
that in its common acceptance it Is under-
stood to mean any semblance of title by
which the extent of a man's possession can
be ascertained. An actual deed from a iwr-
son who has no right conveys nothing. It is
not exclusive evidence of possession. The pos-
session being proved by other evidence, the
deed is only looked to as defining Its extent'
It is by no means necessary that the paper
should be in the form of a deed. A bond or
even a receipt would be sufficient Bead
Sifert 1 Nott A McO. 874, note; Simmons
T. Parsons, 2 Hill, 492, not& In Garvin v.
Garvin. 40 S. a 485, 19 S. B. 7B, a fraudu-
lent deed was held Inaofflclent to constitute
color of title, but there can be no doubt as
to the Buffldency of a merely invalid paper.
1 Cyc 1082, and 1084; Allen Johnson, 2
McMuL 496; Gourdln v. Davis. 2 Blch. 488,
46 Am. Dec 746; Bank v. Smyers.. 2 Btxab.
24; L^les V. Kirkpatrick, 9 9. C 269; Durtti
V. Strait 16 8. 0. 469; Kennedy t. Kennedy,
8B8.a4AT, 688.B.ee4.
"Under a fftir otmstmctlon of the Instni-
ment In this case^ it appears to bflk In (lie
light of the other testimony in tlie case^ a
snffldoit instmiDent of wrlttng as contem-
plated by section 102 of the Code (tf Prooe-
dnre. The defendants have been in posses-
sioa under this Instmmeat continaoaalj and
exclualTe of every other right Cor a much
longer time than Is necessary to perfect the
statute of Umltatlfflis, and, unless the statute
has in some way been snspoided, the com-
plaint idiouUI be dismissed.
[7] "Plaintiffs contend that, altboogh the
statute might have commenced to ran against
Willis Fore, yet, not being complete at his
death. It was snqpended on account of the
minority of some of his heirs to whom the
property descended. In support of this posi-
tion rellsnce Is placed upon the case of
Maccaw t. Crawley, 69 8. a 8^, 8T S. B.
934, and Act 1824, 6 St St Large, p. 288.
Section 6 of the Act of 1824 is as follows:
'And be It further enacted, that the statute
of limitations shall not hereafter be con-
stmed to defeat the rights of minors, when
the statute has not barred the right in the
lifetime of the ancestor, before the accrual
of the right of the minor.* In 1872 the stat-
utory law of the state was revised by an act
of the Legislature; the revisal being known
as Corbln's Code. This Code was legally
adopted, and after setting forth all the gen-
eral statutes of the state this language la
used: "The following acts, ordinances and
resolves, passed In the several yotrs here-
inafter enumerated, have expired, or have
be^ or are hereby, expressly repealed.*
Then follows a schedule of these acts by
their titles. Among o^^|^^*fe4^gr[^
710
78 BOnTHnASTERU BEPOBTEB
(S.C.
1824 above quoted. Ooibtn'B Berlaed Sta^
Qtes, p. 820.
"It would not be profitable to Inquire
whetber or not the ^mers of Corbln's Code
recommended the repeal of the Act of 1824,
because ther regarded It as snffldently em-
bodied In the statate of limitations adopted
et that time and the continuance of the Act
of 1824 useless. The effect of this repeal
can only be gathered from the construction
given the statute of limitations by the Su-
preme Court In cases arising since that
time.
•The case of Uaccaw v. Crawley, 59 S. C.
342, 87 8. E. 934, Is not an authority on the
point Although at page 348 of 59 S. C, page
937 of 87 S. E. of this case, Mr. Justice Mc-
Iver does intimate that the Intervention of
Infancy will arrest the statute when the bar
has not become complete during the life of
the ancestor, yet the point was in no way
involved In the case. Tbe question there
nnder consideration was absence from the
state, and the remark of Mr. Justice Mc-
Iver was purely obiter dictum. Nor was the
question In any way involved or decided In
the case of Duren v. Kee, 26 S. C. 219, 2 S.
E. 4. But in the case of Satcher v. Qrice, 53
S. O. 126, 31 S. E. 3, the identical question
was under consideration, and It was decided
that Infancy would no longer arrest tbe stat-
ute If It had commenced to run during tbe
life of the ancestor. This case is conclusive
of the question. See, also, the case of Sut-
ton V. Clark, 59aO. 440, 88S.1L160, 82
Am. St Rep. 848.
"The bar of the statute of limitations be-
ing complete against plaintiffs, the complaint
■bould be dismissed.**
W. F. Stackhonse, of Marlon, for appel-
lants. Montgomery A Llde and M. C Woods,
all of IforloD, tot respondents.
QABT, 0. J. For the reasons therein stat*
ed in the report of the special referee, the
Judgment of the drcnit court Is affirmed.
WOODS, HYDRICK, WATTS, and FBA-
SBBt 33^ concur.
<M a a ui)
LTEES V. SEABOARD AIB LINE BY.
(Supreme Court of Sooth CarotlDa. June 28,
1913.)
JusncBS or thk Pback (f 166*>— Afpeai/—
Want or Pbosbcution— Dismissal.
Where plaintiff's uttorney endeavored at
each term of court to tuve the appeal taken by
defendant from a magistrate's court heard, but
defendant failed to prosecute tbe appeal after
opportunities so to do, tbe court properly dis-
missed the appeal et the third term of the court
after the appeal for want of prosecution.
[Ed. Note. — For other cases, see Juattcea of
the Peace, Cent Dig. H 638-646; Dec. Dig. |
166.*]
Appeal from Common Pleas Circuit Court
at Hampton County; T. H. Spain, Judge.
Acticm by F. M. Lykes against the Sea-
board Air Line Railway. From an order dis-
missing an appeal by defendant from the
magistrate's court to the circuit court, de-
fendant appeals. Affirmed.
C. B. Searson, of Hampton, for appellant
Z<yles ft Lyles, ot Columbia, for respondent
FBASEI^ J. This Is an appeal from the
magistrate's court The following appears In
the case:
"The appeal was not heard at the regular
October term, 1912, and the presiding Jndge
marked the same 'continued' on the calendar,
nor was the said appeal heard at the Decem-
ber special term of the court of common
pleas for the said county; the presiding Judge
at that term making no entry uvon tbe cal-
endar as to what disposition was made of
tbe appeaL At February term, 1913, Judge
T, H. Spain passed an order dismissing the
appeaL From this order notice of intention
to appeal to the Supreme Court was duly
served, and this appeal is now taken.
"Order of Circuit Judge.
"The above case comes up before me on
motion by jtlalntiff's attorney to dismiss the
appoil herein, heretofore rendered on the
IQQy day of August 1912, In the court of
magistrate M. F. Long, whidi was rendered
on the above date,, from whlcb s^d order
awarding plaintiff the sum of money therein
named, defradant appealed to this court and
It appealing that the said case has been upon
the proper calendar for the third term ea-
deavored to have tbe said appeal heard, and
that the defendant has failed to prosecute
the said a[^)eal and have the same disposed
of after several opportunities to do so, now.
on motion of G. B. Searson, Esq., plahitlfl's
attorney. It Is ordered that the appeal hereto-
fore made In the above-entitled cause be,
and the same la hereby, dismissed for want
of prosecution upon the gromids above set
out and that the Judgment of the magis-
trate heretofore rendered be, and the same Is
hereby, confirmed and made the Jut^^ent of
this court T. H. Spain, Presiding Judge.
Feb. 28, 1013.
"Exceptions.
"(1) It Is submitted that his honor, the
circuit Judge, erred, as a matter of law, in
holding and so deciding that it was incum-
bent upon him to dismiss the appeal after the
second term, when the cause had been contin-
ued on the calendar at regular October term,
and has been passed over at special Decem-
ber term. Lyles ft Lyles, Defendant's At-
torneys."
In order to sustain the appeal the appellant
quotes the following from York Supply Co. v.
Southern Ry. Co., 82 S. C 350, 64 S. B. 387:
" 'Hearing upon return.' If a return be made,
the appeal may be brou^t to a hearing
I Mme tBplo and awtlon NUMBBR la Dec. Dig. A Am. Dig. ^(fJ^Old^i^*
•ForotlMr
IN KE ROTON»S WHX
either party. It ehall be. placed upon the
catendar and contlniie thereon until finally
disposed of. But, If neither party brings it
to a bearing before the end of the second
term, the court shall dismiss the appeal, nn-
len It conthrae the same by special order for
cause shown. At least eight days before the
conr^ the party desiring to bring on the
appeal shall file the return and accompanying
papers. If any, with the derk, and the derk
shall thereupon enter the cause on the calen-
dar according to the date ot the return, and
It shall stand for trial without any further
nottoe." In the York Sni^ly Company Case
the court says: "To Justify dismissal with-
out a healing it nmst Appax that the case
was called for trial [italics onni] at the sec*
ond or some subsequoit term, and that
neither parly, after such opportunity to be
heard, brought it to a hearing or had it
continued tea cause.'* The court goes on to
say: "In Oils cause it did not aivear that
the case bad erer been called for trial hy the
court until the .term It was summarily dis-
missed for want of prosecution. The statute
nemr contemplated a summary dismissal
without an opportunity to be heard. The
usual and orderly way for the court to give
Budi flvportunity is to call the dodcet of
cases. With a Tlaw to enforce tb» statute,
it miifht be well for ttie court, after calling
the dofftet, to make some entry therein Indi-
cating that the case had been called and what
disposition was made of It, so that the foun-
dation for a summary dismissal may be
properly evidenced. The court will not in-
dulge a presumption that cases on appeal
from mas^trate court were called at the sec-
ond term and (Qportunlty presoited for a
hearing.**
In this case the circuit ]u^ finds the facts
against the appellant when he finds "that
plaintiff's attorney has at each term en-
deavored to have the said appeal heard and
that the defendant has failed to prosecute
the said appeal and hare the same disposed
of after several opportunities to do so."
In the case to which we have been re-
ferred, the court merely stated what would
be the best practice but did not say it was
necessary.
The Judgment appealed from is afllrmed.
GABZ. a
33*, concur.
and HTDRtOK and WATTS,
CK a a U4)
B. T. BUSHIMO A 00. T. SEABOARD AIB
LINE RT.
(SiQtfeme Gonrt of South Carolina. Jane 28.
1918.)
Appeal from Common Pleas Circuit Court of
Hampton Countsr; T. H. Spain, Jadge.
Action by B. T. Roablng ft Co. against the
Seaboard Air Line Railway. From an order
dlsmiflsing an appeal by d^sndant from a
magistrate's court, it appeals. Affirmed,
I^«B ft If l«ih of Columbia, for araellant
J. W. ^ncen^ « Hampton, for respondent.
FRASBR. J. This case was heard with the
case of I^kss v. Seaboard Air line Railway,
78 S. E. 710. The facts are the same, and the
jndgment herein Is affirmed for the reason atat
ed In that case.
QASX, a J., and HTDBICK* J., coneor.
(MS, a UK)
In re ROTON'S WILI*
(Saprems Court of South GaTolina. June 28,
1918.)
Wills ($ 191*)— Revocation bt Hahriaoe.
The will of a woman who, after maklns it,
marries and then dies before her husband is
revoked by the marriage; Civ. Code 1912, S
3570, deciariDg that if any pereon making a
will shall afterwards marry and die, leaving
his widow. It shall be deemed and taken to be
a revocation to all Intents and porposes, and
eectioa 41 providing that words in an act im-
parting the masculine gender slwll apply to
females also.
[Ed. Note.— For other cases, see Wills, Gnt
Dig. fiS 469-478; Dec Dig.l 191.*]
Appeal from Common Pleas Circuit Court
of Lexington County; J. W. De Yore, Judge.
Will of Annie L. Roton, deceased, was
admitted to probata The decree so admit-
ting it was reversed on appeal of contestant
to the drcnit court, and the executors ap-
peeL Affirmed.
Eflrd A Dreher, of Lexington, for appel-
lants. N. W. Brooker and John T. Seibels,
both of Columbia, for respondent
WATTS, J. This is an appeal from a
decree of his honor. Judge De Vore. The
foots of the case show that Annie L. Utner,
then a widow, on August 20, 1906, made a
will and thereafter married Harris Roton
and died in February, 1910, leaving the will
in question. Her husband, Roton, her moth-
er, a brother, and sister survived her, but no
children. On Uarch IS, 1910, the will was
presented to the probate court by the execu-
tors and on that day admitted to probate
in common form. On October 28, 1911, the
brother of testatrix, to whom, she had given.
$10. filed his petition for proof of the will
in due and solemn form. In obedience to
the order of the probate court- the executon
filed their summons and petition asking to
be permitted to prove the will In due form
of the law. The brother of the testatrix
alone appeared to contest the will The pro-
bate court admitted the will to probate, hold-
ing it valid. From, this decree the brother
of testatrix alone appealed to the circuit
court, and the appeal was heard by Judge
De Tore, circuit Judge, who reversed the de-
cree of probate court ; he holding that the
will was revoked by the subsequent marriage
of the testatrix. The executors appeal from
this Judgment, alleginK error: (1) In holding
that under our statutes the will Is revoked
^ror ctbw saMS ■•• s«m twlo and sceUoa MDllBBB la Dm. Dig. A Am, Dig. K«y-No, Seriaa „
Digitized by
78 sodthbastjoun iifepcraTEB
bjr manlage; and (2)f In not lioldliis that,
ertin If the wUl was Krocatile by marriage,
It ■honld not be dedared void at tbft in-
•itanca of Oe brother of teatatiiz.
There la no dSspnte, and It was conceded at
Oie hearing of this case by appellantB^ coun-
ad that vmAet the ouDmon law the will of
a wonum, whatever its provUionS, was re-
voked by her sabaeqnent marriage. Section
•8670. Oode of laws 1912, ts: '*If any person
making a will shall afterwarda marry, and
dl^ leaving his widow or leaving Issne of
SDCh marriage, unless the will shall have
been made In oontenuilatlon of marriage
expreased on Its face, and shall contain pro-
Tlitftm for fatora wife and children, if any,
It shall be deemed and taken to be a revoca-
tion to aU Intents and porposes." This act
really snpplemoitB the common-law rule.
On the Gonstmction of words, section 41
of Code of Laws 1912. voL 1, U: 'The
words 'person' and 'party,* and other word or
words. Imparting the singular number, used
In act or joint resolution, shall be held to In-
clude Arms, companloB, associations, and
corporations, and all words in the plnral
nomber shall apply to single individuals in
all caaes, in wMch the ES>irlt and Intent of
the act or Joint resolution may require it
All words, In any act or Joint resolution,
imparting the masculine gender shall apply
to females also and all words Imparting
the present tense shall apply to the future
also." Under these sections there Is no
doubt that the will of Annie L. Roton, made
while she was a widow, was revoked im-
mediately npon her marriage to Roton, and
the will being revoked to "all intents and
purposes whatsoever," then she died as if in-
testate, and her property is to be divided un-
der the statute of distrlbdtlon, and the ex-
cwtiona are overruled.
Judgment afDrmed.
GARY, a and HYDBKX and WRA-
tUBB^ J3^ caoaa.
018. a ISO)
BBEn> V. REBD.
(Supreme Court of South Oarolina. Jane 28,
1813.)
Husband aito Win (H 29S, 800*>-Aanoics
voB Auicoirr— Tdcpobabt Alzhoht avd
COUHSII' Fbbs.
In a wife's action for alimony, the grant-
ing of temponiry alimony and coansel fees is
wUhln the discretion of the trial court, and wUl
not be disturbed where there baa been no abase
of discretion.
[Ed. Note.— For other caseL see Huiband and
Wife, Cent Dig. || JOM-Om 1008; De& Dig.
H 295, 800.*]
Appeal from Common Pleas Olrcult Court
of Richland County; O. W. Gage^ Judge.
AcCl<Hi by Mabel Reed against J. W. Reed.
From an order granting temporary alimony
and counsd feei^ defradant appeaUk Af-
flrmed.
Bbbt lA>orinan, of OoInmUa,-fOr appellant
Prlngle T. Youmans and J. Bughea Cooper,
both of Columbia, for respondent
FRASER, J. ThU Is an action for all-
oiouy. His honor. Judge Gage, granted tem-
porary alimony and counsel, fees. From
this order the defendant appealed.
There are two exceptions, as follows: (1)
"That upon the showing and countershowing
made before him on December 11, 1912, bis
honor, Judge Gage, erred In holding that
plaintlfC had made out a prima fade case
for temporary alimony and counsel fees."
(2) "It is respectfuUy submitted that his
honor, Judge Gage, abused the discretion
Imposed in him in granting said order for
temporary alimony and counsel fees."
These exceptions admit that the matter
is in the discretion of the circuit Judge, and
no abuse of discretion has been shown. See
the recent case of Norman v. Norman, 77 S.
B. 865, and cases there cited.
It Is therefore ordered that tha order ap-
pealed from la affirmed.
GARY, a Ji« and HYDBIGK ud WATTS.
JJ. coucnz;
RZiAirrB V. McKBAND et at
(Supreme Court of South Carolina. June 28;
19ia)
L CoBPOBATions (I 507*) — PaocBsa— Evi-
nsNCK Aa TO Skbtiob— Weiqht Axn Sum-
CHHOT.
Wb^e, on an application to set a^de a
default Judgment against a corporation, there
was abundant evidence that the party served
with summons was dot tbe corporation's agent,
and no evidence that be wss each agent, tbe
court did not err in finding that ttaare had beea
no service on the corporation.
[Ed. Note.— For other cases, aee Corpora*
tioDS, Cent Dig. H 1971-1974. 1976-SoOO:
Dec Dig. I B07.»]
2. ApPEABAHci (I 20*)— Paocnui— Sbbvicb—
Waivbb.
A defendant upon v^Om a ■nmmoaa had
not been served did not waive service, where
its attorneys asked plaintUfa attorneys for sd*
ditional time to answer.
[Ed. Note.— For other cases, see Appearance^
Cent Dig. H 91-102; Dec mg. | 20:*]
3. Pbocsss (I 4*>— NicxsaiTT TO Givb Juaia-
OICTXON.
No court has Jurisdiction to render iodg-
meut agsinst a defendant who baa not mmi
served with process.
[Bd. Note.— For other eases, see Proeesi^
Gut Dig. H d* 6i H; Dea Dig. I 4.*}
4. Appcai, Afro Bsaoa Q 848^ — Bsvxbw —
AOADXUIO QOKSnOMS.
It would not be pr^r for tbe Supreme
Court to consider questions wbldi have becooM
purely academic
[Bd. NofiAf— For ollittr eaaea, aea Appeal and
^^r. Cant Dig. H ^1-8841; DedTBlg. |
•For 9tb«r osMs sasM teplo ud swuea NUHBBB la Dm. Dig. * Am. Dig. Ksr-MSb Bsass * Batfr
Digitized byVjXJO VTt.
BAUBXXX T. DAVIS VAOCW OQ;
Ara>eal from Common Pleas CSicolt Ckmrt
of Dorchester County ; B. B. Copee, Judge.
Action by O. U. Klatte against A W. Mc-
Keand and the Coaatal Land I>eTelopment
Company. From an order setting aside a de-
fault Judgment against tbe Dw^iopmaat
Company, fiajnHiy appeals. Affirmed.
W. A. Hfdnan. oC Obarleston, for appel-
lant IC. Betledga Btna, cf Qlwrlaahin, to*
tmovaOmt.
FRA8BR, J. The appeal In this case Is
from an order setting aside a judgment by
default The order was made by his honor,
Judge Copest and was granted on the gronnd
that the respondent Cc«stal Land Devdop-
ment Company was not served with the sum-
mons. The order also set aside tbe judgment
as a matter of discretion for excusable neg-
lect There are seven exceptions; but tbe
api>ellaut reduces the questions to three, as
follows:
1. md bis honor err In holding and find-
ing that there had beoi no service on the
defendant Coastal lAud Development Com-
pany?
[1] The answer to that question Is : He did
not There was abundant evidence that H. H.
Sanders, who was served as the agent of the
oompany was not such agent and there was
no evidence that he was the agent There
was nothing that his honor could do but
to so bold, and as a consequence thereof
set aside the judgment by defoult
[2] The appellant claims, however, that In-
asmuch as the attorneys for the defendant
company asked of the attorneys for the plain-
tiff additional time to answer. It thereby
appeared In the cause and waived service.
The recent case of Williams t. Hatcher. 78
fi. E. 615, holds that even a notice of a mo-
tion (not made) Is not a waiver.
2. Did his hdnor err in holding that the
judgment by defiinlt against the Coastal
Land Development Company should be va-
cated and set aside on the growid of «k-
cnsable neglect and surprise?
This court having held that there was no
service on the defendant this question does
not arise. It was proper for Judge Copes to
consider both grounds, because. If this court
bad held that he was In error In setting aside
the service of the summons, then the ques-
tion of discretiou would have arisen. The
holding, however, that there was no service,
eliminated all other questions.
3. Did the court of common pleas for Dcw-
chester county have Jurisdiction to render a
Judgment against tbe defendants?
[3] No court had Jurisdiction to render
Judipncot against the respondent as it was
not served. TbB defendant UcKeand has
not appealed, and his rights are not before
this court.
[4} The respondent Coastal Land Develop-
ment Company, asked to sustain the order on
additional grounds. It would not be propw
to consider these questions. They have be-
come purely academic.
The judgment appealed from Is affirmed.
GABT, a Jn and HYDBICK and WATTS,
J concur.
040 Qa. in)
LANCASTER v. JOHNS.
(Sapreme Court of Georgia. June IT. IfilS.)
(BitMut (y (W Court.;
Bsthw ok Afpbal.
While some of tbe evidence admitted over
objection was of doubtful materiatit?, it was
not of such a character as to require a new
trial. There were no reversible errors of law
committed on the trial, and tbe evidence sup-
ported tile verdict.
Error from Superior Court Dodge County;
J. B. Martin, Judge. .
Action between Fannie Lancaster and M.
J. Johns^ From the judgment Lancaster
brings error. Affirmed.
Roberts & Smith and Wooten & GrllBn,
all of Eastman, for plaintiff In error. W.
M. Clemmts and J. A. Neesa, both of Bas^
man, fw dtfendaitf In error.
HILL. J. Judgment afflrmed. AU the
Justices concur.
^40 Ok. 1X1)
BABBEI^ et aL T. DATI8 WAGON CO.
(Supreme Court of Georgia. June 18, 1918.)
(Byllabm the Court.)
ExKCunoif (I 166*)— JnuoMKNT rt 182*)— Ds-
xahli^Entrt— Jdrjsdiction— voin Judo-
KXNT— RSMBDT— IrXBGALtTT.
The Davit Wagoo Company Institated a
common-law action In the superior court
against W. H. and BL L Harrell to recover a
stated amount alleged to be due on a promisso-
ry Dote. Defeodaots were each peraonally
served, and the petitioD and process were re-
turnable to tbe May term of court, 1911. Nei-
ther deftadant appeared, and at that term on
the call <tf tiie appearance docket the Judge
marked the case in "default" At the same
term the Judge also entered a final Judgment
for the plaintiff, and within 30 days thereafter
execution issued and was levied. One of tbe de-
fendants resisted the enforcement of the ezecu*
tion by affidavit of Illegality, atUt^ing the Jndg^
ment and execution as void on the ground that
the Jadge was without authority of law to ren-
der tbe Judgment at the appearance term. By
consent of the parties the Judge tried the Hie-
galitj case without tbe interventioD of a jury
upon an agreed statement of facts as stated
above. A Judgment was rendered, ordering the
dismisasl of the ill^^alUy and directing tlie ex-
ecution to proceed.
SMt after entry of default there being no
statute specially- autborlatDg a &ial trial at the
first tenn, the Jndge was without autbozi^ of
law to enter final jadgment at the first term.
Civ. Code 1910, I S&SL Se^ also, State v.
OaskiU, 68 Oa. 518. The provisions of tbe
Constitution (Civ. Code 1910, | 6616), and the
rules of court in pursuance thereof (Civ. Code
1910, II 6295, 6296), for rendition of judgment
by tne court without a Jury in suits on condi-
•fl^r otlur OWNS ■■• eans teple sad sesttaa NDUABR la Deo. Dig. 4 Am. Dig. KwHk'Bi^ ti/tttt^MH
714
78 SOUTHS] AS T&RN RBPORTBB
(Qa.
ttonal contract* in writinff, when considered In
cODDectlon with OiT. Code 1910, | 5661, merely
-aatfaorize jadffmenti to be rendered by tbe court
in tbe clui of cuw mentioned without the in-
terrention of a Jury, and do not aoftU^y the pro-
Tiaiou of Motion oBSl that the trial shall not
b« had at die fint term. It followt that the
Judgment and execution based thereon were
Toid. The Judcment being void, illegality was
a proper remec^ to resist the enforcement of
the ezecQtioD. Park t. Callaway, 128 Qa. 119,
67 S. E. 229; Hart r. Lazaron. 46 Ga. 396;
Lott Wood, 185 Oa. 821, 70 S. B. 661.
182*]
Error from Superior Court, Decatur Gonnty;
Frank Park, Judge.
Action by the Davla Wagon Company
against W. H. and B. I. HarreU. Judgment
for plalntU^ and defendants bring error.
Reversed.
R. O. Hartsfleld, of Balnbrldge. and A. B.
Conger, for plalntllfs la error. 3, O. Hale,
of Balnbrldge for defendant In error.
ATKINSON, J. Judgment revemd. All
the Justices concur.
040 Oa. 1281
GLOWER et aL r. GODWIN et aL
(Supreme Court of Georgia. June 18; 1918.)
(8pUahM9 »y th9 Court.)
1. Sxvczno Pebfobhanoi (S 29*)— Bokd vob
TiTLB— SnmciENCT or Descbiption.
The following description of the land al-
leged to have been sold to tbe plaintiffs by the
duendsnts in the suit for specific performance
is found in the bond for title: "AU that tract
or parcel of land being part of lot of land B.
No. 234 la the 2nd land district of originally
Irwin, then Wilcox, but now Turner, containing
one hundred acres, being in the east side of
lot commencing at Bucksain Branch, thence to
original line, thence back north fiir enough,
thence mnnug WMt back tar enough to make
one hundred acres. Bound on west by lands
of Elbert Paulfc, on north by lands of Bennett
Pate, and on east by Monroe Harvey." Held,
that it cannot be declared as a matter of law
that the description is so la<&in( In certain^
that it may not be made tbe bans of a decree
for specific performance.
[EA. Note.— For othet cases, see Specific Per-
formance. Cent Dig. SS 69-82; Dec Dig. I
29.*1
2. SPBOmO PBBFDBlfAlfCB (| 92*)— LacHBS OF
PURCHABEB.
Where a tract of land is sold for $1,600,
and $350 is paid at tbe time of the sale, and a
note due in 60 days, bearing interest, is given
by the purchaser for the balance of the pur-
chase money, and a bond for title Is executed
by the owner of tlie land, conditioned to exe-
cute a deed upon the payment of the note, and
time is not expressly made the essence of the
contract, and there is no language employed in
tbe bond importing an intent that it should be
of the essence, a mere delay of four years and
seven months in tendering tbe balance of the
purchase money will not bar tbe holder of the
bond of his right to specific performance upon
making a proper tender.
[Ed. Note.— For other cases, see SDcdfic Per^
formauce, Cent Dig. H 233-244; Dec Dig. {
92.*]
Error from Superior Goart, TnmH Coun-
ty; Frank Park, Judge.
Action by J. M. Glower and W. G. Glower
against M. V. Godwin and others. From a
Judgment dismissing tbe action, plalntUb
bring error. Reversed.
J. &f. Clower and W. C. Clower filed tli^
equitable petition against Mrs. Godwin and
Mrs. BobertBon, prayliv for q>eclflc poform-
ance and other equitable relief. It is alleged
In tbe petition tbat plaintiffs entered Into a
contract with the defendant Mrs. Godwin
for a sale to tbem of a certain described tract
of land for the sum of $1,500. The date of
the contract was Octobw 31, 1907 ; the ^In-
tiffs paid $3C0 of tbe purchase prloe In cash,
and for the balance gave tbdr promissory
note dae in 60 days, and Mra. Godwin exe*
cuted a bond to make title in ttie usual form.
It Is alleged tbat on or about the 2d day ot
August; 1911, pbdntlflTs tendered to Mrs. God-
win, tbe owner of tbe land and the maker
of the bond, the balance of the purchase
prlc^ Mrs. Godwin b^ng in possession of the
land, and Is stlU In possession. It is also al-
leged that Mrs. Godwin had, on the 2itb
day of September, 191(^ executed to bn
daughter, Mrs. Bobertson, a deed to 25 acres
of tbe tract of land sold by Mrs. Godwin to
plalntUb, and that Mrs. Robertson took tUa
deed witb notice of plaintiffs' purchase from
Mrs. Godwin. And in addition to praying for
apedfic performance against Mrs. Godwin,
plabitifts prayed that Mrs. Bobertson be re-
quired to bring in Mrs. Godwin's deed to
herself and that the same be canceled. Tbe
petition was demurred to upon tbe general
grounds tbat It did not state a cause of ac-
tion, and tbat there was no equity in it.
Tbe court sustained tbe general demurrer
and dismissed tbe case.
John B. Hutcbeson and A. 8. Bnssey, both
of Ashbum, for plalntlfls in error. R. L.
Tipton, of Aahbom, for defendante in errar.
BECK, J. (after stating the fiicts as abore).
[1] 1. The description of the land involTea
In this controversy, as set forth in the bond
for title from tbe defendant Mrs. Godwin to
the plalntifFs, Is as follows: "All that tract
or parcel of land being part of lot of land
No. 234 In 2nd land district of originally Ir-
win, then Wilcox, but now Turner, contain-
ing one hundred acres, being In the east side
of lot commencing at Buckskin Branch,
thence to original line, thence back north far
enough, thence running west back far enough
to make one hundred acres. Bound on west
by lands of Elbert Panlk, on north by lands
of Bennett Pate, and on east by Monroe
Harvey." It Is urged that this description is
so vague and Indefinite tbat it cannot form a
basis of a decree In equity for specific per-
formance, and that for this reason Uie de-
murrer was properly sustained. We do not
think we can say, as a matter of law, that
•fte eUisr esMS mm mam topic aad NctlOB NUHBBR la Des. IHb. * Asa. Dig. Kv'^ BfilsSi^JUi^^UaMi
Cla.) WELLS T. DU BOSS
the description of the land Is bo wanting In
certainty that a speclflc performance of the
contract for the sale of same should not be
decreed. The aale la for a fixed qaantlty of
land, 100 acres, and In fhe bond for title
there Is no addition of the terms, very fre*
qnently occnrrlng In conTeyancei^ of tiu
clause "more or less." So we have a con*
tract by Its terms calling for a deed to 100
acres of land, and the bonndutes on the
east, north, and west are glren. That be-
ing tme, it la not impossible that, by the aid
of parol proof, the sonthem boundary may
be definitely fixed; and In such a case the
plalntUb would be entitled to spedflc per-
formance^ If they did not lose their right
thereto by reason of delay In bringing their
petition. Moody t. Voudereao, 181 Oa. 621.
62 8. 82L
[2] 2. Nor do we think that the plaintlira
were barred of th^r eqnltable relief by
laches. Generally time is not of the essence
of a contract for the sale of land. And In
fhe bond for title executed by Godwin
time was not expressly made of the essence
of the contract, and the Instrument does not
contain any terms a fidr construction of
whidi would make time of the essence. This
was an ordinary contract for the sale of
land, with part payment; and the bond f6r
dtle in the usual terms; and there was no
variance from sudi usual terms to indicate
that boUi of tbe parties, or either of them,
contended that time should be of the essence.
And it would not seem tbat, although the
plalntUBs delayed for a period of nearly five
years before making a tender of the balance
of tbe purchase money, this was s\ich an
unreasonable delay as to annul the rights
whidi plaintiffs would have had upon mak'
log a tender nuwe promptly. The owner oi
the land waa In possession of It, and had
possession and use of the $360 which had
been paid at first, and the note which had
be«i given for the deferred payment bore
Interest In audi a case, especially in the
absence ol any demand by the defendants
ttiat tbe plaintmh comply, within some fixed
period, with the terms of the contract of
sale, and a declaration on the part of the de-
fendant that, unless this demand was com-
plied with by the plalntlfls, the latter's rights
nnder tbe bond would be forfdted, it would
seem that tbe interest upon the deferred pay-
ment would be sufficient compensation for
any delay in making payment BUU v. Bry-
ant 120 Ga. 890, 48 B. IL 862.
Judgment reversed. All the Jusdoes con-
cnr.
ns
(110 Gs. 1M>
FLAGO T. 8TATB.
(SopBsme Court of Georgia. June U, 1918.)
fSvUabut 1>v the Oouri.)
SuFncixNCT or Etidbnce.
The verdict was supported by the erldenee,
and them was no emw m orerruling the motion
tor a new trial.
Error from Superior Oonrt, Bibb County;
W. H Thomas, Judge.
John Flagg was convicted of crime, and
brings error. Affirmed.
W. D. McNeil, of Macon, for plaintiff in
error. Jno. P. Ross. Sol. Gen., of Macon,
and T. 8. Felder, Atty. Gen., for the State.
LUMPKIN, J. Judgmoit affirmed. All
the JusUces concur.
(140 Oa. U7)
WELLS et sL V. DU BOSSL
(Supreme Court of Geoigla. Jane 17, 1918.)
(Syllabua hy the Court.}
1. COBPOBATIONB (S| SO, -663*)— LlABIUTT OT
OaoANizER— Action bt Receivbb.
"The llabilitr of persons who organise a
corporation aud transact busioesB In Its Dame,
before the miDiinum capital stock has been sub-
scribed for, is to creditorB, and is not an asseC
of the corporation ; and under the ruling in the
case of JoDD V, Farwell Co. t. Jackson Stores,
137 Ga. 174. 78 8. B. 13, the receiver of the cor-
poration could not maintain a suit against per-
sons falling within the provisions of aection
2220 of the Civil Code of 1910, to collect from
them, as an asset of tbe corporation, an amount
□eceasarf to pay the outitanding debts of the
corporation." Higbers v. Hatheock, 138 Ga.
120. 74 S. B. 8S4.
[Ed. Note.— For other cases, see OorporatlonB,
Gent Dig. » 87-100, 2280, 2280^; Dec. Dig.
H 30. 663.*J
2. Deuubbeb to FBTtnON.
Applying the ruling above announced to
the facta of this Case, the court erred in not
sustaining the general demurrer to the petition.
Error from Superior Court, Wilkes County ;
B. F. Walker, 3ii<ige.
ActlML by George H. Dn Boss against I*
M. Wens and others. Judgment for plaintiff
and defOidants bring error. Reversed.
W. A. Slaton, of Washington, Oa., for
plaintiffs In error. CoUey & Colley, CL S.
Sutton, and R. C. Norman, all of Washlng-
ton, Ga., for defendant In error.
FISH, O. J. Judgment reversed. AU the
Justices concur.
•For etlur ewM see aeme teple ud seetln HUHBBB la Oea. Die * Ask Dig. Ker-Ne. girles A Rep'r ladesee
Digitized by Google
719
18 SOOTHIIASTBBN fiBK^BTlDB
aw 0*. MB)
mJBMEHmVt. StATB.
(Si^9HB«: Oonrt of GmtsU. June 16^ IfllB.)
(SvUmbmt by tht GomtL)
1. CsnanAi. Law ^ 828*>— Inanuonoro—
PsuoKU'a Stateukhi.
Ilie &llan to refer to the priwiDer*t etttte
ment iriille charging on reasonable doubt waf
not erroneoaa, espedaUy where in another part
of the charge the jury was fully and correctly
instructed aa to the statutory provisiona in
reference to such statemenL Hurea T. State,
U4 Oa. 26 (3), 40 S. D. 13; OargOe t. State,
137 Ga. 776 (1), 74 S. a 621.
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. H 1992-1996. SUiS; Dec Dig.
i 823.*]
2. HoiaciDt (t 809*>— lNnBUCTzon»— YoLuir-
TABT MAHSLAUOHTKB.
Under one pliase of the evidence, the Jaw
of voluntary mauahnghter waa involved in the
case, and the judge erred In omitting to ehatg«
OD that subject.
[E^d. Note.— For other cases, aee Homicide.
Cent IMg. H 649, 660, 662-66B; De& Dlg.l
809.*]
Xiah, Ol J., and LnmpUa, J., dlmnting.
Error from Bnpexior Court, Lowndes Oonn*
ty; W. E. Thomas, Jadgb
Warren Clements waa convicted of mur-
der, and brings error. Reversed.
Knlipit, Cbaataln ft Gaakbu^ of NaahTtttoi
and B. K. Wilooz, of Valdosta. for plaintiff
In erzor. J. A. WUke^ SoL Gen., of Mool-
trle^ and T. S. VeUler, Attj. Qm^ for the
Stata
ATKINSON, J. [1] Wairai Clements on
trial for murder was convicted; the jury
recommending that he be punished by Im-
priaonment In the penitentiary for life. He
made a motion for new trial, which was re-
ftised. The bill of excepUona assigns error
upon the judgment refusing a new trial.
1. After charging the provisions of the
Code relatlTe to the statement of the ac-
cused, the judge Instructed the jury on the
subject of reasonable doubt as follows: "A
reasonable doubt in the law is one arising
out of tlie case either from want, weakness,
Insofllciencr. or conflict in the testimony, and
wtdcfa leaves the mind of an honest juror
wavering and In doubt, a doubt which la not
a mere conjecture, but one for which the ju-
ror can assign a reason for from having
heard the whole cas&" This charge was
assigned as error for the reasons: "(a) It
restricted the doctrine of reasonable doubt to
thO' evidence or lack of evidence, and pre-
vented the jury from considering the defend-
ant's statement in determining whether or
not the defendant was guilty beyond a rea<
aonable doubt (b) Because the jury had the
light to conidder the defendant's statement;
and bla statement alone, or in connection
with the other evidence, may have been suf-
fldoit to gmerate a reasonable doubt In their
minds.** For the reaanu Indicated In the
lieadnote fbeA waa no meitt In CUs gnmoA
of the motion for new tilnL
[1} 2. Conqdalnt was made 1u' tbe motion
for new trial that the judge omitted to
charge on the law of Tolontary manslangh-
ter. There was ccmflict in the testimony at
the witnesses for tbe state and the accnaed.
According to some of tbe evidence for the
state, the homldde was murder, without miti-
gating drcomstances, while according to that
of the defense it was jnstiflable: However,
according to the testimony of D. H. HarrOll,
a witness for tbe stated the elemuit of vol-
untary manslaughter entered into the case.
From the testimony of this witness the fol-
lowing appears, among oQier ttiings: BL J.
Qrlffln and several others, Induding witness
and Warren Clements, the defendant, started
on a journey in Orlffin's automobile. Several
of the party, Including the Individuals above
named, were drinking. After going some dis-
tance the automobile was stopped, and all
of tbe party alighted. While on the ground
Clements fired his plstoL Qrlffln charged
him with shooting his automobile, Qements
denied the charge, and explained that he shot
at a tree, but the explanation was not ac-
cepted. The men did not appear to be an-
gry, but after the shot and controversy above
mentioned, in the immediate presence of wit-
ness, they stood facing each other on the
same side of the automobile, one at the rear
and the other at the front While In this po-
sition, witness turned his eyes away from
them for "a little bit, a minute or two,"
when two pistol shots were fired, whereupon
he immediately looked and saw Griffin and
Clements shooting at each other. After an
exchange of several shots twth parties re-
tired. Griffin received a wound, from which,
after lingering, he died. Under this evidence
the jury might have found that there was
an altercation between Qrlffln, the owner of
the car, and ClemoQts, whom he charged with
shooting Into It; and, while apparently the
men, at the time the first shot was fired and
the colloquy about shooting the automobile
took place, were not angry, the jury might,
from all the circumstances, have Inferred
that the participants in the affray bad their
feelings aroused against each other by the
charge made by one and the denial made by
the other, attended by a mutual display of
arma, whereby each waa incited under a sod-
den heat^of passion to engage in combat If
the jury should find that the parties were
thus led into combat with deadly weapons,
by which one of them was killed, they would
have been authorised to find the eiayer guilty
of voluntary manslaughter. This theory
the case might have been accepted by tbe ju-
ry rather than Hiat of murder or jnstiflahle
homicide, as presmted by the testimony of
other witnesses, and though no request was
made to charge on the subject, tbe judge
should have given an appropriate charge on
•ror otiMr sasw ass sans teple and seotiM NUHBBB la Dm. Dig. A Am. Dig. ^^'j^^^^
Ga^ KESVB9 T.
tbe law <d Tcioaterr nanttlftiii^ter, a&d
fHxdsaloii to Oo BO necenfttetM auotiber trIaL
jndgmmt reroned. All tbe Jiistteaa too-
cnr, except FESR* a and LDltPEIM, J.,
fllnfifffitlnf.
LUMPKIN, J. (fflgewiHni). In order to n-
dnce a bomldde from mnider to inawalantfi»
ter, tbere moat be some aetoal aaiaalt upon
the penon kUUns, or an atfcui^ by tiM per-
son killed to commit a aerlooa penonal in-
jury on the person UlUi^ or other equiva-
lent dreomstancee to Jnituy the ezeiteinait
of pas^on, and to exdute aU Idea of d^lb-
eratloa or malice, either erpreaa or Implied.
ProTocatlon by words will not work that re-
sult. Penal Oode, | 60.
Whether it is cOaimed that the kUling was
reduced to manslaughter under the exact
terms of the section of the Code cited, or <ak
tbe theory of a sudden quarrel, followed by
fighting upon the spot, or presently procuring
weapons and fighting, the redodag facta
most appear from the eridenee or statement
of the accused. It Is not contended that
such facts appeared In this case from the evi-
dence of any of tiie eyewitnesses to tbe en-
tire transaction. Tbe only witness from
whose erldence tbe theory of voluntary man-
slaughter la claimed to arise did not testi-
fy to any assault or equivalent acts. He tes-
tified to tbe defendant's sbootlng a pistol,
and that be heard some complaint thereof
from the decedent He looked in a different
direction for "a minute or two," and whoi he
turned back both parties were shooting. To
reduce tbe killing to manslaughter on this
basis would not be because of any evidence
authortEin;' It, but because of lack of evi-
dence— ^not on account of anything which
the witness saw or heard, but because of
what be did not see or hear. A supposition
of manslaughter was rather Inconsistent than
consistent with the state of affftln when the
witness looked away. According to bis evi-
dence, the defendant had then fired a shot
at a tree or the automobile. The decedent
wat) not shown to have drawn bis pistol. He
bad committed no assault, nor had be at-
tempted any. He bad merely complained of
the sbootlng which tbe defendant bad done,
but the witness said that he heard nothing
indicating anger before he looked In another
direction. Tbere is no basis In the evidence
of this witness for requiring a charge on
the subject of voluntary manslaughter, ex-
cept to surmise what liappened when the wit-
ness looked away. I do not think a verdict
^onld be upset by such guess woik, merely
because one of the witnesses did not see or
bear the entire transaction.
In Uann v. State, 124 Ga. TOO, 58 8.- B.
SSt4, 4 L. B. A. (N. S.) 934, and numerous
cases following the ruling there made, it has
been held that, where the evidence riiowlng
a killing does nOt also show'that it was less
than mnrder^ ilia law' pnaaiaea avaty hom-
icide to be malielffali untU Oie ctmtrary ap-
pears fromi circumstances of alleviation, ex-
cuas^ or jnstlflcattoii. I do notthink the wit-
ness mentioned showed any each dream-
stances, so as to require a charge on vol-
untary manslaughter.
I am anthorized to state that Chief ^u>*
tloe FISH cfmcors in this disaant
(X« OS. US)
COUJOR T. STATXL
(Sapmese Court «F Oeoi^ June 18, 1S18.)
' (Syllahus &v tht Ociirt)
SuFiioiENOT or EviDxncn.
No Complaint ia made of any ruling of the
court on the trial of the case. Tbe evidence
warrants the verdict, which has the approval of
the trial judge.
Drror from Superior Court, Chatham
County; W. Q. Charlton, Judge.
Frank Collier was convicted of crime, and
brings error. Affirmed.
^ea W. OwuiB^ of Savannah, tm plaintiff
in error. U. H. Bernstein, of Savannah, W.
a Hartzidge. SoL Qen., of Atlanta, and T.
& Feldar^ Atty. Gen., for the State.
EVANS, P. 7. Judgment afflrmed. All
the Josticea concur.
(140 Oft. .USk
WIlfBURN et at V. FISKA
(Supreme Court of Georgia. June 18, 1918J
(SvUalmt J>v tk» Court)
Appbal ako Bbbob ({ 1016*) — Coifmorxxa
BVIDINCB.
There being conflicting evidence, and the
verdict not bei&f reqnfred thereby, the finC
grant of a new tnal will sot be reverssd. OMl
Code 1810, S 8201.
[Ed. Note.— For other cases, see Appeal and
Error^Cent Dig. S| 386fr-8S76; Dee. Dig. S
Error ftom Superior Court, Blchmond
County; H. C. Hammond, Judge.
Action by C. C. WImburn and others
against W. M. Flake. Verdict for plaintiffs.
From an order granting a new trial, they
bring error. Afflrmed.
Isaac S. Peebles, Jr., of Augusta, for plain-
tiffs in error. Geo. T. Jackson, of Augusta,
for defendant In erroK
LCMI^N, J. Judgment afilrmed. All
the Justices concur.
aM Ga. 101)
BBEVBS V. OALLAWAT et aL
(Supreme Coart ef Georgia. Jhne U, 1918.)
(SvHaiut &v Couri,)
Ik WiTNsssns (I 392*>— IicFuomcN*— Geir*
TKADICTOBT STATUCBNTS.
Where the value of property la a relevant
fafet, and a witness testifies to its Value, a letter
I nme teplo ead— tton NnUBBB la-Dee. Die; a Am. lUg. Kir-M«. Sartn * Ban'* ZbSkm I
Digitized byVLiOVTsHc
718
78 SODTHSASTEBN RBPORTEB
written bj Ibt witneM fiziiv its Talne at a dif-
ferent sum, though writtm as much as two
years prior to the transaction inquired about, la
competent evldeace.
[Ed. Note.--For oUier casM, Me Witnesses.
Gent Die. H 1249-1261, 12^ ; Dee; Dlin
882.*!
2. PmNCIPAL AND AaSNT ^ 69*)— Pdsohasb
qw PBincsPAi/B Pbofbbtt— Ssmso Asxdx
Saxje.
An agent or attomer mavtoywi to mQ prop-
erty cannot directly or Indirect^ become the
purchaser without the principal's knowledge and
consent If the agent associates with himself
in the purchase another person who has knowl-
edge of the agent's ration to his principal, and
the Bale la made by the principal in ignorance
of the agent's interest in the purchase, such sale
will be set aside at the instance of the prin-
cipal, who is not in laches, upon his offer to
restore the status. In such case the law does
not inquire whether there was fraud, but gives
to the principal th« absolute right to repudiate
the transaction upon offering to do equity.
[Ed. Note.— For other cases, see Principal and
Agent, Cent Dig. {| 180-146; Dec. Dig. | 69.*]
Error from Superior Court, Foltoa Gonnty ;
Geo. L. Bell, Judge.
■ Action by J. M. Beeves against B. O. Calla-
way aiid others. Judgment fen- defendants,
and plalntlif brings error. Reversed.
E. C Callaway sued out e warrant Co dls-
poBsesa J. M. Reevee as his tenant, where-
upon Reeves filed an equitable petition to en-
loin the dispossessory process. Tlie case al-
lied in the original petition was that Reeves
owned certain city property and a farm
tract; both were Incumbered with liens. He
applied to H. A. hitberldge for a loan to pay
off these incumbrances. Etherldge procured
a loan from Callaway, and the plaintiff exe-
cuted what he supposed to be a deed to
Callaway to secure its payment Etheridge
undertook to apply the amount of the loan
to the payment of the liens on the plaintiff's
property. The plaintiff allied himself to
be an ignorant negro man, without education
and unacquainted with legal nomenclature.
It turns out that the deed was made to
Etherldge, and not to Callaway. He further
allied that on the same day he executed the
deed to secure the loan Callaway and he en-
tered Into two written agreements, wherein
Callaway leased him the property be convey-
ed to Etherldge for a stated sum payable
semiannually, and gave him an option to re-
purchase It five years from date at a stipu-
lated price. When he signed the Instrnments,
the plaintiff alleged that be understood one
of them provided for a written extension of
tSke loan for five years, and that the other
was an obligation to pay the difference be-
tween this loan and the price at which ho
could repurchase the land as a bonus for
making the loan. About four months after
he executed the deed to Etherldge, the latter
conveored the land therein described to Calla-
way. The plalntttt gave possession of the
dty i^operty to Callaway for the purpose of
collecting the rents to be allied to his In-
debtednesa to Oallav^; he letalnliis posses
sI<Mi of Qie farm iv^wrty. He prayed Cor
an acooustlnc from >Galtafpay and Btbtfl^
as to de dlspoaltlim.of the moi^ loaned to
him and for the collection of the rents on the
dty propoty, for cancellatloii of the deeds,
and for injunction against the wamnt to
dispoaseas him of his fann pnnMtrty.
Tba plaintiff amoidod lila petition, alleging
that neither Callaway nor EJtherldge paid out
any money for him, but that the whole trans-
action was a device to vest themselves with
the title to his pn^erty ; that as illustration
of such scheme, about torn months after be
conveyed Ills land to Btboridge^ the latter
procured on the land a loui for the same
amount he promised to lend to tiie plaintiff,
and then conveyed the land to Callaway ;
that plaintiff has paid Callaway and Ether-
ldge all he is due them, and that he is will-
ing to have the loan deed whldi Eth^Mge
put on the land made a valid lien thereon.
He renewed bis prayer against Etherldge
and Callaway for an accounting, A second
amendment to the petition was allowed. It
was allied therein that in all the transac-
tions and negotiations which led up to the
execution of the papers, under which Calla-
way claims title to -the laud, and in the exe-
cution of the papers, the plaintiff was repre-
sented by Etherldge as his attorney at law
and confidential advisor ; that at the time of
the transaction he did not know that his at-
torney was to share with Callaway In the prof-
its to be realized from the own^hlp of the
property by Callaway, and was not aware of
the fact until after the filing of this suit,
and gained the Information from an affidavit
of Callaway used at an interlocutory hear-
ing ; that, if the court should hold the trans-
action between himself and Callaway and
Etherldge to be a sale of his property, he re-
pudiated the sale, offering to pay any money
found to be due them on an accounting be-
tween than, and prayed that the various pa-
pers be canceled.
The defendants, Callaway and Etheridge,
answered, denying each and all charges of
collusion and fraud. They averred that
plaintiff represented to them that the holder
of the incumbrance on his property was
about to sell him out, and that be would lose
everything unless some one would come to
his relief. Defendanto made it clear to him
that th^ would not loan him any mone^,
but that they would buy the property out-
right, and give him five years in which to
buy it back at an advance price ; he In the
meantime obligating himself to pay a reason-
able rental therefor, and. In the event he
should buy It bade, he was to reimburse them
for all sums expended on the property. The
papers were carefoUy read over and their
purport was thoroughly understood by the
plaintiff at the time of their exeenUim. Uta
plaintiff Is not Ignorant, but Is a man con*
•Vor eUier mwm *mnm» tA^o ud moOmi NUHBBB ta Dm. DIs. a An. lUs. ^
BEEVES r. CAXjLAW4T
Tenant wltb and expttimced In transacUonB
of this kind. Tb» i>tOntIff aoon fell behind
In Us rent; he was indolsed in his deftinlt,
and given every opportunity to repurchase
hlB property. He has allowed the property
to go into disrepair so that its market value
is less than their InTeatment In it The trial
resulted In a verdict for ttie d^endauta
which the court refused to set aside.
Daley, Chambers ft Smith and Hlnes ft
Jordan, all of Atlanta, for plaintiff In error.
Westmoreland Bros., of Atlanta, for defend-
ants in error.
BYANS, P. J. (after stating the. facts as
above). [1] 1. It was relevant to an Issue
in th^ case to prove the valne of the property
at the time of the transaction between the
parties. A witness was offered by the defend-
ants to prove the value of the farm land.
The plaintiff offered to put in evidence a
letter written by the witness to a person not
a party to the case about two years before
the transaction in issue, in which the value
of the land was stated to be of a greater sum
than that fixed by the witness. This letter
was admissible In evidence as affecting the
credit to be given the testimony of the wit-
ness In his estimate of the value of the land.
[2] 2. In the last amendment to his petition,
the plaintiff alleged that at the time be made
the deed to Stheridge and in all the trans-
actions connected therewith the latter was
acting as his attorney, and that he did not
know that he was to share with Callaway in
the profits to be realised from the ownership
of the property by Callaway, and was not
aware of this fact until after the filing of
the present solL His contention Is that, even
If Etherldge was not acting as his attorney in
procuring a loan, he was acting as his attor-
ney in making a sale of the property in which
both he and Callaway were Interested In the
purdiase, and that Callaway knew that Eth-
erldge was acting as attorney for Reeves,
but that he (Reeves) did not know of Bther-
idge'a interest In the purchase of the proper-
ty, and that, under these drcnmstances, the
vendor on discovering that his attorney was
interested with the vendee in the purchase
oould disaffirm the sale by offering to ac-
count for what has been paid out for his
benefit The testimony of Callaway and Btb>
erldge, in substance^ was that Callaway re-
fused to loan DKHiey on the property, but did
agree to buy the proper^ and give Beeves
the option of buying It baCk within five
years, provided Beeves would pay the rents
and ke^ the premises In relMdr; tlut Beeves
Hioroughly understood tbe transactlinit and
that the agreement between Reeves and Cal-
laway was reduced to writing by Btlurldge ;
tliat Oallaway desired tbe title to bo mads to
Rthflcridge inasmncb as Callaway was In basl-
nees, and It was oontanplated to borrow
the uKwey on the property, and Callaway
was erovdienalve ma credit mli^t be aifactad
by giving a. loan deed. It was for this reasen
that the deed was taken in the name of
Etherldge, who negotiated a loan oa tbe
property with Callaway's indorsement, and,
after securing the loan by a deed to the
l^der, Etherldge conveyed tbe pnvert? to
Callaway. Etberidga testified that he did not
charge Beeves a fee for procuring Callaway
to purchase the pnverty, but acted more aa
a friend to help Beeves In settling the liens
against the property so as to save something
for him; that be compromised those claims
so as to leave flSL of the purchase mon^^
of whldi nun he paid 916S to Beeves to bay
for him a mnlSk and retained $iA for Us
trouble In settling op tbese matters and clear-
ing Beeroi^ title to the land. Callaway testi-
fied: *'When I gave him [Etherldge} . the
chedE [for the purchase of tbe land}, as to
whether he was attorney for me or Beeves,
he was Just an attorney closing up the deal
for both atm. As to whether he was acting
as attorney for me or Beeves, he was acting
as a party In interest with me. As to my
knowing It to be a fact that he was acting
as Beeves' attorney, he vras transacting the
business for Reeves. I think he was acting
as Reeves' attorney." The check referred to
was made payable to Etherldge as attorney.
Both Callaway and Etlieridge admitted that
the land was bought with the expectation of
a resale, under an arrangement between them
that Eth^dge was to share In the profits
of the resale to the extoit of one half.
Beeves testlfled that Etherldge was his at-
toraey at law In all the transactions, and
that he did not know that be was intorested
with Callaway In the pnrdtiase until after
the pendency of the present suit On this
phase of the case the court charged: "If
you find that it was a sale, tbe plaintiff con-
tends that it was sneh a sale as that he
could and does repudiate^ and it ought to be
dedared null and void, by reason of this
last amendment filed by him. In which the
plaintiff contends that he employed Blr.
Etherldge to secure blm a loan, and that
Instead of that be made a sale of his prop-
erty, and that he was Inveigled Into tbe sale,
and under the policy of the law, the plaintiff
contends, he would not be bound by it and
that the sale would be null and void. U he
did not have knowledge at the time of the
execution of the papers of what th^ con-
tained, he could repudiate them and liava
than set aside." Blxception is taken to tbis
charge on the ground that it misstated tbe
irfaintUTs contention as alleged In his last
amendment; that he was oititled to repudi-
ate the sale upon discovery that his attorney
was interested with the purchaser upon re-
storing tiie status, wtaleb he ofl!ered to do;
that he was entitled to r^udlato this gale
because his attorney waa secretly Interested
therein, regardless of bis knowledge of ttie
oODtenta of the papers he' executed.
The Code dedares that, wlthoofr tiia >
Digitized by VjOO'
720
18 SODTEmABTVBN BEFOBTBB
vmm ooiucnt sf the minclpaf after e full
knowledge of all the fiictii, an agent employ-
ed to sell cannot be himself the pnrchaeer.
OItU CodOk I 8682. Thla principle applies aa
well to a case where the agent Joins with a
atranger, who has knowledge of the ag«icy.
In making the purchase as where the agent
la the sole pnr<^8er. In such ease the
proportion of the porChaae money paid by
the purchasers la an Irrelevant tect It is
Immaterial whether the agent's partner In
the transaction fnmlshed all or a part of
the money, If he knows of the agency and
Joins with the agent In the purchase of the
property on Joint accoant, or for their matnal
benefit The policy of the law forbids an
agent employed to sell to place himself in an
attitude of antagonism to the Interest of his
principal by associating himself with another
in the purchase of the land, and a sale by
an ageat without the express ontsent of his
principal to himself in association with an-
other, with knowledge of bis agency, will be
set aside at the Instance of the principal. It
will be no defense for the agent and his
associate to ribow that the agent acted In
good faith and that the transaction was In
fbct for the best Interrat of the prindpaL
The law does not Inqnlre In sach a ease
whether there Is any fraud, but glVes the
principal the absolute right to repudiate the
traneaction, because It will not allow an
ageat to take a position irtilcb la so Ineon-
atstent with his duty to his principal. 1
Clark and Skylea on Agency, 1 407. The rule
la not otherwiae In a case where the agent
to sell may be an attorney at law. Indeed,
the law requires of an attom«y the utmost
good faith towards his client Says Judge
Story: **It 1> <rt)Tlons that tide relation must
glre rlaa to great confldoice betweoi the
pardea and' to very strong -Influences over the
actlona and rights and Interests of the dloit
The Bltaatkm of an attorn^ or solicitor puts
It In his power to avail himself not only of
tiw neeeaaltles of his client, bvt of his good
natore, libwalityi snd eredollty to obtain un-
due advantages, bargains, and gratuities.
Hffloft the law, with a wise providence, not
only watdiea one all the transactions of
pavtlei In this predicament, bat It 4tftsn
Inteiposea to declara transactions Toid, which
brtween other persons would be held anobjee-
tkmaUaL" 1 atory, Eq. Jor. | SlO; StoUnger
T. irrey, 118 Oa. 886* 42 S. B. T1& In aflbrd-
ing this right of repudiation to the principal
oa dlseorery that tala attorney was intexeated
In the pnrchaoe of the pn^mty In oonnectton
with another who knew of the attorney's
relatiim to his porlndpal, equity requires that
the principal must do equity by a return of
the purchase money and restoration of the
status. Ordinarily this Is acoon«Uahed by a
tender of the money. Bat where the transac-
tion la involved and mutual accounts have
sprung out of it, and the exact status cannot
be ascertained except trom an acoounting, a
tender will be ucused upon the principal's
offering to account for what moneys he may
be equitably due as a condition to rescission.
The evidence In this case showed mutual ac>
counts with many items and an accounting
was prayed. The <^rge of the court did not
correctly state the law applicable to the alle-
gations of the last amendmoit^ and a new
trial must result
Judgmoit xvnsmA, All Uia Jastloei
concur.
au as. 100)
ATKINSON r. OUdSTBAIX
(Supreme Court of Georgia. June U, 1818J
(SyUmbMt by Oe OonrtJ
1. Appxal ano Sbbob (I 829*)— Biu or Bz-
OBPnONS— Amsmdiont.
The plaintiff brought an action against
the receivers of a rallrMd company. The de-
fendaoti filed demarrera to the petition, which
were overraled, and exceptions pendente Uta
were filed by aefeodantB. On the trial, upon
the concluaion of the eridence In belulf <^
the plaintiff, defendants moved for a Donault
whicn waa refused. They alao filed exceptions
pendente Ute to thia ruling. A verdict was
rendered for the plaintiff. Tht raOroad com-
pany moved for a new trial, which waa over>
ruled ; the reapondent to the motion at no time
raiaed the point before the trial court that
the company, Dot being a party to the action,
was not authorised to make the motion. Upon
the call of the case in the Supreme Court, the
defendant in error moved to dismlBs the bul of
exceptions upon the ground that the railway
company waa not a party to the caae and there-
fore bad no right to move for a new trial or
to sue out a writ of error oomplaiuing of the
overruling of such motion. The surviving re-
ceiver, in responae to the motion to dismiss the
bill of exceptions, aaked that it be amended so
aa to inaert hia pame In Ueu of the railroad
company aa plaintiff in error. Beld: (a) That
the motion to amend the bill of ezceptiona so
as to make the receiver the plaintiff in error
in lieu of the railroad company la allowed ; (b)
that the motion to dismiss the bill of excep-
tions is overruled. See Gate City Terminal
Co. V. Thrower. 136 Ga. 456 (1), 460, 71 S.
B. 008.
[Ed. Note.— For other cases, see Appeal and
EtTTor, Cent Dig. | 1836; Dec Dig. | 829.*]
2. Apkjx aitd Bbsob (S 107S*)~Aa8zoR-
HKNTS OF BBBOB— AbAITDONUENT.
.The assignment of error upon the over-
.mling of the demurrers to the petition, not be-
ing referred to in the brief of counsel for the
plaintiff in error. Is considered abandoned.
[Ed. Note.— For other caaea, see Appeal and
Krror, Cent Dig. U 4266-1261; Dec. Dig,
f 1078.*]
8. Instbdotioks.
The instructions to which exceptions were
taken who not erzoaeons fbr any raaaon. s»
signed.
4. Plxadino (I 377*)— lasuxs— Failubx to
Dkmt— Pboot ot TKnuB.
The orisinal petition alleged that the canaa
of action— the burning of the plalntiff'a prop-
erty by the alleged aegligent acta of the de-
fendants' employes— originated In Fayette coun-
ty, where the suit waa inatitoted. Thia al-
legation wSs not denied in the answer of the
•Vsr etlier easaa saa tame topic ud ■aodoD NXnifiBB to Dae. Dis- 4 Am. Dig. %|Tit9%c^^9f%#^^>^it@**
Chk)
721
defendanti, nor was It arerred In tiielr uiawer
that the ^fendaata could neither admit nor
deny it for lack of informatioQ in reference
thereto,' al though the anawer did den^ that the
Talae of the property of the plaintiff aUe«d
to have heen burned was as set forth in the
petitioD, and arerred tiiat defendants cwld nei-
ther admit nor deny the allegation as to the
ownership of soch property. Held, that the
plaintiff was not bound to prare, on the trial,
that the eaose of action originated In Ae coun-
ty where the suit wa* hrooght (Civ. Oode. 1910,
I 6636), under the general rule as provided in
ClT. Code 1810, S 2m.
[Kd. Note.— For other cases, see Pleading,
Cent Dig. iS 1228-1231; Dec. Dig. | STT?]
0. SumciKNCT or Etjdkncb.
The rrrdiet was authorized by the evi-
dence, and there was do error in refusing a
new trial
Error from SnperSor Conrt, Tayette Gonn-
ty; R. T. Daniel* Jodge.
Action b7 W. J. Olmstead against H. M.
Atkinson, receiver. Judgment for plalntU^
and defendant brings error. Afflmied.
Rosser ft Brandon and Colquitt & Con-
fers, all of Atlanta, and Blalock & Cnlpei>-
per, of Fayettevill^ for plalntlfC in error. J.
W. Wisc^ of FayettevUIe, and J. M. Oimluun,
of Atlanta* fftr defendant Iq error.
FISH, a J. Jndgmait afflnned.
Jnstlcea ooncnr.
AU the
{140 Oa. tOi
FORT-MIMS ft HATNBS CO. t. BRANAN-
AKEBS CO.
(Soprome Court of Georgia. June 1S» 1813.)
fBvnaUit ^ the CpwrtJ
1. PLBADma a 8B*)— Ahbwkb— FiLiMo Out
OF Tm.
Where a declaration has been filed in the
■nperior court on an attachment returnable
thereto, "the defendant may appear by himself
or attorney at law. and maJie his defense at
any time before final judgment is rendered
against him." Civ. Code 1810, | 6104.
(a) Accordingly the court did not err In al-
lowing the defendants in such a case to file a
proper plea at the trial term, although the case
had been marked in default at the return term.
See Fincher v. Stanley Mectrlc Ufg. Co., 127
Ga. 362, 56 S. B. 440.
[Ed. Note.— For other cases, see Pleading,
Cent Dig. H 172-176; Dec Dig. S 85.*}
2. Bankbuptct (i 418*>— ABAisuBrr or Ac-
tion.
The action In attachment was based upon
indebtedness due on promiasorv notes. It ap-
peared by agreement on the trial, while plain-
tiffs were submitting evidence, that the defend-
ants, after the filing of the declaration, bad
been duly adjudicated bankrupts, that In the
bankruptcy proceedings the schedules of assets
and liabilities were filed as required by law,
that the notes held and sued on by the plain-
tiffs were properly scheduled among the unse-
cured liabilities of the defendant baiutropts, and
that a discharge in bankruptcy had been duly
and regularly granted to each of the defend-
ants. Seld, as it appeared that the Indebted-
ness claimed by the plaintiffs was provable in
bankruptcy, the defendants were relieved from
liability therefor by the discharge -in bankrupt-
cy and a nonsuit was properly granted. Banw.
Act Jaly 1, 1S98. c Ml. 1 17. 80 Stat 6B0 (D.
& Comp. St 1901, p. 8428). See Beck ft
Or^^Hdw. Co. Gmn. 127 <Qa. 84 (8), S6 B.
[Bd. Note.— For other rases, see Bankmpter.
Cent Dig. H 7W-771 ; Dec. Dig. | 418.*]
Error from Superior Court, Fnlton Oomtr ;
W. D. Bills. Judge.
Action between the Fort-BUnw ft HaTnoi
Company and the Bxanan-Akere Companj.
From a Judgment tta tba latter, tbe Connn
brings error. Affirmed.
Horton Broe. ft Bnrrees, of Atlanta, for
plalntlfr In error. Jones ft Oiombers, of At>
lanta» for defendant In error.
FISH, a J. Judgment afflxmed.
Jnstloea oucnr.
AU tba
aw Ga. 1S1>
tiOXHRIDGB T. TARNADORa
(SnpresM Goart of Georgia. June 18, 1818.)
fBvUahm »y <fte OitrtJ
1. iNBTBUCraOffS.
The charge in this case was not wdl arr
rauf^ed, and was in some respects subject to
criticism; but, when considered as a whole.
In the light of the evidence. It does not (nmish
ground for a new trial.
2. N>w Taun (| 41«>— InsiBinmoiit-OBTZ-
OnS BBBOBS.
Although at one time In delivering Us
eharae the presiding Judge used the wotd
"plamtiff," instead of the word "defeadant,"
yet this will not neeesritate a new trial, where
the context plainly shows that it was a ai«rs
slip of the tongue, and such as was not oalett^
lated to mislead the Jury. Southern Rj. Co.
T. Merrftt, 120 Qa. 40^ 47 S. B. 908.
[Ed. Note.— For other cases, see New TtMi*
Cent Dig. IS 67-71; Dec Dig. | 41*T
3. , VEBDIdS-BviDIKOB— NBW TBUL.
The verdict was supported by tbe evidence,
and there was no error In OTerrolIng the mo-
tlon for a new trlsL
Error from Superior Court, Appling Gomip
ty ; C. B. Oonyers, Jndge.
Action between J. B. Lothridge and L. S.
Vamadore. Judgment for the latter, and
the lormer brings error. Affirmed.
W. W. Bennett, of Baxler, for plaintiff In
«Tor. Parker ft Hlgbsmlth, of Bazl^, for
■defendant in error.
LUMPKIN, J. Judgment affirmed,
the Jwtlcea otmcar.
All
•Fw ethsf csHS Be* ssine toplo and saetlpn xniHEaa la Dse. XHc A Abl Big. Ksr-KiBgiBssMA
78S.SL— 48
aM Oa.
JAM1S8 T. HAinL at aL
(Supreme Court of Georgia. June 17, 1918.)
, (ByUahua (A* Court.)
1. Pabtition (i 94*)— Retuens or Coioqs-
8I0NBB8— ReFEBENCE TO ±'LA'r— AdMISSIBIL-
HT OF Plat in Evidence.
. It appearing that a certain zetn^ of parti-
tloners was material to the Issues being tried,
that the same was introduced In ei^jdence bs
722
78 SOUTHSASIXRN .ROFOBTUB
lh« ^ftlntlflk and admitted wlOioiit objectioii.
and that the descriptioD of the land, indaded
In tbe return and aaaigned to varioav parttea,
one of whom was a predecessor in title of the
plaintiffs, concludes with the recital, "All ol
which wiU fully appear by reference to the an-
nexed plat of surrey, which is a part of the
return," the court did not err in admitting in
evidence the plat thus referred to, over tbe ob-
jection that the same "did not clearly show the
land sought to be conveyed to the several par-
ties named in the partition proceedings by dis-
tances, metes and bonnds"; it b^ng apparent,
from a consideration of the map in connectttm
with the recitals in the return, that the two —
that is, the return and the map annexed-nahow
clearly the varloos parcels of land assigned to
the several parties named in the return.
[Ed. Note.— For other cases, see Partition,
Gent Dig. II 287-299, SOS; Dec. Dig. | 94.*]
2. Tbiai. <i 228*)— InBiBUOxioira^NAia of
Paett.
Under the explanation made in tbe Judge's
note, bis reference to a certain witness and
party as "Willie Hamil" was not misleading,
Dor coDfusiuK to the jury: it being manifest
tbaL altbougn the judge should have referred
to J. A. Hamil as the party making the agree-
ment, the effect of which was being submitted
to tbe jury in tbe charge, the jury could not but
have understood that the party actually mak-
ing the agreement was referred to when he mis-
called his nam* and lefecred to him aa "Willie
Hamn."
(Ed. Note.— For other eaaes, aee Trial, Cent.
II 509-612, 026; Dea Die i 228l^
8. Tbijx {| 281*) •- iHflTBUCTioNS — Objko-
TZ0H8— GENEBAL OB SPECIFIC.
The other portions of the diane complain-
ed of were adapted to one phase of the case as
presented under the testimony of certain wit-
nesses, and conaequenUy were not open to tbe
objection that such charges were not warranted
by nor adjusted to tbe evidence in the case.
If other tbeorles of tbe case, wbidi the plain-
tiff In error contend* to be the true theories,
were made by the evidence, and were not oover-
ed by the charge, this ahonld haTe been excepted
to on that ground.
[Ed. Note.— For other cases, see TrlaL Oint
Dig. I 694; Dec Dig. | 281.^}
4. Deeds ({ 38*)— DESOBiFnoif— GEETAiiraT.
A deed purporting to convey "1S3^ acres
off of lot of land No. 42" was inoperative, be-
cause of vagueness and nncertalnty of descrlp-
tion of the portion of lot No. 42 sought to be
conveyed, to convey any portion of that lot <^
land, although it might be operative to convey
other lots of land, or portions of other lote,
where the description . of such other lots, or
portions thereof, were sufficiently definite.
[Ed. Note.— For other cases, see Deeds, Cent.
Dig. a 65-79; Dec. Dig. { 8&*]
5. Sufficiency of Bvidehce.
The evidence authorized the verdict
Error from Superior Court, Early County ;
W. C. Worrlll, Judge.
Action between V. W. James and W. E.
Hamil and others. From a Judgment for
the latter, tbe former brings error. Affirmed.
Bambo & Wrieht, of Blakely, for plaintiff
in error. Pope & Bomet, of Albany, for de-
fendants tn error.
BBOE, X Judgment affirmed. An ttae Jus-
tices concur.
a« Oo. HQ
BEASLEY T. FHUflNlX INS. 00.
SAME V. ATHENS UUT. INS. CO.
(Supreme Coart of Georgia. June 18, 1918.)
(8i/Uabu$ tht Oouri.)
iNBUBAnCE <S 378*)— FiRl PouoT — Ajiiu-
TiOHAi. INSUBANCB— Waives.
The policies of insurance upon which the
respective actions were brought insured a cer-
tain stock of goods la stated amounts, and
were issued subject to the following, among
other, express conditions and stipulations, via.:
"One thousand dollars other insurance permit-
ted." "This entire policy unless otherwue pro-
vided by agreement Indorsed hereon or added
hereto, shall be toIA U the Insured now has or
abaU hereafter make or procure any contract
of insurance, whether valid or not, on prop-
er^ covered in whole or in part by this policy."
"This poUev Is made and accepted subject to
the forMcolnc stipulations and conditlonB:
* * * No officer, agent, or other represmta-
tive of this company shall have the power to
waive any provision or condition of thia policy,
except as by the terms of this policy may be
the subject of agreement Indoraed hereon or
added hereto, and as to such provldons and
conditions no officer, agent, or representative
shall have such power or be deemed or held to
have waived sodi provisions or conditions on-
Icss such waiver, if any, shaD be written upon
or attached hereto, nor shall any privilege or
permission affecting the insurance under this
policy exist or be claimed by the insured unless
so written or attached." Held, that tbe com-
pany did not waive its right to plead as a de-
fense that the polides had been rendered void
because the insured, in violation of their terms
and conditions, without tiie consent of the com-
pany, had taken out additional insurance on
the stock of goods In a sum larger than that
authorized by the polfdea; nor was the com-
pany estopped from setting up snch defense, by
reason of tbe facts, sought to be proved, that
the agent, who issued the polides, knew for
some ten days prior to the nre which destnv^
ed the goods that the insured had, subsequenuy
to the issuance of the polides sned on, pro-
cured such excessive additional insurance, uid
failed durinc that time to notify the bisured
that the poudes bad been forfeited, and also
failed to return the unearned portion of the
premiams, but by oral statements led the in-
sored to believe that the polides were then in
force, and urged the Insured to allow him to
write other insurance on the goods. Morris v.
Orient Ins. Co.. 106 Ga. 472. 33 8. E. 430;
Llppman v. 2EtD& Ins. Co., 106 Ga. 391, S3 S.
E. 897. 75 Am. SL Rep. W ; Id., 120 Ga. 247,
47 S. E. 593; Johnson v. JBtoA Ins. Co., 1^
Ga. 404. 51 S. E. 339. 107 Am. St. Rep. 92;
Athens Mutual Ins. Co. v. Evans, 132 Ga. 703.
64 S. E. 993; CivU Code, | 2489; 2 Cooley'a
Briefs on Insurance, 1045.
[Ed. Note.— For other caaes, see Insurance,
Cent Dig. 81 968-997; Dec. Dfg. { 37a»]
Error from Superior Court, BlltcheU Coun-
ty ; Frank Park, Judge.
Actions by Mrs. M. J. Beasley against the
PhoMiix Insorance Company and against the
Atbens Mutual Inauiance Company. Judg-
ment for defendants* utA plaintiff biings er-
ror. Affirmed.
Pope & Bennet, of Albany, for plaintiff
In error. Slaton & Phillips, of Atianta, and
B. E. Ooz, of Camilla, tor defendants In er-
ror.
>Fer sUitr SUM SM BUM topic uid SMtloa NUUBBR ia Dso. Dls. * An. Dig. Kt/f^ fy. ^^9^i^J^i^fi)^J^
AXrSTIN ▼. BERUN SUPPLY 00.
723
TISHt a J. A nooMdt was pn^ptnHj
awuded In each caa^ Jndgmaot afflnned.
All the JuBtlcea concur.
(UB Oa> 1M>
ALBBTTTON et aL t. GIDDINOB «t il.
(BnpreiM Court of Georgia. Jan« 17, IdlA)
(Byllabu* th« Court.)
LnciTATXON at Aotions (I lOO*)— Oamcella-
. TIOK OF iNBTRUMBHie (f 34*>— ApPBAI, AND
Bbbob (} 1078*) — Dbmubebbs — Abamdon-
HKNT— Laches.
A. and B. brought their equitable peti-
tion against C. and others, beirs at law of D.,
alleging that in the year 1875 the grandfather
of petitioners executed a deed conveying to
them certain lands In Pulaski county, Ga. ;
that, their father bavlDg died, their mother in-
termarried with D., and that afterwards, in the
year 1879, D. was appointed as their guardian;
tiiat subsequently, hi the year 1881, D., as
guardian, obtained an order authorizing the
sale of the lands in Pulaski counter, and did
sell the same to one 3., and that either with
the proceeds of the sale, or in consideration
of the lands in Pulaski county, had executed to
him a deed by S. to certain described lands in
Lowndes coonty, Ga» which lands are involv-
ed in this case; that D. and the mother of peti-
tioners, as well as petitioners, resided for a
unmber of years upon the lands in Lowndes
county; that the occupancy of the lands by
D. and his wife was permisuve, petitioners be-
big "content for the family to have the use and
occupancy of said premises in order that their
mother might have a home on said land"; that
such occupancy continued until 1906, about
four years before the bringing of tbia suit;
that these lands were "recognized" by D. as
being the lends of petitioners, D. stating on va-
rious occasions that the land was tbdrs, and
stating, further, that the deed to the land was
executed to him as guardian for petitioners; and
diis deed, although executed in the year 1881,
was not recorded until the year 1907, and peti-
tioners were In entire Ignorance of the nature
of the deed, believing that it had been execut-
ed so as to vest D. as their guardian with the
title, nntn the year 1910v a abort time before
filing this suit. In the meantime D. had died,
and this suit was brought in the latter part of
1910 against the defendants, as heirs at law of
D. The petition concludes with the prayer,
among others, that the titie to the property be
declared in petitioners, and that the deed from
S. to D. iDdividuaUy be canceled, and for gen-
eral relief.
ffeM: (1) That the court properly overrul-
ed a general demurrer to this petition, setting
up the statnte of Hmltationi and laches on the
part of petitioners. Short t. Mathis, 107 Ga.
807. S. E. 6A4 ; Spence t. Queen, 189 Ga.
587. 77 S. 820.
(2) There were certain spedal demurrers.
These were not referred to in the bHef of
counsel for plaintiffs In error, and are consid-
ered to have been abandoned.
[Ed. Note.— For otiier eases, see Limitation
of Actions. Cent. Dig. U 828, 480-193; Dec.
Dig. 1 100;* Cancellation InstrnmentB, Cent
Dig. g| 49-64: Dec. Dig. | 84;* Appeal and
Erior. Cent iMc H 4266-4261; Dec. Dig. i
1078.*]
Error from Superior Court, Ben Hill Coun-
ty ; W. F. George Judge.
Suit by John N. Glddlngs and otbeta
against WlUlam H. Albritton and others.
A general demoner to tbe pettjQon vaa orer-
roled, and defendants bring oror. Affirmed.
J. B. Walker, Dan R. Bruce, and B. K.
WUcoz, all of Valdosta, tor plalntifCs in er-
ror. Haygood A Ootta, of IltBgerald, toe de>
foidantB In error.
BECK, J. Judgment affirmed. AU Che
Jnatlcea ooacur.
03 Oa, App. tm
AUSTIN T. BERLIN SUPPLY CO.
(No. 4,801.)
(Court of Appeals of Georgia. June 10, 1918.)
LzvsBT Stabuc Keepers (i 7*)— Goods D»-
FOBITXD FOB HiBE— DkSTBDOTION BT FiBS—
LlABILITT.
The keeper of a livery stable Is not liable
for tbe loss of goods deposited with him for
hire which have been destroyed by an acciden-
tal fire, where it appears that he has exercised
extraordinary diligence for their preservation.
[Ed. Note.— For other cases, see Livery Sta-
ble E^eepera, Cent Dig. I 6; Dec. Dig. | 7.*]
Error from Superior Court, Colquitt Gonn-
ty ; W. E. Thomaa, Judge.
Action by G. L. Austin against the BerUn
Supply Company. Verdict for defendant and
plaintiff brings error. Affirmed.
Sbipp & Kline, of Moultrie, for plaintiff In
error. T. H. Parker and James Humpbr^a,
both of Moultrie, for defendant In error.
POTTLE, J. Tbe only question In this
case which need be cousldered is whether a
keeper of a Uvery stable Is liable to the own-
er of goods deposited with him for hire which
were destroyed by an accidental fire. While
there may be some slight difference among
the authorities in reference to the rale exist-
ing at common law, It la settled by the great
weight of autbori^ that an innkeeper was
liable at common law as Insurer of goods of
his guest, and could limit bis liability only
by express agreement or notice. It resulted
from this that at common law an innkeeper
was held liable for the property of his guest
which was destroyed by an accidental fire.
See Cutler t. Bonney. SO Mich. 259, and nu-
merous authorities cited In tbe notes to that
case in 18 Am. Rep. 127; Hulett v. Swift.
33 N. T. 671, 88 Am. Dec 406, where it was
said that only the negligence or fault of tbe
guest or the act of God, or the public enemy,
would relieve tbe Innkeeper from liability.
Fay T. Pacific Improvement Co., 93 Cal. 253.
26 Pac. 1099, 28 Pac. 943, 16 L. B. A 188, 27
Am. 8t Rep. 198, and notes. In 22 CyC. 1081,
tbe prevailing view is stated to be that an
Innkeeper la liable, like a common carrier,
for loss of CQpds of his guest, unless the loss
was occasioned by tbe act of Ood or the' pub-
lic oiemy, or by the fault of the owner;
though it Is etated that according to anothn
view, as announced In a few decisions, the
•Tor other eases sm same topic and seotloa NtrHBOR Id Dee. Dig. * Am. Die. Key
724'
16 SOua^HBASTBfiM' RBPOBTBB
litnkM>er vnMId be excused tt th6 gooda
were lost without default on the part of hlm-
8^ or hUr serraBt tie aa the renlt of aoet-
deatal lira In tU» stnte the llabUlty of the
keeper of a Itrery stable la the mma aa that
of an Innkeow. drll God^ 1 9610. It be-
ing aettled that at common law an Innkeeper
an insnror of goods of his 'goeat, and
was liable nnleaa he conid show that the loaa
of the giooda was occasioned by the act of
God or the public raemy, or the fanlt of the
guest, It: remains only to Inquire whaler or
not this rale has beoi modified by the atat-
Qtea of this state.
"An Innkeeper Is a depository for hire, but,
from the pectillar nature of his baslneas, bis
llablU^ ia goTerned by more stringent rules."
Glrll Code, S 3506. "An Innkeeper is bound
to extraordinary diligence In preaervlog the
property of bis guests, Intrusted to bis care,
and Is liable for the same, If stolen, where
the guest has compiled with all reasonable
rules of tbe inn." Civil Code, § 3508. Sec-
tion 3510 contains a statutory declaration to
the effect that It Is reasonable for an Inn-
keeper to provide a safe place for tbe de-
posit of valuable articles and require the
gnests to place such valuable articles there-
in. Hhia section Is, of course, not Intended
to be exhaustive as to the reasonable rules
which may be adopted by an Innkeeper, **In
case of loss, tbe presumption Is want of prop-
er diligence In the landlord. Negligence or
default by tbe guest himself, of which the
loss Is a consequence, Is a sufficient defense.
The innkeeper cannot limit his liability by
a public notice; be may adopt reasonable
regulations for his own protection, and tbe
publication of such to bis gnests binds them
to comply therewith.'* Civil Code, { 3611.
The law contained In these sections appear-
ed in tbe first Code of tbis state and were
codified In tbe succeeding Codes In the same
language. There seems to have been no case
In this state which deals with the question
of liability of an innkeeper for goods whldi
have been d^troyed by accidental fire; but
there are several decisions wherein tbe ques-
tion of liability for loss of goods of guests
by theft or other causes, exc^t accidental
fire, have been considered. In Sasseen t.
Clark, 37 6a. 242, the goods of a guest were
lost while in the custody of an tnnke^ier.
In the opinion In that case Judge Walker
stated that both at common law and under
our statutes Innkeepers were bound to use
extraordinary dlllg^toe In preserving the
property of the guests, but ml^t relieve
thoiuelves from liability by showing that
the loss was ocotsloned by negllgaice or
fault of the guest hlmselt In Bockwell v.
Proctor, 39 6a. 106, an hmke^r was held
liable to a guest for the loss of an overcoat,
upon proof merely that the coat was Intrust-
ed to the Innkeeper by the guest and was lost
without fault on tbe part of the guest In
Adams t. Clem, 41 Ga. 66, S Am. B«v. 624,
tl^ rule' wu stated to'be'tha£ an Imikeepw
was bound to extraordinary dll^ence In ^e-
serving the property of his guest, Intrusted
to his care, where, tbe guest has complied
with all the reasonable rules of the inn. In
Mnrchlson t. Sergent, 89 Ga. 206^ 47 Am.
BepL 764, It was held that "at common law
an Innkeeper^ like a carrier, was an Insurer
of the goods of a guest Under the Code the
Innkeeper Is bound to use extraordinary dili-
gence; he may give notice of reasonable
regulations; and negligence of tbe guest
himself, of wblcb the loss Is a consequence.
Is allowed as a defense." In that case it ap-
peared that a sum of money and some jew-
elry were stolen from the plalntllT while
lodging at the defendant's hoteL The jury
found for tbe defendant and tbe Supreme
Court held. In sabstance. In reversing the
Judgment, that the facts demanded a verdict
for the plaintiff. In the opinion, after dting
various Code sections, Chief Justice Jadcson
remarked: "It may be well to say, however,
that at common law the rule was perhaps
more stringent yet substantially is very
much the same. It was that an Innkeeper,
like a common carrier, was an Insurer of
the goods of his guest and he could only lim-
it his liability by express contract or notice.**
In Coskery v. Nagle. 83 Oa. 696. 10 8. E. 491,
6 L. B. A. 488, 20 Am. St Bep. 333, the goods
of a guest were either lost ta stolen by a
porter of an innkeeper The lnnke^?er was
held liable. In the opinion the court said:
"The liability of an innkee^, at common
law and in this etate^ Is that of an innuw.
We know that this la a barah rui^ bat it
seems to have been the poll<7 of the law of
Btigland— which was adopted by this state —
to hold landlords and proprietm of inna <ff
bot^ or houses kept for tbe accommodation
of traiutent guests^ wayfarem; and traveleri,
to the utmost reepooathllity and Uablltty fat
tbe baggage and good* of ancb parsons In-
trusted to their care."
As before remarked, the Supreme Court of
this state has never liad nnder conddetatlon
the question of liability of an inxifceQtw for
loss of goods destroyed by aoddental fire.
In the decision last cited the court was deal-
ing with the question of liability for loss ot
goods which had ai^rratly been stolen
either by or from the lnnke^>er's servant
That decision is direct anthorl^ tor Oie
proposition that in such a case the UahtUty
of an innkeeper was that of an Insurer.
None of the decisions, except Murdiison v.
Sergent supra, seems to recognize any dis-
tinction between the common law and the
statutes of this state, although in Adams v.
Clem. 41 Ga. 66, 5 Am. Rep. 624, the rule was
stated to be that an Innkeeper was bound to
extraordinary diligence in presenrlng the
property of bis guest In tbe Mnrchlson
Case, however, a distinction seems to be rec>
ognized between the Code of this state and
the common law, because it iraa tiwA
Digitized by vjVJt?^
Z.AKB T. VBOsaas
725
thflt. while tt common law an Imafceeper
was an Insurer of the goods of bl« gaest, un-
der the atatntefl of this state be Is bonnd 'to
use extraordtnary diligence ; alUiongh Judge
Jackson remarks, In the opinion, ttiat tbe
common-law mle and the statutory nde are
mbstanUally "very mudi the same.**
Since the codlflers bad no authority to
diange the common law, tiie presnmption la
Oiat they did not do so, unless the language
employed requires a contrary conclusion.
Glrlng due effect to this presnmption and the
decisions of the Supreme Oburt aboTo refer-
red to, It seems to us that the proper con-
struction of section 3608 of the Olvll Code
Is as follows : Where the property at a guest
Is shown to hare been stolen while In the
custody of an Innkeejter, and the guest has
complied with all reasonable rules of the Inn,
the liability of the innkeeper Is that of an
Insurer. In all other cases of loss the inu-
keep^ may excuse himself by showing that
the lose was due to the negligence or fault
of the gnest himself, or after the exercise
by the Innkeeper of extraordinary diligence.
By section 3511 it Is provided that In case of
loss the presnmption is want of "proper
dlUgence" in the landlord. Necessarily, as
to goods not stolen, "proper diligence** means
extraordinary diligence, as provided In sec-
tion 3508. Unless the sections of the Code are
giren this construction, the words "extra-
OTdlnary diligence," as used In section SOOS,
would be meaningless, because there Is a vast
difference between liability as an Insurer and
liability for the failure to exercise extraor-
dinary care. This Is Illustrated by the
UablUty of a carrier of passengers, which Is
for a flillure to exercise extraordinary dili-
gence, and the liability of a common carrier,
which is that of an Insurer, who can excuse
himself only by showing that the loss occur-
red on account of the act of God, or the pub-
lic enemy of the state, or by a breach by the
shipper of some reasonable stipulation In
the contract of affreightment "Bztraordl'
nary diligence is tiiat extreme care and cau-
tion which very prudent and thoughtful per>
sons use in securing and preserving their
own ^perty. The absence of suA diligence
Is termed sUght neglect" Olvll Code, { 3472.
If the goods of the guest are destroyed by
Are while In the custody of an innke^r,
the mrasnmptlon i» that the Innkeeper has
tailed to exercise extraordinary dlUg^ice;
but if he afflnnatlvdy dtows that he has
exercised this degree of care, he win not be
llaMfc Generally this Is a question of fact
ior (he Swcj.
In the present case, without discussing
the evldoiee at lengOi. It is sufficient to sa;
that it ttally authorized, If It did not demand,
a finding that the keeper of the Uvery stable
had exercised extraordinary exn. The fire
occurred at 1 o'clodc at night It aeons to
have been the result of pure acddmt, with-
out fault OB the part of fbe keeper 6f Uia
livery stable, and the Jury were well autbor-
Ized to And Uiat, after the Are was im
progress,: the dastroctioa of the property
was not dtie to the fsilore of the ke^iker ot
the livery stable to exerdse tiiat degree of
care which tike law Imposed upon hln.
Judgment affirmed.
(la Qa. App. 7«)
LAlflB T. BRINSON. QUo. 4,740.) -
(Court of Appeab of Oeorate. Jane 10^ 191&)
(SvllaiuM hv th6 Oourt.)
1. CvDBTB (S 217*)— JuBisnicTiOH— GotrsT or
Appbau.
Where a suit filed In the superior eourt is,
under authority of a legislative enactment,
transferred to a city court and there tried, the
Court of Appeals has jurisdiction of a bOl of
exceptions sued out from the latter eourt by
the losing party.
[Bd. Note.— For ttthsr casM, see Courts,
Cent Dig. SI 63e-t»8r DeibDig. | 217.*]
2. ApPSAL Ann SBBOK (S 170*>-^BC8BNTATIOir
Below— CONSTITDTIONAUTT OF StATOTK.
This court wul not request the Supreme
Court to pass the oonatitntionali^ of an
act of the General Assembly, the vaUdiar of
which was not brought in guestimi In the trial
court
[Ed. Note.— For other eases, see Appeal end
Error, Cent Dig. U 108{i-10(S, lOSS, UOO;
Dec iHf. I 170.*]
8. APPKAI. AITD BiBOl (I m*)— BaOOBD— Pn-
sDupnon— TBAnsna or Oausis.
Where the record discIowB that a case has
been transferred to a <itj court under author-
ity of a special enactment, it wfll 1m presum-
ed, nothing to the contrary appearing, that the
requirements of the act aathorldng Uie trans-
fer haVe been compiled with.
[Ed. Note. — For other cases, see Appeal and
Error, Cent Dig. H 8682-8688; Dec Dig. |
9U.*3
4. ATTOBirat and CuBifT (| 126*)— Moinx
Rttu Agairst ATTonm — Tbatdsi or
- AKswrs— Filing.
A traverse to an attorney's answer to a
money rule may be ffled at any time b^ore the
nile Is discharged.
[Ed. Note.— For other eases, see Attorney
and Oient Cent Dig. H 264^-273; Dec Dig.
J 126.*]
5. ATTosnxr akd Ouxnr (M 04, 128. 182,
192*)— GAKNiamiERT (I 7*)— MONKT .Buui
AGAINST ATTOBNST — OABNISHHKnT ON
FOBEOLOSUBB PrOCBSDINO.
A lien foreclosure proceeding being in rem
and In no sense a suit in owsonam, the Usn
execution cannot be levied by service of ■sum-
mons of garnishment Where an attorney at
law procures for bis client a money judgment
and causes execution to be issued and ^aced
in the hands of the levying officer, the attM'
ney has a right Ut control the ezecoaon and ^ly
fund realized therefrom for the purpose of
satisfying his. Hen for fees. If the attorney
should retain from the fund thus realised more
than is due him for fees, he may be ruled by
the client The attorney can obtain no areater
right against his cfient hj foreclostag ms Hen
■nd eaoBlas sumuoas of garnishment to be
served OB the sheriff. The client cannot thus
be concluded on the qnestioo of the amount of
fees due, unless he. In some manner provided
nrer otbar caH* see bmo* loide ud Mcttoa NUHBBS In xreo. a Am. Dig. Key
726
78 SOUTHEASTERN REPOBTBIB
by law, nnraccessfnllr contests the fairness of
ue attorney's claim.
[Bd, Note.— For other cases, see Attorney
and Client, Cent Dig. » 180-183, 204-273.
816, 425-i27 ; Dec Dig. f| 94. 126,
182^ 102;* Gamiahment. Otnt. Dlx. H 6-10;
Dec Dif. I 7.«) ^
Bnor from Otty Gonrt of IfiUoi; Thmiu
L. BUI, Jndge.
M(Hie7 rule by B. L. Lane^ Jr^ against
J. P. Biliuoii. Judgment tor defendant; and
plaintiff brings error. Reversed.
W. Van Tyler, of MUlen. for plaintiff In
error. O. C. Dekle and J. P. Brinaon, both
of Millen, fbr defendant In error,
POTTLE, J. A role was Isened In tlie m-
perlor court of Jenkins county against an
attorney at law requiring blm to abow cause
why he Bhonld not pay otot to his dioit
certain moneys which It was allied' be had
collected tot her. The petitlim alleged that
the attorney had been employed to collect a
note for $288.42 npon an agreed fee of 10
per centum of the recoTery; tliat he col-
lected $179.16, deducted $150 for his fee.
and tailed to pay It over- to the petitioner
after a written demand as provided by the
statute. The petition was filed December 6,
1911, and rule nisi Issued the same day, re-
quiring the respondent to show cause in the
superior court on the second Monday In
March folloiilng. On March 11th the re-
spondent filed his answer, admitting the col-
lection of $179.15. and averring that this
sum was not sufficient to pay attorney's fees
and court costs. He further averred that
in the suit on the note the defendant filed
a cross-action claiming the right to recover
of plaintiff the sum of $1,500; that the re-
spondent successfully defended this cross-ac-
tion, and for this service the plaintiff agreed
to pay $160 attorney's fees; that, after the
Judgment on the note was obtained, the re-
spondent foreclosed his lien for attorney's
fees and "had the same levied by garnish-
ment on the fl. fa., then in the hands of
the sheriff, who returned the fl. fa. to the
court"; and that after hearing of the gar-
nishment case the court ordered the fi. fa.
turned over to the respondent to make the
money due on the foreclosure of the attor-
ney's lien; and it Is claimed that the Judg-
ment thus rendered in the garnishment case
estops the plaintiff from claiming the fond.
Some time after the filing of this answer the
case was transferred to the city court of
MlUtfi, under authority of tlie act of 1912
establishing that court, which provides that
"the Jndge of the superior court of said
(Jenkins) county may, by order, transfer to
said city court all civil cases standing for
trial on the docket of the superior court of
said county and which are embraced within
the Jurisdiction of said dty court, which
he may deem proper: Provided both par-
ties agree thereto." Acts 1912, pp. 245. 262.
At the January term, 1913, of the dty
court the plaintiff tn the rule traversed the
answer which had been filed In the superior
court and spedftcaHy doiied the allegation
in reference to her agreement to pay the re-
spondent $150 for defending the cross-acUcm,
and averred that she had employed otlier
counsel to perform this service. She also
alleged in the traverse that she had wwec
been served with any notice of the attor-
ney's lien, and that no such lien had been
le^ly e^bllsbed. The reepradent demur*
red to the traverae upon the ground that It
was not fUed in ttme^ and presented no lasae
which could be passed ivon by the court
The reiqtondait also filed a motion to dia-
charge tiie rule on the ground that no issue
was raised by the traverse ot transferred to
the court for trlaL The Judge of tbm
dty court discharged the rule upon the
ground that the Issues raised thereby were
concluded by Uie Judgment on the gamiah-
ment whldi issued in the lien foracloaiire
proceeding. The plaintiff excepted.
El] !• The case havbig been originally
docketed in the superior oourt, wa were in
some doubt whether we could take Jnrisdio-
tlon of the writ of error. It was tberefbre
ordered that the record be transmitted to
the Supreme Court for such disposition as
that court might deem proper. That court
has sent the case bade, adviring thaC in its
opinion, the Court of Appeals should assume
jurisdiction and dedde the case on its mer-
its. It becomes our duty, therefor^ to deal
vdth the questions made In the record.
[2] 2. No question is raised in tlw record
as to the constttntlwaUty of the act of 1912,
attthorl;dng the transfer of dvU cases from
the supraior court to tlie dty court. No
attack on the act was made In the trial
court, and no objection to it is urged her&
The jurisdiction of the Supreme Court and
the Court of Appeals is limited to the cor-
rection of errors of law In the trial courts.
They have authority to determine only those
questions which the record discloses were
raised and passed upon in the court below.
For the purposes of this case, therefore^ it
must be assumed that the act of 1912 is a
constitutional and valid law.
[S] 8. It does not affirmatively appear
from the record that the parties consented to
the transfer of the case, as is required by
the. local act; but, since the Judge of the
superior court passed an order of transfer, it
must be assumed that the conditions impos-
ed by the act bad been met. This results
from the general rule that, as to Judgments
of courts of general Jurisdiction, every pre-
sumption of regularity is to be indulged, nn-
less the contrary affirmatively appears.
[4] 4. Attorneys at law are officers of court,
and where they retain the money of tbdr
clients, after demand, they are subject to
rule, as sheriffs are. CivU Code, | 4954. A
*rer athn eMW Me suu tosia ud Mctliut NUHBBB la Dm. Wg. A Am. Oil- Ker-Ng. B*
Digitized by
MdELHENET T. JASFER TBADUTO Oa
727
verified answer of an attorn^ to a role mnst
be taken aa true aulesa traverBed. CItII
Code, i S347: Woodward v. McDonald, 116
Ga. 748, 42 S. E. 1030. If the answer seta
fortli a l^al right to retain the money, and
there la no traverse raising an issue for de-
termination, the mle should be dlsdiarged.
Unless the statute r^nlies the contrary, the
travrase maj be filed at waj time before
trial. By ^reSs enactment, the entry of
an officer of conrt Is taken as true, onleas
traversed at the first term after notice. CIt-
11 Code, 1 Ki66. Bat In garnishment eaaea
the statute provides generally for tzaverslng
the gamldiee'a answer, wlChoid providing
when Qie traverse must be filed. CMl Code,
I S28&. It has been held that the answer
of a garnishee may be traversed at any time
bef&re the garnishee la discharged. Smith
T. Wdlbom, 73 Ga. 18L Section S347 pro*
vldea that die movaid In a money role "may
traverse the truth of such answer, la which
case an Issue shall be. made np aivfl tried by
a Jury at the aame term, unless good cause
ot continuance be shown.** There Is nothing
In this section which requires the traverse to
be filed at the term at which the answer is
filed. The regnirement Is merely that the
case dull be tried at the term at whkih the
traverse is filed, unless conllnned for good
cause. The principle announced In Smith v.
Wellborn, supra, is applicable, and the trav-
arse may be filed at any time before the of-
ficer ruled is dlsdiarged. Whem the case
was transferred to the city court Its status
In this reBpect was not changed, and any
proceeding could be taken In this court which
might have beea bad in the superior conrt if
there bad been no transfer. Bules against
offlcM are, to some extent, governed by the
discretion of the court, and do not come with-
in the pnrrlew of statutes regulating de-
faults. Kelly V. Murphy, 136 Ga. 615, 09 8.
B. 820.
[i] & The answOT averred that the plain-
tiff had agreed to pay the attorney $160 for
his services In defending the cross-action
which was brought by the defwdant If
this had stood nntraversed, the attorney was
entitled to be discharged. Bnt this aver-
ment waa expressly denied in the traverse,
and thus an Issue of fact was raised. We
are bound to assume, nothing to the contrary
appearing, that the gamiahment and lien
foreclosure proceedings were regular la all
re^iecta. The trial Judge discharged the rule
because in his opinion the right of the attor-
ney to retain the money waa settled by the
judgment In the garnishment case. Had this
Judgment been valid, or even only voidable,
ttie trial Judge's view would have been cor-
rect But the judgment in the gamiahment
ease was abs<^ntely void. The Uen foreclos-
ure proceeding was not a suit upon which
garnishment conld issue. Weston r. Beverly,
10 Oa. Ai^ 2(n, 73 S. BL 404. The proceeding
was in rem and in no sense an action in per-
sonam, 80 as to aoflioiiie a levy of the eneo-
tlon by aervloe of a summons at gaznlsh-
ment.
The execution on the lien foreclosure was
Issued on the ex parte affidavit of the at-
torney, and the Judgment in that proceeding
did not conclude the plaintiff on the question
of the amount due. If the execution had
beat properly levied and the plaintiff had
unsoccessfully contested the fairness of the
claim for fees, as provided by section 8366
(6) of the Civil Code, or If be, after notice*
had allowed bis property to sdl without fil-
ing the counter affidavit authorised by tiie
statute, he would have been estiqiped. Bnt
here there was no lawful levy, and the plain-
tiff was not bound to contest the question
of amount dtta He has never had his day
in court on this questlm. Under aectiai
3366 the attorney had a right to control the
Judgment and fl. fa. in favw of his client to
satisfy his lien for fees. It would have been
the duty of the sheriff to pay over the mon-
ey to the attorn^, who would then have been
authorized to retain the amount due him tot
fees. By foreclosing his lien and having
snnmnns of garnishment served on the sher-
iff, the attorney acquired no greater right
against his client than he, would have had
if the money had been made by the sheriff
and paid over to him. The conrt erred in
discharging the rule, and the caae should be
submitted to a Jury on the issoea raised by
the answer and tlie txavom
judgnmtt reroEMd.
OS Qa. Aw 7M)
MeBSJllONBX et al. v. JASPER TRADING
CO. (No. 4,779.)
(Conrt of Appeals of Georgia. June 10^ IffiLS.)
CoBPoaanoRs (I 569*)— Daxaobs worn ftov-
FATHSNT or WAGES— RSCEIVKBB— StUFEOT-
UBRT CONTBACT— DJBCHABQB.
Damages are not reoovcrshle against a
corporation for its fsilure to psifonn an ex-
ecatoEy contract for the payment of wages to
employes, vhere performance was prevented
solely hy the act of a court iti appolotlDg a re-
ceiver for the corporation and hi Miioimnc all
creditors and third persons from mterfefing
with its bnsiaess or pnMperty. In sneh ease
the contract la discbaiged because of the legal
imposBibillty of performance 1^ the oorporar
tioD, and as to the employes the ease Is dsm-
num absQDe Injuria.
[Ed. Note.— For other cases, see Corpora-
tioDB, Cent Dig. 81 2241-2262, 2269; Dec. Dig.
fi 559.»]
Drror from Superior Court, Jasper County;
J. B. Park, Jadg&
Action by F. J. McElheney and others
against the Jasper Trading Company. Judg-
ment for defendant, and plaintiffs Mng «ror.
Affirmed.
•For othar esNS Mi nms topto ud MCtlaa NUIIBBB la Dm. Ug. « Am. Dl|.
78 SOUT^EUlSTBBM BBPOBTBB
W. B. FkxenM^ of Uontlc^o, for plaln-
tUh in. iwror. A. S. Tbnrmaii, at MonOcello,
£or d^endant In ieiror.
/BILL, a J. Tbe SUDVt Trading CSom-
pany. a corporation under the laws of tbis
Btate, was placed In ttte hands of a recdTer
under a bill filed the stockbolders, with
the osoal restraioiiis order enjoining all
creditors from suing tbe corporation, or from
Id any manner InterfleTlDg with the business
of Qie recelTW, and eq)eclBll7 restraining
and enjoining the plaintiffs In error from
prosecuting salts which they had brought
against tbe corporation In a justlce'a oonrt
for salaries claimed to be due them for aerr-
Ices to have been zendoed the <»rporatlon
under a contract made with the corporation.
Notwithstanding this restraining order, the
plalntUta In error prosecuted tbelr suits In
0ie justice's court, and, by consent, their
suits were consolidated and an appeal taken
to the superior court In the superior court
a stipulation as to the facts was made, and
hereupon the suits were dismissed, and a
writ of error brings tbe case here for review.
No question is made as to the right of tbe
plaintlfls in the justice's court to proseeate
th^ 'suits in liolatlon of ttie restraining or^
der of tbe supnior court in tbe appointment
of tSie recetver, but tbe sole question Is as to
the correctness of tlie judgment of the superi-
or court dismissing tbe suits on appeal* on
tbe agreed statement of facts. This state-
ment waa to thb effect that the idalntUlte
were derks empl<ved by the Jasper Trading
Company unda a contract for services for
stipulated wages, uid the .salts In question
were for wages which would have been due
the plalntlffB if the services had been per-
formed after the Jaq;>er Trading Gompany
had been placed In the hands of the receiver.
The contracts were for services for Uie en-
tire year, and the wages were payable
monthly.
There was no breai^ of the contracts for
wages by the volontary act of the corpora-
tion. The contracts were discharged by op-
««tion of law, in that the corporation was
placed In the hands of a recover. Its busi-
ness was stopped by Injunction, and the re-
ceiver was ordered to collect Its assets to pay
existing credltora No provision was made
for continuance of tbe bnsiness of the cor-
poration by the receiver. Under these facts
we do not think the plaintiffs were entitled
to recover on their executory contracts for
services which they would have performed
but for the interventton of the court and
the appointment of a receiver. The corpora-
tion, by operation of law, was discharged
from tbe performance of its executory con-
tracts. In Qrisss V. Swift, 82 Ga. 392, 9 S.
a 1082, S L. R. A. 4QB, 14 Am. 8t Rep. 176.
It is taeld that "a contract by a partnership
with an employe for personal services In the
current business of the firm for one year, at
a 0veii rate per mootb, la dissolved by a
dissolution of Ibe firm wlfliln the ymr bf
the act of God. Tbere can be no recovery
on such contract for services never In fact
rendered, but which the employ^ would have
rendered had tbe surviving putner not die-
dtiarged him after the dissolution.** lAla
dedalon was based by the court up«a sectloa
2871 of the Oode of 1882. Oode of 1910, |
4319. This section declares that if per-
formance Is impossible, and becomes so by
the act of Qod, suCh Imposalbillty la Itself
equivalent to performance. In the oidni<m
in (hat case Chief Justlos Bleckley said:
"There being no one, after the partnership
went out of tfdstence, to receive Uie personal
services wtaldi 13ie plalntUf had contracted to
render as inspector of fkrms and collector
for the partnership, the furtlw ezecutltHi of
the contract was as mncb impossible as If
the plaintiff himself had died before or after
a dissolution of the firm haul taken idace
The survivor transacted no new business on
the partnership account, but confined opera-
tions to closing up the firm affairs. • • •
From the rery natnre of a contract fbr the
rendition of personal senices to a partner-
ship in Its current business, where notbli^
is expressed to tbe contrary, botii parties
should be regarded as having by Implication
Intended a condition dependent, on the one
hand, upon tiie life of the empl(^ and, on
tbe other, upon tbe life of the partnorsblp,
provided tbe deadi In dther case was not
voluntary." In support of tbe deslslon
Wood m Master and Servant, 1 163, is dted,
as follovra: **Where a servant Is employed
a firm, a dlssolutiOD of the firm dissolves
the contract, so that tbe serrant is absolved
therefrom, but if tbe dissolution results f^m
(he act of tbe parties they are liable to the
servant for bis loss ther^rom, but If the
dissolution results from the deadi of a mem-
ber of the firm, the dissolution resulting by
operation of law, and not from the act of tbe
parties, no action for damages will He.
* • • Tbe teat la whethw the firm is dis-
solved. So long as it exlsti, the contract is
in force; but when it Is dissolved tbe con-
tract is dissolved with it, and the question as
to whether damages can be recovered there-
for will depend upon the questi<» whether
the dissolution resulted from the act of Ood,
tbe operation of law, w the act of the paxw
ties."
We think the rule announced is much more
clearly applicable to a corporation than to
a partnership; for, although the partnership
might be dissolved, tbe surviving partner
might with more reason be held to carry out
the executory contracts of the partnership
than would a corporation, where its business
and all of its assets have been placed in tbe
hands of a receiver, with direction to wind
up the business of the corpwaUon, and an
injunction granted against the interference
of third persons with the llguidaUon of tbe
corporation by tbe receiver. The corporatioa
THXIMERE'T. BASFiBSijD'
T29
^ore eonid not b« expeettd to cktry oat er-
wmtory contracts dependent niion the codst-
ence of tbe bnslneas. WUle the reedw of
tbe corporation' might bsre an election to
carry out sticb contracts as, In Mb jndg-
ment, wonld be beneficial to the snccessfal
winding op of the corporation bnalness, and
under the order of the conrt. jet he could
not be required to perform the executory
contracts of tbe corporation. Some of them
might , continne long after the recelversblp
bad been completed. A ^egal Imposriblllty to
carry out the executory contract of a corpo-
ration arises by the Act of the court In tbe
appointment of a receiver, and In such cases
the contract Is discharged by operation of
law. Clark on Contracts, I 476. The identi-
cal point was decided by the Court of Ap-
peals of New Xork in the case of People v.
Globe Mntnal I^fe Ins. Co., 91 N. T. 174. In
that case a corporation had entered into a
oontcact with a general agent for bis serv-
loea for a weeifled time and at a stipulated
■alary. Befwe tbe aspiration of that time,
and while the services were being rendered,
tbe corporatitm was placed In the hands of
a recelvM*, who did not continue tbe agent
In bit enqAoyment. He sued for damages
It was held that be could not reoover. Tbe
f^npjjmy could not employ him, because this
wonld be a Tiobitton of tbe order of Injunc-
tton. Tb» agmt covld not meddle in the a£>
telra of tbe company, for tbat egnally would
Tlolato the Injonctkm. It was dawnnm ab»>
qne tojoria. In tbe case of lialoomaoa t.
Wappoo Mills (O. C.) 88 Fed. 680, Circolt
Judge Slnumton held that "damages are not
recoverable against a corporation for Us
fftilnre to perform a contract for the sale
and delivery of merchandise, where perform^
ance was prevented solely by tbe action of a
court in appointing a receiver for tbe corpo-
ration, and enjoining all others from interfer-
ing with Its business or property. In sneb
case tbe br^cb of contract is damnum aba-
one injuria." This learned Jurist In that
case held that when a contract cannot be
Bpeetfically performed, and tbe only remedy
b by iray of damages, tbe coort win not in-
flict soch damages on tbe corporation. If tbe
breach of contract for which .damages are
■on0it baa hmi occasioned by the law; the
performance of the contract ha ring been
made Impoaelble.
We conclude tbat tbe Jo<tament in dlsmlaa-
Ing tbeae anlta la supported by antbotity, and
18 In thoroogta oonsoDa&ce with sound reason-
Ing. The rU^t to recover finr breadi of tbe
contract would arise only fnun a wrongful
discharge. The corporation did not dls-
cSiarge tbe pbUntUEs; and therefore .fliere
was no breaeb of flie contract The ecxi tract
was dlstilharged by opaatlon of law, since
the power to perform executory contracts
was taken away from tbe corporation In the
a^^fOabamt of fbtt reoeira* and'tha ff^nttng
of tbe- biJnneUon. '
Judgment affirmed.
(u 6a. Asp. no
' TBBBfBBB v. BABFIEU).
BABTIELD V. TREMERB.
(Nob. 4,757, 4,75a)
(Court of Appeals of Qeor^ June 10, 1S18.)
(BvtUhm «ir Ae OvmrU)
1. CnATTn. MonroAoxs (| 6*)— Sau DiMnii-
eUISHBO.
A vendee of personal property executed an
InstrumeDt promialDg to pay the purchase
price, and recltine that, in order to secure the
same^ "I hereby oargain, sell, and corvey onto
the payees <rf this note, thdr belrs and as-
signs the foUowiag property whidk Is express-
ly to be my Individual property, free from any
lien whatever." Th«i followa a desctiptien of
tbe property, and a further reeltal tbat, in case
of a fapnre to pay the indebtedness at mabirl-
ty, the payees would bave the right to take
possession of the property and sdl It at public
outcry and apply the proceeds to the taidebted-
oesB. field, that the instmment was a bill of
sale conveying title, and not a mortgage.
[Ed. Note.— For other cases, see Chattel
Mortgages, Cent. Dig. H 28-41; Dec. Dig. S 6.*]
2. Salbs (I 473*) — ConomoNAi.. Sauc —
"Thibd nssoN."
' Where personal property is sold wltii tiie
condition affixed to the sale that title Is to re-
Biain Id tbe vendor until the purchase money
is paid, the reservation of title must be In
writing and recorded within 80 days from the
date of its execution, In order to be valid
against a third person, who without actual no-
tice of the reservation of title parts with mon-
ey or other thing of value upon the faith of tbe
vendee's apparent twconfitional ownership of
the property, and In consideration tiierefor re-
ceives from the vendee a bill of sale to the
property to secure tbe debt, and records it In
the manner prescribed by law. One who, in
conrideratien of tbe execution of sndi a Mil
of sale, surrenders to the vendee a valid morb-
ga^e on other proper^, and cancels the debt
evidenced thereby, Is a third penon within the
meaning of section 8818 of the ClvU Code lOia
[E>i. Note. — For other cases, see Sales, OenL
Dig. H 1877-1390; Dec. Dig. | 47S.*
For other definitions, see Words and Phrases,
voL 8, pp, 6060. 6061.^
B^r from City Court of ^Odosta; J.
a. Cranford, Judge.
Action by William Tremere against R. EL
Barfield. Judgment for defendant, and
plaintiff brings errm, and defendant fllea
ijrosmbUl. Reversed on main bill, and af-
firmed on eroBs-MlL
J. a. ft J. F. McOall, of Qnltnan, and
WMtuker k Dukes,. of YaUosta, for plain*
tlfl iB error. J. B. Walter and Dan B»
Bnce^ both <tf Yaldostt, for daflmdaat la
emn;
POTTM^ J. Ooopur purchased from Tre-
mere two mules and atecuted to the vendor
a note and mortgage due in October, lftl2,
to secure the purchase price. Some time
after tbe execution of this mortgage Cooper
•For otlier eases sse same topbt and ssotton NOHBBB la Deo. Dig. * Am. Ola> Ksf'
78 SOUTHEASTERN REFORTSB
sold the nrales wltbont the consent of Tre-
mere. On December 6, 1911, Cooper bought
two mules from Barfleld and executed a note
for tbe porcbase price, containing a reaerra*
tlon of title In Barfleld ontll payment of the
purchase money. This note was properly ex-
ecuted and recorded In Lowndes ooun^ on
December 13, 1911, and was re-recorded In
Brooke county on March 11, 1912. On De-
cember 6, 1911, Cooper executed to Tremere
an Instrument In which he promised to pay
the purchase price of the two mules which
he had bought from Tremere: and to se-
cure the payment of the note It was re-
cited in the instrument that the maker
agreed to "bargain, sell, and convey onto
the payees of this note, their heirs and as-
signs the following property, which is ex-
pressly to be my Individual property, free
from any lien whatever." Then followed a
description of the two mules which Cooper
had bought from Barfleld and also other
profwrty. It was further recited In the in-
strument that, in case of the failure to pay
the debt at maturity, the payee was au-
thorized to take possession of the property
and sell it at public outcry and apply the
proceeds of the sale, first, to the payment
of the Indebtedness and the cost of sale,
the balance to be held subject to the order of
the debtor. This Instrument was properly
attested and recorded on December 8, 1911,
in Berrien county, and was re-recorded In
Brooks county on March 9, 1912. In con-
sideration of the execution and delivery of
this instrument, Tremere surrendered to
Cooper for cancellation the note and mort-
gage which Co<^>er bad executed to secnre the
payment of the purchase price of the two
mules which he had pnrdiased from Tre-
mere. At the time of the execution and de-
livery of the second Instrument to Tre-
mere, he had no actual notice of Barfleld's
claim to the mules therein described. It
seems from the evidence that, after the exe-
cution of tUa paper, Gooper moved to Brooks
county, and while then the nmles which had
been purchased from Barfleld were levied on
by the durifl of Brooks coimtr under a fl.
fa. In favor of one of CSoopei's creditors,
and that Barfleld filed a dalm to the mdes,
gave bond, and took possesdon of them. Aft-
er this was done Tremere broi^t trover
against Barfleld, and upon the trial of the
trover case the foregoing facts appeared.
The Judge directed a verdict In fovor of
Barfleld, and Tremere exc^ited. Barfleld
filed a cross-bill of exoepttons, complaining
of the refusal of the court to exclude from
the evidence the paper executed by Cooper
to Tremere on December 6, 1911, over the
objection that this paper was only a mort-
guge, and did not convey title to the property
therein described. Two questions are pre-
sented by the record: (1) Whether the in-
strument relied upon by Tremere to defeat
Barfleld's dalm of title was a mortgage or
bill of sale; and (2) whether, If It was a
bill of sale, Tremere is entitled to prloilt;
over Barfleld because the bill of sale was
properly recorded In Berrien county and Bar-
fleld's reservation of title was not recorded
in that county.
[1] 1. The decision In Brice v. lane, 90
Ga. 294, 15 S. B. 823, settles the question of
the character of the Instrument relied on by
Tremere adversely to Barfleld's contention.
In that case the Instrument in almost the
Identical language of the one now Involved
was held to be a deed passing title to the
grantee. That decision is con<dusIve of the
question. See, also, Walkm v. Bank of Quit-
man, 100 Ga. 88, 28 S. B. 84.
[2] 2. The evidence Is undisputed that
Cooper resided In Berri^ county at the
time of the execution of the bill of sale to
Tremere; and therefore the sole question
under the evidence is whether or not Tre-
mere's diligence in promptly recording his
bill of sale In Berrien county entitles him to
priority over Barfleld, who has never record-
ed his reservation of title In the county in
which the vendee resided at the time of the
execution of the instrument Section 3318
of the Civil Code is as follows: "Whenever
personal property Is sold and delivered with
the condition affixed to the sale that the title
thereto Is to remain in the vendor of snch
personal property until the pordiase pilce
thereof shall have been paid, every snclk
conditional sale, in ordw for the reservation
of title to be valid as against third parties,
shall be evidenced In writing, and not otho-
wlse. And the written contract of every
such conditional sale shall be executed and
attested In the same manner as mortgages
on personal properly; as between the par-
ties thems^vee, the contract as made by
them shall be valid and may be enforced,
whether evidenced In writing or not** Section
S319 prorldes: 'XJondltlonal MUs of sale
must be recorded within thirty days from
thdr date, and in other respects shall be
governed by the laws relating to the regis-
tration of mortgages." Hence a seller of
personal property who reserves title in writ-
ing until the purchase money has been paid,
but who falls to properly record the reserva-
tion of title, loses his right to enforce his
reservation of title against third perBons^who
in good faith part vrlth money or other thing
of value upon the faith of the apparent un-
conditional ownership of the property by
the TOidee, and without actual or construc-
tive notice of the vendor's reservation of
tltlew As to all such persons the vendee
Is to be treated as having the absolute un-
conditional title to the property; bat as be-
tween the parties themselves and persons
who have notice the reservatlfm of title Is
good whether recorded or not Hill v. Lad-
den it Bates, IIS Ga. 320, 38 S. B. 7S2. In
order, however, tor third persons to acquire
priority over a vendor who^hu faited|to re-
Digitized by LjOOglC
8CBU1IEB T. REQ-raTES
781
cord Ida resenratloii of title, It most appear
tbat ouch person has parted with sometbtng
of Talne on tbe faith of the vendee's ap-
parent ownerahlp of the property. A. Judg-
ment creditor who obtained bis Judgment
before the conditional sale was made Is
not a third person within tbe meaning of
the statute, and as to him the reservation
of title need not be recorded. American
Law Book Co. Brunswick Cross-Tie &
Creosoting Co., 12 Ga. App. 259, 77 S. E. 104,
and citations. Where a holder of a mort-
gage or bill of sale. Junior in date to the ex-
ecution of a note reserving title in the ven-
dor claims priority over the vendor. It must
appear that the holder of the Junior paper
has bad It properly recorded and that he
had no notice^ actual or constructive, of thA
.reservation of tltla The recording acts were
passed for the benefit of tbe diligent. It
neither paper Is xecorded, and there is no
actual notice, the liolders are left where
they would have stood regardless of the
r^^try statute, ctmsequenUy the paper old-
est in date would prevalL This rule applies
to the case of a vendor reserving title, be>
cause the statute puts him upon tbe same
ground as a mort^igee of personalty. Cot*
trell V. Merchants' & Mechanics' Bank, 89
Ga. 608, IS S. Bl 944. If Baifleld had record-
ed his reservation of title in Berrien county
wltUn 30 days, he would have obtained
priority over all liens created after Qib date
of tbe execution of the oontmct of condition-
al sale, whether executed before or after Its
record. Or if Tremere liad failed to proper-
ly record bis mortgage in Berrien county,
or if be had had actual notice of Barfleld's
claim, the latter would have been entitled to
prevail. But the prompt record of his
bill of sale Tremere perfected his claim to
the mules as against Barfl^d; for In tbe
absence of notice of some sort that Barfleld
had r^rved title in the mules, Tremere had
a right to assume that Cooper was the abso-
lute and uncondlttoual owner of tbe property.
It Is contended, however, tliat Tremere oc-
cupied no better position than that of a
Judgment creditor whose Judgment was ol>-
talned prior to the conditional sale. Tbe
statute provides that In order to be good
against third persons the reservation of
title must be recorded. This has been con-
strued to apply only to third persons who
have parted with somethit^ on the faith of
the apparent ownership of the vendee upon
the theory tbat It would be Ineaultable to
permit a bolder of a pre-existing debt to ob-
tain satisfaction out of property which the
debtor did not really own. As to such a
creditor It has been said he "la In no wise
affected by the non-record of this conditional
sale; no right has accrued to him between
the making of the conditional sale and the
record of tbe same; he Is not hurt by its
non-record ; and as to him it is the same as
if the sale had been duly recorded.** Condw
V. Holleman, 71 Ga. 93 ; Taylor r. National
Cash Register Co., 8 Oa. App. 283, 68 S. O.
1009. Applying this principle, it was in
Fountain v. Fountain, 7 Oa. App. 361, 66 S.
E. 1020, held that, where a debtor executed
a mortgage on a growing crop, the mortgage,
although not recorded, would prevail over a
creditor whose debt was In existence at the
time tbe mortgage was executed and who
had not parted with anything on the faith of
the cropper's apparent unincumbered owner-
ship of the property. It appears from tbe
evidence that the original note executed by
Cooper to Tremere was not due, and that on
the faith of Cooper's apparent unconditional
ownership of tbe mules which he had bought
from BarOeld Tremere surrendered a mort-
gage which was a valid lien on the property
which Cooper had sold and out of which
Tremere could have made his debt He Is
thus equitably in the same position as if the
bin of sale bad been executed to secure a
debt which came Into existence contempo-
raneously with the making of the paper.
Tremere, having surrendered his security on
the faith of Cooper's apparent ownership, Is
as much entitled to take advantage of Bar-
fldd's failure to record his reservation of
title as if he had made a loan of money to
Cooper and taken a bill of sale to secure its
payment In our opinion Tremere Is well
within the reason and equity of the mie,
and the court erred in directing a verdict In
Barfleld's favor.
Ju^iment on the main bill of exc^tiona
reversed; on the cros»-blll afflrmed.
(U Oa.Aro. 70)
SCHDMER V. BEOISTER et aL (No. 4,949l)
(Court of Appeals of Georgia. June 10, 1918.)
(ByJIahvt *k« Court.)
1. Mabtbb and Sbbvamt (i 301») — PA»Mtr
AHD Child (j 13») — Tobts — Liabilitt or
PABENT— A0TOHOBIU ACCIDENT— IdABIUTT
or OWNBH.
The allemtionfl In the first count ox the
petition were insnffident to show a cause of ac-
tion against the owner of the automobile (or
the negligent operation of the machine by her
codefendant, the driver. As to this count tb»
general demurrer was properly sustained as
against tbe owner.
[Ed. Note.— For other cases, see Master and
Servant, Cent Dig. « 1210-1216: Dec Dig.
t 301;* Parent and Oblld. Cent IMg. U 146-
161; Dec. Dig. 1 13."]
2, Action (f BO*)— MAsmta and Sbbtabt <|
302*)— ^FEAL AND EBBOB Q 1172*)--AUTO-
UOBILB AcCIDSNT^LlABIUTT OF OWNEB—
liilSJOINDES— DiBHISaAL — DISPOSITION OV
Cause.
Where a petition containing two counts is
brought against two defendants, and a general
demurrer to the first count is sustained as to one
of the defendants and overruled as to the oth-
er defendant and the second count is held to
be good as to l>oth defendants, there results a
misjoinder of causes of action and of parties,
and, on refusal of tbe plaintiff to amend to
meet tiiis objection, it is proper to dismiss the
•For otlur casM SM Sanut toplfi and seetloB tWMBKR la Dse. Dig. * Am. Dig. Kar^Nfe^tttsSl^ 1
78 SOUTUJ^A^TSIRN PIEFOBIBB
petition, la -view <tf tbe tact, bowevet, that
the second count of the petition in this ca^e
•eta forth a cause of action against both de-
fendants as joint tort-feasors, the jadgment
dismissinf the Ktition is rerersed in part, and
direction given that the second connt be rein-
stated and the plaintiff be allowed to submit
-eTidence applicable to that count.
fBd. Note.— For other eases, see Action,
Gent Dig. || 5U-547; Dec. Dig. | GO;* Mas-
ter and Servant, Cent. Dig. U m7-1221, 1225,
mo ; Dec. Dig. 8 802;* Appeal and Error,
Gent. Dig. {| 4^5-4661; Dec Dig. f 1172.*]
Brror from aty Oonn of Savannab; Davla
Freeman, Jadge.
Action hy William Sclinmer. against Ura.
H. B. BeglBter and another. Judgment for
defendants, and plaintiff brings error. Af-
firmed, with directions.
Moms H. Bernstein and Chas. D. Ruea^.
both of Savannah, for plaintiff In error.
OrraTls Se Travis, of SaTannah, for defend-
ants in error.
HILL, a J. A suit to recover damages
for personal Injuzles was brought against
Mrs. M. B. Beglater and H. M. Sledge, Jr.
The petition contained two counts. In the
'first connt It was alleged that Mrs. Bolster
Is a widow, having the exduslTe control and
cnidtody of Miss TVUe Beglster, her minor
unmarried dang^ter; that Mrs. Beglster is
the owner of a certain automobile; and that
Miss Tinie Beglster was riding in said auto-
mobile baring authority and command over
the moTements thereof, and It was being
driven by H. M. Sledge, Jr., when It neg-
ligently ran down and collided with and In-
jured the plaintiff In the manner described
In the petition. In the second count It was
alleged that the defendant Mr& M. B. Beg-
lster was the owner of an automobile tbweln
described, and that H. M. Sledge, Jr., was
there employed and acting as driver and
chauffeur of the automobile for and <m be-
half of MtaL Register, and In sudi capacity
as her agent, and that while so actliw as
ehauffenr and driver, with the said auto-
mobile he ran down and collided with the
plaintiff, canislng the injuries described In
the petition. The defendants demuned gen-
erally and specially to the petition, and the
trial Judge sustained the general demurrer
to Cbe first count, so far as it related to Mrs.
Beglater, and overruled it as to the other
defendant,' and also soatalned aereral of the
special grounds of the demurrer. The gen-
eral demurrer and all the special grounds,
except two, were oyermled as to the second
count One of these special groundB Was
met by an amendmoit, which was allowed.
The paragraiAi of the second count, to which
the spwlal demurrer was sustained, is im-
material as affecting the cause of action set
forth In the count as a wholei The lOalntiff
offered to amend the first count by adding
the allegation "that said uitomoblle was
kept for ibe comfOTt and pleasure ot the
family, who were authorized to use It at any
time for sudi pleasure." Exception la tak&i
to the refusal to allow this amendment The
order containing the various rulings <m the
demurrer concluded as follows: "As petition
stands case cannot proceed as to this de-
fendant with first count In. If first count is
stricken, the cas^ If amended, will be good
against both defendants ; and so, also. If this
defendant Is eliminated from second count
and first count retained, case, if amended,
will be good against H. M. Sledge, Jr.
Amendments as to essentials Indicated to be
made 1^ October 21« 1912, or case ^1 stand
dismissed as of that data." The amendmoits
were not made as Indicated, and the petitlMi
was dismissed In pursuance of this ordw;
and to this Judgment the plaintiff except&
We gather from the different rulings oo
the demurrw that the petition was dismissed
because, no cause of action being stated
against Mrs. Roister In the first count, and
this count not being stricken from the peti-
tion to meet the order of the Judge, and the
demurrer as to the second count b^ng over-
ruled and Mrs. Bister not heSng ^Iminated
from the second count, a misjoinder of aua-
es ot action and of parties resulted.
[1] The general demurrw to the first eoont
of the petition as to Mrs. Register was prop-
erly sustained. No allegation thereof con-
nected her with the alleged Injuries caused
by the mnnlng of the automobile by the other
defendant, Sledge, and there was no allega-
tion showing any 1^1 liability against her
for the negligence of Sledge; the fair Infer-
ence from the all^tlon being that Sledge
was mnnlng the automobile at the instance
of Miss TlUle Beglster, the minor daughter
of Mrs. Register. There was no allegation
In this count that Miss TilUe Beglster, the
daughter, or Sledge, the driver of the auto-
mobile, sustained any relation to Mrs. Regis-
ter in the mnnlng of the automobile, at the
time the Injuries were received, that would
render Mrs. Register responsible for their
negligence. It Is conceded by counsel for the
plaintiff that the flrat count was defective,
but it is insisted that the amendment offered
by the plaintiff, which was disallowed, would
have shown a cause of action against Mrs.
Register in the first count, and that therefore
the court erred In not allowing it Even If
the amendment had been allowed. In our
opinion the first count would have shown no
cause of action against Mrs. Register. This
amendment attempted to hold Bfrs. Beglster
responsible because she, as the owner of the
automobile, kept it for the comfort and pleas-
ure of her family, Including Was mile Beg^
later, who was anthoriied to use It at any
time for such purpose. If Miss TUlle Begls-
ter had been driving the automobile herself
at the time of the coUlMra, Mrs. Beglsttf ,
under several decisions dted by learned
counsel for the plalntUt would have been
liable for the negligence of her minor daugh-
•rer oUMT tarn ••• mm* topte and seoUon NDUBBB la Dm. Dig. * Am. Dig.
(hL) 80HDMSR T. HBGUSTER .
tmt thSB on tbe theory that tht aotomobOe
was kept bf Bfra. Register (wbo was a wid-
ow) tor tlie pleasan and conTmlenoe of ber
ftmilly, and at the ttane tbe collision her
minor dan^itar was carxTlns ont ttie general
Vnrpose for whldi the machine was kept;
she was engaged In the iezeeDtlon of her
mother's bnslness, that of sitpplying recrea-
tion and pleasure to herself as a member of
her mother's famOy.
This se^ns to be in accord with the Tlew
of the Court of Appeals of Kentucky in tbe
case of Stowe t. Morris, 147 Kj. 886, 144 8.
W. S2, 39 L. R A. (N. S.) 224. In the case of
Daily T. MaxweU. 182 Mo. App. 415, 13S 8.
W. 361, tbe owner of the automobile bad
glTen bis consent for his yonng son to take
some of his yonng friends aatomobile riding.
It was the boy's party, and the father had
nothli^ to do with It, except to give his con-
sent to the nse of the car for tbe pleasnre of
bis son and his son's friends. Tbe court
said: "Tbe evidence discloses that the ma-
chine was devoted to the nse of the family
of which Ernest (the son and drtrer) was a
member. It was a pleasnre Tehlde, and,
when nsed for the pleasnre of one of the mi-
nor children of the owner, how can It be said
that it was not being used on business of the
owner? It Is the practice of parents to pro-
Tide tbett children healthful and innocent
amusements and recreations, and certainly
It Is as much the bnslness of parentage to
supervise and control the pleasures of their
diildren as it la to give them nurture and
education." These decisions seem to be bas-
ed upon the theory that the minor child was
driving the machine when the accident oc-
curred; none of them go to the extent of
holding that a parent would be liable for
the result of an accident caused by tbe negli-
gence of a driver who bad been selected to
drive tbe machine, not 1^ tbe parent, bnt by
the minor child.
We think, bowwer, nnder tbe statute of
this state and tbe constmctioa given to It
by tbe Supreme Gonr^ rehitlve to the UaUl-
itgr of parents fbr the tmta of minor children,
that a parent would not be roBpoastble for
a tort of a minor child if tbe tort was ooo-
mltted when the child was engaged merely
la pleasure and not in the bnsineas of the
parent la other words, tbe liaUUty of a
parmt for tbe twtof a minor child, nnder the
Uw of this states is tnalogoiis to the llabllit7
vt a master for tbe twt of a servant whUe
ttnpWed in the niwter*s boslness and la tbe
scope of his employment The Civil Code
0910) S 4418, provides: "Bvery person shaU
be liable for torts committed by his wife,
and tm torts conuultted by bis child, or aerr-
ant, by his command or In the prosecution
and within the scope of his bnslness, wheth-
er the same be by negligence or Toluntary."
In eonstmlng this section of the Code, in the
case of Chastaln v. Johns, 120 Oa. 977, 48 S.
D. S48, 66 Ia B. A. 968, the Supreme Court
7^
holds that tbe UabPltr of a pareat fiw the
torts of a c){^ld la like bis UablUty tor tbote
of a MTvant; arising only whoi the emnmls-
slon of tbe tort was by bis command or la tbe
scope of hie buslnaaa. The general rule Is
that tbe parent la not UaUe la damages for
the torts ot a mbiQr cbUd. even though the
child Uvea with liis parent and Is nnder bis
control, when such acts were done without
his authority, knowledge^ or consent, had no
connection with his business, were not rati-
fled by him, and were of no benefit to him ;
or, as has been more briefly stated, a parent
Is never liable for the wrongful acts of his
minor child, unless such acts were perfonned
with the parent's consent or In connection
vrith the parent's boslness. Where, however,
tbe tort complained of was committed while
the child was engaged In the parent's service,
within tbe scope of bis employment, or where
the drcumstaaces show that it was done
with the parent's knowledge and by his au-
thority, or with bis consent, be is liable. See,
In this connection, Vaughan v. Mc^anlel, 78
Ga. 98; Lockett v. Fittman, 72 Ga. 817 ; 21
Am. & Eng. £nc. U (3d Ed.) 1007. and cases
dted In the notes. It seems, from these de-
cisions, that tbe mle of the parent's liability
for the torts of a minor child is put exactly
opon the same basis as that of the llaUUty
of a master for the act of a servant Undw
this xnie we do not think it can reasonably
be held tliat the fact a father should proylde,
and has provided, tftr the pteasnre of hie
minor t^d makes him responsible for a toFt
of tbe child committed merely in the parsuU
of pleasure. To render the &ther liable, tbe
tort most have been commiUed by tbe minor
while aetually engaged in tbe father's busl*
nesB, or with tbe knowledge^ authority, and
consent of tbe father, or must have been tatt-
fled by him. Fielder v. Davlaoa (Sup.) 77 S.
Jfl. 618.
We conclude therefore, that evm it tbe
amendment had been allowed the first eount
la the petition would have set both no
cause of action against Mrs. Register, for the
allegatl(His would simply show that tbe wid-
owed mother bad provided an automobile
for the pleasnre of her minor dai^ihter, and
that .the tort was not actually committed Ijr
the minor ddld, bat waa committed' by
Sledge, tbe dfiver of the antomobUe, wbo,
In ao far as tbe first count la concerned, held
no relation to tbe mother, bat-was driving
tbe antomobile under the direction and con-
trol of the minor daughter. Of course, the
couat was good aa against Sledge, for it was
his individual tort that canfted tbe Injury,
and minors are liable for torts committed by
them, so we think the nUing of tbe trial
Judge as to tbe first coant was clearly cor-
rect
[2] The judgment overruling tbe demurrer
as to the second count as to both defendants
was also correct The allegations of this
count Showed v^ cleari^g»,f*«5 e^1(5^[e
784
78 SOnTHfiASTSRN BEFORTEB
(Gft.
ftgHne Mil. Beglstn; «s tbe owner «f 0ie
ftntomoliUfi^ because it ms being drirai
Stedfe u bar serrant and agent at tbe time
of the Injnrj, in tbe performance of Us bosl*
neH as driver and servant, and in pursuance
of bii agency. But Uie failure of tbe plain-
tiff to conform to the wder of the learned
trial Judge and strike from tbe petition the
Orst county or eliminate ftom tbe second
count of the petition Mrs. Beglster, so as to
make flie counts in harmony, both as to par^
ties and cause of action, left tbe petition
subject to tbe critidsm that there was In
the two counts a misjoinder of the parties
and causes of action, the first count aetdi^
up a cause of action against Sledge alone,
and the second count setting up a cause of
action against Mrs. Be^ater and Sledge; and
the Jury trying the issue made by these two
counts would at the same time have been
trying a cause of action against Sledge in
both counts, and a cause of action against
Mrs. Register alone in one count This con-
fusion of pleading is not permissible, and
the final order dismissing the petition because
of a failure of the plalntlft to meet the ruling
of the court as to tbe situation thus pre-
sented was tbe only legal -action that could
prot>erIy have been taken. We think, how-
ever, that the plaintiff should be allowed to
have tbe cause of action stated in the second
count against twth defendants submitted to
a Jury, for this count sets forth a good cause
of action against both, under tbe ruling of
the trial Judge on the general demurrer, and
tbe material ground of tbe special demurrer
sustained was met by an amendment. We
have therefore concluded that a proper dis-
position of the case will be to affirm the Judg-
ment, with direction that the first count of
the petition be stricken, but that the second
count be reinstated, and that the plaintiff
be allowed to submit proof in support of the
allegations of the petition, as set out in the
second count:
Judgment affirmed, with dlrectlMi.
(UOa. App. a>
MeUILLAN v. FIBST KAT. BANK OV
VALDOSTA. (No. 4,811.>
(Court of Appeals of Georgia. Jane 26. 1018.)
(Sytlahu* Ig th« Court.)
BuxB AJtD Notes (H 848, S17. 618*)— Bona
FiDB PdBCHASBB— NonOB or DEFSHSEft—
Fbaud — Evidence.
There was no evidence which would have
authorized a finding, either that tbe coosidera-
Uon of the note sued on had failed, or that tbe
plaintiff was not a bona fide purchaser for value
before maturity. The verdict in favor of the
plaintiff was properly directed.
[Ed. Note.— For other cases, see Bills and
Notes, Cent Dig H 8S3-8S&. 864, 86fi, 1807-
lsiS/lBl9-lB20 ; Dec Dig. H 34S, SITI 618.*]
Ehior from Si^eilor Court, Golauttt Ooim-
ty; W. B. Tbtnoas, Jndga
Action by the First National Bank of Val-
dosta against A. It KcMOlaB. nom a Judg-
ment for plaintiff, dtfendant brings error,
Shlpp & Kline, of Moultrie Cor plaintiff in
error. Patterson & Gopdan^ U Taldosth
for defendant in error.
POTTIjB, J. This was an action on a
promissory note executed prior to the pas-
sage of the act approved August 17, 1812.
Acts 1812, p. 163. The defendant pleaded
non est factum ; that the note was executed
in paym^t ot certain mining stock wbleh
was worthless, and for this reason the con-
sideration of the note had wholly fidled;
and that the plaintiff was not a ixma. fide
purchaser for value. The court directed a
verdict in favor of the plaintiff, and ovw
mled the defendant's motion for a new trial.
It appears, from the evidence, that Stump,
the payee of the note^ sold to the maker a
number of shares of mining stock in the
Georgia-Nevada Mining Company, and that
the defendant executed tbe note sued on In
payment for this ato<^ The note was dis-
counted by the plaintiff bank before its ma-
turity; the bank paying for the note the
face valne thereof, leas a discount of 8 pfer
cent At the time the note was dlsooonted.
Stump was indebted to the bank on a prom-
issory note, and the proceeds of the note
sued on were applied as follows: ^00 to
Stump's indebtedness to the bank; 9300 in
cash to Stump ; and $500 by chet^ made pay-
able to Stump, which was later Indorsed
over to and collected by one Scott, who was
Jointly interested with Stump In the mining
company. Tbe defendant testified that at the
time of tbe execution of the note Stump r^
resented to blm that the mining stodE was
valuable, and that in a short time it would
pay $1,000 in dividends, and would ke^ on
paying dividends r^ularly; and fae testifled
that be bad never received any dividends on
the stock. Some two or three months prior
to tbe execution of the note One plaintiff
bank, through Ita president. Ashley, was In*
formed by an attorney who r^resented the
maker of a similar note that Stump was en-
gi^ed in selling worthless mining stoCk, and
advised Ashley not to discount tbe note of
his dlut Ashl^ knew that tbe con^era-
tion of the note sued on was mining stock,
but did not know of any agreement made be-
tween Stump and tbe maker of the note In
reference to the payment of dividends, and
did not know that tbe consideration of tlie
note bad felled. Tb» note was payable to
Stumm who reodved the proceeds of tbe
same, and tbe bank bad no knowledge la ref-
erence to any agreement as to the disburse-
ment of the proceeds of the note.
The case turns on tbe question whether
or not Qie cmsideratlon of the note had
failed, and wbecuer the bank was an Inno-
cent purchaser for valne before maturity.
*For otlMT casM tM sun* Uple tad Motion NUUBER Ui Dec. Die. a Am. D:
FIDELITY MUX. LIFB INS. CO. t. OOZA
735
There was no erldmee which would warrant
the Inference that the bank knew the con-
sideration of the note had failed, nor that
It had knowledge of any circumstances which
would place a prudent person npon his
ffuard in pnrt^sing n^tiable i>aper. drll
Code 1910, S 4291. E^nowledge by the bank
that the note was given for mining stock was
not snfilclent to put it upon inquiry in refer-
ence to the failure of consideration. Brooks
V. Floyd, 12 Ga. App. , 77 S. E. 877. The
statement made to Ashley by Uie attorney
was no more than an expression of the at-
torney's opinion, without stating any facts
or Information which would bring home to
Ashley knowledge of the worthless diaracter
of the note, being no more than a loose state-
ment by the attorney that Stump was en-
gaged in the business of selling worthless
mining stock. It does not even appear that
the stock sold to the defendant by Stnmp
was of the same <diaracter of stock referred
to by the attorney in his conversation with
Ashley. But the discussion in reference to
whether the plaintiff bank knew that the
'consideration of the note had failed Is really
unimportant, because the evidence wholly
fails to show that the stock was worthless.
There Is no evidence In this record from
which the Jury could rightly infer that the
stock was not worth the amount the defend-
ant agreed to pay for it, and for which be
gave his note. It does appear that there
was a mining company known as the Geor-
gia-Nevada Mining Company, in which both
Scott and Stnmp were interested ; ' that tbid
company owned a large number .<tf acres of
land in 13ie state of Nevada, which it had
bought for the purpose of developing a mine;
that Scott had gone to Nevada and'engaged
In an effort to develop the property and
make It pay ; and there is no testimony ncnr
any circumstance proved from which it could
Ic^Itiniately be Inferrad that the stodk. was
worthless. One who buys mining stock must
necessarily know that his venture la to a
large extent qtecolative In character. He
cannot defeat a note given for the purchase
price merely because the venture had turned
out badly and was not as profitable as he
thought it would be. In order to sustain a
plea of failure of consideration, he must
show that the payee of the note acted in
bad faith ; that the stock was worthless at
the time the note was given; and that the
payee knew this fact whm the sale was
negotiated. Nothing of this sort appears in
the evidence In the present case ; nor was It
even shown that the stock was worthless at
the time of the date of the triaL No other
verdict could properly have been found than
the one directed by the court, and the de-
fendant's motion for a new trial was proper-
ly overmled. In the forgoing discussion we
have treated the alleged newly discovered
evid«ice as though It had be^ introduced
■PorotbarcMM
and admitted at the triaL It could not bare
produced a differoit result. Proof of the ex-
ecution of the note made a prima fade case
for the plaintiff, and there was no evidence
which would have warranted a oontnuy
flTld^"g.
Judgment affirmed.
FIDELITT MDT. LIFE INS Ca T. GOZA.
(No. 4,804.)
(Court of Appeals of Georgia. Jnne 2D, 1918.)
(ByUahut ly tlu Court.)
INSURAKCB (S9 349, 392*)— FOBFEITUBB— Nor*
PATMENT or PBEHIUM NoTB— WAIVSB.
All the questions raised in this case are
controlled adversely to the plaintiff in error
by the deciBions of this court in Arnold v. Em-
pire Insurance Co., 8 Ga. App. 68S, 60 S. E.
470, and WllUams v. Empire Insurance Co., 8
Ga. App. 303, 68 S. B. 1082, which, npon re-
view thereof, are adhered to.
[Ed. Note.— For other caaeB, see iDsnrance^
Cent Die. M 891, 895-902, 913. 104)1-1068,
1058-1070; Dec Dig. §| 349, isyz*]
Error from City Court of Savannah; Da-
vis Freeman, Judge.
Action by G. M. Goisa against the Fidelity
Mutual Life Insurance Company. From a
Judgment from plaintiff, defendant brings
error' Affirmed.
W. L. Clay, of Savannah, tot plaintiff in
error. Osborne & Lawrence of Savannah,
for defendant In error.
POTTLD, J. The plaintiff in error issued
a policy of insurance uiwn the life of one
Goxa, payable to hla wife as benefldary.
The policy recited that it was Issued in con-
el deration of the payment in advance of
$81.72 — the agreed annual premium. In the
application, which was a part of the policy,
the Insured agreed that no agent of the In-
surer, except certain named officers, should
have the power to extend the time for the
payment of any premium or to waive any
forfeiture of the policy. The policy was Is-
sued March 15, 1911, at which time the in*
sored made a cash payment of 920 upon
the premium, and gave his note for 161.72,
dated March 22, 1911, and due 90 days after
date. There was a recital in this note that,
if not paid at maturity, the policy "shall be
ipso facto null and void, without notice to
the maker hereof and without any act on the
part of the company, and shall remain so
until restored as provided by its terms."
There was no provision In the policy for its
forfeiture for the nonpayment of any obliga-
tion given in settlement of the premium, but
the policy did provide that, In the ereat of
default in the payment of any premium or
obligation given for the premium, the policy
might be revived at any time ^thin three
years upon production of satisfactory evl-
) Bunv toplo and MCtlen NITUBBB In Dm. Dig. A Am. £>!<• K^-No. S«rlM 4 ^^,'^^0
Digitized by
78 SOtrrHBASTlttN RBPOBTEB {Qm.
den^'tb i9M &»kpKaf of tbe payment of all
oreitfoe premlnma: Shortly before tbe ma-
tttrtty of tbe note, the Inftnred paid ¥16 In
cash, which was rec^red hj tbe company
and credited on ttie note. On June 19tb the
company's manager wrote the Insured, stat-
ing that the note would mature tbe next
day* and Indoeed a renewal note with the
amoant left blanl^ atatbig that tlie writer
did not recall exactly what anumnt tbe In*
i^red desired to pay at tbe maturity ot the
note. This renewal note was nerer executed
or returned to the company. On July 4Xb
another letter was addressed to the Insured
by the company's manager, acknowledging
Um recdpt of the fl5 and Inclosing another
renewal note, which the bisured was request-
ed to sign and return.. On August 2d the
manager affdn wrote the insured, requesting
the ttew note, ."so as to keep your Insurance
In ]>roper shape." On September Utb anoth-
er letter was written by the manager to the
insured, expressbijs regret that no reply had
be«i made to the Beverai preriouB eonmra-
nicatltms, and stating that the writer hoped
tliat it waa not the insured's Intenthm to
pwmit the policy to ranain lapsed. Tb»
note executed by the insured for the balance
of the premium-was payable to cwtaln nam*
ed agents of tbe company, was accepted by
It, and entered on Its books to the credit of
the insured* with the notation that it was
held for the balance of tbe premium. Blat-
ters remained in this condition until after
the death of tbe Insured on October 1, 1911 ;
and on Octobw 28d the note ws charged on
ttis books to the account of ttw nansglny
agmt to whom It wat payable. The oom*
pany never surrendered or offered to sur-
render the note to the insured after its ma-
turity. Suit wa^ brought on the policy, and
tlie company defended on the ground that by
the nonpayment of the note at maturity fb»
policy bad been forfielted. There were demmv
rers to the petition as amended, which were
oTemfled; and after tiie introduction of
evidence, from which the forgoing flacts ap>
peared. On court directed a verdict for the
idalntiic.
AU the material questtona of law raised In
the record are controlled adverstily to tiie
plalnticr In error by the deddona of tUs
court in tibe caaes of Arnold r. Bmplre In-
surance Co^ 8 Oa. App. 689, 60 S. B. 470^
and \muams t. Emigre Insurance Co., 8 Ga.
Appi. 80S, 68 S. B. 1082. Tbers waa no stip-
ulation in the policy of Insurance Hiat it
would be void for nonpayment of the not&
^nie conduct of the company In holding the
note and endeavoring to collect It after its
maturity amounted to a waiver of Its right
to Insist upon a forfeiture. It was so ruled
expressly in the decisions above cited. We
are requested to review and oveiTule fliese
decisions. They were very carefully consid-
ered, and In our opinion state correctly the
prlndplea of law ai^caUe to the cases that
being dealt with, and these prlnc^iles are
controlling in the case now under consid-
eration. We decline to overrule these deci-
sions. There was no error in any of the
rulings of the court of wUdi ^yn^'slnt is
made.
Judgmwt afflrmeO.
Digitized by Google
BTACT PUCKSTT
(KB. 0. tun
8TATD T. FUGKETT.
<8iipr«ne Court of Sonth Ganriino. Jane 30^
1, BuBGLABT (I 4*)— What COMBTxraTKa.
Ajs commonplaw barglary ia the breaking
and entering of the dwelling faoDae of another
in the nigbtttme with lDt«it to commit a fel-
ony, it Is not a barglary for aeaiaed to enter
the i^aica attached to a home, even though
the piazza was protected by balastrade and
low picket gatea need to keep out dogs and
diMaii; it not appeaHng that accosed at>
tonpted to enter ue dwwing proper or at-
tempted to commit any felony therein.
[Ed. Note.— For other cases, see Burglary,
Cent Dig. H 14-18; Dec Dig. } 4.*
For other definitions, see Words and Pbraa-
M. ToL 1. pp. 908-eil; TOL 8, p. 7693.]
2. BUBQLABT (I 11*) — PBOBBOUTIOM — At-
An attempted boritor ia Indictable at
common law.
[Ed. Note.— For othM easei, aee Barglary,
Gent Dig. S 4; Dec. Dig, f U.*]
Appeal trom General Sesalona Orcnlt
Coort of Lanrens County; Geo. E. Prince,
Judge.
Rich Pockett was eofnMeA of Imrglary,
and he appeala Bereraed.
Fergnson, Featlwratone A Enli^ of Imt-
«B8, for appelant B. A. Coi^Mr, of Lanrena,
ior the State.
WATTS, X The defendant mivellant was
tried and convicted in the court of gener-
al ses^ns for Lanrens county in January,
1913, on a charge of Imrgluy* He was
charged with breaking and entering tb«
dwelling hoose of W. R. Blchey in the night-
time, with Intent of committing a felony, on
September 22, 1912. After conTlctlon, a
motion for a new trial waa made by appel-
lant, which was OTerruled, and after sen-
tence ai^hmt aK>ealfl and allies ten spec-
tOcatlons of error on the part of Mb honor.
The first Aye exceptions allege wror on the
part of his honor in overruling the motion
for a new trial In that there was no testi-
mony to Bostaln the verdict, as the ertdence
showed that the portion of the house enter-
ed was the pianca. unprotected and unln-
cloeed, and was not such a place to be le-
gally the subject of burglary, and there was
no eridotce that the def^daot broke and
ratered a dwelling house as alleged In the
Indictment, and In holding that picket gates,
in contemplation of law. pat on the piaraa
outside of the house, constituted a protec-
tion or security to the habltetlon of the
dwelling, when the evidence showed that the
gates were not put there for any such pur-
pose but to keep out dogs and chickens and
In holding that under the indictment the ap-
pellant could be convicted of burglary in
breaking out of said dwelling house when
there was no evidence of such breaking, and
for the farther reason there was no evidence
of any breaking or altering In the house to
steal, no breaktnc out, uuX oo eTldence at
all of any theft or other felony committed
by the appellant In consequence of such ea-
try. The ninth and tenth exceptions raise
the p<dnt there was no evidence to sustain
the verdict The facts, as dcraloped at the
trial in brief; are : That the dw^ling bouse
of Mr. Blchey Is on West Main street, In
the dty of Lauzens ; that Uie, house is sur-
rounded on the front and on th,e east and
west ends by a piusa, with balustrade 2%
feet high. From the' top of balustrade to
the overhead celUng ctf tlw idazza is an
open space of 6 or 7 f6et On the front
there was an opening on the piazza of 12
feet through the balustrade. On the east
and west ends there was an opening of 8
feet from the back yard on each end of the
piazza. Thue was a picket gate to each
end, opening of the same bdght as the bal-
astrade, leaving the c^n space above the
celllnit It waa the custom to ke^ these
gates dosed to keep out chickens, dogs, etc
The evidence shows the defendant appelant
was familiar wltti the iffnnlses. On the
night in question It was damp and raining;
during ae nlcSit Pockett was found on the
piazza of the house under saspidous dr-
cumstances. There Is no qnestlott abtfut
that, and there was snffldent testimony to
go to the Jury as to whetbw the gates to
the plaza were dosed or not He did not
enter the dwdllng house pn^per at all, and
there is no evidence that he stole anylMng
or made any overt act to commit a feUmy.
like sole question is whettier the piazza was
such a part of the dwelling bouse In this
case, under the facts as proven, as to make
it a subject of bui^lary, and. If so, did the
appellant break and enter It In the night-
time with Intent to steal, or &IA he enter it
without breaking lu the nighttime, with in-
tent to steal, and then break out
[1] Common-law burglary is the breaking
and entering the dwelling house of another
In the nighttime, with Intent to commit a
felony. There must be a breaking and en-
tering. It must be a dwelling house; It must
be In the nighttime; and it must be with
the Intent to commit a felony. There must
be a breaking of "the Indoaing parte of a
dwelling house." 2 Bishop. | 91; Stete v.
Sampson, 12 S. G. 668, 32 Am. Rep. 513 : 3
Wharton aith EA.) 1190. | 971; Clark's
Criminal Law, 1 100.
The evidence shows the appellant only on
the piazza, and under the facta, as proven,
it does not show that the piazza was such a
part of the dwelling house as was contem-
plated by law to make It an offense to enter
in the nighttime against the security of the
dwelling housa In the case of Henry v.
State, 30 Ala. 679, the accused was cbai«ed
with larceny under the stetute Imposing a
penalty upon "any person, who shall com-
mit larceny In any dwelling house." Cer-
•fy otbar esMt im sama titpte aad motion NUIIBBR in Dm. Dls. A Am. Dig. Kar-Ne. Satlaa *
78S.&.-47
.Digitized by
738-
78 S0UTHBA3TEBN BBPORTEB
(S.C
tain clothes had been stolen firom the piazza
In front of the dwelling house and attached
to it The court held: "Such a piazza Is
not ft house and cannot be a dwelUi^ hoosa
It may be attadied to the house. * • •
A larceny, oommitted In the piuasa, cannot
be sidd to have been conunitted In or Inside
of Oie house."
The raitry of a piazza, attached to the
house outside of the bouse, the i^ace where
callers are accustomed to wait until some
one In the house responds to a ring or
knock, or to enter and sit on the piazza to
get out of the rain; or sun, or to rest, may
be a trespass or bad taste, but It is quite
different from opening the closed doors of a
house and intruding in the sanctitT of the
dwelling.
A careful examination of all the erldenctt
in the case convinces us that there was not
snffldent testimony to convict the appellant
of the offense charged, and his honor was In
wror in not setting the verdict aside.
[2] The appellant was not indicted for an
attempt to commit a burglary, althou^ 2
Wharton (11th Ed.) 1041, says, "An attempt
at burglary is indictable at common law;"
but appellant was indicted for bui^lary, not
an attempt to commit burglary.
Judgment reversed.
fiABT. a J., and HTDBICK and FBA-
SBB, JJ;, oonenr.
(96 S. C. 131)
STATU ex rd. GULP et al. t. CITY COUN-
CIL OP tJNION.
In re HOLDING ELECTION FOR ALDER-
MAN IN WARD 1, IN CITS OP UNION.
(Supreme Court of South Carolina. June 28,
1913.)
MXIHICIPAI. CORPOBATIONS (I 138*) — ALDKE-
— '^OALinED EUBC-
TOUJ
HEN— QUAUFICATIOira
One to bfl a "qualUied elector" of a ward
of a dty, 80 as to qualify him, under Civ. Code
1912, I '2S5H, to be alderman thereof, must be
regiatered, so aa to enttfle Um, nndw section
221, to vote at the election.
[Ed. Note.— For other cases, see Municipal
CoriJorations, Cent Dig. S 313 ; DecDig. 5 138.»
For other definitione, see WordB and Pbraa-
es, ToL 7, pp. 5875, 5878.]
Appeal from Oommon Pleas Circuit Court
of Union County; Thos. S. Sease, Judge.
Petition by F. B. Gulp and othors for man-
damus to the cnty. Council of Union and its
members in respect to the holding of an elec-
tion for aldermen In ward 1 of said city.
Judgment for r^tora, and respondents ap-
peaL Affirmed and remanded, with instruc-
tions,
J. Aahby Sawyer* of Union, for appellants.
Toung ft Beaty, at Union, for respondffiitB.
WAa:TS, J. This la a petition ffled by the
relators, praying for a writ of mandamus re-
quiring the respondents (appellants here) to
order and hold an election In ward 1 of ttie
dty ot Union for the election at an alderman
from said ward. The petition exhibited ver-
ified, and accompanied by affidavits set forth:
That at an election on June 4, 1912, In the
city of Union. J. B. Kirby received a ma-
jority of votes cast fbr alderman for ward
1 and was declared elected to that oflhse.
That the said Kirby was not at the time of
said election "a qualified elector, nor was
he a registered voter in the aald Section,"
and was not therefore qualified to hold public
office under ttie ConsUtntion and laws of
this state. That they are informed and bft-
Ueve that aald Kirby Is undertaking to act
as alderman for raid ward. That th^ call-
ed upon the mayor and aldermen from' ttie
other wards, and throng petition demanded
that an election be ordered, ^niat they have
the rl^t to be r^iresented In said council
by some oiw who la duly qualifled Sector,
and that it is the official duty of the etty
council to order elections to fill vacandes,
and that the respondents are tlie offlcws of
the city.
Upon the petition and affidavits, Judge
Sease issued a rule requiring the respondents
to show cause before him why the writ pray-
ed for should not Issue. Return was made, as
required, and after argument Judge Sease on
December 7, 1912, made an order directing
the writ of mandamus to issue as prayed for,
and the formal writ was Issued. Appeal was
made from the order of Judge Seaae.
The undisputed facts In the case show that,
at the time of ttie election for mayor and
alderman for the dty of Union in 1912, J. VL
Kirby had been, for at least four years prior
thereto, a bona fide resident of the said ward
and had paid all taxes due and assessed
against him for the preceding fiscal year and
held a registration certificate, duly Issued by
the board of registration for the county of
Union, as a registered elector of ward 1 of
Union, S. O. That he had been elected and
served as an alderman from that ward in
1908 and 1910 and had been duly nominated
by his party in 1912 and duly ^ected, but
that be failed to register fbr the mnnlf^ial
election, 1912.
The dty of Union is divided Into wards and
is . operated under charter for dtles of over
6,000 population, and charter Is issued by
Secretary of State. The original ad pro-
viding for the incorporation and government
of cities of more than 6,000 inhabitants is
found In volume 23, Statutes at Laige, as
Act 377, p. 648, passed In 1901. Section 2
thereof was incorporated in Code of 1902 as
section 1966, voL 1, and'as part of the Code of
1912. ToL 1, S 2924, and reads as follows:
"Said dty shall be governed by a mayor and
alderman, or. In case of munldpalitles be-
ing divided into wards, one alderman from
each ward, who shall be and be known as
the dty council of said dty. Said mayor and
•ror oUmt oasw sm nnw topic and mcUob NUMBER In Dm. Dig. a Am. Dig.
S.0>
MIDDI^ETON
T.XLUSOK
739
aldenoan a^all be gnaUflea tiectora of tbte
state and of the county la which said clt7
18 situated, and they shall have resided In the
corporate • ■ * * city* at least six months
Immediately preceding the day of election.
If the dtj be divided Into wards, the alder>
man from each ward shall be a qualified
elector thereof, and ahall be elected by the
Qualified electors thereof."
Section 221. Code of Laws 1912, toL 1.
provides for the registration for municipal
elections, in substance, that 90 days before
holding the regular election, etc., a supervisor
of r^i;lstratlon shall be appointed," whose
dutr It shall be to register all qualified
electors within the limit of the Incorporated
dty or town. The names of all qualified
electors of such municipalities shall be enter-
ed In a book of registration," etc. "Provided,
that twenty days prior to any .special election
to be held as aforesaid the books of registra-
tion shall be opened for the registration of the
names of qualified electors therein, and shall
remain open for a period of ten days.
* * * Immediately preceding any munic-
ipal election to be held in auy incorporated
city or town in this state, the supervisor or
supervisors of registration (as' the case may
be) shall prepare for the use of the managers
of election of each polling precinct In such
city or town, containing the names of all
electors entitled to vote in such polling pre-
cinct at said election." This clearly shows
ttiat, In order to vote In a municipal election,
a municipal registration is necessary, and
It Is a necessary qualification, in order to
hold the office of alderman, that the party
elected Is not only a qualified elector and
entitled to vote in the state and county
elections but he must be a resident of the
ward from which he is elected and duly
qualified to vote in the municipal election
that elects bim. In this election Mr. KIrby
was not a qualified elector and could not be
elected In it to the office of alderman and Is
not entitled to that office, and that office Is
vacant, and his honor, Judge Sease, com-
mitted no error in so holding and in issuing
the' writ of mandamus.
All of the exceptions are overruled, and
Judgment appealed from affirmed, and case
remanded, with instmctlons that the city
council of Union order an election to fill
the vacancy within 30 days after remlttltor la
sent down to circuit oonrt
OABT. a J., and HYDBIOK and FBA8-
JJ., concur.
(K 8. C. IBS)
MIDDLBTON et aL v. ELLISON et sL
(Supreme Court of Sontb Carolina. June 30,
1913.)
1. iNJUNcnOK (I 136*) — Tempobabt In-
nrNCTioN— GaoDifn vob 'Isbuahce.
In an action to enjoin defendants from in-
terfering with church property, a temporary
injunction will be granted where there are snb-
Btantial questions- to be decided, and the status
of aS&ln existing at the commencement of tbe
action should be preserved.
[EA. Note. — For other cases, see Injunction,
Cent Dig. H S06, 306; Dec Dig. S 136.*]
2. Relioious Sochties (I 24*>— Oboaniza-
TiON— Power or Civit Godbts.
Where there is a schism in a cbarcb, the
courts will not undertake to inqnire iaU\ the
ecclesiastical acts of the several parties, but
will determine the property rights in favor of
the party or division maintaining the chnrdi
organization as it previously existed.
[Ed. Note.— For other cases, see Beligioos
Societies. Cent Dig. SI 154-157; Dec Dig. 8
24.*]
3. RxLieions Societies <S 25*)— OaaAnizA-
iioN— BiaHT TO QusaxioN.
Where defendants originally took their pul-
pits under the authority of the plaintiff bishop,
they cannot subsequently question his author-
ity, and a temporary injunction will be issued
to restrain them from interference in all cases,
except where the congregation practically unan-
imously adopted the theories of defendants.
[Ed. Note.— For other cases, see Religious
So^eties, Cent Dig. H 154-167; I>e& 1%. {
Appeal from Common Pleas Circuit Court
Of Charleston County ; Geo. E. Prince, Judg&
An action by E. Russell MldOleton, as bish-
op of the Reformed Methodist Union Epis-
copal Church, and the Reformed Methodist
Union Church, a corporation under the laws
of the state of South Carolina, commonly
known as tbe Reformed Methodist Union E^a-
copal Church, against J. A. Ellison and othera
From an order grantli^ a temporary Injunc-
tion, def^idants appeal. Affirmed.
The o^nion ot tbe trial Judge is as follow*:
"TUB 1b a Bult for Injunction brought by
EL Russell Mlddleton. as bishop of the Reform-
ed Methodist Union Episcopal Church and
by the Reformed Methodist Union Church, a
South Carolina corporation commonly known
as the Reformed Methodist Union Episcopal
Ohun^. Tbe action Is brought against cer-
tain Individuals, named as defendants here-
in, who It is alleged, are clalmii^ and assum-
ing to t>e the regular church, are uslng^ the
corporate name of the church, and are con-
spiring to injure and destroy the church and
church government of the plaintiffs; It la
further alleged that the defendants are cre-
ating disturbances and have caused conflicts
to take place in some of tbe churches and
congr^tions of the plaintiff corporation, and
are interfering with and undertaking to take
IMSsessIon of certain of the church property ;
it is also alleged that the defendants have
undertaken to bold meetings In the name of
the plaintiff oorporaUon and have called a
meetliv tor November 4, 1912^ to consider
making certain cbangee In Its charter.
"The matter comes before me no# on an
ai^Ucatlon for a restraining order pendente
lite under a rule to show cause Issued by me
•For oUiw flasM sm same tople and Mctlon NUHBBB ta Dm. Dig. a Am. Dig. ^^'^l^f^^fg^^^f^^l^C
740
78 SOCrtHBASrAttN BOFO&TIIB
and duly eerVeA on the defendants, and under
the retun ot the defendants and sundry
affidavits submitted by both sides.
[1] "Many points and questions ot fact
hare been raised at the hearing before me
which I do not consider it necessary or prop-
er for me to pass upon at the prwnt time.
The action being for Injunction, the matter
to be decided here f s whether under the show-
ing made by the affldsTlts submitted and by
the pleadings the plafntlffB liave shown that
there are substantial questions to be decided,
and that the status of affairs existing at the
commencement of the action should be pre-
serred.
"Without going Into a discussion of the
facts or of the questions InTolved, I am sat-
isfied that the plaintiffs under the showing
made are oitltled to a temporary restraining
order. The question which requires more
consideration Is as to wtiat property the re-
straining order should apply, and on this
point there Is great confilct between the state-
ments made by the contending parties. The
controTersy concerns itself with a schism in
the Reformed Methodist Union Episcopal
Church, which is a religious organization
made up of numerous congregations and with
a large membership in this state and in Geor-
gia. Each side claims to be In possession of
certain of the churchy and to have certain
oongr^ttons with It, and affidavits are sub-
mitted by each party to snstaln Its respec^
tlve contention.
[t] "While there seems to be a dispute that
plalntlfh represent the original organization,
yet prior to the spring of this year the de-
fendants were acting as a part of the plain-
tiff oigaulzation under Bishop Mlddleton.
The organisation baa bem known as the Re-
formed Hetbodlst Union Bplsc<val Church
tor many years during which defendants
were members of and identified with it Un-
der these ctrcamstaaceB, the defendants will
not be heard now to qnettlon Its right to use
this name nor wlU the conrt undwtaka to in-
onlrtt Into its eocftealastkal acts. In wich
cues the courts of lav are accustomed to In-
qolfe which party or division maintains the
.4Aurcta organization aa it existed and to rec-
ognlae this party. While not undertakhig to
decide finally this question at the present
time, It has become necessary to consider
th^ matter from this point of view, in view
of the conflicting statements of the affidavits
submitted.
[S] "It appears tliat several of the defend-
ants who now claim to be in possession un-
der the defendant Ellison were appointed to
theee charges by the plaintiff bishop and took
possession under him. Since the schism In
the church, many of the congregations nnder
these defendants have been rent In twain, and
dissension and division exist amongst them.
Having been appointed and having entered
Into posMSBfam under the btahop* thon of
the defendants whose congregations are di-
vided cannot claim to be In peaceable posses-
sion as against the bishop and against that
portion of their congregation who still sup-
port him. On the contrary, these pastors
having been placed there by the bishop, be
and his supporters are to be regarded as still
In possession nnder the circumstances dis-
closed at the hearing, unless full and legal
possession Is shown to have been obtained by
the opposing faction. In all cases, therefore,
except those in which complete or entirely
peaceable possession is shown, the plaintiffs
are entitled to be free from interfo^ce dur-
ing the pendency of this action.
"In the churches of St. James In the SL
James circuit in Clarendon county and of St.
Peter's and Zion in the Lake City drcnit,
the plaintiffs concede the fact that all or
practically all of the members of the congre-
gations hare sided with the defendants and
that the latter are practically in complete
possession. In the case of St Mark's Church
in St Andrew's parish, Charleston county, it
would also appear from the statements made
that although plaintiffs claim that certain of
the members -are opposed to defendants, the
large majority are with ElUson and hia as-
sociates and no disturbances have occurred
with reference to their possession. In these
cases I shall not interfere with the def«id-
ants, and they may continue In theix posses-
sion and control. With reference to the
churches and congregations In the state ot
Georgia, I shall also not undertake to pass
any order.
"With these aceptJons, however, I think
plalntifTs are entitled to a temporary restrain-
ing order against the defendants. It is there-
fore ordered that during the pendaicy of this
action and until further order of the conrt
the defendants and all acting under them be
and they are hereby restrained and aij(rfned
from interfering with plalntUb in the exer-
cise of their rights, privileges^ and in per-
forming there ^Ues as a corporation as bish-
op thereof, respet^vely. In connection with
the government of the said cburdi and*tlie
direction and control ot the congregation and
places of worship thereof.
'%t Is further ordered that ttie defendants
and all acting under them be and ttuy hereby
are during the pendency of this action and
until further order restrained and enjoined
from entering or interfering with the proper^
ty, books, or teoocds of tiie following Churches
and coi^regatlons of the Refiamiea Ifethodlst
Union Church, conummly known, as the Re-
formed Methodist Union Episcopal Church,
to wit: Mt Hermon Chundi, Qiarlestcm, S.
C; Central Church, Charleston, S. C; Zion
Ghnrcli, Dorchester Road, S. C. ; St Mary's
Cfaurfht Cbarleston, S. C:; Payne Church.
James Island, 6. ' O. ; 8t Mary's Chorch,
John's Island, S. C; St Petw's ChnrtHi,
John's Island, 8. <Xi Janaal&n Gburcb,
Digitized by Google
s.o>
T41
Maryrllle, S. 0. ; Bethl^em Obnrch, Edteto
Island, B. 0. ; Cedar Grore Chai«h, Lambs,
S. C ; Zoar Ohurch, lincolnvUle, 8. C. ; Je-
maalem Church, Seatoook, 8. O.; St Panl
Church, Grays HUl, 8. C; Betbti^em Gborch.
St Helena ledand, S. 0. ; Bethel Church, Par-
is Island, 8. O.; Mt Olivet Ghnrdi, Pnrys-
bure, S. O. ; St Sl^ihen's Chnrdi, Bellinger,
S. a; let Plsgab Ghxireh. Honld^ S. O.;
St James Church, Monlden, 8. C ; BUnannet
Chnrch, Gi£Ford, S. C. ; Palmerrllle Church,
St Stephens, S. 0.; MeClellanvllle Chnrch,
McClellanviUe, 8. C; New Hppe caiurch,
Calvary, S. C. ; Antloch Ohnrch, Remnl, 8.
a; Mt Pleasant Church. Panola, 8. C; St
Philip's Church, Elmwood, S. C. ; Mt Morlafa
Church, Brogden, 8. C- ; Keels Chapel, Gree-
leyvlUe, S. C. ; St John's Churcht Bfflnghain,
B. C. ; St Lnke's Church, Georgetown, S. C ;
Oallllee Church, Wlnyah, S. C ; Lanes Creek
Church, Lanes Creek. S. C; New Hope
Church, SampsLt S. C; 8t Mary's Church,
St James, Santee, 8. C; St Biattbews
Church, ElUott S. C; St James' Church,
Marlon, 8. C ; Orange Hill Church, Wedge^
field, S. C. ; Beulah Chnrch, Privateer, S. C. ;
EllEaheth Church, Bloom Hill, 8. C ; St Mi-
chael's Oburcb, StKtnknis, S. O. ; Good Hope
Chnndt, Provldoice, 8. C ; 8t Mary's Cbnrdi,
Indian Town, S. O. ; Goodwill Church, Cades,
S. a It Is further ordered that tbe defend-
ants and all acting under them be and ftay
hereby are, during the pendency of tide ac>
tSon, restrained and enjoined from claiming
and attnmlng to be tbe 'Reformed Methodist
lTnl(m Cburcb or fTtnn using the name of tbe
Reformed Methodist TTnlon Chnrch or of the
Reformed Methodist Union Episcopal Church,
and from holding any meetings or In any
mannOT attempting to transjict any business
in the name thereof.
"Defendants are entitled to be prote<N:ed
against loss in the event that this controver-
sy should eventually be determined in tbelr
favor. The plaintiffs shall tberelore give
bond In. the usual torra for f 1,000, with suffi-
cient surety to be approved by the clerk of
this court Let this bond .be filed with the
(Aerk within 10 days from the data hsreot
"And It Is so ordered."
Hem<:jon ft Monfish, of Charleston, and Da-
vis & Wldeman, of Manning, for appeflants.
John I>. Cappdmann, N. B., Barnwell, and F.
Wm. CappJmann, all of Charleston, for rer
spondenta. '
WACTS, J. For tbe reasons gtveo by tbe
drculk iuOge, tbe Bon. Geo. D. Pxlnc^ It Is
tbe judgment of this court that the order
made by the circuit court be affirmed.
GARY, O. J., and HTDBICK and FBA-
SER, JJ., cohenr.
STOKBS et aL t.MDBBAX..
(Supreme Court of South Candiua. June 28,
leis.)
1. Advkbss Poesuaioif <f 114*)— Bctskv or
Paoor.
Where tbe gaeition Is whether a party
has acquired title to real estate by adverse
possesMon for a period of 10 years, sudi pos^
session most be dearly proved snd shown.
[Ed. Note.— For other cases, see Adverss
Possession. Ceot Dig. U 683, 688, 686, 686;
Dec Dig. \ 114.*]
2. Advebsk Possbssioit (S 116*)— QuunoH
FOB JOBT— CHABACTEB Or POSKBSION.
Vie eharaetev of adverse possession Is a
question for the jury.
[Ed. Note.— For other eases, see Adverse
PosBession, Cent Dig. |i 314, 691-701: Dec.
Vig. 9 115.*]
8. Trial (f 180^-^Axiiro Gaa ntnc Juar
— N0N8DIT.
Where there is any competent relevant
testimony to go to the jury, a nonsolt cannot
be granted.
[Ed. Note.— For other eases, see Trial, Cent
^.^^ 832, 883, 888-841, 86S; Deo. Dig. }
Appeal from Oommw Fleas Circuit Cout
of Lee County; Benry Mnlllns. Special
Judge.
Action by J. L. Stokes and otters acalnt
William M. Murray. From a» ordw giant<
Ing a nonsuit, plaintiffs appeal Reversed
and remanded.
8ee^ alao, M&ai8,n&B.712.
The following are the exoeptlone of ap-
pellants :
"His honor erred in granting the motton
for nbnsuit It Is respectfully submitted, la
tbe following particulars. (1) Having estab-
lished, prima tecie, a legal title to the pr^n.
ises in question, the plaintiffs were presumed
to have been possessed of the saaie within
tbe time required 1^ law. (2) Section 100 of
the Code of Civil Procedure of 1002 has no
application to this case: (a) Because not
enacted for 40 years; <b) because enacted
after the canse of action accrued, if the
view taken by attorneys for defendant Is
correct (8) Section 98 of the Code of Civil
Procedure of 19(^ has no application In this
suit as the same was enacted after the cause
of action arose, If the contention of defend-
aat be correct (4) Section 101 of the Code
of cavil Procedure of 1870 is not apiriloable
to this ease because a prima fhcAe legal titte
having been established, the plalatlffB are
presumed to have been possessed within the ,
time then required by law, to wit 20 yearsi '
(6) The statutes of limitation have no ap-
plleatloD tn this case, as no right of actlui
ever accrued to the plaintiffs, or their antse-
tor, untU tbe death of F. L. Stokes. Tbe
statutes of limltatlcn do not aivly in this
«ase, as the ancestor of tbe plaintiffs was
laboring under tbe marital disability Impos-
ed by law, and tfte law eaniMH; at the some
tine, iwaacilbe a UudtatloB, to rm during,
742
78 SOUTHBASTIDBN BIOrOBKIIB
Um contlnaatlon of the dlsablUt? the law
had Imposed, aa ttala would be deprivliig a
person of property without due process of
law. (7) No adverse holding was or could
tM shown, as the plalnUfCs* ancestor had no
right to the possession, and therefore no
mere holding of possession could be adverse
to her rights which did not Include posses-
sion. <8) Section 101 of the Code of GItU
Procedure of 1902 raises the presumption of
possession within the time required by law,
and this alone would require the trial judge
to send the case to the jury. (0) The evi-
dence Introduced by the plalntl£Fs was in-
sufficient, under the law, to sustain a ver-
dict for them, and said evidence did make
ont a prima ftide case."
li. D. Jennings, of Snmter, and Mcl^eod &
Dennis, of Blshopville, for appellants. Tboa
H. Tatum, of Blshopville, and J. B. Mc-
Lauchlin, of Columbia, for respondent
WATTS, J. This was an action for the
recovery of real property heard before Spe-
cial Judge Hon. Henry Mnllins, and a jury,
at the spring term of the court of common
pleas for Lee count; in 1910. At the close
of the evidence In the case, upon motion of
defendant's attorneys, his honor granted a
nonsuit The plaintiffs gave notice of inten-
tion to appeal from this order, but before
they, perfected their appeal. Judge Mnlllns
signed an order, setting aside his order of
nonsuit, and appeal was taken from this
laat order, and that order was reversed in
an opinion recently filed by this court <94
& a IS, 77 S. B. 712), with leave to the
Iflalntifla (appellants here) to perfect their
appeal from the order granting the nonsuit
The order of nonsuit appealed from Is as
follows: "Upon the dose of ptalntlftji' tee-
tImoii7 in the above-stated case, the defend-
ant mond for nonsuit, .upon the various
gvonndB stated in the record. It aj^earlng
to ms oatlafadlon that the plalntiffB have
failed to show that they* w uy one of them,
tb^ uioestor^ predecessora, or yrantaca,
were sdsed m posseased of the premises in
qnestlon, ta any part of mxSt pruniaea, with-
in 10 years, or within 20 years, or within 40
yean, before the oonunencement of this ae-
tion, and it farther appearing that the evi-
dence, as offered by the plainflff^ la Insuffl-
dent to anataln a verdict for them, and ti^
tally fails to make ont their case, it is or-
dered that the nonsait In said case be, and
la hereby, granted." The appellants by their
exceptions (nine in number, whidi should be
set out In the report of the case) question
the correctness of this holding by hia honor.
A careful examination of the evidence in the
case forcea us to the conclusion that his
honor was in error in not submitting the
case to the Jury to pass upon the evidence
in the casfc Ttie order of nonsuit was based
mainly uptm the statute of limitations and
adverse possession. There was a scintilla of
evidence to go to the jury on these questions,
aa well as that of common source of title.
[1-3] Chief Justice Mclver, in Thomas v.
Dempsey, 63 S. a 218, 31 S. B. 232, says:
"The rule is well settled that where the
question la whether a party has acquired
title to real estate by adverse possession for
a period of 10 years, such possession must be
clearly proved and shown." Holmes v. Bo-
chell. 2 Bay, 487; Harrington v. Wilklna.
2 MeCord, where it is said the charac-
ter of possession is a question for the jury ;
Cantey v. Piatt, 2 McCord, 260; Porter t.
Kenny, 1 McCord, 208; Hill v. Saundersi, 6
Blch. 62; Abel v. Hutteo, 8 Rich. 42. T^e
law la so well settled that quotation of au-
thority is unnecessary, that where there Is
any competent relevent testimony to go to
the Jury, a nonsuit cannot be granted. We
cannot escape the conclusion that there was
evidence to go to the jury upon all of the
issues that the judge based bis order for
nonsuit, and that he was in enor, and order
appealed from should be reversed.
Judgment reversed.
6ABT, a J., ana HYDSICS and FBA8-
EB, JJ., oonenr.
(K 8. a !••)
BETHBA V. WESTERN UNION TBLB-
GRAPH CO.
(Supreme Court of South GaroUna. Joly 2,
1£!1S.)
Telsgeaphs and Telbfhonbs (I 66*)— Dk-
uly in Tkansuibsion or Mbssages — Ac-
tions—Evidencb — WlLLFULNKSS.
In an action for damages for a telegraph
company's delay in the trauBmisBion of a death
message, evidence held to show reckless dis-
regard of plaintiff's rights.
[Ed. Note.— For other case% see Tel^rapha
and Telephwies, Gent Dig. U w-63 ; Da& Dim.
S 66.*]
Appeal from Common Pleas Circuit Court
of Dillon County; John S. Wilson, Judge;
Action by Q. F. Bethea against the West-
em TJnlon Tel^raph Company. From a
judgment fw plaintiff dafwdant aniealB.
Affirmed.
Qeo. H. Fearons, of New Tork CUj, mu-
cox A WUlcoz and J. & Mitchell, aU of
Florence, L. W. McLemore^ of Sumter, and
Henry Buck, ot MaricHi, for app^nt
Townseuid, Rogers ft McLanrln, ol DlUoo,
for reqpondent
OABT, 0. J. Thia la an action for dam-
ages, alleged to have been sustained by the
plaintift through the wrongful acts of the
defendant in falling to deliver th^ following
telegram within the time required by law:
"Florence, S. C, August 27, 1010. Weeley
Bethea. Dillon, S. C: I will be in with
ette esMS MS nm* tapia and ■Mtloa NUHBBB In DM. Dl» * Dig. KqnJba Sfrt^^
S.O}
BBTHEA WS8TBRN UlTION TJCLBaBAFS 00.
748:
coipM tD-nlfbt O. F. Betbea." The carpee
mentioned In Uie telegram was that of EOa
Bethea, slater of the plaintiff and daughter
of Wesley Betbea, to whom the message was
sent.
^e fourth and sixth paragraphs of the
complaint are as follows:
"IV. That plaintiff Is Informed and be-
Ueves that the said message was not receiv-
ed at DlUon until 9:45 o'clock a. m. on the
28th day of August, 1910, and was not de-
livered to the addressee, Wesley Bethea, un-
til the morning of the 29th day of August,
1910, although the said Weeley Bethea lived
within a few hundred yards of the DlUon
office of the said defendant, and was In and
about his home contlQuously, from the time
said message was delivered to the defendant
at Florence on the afternoon of the 27th of
August, 1910, to the time when same was
delivered to him In the morning of the 29th
day of August, 1910."
"TI. That the failure of the defradant to
transmit and deliver said message promptly,
as It was In duty bound to do, was willful,
wanton, and gross negligence of a plain duty,
which It owed to this plaintiff, and by reason
of the willful, wanton, and gross negligence
and failure of the defendant to transmit and
deliver said message no one was at the depot
to meet the mortal remains of his said sister
with conveyances, and carry them to the
home of his father, and the corpse of his said
sister was obliged to lie unprotected and un-
attended at the depot In DUlim for a con-
siderable length of time."
The Jnry rendered a verdict In favor of
the plaintiff for |650, and the defendant ap-
pealed.
The appellant's attorneys In Uielr argu-
ment say: "The principal question present-
ed by the appeal Is whether the presiding
Judge erred In refusing to direct a verdict in
fiivor of the defendant at the close of all
the evidence, on the ground that there was
no evidence sufficient to take the Issue of
wlllfnlness to the jury." We will proceed to
the consideration of that question.
H. W. Selg, the telegraiA operator at
Bloraic^ to whom the message was ddlvered
for tranamlBBlon, thus teetlfled: "Q. Do yon
recall any conversation that took place be-
tweoi yoa and the sender of that message?
A. Tes, sir; I told him there would be some
delay, on account I was th»e by myself.
The manager was called out of town on ac-
count of his wife being sick, and It was piled
up around there. Q. You told him that, at
the time you accepted the message? A. Tes,
sir; I told him I didn't know how much It
would be. Q. Did you make an effort to
send It to DlUgn that night? A. Yes, sir.
Q. Why couldn't you send It? A. I was busy
on other wires around there, and I didn't
have very much time to get in a call. The
wire, I think, from Wilmington to Augasta,
It was always piled uii jjiretty near» and I
didn't have the time I should have had to
call him, on account of the manage being
out of town. Q. Was the DlUon office on
that wire you speak of? A. Tes. sir. Q.
When yon caUed him, you were not able to
get him? A. No, sir; I didn't have very
mu<A time to call him ; five or Ax times each
time I called. Q. At any time yon attempt-
ed to call him, did you find him busy, or
the wire busy otherwise? A. I found him
busy once, and the wire was busy otherwise.
Q. Are there not a number of offices on tbat
same wire? A. Tes, sir."
Cross-examination: "Q. Mr. Seig, yon saw
by the terms of this message that it was a
death message? A. Tee, sir. Q. Did you
make any special effort to deUver that mes-
sage? A. VfQ\l, 1 made all I could under
the circumstances. Q. And it was some time
the next day before you were able to get
that message through? A. Yes, sir; on ac-
count of my being there by myself. Q. Do
you or not, as a usual rule, try to give death
messages preference to others? A. They
are very common. Q. So yon don't make
s[>ecial effort? A. Tes, sir; they are sup-
posed to go first They have preference over
the other buslnesa Q. This one didn't? A.
We can't give them aU preference. Q. How
many death messages did you have that
day? That afternoon from that time untU
this was transmitted? A. I don't think I
had nona Q. None at all? A. I don't think
so. Q. And still they are very common? A.
Tes, air. Q. Ton say the business on that
wire was yery much congested? A. Tes, air.
Q. As a matter of fact, Mr. Selg, if you had
made special effort, could you have gott^
tbat message through here before that time
the next day? A. No, air; If I had let aU
the otiier business go, and then there would
be euits for other business (interrupted) —
Q. Dont tell that If you had made q;»eclal
effort toi get tiiat message through, conldn't
you have gotten it here before that time the
next day? A. No^ sir. Q. Not even If yoa
let It take prefecenco over the other bnal-
ness? A. No, sir. Q. Do you mean to say,
Mr. as a matter of fact tf 7on bad
taken this message and given it preference
to any other traslneas, tbat yoa could not
have got it here before tbat time? A. The
oSBem at Wilmington and Augusta, they are
not going to allow yoa to ke^ the wires all
day, on account tiiey are piled up. Q. Was
iMete any other message sent fnnn Slwence
to Dillon? A. No, sir; that was tbe mly
<me 8»t Q. Do you mean to say that yon
told tills plaintiff here, Oarfl^ Betbea, that
yon couldn't get that message through right
away? A. Tes, sir. Q. Ton remember that?
A. Tes, sir; and told the manager the same
thing when he came to town, and I answered
the statement on the papers."
This testimony tends to show upon its face
that there was a reckless disregard of the
plaintiff's rights. In fa^|f,,^by*Wrtbgle
r4A' n 800TEBASISBN BBFOBTBB <&&
menftf* tnm Wkmaet to DiHoo. a dtotaiioe
of about 40 miles, when the operator bad
more than two bonra within wbich to send
it before the offlee at Dillon dosed, and Ikll-
ed dmidy becanae there were otter messages
to be sent bat over irtildi death messages
were entitled to precedmce In transmission.
The Jary evidently did not beliere this ■wit-
nesB.
Judgment aiBmied.
HTimiaC, WATTS, and FBASBB, JJ^
concnzv
(K& aUB)
KNIGHT T. KNIGHT,
(Snprerae Court oi Sonth OaroUoA. Jnne SO,
1913.)
L Appeax. Ain» BBBOB (I 866*)— Bbtiow —
Quaenoifs ow Fact.
In passing mi the refasal of the drctiit
Jad(e to grant a nonsuit, the Supreme Goart
may consider all the testimony in ttie case.
[Ed. Note.— Fw other cases, see Appeal and
gTff^ Geat Dig. H 8407-3475; Dec Dig. f
X Tbiat J 1^*) — QuxsnoK or Iiaw ob
Facts— iNraasNcu fbou ETiDEnci.
Where there Is more than one inference
dedncibie from the eridence in the case, it is
error for the trial court to direct a verdict.
Old. Note.— For other cases, toe Trial, G«it.
dITi 8S7; Dec Dig. 1 142>]
8. Etxcbnob (S 273*)— Seut-Sbbtirq Dkcla-
batioks— 0wnkb8hip of land.
Declarations in favor of one's own title
to lands, made in the atisence of one whose
title is thereby disparaged, were inadmissible
in support of such title.
[Ed. Note.— For other cases, see Evidence,
Gent Dig. U 1108-1120; Dec Dig. » 273.*]
Appeal from Common Pieaa Circuit Court
of Laorens County; S. W. Memmlnger,
Jndge.
Action by William B. Knight against John
L. Knight Judgment for plaintiff and de-
fendant appeals. Bevexsed, and a new trial
granted.
Biehey A Bichey, ct Lanr^u, for appel-
limt SinqwoDf Co(q>er A Babb, of Laurens,
tor respondoit
WATTS, J. This was an action for the
recovery of real estate by respondent against
the appellant, tried btfore his honor. Judge
Memminger, ami a Jury, at the fall term of
court for Laurens county, 1912, and resulted
In a verdict in favor of plalntlfl, respondent
here. At the close of plalntifrs testimony,
tba defendant u-ade a motion for nonsuit
which was refused at the close of all the tes-
timony In that case. Defendant moved that
a verdict be directed for defendant, which
was refused, and after verdict a moOon for
new trial was mads and refused. After m-
trr of Judgment, appellant appeals, and asks
ler^sal <» dght ezcqpttons, allegiug error
on the part of his honor In admitting, over
obiectlon; Incompetent teettasMiy od tke part
of respmideDt, in not granttnc a nonsuit,
dlreeting a verdlet tor the a^llant; and
challenging the correctness of his honM's
law, as laid down to the jury.
H, t] As to whether he should han gran^
ed a nonsuit, or directed a verdict, as asked
tot, in tBYot of tile aivellant. It is anfll-
ci«Qt to say that under the testtUMmy admit-
ted by the trial Judge Oun was suffldoit
testimony to carry the case to the Jury, and
In posring on refusal at drcuit Judge to
grant a nonsuit this court may consider all
the testimony to the rsHt, mtmi tberv bdng
more than one Inference dedndble from the
evidence in the case it would have been
error to direct a verdict Dwny r. Wil-
liams. 91 S. a 186. 74 & B. 381; Davis v.
Beynolds, 91 S. a 440^ 74 S. E. 827.
The a]n>eliant's second exception is : "Hist
his honor erred to admitting to evldencs
over the objecdcm ctf the defendant as much
of the testimony of platotUTs witness, Uza.
Eddie Ballemttoe, as related to the declara-
tlons of B. E. flight, that the land In dis-
pute was his ; that he let the rent go for the
taxes; that the land was all he had ; and he
intended for his two boys to have it The
said B. B. Knight being then dead, the tee-
timooy was incompetent as hearsay and as
self-serving declaration of B. E. Knight, and
declarations in favor of his own title, and
^ould not have been admitted to support of
his own title to said land."
The third exception is: "That his honor
erred In admitting In evidence, over the ob-
jection of defendant, aa much of the testi-
mony of plaintiff's witness, Mrs. Laura
Knight, as related to declarations of B. E.
Knight, that the land was his, and he int«id-
ed to do as he pleased with it; that he offer-
ed the land for sale once to Mrs. Alewlne;
that B. E. Knight and his wife allowed Mrs.
Alewise over the place, and said that if ho
sold to Mrs. Alewine he would move John L.
Knight down on his place, near hia home.
The said B. B. Knight being then dead, the
said testimony was incompetent, hearsay and
self-serving de<daration of B. E. Knight, and
declarations to favor of his own title, and
should not have been admitted to support of
his own title to said land."
[3] We are of the opinion that these ex-
ceptions should be sustained. So much of
testimony of Mrs. Lou Knight, which de-
tolled the conversations of B. E. Knight and
John L. Knight, was competent; but the dec-
larations of B. E. Knight, as to the owner-
ship of the land to dispute^ made In the ab-
sence of J<^ L Knight, were clearly Incom-
petent, and as to the testimony of Mrs. Bal-
lendne there la no claim that John L. Knight
waa present at all, at any time the tUxLlm at
ownership or declarations In reference there-
to were made by B. B. Knl^t This testi-
mony was admitted over the objection of ap-
•For oUmt aasss stessm* topic aad ssstlon NDIIBBR la De*. Mg. * A*. Dtg.
WTIilE T. jEFFBBaON BTANDABl) 'IJFE INS. 00.
pellanfs counsel. It Is trae be croas-cxBm-
Ined the witness, but that was subject to
his objection to the admissibility of her testi-
mony, wbicb objections the conrt ovemiled,
and admitting It, and allowing these dedara-
tlons to go to the Jury was prejudicial to the
appellant In Wlngo t. Caldwell, 86 S. O.
698,1 IS S. B. 882, the court says: "There
can be no doubt of the correctness of appel-
lant's claim that our decisions fully sustain
the doctrine that declarations In favor of
one's own title are not adrntsBlble In support
of such title."
In Ellen t. EUen, 18 S. G. 494, thla court
held that the circuit Judge was In error In
"admitting the declarations of David Ellen
in support of his title as independent testi-
mony In reply to his declarations In dlBpar-
ag«nent thereof introduced by the defend-
ant If these dedaratlons had been part of
the same conversation * * * or had been
explanatory of some special act then tbey
might have been admissible as part of the
MS gests, but the declarations of a part; In-
terested can never, per se, be admitted as
eridwoe of his right" This error on the
part of circuit Judge will necessitate a new
trial, and It is unnecessary to consider the
other exceptions undisposed of.
Jjudgmott leversetf. and a new ti^al
Ranted.
OART, C, J., and HXDBIGK and TEA-
B&R, 33^ coDCor.
(» s. c. im
WTLIH T. JEFFERSON STANDAED MFE
INS. CO.
(Snyrcme Oonrt of South Carolina. July 0,
1913.)
1. InSDKANCB (I 887*)— FOBmrUBB— NONPAT-
UENT OF PRKUIUUS.
Where a life insurance company throagh its
duly authorised agents a few dayi before an
aunua] premiom became due wrote insured call-
Ids hia attention to aach premium and stating
that the company granted 30 days extension
In which to pay It, and insured died within
andh 80 days, the policy was not foisted and
tbe oompany was liable thereon.
IKA. Note.— For other caaea, see Inanrancb
Cent Dig. % 1025 ; Dec. Dig. | 887.«3
2. INSUBAMCE (S 350*) — FoaraiTtTBK — NOIT-
7AT11ENT OF PBEUIUUS.
The statute of North Carolina extending
the time of foifeitnre of life inauranoe policies
in certain cases, by its ezpresa provisiona,
does not apply to a iwlicy of term insurance for
one year.
[Ed. Note.— For other caaea, see Insorance,
Gent Dig. H 892, 898; Dec. Dig. | 850.*]
Appeal tzum Common piaaa Circuit Court
of York Couatr; K. C Watts. Judge.
Action by Ida M. Wylie against the Jef-
ferson Staqdord. life lumrance Company.
■Reported in full In the Southeastern Reporter;
reported »t b nwttonmdUm declalon wltkouC 'Opln-
lo9 ln» S. c m. f
From a Judgment for defendaot plalntUt ap-
peals. Reversed and remanded.
J. 8. Brice and Wltberspoon & Ameers,
all of ZorkvUle, for appelant WUson &
Wilson, of BockbUl, for respondent
OART, C 3. [1] This is an action on an
ordinary annual premium policy, issued on
the 11th day of October, 1905, by the Caro-
lina Mutual life Insurance Company, a do^
mestlc corporation, on the life of plaintieTs
husband, payable at his death to her. Pay*
ment of the policy was subsequently assumed
by tbe Southern Ufe Insurance Company,
and then by the defendant JeflCerson Btandp
ard Life Insurance Company, corporatlona
of North Carolina.
The original policy contained flie iwovlslon
that: "In caae the Insured shall at any ttma
fall to pay his dues and premiums In ad;
vance, in accordance with hU policy, as tbere^
in provided for, liis policy shall therdlv
laps^ and become null and Tddf and hava
no binding force agalnat the association.**
The insured died on the 10th day of No*
vember, 1909, having paid all annual ^eml-
urns, except the one which waa due on the
lltb day of October, 1909.
On the 8th day of October, 1909, the Caro-
lina Mutual Life Insnranoe Company, through
8. U MiUer A Sons, Its duly authoriaed
agents, wrote the following lettcv to the In-
sured: ."We beg to call your attention to
the prendnm of $16.00 on your policy 1b thla
company, whldi will be due on Octobw lltl^
but the company grant thirty di^s extnishm
In which to pay tbe same, vrtth Intereat at S
per cent Hoping to hear ttom joa with xfr
mlttanoe we remidn. • • •
At tlie dose of the plalntUTs teatlmonyi
tbe defendant's attorneys made a motion for
nonsuit upon wbldi his honor the presiding
Judge ruled as follows: **I would like very
much not to grant a nonsuit in this case,
but under the law I dont see bow I can do
otherwise. This premium was dae on the
11th day of October, and he had 80 days
from that time to pay it in, and ha died
within that time. He should have paid it
vrlthln that time, or It ought to have be^
tendered, somebody ought to have tendered
It from him. He had 30 days from the lltb
day of October to pay that in. Sickness is
no excuse un^er that authority dted by Mr.
Wilson, and Mr. Wylle had until midnight
on the night he died, to have paid this pre^
mium, and havii^ &Ued to do it it is gone
by the board, according to my noUoo.**
The effect of this ruling was to deprive the
{flalntiff of the extension which was grapted
to the Insured by the company. As the In-
sured died within the* time extended- by the
company for payment of the premium, the
policy - was In as full force and effect as
it ' was at any time before tbe Uth. day of
October, lOOOk .whea the pranlwn fell doe.
.•ror otiMf 0M«i Ma aune t^ an4 swtlofi NUUBBR In idea. Die. ft Aob Qlit KMr-Vji^^m^H^
74M
78 SOUTHKASTKEN BBFOBTBB
Tbe liunind was entitled to the fall SO (lajtP
exten^a, and, tbei^ore, at bla death the
policy had not been forfeited. If, hovfever,
be had died after the 30 days had expired,
without payment of the premlnm, the policy
woald have been forfeited.
[2] His honor the presiding Judge also
ruled that the statute of North Carolina ex-
tending the time of forfeiture In certain
cases was not applicable to this caae. The
policy In question Is what Is known as "a
term Insurance for one year," which kind
of insurance Is expressly excepted from the
provisions of the North Carolina statute.
It Is the Judgment of this court that tbe
Judgment of the dreult court be reversed,
and the case remanded to that conrt for new
trial.
FRASER, J., concurs. HYDBIGK, J., con-
cun In the result. WATTS, J., disqualified.
rn w. Vs. my
OLIKBB y. WILUAUSBUBGH CITZ FIRE
INS. CO.
(Supreme Conrt of Appeala of Wegt Virginia.
May 6, 1913. Rehearing Denied Jnne 30,
1918.)
(8vllabu9 by the Court.)
1. EtIDEHCK <{ 441*)— INBUBANCS (S 285*)—
Wabbahties Aoaihst Ghattbi. Mobtqaoes
— Pabol Etidbncb.
It the property iDSured by a policy be
personal property, and at tbe time of the con-
tract no written application ia required, and
none made, and no information or notice is
given the insurer or its agent, and there wai
BO Inqniry of or representation by -the insnred
respecting the existence or nonexlgtence of
chattel mortgages or deeds of trust on the prop-
erty, and the insurer at or before tbe deliv-
ery of the policy has had no information con-
cerning the same, and the insured accepts tne
policy, with the affirmative warranties therein
asainst such incumbrances, which by the terms
of the policy will render it void, ttie contract
wQl be enforced according to its terms, unless
such warranties be waived, as provided there-
in, and oral evidence of prior or contemponuie-
ous oral agreements will not be received to
vary or contradict the terms of the policy.
[Ed. Note.— For other cases, see Evidence,
Cent Dig. U 1719. 1723-1763. 1765-1845,
2030-2047; iDea Dig. I 441;* Insurance,
Cent Dig. U 636-601; Dee. Dig. i 283.*]
2. IirstmAifci ff 283*)— Wabbahties Against
OBAtrn. HoBTOAOBB— Bbkaoh— What Ooir-
btitutbs.
Tboagh an existing chattel mortgage or
deed of trust be void, as to creditors, being
good as between tbe parties, It will constitute
a breach of the warranty In such policy against
incumbrances, voiding it unless waived by the
insurer as provided in the policy.
[Ed. Note.— For other cases, see Insurance,
Cent Dig. H 63^-661 ; De&Dig. S 283.^^
Error to Circuit Court, Marlon County.
Action by Bebecca B. Ollker against the
Wllliamsbni^h City Fire Insurance Com-
pany. Judgment for plaintiff and defendant
brings error. Beversed and rendnred.
Davis A Davis and EL B. Templeman, both
of Clark^urg, for plalntitF in error. W. 8.
Meredith, M. M. Neely, and R. J. Abbatlcchlo,
all of Fairmont, for defendant In error.
MIIJ^ER, J. In an action on a policy of
fire insurance the court below, on demurrer
to tbe evidence by defendant pronounced
Judgment for plaintiff, for f2,138.67, the dam-
ages found by the Jury, with interest and
costs.
Among the questions presented are those
touching, alleged want of notice of tbe loss
In writing by the assured to the defendant
after tbe fire; allied waiver thereof by de-
fendant; alleged failure to furnish groper
proofs of the loss as required by the terms
of tbe policy; error in admitting and reject-
ing certain evidence; but the ruling question,
and the one mainly relied on, and covered
by defendant's specIficatlonB of defense, and
to which tbe decision of the case niay be
properly narrowed. Is, was there a breach
by plaintifr of any of tbe afflrmatlve or prom-
issory warranties contained In the policy,
depriving her of right of recovery thereon?
If there was, that will be decisive of the
case and no other question Is Airly pre-
sented.
The policy sued on, dated Angnst 6, 1907,
was originally issued to Ollker * Epstein, a
firm composed of plaintiff, Mrs. B. R Ollker,
and Andrew J. Epstein, on a atodc of mer-
chandise, at Fairmont, West Virginia. On
May 20, 1008, ttda poUey, d^endant in-
dorsemoit thereon consentliig thereto, was
assigned by said firm to plaintiff. The sale
and transfer hj OWax A latprt^ to Mrs.
Ollker of the stock of goods covered bj the
policy occurred on January 1, 1908, and on
January 15, following, Mrs. OUkOT and her
husband executed a deed of trust thereon
to Martin, trustee, to secure Epstein's wife
payment ot a note of Mrs. Ollker, for
000.00.
Tbe proTlslons of the policy, the standard
itorm prescribed by sections 68 and 69, chap-
ter 34, Code SuppL 1909, relied on in defense,
are as follows: "This entire policy, unless
otherwise provided by agreement indorsed
hereon or added hereto, shall he void • • •
if tbe Interest of the Insured be other than
unconditional and sole ownership; or if the
subject of insurance be personal property
and be or become Incumbered by a chattel
mortgage; • * • or if any change, other
than by the death of the insured, take place
In the Interest, title or possession of the sub-
ject of Insurance (except change of occupants
without increase of hazard) whether by le-
gal process or Judgment or by voluntary act
of the insured. • • • •»
The breaches assigned are as follows: "De-
fendant states that the Interest of the in-
sured In the subject of the Insurance was
other ttian nncimdltloiial and sole ownership;
•Tor ettar easM as* wm* tspta and MeUoa mJHBIR in D«e. Dig, * Am. DUt.m0i^9.
OZilKEB T. WIZXIAlfSBURaR OStY FIBB INS. OOl
747
that the subject of insaraneQ waa pwsonal
property, and tbat tbe same waa and became
Incumbered by a deed of tmat or chattel
mortgagei ezecated by tbe said B. B. OUko',
by tbe name of Bebecca B. Ollker and David
B. Ollker, her bnsband, to F. T. Mardn,
Trustee, on tbe 15tb day of January, 1908,
to secvre nnto Ida Epstein, or order* tbe sum
of Two Thonsand Dollars. Whtdi said deed
of trust was admitted to record In tiie Office
of tbe Clerk of tbe Comity Court of Marlon
County, West Virginia, on the 20th day of
January, 1908, In Trust Deed Book No. 24,
page 76. Tbat a change otber than by the
death of tbe Insured, took place In the Inter-
est and title to the subject of Insurance, by
Toluntary act of tbe Insured. By reason of
which and according to tbe provisions of
the policy sued upon, said policy was and
became void, and of no effect, nothing con-
trary to the provisions of the said policy hav-
ing been provided by agreement endorsed
thereon, or added thereto." It Is proven that
the policy sued on was the renewal of a policy
Issued August 6, 1906, at which time the in-
terest of Andrew J. Epstein In tbe property
was also covered by a deed of trust In favor
of his wife, Ida J. Bpsteln, and which con-
tinued nnreleased until the execution of the
new tmst by plaintiff on January 16, IOCS.
On the trial some attempt was made to
sustain the defense that tbe Insured's Inter-
est In tbe subject of Insurance was other
than the unconditional and sole ownership.
Some evidence tended to show that while
the business was nominally In her name,
the property In fact belonged to her husband.
We think this defense failed of proof. At
all events, on demurrer to the evidence, we
cannot say the evidence was sufficient, If
good, to sustain tbe defense.
As to the defense of prior and subsequent
Incumbrances by deeds of trust, plaintiff
pleads: iX) Waiver by defendant; (2) that
the deed of trust of January 15, 1008, was
void POT se, as. against creditors, and constl*
toted no Uen or Incumbrance on the property
insured, wherefore no breacb; and <8) that
by defendant's ctmsent in writing to tbe
assignment of the polity 1^ OUker A Epstein
to Mra (Niker, a new contract of Insnranoe
was consummated, tbe eqidvalent of a new
policy then Issued to her, the warrantlee
against Incumbrances then existing being
tborebr converted Into affirmative warran-
ties, all waived 1^ tftUnre of defendant to
require a writtm application, or to otherwise
Inquire concerning tbe same, all upon the-
roles and prindides oninclated in W<Apwt.v.
Northern Assor. Co.. 44 W. Va. 734, 2» & D.
1024, Cleavenger v. Franklin Fire Ins. Co.,
47 W. Ya. 690, 85 S. B. 998, and Medley t.
German Alliance Ins. Co., 66 W. Va. 342, 47
S. E. 101, 2 Ann. Cas. 99.
[1] Without undertaking to decide ttie ex-
act quration, whether consent in writing by
an Insorance company to «n assignment of
one of' Its pollde* ambimti to a xmr ud
independoit contract with ISie assignee, a
proposition seemingly well fortified by the
authorities dted counsel, particularly
when tbe assignee la a stranger to the poUi?
assigned, we may, for the purposes of this
case, accept the proposition as true, and
dispose of the case on tbat theory, for we
have concluded that the broad proposition
that, by omitting to take a written appUca^
tlon for a policy of Insurance, or make In-
quiry, an insurance company thereby waives
breaches of warranties against incumbrances,
supposed to be affirmed by tbe cases dted. Is
opposed to correct l^al prindples, as well as
to the great wei^t of authority, and tbat so
far as the same finds support in those cases
they ought to be modified or limited so as to
conform to the rules and principles governing
contracts generally, Including Insurance con*
traeta
Having reached this conclusion It Is im-
material whether we treat the breach of the
warranty against Incumbrances, as affirma-
tive, that Is against existing Incumbrances,
or as promissory, against breaches occurring
subsequently to the date of tbe policy, for
the same rule Is applicable, we think, to
both forms of warranty, so far as the ques-
tion of waiver or estoppel Is concerned. Th&t
rule, sustained by tbe weight of authority
and reason. Is tbat, In tbe absence of fraud
or actual knowledge on the part of the Ih-
sorer or Its agent, at tbe time, of the facts
constituting the breach, waiver can only be
effected In the manner provided In tbe pol-
icy.
The second point of the syllabus of Wol-
pert V. Northern Assnr. Co., supra, la: "If an
Insurance company elects to issue its policy
of insurance against a loss by fire without
any r^lar application, or without any rep-
resentation In regard to the title to the prop-
erty to be Insured, It cannot complain, aftet
a loss has occurred, that the interest of the
Insured was not correctly stated In the poli-
cy, or that an exlstlug Incnmbraiun was not
disclosed.**
The broad proposition affirmed In this
point then found support in Insurance Go. v.
Bodefer. 92 Ya. 747. 24 8. Bi 89S, 68 Aql St
Bep. 840. the only authority dted in support
thereof, and which has since then been over-
ruled and repudiated as contrary to sound
prindples, by the Virginia court, In West-
chester Fire Ins. Co. v. Ocean View Co., 108
Ya. 6BS, 06 S. BL 684; '^rgtnla Fire A Marine
Ina Co. T. case Threshing Machine Co., 107
Va. 688. 60 S. B. 380, 122 Am. St Bep. 8TS.
The proposition may also find some sup-
port in our case of Gleavei^r v. lYanklln
Fire Ins. Co., and It Is claimed In Medley v.
German Alliance Ins. Co., supra; but tbe
latter case does not support the proposition.
That case Involved the knowledge of tbe
agent of the true state of ihe title of the
insured, communicated to him
Digitized by
748
TB SOUTHHASTBBN BBPOBTUB
policy waa taoed, and frand or mistake on
bla part to insert It la the policy, estopping
defendant from setting up a different state
of the title as a defense to the action on the
policy, in the absence of notice to the Insured,
prior or contemporaneously, of want of au-
thority In the agent to walre the condition of
tha policy. Moreover, In the Wolpert Case,
also, while no written application was re-
quired, it Is ImpUed at least, from one or
more of the instructions to the Jury, that
the agent Issuing the policy was informed
and had actual knowledge of the existing
Incumbrance, and with such knowledge is-
sued the policy, without indorsing waiver of
the breach, an act of bad faith, if not fraud,
<m his part, bringing the case perhajw within
tbe rule of the Medley Case; and as conosel
argn^ this presmted a aoesUon, not of
waiver by Implicatlott, but of express waiver
or. estoppel, wherefore the clear legal qnea-
tlim which ifl' pxttWBted bera majr not have
been presented in that caae,
Tbe Gleavenger Case also Involvea a ques-
tion of bad faith on tbe part of the agent
Althongb A written SH^Ucatlon was required,
and mt addrtssed to one company, after be-
ing signed. It was changed wittaovt anthority
of the assured to another company whose
poUcgr was Issned. The oonrt held the policy
so Issued waa u If npon no written aM>lica-
tlon, and that the assured was not bound by
tha affirmative warranties In the application
and policy. While fraud was not charged,
^nd seemingly the case was not made to turn
on tiliat question, nevertbelesB It had that
donent In it, not present In the case at bar.
Tbe exact point decided in tbe Medley Case,
and distinguishing It from this case and
covered by point 2 of tbe syllabus, was:
"When an Insurance agent, entrusted with
blank polidea and authorized to fill op, coun-
tersign and deliver' them, U correctly in-
formed, by the person whose property be nn-
dertakes to Insure, at to the state of the title
and other facts material to and affecting the
inception of the contract, so far as inquiry Is
made respecting them, and takes no written
application for the insurance, and then issues
a policy embodying, as warranties therein,
facts different from those vohich were ffiven
to. him by the insured, tbe company is estop-
ped from defending a claim for loss under
the polity on the ground of such false re-
citals, unless it Is shown that the insured
has prior or contemporaneous notice of want
of authority In the agent to waive oondl-
ttons." We call apecM attention to the
words Italldsed.
- In o«r case of Manpln v. iDsuranoa Go.,
58 W. Va. 657, 4S S. B. 1003, tlie general rule
of evidrace^ ap^AeaUe to oentracts general-
\St was In point four of the ayllabas apidled»
br a dlvlOed court, wltb all its foroe^ to la-
aorance oonttacta, as follows: **It la a fim-
damentiU rule in oourts of law and equity
that MSl evidence of. a prior or contempo-
raneous oral agreement or conversation can
not be received to vary or contradict a valid
written contract, unless In case of fraud or
mutual mistake. This rule ia applied to
policies of flre Insurance." This case involved
a breach of the warranty contained In the
so called "Iron safe" clause, a promissory
warranty, which it was claimed had been sub-
sequently waived by tbe oral agreement of
defendant's agent, and not evldraced by any
indorsement on the policy. Judge Poffen-
barger, who wrote the opinion in the Medley
Case, dissented, for practically tbe same rea-
sons by which the majority through him
reached Its conclusion in that case. The rule
of the Maupln Case, modifying, if not tatiltly
orerrullng the Wolpert and Cleavenger Cases,
pro tanto, was predicated mainly on North-
ern Assurance Co. v. Qrand View Building
Association, 183 U. S. 308, 22 Sap. Ct 133.
46 L. Ed. 213, a decision by a divided court,
and which is criticised and distinguished by
Judge Poffenbarger, wltb reference to the de-
cisions of other states, refusing to follow It,
in Its entirety, In bla opinion in the Medley
Case, and In his dissenting opinion In the
Manpln CSse. It is wholly unnecessary in
this opinion to i^aln review and reconsider
tbe many conflicting decisions of the courts
on this Important subject. It suffices to say
that the law of tills state now is that af-
firmed In the Maupln Case, limited or modi-
fied by the decision In the Medley Case, the
words italldsed In the point of the sylla-
bus of tbe latter case, above quoted, showing
the limitation or modification Intoided and
distinguishing the one from the other.
As applicable to the case at bar, and where
the property Insured Is personal pn^>erty»
that rule, briefly stated. Is that If at the time
of the contract for insurance, no written ap-
plication is required, and none taken, and no
information or notice is given the Immrer or
Its agent, and tbere was no Inquiry of or
repreaeatatlon made by the insured, respect-
ing the existence or nonexlBtence of efaattd
mortgages or deeds of trust on the imwerty,
and the Insurer at or before the delivery of
the policy has bad' no knowledge or informa-
tion concerning the same, and the insured ac-
cepts ttie ptdlcy, witli tlie afllrmatlve mir-
rantles therein against-- such tncnmbrancea,
which by the terms of tiie poUcy will rmder
It rtAA, the contract will be enforced accord-
ing to Its twms, unless the warranties be
waived, as provided therein, and oral evi-
dence of prior or contemporaneous oral agree-
ments will not be reeelred to vary <v om-
tzadlct the turns ftf the ptdlegr.
Asmming, on tiie trial, that defradant's
consent to the assignment of the policy to
plaintiff constituted a new and independent
cimtract freed of all vices or Infirmities of
the old and unaflEected any jwIot breadies
by the assignors, plaintiff undertook to bring
her case within the rule of the Medley Gbae.
Sbe undertook to show by the testlnKmy .of
hat husband, Dw B. OUker, /Wfao transacted
Digitized by VjOOglC
W.Ta.}
748
tiw buriaeai for h«r, that at the time flie
acpnt Indoraed on the policy the consent oC
the company to the assignment thereof to
ber, be had Informed him of the ^dstenoe
of the deed of tmst of January 15, 1908, In
foTor ot Mrs. Epstein. Bat If the rule of
the Medley Case be applicable to aadgnmenta
of iiSfanrance policies, we think tbe erldeioe
wholly fttlB to show Boch notice, or Informa-
tUm to the agent Tb» agent flatly denies
It, and on cross-examlnatlan, Otlfcra was ask-
ed: "Q. Are you willing to swear that yoa
mentioned deeds of trust to Mr. Holbert at
that time? A. I don't know ; not posttlrely
Bare." Two witnesses, Holbert 'and Hodi-
h^mer, one the agent, the other an Insnranos
adjuster, swear that when Interrogating Oll-
ker after tbe flre, as to why he had not nott-
fled the company or ItB agent of the deed of
trast; answered, that It was because be did
not want to protect BiKteln. that If Bpsteln
wanted protection, he wanted him to take
ont insurance ttu blmsell On this and other
evidence In the case a verdict for t^alnttif,
dependent thereon, conld not haTe been allow-
ed to stand.
[2] The second reply of plaintiff to de-
fendant's spedflcatlons of defense, remains
to be disp<wed of, namely, that the deed of
tmst was rold <m its face as to credltm,
wherefore no breach of the warranty of title,
or against Incnmbrancea. A sufficient answer
to this proportion Is tbat tbe deed of tmst,
though It may have been void as to cred-
itors, was good between the parties, where-
fore there was a breach, denying recovery.
For these reasons we are of opinion to re-
verse the Judgment, and, on tbe demurrer to
the evidence, to enter Jndgmeot her* for .da*
ffendant.
<7S W. Va. 680)
RBNNIX V. HARDH^ st aL
^aprems Court of Appeals of West Yliglnla.
June IT. 191S.)
(SyUahut Ip the Court.)
Joint Advektubeb (I 4*)— Contract— Ihoon-
8I8TEKT RlQSTft— £a.lCnON.
Ad election onoe made between inconsistent
altematiTe clauses of a cootract, by one party
thereto, with foil knowledge of the facts es-
sential to a reasooable exercise tbereof, be-
comes final and irrevocable when eommnnicated
by him to the other, and cannot be rabsequeot-
ly witbdrawD withont the consent of both con-
tracting parties.
[Ed. Note.— For other cases, see Joint Ad-
ventures, Cent Dig. K 3-0: Dec. Z>ig. S 4.*]
Appeal from Circuit Court, Randolph
County.
Suit by Howard Rennix against Stiannon
Hardman and others. Judgment for plain-
tiff, and defmdant N. 6. Ktim appeala Af-
flrmed.
W. B. A & L, HaxwdU of ElUna, for ap-
pellant, Claude W. Maxwell and Samuel T.
Spears, both of Elklns, for appellee^
LXNCH, J. In a mtt to enfDroe judgment
liens against lands of Hardman, the cUbef
contention is between him and hla codefenid-
ant Kelm. It relates to certain interesta In
real estate, the title to which was conveyed
to both of them Jointly, pursuant to an agiee-
ment dated September 22, 1906. Tbay there-
by agreed to form a partneiBhlp Cor the
purpose of exploiting certain lands tn which
Hardman claimed be bad discovered nlnable
mineral deposits. Kdm was to furnish, and
subsequently he did fnmlsh, tbe funds neces-
sary to imrcbase tbe lands and test them to
determine the existence, quality, and quan-
tity of the mlnenls therein.
The fourth and fifth clauses of the con-
tract, In sobBtance, provide that If upon Inr
vestigatlon Kelm became satlsfled with tbe
quantity and value of the minerals^ if any,
within the lands so designated by ELardman,
the title thereto should tbeireafter be owned
by than jointly and equally ; but that.lf, ait-
er such investigation, Kelm became dlssatls-
fled therewith, Hardman agreed, uptm de-
mand, to execute to him bis notes for one-
half of the purchase money, payable within
thtee yean with interest, secured by a lloi
on Hardman's moiety, or, should be so elect,
Hardman agreed, on demand, to execute to
Kelm his notes for all the purchase money,
payable within tbe same period with like
interest, and secured by a Uen on all tbe
landa, la which eveut Kelm was to conv^ to
Hardman Ms moiety ther^a
Imme^tely after the date «^ the con-
tract, and puisnant to its terms, Kelm and
Hardman acquired title to the Iftnds. Some
of the deeds therefor bear date as early as
October 1, 1O06; none later than December
12th of the same year. With equal prompt-
ness tbey employed assayere, bf them deem-
ed competent, to examine and test the ores
and report their character and commerdaL
value. These reports, 10 in numb«, bearing
date In October, November, and December.
1906, and January, 1007, indicate values vary-
ing from a few coits to 9252 per Um. While
somewhat meager, the evidence is sufficient
to warrant the finding, as It must be assumed
the circuit court did find because In Issue,
tbat Keim became satisfied in December,
1906, with bis investigations and the flndb^
of the assayers, and so Informed Hardman,
as he and other witnesses not Interested tes-
tify. In fact, according to these witnesses,
he expressed a wtlUngness at that time to
purchase additional lands upon the same
conditions. Keim, as a witness on his own
behalf, not only does not deny these affirma-
tive statements, but tacitly and tai effect
admits tile same ; for, when asked if he had
so expressed himself to Hardman, he replied:
'*No, sir; not (as) fnlly satisfied.*' It la cms
that in January, 1908, but not earlier, he
did Infbrm Hardman, by a formal notice
served January dth, of his dissatisfaction.
•Fsr ether esses m* lune topic and Motion mniBBR la Dee. Dig, a Am. Dig. Ksy
7S0
18 SOTrrHBASnOBN BBPOBTDB
(W.Ta.
and tberetv demanded the latter to elect
between the alternative provisions of the
fifth clause ot the contract, and promised
compliance therewith on his jwrt, as therein
also provided.
But, hnvlDg once chosen between two in-
consistent provisional terms, bis choice be-
came irrevocable, and tberefore flnaL The
rule applicable to election between legal rem-
edies is, by analogy, likewise applicable,
where by the terms of a contract a similar
cboice may be made between Incon^tent
provisions therein. "Election Is the obliga-
tion imposed upon a party to choose between
two inconsistent or alternative rights or
claims In cases where there is a clear inten-
tion of the person from whom he derives
one that be should not enjoy both." Allison
V. Allison. 09 Va. 472. 89 S. sr. 130. And.
when once made, with full knowledge ot the
facts essential to an intelligent choice, the
exercise thereof "is irrevocable and condn-
alve, irrespective of int^t, and constltutee
an absolute bar to the assertion of a right or
maintenance of a claim In conflict with that
first selected." 15 Cya 262. 264 ; 3S Id. 289.
290; Sangster v. Com., 17 Grat (Va.) 124;
Hlte V. Long, 6 Rand. (Va.) 457, 18 Am. Dec.
710. Where an insurance company, which
under the policy might in case of loss elect
dther to pay the full value or reinstate the
premises, elected the latter, it became bound
thereby and required to perform the contract
according to its election, or pay damages for
failure to do so, although performance may
have become inconvenient, even Impossible,
or more expensive than it liad anticipated.
Queen v. Oovemora, 120 Eng. Rep. (Reprint)
1188 ; 0 Gyc 64a The same rule is applied
to the variant facts of the following cases:
Plummer v. Keaton, 17 Tenn. <9 Yerg.) 27;
Latham t. Bauaman. 80 Hinn. 57. 88 N. W.
776; Penn v. Guggoiheimer, 76 Ta. 889, 860;
Baker v. Todd. 6 Tex. 27%- 55 Am. Dec 775.
Hence the conclusion that, having in Decem-
ber, 1906. assured Hardadan of his satisfac-
tion, Kelm cannot be permitted in 1908 to
change his attitude towards the property to
the prejudice of Hardman and his creditors.
It Is therefore immaterial whetbeif the
judgments of which Kelm complains were
or were not docketed. He Is not In any sense
prejudiced Uiereby. Judgments of justices,
unless barred by limitation, are liens against
the real, estate of the Judgment debtor, even
though not docketed. Nnzum v. Herron. 52
W. Va. 409, 44 S. E. 267. The manifest pur-
pose of section 6, c. 139. Code 1006. and Sup-
plement 1909, as appeara from its express
terms. Is to protect purchasers for value
without notice from the lien of audi judg-
ments, unless docketed. But for his elec-
tion this provision of the statute piay have
inured to Kelm's benefit; for, while not a
purchaser within the strict meaning of the
term, he may otherwise have cotne within
the spirit and purpose of the act. If so, he
could then, with more force, have invoked
the relief which under the circumstances must
now be denieu him. His expressed satisfac-
tion with the existence, quantity, quality,
and commercial value of the minerals In the
lands purchased, made absolute Hardman's
title to a moiety therein, to which the liens
of the Judgments at once attached.
The circuit court therefore did not err in
Its rulings upon Kelm's exceptions to the
report of the commissioner to whom the
cause was referred to ascertain and report
the liens against Hardman's real estate.
Finding no error in the rulings of the cir-
cuit conr^ its decree is affirmed.
(72 V. Ta. «U)
LANHAM V. MEADOWS.
(Supreme Court of Appeals of West Vlrjiiila.
June 17. 19180
1. GOHTBACTS (S 138»>— ACnOH OK GOHTBACT
— lULXOALITT— EVIDBNCB.
If a party to an illegal agreement, by
proof of part of the facts conatitutiiig the
transaction out (tf which it grew, make a prima
facie case for recovery against the other par-
ty, Without disclosing the ille^iity. the defend-
ant's guilty paxticipatfon in the transactioD
does not preclude bfm from proving as matter
of defense the illegal part of the contract
[Ed. Note.— For other cases, see Contracts,
Ceat. Dig. H 681-700; Dec. Dig. 1 18&*]
2. Onrs (I 33*)— Gift Inm Tivos.
A promissory note may be the subject of
a gift inter vivos from the promisee to the
promisor. Surrender of the note with intent
to forgive the debt is a sufficient delivery.
[Ed. Note.— For other cases, see Gifts, Gent
Dig. SI 66, 67; Dec Dig. S 83.*]
8. Apfkai, and Ebbob (i 1002*) — Bbtiew —
SUFFICIENCT OF EVIDBNCE.
A verdict founded upon conflicting oral tes-
timony cannot be set aside by the court
[Ed. Note.— For other caaes, see Appeal and
Error. Cent Dig. Sl 3935-3937; Dec. Dig. i
1002.*]
Error to Circuit Court, Braxton County.
Action by Charles Lenham against Rva I.
Meadows. Judgment for defendant, and
plaintiff brings error. Afllrmed.
CSiarles O. Cofflnan. of Ohirkstmrg. fbr
plaintiff in error. C. F. Greene, Morrison tt
Rider, and Hall Bros., all of Sntt<»i, for de-
fendant In error.
POFFBNBARGBR, P. In this case, the
jury denied by its wrdlct right In the
plaintiff to recover any portion of the de-
mands stated In his declaration and bill of
particulars, amounting to nearly $5,000. con-
sisting of Uiree promissory notes and numer-
ous sums of money alleged to have been paid
out by him for her and at her request
Under the general issue raised . by her plea
of non assumpsit, the defendant adduced evi-
dence tending to prove a long period of nilctt
sexual intercourse between her and the plaln^
«For ottMT oans im ium topic and MCtlon NUMBER tb Dsc Dig. A Am. Dig.
W.Taj
HEADOWB
T61-
tUr, Induced on hvr part by tbe advancenient
and payment ot the money d^anded In the
declaration, and, In connection with her tes-
timony. Introduced a formal agreement for
Buch Intercourse and relation, acknowleds-
lug the receipt, prior to the date thereof
on account of the same, of the sum of $2,000.
The plaintiff denied the execution of this
contract and objected to Its introduction. On
ttiis branch of the case, he supplemented his
own testimony by that of five expert witness-
es who expressed tbe opinion that the sig-
nature was not in bia handwriting. Other
papers bearing his signature, and put in evi-
dence, were before the Jury for comparison.
Two of the notes sued on, one for $600 and
another for $340. bear date prior to tliat
of the agreement With very few excep-
tions, tbe defendant admits the advancements
of money to her and payment of money in
discharge of her debts and obligations. She
also claims the plaintiff had surrendered to
her the three notes spedfled in the bill of
particulars, including the two Just described.
She does not claim, In her testimony, to have
paid any of these notes or the money deliv-
ered to her or paid out by tbe plaintiff in
discharge of her debts and obllgatlonB, bat
she nevertheless produced a receipt for the
ram of $1,000. bearing date June 12, 1906*
and declaring said sum to bt in foU <tf ac-
count up to tbtat date.
The formal assignments of error go to the
admission of defendant's testimony to her
immoral conduct and relations witta the plain-
tlfl, .and the alleged contract or agreement
for sexual Intercourse between them, and the
overruling of the motion to set aside the
verdict
LI] Having shown an apparently valid debt
by the introduction of tbe notes of the de-
fendant and proof of payment of Indebted-
ness for her and at her request, the plaintiff
denies tbe right of the defendant to set up
her own inunoral and illegal relation with
bim as a consideration for tbe moneys paid
to ber and for ber, on grounds of public
policy. This position is untenable. Tbe
consideration for the payment of tbe money
Is part and parcel of tbe transaction, and
if it could not be given In evidence to de-
feat tbe aMion, money paid upon an 111^1
consideration could always be recovered back
in violation of that principle of puMlc policy
which forbids It In order to evade tbla
principle of law, it would only be necessary
to prove one dde of tbe contract That il-
legality of the consideration may be set up
AB a defense to a debt prima fade valid Is
well settled by authority. Galfee v. Barges^
S W. Ta. 270; SUfer v. HowelU 9 W. Va.
391; Hope V. Park Asaodation. 68 N. J. Law,
«27, 34 Atl. 1070. 65 Am. St Rep. 614; Em-
br«y V. Jamison, 131 U. S. 336, 9 Sop. Gt 776,
331 U Bd. 172; McMullen v. Hoffman, 174 D.
8. 639, 19 Sup. Ct 839, 43 L. Ed. 1117.
U-tbe ooart wera at liberty to deal with
tbe case as jurors, a condnslon mlgbt be
reached differ^ from 0iat of tbe verdict;
but tbe law accords to the Jury Its province
wbicb cannot be Invaded by the court As
to tbe relation between tbe parties, tbe evl*
deuce consists almost wholly of their oral
testimony, and it la directly and positively
conflicting. There are circumstances tend-
ing to sustain the testimony of each of them.
Correspondence introduced shows a relation
of close intimacy, and it Is not denied by the
plaintiff. They differ only as to the issue
of illicit intercourse. The defendant charges
It and the plaintiff denies it The latter de-
livered to the former money and paid notes,
bills, and other demands for her, throughout
a period of time extending from May 1, 1901,
to June, 190S, and possibly later. The finan-
cial transactions between them began in Har-
rison county at a place called Marshville,
where the defendant was then conducting a
small grocery store and at or near which the
plaintiff resided. Having obtained consider-
able money from him for the purpose, and,
as she says, at his suggestion, she purchased
with it a small tract of land somewhere in
Braxton county, on which she built a house.
Later, she and her husband and family re-
moved to Braxton county, and the plaintiff
occasionally visited her at that place. In
the house so built,- a room was provided espe-
cially for him. On one of his periodical
visits to that place in September, 1909, the
defendant and her husband claim the latter
entrapped and caught him In tbe act of hav-
ing sexual Intercourse with tbe wife. He
admits his presence there and an altercation
or controversy between him on the one side
and the husband and wife on the other, but
denies the Improper conduct attributed to
him. According to his testimony, this trans-
action was an effort on the part of the de-
fendant and her husband to extort money
from him on a false charge or accusation.
He went home a day or two after this occur-
rence, and the husband of the defendant at
a later date approached Mm near his home
and attempted to have an interview with
bim. As to what then occurred between
them, tbeir testimony Is confilctlng, the plalit
tiff saying there was a renewed demand foi*
money and tbe husband denying it On leav-
ing the BfeadowB hom^ the plaintiff fiilled
to take with him Iiis trunk which waa latw
sent to bim. In It. be says, were tbe three
notes menttoned In the bill of parttcnlars
and put In evidence. The defendant insists
he had delivered over to ber all of the notes
She had executed to bim, but that tliey had
been left vrtiere he could have found them,
without Intent that he should again repos-
sess them, and he must have takra them
clandestinely and without her consent How
they got Imck into bis possession, she la un-
able to say. The plaintiff denies not mly
the conduct with which be is charged, but
also bl. abUity to «»l^,|j,-^fegle
18 80DTH&Afti9lR^ Rl^OtK^EB
course. Re was about 70 years old When
his relations with the defendant b^n and
had had a severe stroke of jparalyBls In the
year 1886. He suffered anotho* attack of
the disease in 1906. At the date of his last
Tlslt to the Meadows home and the alleged
discovery of his Immoral relations by the
hnsbandt he was abont 78 years old. The
immoral written contract was put In evidence
as an admission of his Illicit relations with
the defendant, and the evidence of five wit-
nesses was addnced to prove that the signa-
ture tliereto was not in bis handwriting.
One of these was familiar with his hand-
writing, and the others testified merely as
experts. All were of the opinion that the
signature was not in his handwriting. The
Jury had before them numerous checks, re-
ceipts, and letters for purposes of compari-
son, and the exi>ert witnesses were unable to
show any very marked difference between
the signature to the contract and the gen-
uine signatures upon other papers. To set
forth here. In addition to these salloit facts
and circumstances, the minute details of the
testimony would subserve no good purpose.
The vital question In Issue depends, as has
been stated, upon the credibility of two wit-
nesses. The admitted facts and drcumstanc-
es have no controlling protmtlve force or ef*
feet A long period of intimacy is admitted
as well as proven. On the question of Ifc^
character, Its purpose, and Incidents* the rec-
ord discloses nothing, but their oral testimo-
ny and the controverted written admission.
As to the latter, there to ttothii« dedalve
in the evidence. In the opinion -of five men,
the signature to that papeir was a forgery,
but the jury, consisting of 12 men, compared
it with numerous genuine signatures of the
plalntUC and were of tbe opinion that' It was
genuine. On the evidence as disclosed by the
record, its genuineness or qpdrlouaiess was
largely a matter of opinion. A verdict thus
dependent upon .confilcting oral testimony
cannot be disturbed by the court Goalmer
V. Barrett, 61 W. Ta. 237, 69 S. E. 885;' Tul-
ton T. Crosby ft Beckley Co., B7 W. Ta. 91,
49 S. SI. 1012.
As two of the notes nied on bear dates
prior to Oiat on which the .defendant says
the immoral relation between than began
and tSie date of the alleged contract for such
relation, and the defendant admits the re*
cdpt of the nioney evidenced by them, it Is
said the illegal consideration could not have
entered Into them. This position is well sus-
tained by law. A valid debt cannot be in-
validated by proof of a subsequent, separate,
and distinct illegal transaction between the
parties. But Uiis is not conclusive of thifi
issue as to these notes. The defendant
swears positively that tbe money vras given
to her vrlthout any expectation of Its repay-
ment, and that the notes were executed and
d^vered as a mere preteoM of indsbtedneas.
to th6 end that their relation night be shldd-
ed from discovery by members of plaintUTs
family.
[2] Another legal principle, that a written
Instrument Cannot t>e contradicted by parol
testimony, would sustain plaintiff's daim
against this theory of defense, but tbe record
diadoses an additional tect in avoidance of
the application of this legal rule, if the d^
fendant's testimony la to be taken as true,
a question tor jury determination, namely,
that these notes were bestowed upon the de-
fendant as gifts. She swears positively that
they were delivered up to her as gifts, and
then subsequentiy abstracted from her pos-
session by the plaintiff. A gift of a chose
in action can be made in that way. A cred-
itor can forgive a debt by way of gift, by
delivery to the debtor ef the evidence there-
ol Beach v. Endress, 61 Barb. (N. T.) 670;
Hathaway v. Lynn, 75 Wis. 186, 43 N. W.
956, 6 Lk R. A. 551; Larkin t. Hardenbrook.
90 N. T. S38, 43 Am. Bep. 176; Albert v.
Ziegler, 29 Pa. SO. Taken in connection with
all the droumstances attending the transac-
tions between the parties and bearing uptm
the motive of the plaintiff, the testimony of
the defendant to the gift of these notes is
soffident to sustain the jury's finding as to
the intent with which they were ddlvesed
to^ber. His poMeaslMk of tbon is a dream-
stance raising a presumption against dona-
tion, but this presumption Is rebutted by her
testimony. If the jury believed It, u they
could and did,
Upon these prlndplea and ooneiaaloiM, tho
judgment will be alBrmed.
Afllrmed.-
(H W. Vs. mo
STATE V. PISHNBR.
(Snpiame Court of Appeals West Thtginia.
Jnna 17. 1918.)
(Byllahiu the Oonrt.)
Faub Pwibnses (! 12*) — DsuvnT or
GBBCK— iNSUrFICIENT FUNDB.
The making, Issuance and delivery of a
cheek on a bank in payment of a pre-existing
debt, to his creditor, by one who hai no tmids
or iDsufficient funds to bis credit in such bank
to pay the same, is not an offense under sec-
tion 84, chapter 145, Code, a section added by
chapter 76, Acta 19U.
lEd. Notte.— For other easei^ see lUse Pra-
tenses. Cent Dig. | 16; De& Dig. | 12.«1
BoMnson, J., dissenting.
Error to (Arcolt Court, Tucker County.
Nick Plshner was convicted of crime, and
brings .error. Beveraed and entered.
D. B. Cnppett, of Thomas, and Chailes D.
Smith and J. P. Scott, both of Parsons, for
plaintiff in error. A. A. Ully, Atty.'Goi.,
John B. Iforxison, of Sutton, and J. B.
Brown, bf Bluefleld, for the State*
•For otlMT eaMS •■• uAw tople and mcUod NUMBEB la Dm. Sis, * Am. big. Ki^ttHW
8TATB ti
PIBHNEB
T63
MILLER, 7. Def^dant wu Indicted,
tried and found Kullty of a violation of sec-
tion 34, chapter 145, Code 190e, a section
added to that chapter by chapter 70, Acts
1011, and the judgment complained of was
that fa* , he confined in the penitentiary ft>r
one year.
The statute proTldes that, **If any person
make, issue and dtiiver to another for value
any check or draft on any bank, and thereby
obtain from bu4i other any credit, money,
goods or other pn^>erty of value, and have
no funds, or insufficient funds, on depoedt to
his credit In said bank with which such
draft or check may be paid, he shall be
guilty of a misdemeanor, if the amount of
such (dieck or draft be under twenty dollars,
and vBoa conviction thereof be fined not ex-
ceeding one hundred dollars and confined in
the county Jail not less than one day nor
more than thirty days, and If the amount of
such check or draft be twenty dollars or
over he shall be guilty of a felony and con-
fined In the penitentiary not less than one
nor more than two years, and the drawer of
su^ check or draft shall be prosecuted in
the county In which he delivers the same.
Provided, however, that If the person who
makes, Issues and delivers any such check
shall, within twenty days from the time he
receives actual notice, verbal or written, of
the protest of such check, pay the same, he
shall not be prosecuted under this section,
and any prosecution that may have been in-
stituted within the time above mentioned,
shall, If i>aymeDt of sold check, be made as
aforesaid, be dismissed at the cost of de-
fendant"
The Indictment, substantially in the form
prescribed by this statute, charges that de-
fendant "on the day of , nine-
teen and twelve, in the county aforesaid did
unlawfully and feloniously Issue and deliver
unto Joe De Folia, for value, his certain
check of the words and figures as follows:
(describing a check for $240.56) when he, the
said Nl^k Plshner had InsuflSdent funds on
deposit with said bank, the Miners & Mer-
chants Bank, with which to pay the same."
The undisputed evidence is that the check
in question was given to De Polla on ac-
count of a pre-existing debt incurred at a
general store kept by him.
There Is clearly no merit In the constitu-
tional question attempted to be raised.
The sole question 6t merit presented by
the several rulings of the court below, on
the evidence, and on the instructions to the
jury given and refused, is, did the giving of
the check in question, for a pre-existing debt,
con'stltnte a violation of the statute? Our
opinion tB that it did not It Is contended
by the Attorney General that unless the
statute be so construed as to affirm the proi>-
osltion, if accomplished nothing, and was a
useless enactment. True by , section 23^. of
tba aomi? shapter, me .may. be^Jndtcted muA-.
78 S.E.-48
conrleted of obtaining money or property by
means of a false and fraudulent check given
therefor, accompanied with the necessary
knowledge and anlmo furandi. State t.
Hurst, 11 W. To. 54; Anable v. Oommon-
wealth, 24 Grat (Va.) 563, 667, 568; Fay v.
Commonwealth, 28 Grat (Va.) 912; Trogdon
V. Commonwealth, 31 Grat (Va.) 862. Under
that statute, according to these cases. It Is
necessary to allege and prove the essential
dements constituting the offense, namely, (1)
intent to defraud ; (2) actual fraud ; (3) false
pretence used to accomplish the object, and,
(4) that the fraud was accomplished by
means of the false pretence made use of;
that Is they must be In some degree the
canse. If not the controlling cause, which
Induced the owner to part with his property.
See especially Anable t. GommonwealtZk, su-
pra.
What was the object and effect of the new
section 34 added by the Act of 1911? Was
it to make it an offense simply to make, is-
sne and deliver a check when the maker had
no funds or^lnsufficlent funds to his credit
to meet it, regardless of Its effect upon the
rights and property of the recipient or payee
of the check? We think not To ecmstltnte
the offence tb« maker must thereby obtain
"credit, money, goods or oth^ iwoperty of
wOu^ from another. It is not pretended
that defendant obtained either of these by
means of the check in question, onless, as
it Is insisted the entry of the check aa a
credit on the book of De Polio, or as ex-
tension of the time of iiaymeDt amomted to
the kind of credit Intended by t)ie statute.
But no extension time was agreed upon,
and though De Polla says he gave defendant
credit for the dieck on his account, clearly
that is not the kind of credit meant by the
statute. It is true the word "credit" is often
applied to an entry on the credit side of an
account hut the "credit" meant by the stat-
ute clearly applies to an entry on the debit
side of the ledger, or to the thing actually
parted with on the faith of the false pre-
tence. The "credit" Intended by the statute
according to the very terms thereof must be
a thing "of value," acquired by means of
the check. Of what value is a mere entry
on a book? Nelthtf the check, nor entry
would amount to payment The creditor
could still sue on the original account He
does not lose it by accepting a bogus check ;
nor does the mere entry of a check on the
book of a creditor amount to a thing of val-
ue to the maker of the check.
But what was the purpose of enacting the
new section? We think It quite clear that
the object was to constitute the making, is-
suance and delivery of a check, and to there-
by to obtain aedlt, money, goods or other
property of value of another, a crime, re-
gardless of the intent or knowledge of the
maker of th^ condition of his account and.
to burdeii him with tbe i^^^B^^Oj^fe^Jttele
78 SOUTHSASTOBN BBFOBTIGB
fiict^ before lasnlng a check* bat - reUeTlng
him from the oflenae, whlcih cmder section
23 he woQld not be, If within the time pre-
scribed by the proviso of the act he diall
actoaUy pay or nuke good the check so
made and Issued. This view Is strengthened
by the form of indictment prescribed, and
which contains no aTWmenta of gallty knowl-
edge and luteilt to defiraud, nsually required
in Indictments for obtaining goods, money or
property by false pretences. State t. Horst,
snpra.
A motion of defendant to exclude the
State's evidence, which ought to have been
sustained, and an Instruction to the jury to
find for defendant, which was denied, but
which ought to have been given, would have
ended the case in the court below. As we
can clearly see that a different case can not
be made on another trial we are of opinion
to enter Judgment here for defendant non
obstante veredicto, and that he go hence
without day, and be forever discharged from
further prosecution In this behalf
BOBINSON, J., dissents.
(TJ W. Va. 606)
BOOKER V. JARBETT et aL
(Supreme Court of Appeals of Wert Vlxgittia.
June 17. 1813.)
(Byttalnu H the Court.)
1. EZKCUTOBS AND ADHINISTKATOBB (t
Widow's Kiohts ^iobe Dowkb J^ohed
— "Odbtilaok."
A small store room, located Bubstantiallj
witbin the yard and garden enclosing the man-
sion bouse, Its front and side constitntiDg a
part of such •nclomre, once occupied by the
husband with a small stock of merchandise, but
for a year prior to and at the time of his death
used and occupied by him as a storage room for
lumber, and domeBUc supplies, and all consti-
tuting a part of - his home farm, is a part of
the curtilage, of which by section 8, chapter
65, Code 1906, the widow, until dower as-
signed, is eutitled to the undisturbed possession,
as against an heir entering witlumt her con-
sent and Bijainst her protest, and of which she
is entitled in unlawful detainer to recover tbe
possession.
[Ed. Note.— For other cases, see Bxecutors
and Administrators, Cent Dig. H 066-060;
Dee. Dig. { 175.»]
(AdditiowU SvUahut by Bditortal Staff.)
2, EXBCUTOBS Attn AOinniSTBATOBS (S 175*)
— CUBTILAQB.
The word "curtilage," used in Code 1906,
c 65, i 8, relating to dower, was boirowed
from the Bnglish statutes, mesning the en-
closed space snrrounding a dwelling and con-
tained within the same enclosure; tbe dwell-
ings and outhouses of all kinds In England be-
ing generally surrounded by a fence enclosing
a small piece of land embracing the yards and
outbuildings near the house.
[Eld. Note.— For other case^ see Executors
and Administrators, Gent Dig. K 66&-^;
Dec Dig. { 175.*
For other definitions, see Words and Phrases,
vol. 2, pp. 1798, 1799.]
- Xhror to Circuit Conrt, Kanawha County.
Action by Elizabeth Booker against Levi
Jarrett and others. Judgment for plaintiff,
and d^oidants bring «rror. Affirmed.
A. M. Belcher, of Charleston, for plalntUts
in error. Shirkey & Uvely, of Caurieaton,
for defendant In error.
MILLER, J. In an action of unlawful
detainer, on appeal from the Judgment of a
justice, the plaintiff obtained judgment for
the possession of the property sued for, to-
wit: "That certain messuage and tenement
situate on Pinch Creek In Elk District, Kana-
wha County, West Virginia, and being the
store house formerly occupied by Wm. L.
Booker, deceased, as a score house and on
the road in front of the residence of the late
Wm. L. Booker, deceased, and being a part
of the estate of Wm. L. Booker, deceased,
and $10.00 damages for the unlawful deten-
tion thereof."
Plaintiff is the widow of Wm. L. Booker;
tbe defendant Henrietta Jarrett is his niece,
a daughter of deceased's brother, and who,
with her husband and co-defendant Levi
Jarrett, forcibly entered the store room in
controversy, with claim of right as such heir,
and have brought the case here to reverse tbe
Judgment against them. Plaintiff claims the
property by right of possession and of her
widowhood, and as part of the mansion house
and curtilage, before dower assigned. The
statute, section 8, chapter 65, Code 1906,
governing the subject. Is as follows: "Until
her dower is assigned, the widow shall be en-
titled to demand of tbe heirs or devisees,
one-third part of the issues and profits of
the other real estate which was devised or
descended to them, of which she la dowable,
and In the meantime may hold, occupy and
enjoy the mansion bouse and curtilage, with-
out charge ; and if deprived thereof may on
complaint of unlawful entry or detainer, re-
cover the possession, with damages for the
time she was so deprived."
[1] The sole question, regardless of the
character of the entry, whether forcible or
not. If against plaintiff's will or objection, is
whether the store room In question is a part
of the curtilage. If It Is, the Judgment bdov
is ri^^t and should be affirmed.
Our conclusion from the evidence la In ac-
cord with the finding and judgment of the
clrcull court, that said store building does
constitute a part of the curtilage, and that
plalnUft has been unlawfully deprived there-
of by defendants. The evidence shows that
this store room is located substantially with-
in the yard and gardra encdoaing the manstoD
boose and other out buildings, tite front of
tbe buUding and one of tbe aides thereof to
whldt the fence Is Joined, constituting a part
of the endosurok For several years and up
until about a year prior to his death this
building had been occupied by plalntlfTs hus-
•For oUmt bmss bm mum topla and aacUoa NDHBBB la Dm. IHg. * Am. SUg.^j^-]X^^
HALL PHILAD15LPHIA 00.
755
band as a gutoal BtoK for merdutndisliig.
After that and up untn Us death It was
naed as a plaee of storage for Inmber, paints,
oils, vegetables and otber supplies for do-
mestic nse, and continued to be so occupied
by the widow, under IwA and key, until de-
fendants entered, against her protest, and
after her refusal to surrender the keys. De-
fendants succeeding In fiwcing the loA either
with other keys or in some way made mtry.
The mansion house^ store building, bam, and
otber out buildings constituted a part of
the home farm of deceased.
The sectim of the Code in question Is not
a criminal statute. It was evidently Intend-
ed to give the widow, nntil dower should be
assigned, the right to use and occupy the
dwelllng-bonse and curtilage, bb It was used
and occupied by her and her husband at the
time of bis death, and that until that time
■he should not be Usturbed tiiereln by any
one.
[2] Tbe word curtilage used In the statute
was borrowed from English statutes where
its meaning was well understood. Bourler
d^nes it, "The enclosed space Immediately
surrounding a dwelllngbouse, contained with-
in the same enclosure." In People t. Tay-
lor, 2 Mich. 260. 251, the court says: "In
England, the dwellings and out-hoases of all
kinds, are usually surrounded by a fence or
stone wall, enclosing a small piece of land
embracing the yards and out-bulldlngs near
the house, constituting what Is called the
court This wall Is so constructed as to add
greatly to the security of the property within
It; but as such precautionary arrangements
have not been considered necessary In this
country, they have not been adopted." The
same court. In the same case, further says:
"It is 3;>erhaps unfortunate that this term,
which Is found in the English statutes, and
which Is descriptive of the common arrange-
ment of dwellings, and the yards surround-
ing them, In England, should have been per-
petuated in our statutes. It Is not strictly
applicable to the common disposition of en-
closures and buildings constituting the home-
stead of the inhabitants of this country, and
particularly of farmers.** So in Maine,
where it was contended that the bam was
not within the curtilage, it was held that
the curtilage of a dwelling house is a space
necessary and convenient and habitually used
for fomlly purposes, the carrying on of do-
mestic employments; and that It includes
the garden. If there be one, and that It need
not be Berated from the other lands by
fence. State r. Shaw, 81 Me. 623, 627. Is
Mhsaachnaetts "curtilage In; law means a
fuice or endoeure' of a small piece of land
aronnd a dwelling-house, osually Indudlng
the bnlldlnga occupied in connection with the
bonae. and tUa enclosure may consist wholly
of a fence, or partly of a fence and partly
of the exterior side of buildings so within
•Tor otb«r omm m* mom topio aad ••etton HDMBBR in Dm. Olt. A Am. Dig. K«]r
the endoBure." OommonweelHi t. Barney,
10 Cush. (Mass.) 480. In Alabama, upon an
Indictment under a statute prohibiting the
use of ahuslTe, vulgar or insulting language
in the dwelling-house of another, or upon the
curtilage thereof, or upon the public highway
near such premises and in the presence of
the family of the owner or possessor thereof,
or of any member of his family, or of any
female, the court said: "Whatever may have
been the signlflcation of the word curtilage,
as employed at common law In reference to
burglary, we can not doubt that In this stat-
ute, it Includes the yard, or garden, or field,
which is near to and used in connection with
the dwelling. It is not necessary either
should be surrounded by an enclosure. It is
the propinquity to the dwelling, and the use
in connection with it for family purposes,
which the statute regards, and not the fact
of Its enclosure." Ivey v. State, 61 Ala. 68,
61. And in a later case the same court held
that "the curtilage usually Includes the yard,
garden, or field, whidi Is near to, and used
in connection with the dwelling ; and In some
cases It may be affirmed, as matter of law,
on the undisputed facts, that a particular
building Is, or is not, within the curtilage;
but, where the building burned, a barn, is
situated seventy-flve yards from the dwelling-
house, in a grove which Is separated from
the front yard by a cross fence, through
which there is a connecting gate, the entire
premises t>eing inclosed by a fence, and con-
taining between two and three acres, it can
not be affirmed, as matter of law, that It
was not within the curtilage, and the ques-
tion is properly submitted to the Jury."
Cook V. State, 83 Ala. 62, 8 South. 849^ 8
Am. St Rep. 688.
In the light of these and other authorities
we conclude that the store house in contro-
versy must be regarded as within the curti-
lage, and that the Judgment below was right
and should be affirmed.
LYNCH, J,, absent
(71 w. va. vn>
HALL et aL v. PHILADELPHIA CO.
(Supreme Court of Appeals of West Virginia.
May 27, 1913.)
(SyUdbut Iv the Court.)
1. Mines and MinbbauJS 79*)— Contbaots
(S 152*)— Customs and Ubaqes (g 16*)— On.
AND Gab LBASB— CONSTBDCnoN— "Domu-
.TIO PDBPOSES"— "DOMKSTIO."
A clause In a lease for oil and gas pur-
poses, securing to tbe lessor "free gas for do-
mratlc purposes," md in the light of an estab-
lished osage or oustom known by the parties to
the contract. Is construed as conferring upon
the lessor right to have gas for heat and light
in tils dwelling house, and for tbe maintenance
of one light at soch a point as he may designate
within the curtilage.
tEd. Note.— For other cases, see Mines and
Minerals, Cent Dig. S 209; Dec. Dig. {79;*
756
78 SOUTH&ASTBBN BEPORTBB
CW.Va.
Contracts. Cent T>lg. H 733. 78S, 738; Dca
Dig- S 1S2^ Customs and Usasei, Cent Dig.
il 30-33; Dec Dig. | 16.«
For otber definitions. Me Words and Phnsee,
ToL 8, pp. 21M-216£]
2. Mines and Miitbbai.b d 79*) — OxL ahd
Gab Leasb— CoNSTBUcnoK.
Tbougb, at the date of the lease, it was
customary and nsual for lessors to maintain,
under sucti clause, what is known as an open,
stoim, or flambean light fn their yards, the
clause is construed, in view of the wastefulness
and extravagance in the nse of gas by such
means, as conferring upon the lenor rvht to
maintain only an inclosied or eoonomlcal bnm-
er for light in the yard.
[Ed. Note.— For other cases* see Mines and
Minerals, Cent Dig. i 209 ; Dec. Dig. { 79.*]
3. SFEcinc FasFOBUANCB (i 64*)— Covenant
or Oil and Gas Lease — Rbhbdt vob
Bkkach.
The leni remedy for Tlolati<m of anch &
covenant being Inadequate, equity will enforce
specitic performance thereof by appropriate
remedies.
[Ed. Note.— For other cases, see Specific Per-
formance. Cent Dig. H lftl~105. 198; Dec
Dig. Mi'j " ^
4. WOBDS AND PHBASES— "MbBBUAOB."
A "messuage" is a dwelling house, with
the adjacent buildings and curtilage, and the
adjoining lands appropriated to ttie use of the
household.
[Ed. Note.— For other definltione, see Words
and Phrases, vol 5, pp. 4497, 4498.]
Appeal from Circuit Court; Harrison
County.
BUI by Fablns B. Hall and others Against
the Phllftdelpbla Company, a corporation.
From decree for defendant, plaintiffs sppeaL
Afflrmed.
Charles O. Ooffman, of Clarksbuxs, for ap>
pdllants. Davis A Davls^ B. Bryan Temple*
man, and Oaman BL Swsrb^ all of Clarks-
bnrg, for appellee.
P0FFENBAB6BB, P. Tbs appellants,
Hall and wife, complain of a decree dismiss-
ing tb^ bin for tlie aiforcement ct the al-
leged obUgati<m imposed upon the assignee
of their lessee in an oil and gas lease, by a
proTlslon thereof, securing to them gas ftom
tlie wells on the premises for domestic pnr-
IHMes free of chaise, upon condition that they
make their own connections with the lessee's
lines or wells.
, The extent of the right conferred by this
clause and the mode of its enJoym«it are
the matters in controversy. A large well hav-
ing been completed on the premises, the ap-
pellants connected with It a service pipe lead-
ing to tbeir dwelling boose, through which
gas for heating and lighting the buildii^ and
maintenance of an open or flambean light
In die yard, about 20 feet In front of the faonse,
was furnished. Denying right in the lessors
to maintain an outside light the appellee
cut ofF the gas from this pipe. The appel-
lants restored the connection, and K was
again cut off. By way of concession and as
a matter of compromise, it is claimed the
appellee expressed Its wUIingness to fttrntsb
gas for a light in the yard If tiie appdlanta
would dispense with ibe open atorm bumw
and use a modem inclosed liglit; audi as Ilia
Welsbacb lamp. If there was sudi a nego-
tlatioQ, it failed, and the appellee restored
gas for use inside of the dwelling house only.
The bill has for Its purpose a mandatory
injunction compelling the appellee to furnish
gas to maintain the open light in the yard.
[S] The demurrer to the bill was propuly
OTormled. Though there Aiay be no legal
duty, as contradlstlngnlshed from a contrac-
tual duty, on the part of the appellee to fur-
nish gas, and the relation of the parties dif-
fers in this respect from that wUch ordina-
rily confers upon a consumer of gas or watear
right to compel restoration of the service by
mandamus or injunction, when it has been
wrongfully discontinued, there Is anotber ele-
ment In th^ relatlwi upon which the rigliC
may be consistently based, and perhaps mora
safely and firmly. The prayer for xeUef is
founded upon a covenant of Uie leaser made
for the benefit of the propwty. In view of
the manlfeat Inadequacy of the Icsal remedy
for violation of a covenant in a lease other
than for. the payment of numey, conrta of
equity seldom refuse to enforce them wbn
their Jurisdiction is invoked for the purpose.
Gas Co. T. QU Co., fi6 W. Va. 402, 49 a IL
548; 26 A. ft B. Enc: L. 104. Contracts of
sale of mere commodities procurable In the
market ate never subjects of speclflc pafmn.
ance for dftvlous reasons, bat this contract
Is not within tbat class. Natural gas Is not
obtaiiuble In the general markets as Is wheat
com, flour and. live stock, and presumptively
the supply of gas in question la obtainable
only from the lessee. Principles declared In
Hogg V. McOuffln, 07 W. Va. 456^ 68 a B.
41. 31 L. a A. (N. S.) 491, sustain the Juris-
diction on tbls aiddltlonal ground.
[1, 1] The daoae Involved reads as follows:
"First parties to have flee gu tot domestle
purposes by making th^ own connections to
any gas well drilled on this lease.** On the
Interpretation or conatrnctiou of aodi a
clause no direct authority Is shown by the
brlefiB or has been discovered. On the one
hand, argument Is submitted in support of a
strict and narrow construction, imposing ob-
ligation or du^ on the part of the lessee to
furnish gas only for use within the walls
of the dwelling house. On the other hand,
the term "domestic purposes" la given a
very broad and liberal construction, requiring
the lessee to furnlab gas not only vrltbln the
walls of the dwelling house, but for lighting
all the outbuildings within the cartilage ot
premises immediately connected with the
dwelling house.
As the deflnitlonB of the term "domestic,'*
wherever found, clearly show, its meaning
depends upon the ccmnection In which it Is
used. A domestic servant Is one who resides
'For otbsr ums sss same topis sad ssoUen NUMBBB lo Dsc Ols. a Abu Dls- Key-Mo. 8«
Digitized by
W.Ta.)
.HAIX r. PBUa-DBLPBIA OO,
757
or woAs 1b the mftBt8r*B bouse. JkmmOe
^^l>^^M^T^ are tftine ubnala, aa contnidlstbL-
gnlilied from wild omb. Tbe AomeBtto tmSia,
commeEoe^ or Ukdostrj of a country Is tbat
which Is confined within Ha borders, as coa-
tradlatiiigTiiahed from trade with foretgn
countries. Dolved from the tatln "donres,"
it means o< a hoose, or ptftainlng or b^wg-
Ing thereto^ or to a boas^ld; home^ w fam^
ll7« when used as an adjective. In amna
sense domestic animals are connected with
the homes or the habltalftosis of men. Do-
mestic commerce, InduBtry, trade, prodnctloB,
and cmsnmptlon are such as are within tiie
boondailee of onr home coontir* In a bs>
mote sense they are oumected wttfa oar
homes or houses.
[4] Of oonrse, words in a contract or oth«
instrument are to be accorded their primary
meaning or sense, in the absence of an}*tlilng
In the context showing a contrary or dlflnent
intention. Williams v. OU do., 52 W. Va. ISl*
4S S. £. 214, «0 L. R. A. 799. But the word
"domestic"' 1b a derivaUre one. It expresses
some relation to boQse or home, as the ex-
amples already given will show, and Is not
descriptive of the house or home itstif. This
relation extends to thtngs outside of the
house as well as within It A house has an
exterior as well as an interior, and tbiqgs
connected with it on the outside are clearly
things of or pertaining to It Moreover, ont-
iMildingB and appllancee are accessories of
the interior rather than the extexlw, because
constantly used by the inmates of .tiie house
and contributing to their comfort The fam-
ily sheltered by a house, or making their
home within it, are of course related to it;
and persons and things brought within the
family circle are connected with It by reason
of their inclnsloD within the family. Logi-
cally, the cartilage and messuage Including
buUdlngs, pertain to the house and residence^
because connected with it and nsed for resi-
dential purposes. The mrtllage and messu-
age are domestic premises. A messuage is **a
dwelling house, with the adjacent bnildlnsB
and curtUagSt and the adjoining lands ap>
propria ted to the use of the household.''
Webst^s IHct ; BoDTier's Law Diet ; ii&r-
met Co. T. Archibald, 8t W. Va. 178, 17 S. B.
299; Oibson v. Brockway, 8 H. 406, 470,
81 Am. Dec 200; Davis v. Lowden, 66 N. 3.
E9q. ISA, 88 AtL MS.
The authorities nSM upon as dmwlng the
word "domestic,'' nsed as an adjective, re-
lates to the interior of a boose or dwelling
do not sDstain that position. In Wakefield
V. State, 41 Tex. 660^ and Richardson v. State,
48 Tex. 466, It ms used in a criminal stat-
ute, folUng under the rule of strict construc-
tion, and moreover, its meaning was indicat-
ed by the context It was an exertion from
the statute of burglary In these words,
"When the same is done by a domestic serv-
ant or otb» inhabitant' of such bouse." The
word ."other" manifested plain leglalative In-
trat to eoraept no person aa a servant nnless
he waa idso an liAaUtant or Inmate of the
bonse. In the statute oonstrued in Ex parte
Measim, 6 Bin. (Fa.) 167, the word ''servant"
was not qualUed by tihe word "domestic";
nor did the court si^ the servant must be
one whose work was within the walls of
the hoDie. The dedsion excluded from tba
pcotectien or deration of the statute work-
men iQ Iron mlUs and other jflaces wboDy
disconnected from the home, and by an
obiter dictum let in servants connected with
the homo, or "whose employm^t is about
the house or Its appurtenances, sucb aa the
stably etc, or who, residing In the hons^ are
at the command of the master, to be employ-
ed at his pleasure, either in the house or else*
where." Now, as always in tte past, many
houas servants actually realde In outbuild-
ings or servants' Quarters \a the cnrtUaga, or
constituting .part of the messuage, aOd are
popularly known as domestic servants never-
theless. .
Nor, on the other hand, do Uie authorities
relied upon by counsel for the appellant, as
defining the terms "domestic purposes," war-
rant an Interpretation of those words as used
in the lease, extending them to all purposes
for whldi gas can be beneficially used on
the premises of a fanner, or even thron^otit
the curtilage and meesnage. Relating, as
th^ do. to oontraets and laws pertaining to
water rights, tiiese anthorltUn have adopted
what may be called a legal or judicial defhil-
tion of the terms as nsed In that connection.
Hie rights of riparian owiters and ptfeons
through whose lands sireams of water run
to make-use of ttie water, not on]y.f(a lunue*
hold, but for all proper Mricnltural, pur-
poses, is termed In the tew boohs a domestic
use Qtereof or use for domestic purposes, to
dlstlngidtAi it from use for mannfftctnring
and commercial parposes or navigation. In
this connection the terms have a wen-defined
common-law signification;
A clearer and more satisfActory index to
the meuiliv of 1Mb tersM flian the definitions
in any of the authorities cited Is found in
the usage or custom shown by the evidence
to obtain In oil and gas r^ons. OH and
gas leases generally provide for free gas for
the lesmr's dwelling house, or one or more
dwelling houses on the prranisea. Such a
provision is usual and customary. It is
found in most of the printed forms of lease.
The free gas clause either stipulates for an
outside lig^t, or Is generally oonatrued by
the parties as authorising It Nearly all
lessors ot improved lands on which tfa^ re-
side have tree gas tor heat and Ught witiiln
the dwelling, and also for a Ught in the
yard. Advised Of tbi» well-nigh universal
practice, the parties may well be supposed to
hftve contracted wltli reference to it, and it
atfords a safer guide for Interpretation 9t
the clanee than the definitions furnished us.
A custom or usage Is not allowed to oentrol
or vary the meaning of wo^ ,7tS(jf(ygle
768 TS SOUTBBABTDBN BBPOBTEB (W.Ta.
bare a de<e legal algnlflcatloiL Bowjer
T. Martin, 0 Rand. (Ta.) 025. Bat If tbey are
uncertain or hare not a fixed le^l slgniflca-
llon, a inrtlcnlar custom may be proved as
having been within tbe knowledge of tbe par^
Ues at the time and Impliedly adopted as a
part of the contract Bowyer-r. Blartfn, cit-
ed; Johnson Burns, S9 W. Ya. 6tS8, 20 S.
B. 886; Cobb t. Dnnlerle, 68 W. Ta. 898,
407. 60 8. B. 884; Anderson t. Lewis, 64
W. Ta. 297. 61 B. B. 160; Lumber Oo. v.
Wilson, 69 W. Ta. 008. 72 S. BL 651.
As to the mode of nse^ the contract Is
silent It contains not a word re^tectlng the
sort of bnmers to be used for light or stoves
or fires for calinary and heating purposes.
For outside lights Inclosed burners were not
generally used. If at all. at the date of the
lease, and this usage or custom Is relied upon
as deflnli^^ for the purposes of the contract,
the mode of use. That the flambeau light
inTolres an extravagant and waat^al con-
snmpUoD of gas Is fully established by the
evidence. In a given time it will consume
about 100 times as much gas as an Inclosed
mantel burner, and gives no better light
The practice usual and customary at the date
of the lease may have been determinative of
the mode of use at that time, but it cannot
be regarded as having settled It for all time ;
for it did not cover the future. Its observ-
ance at the date of the contract was not in-
consistent with Intent to adopt in the future
such measures as economy in the use of gas
might suggest or dictate. In the early de-
velopment of the use of natural gas the In-
stmmentalities for its application for practical
purposes were crude and unscientific and not
productive of the best results. Time has
changed all this by the disclosare of new and
mcffe sdentlflc appllasces. Here, aa else-
where, we think the law recognizes and as-
sumes. In the absence of proof to the con-
trary, intent on the i>art of the lessee and
lessor to carry the contract Into execution iu
such manner as to avoid useieas and unnec-
essary waste. This question arose in Gas Co,
V. Saltsbnrg, 188 Pa. 200. 20 AtL 844. 10
Li R. A. W&, and the contract there involved
would have been construed by the court as
requiring the use of economical burners, if
the evidence had established their efficiency
and practleabllity of their nae. That case
was decided la 1800. sluoa which time great
progress has been made In the improvement
of the methods of pae of natural gas. Aa to
Qie efficiency of inclosed gas lights for out-
side use, the evidoice In this caae leavea no
room tor doubt, and It pnta bey(md all ques-
tion the extravagance and wastefolneas In
the use of gas by the maintenance of open
lights.
These prindples and views result in the
ooodnslon that Uu contract entitled ti>e
Idaintifla. Qw leasors, to the customary one
lli^t at such place within the curtUage and
outside ot the house aa tli^ may de^^nate;
but they must use for that purpose an eco-
nomical burner, to be provided by thenuelvea.
The course of the examination of aonn of
the irttnesses suggests an Inquiry em to
whether the principle of economy* here ad<^t-
ed and applied in tbs constmctiott of the con-
tract, may be carried so far the lessee as
to compel the lessors to use a parOailar kind
of stove or fire In beating their dwelling.
As to tiiat, of course, we dedde nothinc.
stnee It ta not Involved; hot It ta not Inap-
propriata to say. in thta connection, ttiat the
principle ta not to be applied or sDforced to
an unreasonable extent Tbm may be modi
leas room or cause for complaint on the
ground of wastefulness In the nse (tf a erode
or improvised Inside burner than in the
maintenance of an open outside llg^t and the
cost of approved stoves or open fires is ret-
atlvely nmdi greater ttian the provlskm of
a smell burner for Il^t
In its dismissal of the Ull the oourt proper-
ly found for the defbndant on the sbigle Issue
wliethm the plaintiffs were entitled to gas
for an c^oi light in the yard, arising upm
the single cause 6f action stated In the bill:
wherefbre the decree comidained of will be
affirmed.
ROBINSON. concurs in result only.
(71 W. V».
BYBNB V. WHEELING CAN 00.
(bapreme Court of Appeals of West Titglnla.
June 17, 1918.)
(8vUahu9 hy <fc« Court.,
1. MnnOIPAX. CORPORATIOICS Q 671*) —
Stbebts Ann Al^lets — BssraAiKxiia Ob-
struction.
When it is proposed to occupy permaoent-
1; a public street or alley for private use. an
abutter who would be Injured by such occupan-
cy may prevent the same by injunction.
[Ed. Note.— For other cases, see Monidiml
Corporattona, Cent Dig. H 1447-1400; D«e.
Dig. 1 671.^
2. Municipal Cobporatxohs tt 657*>— Pub-
lic Allkts— Vacation.
The power of a municipal corporation to
vacate a public alley can be exercised in the
public interest only, and not for the sola pur-
pose of benefiting a iwivate person.
[Ed. Note.— For other cases, see Monidpal
far'^Tb^Tes?!?- M ««• 1^
8. Municipal Cobpobations (| eS8*)— Al-
LETS— NaTUBB op AS PUBUO '^lOHWATS."
Public alleys are Ugbways, and, in g«i-
eral. are governed by the legal rules apidlcable
to streets.
[Ed. Note.- For other cases, see Mnnldpsl
CorporatiOBs. Osnt Dig. | 1^; Dec. Dig. S
65S.*
For other definitions, see Words and Phrases,
VOL 4, pp. 3291-3300; voL 8, p. 7678.]
Anieal from Circuit Court Ohio County.
Suit by William Byrne against the Wheel-
ing Can Company. From a decree for plain-
tiff, defendant appeals. Affirmed.
*Por Mbsr casM sm ssms topic and mcUob NUHBBR In Dse. Dig. A Am. Dig.
W.Tfc)
SOUTH OIL 00. T. HAUGHT
759
RQBsell & Bnssell, of Wheeling, for ap-
pellant Joseph Handlan, of Wheeling, for
aroelleeb
ROBINSON, J. The conndl of the dty of
Wheeling passed an ordinance granting to de-
fendant certain portions of two public alleys.
The ordinance expressly states that the
grant Is made for tbe purpose of enabling de-
fendant to enlarge Its manufacturing plant
Thus the ordinance plainly shows on Its face
that the alleys were ordered vacated, not in
the interest of the public, but In the Interest
of a private manufacturing concern. De-
fendant, relying on this ordinance, began the
work of building its plant on the alleys.
Plainticr, owning property immediately ad-
joining, sought an Injunction against such oc-
cupancy of these public ways by defendant
Defendant appeared on the application for
the injunction and filed Its answer. It' ad-
mitted that It was proceeding to build on the
alleys, but <^lmed that the ordinance gave
it the right It denied that plaintiff would
be Injured, since the ordinance provided that
defendant should make a new alley on a
different location. The injunction was grant-
ed. Defendant's motion to dissolve was
overruled. From the order refusing to dis-
solve the injunction, we have this appeal.
Notwithstanding the general denial of In-
Jury in the answer, it appears rather self-
evident that plaintiff would be injured by the
proposed occupancy of the alleys by defend-
ant As an abutter plaintiff has a peculiar
Interest In the alleys, which afford access,
view, light air, and other conveniences to his
proper^. He can not be deprived of these
conveniences without injury. The proposed
new alley will not relieve the injury. It can
not make np for a massive wall of a factory
bMng placed Immediately against the side of
plalntUTs property, where once were light
entrance, view, air, and appropriate distance
from other property. Plaintiff has a pecul-
iar light to the public alleys as he fonnd
tixem when he purchased his property and
buUt npon It Deprivation of sndi rU^t la
a direct injui^ to him. He may be deprived
of that right for the public use, bat not for
a mere private ase. When it is proposed to
take Oie same for private use, he Is clearly
entitled to InjnncUve process. Peace t. Bry-
ant, 54 W. Va. 263. 46 S. B. 275.
[1,2] The order refna^g to dissolve the
injunction is right It was quite proper to
continue fbe injunction. The grant of the
alleys to defendant by the dty is, on its face,
absolutely vdd. It affords no protection to
defendant as against plalntlETs suit to en-
join. Public streets and alleys can not be
granted by municipal corporations to private
persons. In the Interest of the public they
may be vacated, but they can not be given
over merely for private use. "The power to
vacate a street or public place is to be ez>
erdsed In the public interest, and not for the
sole purpose pf benefiting a private party."
Dillon on Municipal Corporations, sec. 1160.
"Highways can not, in any event, be dlscon-
tinned for the purpose of devoting them to
private and inconsistent uses." Elliott on
Roads and Streets, sec. 875. The ordinance
In .this case declares Its own Invalidity. The
end to be accomplished Is declared on the
face of the ordinance, and thereby shown to
be one not within the power of the council.
Pence v. Bryant supra. There has been no
legal vacation of the alleys.
[3] Defendant says that though streets
may not be vacated for private uses, yet al-
leys may be. No such distinction can be
mad& The reason underlying the principle
that a vacation can be made only in the in-
terest of the public, applies as strongly in
the case of alleys as In that of streets. "If
the alley is a public one. It is a highway, and.
in general, la governed by the rules applica-
ble to atreeta." Enilott on Roads and Streets,
sec. 23.
The order overmllng the motion to dis-
solve the Injunction will be affirmed.
01 w. Va. 7W
SOUTH PBNN OIL CO. t. HAUGHT et at
(Supreme Court of Appeals of West Virginia.
Feb. 4, lpl3J
fByllaiiu by ih9 Oovrt.)
Joint Tbnancy (it 8, 10*)— Mines and Min-
ERALB (|8 56, 73*)— Oil and Gas— Deed—
Ij:asb— Waste— ^-AcconNxiNo— Injunction.
S. grants to 8. P. O. Go. "the undivided
one-fourth of all the oil and gas in and un-
der" a tract of land, subject to an oil and gas
lease then held by the grantee from the gran-
tor on the same land, whicb provided that ia
case of productioD the leaaor was to receive
one-eigbth as royalty'. The grant also provid-
ed that. If the land was operated under the
lease, the grantee should receive one-fourth of
the royalty provided in the lease to be deliver-
ed to the lessor. There were no operations un-
der the lease and it expired. Oil was later
produced from the land by a lessee of a subse-
quent grantee of the land, both of whom had
knowledge of S. P. O. Go.*8 claim of title to
one-fourth of the oil and gaa. In a suit by
S. P. O. Co. for an accounting and to enj(un
further development, Held:
I. The grant vested S. P. O. Co. with title
to one-fourth of the oil and gas under the land.
II. That the productioc of oil without Its
consent constituted a waste and gave It the
right to an accounting.
III. ^at under the drcumatances of the
case, the fair and equitable basis for account-
ing 18 the i/aa of the entire output of oil de-
livered to it m the pipe line.
IV. That it has a right to have any farther
development of the oil and gaa enjoined.
[Ed. Note.— For other cases, see Joint Ten-
ancy, Cent Dig. || 5-11, 13 ; Dec. Dig. U 8,
10-* Mhies and Minerals, Cent Dig. f} U&-
165, aoi, 210; Dec.Dlr.IIKS 78.*!
Poffenbarger, P., and hDller, J., dlssentiiig.
Appeal from Circuit Court, MonongaUa
County.
•Vgr etlwr eaaaa sam topis and Motion HUMBSR la D«e. Dig. * Am. Dig. Kay-NOifiiUiM*
760
18 SOUTUUAffrBUN BBlPOKI*Bat
<W.Ta:
Action tor the South Penn Oil Company
agaloBt A. P. Hanght and others. From
Judgment for defendants, plaintiff Appeals.
Reversed and remanded.
A. B, Fleming, Charles Powell, and Kem-
ble White, all of Fairmont, for appellant
mile & Dille and Moreland, Moreland &
Guy, all of Morgantown, for appellees.
WIZXIAHS, J. OUdinliig to be the owner
of the one undivided fourth of the oil and
gas In place ' under a certain tract of land
containing 02 acres, situated in Battelle dis-
trict, Monongalia county, owned by the de*
fendant Joseph & Smith, plalntur brought
Uiis suit against A. P. Haug^t, lessee of
Bald Smith, and others, tor an accounting
for its alleged share of the <^ i^roduced from
the land, and to eojoln further boring of
wells. The court refused rdief and dismiss*
ed plalntiTs bill, and It has apipealed.
[1] It is important flrst to determine
whether plaintiff Is a Joint tenant with said
Smith of the <dl, and that question depends
upon the effect of the following deed made
to plaintiff, by Joseph 8. Smith's father and
grantor, viz. : "This deeA made the 2Sth day
of Octobeti In the year A. t). 1897. between
Japbeth Smith of Wadestown, Monongalia
county. West Virginia, party of the first
part, and South Penn Oil Company, a Penn-
sylvania corporatlcm, party of the second
part: Wltnesseth, that In consideration of
<Hio- dollar, flrst party does hereby grant
and convey, with covenants of general war-
ranty, unto the said party of the second part,
its successors and assigns, the undivided
one-fourth Of all the oil and gas In and un-
der the following described lands situate In
Battelle district, Monongalia county, and
state of West Virginia, namely ; lying on the
waters of Dunkard creek bounded substan-
Ually as follows : [Here follows the descrip-
tion.] Subject however to a certain lease
for otl and gas purposes made by Japheth
Smith to South Penn Oil Company, dated the
day of ■ - , 18—, and recorded in
county in — — ■ Book at page
■■ . And so long as said premises are
operated under said lease the party of the
second part hereto shall be entitled to re-
ceive one-fourth of the royalty provided
therein to be delivered to the party of the
first part, together with the right of ingress
and egress to, upon and from said lands
for oU and gas purposes, subject to the lease
aforesaid. And further when tbb lease above
recited shall expire or become void the party
of the flrst part does hereby demise and
lease unto the party of the second part, its
successors and assigns, the land above de-
scribed for the purpose of operating for and
producMig thorefrom the remaialng. undivid-
ed, one-fourth of the oil and gas contained
In and under said land (being the undivided
one-fourth of said oil and gas not hereby
Mid) fer-tbe tatm of twenty .yean. finun the
expiration of said lease, and as long tiiere-
after as oU or gas Is found in paying quanti-
ties and the party of the second part hereby
agrees to pay therefor, while the lease of
said one-fourth Interest sball remain In force
and effect, the one thirty-second part of all
the oil produced and saved from said land
and flfty dollars, per year for each and every
gas well while the product therefrom la be-
ing sold and utilized off the premises. This
grant shall bind the parties, their heirs, ex-
executors, administrators and assigns. Wit-
ness the following signatures and seals. Ja-
pheth Smith. [Seal.] Attest: A. A. J. Gaa-
kllL"
The lease referred to in the forgoing
deed was dated the 13th of April, 1806, and
was to remain in force for flve years, and as
long thereafter as the land was operated for
the.productlon of oil and gas. No operati(ma
were ever had under that leas^ and It ex-
pired on the 13th of April. 1901.
There Is no doubt that the purpose of the
grantor In the foregoing deed was to invest
the grantee with a present ratate In fee
simple, in and to the undivided one-fourth of
all the oil and gas under the 100 acres of
land, and that the legal effect of the lan-
guage used fully accompliahea that purpose^
Counsel for defendants insist that the In-
tention was to grant a one-fourth of the ny-
alty interest only. 'We do not think bo. In
order to arrive at the purpose the whole
instrument must be read together, and its
various parts made to harmonize If possible.
That part leasing a fourth, not sold, is not
material. It does not conflict with grantor^
purpose to convey one-fourth in places nor
does it shed any additional light upon Uie
granting clause^ The deed is clearly divis-
ible into two separate and distinct parts:
(1) A grant for one fonrUi, and C!) the lease
of another foUrUL Attd, inasmuch as plain-
tiff daims nothing under the lease^ it may be
eliminated altogether.
The flrst part of the deed is, in form and
effect, an absolute grant of an undivided one-
fourth of all the oil and gas In place. The
language could not be plainer to signify an
intention to convey such an estate; read
alone, It Is too plain to admit of construc-
tion. No other part of the deed Indicates
any different Intention, because there is noth-
ing that conflicts with the granting clause.
At the date of the deed, the grantee held an
oil and gas lease on the land, but that did
not prevent the lessor from granting what
he had. He simply granted "subject to the
lease." That was not a restriction upon the
grant; It was simply to preserve the rights
of the parties to the lease. No development
had been made at tliat time, and hence ^e
lessee had acquired no vested Interest in the
oil and gas In place; it had only the right
of exploration, and, on finding oil or gas, the
right to extract It The title to those^ min-
erals was stUl la Jjfl^y^(^L^
SOUTH PENN OIL 00. t. HAOCUTT
then iiarts of the realtr. And tbe extstenee
of the lease did not prevent Mm from part-
ing with bis title to those minerals in placa
The following provision harmonizes well with
the purpose to grant title to one-fourth of
the oil and gas in place, tIs., "and so long as
said premises are operated under said lease
the party of the second part hereto shall be
entitled to receive one-fourth of the royalty
provided therein to be delivered to the party
of the first part" This shows a porpose, not
only to vest the grantee with title to so much
of the oil and gas In place as the grantee
would have acquired a right to under the
terms of the lease, if it had developed the
property, but also title to so mucb of the
royalty oil as the grantor would have been
entitled to receive on account of the un-
divided one-fourth, to wit, Vsa of the olL
So that, whether the lease was worked or
not, it was clearly the grantor's purpose to
part with all his title and Interest so far as
it related to the undivided one-fourth.
Plaintltf therefore became the Joint tenant ot
Japheth Smith In the oil and gas, at the
same time that it was his lessee. Of course,
the rights acquired in the one-fourth by the
lease were merged In its greater estate. But
the lease was still operative as to the remain-
ing three-fourths owned by its grantor. The
expiration of the lease did not operate to
divest plaintiff of its title to the one-fourth.
The real oonadd&Eation paid to the grantor
was not $1, the deed redtei^ but 9600^
and the receipt signed by him on the day
the deed was executed states that it was
given for "the undivided one-fourth (!/«) of
all oU and gas In ai^ under my farm of 100
acres aitnated In Battelle district, Mosod-
galla county. West Va." This la in barmony
wlth his deed.
In 1890 Japheth Smith granted to Us two
BOQB, Joeoph S. and James F. Smith, the said
100 acres of land, in severalty, granting to
the defendant Josei^ S. Smith 62 acres
thereof, which is the land from wfaieh the
oil now in controversy is being produced.
And onthe24thof April. 1A07, J.S.Smith ex-
ecuted to A. P. Haugbt an oil and gas lease
upon It, in conaideratioo of the delivery to
him in the pipe line, of one-eighth of the
oil produced; and $100 a quarter, payable
in advance, for each gas wtU. Joseph S,
Smith and Haugbt both had knowledge, actu-
al and cooatmctive, of the deed from- Ja-
pheth Smith to plaintiff, before boring foir
oil, In December, 1906, Baoght begfia pnep-
fl rations for drilling a well, and in two or
three months completed the flnt well at a
cost of about $10,000. He continued drill-
ing, until he had pot do«n ftmr wtils, aU of
which proved to be flowing wells.
Joseph S. Smith was the Jirtnt tenant of
plaintiff In the oil and gas, and the sole
owner of all oth^ parts of the land. But
he had no right to extract the oil withont
his ootnont's consent, and could confer no
such right upon aaothwt The cstraction, by
one Joint tenant, of oil and gas without the
consent of his eo tenant, constitutes waste;
it Is a trespass for which he Is liable to
accoont to his co tenant. Cecil v, Clark,
W. Va. 408, 39 & E. 202; Stewart v. Ten-
nan t, S2 W. Va. 6G9, 44 B. B. 223.
FlalnttCTs bill prays for an injunction to
prevent further waste, and for an accounting
for the valoe of the one-fourth of the oil that
has been, and Is being pvoduced from the
four flowing wells.
The question that haa given us most trou-
ble to decide is: What la the proper iMUis
of accounting? Should plaintiff reodve one-
fourth of the in gross, or should It be
charged with one-fourth of the cost of pro-
duction? Neither J. S. Smith nor his leasee
Haugbt were Ignorant of plaintiff's claim of
title. At the time he was making prepara-
tions to drill the first wtil, and before he
had erected his derrldc, to wit, on the 22d
of December, 1908; Hau^t was served with
the feUowlog notice, vis.: "Flttflborg, Pen-
n'o, Doeembw 22, 190& South Penn Oil
CompaiUF— Ur. A.- P. Hanght: Wa oiider-
stand that yoa are starting a weU on ,v^t is
known as the Joseph Smith, form, Battelle
district^ Monongalia ooonty. West Ylrgbila.
We ar^ tlia ownerp in fee of one^narter of
the oil and gas In said pnwerty and irill
Ipok to yon to account to ui for one-anortec
of the entire product of any weUs drilled on
this property without oost to no. Tours vwy
truly, [Signed] B, B. Orocker, Vice Preal*
dent"
B^irtbennote, in hie teetimoDy he admits
that he was awane of plalntifl*e daim. And
again, after the first wee drilledl, fifr.
Haught had prwared a dMidoa order, by
whldh the pipe Une company was authorized
to deUver to plaintiff i/s« of the .oU; it
refused to sign the order, end again nottfled
Mr. Haugbt, on the 8d of April, 1909, that
it dalmed one-fourth of all the oil produced
from said farm, and demanded that that
much be delivered to it On cross-examina-
tion Mr. Haught was asked if he had not
contracted for about all the uiaterials for
wells Nos. 2, 8, and 4, after this, last notice
was served upon him, and bis reply was:
"I want to say, I tell yon, brother, 1 didn't
pay no attention to their notice." Mr.
Haugbt was not Ignorant of bis cotanant's
claim. His mistake lay In giving a wrong
construction to the deed under which plain-
tiff elaimed title, a mistake ot law, agalast
which, the law Itself gives no relief. But
sbonU not the plaintiff, who has Invoked
the aid of a eoort of equity, be also required
to do equity? And would it not be' both a
aewe punishment to Hai^rht and his as-
sociates for the trespass, and an enormous
profit to plaintiff to require them to ac
count to it tor the one-fourth of all the <dl
produeedt Would not a tsir compensation
for the mong be tiia ralue In plaoe-^plaln-i
Digitized by V^OOg IC
762
78 SOUTHBABTBHN RBFORTBB '
(W.Va.
tiff's one-fourth of the otl ; and is that any
more than the value of the royalty oil after
It Is produced? Plalntifl, by Its own lease
which It had suffered to CQdre, estimated the
fAl In the ground as being equivalent to one-
eighth of the same oil above ground. It
could not be utilised while in the earth; It
had to be broogSit to the snifhce before It
could be marketed. It had only a specula-
tive value in the ground. In view of the
facts and drcumstances of this case it Is just
and equitable to require the defmdants to
account to plalntifl for tlie royalty, or the
i/st of the cdl produced, and to be produced
fnun the four wells, as being a just com-
pensation for the wrong, the waste commit-
ted. Plaintiff'a equities are no greater be-
cause of the notice it sorved <m Haught; it
only informed him of the amount of oil it
would claim from any producing w^Is he
might drill on the propwty, and. In con-
templation of law, he knew that already.
The notice did not warn him to ceaae drill-
ing; and it is posdble, and perhaps highly
pr6bable, that i^ntlfl wished that he m^ht
continue to drill. In order to test the pr<^
erty. knowing foil well that it could not be
held liable, in the absoKe of an agreement
to that effect, for any PSrt of the expense
of sinking a dry well. The notice is artfully
drawn, and Is almost aa slgniflcant for what
it falls to say, as for what It in foct does
say. Plaintiff took no active steps to prevent
drilling until after Haught had sunk four
producing wella at a total cost of about
$40,000. It then waited nearly five months
after it had been presented with tbe division
order prepared by Haught, conceding to it
only a i/as part of the oil produced, before
bringing this suit In view of these facts.
We do not think It has any better reason to
demand its one-fourth of the oil, free from
cost of production, than did Jones, In the case
of Williamson v. Jones, 43 W. Va. 562, syl.
pt 18, 27 S. B. 411, S8 L. R. A. 604, 64 Am.
St Rep. 801. Under the drcumstances of
that case It was held that : "A party taking
petroleum oil unlawfully is allowed all costs
of production, Induding costs of boring pro-
ductive wells, as a set-off against rents and
proflts." The same prlndple was again an-
nounced and applied in Stewart v. Tennant,
52 W. Va. 669, 44 S. E. 228, and in Cedl
V. Clark, 40 W. Ta. 468, 80 S, E. 202, which
waa a suit by one cotenant against another
for the unlawful extraction and sale of coal
from under the land. In that case the tenant
committing the waste was required to ac-
count to his cotenant only for his share of
the profits, which was his share of the roy-
alty on the ooaL Tbe prlndple applied in
the two classes of cases la the same, tbe tect
I that property, in the last ease cited, was
coal, and the royalty so many cents per ton,
could make no difference In the application
of the prlndple. It was aa mndi waste to
extract coal as oil, and, if tbe court had
applied the rule for accountii^ in that case
that plaintiff asks to have applied In this,
the trespasser would have been held to ac-
count, not simply for a share of the royalty
paid by tbe leasee, but for the full value of
tAe cotmaht'a share of the coal, after it
bad been mined.
It appears, In this case, that the gross
amount of oil produced amounts to about
916,000, while the coat of prodndng it
amounts to near $40,000. Therefore, te
diarge plaintiff wlt^ one-fonrfli the actual
cost of production would be to bring It In
debt, whldi is inequitable. It would extin-
guish its Interest It would be, in effect,
forcing It to operate Its property at a loss.
Haught howevOT, In the dlvlaion order sign-
ed by him, conceded to plaintiff i/as of the
oil, and. In view of that concession, and in
view of the fact that plaintiff had formerly
leased the proper^ from Japheth Smith and
had agreed to deliver to him tlie one-dgbth
of the oil to be produced, as royalty, we
think that Vts delivered in the pipe line to
the credit of plaintiff, is a folr bads of
accounting for the value of Its one-fourth of
the oil In the ground. Says Judge Holt in
Williamson v. Jones, 39 W. Va. at page 264,
10 S. E. at page 445, 26 L. R. A. 223: "I
should think that a co-owner, who has ex-
pended so large a sum, entirely at his own
risk, but with the knowledge of the other co-
owners, in BO hazardous an enterprise as
developing oil In an unexplored field, ought
not to do more than account to them for thdr
proportion of a customary royalty, proper
and fair under all the drcumstances."
One joint tenant of oil and gas. having no
right to extract it from the earth without
the consent of his cotenant cannot confer
such right upon his lessee. Plaintiff had a
right ftt any time, to enjoin the drilling of
additional wells, and Its bill prays for such
injunction. It was therefore error to dis-
miss plaintiff's bill, and to deny it a perpet-
ual Injunction against Joseph S. Smith and
those defendants claiming under him, medi-
ately or Immediatdy, from drilling any otber
011 or gas wells upon 'said property. The
decree of November 1, 1910, is reversed, and
the cause remanded for farther proceedings
to be therein had according to the prindples
herein announced, and furth^ according to
the. prlnc^les govvmlnf courts of equity.
POrTBNBABOHDBk P., and ICIUAB, J.,
dissent
Digitized by Google
PAXSOK BROS T. BUTTKaiCE PUB. 00.
768
(UO Oa. lES)
CHABLG8T0N 4 W. G RT. CO. T. COBB.
<Siq^Teme Court of G«ot^a. Jane 14, 1913.)
fByllabua by the Court.)
1. Master and Skbvant (5 258*)— Injumw
TO Servant— Pleading — SuFnciENOT.
The petition wax not demurrable.
[Ed. Note.— For otber caaea. see Maater and
fierrant, Gent. Die. H 816-886; Dec. Dig. S
258.*]
2. Trial (1 89*)— RBCMrtioir or Bvidsnctb—
Stbikino Out.
Where one groand of negUsence U allied
to be the violation of a rale promulgated by the
company, and pared evidence la offered to show
the eziatence of atich rule as applicable to all
employes, it is not error to refuse to exclude
auch evidence on tbe ground that one of the
witneaaes, tboagb teatifying generally aa to the
rule, may have aaid in one part of hia testimony
that auco role was for the protection of a class
of empIoyCa to which tiio plaintiff did not be-
long.
(Ed. Note.— For other cases, see Trial,- Cent.
Dig. H 228-234; Dec Dig. | 88*]
8. SumcnNOT op Evidence.
Tbe verdict is supported by the evidence
and none of the asrignmenta of error require a
new trial.
Error from Superior Court, Bicbmond
County ; H. C. Hammond, Judge.
Action by WllUe Cobb against the Cbarles-
ton & Western Carolina Railway Company.
From a Judgment for plaintiff, defendant
brings error. Affirmed.
W. E. BllUer. of Auguata. for plaintiff In
ettw. A. It. Franklin, of Aagn^ for de-
fuidant In error.
EVANS, P. J. [1] 1. Tbe case made by the
petition la that the plaintiff, employed by
the defendant railroad company as a car
greaser, whose doty required him to help
tn making slight repairs to cars placed on a
track alongside the Central Railway Com-
pany depot, while under a car "placed" on
the track at such depot, engaged In the per-
formance of his duty and without fault on
his part, was Injured by tbe sudden, violent,
and negligent shifting of a switching engine
moving bearlly laden cars ^^alnst tbe car
under which tbe plaintiff was working. It
ma alleged that the defendant was neg-
ligent In moTtog tbfl anrltdiliig engine on tbe
track where the "placed cars'* were standing
and i^alnat them without giving him wam-
inft when the agent of the cmnpany in
chuge of the engine knew, or In the exer^
dse <tf ordinary care ecniM have known, that
plaintiff was working under one of the
"placed" cars. The railroad company waa
further alleged to be negligent In the viola-
tion of a rale of tbe cranpany providing
that cars "placed" on a depot track should
not be moved without giving noticeb and that
the Injury was the i^ozimate reanlt (tf the
violation of flils rule. The court overrnled
a demnrrer to tbe petition, and we fUnk the
foregoing general statement of the plaln-
tUTs petition makea it dear- Uiat bla bmor
was right
[2] 2. The plaintiff testified that he was
Informed by tbe chief yard Inspector that
the rules of the company forbade the switch-
ing of cars on the depot track; that he was
performing his work according to Oxe gen-
eral directions which be bad followed for
four or five years; and that be bad never
seen cars switched on the depot track during
that period. He <^ered a witness who testi-
fied tbat there was a rule of tbe company
that when cars were placed on the depot
track they should not be moved without first
notifying the men on the platform "so they
could pick up the boards and get out of the
way." He also testified that it was against
the rules of the company to move cars
"placed" on the depot track. A motion waa
made to exclude all testimony relating to
the role, because such rule was promulgated
for the t^otectlon of truCkera or warehouse
employes engaged In loading and unloading
cars, and not for the protection of car greas-
ers. The motion was denied, ^o objection
was made to the parol proof of the rale, nor
did it appear that the rule was In writing.
The plaintiff had alleged the existence of the
rule and testified that the chief Inspector of
the yards had promulgated it to him. The
rule which the inspector promulgated to the
plaintiff did not limit Its application to truck-
ers or warehousemen or to any particular
class of employes, according to his testimony.
While tbe other witness referred to the rule
as requiring a warning to the men on tbe
platform, yet In another place in his testi-
mony he gave tbe rule as contended by the
plaintiff witbont any limitation. If the rule
was a written one, the defendant could have
required the production of tbe writing and
objected to verbal proof of It But It raised
no objection to the mode of proof, and the
testimony of the witness tended to establish
a role applicable to all employes, and there
was no error In refusing to exclude the tes-
timony on the ground stated.
[3] S. We think the verdict is supported
by the evidence, and that none of the assign-
ments of error reqtdre a new triaL
Judgment affirmed. All tbe Justices con*
cur.
OM Otu lOT)
PAXSON BROS. V. BUTTBRICK PUB. OO.
(Supreme Court of Georgia. Jnne 12, 1918.)
(evUoUu by the Court.)
Saues (I 168)^*)— AcnoH vob Fbiob — Db-
nnsBB.
Under the facto of this case, the purchaaor
of the goods, for the price of which the action
was brousht, did not hare the right to retom
them to toe vendor and to receive credit there*
for.
[Ed. Note.— For other caaea, see Salea, Cant
Dig. if 400-421 ; Dec. Dig. S 168%.*]
•rer athar easaa aaa aaaw taple and aaottoB NVMBBa la Dee. XMg. 4 An. Dig. Kar-N^||f5^^^il^Q^g[(2
764
18 EK)DTfiBASTBRN BBPOKTIIB
(8a.
Error from Snperior Court, WUcoi Coun-
ty; W. F. George, Judge.
AcUon by the Butterlck Publishing Com-
pany against Paxsoa Bros. Judgment for
plalntlfr, and defendant brings error. Af>
firmed.
Tbls vas an aetlm tnoogbt by the Bnt-
terick Pabllablng CSompajiy against Jesse B.
Paxsoo and Omar F. Paxson, composing the
fltm of Paxson Bros., on an aceoont for the
purchase lolce of goods »tM by the plalntllT
to the defnidattts In accordance witii the
temia of a wrlttn contract betweoi the
parties. So much of the contract as Is here
material Is, In sobstanee, as follows: The
agreemoxt was dated February 22, 1910. It
was In die tatm of an order glrsn tqr the
defendants to the plalntUE tor a cwtaln
quantity of patterns, which order the plain-
tiff accepted. The contract was to entinue
In fbrce for a term of three years from date
and from year to year thereafter onfll It
should be terminated by either par^ girlng
the other a three months' terminating notice
In wrldng at the ezidxation of any contract
p«lod or within 80 days tliereafter; tlie
contract to remain In force during said tluee
months. The defendants agreed to purchase
and to keep on hand for sale «t all times
during the term of the contract the patterns
of the plaintiff to an amount not lees t^n
the original stock of patterns purchased; the
purchase price of the original stock being
$100, to be paid $5 cash, $46 on May 25, 1910.
and the balance, 950, to remain unpaid until
the termination of the contract, with 8 per
cent Interest from date, payable semiannu-
ally on January 15th and July 15th each
year. Defendants further agreed to panAase
eadi month during tike contract patterns to
the amount of $7.S0, to be paid for on or
beton the 15Ui of the month following their
shipment The patterns discarded from the
plalntifrs catalogue were to be exchangeable
during the months of January and July for
new patterns at nine-tenths of the sum paid
for them, and all patterns which defendants
might have on band at the oxidation of the
term were to be returnable for repurchase at
three-fourths of cost in cash, if delivered to
the plaintiff's New York office In good con-
dition, payable within one month from date
of delivery. Defendants further agreed to
permit the company, or its representatlTe, to
count the stock of patterns at any time and
to accept patterns sent to fill up any shortr
age ; to rec^To and distribute gratuitously,
regularly as issued, the Butterlck fashion
sheet and quarterly catalogue during the
term of the contract; to keep tbe patterns
on the ground floor of the defendant's build-
ing; to give, or cause to be given, prvpa
attention to the sale of Butterlck patterns;
to use beat endeavors to advance their sale ;
not to sen, or permit to be sold, on thd
premises of the defsndanti, during the term
of the contract, any other make of patterns;
not to sell Butterlck patterns except at la-
beled iHlces; to conserve the Interests tif
the plaintiff at all times : and not to remove
the pattern stock from Its original location
without the written consent of the plaintiff.
The contract contained the stipulation tliat:
"Fallore or neglect by either party to per-
form any provision of this order will, at
the option of the other, release the other par-
ty from all obUgations hereund^."
The plaintiff furnished to the defendants
the original stock of patterns and contin-
ued to supply the defendants with goods un-
der the contract until defendants became
indebted to the plaintiff In a stated amount;
the defendants having several times defaul^
ed In making payments. Defendants subse-
quently ordered more patterns which the
plaintiff refused to furnish unless defendants
settled their past Indebtednees. Afterwards,
on September 1, 1910, defendants notified
plaintiff. In writing, that the letter's refusal
to furnish the patterns last ordered was such
failure on the plaintiff's part to comply with
the contract as released defendants there-
from, and that they thertfore elected to
declare the contract terminated. In the
same communication defendants informed
the plaintiff that they had "shlK>ed back"
to the plaintiff certain patterns, literature,
and a cabinet These the plaintiff declined
to receive^ and the action was tho^npon
■brought for the price of the goods t^vionsly
furnished, less the amount that had been
paid by defendants. By consent the case
was submitted to the Judge for determination
without a Jury; it being agreed by counsel
for both sides that the only question to be
decided was whether the defendants were
entitled to credit Cor the goods which they
offered to return and which the i^intiff re-
fused to accept The Judge decided that
sudi credit should not be allowed and ren-
dered Judgment against the defendants In
the amount for which the action was brought
Defendants moved for a new trial, wUdi,
being overrule, they excepted.
H. B. Gannon, of Abbeville, for plaintiff la
error. Hal Lawaon, of Abbeville, for defbid-
ant in cmw; '
FISH, a J. (after stating the facts as
above). The trial . Judge properly decided
that the defendants were not entitled to cred-
it for the goods which they sought to.retom.
The contract express stated that It was to
continue in force for the term of three years
from date and from year to year thereafter
until It should be terminated by either party
giving to the other the written notice therein
prescribed. Moreover the contract, consider-
ed as a whole, clearly Indicated that It was
not the Intention of the parties that It
should be speedily or abruptly terminated,
It was agreed
GBOROIA COAST & P. ». 00. T. JONB0
766
the explratloD of (be term of Uds order
wilt be returnable for repnrcbase at three-
fourths of cost in caeb If delivered at your
Itbe plaintiff's] New Tork office In good con-
dition, payable within one month froiti date
of delivery." Anottier term of tbe agreement
was : "Fallnre or neglect by either party to
perform any provision of this order will, at
the option of the other, release the other
party from all obllgatlona thereunder." This
last stipulation, however, was but the state-
ment of a well-recognlzed 1^1 principle
which would have been operative had It
not been expressed in the contract See Sa-
vannah Ice Oo. r. American Transit Co., HO
Oa. 142, SO 8. B. 280, where it was held that
teilnre to make payments for articles de-
livered under a contract during a series of
years, to be delivered in installmeote and
paid for monthly, entitles the vendor to re-
scind the contract See, also, Paxson v. Bnt-
texlck Publishing Oo., 136 6a. 774-T7S, 71
8. B. 1106. Clearly it wa& the intention of
the parties to the contract that the defend-
ants should have tbe privilege of returning
to the plalntifC at a stated price «ncb pat-
terns as tbe defendants might have on hand
at the exi^tlou of tbe term of the con-
tract, which was fixed as three years, and
longer, if not terminated by three months*
written notice by either party. Surely it
was never intended- by the parties that the
defendants had the right, under the contract,
to capriciously refuse to comply with their
agreement to make payments aa spedfled
for goods bought, thus committing a breach
themselves, and thereby cause the plaintiff
to refuse to furnish more goods until those
already supplied bad been paid for, and in
this way enable the defendants to reap tbe
benefit from their own default and wrong
by terminating tbe contract and giving the
defendants the right to return the goods
they then had on hand and for which they
had not paid and to get credit therefor.
Judgment affirmed. AU tbe Justices con-
cur.
a«> Oft. US)
GEORGIA COAST & P. R. CO. v. JONBS.
(Soprem* Ooort of Georgia. June 1% 1918.)
(SylUbiu by fAe Couri.)
S. OiBarami (| 821*)— Ihjubt to pAaawfiBte
— iNSTRVCtZOHB.
Id a salt against a railroad company to
recover damages for a personal Injary, vberc
there is evidence to show that the plaintiff ap-
plied to tbe agent of the defendant railroad com-
gany to purcnase a ticket and the agent sold
fm a ticket informing him that the train was
about an hour late, and that the plaintiS went
to a nearby restaurant for supper and on his
return to tbe depot while walking upon a pub-
lie street over which the )>ublic were accustom-
ed to travel In approaching tbe depot, and as
he was passing the tender of the engine attach-
ed to the train which ^e Intended to board, he
heard some one exclaim "Look out," and saw
the fireman on top of the tender wlfldi was
loaded with wood lor fnd, and Juat at that time
a piece of wood fell from the tender, striking
the plaintiff on the head, it was not erroneous
to instruct the Jury "that a railroad company
shall be liable for any damage done to persons,
stock, or other pn^rty by the running of the
locomotives or cars or other machinery of such
company, or for damage done by any persok In
the employment of such company, unless the com-
Eoy shall make it appear that their agents
re ezerdsed all ordinary and reasonable care
and diligence ; tbe presumption in all cases be-
ing against the company."
[Bd. Note. — For other cases, see Carriers,
C^ Dig. » 1247, 132S-1SS6^ Ifi^; Dec; Dig.
2. iNSTxiTaiioin.
Though some of the instructions wen not
strictly accurate, yet when taken in connec-
tion with the whole charge, they were not prej-
udicial to tbe defendant
Error from Superior Court; Ubertr Oonn-
ty ; W. W. Sheppard, Judgfc
Action by Jesse Jones against the Georgia
Coast & Piedmont Railroad Company. Judg-
ment for plalntU^ and dtfendant brings er-
ror. Affirmed.
Hltdt ft Denmark and J<dm Taylor Chap-
man, all of Savannah, for plaintiff In error.
H. H. Elders and Way ft Bnrkhalter, all of
RledavlU^ tor defendant in enor.
EVANS, P. J. The action Is by Jesse
Jones against tbe Georgia Coast & Pied-
mont Railroad Company to recover dama^
for a personal injury. Testimony was sub-
mitted tiding to show tbnt the plalntU^
late in the afternoon and a few minutes
before the time the defendant's train was
scheduled to arrive at Ludowid^ applied to
the defendant's agent to purchase a ticket
from there to anothor point on the road.
The agent sold him tbe ticket, and informed
him that tbe train was reported to arrive
an hour late. Whereupon the plaintiff be-
took himself to a nearby restaurant for sap-
per. Upon finishing his meal, he proceeded
alpng a public street, where tbe public was
accustomed to travel, and alongside tbe
track, whldi occupied a portion of the street
The train on which he intended to ride bad
reached the depot, and Just as he was pass-
ing the engine and tender on bis way to
board the cars be heard some one exclaim,
"Look outr The person who uttored the
exclamation was the fireman, and be was on
top of the tender. Just then a piece of wood
fell ttie tender, striking the plaintiff on
tbe bead, rendering him unconsdous for a
time. Tbe fnd used for this engine was
wood, and it was piled bU^ upon tbe ten-
der. Tbe court Instructed tbe jury "that a
railroad company shall be liable for any
dami^ d<ne to persons, stock, or other prop^
erty by fbe mnnliv of the locomotives or cars
or otiier machinery of such company, or for
ahy dami^ done by any person In the em- '
ploymrait of such company, unless the com-
pany staall make it aiipear that tbdr agents
«Vorotln»«assssMsametaffloaBd'ssetloB NiniBBRte DsA. Dig. A Dig. Kay
766
79 30IITHOASTBBN BBPOBTBB
bave ezwdaed an ordinal? and reawmaMe
care and dUlgenoe; the presumption In all
eases being against the company." Com-
plaint Is made of tbls charge.
[1] The charge la In the laagnage of tiie
Code (Civil Code, | 2780), and the exception
Is that the code section Is Inapplicable to the
facts of the case; that the code section only
applies to injuries caused by the running of
trains or by persons In the employment of
the company. Counsel for the plalutUf in
error earnestly contends that the present
case comes within the ruling made In the
case of Savannah, etc., By. Co. t. Flaherty,
UO Oa. 336, 86 S. E. 977. and Is controUed
by that case, In tiie Flaherty Case It ap-
I»eared that the railroad company for Qie
purpose of rolling trucks, across its puaenger
depot In the city of SsTsnnah, the floor of
which was, elerated above the railroad
tracks, bad constructed a crossing, at each
end of which was a steep Incline from the
level of the floor to that of the tracks. A
train for the reception of passengers was
so placed in the depot that the steps of the
ladles' car thereto attached were Immediate-
ly over the Incline at one end of the crossing.
The plaintiff undertook to enter the ladles'
car aa a passenger, her right foot eQcoun-
tered the unexpected sloi>e at the moment she
was raising her left foot to place it on the
step of the car ; her right foot slipped from
under her, and she fell. It was held that the
injury was not caused by the running of the
cars, nor by any person in the employment
of the company. Even if It be conceded that
no reasonable differentiation can be made
between the ruling that a coach placed In
the initial depot for the reception of pas-
sengers Is not to be regarded as a part of
the operation of the running of the cars, and
a holding that the temporary stoppage of a
train at an Intermediate station for the pur-
pose of discharging and receiving passengers
Is included in the running of the cars so as
to bring the case within the purview of the
statute, nevertheless the Jury was author-
ized In the present case to find that the piece
of wood which struck the plaintiff was dis-
lodged by the fireman on top of the tender,
and that the plaintifTs Injury was due to
an act of a person In the employment and
service of the company. It was therefore
not error to give the instruction to which ex-
ception is taken.
[2] 2. Exceptions are taken to certain ex-
cerpts of the charge. Some, of the instruc-
tions criticised were not strictly accurate,
but they were not prejudicial to the defend-
ant For instance, the Jury were Instructed
that the plaintiff could not recover unless
he was blameless. When the various ex-
cerpts which are segregated from the charge
for the purpose of criticism are read In con-
nection with their context, we do not think
that the Instructions as a whole were preju-
dicial to. tbB defoidanl^ w that the law ap-
plicable to the case was exi)ounded unfavor-
ably to the railroad company.
Judgmoit afflzmed. All the Justices
concur.
(140 Oa. UO)
STATSa? et aL v. STATB.
(Stipreme Court of Georgia. June 12, IMS.)
(ByUabut &v the Court.)
L Cbiminai. Law (| 1131*)— Writ ot Ebbob
—Escape— DiBMisBAL op Wbit.
Two of the plaintiffs in error. Miller and
Mathis, having escaped from custody before the
hearing of their case in this court, and having
failed within the time Sxed in an order duly
passed to surrender themselves to the proper
authorities, the bill of exceptions is dlsmined as
to the parties named above, in parsuance of the
provisions of the order referred to that unless by
the date named therein the parties referred to
should surrender themselves Qte case would be
dbmissed.
[Ed. Note. — For other cases, see Criminal
Law. Cent Dig. U 2971-297972986; Dee. Dig.
§ ll^l.*]
2. CBiMiifAL Law ({ 673*)— Testimont of Ac-
cused—Sevebal DSfUNDANTS- CONSIDEBA-
TION.
Where three defendants Jointly indicted ate
jointly tried, and each of the three are permit-
ted, without objection on the part of the state,
to testify under oath, their testimony should
be treated as evidence under appropriate ia-
structiona from the court, and should not in the
court's charge be treated as evidence so far as
it refers to the other defendants in the case,
but merely as an unsworn statement with ref-
erence to tfat defendant actually giving the tes-
timony.
[Ed. Note.^For other eases, see Criminal
Law, Gent Dig. H 1597, 1S72-1876; Dec. Dig.
8 67^.*] • " » *^
Error from Superior Court, Whitfield Coun-
ty; A. W. FIte, Judge.
Ben Staten and otbers were convicted of
rape, and they bring error. Reversed as to
defendant Staten, and dismissed as to the
other defendants.
Qeo. G. Glenn, of Dalton, and F. W. Cope-
land, of Borne, for plaintiffs in error. SamL
P. Maddox, SoL Oen., of Dalton, and T. B.
Felder, Atty. Gen., for the State.
BECK, J. [1] L Ben Staten, Pink Miller,
and Joe Mathis were tried for the offense of
rape and convicted, and the Jury trying the
case recommended them to the mercy of the
court All of the defendants filed their motion
for a new trlaL At the hearing of the case in
this court affidavits were submitted showing
that Miller and Mathis had escaped from
custody, and as to these two plaintiffs in er-
ror it was ordered that unless they should
surrender themselves to the proper author-
ities on or before the 14th day of May, 1913,
the case should be dismissed as to them in
this court, of which order their counsel was
duly notified. The time within which they
•For othw 6SMS MS ssma toplo siMl secUon NUHBSR ai Dm. Dig. A An. Dig. K«r-Na. 8«
Digitized by
niODON r. WILUAMSOK
767
slionld bo sarrender baTing exidred, and the
plaintiffs In error just named having failed
to Burreuder themselves as provided in the
ocder, and a pr<H>er showing having been
made by the officer Into whose cnstody they
should have snrreadered themselTea, an or-
der was passed dismissing the ease as to
fbem.
£2] 2. The plalnttfls in error, Staten, Mil-
ler, and Matbia, were tried Jointly, each re-
serving the right, without objection on the
part of the state, to testify in the case on
oath, and each did testify fully upon the
trial. Except In giving testimony under oath,
none of the defendants made any statement
In the course of bis instmctloDS to the Jury
the court charged the Jury as follows: "The
law authorized the defendants to make to
the court and Jury such statement as they
may deem proper In their defense. They are
not under oath, nor subject to cross-examina-
tion, as far as their statements go, without
their consent The defendants have each
been sworn for the other, and what each says
for himself Is to be received as a statement ;
but what each says for the other defendants
la to be received and weighed by yon under
the same rules as other evidence In the case."
Subsequently, while Instructing the Jnry, the
court eald to them: "You take all the facts
and circumstances along with the statements
of the def^idants." Whereupon counsel for
the defendants addressed the court and said:
"They did not make a statement, your honor."
And then the court, continuing his charge,
said: "What each said for himself is a state-
ment, and what each said for the other Is
evidence. You may give the statements si^ch
weight as you think they are entitled to.
You may believe them [In preference] to the
sworn testlmotty In the case." Defendants
complained that the Instructions which we
have set forth in effect Instructed the Jury
that the testimony of the witnesses, the de-
fendants, could and should be treated In part
as a statement mer^y; and, moreover, that
as the defendants had a right not to make
any statement, and made non^ the court
should not have made any reference what-
ever to the statements, and that the charge
as given "tended to injure the defendants
before the Jury, by confusing them as to what
was evidence In thelx own behalf testified to
hy them and by each of them."
We are of the opinion that, as the de-
fendants were pomltted to testify In the
case witbont objection on the part of the
stat^ although under the law they were nei-
ther competent nor compellable . to testify,
the testimony given them should have
been treated as evidence throngbon^ and no
reference as to their testimony as a *^te-
ment^' should have been made by the court
What ea«A of tbem said nndw oath was evi-
dence, and they made no statement to the
Jnry that was not under oath. The effect
of th9 instnictlonB set forth above In ref-
erence to statement made on the trial by an
accused In a criminal case was, or might
have been, to minimise In the minds of the
Jnry tbe weight of the evidence given by
the defendants when tlkey woe testl^ing.
Especially is this observation tme when we
consider tbe fiict that what each of tbe wi^
nesses said in toiial of the testimony with
referwee to bimaeM glvHi by the woman
upon wb<nn the crime Is allseed to have been
committed would necessarily, If believed by
the Jury and received by them as evidence,
tend to break down the case made In her tes-
timony against the other two defendants. To
illustrate; After the woman referred to had
testified tbat each of the three men, the plain-
tiffs in error here, had on the occasion re-
ferred to had carnal connection with her,
and when each, speaking for himself, denied
this and pronounced it false, primarily be
was speaking for himself ; but the testimony.
If credited by the Jury, also had tbe effect
of breaking down the case against the other
two, and what was said by all of the defend-
ante upon this point If permitted to testify
without objection, should have been permit-
ted to go to the Jury as evidence to be con-
sidered by them, and given Ite proper weight
as such, without any reference to It as a
statement merely, not having the sanction of
an oath. We are not convinced that the
error pointed out was harmless, and there-
fore a new trial must be granted to that one
of the plaintiffs In error who has not lost
his right to a hearing on appeal by volun-
tarily escaping from the custody of the law
and refusing to surrender wb^ given fnll
opportunity to do so.
Judgment reversed as to Ben Staten. All
the Justices concur.
(UO Chu 187)
HIGDON V. WILLIAMSON et aL
(Suprame Court of Georgia. June 17, 1918.)
(Byllalua By ike Oourt.)
1. APPBAX AND Bbbob 299*>-Nkw TSZAI.
(i 18*) — GBOUirns — oxruaaL to Snm
Plea.
The court's refusal to strike a plea as be-
ing insufficient In law is reviewable by direct
exception, and cannot be made a ground a
motion for a new trlaL Brandon v. Akers, 184
Ga. 78, e7 S. E. 540.
(EM. Note.— For other cases, see Appeal and
Error, Dec Dig. S 299;* New Trial, Cent Dig.
§S 24-28; Dec Dig. S la*]
2. Tbial (t 2S*)— RioHT TO Ofbit and Giask
—Action on Notk.
Where a payee of a note sues the maker,
and the defendant in his plea admits the exe-
cution of the note and that the plaintiff ts-
the legal holder, and sets up a defense to the
same, tbe burden !■ upon the defendant to es-
tablish his defense, and be is entitled to open
and conclude. Martin v. Hale. 136 Ga. 228, 71
S. E. 133. This rale is not changed In a case
where the defendant. In his plea admitting tbe
execution of the note, avers that certain words
«ror oUisr «taw m* sum tople and seetlon HDKBBR la Dm. Dig. 4 Am. Dig.
768
n SOUTHBASTKRN BBPOKTBB
relating to a mortcace had been Interpolated
therrin, where inch alteration Is not material to
the defense eet np^ and Is not pleaded as a d^
feme, but Oa awment Is made mwelr •> *
part of the hlstoiy attending the execution of
the note.
[Ed. Note.— For other cases, tee Trial, Cant
Dig. 8S 44-78; Dec Dlgr|26.*]
8. New Tbiax. (S 21*)— Witnessbb d 2|0*)—
Obodndb— Leading QuEsnoNa
Most of the questions objected to as lead<
Ing irere not open to that eritiefam. The court
in his discretion may allov a leading question
to be propounded to a wituess, and unless that
discretion is abused the allowance of a leading
question is not gronnd for a new triaL Bobetta
T. DeVane, 129 Oa. 604, 68 kl. BL 288. .
[Sd. Note.— For other cases, see New Trial.
Cent. Dig. « 30-33: DecTDis. | 21;* Wit-
nesses, Dec. Dig. I 240.*]
4. TbUI, (S 278*) — iNSTBDOnOKB — OBiraBAL
EXCKPTIO NS— SUFTICIBNOT.
A general exception that the cOQrt'*s chane
As a whole is inapt and incorrectly pt<Mtents the
law, with no specific error pointed out, is not
ground for new trial, where the charge contains
any pertinent and correct principle of law.
[Ed. Note.— For other cases, aee Trial, Oent
Dig. H 686, 689; Dee. Dig. | 27&*]
6. Vebdxot aud Dxnul o# New Tbux. Sus-
tained.
The erldence authorized the verdict, and
the conrt did not abuse his discretion In refus-
ing a new trial.
Error from Snperlor Court, Famtln Comi-
ty; N. A. Morris, Judge.
Action between W. T. HIgdon and M. B.
Williamson and others. From the jndgmaiU
HIgdon brings error. Affirmed.
A. 8. J. HaU, oC Blue Bidge^ 0«o. r. Oobw,
of Atlanta, and GbaL H. Orlffln, of Marietta,
for plaintiff In emw. J. Z. Foster, of Mari-
etta, and Wm. Butt aud Thoa. A, Brown,
botb of Bine Bldge, for defendants In error.
OYANS, F. 3. Judgment afflimed. All
ttie Justices concnr.
040 Oa. IM)
DENSON v. KEYS et aL
(Snpraae Court of Georgia. Jnne 18, 1918.)
fStfUahua (jr <ke OovrtJ
1. HoaoenAo (| ll£*)— CoiiTXTAins— To
Whom Mads.
Where a homestead was set apart to the
head ot a familr, onder the Constitution of
1877, in land belonging to him, he could not,
pendmg the existence of the homestead, make
a valid conveyance of the land, without any
order of court; and a deed so nvde was vtdd,
although made to one of the two bendSdaries
as trustee for the other.
(Ed, Notar— For other cases, see Homeataad,
Cut Dig. i 182 ; Dec Dig. 1 118.*]
2. JtTDQVBNT (I 243*) — Appeal and Ebboh
a 1149*) — ConroainTT to Pleadings —
ODincATiov or Jctdghknt.
Under the pleadings and evidence, it was
error to direct so much of the verdict as de-
clared that the land in controversy belonged
to the head of the family aud his wife, with
egnal interests. Bnt this can be ecorected
: without reversing the whole Judgment.
[Ed. Note. — For other cases, see JadgmenL
Cent Dig. I 428: Dec Dtgri 248;* ApMiii
and^^rror. Cent Dig, H 4483-4496; Dec IMc
a Appeal Ann Bbkoe (I 10{@*)— Habkum
Ebbob— Admission or Btidxncb.
If certain evidence was of doubtful admis-
sibiUty, its admisaion was not such as to in-
jure the plaintilf, who had no titie hi anj
event, and the ruling wiU not require a reve^
sal at her instance.
[Ed. Note.~For other cases^see Appeal and
Emir^^Ceht. Dig. ${ 4171-4177; Dec Dig. I
Error from Superior Court, Catoosa Coun-
ty; A. W. Flte. Judge.
Action by Alm^ L. Denson against J. U.
Keys and others. From a Judgment for de-
fendants, plalntut brings error. Affirmed.
In 1893 J. M. Keys, as the bead of a fam-
ily consistiag of bis wife and danghtier. bad
certain land belonging to him set apart as
a homestead, under the Constitution of 1877.
In 1897, be, wbile the homestead was In
force, conveyed tbe land to bis wife in trust
for their daughter. In this deed it was re-
cited that tbe husband had only paid half
of the purchase money with his own funds,
and had used money of tbe wife In making
payment of tbe balance. No order of court
for any sale and reinvestment appears. In
1907 the wife executed a deed to the hus-
band of the daughter, tbe latter having mar-
ried in the meantim& In 1911 the daugh-
ter, who alleged hers^ to be still a minor,
and brought suit by her next friend, filed an
equitable petition, alleging that tbe deed
from her mother to her husband was made
without any authority or consideration, and
that her father, after making the trust
deed, mutilated It by erasing the name of
her mother ther^om and inserting his own.
She prayed to have her father enjoined from
interfering with the property, that It be de-
clared to belong to her, and that the deed
from her mother to her bnsbaud be canceled.
It does not appear from the record that ei-
ther tbe plalntUTs mother or husband filed
any answer. Tbe fiither filed an answer and
cross-petition. In which he set up that tbe
deed made him to bis wife In trust for
their daughter was void, being made after
the property had been set apart as a home-
stead and while such homestead was in
force. He prayed that both deeds be cancel-
ed as clouds upon his title. On the trial the
presiding Judge directed a verdict canceling
botb deeds and declaring that tbe husband
and wife were Joint owners of the property
In dispute. The plaintiff moved for a new
trial, whldi was refused, and she excepted.
Maddoz, McCamy A Shumate, of Dalton,
and Foust & Payne, of Chattanoosa, Tenn.,
for plaintifC In error. W. E. Mani^ of Dal-
ton, for defendants In error.
•rer ot&sr eases see ssbm tople and wetioB NUMBKB In Deo. Dlfr A Abl Dig. K«j-N«, Sacta** I^'' Jp*um
Digitized byVjOOgTC
Oa.) vcMOstBoax
LUMPKIN. J. <after staUnff the facte aa
above). [1] 1. It has been htld tbat, where
a bead ot a family took a bomaatead In oat-
tain land, under tbe ConatltatloD of 1868, he
«ould, without any ordw of oonrt, make a
deed which would operate aa a valid con-
ToyaUce to what waa called, for want of a
better name, "the reveratonary Intereat
that Is, his title to the land after the home-
stead should terminate. Aiken r. Weldon,
76 S. B. S59, and dtattona.
After the adopttcw of the Oonatltntlan of
1877, it was held that its lancaage was. dif-
ferent from that of the former Constltntloa,
and worked a change in this respect Hence,
It was declared that, under tbe latter Con-
stitution, the land could not be conveyed 1^
the head of the family, pending the home-
stead, except by order of court, as prescribed
in the statute; and that an effort to sell it
did not result in a conreyunce of the "rever-
siooary Interest,** but was simply invalid.
Huntress v. Anderson, 110 Ga. 427, 428, 36
S. B. 671, 78 Am. St Eep. 106; CUfton t.
Northen. 106 Ga. 21, 31 S. E. 782. In Walk-
er V. Hodges, 113 Ga. 1042, 89 S. B. 480, the
exemption under coDstdcration was not the
constitutional homestead, but tbe statutory
one, colloquially termed tbe "pony home-
atead." In Anderson v. Hall. 114 Ga. 1016,
41 8. E. 693, the rule Just stated as applica-
ble under the Constitution of 1877 was rec-
ognized, but was held not to apply to a con-
veyance by an heir of liis interest, after the
death of the head of tbe family.
The deed from Keys to his wife as trustee
was made after the setting apart of a home-
atead under the Oonstltntlon of 1877, and
during the continuance thereof. While
counsel for plaintfff in error argued In th^r
brief that the head of the family had rec-
ognized the title as b^ng In Ms daughter,
by allowbig her to pay taxes on the land
after the termination of the homestead,
there is no evidence In the record tending to
show that It had terminated at the time of
the trial, by reason of a dlTorce, except a
vague, hearsay statement
It will appear from the above that the
presiding judge committed no error In the
direction of a verdict to the extent of can-
celing the deed made by tbe bead of the fam-
ily, to his wife as trustee for his daughter,
and the one later made by the wife to the
husband of the daughter.
[1] 2. The direction that tbe hwband and
wife Bbould be declared to own a halt In-
terest eadk in the land vraa not authorUed
by the pleadings or tbe evidence. Tha
daughter waa the plalntUf. She claimed
Oat tha dead to bar lootber aa her tmatoa
KSTB. ^ 769
had been altered by her father aftet It waa
made; and fliat Oie deed made by bw moQm
to hec boabaBd waa wlthoat anUtorlty. She
prayed that her father be enjoined from in-
terfering with the land, be elected therefrom,
and dedared to have no rigbta therein, and
that tbe deed made by her mother be can-
celed. So far aa the record In thla eoort
shows, ttaft father alone anawered. He at-
tacked the deeda aa void because they de-
t>ended on an effort to convey land whidi
had been set apart aa a bomeatrad under the
ConstltntloD of 1877. Ha prayed that they
be canctied. No answer or cross-i^etltlon of
tbe wife appears. She did not set up any
claim to any Interest In the land, or pray
any declaration of title or other rellet On
the contrary, while In her testimony she
stated that she had paid half of the pur-
chase money by means of her work In a
dairy conducted by herself and her husband,
she admitted having sought to get out of the
family contention by conveying to her son-
in-law after knowledge of a question as to
the validity of the deed to her as trustee.
She also brought suit against her husbahd
for money, and dlemlBsed It, as he testified
without contradiction, upon payment to her
of $800. While the deed made by her bus-
band to her as trustee for tbe daughter recit-
ed that she bad paid half of the purchase
money for the land, she could not have re-
covered both the land and the money ; and
she was not entitled to any decree in this
case, under the state of the pleadings and
the evidence. The finding in her favor k
not consistent with the other finding. The
plaintUt attacked the deed made by tbe
mother. She also complained of the verdict
as directed. We accordingly direct that the
verdict and judgment be so modified aa to
strike from than the declaration that abe
and her husband ea<di owned one-lialt Inter-
est in the land.
[3] 3. Brror was all^wl on the admission
in evidence' of a former suit for moiley
brought by the wife against the husband,
and Its dismissal. The deacrlptiott ot this
suit in the record la very meager. But we
infer that she aqed hbn to recover money in
lieu of the land, thus electing not to claim
title to the land as an implied trust If ao,
and there had been an assertion of snCh a
trust, it would have been admlsalble to ahow
an Inconsistent claim. At any rate, what*
ever ruling might be mB4e as to thla evi-
dence, it could not give the plaintiff a good
title. Nor does the ruling furnish •aj-
grouBd for a reveraal at her Inatanee.
Judgment afflrmefl, with dtractten. All
taw Justlcea concnr.
'Digitized 'by Google
770
n SODTHBASTBIBN BBPORTBB
Ctt Oa. App. 1)
INTBRNATtOZTAIi HABTBSTBR GO. OF
AMERICA T. DAVIS. (No. 4^)
(Court of Appeals of Georgi*. June 25, 191S.)
(SyUohut hy th« Court.)
1. AI.TERATZON OV iNSIBCHSnTB (| 8*)— CUT-
TEI. MOBTGAOKB— AFFXXIHG NJlKB OF WZT-
KS8&
The affixing of the name of an atteetlng
witness to a mortgage on personalty after de-
livery aod without the consent of the mortgagor
is not such a material alteration as will invali-
date the mor^nge.
[Ed. Note^For other cases, see Alteration of
Instraments, Cent Die II 40-M; Dee. Dig. |
8* ]
2. Chattel MoBxaAOss (| 47*)— Eyidencb (|
400*) — Faboi^Dkscbiptxon ' or Pbopebty—
BumciKHOT.
The description of property In a mortgage
as "all my shop tools and fixtures • • • in
my poasession" Is not void for indefinltenesB and
may be aided by parol evidence.
(Ed, Note.— For other cases, see Chattel Mort-
gages. Cent Dig. H 87, 88, 96-100; Dec. Dig.
1 47;* Evidence, Cent Dig. H 2115-2128; Dec.
Dig. I 460.*]
Enror from City Gout of BandenrUle; BL
W. Jordan, Judge.
Actios by the iDtomattonal Harvester
Company of America against W. P. Davis.
Jnd£ment for deteadant, and |>lalntlff brings
error. Keveraed.
Uoodwln & Wood, of SandersvlIIe, for
plalntiet In error. Hardwick ft Wright, ot
HandersTlUe, for defendant In error.
i'O'lTLB, J. Davis executed to the Inter*
national Harvester Company a mortgage up-
on the following described property: "One
bay horse, about nine years old, named Bill ;
one top buggy, made by Ball Buggy Company ;
also all my shop tools and fixtures • * •
in my possession." The mortgage was at-
tested by <«e Carroll, a notary public. To
the levy of a fl. fa. based on the foreclosure
of the mortgage Davis Interposed an afSdavIt
of illegality, setting up that the description
of the property in the mortgage was too In-
dtilnite, and especially the description of the
shop tools and fixtures. It Is further aver*
red in the Illegality that Uie mortgage and
the tt. fa. issued thereon were void because
tile mortgagee, without the consent or knowl-
edge of the mortgagor, altered the mortgage
bj having Carroll, aa notary public, attest
the mortgage as a snbscritdng witness, with
intent to Injure and defraud the mortgagor.
Upon the trial the defendant admitted the
execution of the mortgage, assumed the bur-
den of proof, and teetlfled that when the mort-
gage waa exeenbed he told the agmt of the
mortgaflee that tba« was no need of a notary
public, as he did not expect to glTe a second
mortgage and did not want the mortgage pnt
on record, and that he had never at any
time requested Carroll to witness any paper
for him. Another witness testified that Car-
roll was not pr^ent when the mortgage was
executed. Camfll testified that DavU told
htm he wanted Um to witness a papa ; Oat
later the mortgage waa brought to him at Us
otuce. and, being familiar with Davltf ilsna-
tnre, he attested the mortgage In the absence
of Davis, The jury found In fiivor of the
illegality and the plaintUTs motton for a new
trial was oTwmled. Ibzor la assigned upon
the following chai^ of the court: *'If the
plaintiff, after the signing of the mortgage,
fraudulently procured a witness to attest tiie
mortgage, not In hla presence, and wtthont
the consent, express or implied, of the maker,
then it would be a matalal alteration, and
the instrument would be void; i( on the
other band, you believe that the mortgage
was attested, not in the presence of the mak-
er, but with his consent or by his direction
to the otticer, or under his authority, then
the alteration would not be material, and the
mortgage would be good between the parties."
Error Is further assigned upon the following
Instruction of the court: "I charge you that
the mortgage la insufficient in law as regards
the shop tools, but good as to the other prop-
erty therdn described, provided there la no
material alteration."
lU 1. Prior to the Code the rule In ref-
erence to the alteration of written instru-
ments was very strict In Broughton v.
West S Ga. 248, the law was stated as fol-
lows: "If a bill or note be altered, without
the consent of the parties, In any material
part, it will be roii as to all parties not con-
senting to the alteration, even in the hands
of an innocent holder, aa in the datc^ sum,
time when payable^ or oMislderation. Nor
does It matter by whom made; the altera-
tion la fiital whether mads by a party or a
stranger, whether Innocoitly or franduluit-
ly." It was further held that: •'Anarthlng
will be material • • • which nurlea the
rights and obligationB of the parUea In the
minutest particular." The court hdd, how-
ever, that the cutting off of the name of a
surety to a Joint and sereral note, with the
consent of the payee, was not sndi a material
alteration aa would Invalidate Qie note, slDce
tlie obliteration of the name of the anrety
In no wise aSected the principal. See, also,
Lowe v. Argrove, 30 Oa. 129, where It waa
held that changing the consideration in a
note was a material alteration and avoided
the whole note. Under the Code, before an
alteration In a written instrument will vitiate
the whole Instrument, three things must ap-
pear. The alteration must be material; U
must have l>een made by a person claiming a
benefit under It; and must have been made
with Intent to defraud. Unless aU three of
these things appear, the contract as origi-
nally executed will be enforced. If it can be
discovered and is still capable of flccecnUon.
Civil Code. 14296 ; Hotel lAuler Go. v. John,
son, 103 Ga. 6u4, 30 S. B. 668; Burch v. Pope,
•r«r oUMT essM SUM tople and ssetlon NUUBBB la Ow. Dig. A Am. DltpK^£^9^^^p^^^ It**^
Oa^ INTEBNATIONAIj harvester CO. OF AMERICA t. DAVIS 771
U4 Ua. 334, 40 S. E. 227; Shirley t. Swat
ford, 119 Ga. 43, 45 S. E. 722.
In Yowry v. McLalD, 75 6a. 372, where the
name of a partnership was changed In a
printed form containing a reservation of
title and the name of an agent of the partner-
ship substituted, it was held that, as title re-
tained by an agent as such remains In the
principal, the defendant's rights were the
same as If no alteration had taken plaCe, and
hence It could not be Baid that the alteration
was materiaL See, also, Frltcbard t. Smith,
77 Ua. 463.
The following bare been held to be mate-
rial alterations: The addition of the words
"or bearer" were added to a note after the
name of the payee (McCauIey t. Gordon,
64 Ga. 222, 37 Am. Rep. 68); the insertion of
the name of a bank as the place of payment
and 6 per cent as the rate of interest (Gwln
T. Anderson, 91 Ga. 827, IS S. E. 43). On
the question of burden of proof, see Wheat
r. Arnold, 36 Qa. 479 ; Thrasbw t. Anderson.
45 Ga. 538. 544 ; Winkles t. Qoenther, 98 Oa*
472, 25 S. E. 527.
In some of the earlier decisions it was
held that, where a note not before witnessed
was attested by a person not present at the
signing, the attestation waa a material alter-
ation of the contract and deetroyed 1^ raUd-
lt7- But these dedsious were pat upon the
ground that a not* not witnessed waa bamd
by ttie statute of limitations soonw than one
thus attested, and that for this reason the
paper as altered was a Cerent contract
from the one executed. See Smith t. Dor-
ham, 8 Fide (MasaJ 246; Brackett t. Honnt-
sort, U Me; 115; Honwr t. WaUla. U Haas.
800; 6 Am. Dec. 169. In later cases it waa
held that snch an alteratUm would not Toid
the contract unless it was fraudulently made,
with a view ot obtaining some improper ad-
vantage. Adams r. Frye, 8 Hetc. (Mass.)
108; MUbery t. Storer, 75 He. 68^ 46 Am.
Uep. 861; Church r. Fovrl6, 142 Mass. 12,
6 K B. 764; Ford T. Ford, 17 Pick. (Mass.)
418. In. two early cases In Pennsylranla it
■eema to hare l>een held broadly that the
addition of the name of a witness for the
purpose of authenticating a contract, the
witness not being present at the execution,
woold Invalidate the writing. Marshall r.
Goumer, 10 Serg. & B. (Pa.) 164; Henning
T. WerklKlser, 8 Pa. 618. In an early North
Carolina case it was held that the mutilation
of a note by cutting off the name of an at-
testing witness was a material alteration
which would vitiate the note. Sharp v, Bag^
well, la M. O. 116. In Fuller v. Green, 64
Wis. 169, 24 N. W. 907, 64 Am. Rep: 600, a
decision rendered In 1886, It was held: The
"afUxlng" of "the name of an attesting wit-
ness to a promissory note is not a material
alteration." In the opinion it was said:
"The affixing of the name of Fredericks as an
attesting witness to the note in question does
not change the liability of the maker thereof
In any respect. It has no eflTect in extending
Ills liability under the statute of limitations,
nor does It under our laws facilitate or in-
terfere in any way with Its proof. Under
our law the production of the note proves Its
execntion, unless the signature be first denied
under oath by the maker. When there Is no
dispute as to the genuineness of the maker's
signature, and therefore no necessity for the
person claiming under It making proof of its
execution, the fact that the note has or has
not an attesting witness Is wholly Immateri-
al." See Meraman v. Werges, 112 U. S. 139,
5 Sup. Ct 66, 28 U Kd. 641, where it was
held that the addition of the signature of a
surety to a promissory note without the con-
sent of the maker does not discharge him,
since the ultimate liability of the maker was
neither Increased nor diminished by the alter-
ation. See, also, Ogden on Negotiable Instru-
ments, I 144; Joyce on Defenses to N^otl-
able Paper, { 177.
In this state a mortgage is good inter
I)artes, without any witness, and the onjy imr-
pose of having an official witness to such a
paper Is to admit it to record. Smith v.
Camp, 84 Ga. 117. 10 S. E. 539; Benton v.
Kaxley, 90 Ga. 296, 15 S. B. 820. As between
the parties it is wholly immaterial whether
the mortgage Is admissible to record or not
Even if in the present case the mortgagee held
the burden of showing that the so-called al- ■
teratlon was Innocently made, and even If the
evidence sulliciently showa that it was made
at the Instance of the mor^agee^ the finding
of the jury cannot be sustained because the
addition of the name of the subscrltdng wi^
neas was wholly immaterial as between the
parttes to the Instrument; the execution of
the mortgage having been admitted. The lia-
bility of the mortgagor was in no wise cbanf-
ed, nor could it have ima affected in any
way by the attestation. If the mortgagee
agreed to withhold the mortgage from record,
and the agreement was valid as having all
the elements of a contract, and tbe mortgagw
was damaged by Sts breadi, he might re-
cover damages in a suit broui^t for that pur*
pos^ or be might In equltfi if there was a
suthdent reason for so doing, set off his dam*
ages against the mortgage foreclosure. But
the mere addition of the name of the aub>
scribing witness, even without the consent
of the mortgagor, and even though the at-
testation Its^ was Invalid because the maker
did not sign in the presence of the witness,
was not a material alteration of the mort-
gage as would Invalidate it under our Code.
On this issue a verdict should have been di-
rected in favor of the plaintiff, and the In-
structions complained of were erroneous.
L2J 2. We think the court erred also th
holding that the description of the property
contained in the mortgage was too indefinite.
The maxim, "That is certain which can be
made certain," was applicable and It waa
con^tOkt to aid by pand Uie Ind^^te and
Digitized by VjOOglC
772
78 BOUTHBASTBBN RBPOBTBB
vnicertaln description In the mortgage of "all
my shop tools and fixtores in my possession."
See Pepper t. James. T Oa. App. 618, 67 S.
U. :!18.
The court wred In orerrollng the mottm
lor a new trial. Judgment reversed.
(U Oa. App. »)
BUTLER et al t. FIRST NAT. BANK OF
GRGENTILLB. TENN. (No. 4,637.)
(Ooort of Appeals <tf Georgia. Jane 10, 1918.)
(8yUaiu9 by tXe Oouri.)
1. Bills aud Noies A 480*)— Aonon bt In •
DOBBBB— PBOOr OF INDOBSBHENT— PLKA.
Where plaintiff sues as the Indorsee of a
negotiable note, end then Introduces the note
in evidence, with the iodorsement of the payee
xegolarly written thereon, he Is not required to
prove the execntion of toe iodorBeineDt, unless
the defendant has filed a plea of non est factum
as to the Indorsement CMl Code 1910, 1 4299;
Gray t. Oglesby, 9 Ga. App. 856, 71 S. &. 605.
[Ed. Note.— F(w other eases, see BlUs and
Notes, Cent. Dig. H 162Q-ira9; Dec Dig. t
480.*I
2. Bills and Notes (i 480*)— Acnoir bt Iit*
DOBSEK— Plea or Nor Est Factuh.
A plea dating the allegation of the peti-
titm that plaintiff is the bona fide holder of the
note, for value and before maturity, is not the
equivalent of a plea of non est factum as to
the indorsement, although such plea is sworn to.
{Ed, Note.— For other cases, see Bills and
Note% Gent Dig. H 1626-1520; Dec Dig. {
480.»I
& Bills and Notes (K 370, 497*) — Bona
Fide Holdeb^Defensb— Presumption.
A bona fide holder of a negotiable promia-
Borr no^ purchased for vatae and before ma-
turity, is protected against a defense that the
note was witfaoot consideration; and where a
negotiable note payable at a future date Is in-
dorsed by the payee to the plaintiff, in the at>-
sence of proof to the contranr, the law will pre-
scune that the plaintiff took before maturity, for
•nam, aad wtthout noUce. Civil Code ^10, i
4288; Morgan v. Cedar Rwids Bank, 7. Ga.
App. 699, 67 S. 1048.
[Ed. Note.— For other cases, see Bills and
Notes, Cent Dig. U 963, 1448, 1676-1681,
1683-1687 ; Dec. Dig. {{ 870, 49^.*]
4. Bills and Not&b (S 6S7*)— AonoN— ^Tblu
— DiBECTiON or Vebdict.
Where the maker's only defense to a mego-
tfaUe note was a dooial of the allegation tliat
the plaintiff was In good faith the purchaser of
the note for value and before maturity, and
there was no evidence to sustain the plea, on the
introduction of the note in evidence, riiowing the
transfer to the plaintiff r^larly written there-
on by the payee, there was no error in directing
a verdict for the plaintiff. Parr t. Eiickaon,
116 Ga. 878. 42 S. E. 240.
[Ed. Note.— For other cases, see Bills and
Notes, Cent Dig. S| . 1862-1^; Dec Dig. |
637.*]
6. INTESEBT (i 17*>-0n iNSTALUqENTS OT IN-
TEREST.
Where the note, as in the present case,
stipulates that the interest shall be paid annual-
ly, this stipulation renders the past'due inter-
eat a liquidated demand, which ftself bears in-
teiest. Union SavInKS Bank v. Dottenhetm.
107 Ga. 606, 614. 84 8. E. 217; Ellard v. Scot-
tish Mort Co.. 97 Ga. 329^ 22 & S. 896; Till*
man v. Morton, 6S Ga. 386; Merck t. Am.
Freehc^d Land Mort. Oc, TO Ga. 213. T 8. B.
265.
[Ed. Note— For other cases, see Interest
Cent Dig. H 80, 81; Dec Dig. 1 17.*]
Error from Ct^ Court of SSebnlon; B. F.
Dupree, Jndg&
AeUon by the Vint National Bank of
GreenvlUe, Tenn., against B. L. Butler and
others. Jndgmcmt for i^alntiff, and d^eod-
ants bilns error, Afflnned.
B. H. Manry and Henry O. Farr, botii of
BamesTlU^ tor plaintiffs In error. C J. lis-
ter, of BamesTlUe, for defendant In enor.
BILI4 0. J. Jvdgmoit afllnnedt
"^"^ (IS Oa. App. If)
MOORE V. STATE. (No. 4^.)
(Court of Appeals of Georgia. June 25, 1918.)
f8ytt*htu hf the OourtJ
1. Laboint a 40*H'Ii>ENTiTr or Fbopbti^
SirmciENCT or Evidence.
A conviction of theft of property described
In the indictment as "one set of single black-
leatber buggy baraess" Is not supported by
proof of tbe larceny of a set of harness not In
any wav identified in the evidence as being
either b[ack In color or made of leather. The
mere fact that the prosecutor Identified the har-
ness found bv him In the possession of the ac-
cused as the oamess he bad loat could not serve
to identic it as the harness described in tbe
indictment, in tbe absence of testimony Indleat*
ing that die harness loot and tbe harness re-
covered was Mack leather, boggy harness.
[Ed. Note.— For oQier eases, see I^romy,
Cent Dig. IS 102-126. 160; Dec Dig. { 4a*]
2. Labcent (8 40*)— iDENnrr or Pbopbe-
rr- Plbadinq and Paoor.
Though, in an indictment diarging Iw
outy, minute deseripttoK of the property alleg-
ed to have been stolen may not be necessary in
the first Instance, the description as allied
must be proved, whenever a failnre of the evi-
dence to oimform with tbe descriptive aver-
ments udght tend to put the accused again In
jeopardy for the same offense.
[Ed. Note.— For other cases, see Larceny,
Cent Dig. fS 102-126, 190; Dec Dig. 1 4a*]
Hill, C. X, dlsaenting.
' Error tiom Snperlor Conrt* Ultchell Conn-
ty ; Frank Park, Judge.
Sam Moore waa convicted of Omjfla lar-
ceny, and brings error. Reversed.
J. J. Bill, of :Pelham, and Bl Bi Cox, of
Camilia, for ptaintlfl In error. J. H. Tipton.
Hoi. Uen., pro tern., of Sylveirter, and R.
ttell, Sol. Uen., of Cairo, for the State.
RUSSEXJLi, J. {1,2] The defendant was
indicted for simple larceny. In the Indict
ment it was alleged that he had stolen, of the
personal goods of J. G. Hare, "one set of
single blaak-leather buggy hamesa" On the
trial it appeared that the prosecutor bitched
his mule under the shed of a glnbouse In the
town of Pelbam. When he came ba<^ to get
bis mole, after dark, he found that all tbe
harness had been taken off her, exc^t the
collar. The collar was still upon the mule.
'ror otber cases serf satoe topic sad section NUHBBB m See. Dig. A Am. Dig. KsyNa. ftesto * ^9*' Ihdsxss
Digitized by VjOOQIC
TO
A mA iKtam on toiidiif b«de to tbe town «r
PeUuun, h* neoelTM Infonnatlon tba.t the de-
fendant had beaa wsn wltb a put of a aet
tot harneat like the one which had been taken
from Mb mole. In eoounny with two police-
men, be went to the home of the defatdant,
and told the defendant that they were look-
,lttg for a part of a aet of bngg7 hameaa, and
wanted to search hla ho use. The defendant
readily asarated to tills, and took tbe party
Into a room where he showed them, lying en
a Idle of cotton seed, that part of the aet
of hanufls which he had. The bridle was not
with that part of this harness, and, after the
proBCCOtor described the bridle, the defoidant
stated that It was hanging on the t&xce In
his lot, though he had changed the bits. The
defendant stated that he had bought the
harness from another negro; and» accordiiv
to the proaecntor, he did not try to hide the
harness^ bnt readily showed It to the party
as soon as they asked for It The testbnony
of one of the policemen, as to the finding ot
the harness and the willingness of the ac-
cused to produce them, corresponded with
that of the prosecutor. The defaidant In-
troduced three witnesses who swore they
were present at the time he purchased the
harness and saw him pay for It; and the de-
fendant. In his statement, gave snbetantlaUy
the same account of the origin of hla posses-
sion. The JnTj found the defendant guilty ;
and, the court having overmled the defend-
ant'B motion for « new trial, the writ of error
brings the case to this court for review.
The only question presented Is whether the
property recovered by the prosecator was
aulbclently iden titled by the evidoioe as the
property described In the Indictment; for.
While It Is impossible for us not to entertain
grave doubts of tbe defendant's guilt of lar-
ceny (even though he be guilty; of the statu-
tory offense of receiving stolen goods), still
the verdict of the jury upon this point Is
coKtnslve.
We pass by the point insisted upon by
counsel for the plaintiff in error, that, as it
Is undisputed that the collar was not stolen,
the prbof falls to show tbe theft of a set of
hahiess; for, Ih onr opinion, tbe accused,
under an indictment charging a theft of a
wiiole set of harness, conid be convicted, If
It dearly appeared that he stole only a' part
of the set, Just as one charged vrlth the theft
of property allied to be worth flOO could
be convicted if It appeared upon the trial
that the property In question was worth but
gTCk Bnt since U nowbo^ appears In the
evidence that the harness of which the ac-
cused was in pcBseaskm was ether single
bamess, Mack harijiess, or leather harness, we
do not think the mere eridence that the proa-
egntor lost and recovered some harness,
wUch, to far as it appears from the evidence,
may have been part of a aet of double har-
ness, or' may hflTe heen tan ookwed, «r erai
made of cotton or hemp, saHlclenfly conforma
to tbe deaolptlvenTenttentBofftetndletment
to anthtniu a oanvlctlim. Unte a mle w^
settled, and frequenUy stated by the Supreme
Uohrt, the stato tfmp^ failed to canj the
bnrdan devolving upon it of proving the ma-
terial avermeits of the Indictment as laid.
In Johnsou v. State. US Oa. 2B7. 46 & B.
tM(^ tiie judgment €t the lower eoort, refoa-
Ing a new trial, was reversed (thou^ the
Hnprenie Oonrt held that the Indictment was
not subject to demurrer), beeanae tbe Indict-
mmt charged tbe defendant with steafing
"one hundred and twoity dobais In paper
money, to wtt; two twenty dollar bllli^ five
ten dollar bills, and alz five dollar UlU;*'
mniiti<Tig thereby, tbe deolslim In tte
Allen Case, 86 Oa. 899^ 12 8. B. 6S1, that tbe
money stolen was bank Mlli^ and tbe testl*
mony ftUed to show whethw tbe moa«f
was greenbacks, treasury notes, bank bills,
or gold or allvw certtfleatee. Tbe preeeentor
swore he did not know to which class of
paper money the |120 (which was stolen from
him and which he recovered) belonged. Bee,
in this conneetion, Crenshaw v. State, 64 Ga.
449 ; Thompson v. State. 02 Ga. 448, 17 B. B.
•za6; Berry v. Stote, 02 Ga. 47, 17 S. B. 1006;
Haupt V. Htate^ 108 Ga. 68, 84 S. JiL 313, 76
Am. St Bep. 10; Hardy v. Stote, 112 Ga.
18, 87 a iU. 00; Paulk v. Stote, 6 Ga. App.
673, 63 S. E. 650.
The Solicitor General relies upon the rul-
ings in Crawford v. State, 04 Ga. 772 (2). 21
8. B. 002, WlUlams v. Stote, «L Ga. 417,
Am. B^. 102, and I^tterson v. Stote, 122
Ga. 6S7 (4), 60 8. B. 480, to support of the
proposition that the proof sntttdently con-
formed to the descriptive averments of the
indictment to anthoi*lM the conviction of the
defendant. Tbe cases of Crawford and Wil-
liams, supra, were cases involving the viola-
tion of the statute forbidding the caTtylng of
concealed weapons. T^ese rulings are not to
point, because it Is readily to be seen that to
carr^^ng out one of the main purposes of the
stotuto against carrytog deadly weapons con-
cealed, to wit, the preservation of toe public
peace, and Incidentally the in-otectlon of
Human life, it to important that it shall be
ai^Ued to tbe carrytog of an toeffldent pis-
tol as well as to tbe carrying of one which
Is thorough^ etfeetlve and of the latest im-
proved model. One who Is carrying a broken
pistol may know It Is harmless; but, If he
should have a dllllculty with another person,
the latter, to all probability; would -tiiot know
tnat the pistol could not shoot, and, tor this
reason, If be saw the carrier of the pistol
Mth it to A threatenliv attltode, he m^ht, as
a matter of a^-presKratlon, ieommlt some
act which be otherwise would not The ml-
Ing to Patterson v. Stote, snpra, la not
In conflict with any of the deHslons we have
dted above ; for, thoogh the proof to Patter-
son V. Stote showed that the case afid the
works of the watch alleged to have been
stolen bad been temporarily 8eparatodhz.tiu|
774
78 SOTTTHBASTBRN BHIPORTBB
Jewelw nho vaa repairing it, the accused took
botb the watch> and the case, and therefore
the proof of the property taken conformed
vitb the descriptive aTerments of the indlct-
laesit, which vtts **one double-osse allTer
•watch."
Any confiulon which exists in the case
now before ns Is doe to the fact that the
prosecntor more than once testified that the
harness he recovered was the same as that
which be lost; and, as is natural, the mind
seeks the description fomlahed by the indict-
ment to ascertain the diaracter of the har-
ness alleged to have been stolen. Howew,
the proposition that the allegations of the In-
dictment are not evidence is so elemoitary
and palpable as to make even a statemoit to
this efEect siverflnoiu; and yet there Is noth-
ing In this record which shows what kind of
Harness was stolen, except the description
contained in the Indictment It Is true the
JHrosecnfeor says the hameas recovered was
idmtlcal with the harness be bad lost But
he does not say that the hameas he lost , was
a sln^ buness, black harness, or leather
harness. It ml^t bave beai saffldent if the
state had described the stolen pnqterty sim-
ply as n "aet of harness," though we are in-
clined to the opinion that in that event die
defoidant might by donnrrer have demanded
a fuller description. Bnt certainly, having
elected to Identify the bamess by terms of
description, the state was required to prove
IJie marks of identlfieatlon which it bad itself
selected. "Where there la a necessary allega-
tion which cannot be rejected, yet the pleader
makes it unnecessarily minute in the way of
description, the proof must satisfy the de-
scription as well as the main iMirt, since the
one is essoitlai to the Identity of the oth^."
Bishop's Crim. PI. {8 324. 320.
In Johnson v. State, 127 Ua. 277. S6 8. U.
4^, the. accusation charged the dtfendant
with unlawfully assaulting and beating the
person of one B. with a pocket knife The
evidence showed that the accused tore B.'8
clothing and held him with hia left hand
(thus committing the offense of assault and
tMLttery), but did not strike him with a knife ;
and the Supreme Court held that the evl-
dence did not authoilze a finding that the
defendant was guilty of the oflfense of assault
and battery. The ruling was based upon the
decision in Fulford v. State, 50 Ga. 691, In
which Judge McOay, after Quoting the rule
as laid down in Starkle on Bvld^ce, and by
lOshop, Chltty, and Phillips, holds that aver-
ments of an indictment may be rejected as
surplusage only when they concern facts dis-
connected with the offense. To the same effect
was the prior ruling of the Olrcult Court
of the United States In IT. S. v. Brown. 8
McLean, 233, Fed. Gas. No. 14,066. In that
case the Indictment charged the i)08tma8ter
with stealing a letter containing certain bank
notes. It was held that the averments as
to the bank notes might have be» ondtted,
and that the offense could have been prop^y
chained without those words, but that, bdug
In, tb^ must be proved. In the FnUbrd
Case Judge McCay says: "i-ake this easa
It was not necessary tibat the pleader should
have stated the acta of the defendant which
constltnted his 'aiding and abetting.* or tos
define how It was done. The 'ai^ng and
abetting* was an essential avoment The de-
fendant was charged with so doing posh-
ing, striking, assaulting and threatening the
said J. A. Conway.' He was pot on notice
that it would be proved on him that be did
these things. He proposes to meet the charge
and show that he did not push, stilke, as-
sault, or threaten the said Conway. The
aiding and abetting may be made out by
proving may other ways in which it may be
done, totally foreign to those set forth In the
indictment The prosecution, knowing this,
proposes to strike out all these descriptive
averments and leave an open field for any
and all proof of any and fill forms or ways in
which the aiding aiid abetting may be shown.
This would be permitting a defendant to be
called upon to meet a charge spedflcally
made In one form and then to allow him to
be convicted by a change of ttie indictment on
proof of acts totally distinct from those of
whldi he was notified."
In the case at bar the defWdant was called
upon to meet the charge of stealing a set of
single, black leather harness. Oonstralng
the evidaioe most fiivorably to the stata he
Is convicted of stealing some harness, whldi,
so far as appears from the record, may be
double, white cotton harness; and. as was
said by Judge McCay In the Fulford Case,
supra, "we do not think It can be done on
principle or authority.'*
Judgment reversed.
HILL, a J. (dlsseiting). I think the set
of harness, as described In the Indictmoit
was sniUclently idaitified by the evidence^
There was no variance between the descrip-
tion given of the harness in the indictment
and the descrlptioa in the evidence and there
could be ao reasonable mistake aa to the
identity,
a* 0% App. m
MOOBB r. STATE. (No. 4,910)
(Court of Appeals of Georgia. June 181S.)
(BvUahut Jnf Oe OonrQ
Affbai. and Ebbob (I 627*) — Deut nr
Tbansuibszon— DisuasAZ.
Since it appears that the clwk of the trial
court failed to transmit to the Court of Appea^.
within the time prescribed by law, the oill of
ezceptiouB and a transcript of record, and iC
appearing that the attwn«y for the- plalntUt in
•For etiMr mms mS mom topie and mgUod NUMBKH 1b Dm. Die a Am. Dig. K«r-M«. a«yraftiB!r
DigHized by VjOO*
776
flrrnr dtneteA and wocnMl flM delay In trana-
miMion, the writ <m error mnit be dismissed.
[£d. Note.— For other cases, see Appeal and
Error, Cent. Dfff. U 2744r-2749, 3126; Dec.
Dig. I 627.*]
Error tnm Superior Court, Lanrana Coun-
ty; J. H. Martin. Judge.
Freeman Moore was conTlcted of crime,
and brings error. Writ of error dismlsaed.
1. B. H^htower, J. B. Green, and H. F.
Howard, &U of Dublin, for plaintiff in error.
E. lo Stephena, SoL Gol, of WrightaTllIe,
for the Stata
RUSSELI^ f. There la a motion to dla*
mis* the writ of error because the bill of
ezcepUtms and transcript of record were
not transmitted by the clerk of the trial court
within the time prescribed by law. The caae
la clearly wltbin tiie mllngs at tbe Supreme
Court In Brunawliac Book Co. t. Toracta, 112
Ga. 637, 8T 8. B. 737; Wbe^ Craw-
ford, 136 6a. 148, eD a B. 22; Wllaon t.
State, 124 Ga. 80, 62 S. B. 81; Bndden v.
Brooke, 123 Ga. 882, 61 S. B. 727; Bamhart
T. A. & W. P. B. Co^ 133 Ga. Gft, 66 S. B. 1S8:
Wheeler t. Hodey, 136 Ga. 686, 71 8. B.
790. and the dedslans of this court In
BasterllnK t. State, 0 Ga. App. 464, 71 8.
B. 774, and De Loach t. Klc^llghter, 11 Ga.
Ai^ 74, 74 8. EL 717, all of which are baaed
uptm the proTisltniB of the Olvil Code 1010,
H «186,. 6186k the latter reading: "No per.
son shall be uitltled to the benefit of tbe
proTialona of the preceding section, who by
his own act or that of his counsel, has been
the cause of the delay or failure to send up
aald bill of exceptiona or a copy of the
record, by consent, direction, or procurement
of any Und."
In the present case tha clerk of tbe trial
court certifies that tbe counsel for the plain-
tiff In error objected to his sending up In tbe
transcript the parts of the record that be
bad, because certain other porta were lost
■ There was no effort by counsel for the plain-
tiff in error to estabUsh copies of the lost
originals. We are always extranely reluc-
tant to dismiss a writ of orror. In tbe opin-
ion of this court It la far pr^erable to deal
with the merits of every case if from the
UU of exceptions or the record, or both
tfwether. the court can understand tbe point
upon which an ad^dicatton is asked. In Oke
preset case, Itowerer, we dismiss the writ
without qualms or compunction, because the
only point insisted upon in tbe brief of
counsel for the plaintiff In error la an al-
lied error in oTerrnllng a motion for contin-
uance, in wfal<^ It waa not made to appear to
tbe lower court tliat the continuance was
sot asked for the purpoee of dday. And,
even if the ahowing was not subject to
eren that fatal defect, It does not appear
prima fticle to have been otherwise merito-
rious.
Writ of erzor dlAmlsBed.
a>Oa-App.n>
GRUBB8 T. STATB. (No. 4,863.)
(Gonrt of Appeals of Georgia. June 25, 1018.)
fSyllahut hy the Court.)
1. HOHICIDZ (I 200*}— DtINO DECLABATIOWa.
Where, about 20 or 80 minutes after the
decedent bad been shot in the stomach with
a pistol, he was beard to be moaDing aud pray-
lx>; ■
iiiB, "Lord, have mercy on me!" and
•rd.
help me !" and was asked who ihot bim, and in
reply stated that the accused shot him, and he
died in IS or 20 minntes after making this
statement, praying op to tlie time of hla death,
tbe statement tfans made by tbe decedent was
prima facie a dying declaration, and was prop-
erly allowed to go to the jury. In Che present
case, however, ft was immaterial, as the ac-
cused admitted that he did ahoot the decedent
with a pieCoL
[Ed. Note.— For oOier cases, see Homicide^
Cent Dig. U 426-427 ; De&Dig. { 200.*]
2. HoucinE (I 800*) — iNBTBDcnoNS— Btx-
nanca—VOLDlfTABT MAHSI.A'UeHTKB.
The evidence for the state demanded a coih
rietlon of murder. There waa no evidenee in
behalf of the accused, and the jury conld have
inferred, from tbe statement made by bim, that
he shot the decedent in self-detenee. There was
no theoi^ of the evidence or of tiie statement
upon which tbe verdict of voluntary man-
slaughter could have been founded; and, fol-
lowing the repeated decisions of the Supreme
Court and of this court, a charge on the law at
voluntary manriauvhter was not authorised.
The verdict most tnerefort be set aside as con-
trary to law.
[Eld. Note.— For other cases, see Homicide,
Cent Dig. H 640, 600. 652-666; Dec Dig. f
300.*]
Error from Buperior Court, JenMna Coun-
ty; B. T. Rawllngs. Judge.
Simmy Gmbbs was convicted of mnrda,
and brings error. Bemaed.
A. S. Anderson and Cbas. O. Reynolds,
botb of MUlen, for plaintiff in error. B. Lee
Moore, BoL Gen., of Statesboro, for tbe State.
HIIX, <X J. Judgment roversed.
(UGa, App. <t)
ICANGUlf et aL T. IitANOS. (No. i84a)
(Court of Appeals of Georgia. July S, 1918.)
fSyllttlm* hy the Govrt.)
HiTBBAND AND WIPE (| 285*)— GONTKaOTS—
SUBBTTSHIP — iNSTBUCmONS.
This waa a suit upon a contract of leaae.
against a hnsband and wife as joint makers.
The wife pleaded that she signed tbe contract
as snre^ for her hnsband. There was suffi-
cient evidence to authorise a finding that alie
executed the contract as a prlncipaL The trial
judge distinctly instructed tbe jnry that nnder
the law of. this state a married woman cannot
become security or bind her estate by any con-
tract of snretjwiip, and that it they shoiw b^
Here that the wife was a surety, and not a
principal, upon the contract sued on, she would
not be liable, itnd they should so find. This
instruction snfflciently covered the issoe In-
volved: and if a moi*e specific charge was de-
sired. It should have been requested hi' writing.
Tbe evideoce authorized the verdict
[Ed. Note.— For other cases, see Husband
and Wife, Cent. Dig. H 688, 8^-«(2, 082; Dae.
Dig: I 2*.*]
n>ar stbsraasM sss I
I to^ and ssotlDB NDMBKIln Dso. Dla. * Am. Wf. Kw
778
78 SOUTHEASTERN BBFOBTBB
Error from CStj Gonrt of AUanta; H, If.
Reld, Jndge.
Actl<Hi Urn Hanoa against Susie Man-
gum and others. Judgment for plaintiff,
and defendants bring error. Affirmed.
Jno. A. Boykln, of Atlanta, for plalatUfs
In error. W. O. WUaoiv of Atlanta, for de*
feudant In error.
POTTLE, J. Judgment afSrmsd.
(U ChL App. 79)
GRAFT T. STATE. (Mo. 4,96&)
(Oonrt of Appeals of Georgia. July 9, 1918.)
fSyUaiua 1>y the 0^m%)
ADULTEKT (§ 12*)— MaSMAOS — EVIDBHOl —
SnrnaiBNCT.
Under the ruling in Zackery t. State, 6
Oa. App. 104, 64 S. E. 281, the evidence In
the present case was not saffieient to ebow that
the female with whom the aceosed was alleged
to have eomndtted adnlterr «u * manied
woman.
[Ed. Note.— For other cases, see Adfiltery,
CmL Dig. SI 24-27; Dec. Dig. | 12.«1
Error from <Sit9 Ooart of Hall Coimtr;
O. A. Johns. Judgfc
Tobs Craft was eomictad of crime, and
brings error. Reversed.
Johnson & Johnson, of GalnesrUle, for
plaintiff m error. A. C Wheeler, 8oL, of
OalnesTlll^ for the State.
POCTLE, J. The only evldraice that the
woman was married consisted of testimony
that, about a year before the act tootc place,
she said she was married, and of goieral
statements from witnesses that she had the
reputation of being married, having for some
time, previous to about a year before the
criminal act was alleged to bare been com-
mitted, lived with a man who had since left for
parts unknown. Under the ruling in the
case cited in the headnot^ the conviction was
not authorized.
judgmuit reversed.
(U Oa. App. 80)
McGARB V. STATE. (No. 4,071.)
ff3onrt of Appeals of Georgia. July % 1913.)
LaMDIABD AMD Tutaut (I 253*) — Sau bt
The evidence was not soffident to support
the eonvictioQ.
[Eld. Note.— For other caaes, lee Landlord
an^ Tenant. Cent Dig. || 1031-1088: Dee.
Dig. 1268.*)
BTrror from Superior Court, Tattnall Conn-
iji W. W. Sheppard, Judge.
Forest McGarr was convicted of disposing
d a portion of his txoQ without his land-
lord's consent, and brings error. BeverBcd.
H. H. Eadera, of ReddsvfUe, for plaintiff
in error. N. J. Norman, SoL Gen., of Savan-
nah, for the State.
POTTLEh X. The conviction of the ao-
cuaed has resulted In a miscarriage of Jus-
ace, which we can correct without in any
wise interfering with the well-established
role tliat the reviewing court cannot disturb
a finding of fact which is supported by any
evidence.
The accused was convicted of violating sec-
tion 729 of the Penal Code of 1910, by dis-
posing of a portion of the crop without the
landlord's consent and before payli^ him
In full for advances made to aid in msking
the crop. The landlord advanced $200 dur-
ing the year. After the maturity of the
crop repayments were made, and in Decem-
ber the landlord claimed a balance of $67.42.
On croBB-examlna tlon lie testified: "After
the division of the fodder, corn, and cotton
seed, that left me and the defendant even."
There was a dispute between them, and ar-
bitrators were selected to adjust it. The
arbitrators say, but the landlord denies,
that he stated to them that the only matter
in controversy between him and his crop-
per was a mule, and that when this was
adjusted the cropper would owe him nothing.
The arbitrators awarded the mule to the
landlord, and the cropper acquiesced. There-
after the cropper sold a small quantity of
cotton seed grown on the landlord's premises,
estimated by the landlord to be worth $3
or $10. After the sale, to settle the dispute,
the cropper offered the landlord $2 for his
part of the seed, and the landlord refused
to accept It The next day the accused offer-
ed the landlord the amount claimed by him
to be, due him from the seed. The landlord
accepted It and agreed for the cropper Co
keep the balance. This la the atate's case.
Without l4 any wise intending to reflect
on the Jury, or im the trial Jndge who re-
viewed their flndlng, we cannot refrain from
expressing surprise that a eonytctlon could
be had or allowed to stand under the evi-
dence disclosed by the record. The gist of
the offrase waa the sals of the crop befora
settling in full with the landlord, and befoca
be received his part of the crop, and witbonc
his consent H«re^ nodcf tho landlord's own
admission, white bo did not expressly au-
thorise the sale In the flrst Instancp, he did
sobseiiiieitUy eoownt to It and acowted bit
half of Uie ivoceeds. It la ahoefclng to com-
mon Justice to allow him to prosecute the
cropper to conviction after ratifying the sate
and taking his half of the money. Having
rMotred tho fniita of and ratUed tbo sab^
the law Indnlgeo the Inferenee of consent in
the flrst instance. While fraodnlent Intent
is not an dement In Ada ogam, the wnmc
to the landlord and ttw offense against the
state are IdenticaL If there has been no
«W ata«r iMHM Mt aaiu and MoUea NUHBBB m J>fe. Dls. * An. Dla. I^j^j^l^J
BANIIBUI T. BIAZB
777
wrong to f3ie lufOoid, tbere has Iwrn no
crime commuted against the state.
Witboat discoRdss other questions whldi
ml£bt aitee, «e bold, on the point under
consideration, Hiat proof of a sale by a
doppeac of a part of the crop raised by him,
withont the landl«rd'a express consent, and
before payment la foU for advances made to
the croppur by the landlord, will not au-
thorise a convictioa, where the landlord
makee no objection to the aale^ ratifies It
after It la made, and. before any pn»ecatlon
Is Inatitiited. accepts the proceeds of the
Bsle from the cropper. Criminal laws were
Intcsided to punish criminal offenders, and
here the essential elements of a crime are
wanting.
Judgmrat rerersed.
(U Oik xiv. 7»
MBBRB T. MAYOR, BTC„ OF GABBOLL-
TON. (No. 4,96&)
(Ooort ct Appeals of Gcorfla. Jidy 8^ 1918.)
(SvUahua bff th€ GomtJ
iNTOxiGi^TiHo LiQUOBS (S 230*) — Illboai:.
Salb— Etidehoe.
The evidence was mffldeDt to authorise a
flading that the aceosed stored two barrds of
intoxicating Uqaor, in which he was Interested
either as owner or agent. In a house In the
country, and that he remored from obe of the
barrels several botties of whisky and carried
them to a boose la the d^. Mo sale wss
shown, bet the secretive methods empl^ed by
the Bccused, and the drcamstanees snrromimng
the transaction. In connection with the fact
that unnsoal nnmbers of persons were seen to
go into his house and SMoetimes return with
gackagef, warranted the inference that he
rought the liquor Into the conorate limits of
the dtr for -tne parpose of Illegal sale, sod
justified his .oea^ctMD of the Tiolatioa of a
municipal ordinance charging that offense.
[Ed. Note.— For other cases, see Zntozicatinc
U^iiors, Cent Dig, SI 300-822; Dec. Dig. I
Error from Snpeilor Court, Carroll Coun-
ty; R. W. Freeman, Judge.
A. J, Meeks was convicted of selling llq-
cora In violation of an ordlmiQce of the City
of CarroUton, and brings error. Affirmed.
J. O. Newell, of CarroUton, for plaintiff In
razor. G. B. Bocih of CarroUtwt, fbr defend-
ant la tfror.
FOfrTLB, J. Judgment afBrmed.
HI am. adp- w
. DANIELS T. STAm (No. 4,886.)
(Court of Appeals of Georgia. Jnly 6, IftlS.)
(avUalw ttt the Court)
InTOXICATIKO LiqiJOBS (I 236*) — IlXKGAL
8&LB~BVID*KCa.
No e^ror of law is complained of,, and the
jui7 were authorised to infer guilt from the
undisputed facts.
[Ed. Tfote.— For other cases, see IntoiUcatlng
^uors. Cent Dig. || 800-«2St Dee. Dig. |
Russell. dlsssntittg.
'Boot team SupvAae Ooqrt; Wortb Onm-
ty; Frtofc Faric, Jndcft
Qua Daniels was convicted -of aaUlnc Is-
toxlcatlng liquors^ and brings evror. Af-
firmed.
Perry, Foy & Monk, of Sylveetw, for plain-
tiff in error. B. O. Bell. 80L Qen., of Oalio,
fbr tiie State.
. HILL, C J. Plaintiff In error was convict-
ed of the offense of selling intoxicating liq-
uor, and, his motion for a new trial, baaed
apon the general grounds abme, being over-
ruled, he brings error. The evidence is very
brie^ and is as follows: The first wllneas
for the proeecntlcMi, who was a police officer,
testified that he aaw the accused go oat of
the bsd^ door of a stores "and take jCnun
his bosom a pint of whisky and deliver it to
Homer Strong, and I aaw Homer Strong de-
liver the defendant 75 centa In money. I
arrested defradant, and found on him five
pints of whisky like that delivered to Homa
Strong; it ma at night, and I was standing
about 80 feet ,away." Homer Strong, b^ng
introduced by the state, testified as follows:
"I remember the oceaalon testified about by
Mr. Crow, and it is true that the defendant
delivered to me a pint of whisky, and I de-
livered him 75 cents in mopey. Defendant
gave me the whisky, however, and after-
wards, while I was standing tbere, I paid
him 76 cents that I owed blm for borrowed
awnex which he had lent me about a month
before. 'that tlm& Defendant knew at the
time that the money I gave him was to pay
him the debt I owed him for borrowed mon-
ey; he asked me If I could Pf^y him the
money I owed blm and I taken the mon*
ey from niy pocket and gave it to him."
This was all the evidence, and the accused
made ^no statement to the jury. While the
general rule Is that the jury should not ar-
bitrarily refuse to believe the evidence of sn
nnimpea<died witness, in the absence of con-
flict, yet a witness may be Impeadied by the
unreasonablienesa of his evidence, or by prop-
er Inference drawn from his evidence of the
existence ot a mere pretext or subterfuge.
Here the repayment of the loan coincident
with the receipt of the pint of whisky la cal-
culated to raise more than a grave saapldon
at the ttdatance of a subterfuge, and that the
wituesa was endsavoring to afaleld the acens.
ed. Indeed It strongly sugcests a tranvarent
pretext Courts will not raeonrage criminal
ingaimtr -by aoeepcbig as the truth of a
tranaaettm s atatemrat irtUdi eonatltates s
reasonable foundatioa tut an Inference ttant
the statwnwrt is a vere vnttxt.tmt fhe par*
[Kise either of arodlnc the law or of pretaet.
Ing another in its Ttol^tion.- We cannet say
that the praetlcal sense of the Jury 'vas not
wisdy exwclaed, under the facts of thstpBes-
ent case, and that the statement viade by
the seoood witness was not too greet a tax
fito ottotr.oasis sse sams topis avd aeoUoa NVMBBS In Vise. Ms. A Ass. I>ls. Ksy-NOf^^f^^
78 SOUTHB^SKN BBFOBTEB
upon thslr craduB^. An explanation of this
character should not be readily accepted as
snffld^t to remove the Inference of gnllt
arising from unnsual and moat suspicious
circomstances. If It should be accepted as
sufficient, the door would be opened, wide for
those who violate the prohibition law in the
sale of liquor to escape. The evidence of
the witness that the 75 cents was the repay-
ment of a debt, and not a payment for the
pint of whisky, strongly suggests after-
thought It also Seems to be unreasonable
that the accused should be carrying around
concealed on his person pints of whisky for
the purpose of presenting them to his frlenda
^e fact that they were concealed is a
strong indication that his purpose was to
sell, and not to make glfta The jury saw
the witness and heard the testimony, and
the trial judge approved the verdict A ma-
jority of this court is not willing to hold
that the Jury's deduction of guilt from the
suspidons circumstances surronndlng the
conduct of the accused was not warranted,
and the judgment U thereCiwe affirmed.
RUSSELL. J., dissents.
pi Gfc i4>P. as)
LUKB V. LIVINGSTON. (No. 4^896.)
(Court of Appeals of Georgia. July 8, 1013.)
fSylMiu 1>v the Court.)
APFiAL AND Ebbob (H 663, 1002*)~GAini«a
(I 49*)— Rbvibw— CoNrucnira BvunircB—
CBBTinOATB or JUDQB.
Tbn evidence autborind the verdict, and
there was no material error on the trial.
[Bd. Note.— For other cases, see Appeal and
Error, Cent. Dig. ff 2853-2866. ^56-3987:
Dec Dig. fi 663, 1002:* Gaming, Cent Dig. Si
100-102; Dec. liig. S 49.*]
Error from City Court of Ocllla; H. £.
Oxford, Judge.
Action by J. K. Livingston against J. C.
Luke Judgment for plaintilll^ and dtfend-
ant biii^ error. Affirmed.
Haygood A CnttB, of Fitsgerald. for plain-
tur in error. H. 3. Quincey, of Ocllla, and
Elklns & Wall* of Fitsgerald, for defendant
in orror.
RUSSELL, J. When this case vras here
before (Luke r. Livingston, 9 Ga. Aiq;>. 116,
TO 8. B. 006), this court ruled: (1) that the ac-
ceptance of an offer to sell may be shown
by looof that the pwsou to whom the olEer
was mads bad paid a portion of Uie pureiuue
pric^ and 09 that parol evidence is compe*
teat to Bhow that the wHttea ooDtraet, ap-
parently relating to an actual sale of cotton,
was in fact altered into merely for the pur*
pose itf allowing tiie parties to' deal in cot-
ton fDtarea, and that the tranaaction wa«
not bona fld^ bat a speculative and gaming
contract The caw afterwards went to trial
upon its merits, and it appears from the
record that there waa evidenoe Chat Uvlng-
ston's agent paid Lnke Ow |1 mentioned In
the contract It is true there was positiTe
testimony on the part of the defendant Qiat
no money whatever was pald^ but the jury
having settled the truth of this matter, we
must assume that the part of the purchase
price to which we referred In our formw de-
cision was paid. Assuming this to be true,
the only other question is whether the evi-
dence shows that the contract was a rn^e
subterfuge to cloak and cover an ill^l
transaction in cotton fntnres. As to this
point too, the evldraice is directly In con-
flict and the jury preferred the testimony
of the plsintlfF' rather than that of the de-
fendant There being evidence sufficient to
authorize a finding In favor of the plalntifr
upon both of the vital issues in the case, this
court Is without Jurisdiction to set aside the
finding of the jury, unless the record dis*
closes such material and prejudicial error
upon the trial as to raise the inference that
but for that error the verdict would have
been different
The fourth ground of the motion for a new
trial was not argued In the brief of counsel
for the plaintiff in error, and must therefore
be treated as having been abandoned.
Error Is assigned upon the refusal of the
judge to charge the jury to the effect that:
"The law favors compromises and settlemoits
of disputes, and hence it is against the poli-
cy of the law to allow evidence to be given
of any effort of settlement made with a view
of compromise." "I therefore charge you
that if it appears that any effort of settle-
ment was made by the defendant if It was
made with a view of a compromise, yon could
not consider or act upon it as evidence against
the party offering the compromise," without
qualifying this instruction by Immediately
adding the following language: "If it has
been admitted, It has not been admitted as
an admission on the part of the defendant
that he was due any amount bnt merely as
illustrating whether or not the defendant in-
tended to deliver actual cotton, or Illustra-
tive whether or not It was a speculative con-
tract or a chance In futores." It is Insisted
that this qualification of the vioTga wUeh
had been requested was erromoiu because
it contradicted and nuUifled the charge re-
quested, and because the effect of the qual-
ification of the charge is to allow state-
meata made of any compromise to be itoctfv-
ed against the defoidaat u to ibe original
intent with which tiie cpntract was made,
and therefore as bearing tqpon the princ^wl
iasne in the caea It Is of coarse well set-
tled that evidence of an effort to compromise,
or testimony toidlng to show an attempt to
eom^omise^ Is gmenUlr inadmisdble, and
yet we Had bo error In the instxnctloa of
the court in this case, becaose one of die
main issues In the action was, Whiat was the
•Tar ottaar oasw M»sun topto snA Motion NVHBBB la Dw. Us. * Am. Dig.
ICATOH, Era, OF SAVANNAH T. DlTFOUB
779
Intention of the parties as to actual d^Tery
of leal cotton? In other wodJs, the Jury
bad to determine whether it was the inten-
tion of the parties to deliver "spot" cotton, or
to settle upon the basis of the difference be-
tween the market price of cotton mentioned
In the contract and the market price of cot-
ton on the date fixed by law for Its delivery,
and the fact that either of the parties had
offered or agreed to take a sum of money
In lieu of the fulfillment of the precise terms
of the contract might be a circumstance from
which the Jury could infer that the sale of
actual cotton was not intended.
The instruction of the trial judge in re-
gard to ttie different modes in which livlng-
iton might accept the contract is not er-
roneous, nor could the admission of the plaln-
tlff*B testimony, to the effect that in a writ-
ten power of attorney he gave James author-
ity to act for him, be preJudidaL The ques-
tl<tn between the parties In this case was,
mat whether UvlngBton'a i^ower of attorn^
was priverly raecated, according to the
Btrlctneaa of the law, but rather whether
Jamea was ant^rlsed by LlTlngston to en-
ta into the contract with Lake. anA the very
ftict that Ltvlngsbm sued Luke upon a con-
tract made by Jamea In hla behalf is con-
elusive evidence of Uvingston's ratification
of Janca* signature to the contract
The Jndge declined to approve the ground
of the motiofi for a new trial based upon the
alleged absence of the Judge from the court-
room during the trial, and hence this ground
cannot be eonttdered. The statements of
parties contained in anch a ground of a mo-
tion for a , new trial cannot be ascertained
by taking testimony. The Judge must re-
member for lh<iiif If what occurred, and his
otfUflcate as to- what dfd actually oeevr is
flnaL
The omtrolUng prlndples involved in this
case were ruled when It was heretofore be-
fore us for consideration. The Jury would
have been authorized to find for the defend-
ant npon both of these issues. They prefer-
red to give superior w^ht and credit to
the testimony in behalf of the plaintiff; and,
there being no material error of law, It can-
ndt be held that the trial Judge abused his
discretion In refusing new trial.
Judgment affirmed.
(18 Oa. App. ti)
McGOBMICK V. TBIBUNB-HBRALD OCX
(No. 4,844.)
(Court of Appeals of Georgia. July 8, 1918.)
' (8vllalu$ by the Court.)
Ai^OHMBNT (H 343, 373*)— WBowoim, At-
ucbhbnt^Damaoes— Bbhedt or DanNs-
ANI^RKMEDY of THXB» PBBSOIf.
The remedy of a defendant in attachment
to recover actual damages is npon the attach-
ment hood. An action of trespass cannot be
maintained by ■a<^ a defcndsnt against the
plalotifE' for the recovery of either actual or
punitive damages, without alleging malice and
want of probable caose in aumg out tiie at-
tachment Sledge V. McLareo, 29 Oa. 64 ; Wil-
cox V. McKenzie, 75 Oa. 73: Porter v. John-
son, 96 Ga. 145, 14a 23 S. R. 123; Foarth
Nat Bank v. Mayer, 06 Oa. 728, 24 S. E. 463.
The rule la otherwise where the party injured
baa no remedy upon the attachment bond, as
where the goods of one person have been seiz-
ed and converted or damaged, under process
of attachment iasaed against another person.
Williams V. Inman, 1 Ga. App. 321, 57 S. B.
1009; Speth V. Maxwell, 6 Ga. App. 630, 66
S. E. S80: Maxwell v. Speth, 9 Ga. App. 745,
72 S. E. 292. The decisions of this court do
not conflict with the dedsiona of the Supreme
Court above cited, bat recognize the distinc-
tion In the rule exiating between the parties to
the attachment case and that between the plain-
tiff and a third person whose property has been
seised. The decision in Speui v. Maxwdl, su-
pra, is, in Maxwell y. Speth, supra, so explained
as to barmonixe iritb ue rale laid down hf the
Supreme Court
[Ed. Note.— For other cases, see Attachment,
Cent. Dig. H 1233, 1236H^7; Dec Dig. H
343. 373.»]
Error from City Court of Floyd County ;
J. H. Reece, Judge.
Action between W. A. McCormld: and the
Tribune-Herald Company. Prom the Judg-
ment, HcCormlck brings error. Affirmed.
Harris & Harris and McHenry ft Porter,
all of Borne, tor plaintiff In error. Bowell,
Kelly ft Davis, of Borneo for defentent in
en?or.
POTTLE, J. Judgment afflrmed.
(IS oo. App. tn
MATOB, ETC., OF SAVANNAH v. DUPOUB.
(No. 4,842.)
(Court «f Appeals of Georgia. Joly 8, IfilS.)
f^tthw by t1i4 Court,)
1. Davaoes (S 216*)— Pebsohai. Injttbiz^
Instbuctions.
Where, in a suit for damages for personal
injuries, it appeared from the testimony that
the plalotifF caught her toot in a hole which
bad been negligently left exposed on a public
sidewalk by the defendant municipality, as a
result of which she (ell, wrenched her riioolder
and back, had one of tier teeth knocked out,
had her lips and nose cot and bruised, that
several months aftesward, at the time of the
trial, plaintiff was still suffering from the in-
juries which she had received, and that her
health had been impaired as a result 61 tba
injuries, and that she was unable to do her
household duties, which she had been accus-
tomed to perform before the injuries, it was .
not erroneous to charge the jury as follows:
"She [the plaintiff] also sued for pdin and suf-
fering, whicb she claims to have instained, and
that she will [still] continue to endure this
pain, and that her general health has been im-
paired. Now, that comes under the general
bead of pain and suffering. There is no, mathe-
matical , measure given by law for this. The
Jury ascertains from the evidence if defend-
ant is liable, how much ^ain and saffering has
been undergone by plaiQbff, and bow much she
wilt undergo, if the evidence discloses it Then
they will find for her what their enlightened
cobsdenees, as impartial Jurors, would find
from the evidence to be fairly compensator; to
*g!or ^ttiy'^Mei.sss asm* topis mA ssctlaa ITOMMaiai Dae Ma. * Am. Big. Ker-KoD^liBGfcylpi^teaM^
htr. ud, at tk« Mme time, Ur to the de-
fenaant" foregoing InstrueUoD wu
adapted to the evidence as diecloied by the tes-
timony ot the plaintiff, and was not labject to
any of tbe objections made thereto in the mo-
tion f w a new trial.
[Sd. Note.— For other caaei, tee Damages,
Oent. Dig. 11 548-S66); DecTDlg. } 216.*]
2. ApPial and Ebrob (|781«)— AssiQinaNTs
OF ElBBOB— SumClENCT.
An assignment of error that the verdict
is contrary to a specific cliarge of the coort la
equivalent to a complaint that the Tardict is
contrary to law, and raises no question for de-
cision in the reviewing court.
' [Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. S| 3017-3021 ; Dec. Dig. t
731.*]
S. Dauaobb (I 132*)— Pbbsohaz. Ihjuuxb—
BXCBBSIVE KeCOVXBT.
Under the testimony of the plaintiff it can-
not be held- that a verdict in her favor for
lljSO is legally excessive.
[Ed. Note.— For other cases, see Damages,
CenL Dig. H 372-385. 396; Dee. Dig. | m*j
4w Vbbdict Sustained.
The evidence authorized a verdict.
Brror'from City Oonrt of Savumab; Da-
yiM Freeaum, Judge.
Action by Mev. E. S. Dntontr agalnat the
Usyor, etc;, of Sarannata. Judgmmt for
[ilalntifl, and defendant brinvi error. Af-
firmed.
John Bourke, Jr., and David S. Atkinson,
both of Savannah, tor plalntUt In error.
Twiggs A Gazan, of Savannah, tor defend-
ant in errotf.
POTTLQ, J, Judgment affirmed.
(U Ob. App. 80)
CDMNmOHAM t. STATU. (No. 4,900.)
(Oonrt of Appeals of Georgia. July S» ISIS.)
r^IlabiM by t%« Court.)
1. WiTHBSSBS (% S2*)— HlTBBAIfD AND WiTB—
COU^ETBNCT OP WITB.
Wbece, on the trial of an accusation under
section 116 of the Penal Code of IfiK^ which
makes It a misdemeanor for a father willful-
ly and Toluntarily to abandon hia child, leAT-
ing it in a dependent condition, the sole issue
was as to his marriage to the mother, she was
a competent witness to nrove, not only the
abandonment but also the marriage. Murpbx
v. State, 60 Oa. ISa
[Ed. Note.— For other cases, see Witnesses,
Cent Dig. » 124, 120-1367166, 410^ 416, 417,
410, 424 : Dea Dig. | 52.*]
2. PabENT and CBZLD (! 17*)— ABAHDOMIORT
— pBosEotrrioif— EviOERCs.
Where a marriage in this state la in ques-
tion on a trial for violation of section 119 of
the Penal Code of IBIO, proof by one witness of
the marriage in fact is sufficient without ev-
idence as to ' the authority of the person
officiating, or of a compliance with the sta^
otory requirements on the subject of nJarriage.
Dale v.^tate, 88 Oa. 662, 5C6, 15 8. E. 287.
'FBd.^ Note.— Fbr other cases, see Parent and
Child, Oent Dig. H 176-181 ; Dec. Dig. 1 17.»]
8. Sfkcuic EBBOB8 or Law— AsaxoniCENT.
No specific error of law Is complained of,
and Um (evidence snpports tlie verdict -
Error from Cits Court oC ■IlMrbni; Qao.
G. Grogan, Judge.
W. D. Cunningham was convicted <^ will-
fully and voluntarily abandoning his child
and leaving It in a dependent condition, and
he brings error. Affirmed.
Thos. J. Brown, of Elberton, for plaintiff
in error. Booser Payn^ SoL, of Elberton,
for the Stata
Mil, O. J. Judgment afflmwO.
(U Oa. ksa. fl)
ROUNTREE & liEAS T. UBWZ&
(No. 4,ei^)
(Court of Appeals of Georgia. July 8, IfllSJ
(Byllalnu by <*« Cmrt.)
Bkokebs (S 42*)— Biqbt to iGloianBBiOHa-
BBQiaimATION. *
TUs was a suit brooght hr It ^
broker to recover commissions arising upon a
contract to sell real estate. The undisputed ev-
idence showed that, while the plaiittlffs had
paid to the tax oolle^r the tax of f JO impos-
ed by Civil Code 1910. S 871, they had «ot reg-
istered with the ordinary of the county, as re-
quired by CivU Code 1910. { 97a HeU, X non-
suit was proiwrly granted. The case isTpUy
controlled by the decision of this oourt in foid
& Pruett v. Thomeson, 11 Qa. App. 359,, 7L S.
E. 269, and the request that this court tev9w
and overrule that decision is denied. Tins rir
ing disposes of the case, and renders unnecessp
ry.a decision on the other questions made il
the bill of exceptions.
tEd. Note.— For other ' cases, see Broken,
Cent Dig. I 43 ; Dec Dig. i 42.*]
Error from City Court of Thomaaville;
W. H. Hammond, Judge.
Action by Rountree & Leak against L. W.
Lewia Judgment of nonsuit, and plalntlffi
bring error. Affirmed.
Theodore Titus, of ThoniasvlU^ for plobi-
tiffs in error. Roscoe Luke and Louis
Moore, hoth of lAonMUivUlfl^ for dofendairt
in errOT.
HILX^ CL J. Judgment affirmed.
OS Ga. App. 62)
LOCKETT V. RAWLINS. (No. 4,80&)
(Court of Appeals of Georgia. Jnly 8, 1913^
Sales (t 176*)— Knowledge or Defeoto—
Waiver— Patvent of Renewal or Poa-
OHASE-MONET NOTB.
Ordinarily, when a purchaser pays a note
with knowledge of defecto in the property par
chased, or renews a note with knowledge of such
defects, be cannot thereafter he heard to com-
plain of the defects as a defense. Where tbe
note is paid or the renewal note made upon tbe
distiuct promise of the seller tliat he wonid
remedy uie defect If the note is paid or a re-
newal made, and a guaranty is given to the
purchaser to remedy or repair toe defects in
conrideration of the pajnnent or the giving of
tlie renewal note, this rule of law is not applica-
ble, and tiie failure to keep such promise, or'
make, good such guaranty with the purchaser,
which rtsnlts In mjut? to (he maker ^ Htntt-
BttOB KUMBBBteD«». XHg. A Am. Dlg^ l^.fi^ f^f^^^ji^
*^9KM\i9'i^m — aj
I tSpllBBBdl
GO
newal not^ wovM contltnte t food defea««,
cither of total ot partial failnve of considera-
tion, according to toe facts.
[Ed. Note.— For other case*, aee Sales, Gent
Die. U 43&-444; Dec Dis. % 176.*]
Error from City Court of Albany; Clayttm
JoDea, Jadge.
Action by H. W. Rawlins against W. T.
Lockett Judgment for plaintiff, and defend-
ant brings error. Beversed.
This was a salt in trover to recover posses-
sion of an aatomobile. The evidence, briefly
stated. Is as follows: RawUns, plaintiff, sold
the defendant, Lockett, an aatomobile Lo<^>
ett paid cash |900, and gave Rawlins three
notes of (300 each for the balance of the
purchase price. The title was reserved by
Rawlins until payment of the notes. The
automobile appeared to be in good condition
when purchased. It "ran along all right for
about 250 or 300 miles, when the engine would
not run the car." This was before any of the
notes had been i>aid. Lockett notified Raw-
lins of the defects In the car, and Rawlins
thereupon put another wiglne in the car.
This second engine appeared to be aU rlgh^
and Lockett thought ^e defect was remedied,
and paid the first of the notes that had be-
ooqie dii«. After the automobile bad been
mn aboat the dtstance. It bad ran with the
first engUhB^ the. secood mglne broke down
in the sanie manner as the first. Aa aoon ai
Lodcett dlecovered tills he notified BatrUns,
and Bawllne pnt another engine in tibe auto-
mobile. This third engine, after running
about the aame length of time and distance
as the other two, flee broke down, andi Ixxdi-
ett refused to pay the outstanding note.
Bawllns then told Lockett that he would
put In another engine in place of the defec-
tive one, and would guarantee that it wonld
make the antomoblle aU right, provided
Lockett would take up the outstanding note
and give blm a new note in renewal which he
could put in the bank. Upon this guaranty,
by Rawlins, Lockett took up the outstanding
note and gave a renewal note. Lockett testl*
fied positively that he was Induced to give
this note, notwithstanding the defects In the
engine, because of the positive promise that
he would put in a new engine, accompanied by
his guaranty that It would be all r^t In
his own language: "I gave them that note
a/ter Uiey said they would guarantee that the
third engine would be all right, and because
I believed they would do what tiiey said they
would and make good."
Jas. Tift Mann and Thos. H. Mllner, both
of Albany, for plaintiff in error. PeacoA &
Oazdner, of Oanillto» tor dtfandant In errw.
HILE^ a X <9fter stating the facts as
abOT^. We think the direction of a verdict
for the plalntlfl under this testimonj^ was
unauthorized. The evidence should have
been submitted to the Jory. The general rule
Is that the giving or renewal of a note, with
knowledge of defMts, constitutes a waiver of
such defects, or of any breach of warranty
arising therefrom; but the facts in proof
here make an exception to this general rule.
It is true, according to the evidence, that the
defects existed when the renewal note was
given by the defendant, and he had knowl-
edge of these defects ; but the plaintiff 'prom-
ised, as a consideration for the renewal, that
he would make good his wairanty, and
would guarantee that the defects complained
of would be completely remedied, and it was
on this promise and guaranty that the re-
newal note was made by the defendant In
McDaniel v. Mallary Bros, Mach. Co., 6 Ga.
App. 848. 06 S. E. 146, the second headnote
states the general rule, with the exception,
as follows: "Ordinarily, when a purchaser
renewis a note or other obligation given for
the purchase price of property, and knows at
the time of the renewal that the property Is
defective, he cannot thereafter be heard to
complain of the Refects as a defense. The rule!
is subject to exceptions, and is not applica-
ble where a renewal note is given under anA
circumstances as to indicate that It was
given and taken with a contrary understand-
ing.** The testimony of the defendant, above
quoted, seems to UM to have presented
at least a partial failure of conrtderatien,
and was sofBclent te have been submitted to
the jury in proof of euch failure of ' consldera-
tloa, and Co this extent, at least, to establWi
the defense relied upon. Atlanta City St
Ry. Co. V. American Oar Cio., 108 Ga. 26i, 29
8.0.026.
jTndgmant reversed.'
03 04. App. 00)
OBNVRAL OF GEORGIA RT. OO. T. WOOD-
ALL. (No. 4,770.)
(Court- of Appeals of Georgia. July 8, 1818.)
(SyVaAnt by tha OoitrtJ
L APPSAL ikND EuoB 1004*)— Habmlim
EBROB— INSTBUCTIO NB.
In charging the jury, the court (probably
by a -dip of the tonrw) stated that the jury
were to qm the CarliBle Tables to determine
the probable age qf the plaiotlff. It is apparent
from the cootezt that the jury should readily
have DDderstOod that the court meant that the
tables were to aid them in arriving at the prob-
able duration of his life; but evw if this was
D6t true, the error was liarmleis.
[Ed. Note.— For other eases, see ^peal and
Error. Cent Dig. H 4^1574321-^4; Dee.
Dig. I 1064.*]
2. Tbiju. (K 1B1> 198*)— iNmtronoNa— Ex-
FBBSsion OP OpxjrioH-.OM}imn ron Rb-
VEBSAI.
A leading issue in the trial was whether
the plaintiff was injured at aU. Bnor is as*
signed upon each of the following ezoerpts from
the Judn's charge to the jury, on the ground
that each amounted to an Intimation of opinion
that an injary had been Sustained by the plain-
tilF : (a) ^'Mow, in this case Oe «nl/ daiuge
Alleged is the infliction of mental and ; '
•Fw otlw oases see ismCtoplo and wcUop fnTVBBR la D«c ft Jua. Die. Ksr-He.[l||rji^#l9
78^
TO BODTHBABTftBN BnFO&TBB
pain ftBd nflerlne, as caused b; tbe Injury the;
BQBtained." (b) "If yoa believe this plaintiff,
nnder tbe rules of evidence and law I have giv-
en you, and the evidence that has been adduced
to you, bos suffered mental and physical pain,
and has been caused mental and physical pain
and suffering, caused by this injur?, then it will
be for you to say how much the damage is."
(c) "If you should find, under the rules I have
given you, she was entitled to damages at the
time and up to now, bat that there were no
future damages involved, you would find a
sum for that amount; and if you should con-
clude, from the rules I have ^ven you and the
evidenee adduced to you in the case, that she
would suffer in the future, caused fnnn this in-
jury, then you would say what amoiiDt, and
add that amount to the other amount. In oth-
er words, you will find a lump sum, if yon
should find for the plaintilf in the case.'* While
it is reversible error for a Judge, in charging
tbe jury, to assume the existence of any fact
whicn is In contest, and, under section 4863 of
tbe Civil Code a new trial must be awarded
when there la sn Intimation of opinion; even
thoogb tiie verdict be right, the foregoing ex-
cerpts whether considered alone or in connection
with various other parts of tbe charge (in
which the jury were expressly told that It was
for them to determine whether the plaintiff had
been injured), are not fairly subject to criticism
00 the ground that tbe jud^e therein expressed
or even intimated the opinion that the plaintiff
had in fact been injured.
[Ed. Note.— For other cases, see TriaL Cent
11^^0-481, 436, 436-4SiB; Dec. Dif. H
Error from City Ooturt of HoiutoB Oonoty;
A. G. RUey, Judge.
Action by Mrs. W. A. Woodall against the
Central of Georgia Ballway Company. Jadg-
mtfit for plaintilf and deCmdaot bilnsB «r-
tm, AfflriDML
EUls & Jordan, of Macion, for plaintiff In
error. S. A. Nonn, of Atlanta, and Hall &
Roberts, itf Hacon, for dtfendant In orror.
BUSSBIiL, J. Tbe platntUC sned the Cen-
tral of Georgia Railway Conqtany for dam-
ages for personal tnjnries, Itae evidence waa
la oonfllct, but anthorlsed the Aiding In Ca-
Tor of the plaintiff.
[1] 1. Tbe special exceptions relate to er-
rors in the charge of the court, which, It U
insisted, require the grant of a new trial.
The assignment of error predicated upon the
use by the trial Judge of the word age in-
stead of "expectancy," is sufficiently dealt
with in the headnote. It la only necessary
to say that, between the two excerpta to
which exception Is taken, the Jndge made the
usual explanation as to t^e manner in which
the . tables should be used to aid In making
calculations, and, therefore, it Is very clear
that the Jury understood the Judge to. mean
ewpectandf, although he said "age."
[21 2. The real contest In this case arises
upon the point as to whether the judge, In
his charge to tbe Jnr?, Intimated or expressed
the opinion that the plalntLtF had been in-
jured. Tbe headnote seta out each of the
excerpts upon which the plaintiff In, error
places that' construction. A reading of the
charge discloses that several times In the
course of his Instructions the judge told the
Jury that it was a qoestion of fact, for their
sole determination, as to whether tbe plaln-
tift received the injury alleged. At the close
of the charge, in Instructing the Jury upon
the snbject of n^llgence, he again told them
that It was fo.r them to say whether tbe de-
fendant exercised extraordinary care and dil-
igence in avoiding the accident, "if you be-
Ueve any was suBtained." We refer to these
portions of Uie charge merely as illustrative
of any apparent ambiguity in the excerpta to
which exception was taken, and to ascertain
whether there is any ground for criticism of
those particular excerpts. Of course, if the
trial Jndge, In charging the Jury, was gnllty
of an expression of opinion, or even by Inti*
matlon conveyed to the Jury his opinion as
to a material fact in the case, tt la donbtfnl
If such' error could be corrected at alL
While It la reversible error for a trial Judge;
in charging tbe Jnry, to assome 13ie ezlst«ce
of any ftict ^hlch Is in contest, it Is perfect-
ly plain to oar mSnds that the reference of
the Jtidge to flie injnry sustained, in eadi of
the excerpts, la qualified by the conditional
statement at tiia beginning ot each of than,
•If the jury flnds," or 'if they beUer*"; and
this qnall^ing atatunent controls and lim-
its all that foUowa lA OM subseooakt iCate-
mcnt
Jndg^uit afirmed.
(U 0%. App. «B>
FORD T. STATBL (So. 4.910.)
(Court of Appeals of Georgia.. July 8; 191S.)
fSvllahut by the OourtJ
1. Cbimimal Law <| 1077*)— Wbit or Baaoa—
Dismissal.
There is no merit in the motion to dismiss
the bill of ezoeptionB.
[Ed. Note.--FoT other cases, see Criminal
Law, Cent Dig. H 2718, 2718; Dee. Dig. I
1077.*1
2. CaiuzNAL Law (i 562*)— Revibw — Sum-
ciKNCT or Evidence.
It cannot be affirmed that a verdict find-
ing one guilty of a crime is, for want of evi-
dence, contrary to law, unless no credible evi-
dence in support of the verdict was ad^eed.
[Bd. Note.— For other cases, see Oriaiinal
Law. Gent. Dig. ft 1263, 1*^; Dee. Dig. 1
8. CaiMXKAL Law (| 668*)— Weiqhi or Evi-
dence.
Jurors are the Judges of the credibility of
witnesses. They may wholly disregard testi-
mony which Is at variance with tiie universal
experience of humankind, or which is con-
trary to and in conflict with the evidence of the
human senses, but the uncontradicted testimony
of an unimpeacbed witness should not be disre-
garded merdy becaose the fact or tranaaetioa
testified to by. bim would ordinarily be conirider-
ed improbable,
[Ed. ' Note.— For other cases, see Criminal
Law, Cent. Dig. S 1250; Dec. Dig. 1 568."]
•ror vQiet esMf wm sams topic and wcOon NUMBER In Dm. Ug. A Am. DIr Ki>yrfMsOftylW«Mr*p1fflfcMS
VORD T. BTATa
788
4k WxTRUSEa a S67*)^TuTn[ONT or Dbtso-
BVE.
The (act that a witness is also a detective,
whose payment depends upon the conviction of
the accased. goes to bis cndibiUty as a clrcnm-
Btance to be considered bv the jnrv in passing
upon the credence to be given to hU testimony,
Itat it is nevertheless within the power <^ the
jury to believe such a witness.
[Ed. Note.— For other cases, see Witnesses,
Cent Digv {{ 1184, llfiS ; Dea IMg. { 867.*]
Error from Superior Court, Worth Coun-
ty; Frank Park, Judge,
Joe Ford vraa convicted of violating the
prohibitory law, and brings errw. Affirmed.
Payton & Nottingham, of SylTester, for
plaintiff In error. B. 0. Bell, Sol. G^, of
Cairo, for the State.
RUSSELL, J. [U 1. A motion la made to
dismiss the bill of exceptions on the ground
> that there Is no assignment of error upon
any judgment of the court, and that the de-
fendant has not filed the affidavit In forma
pauperis required by law. An inspection of
the record shows that there Is a proi>er as-
signment of error and exception to the judg-
ment of the court refusing a new trial. As to
the second ground of the motion It appears as
a matter of fact that the defendant filed an
affidavit stating that because of his poverty
be was unable to pay the costs of the case,
but even if this had not been done it would
not have concerned the defendant In error.
Questions affecting the payment of costs in
the reviewing court are passed upon only
when brought to the attention of the court
by the cl«>k under the rule. It is true as
Inidflted, that there is also an affidavit in
which defendant In error alleges inability
to give bond for the eventual condemnation
money, but this does not affect the other
affldavit in forma pauperis. There Is there-
fore no merit in the motion to dismiss the
bill of exceptions, and It is overruled.
t2] 2. The defendant was convicted In the
lower court of a violation of the law pro-
hibiting the sale of intoxicating liquors. Be
excepts to the Judgment overruling his mo-'
tlon for new trlaL It Is insUrted, in the mo-
tion for a new trial, that the testimony, tak-
en ^as a whole, does not warrant the convie*
Hm of the accused. The state's witness was
shown to be a loafer and a gambler, and
there was evidence that he was actuated by
ill will toward tb» accused growing out of
a prerloQB diflteoltr. Turthenaore, the states
witness stated that be bad been hired by the
chief of police for'ttae vpedfle purpose of ob-
taining evidence against the accused. How-
«rar, It is conceded tiiat, tbe testimony of
tbia witness, if credible, would authorise a
verdict of gouty. Tbe point ia made that,
nndw the facts appearing from tbe record,
the Jury should not bare bellered tbe wit*
ness, and for that maon the verdict was
contrary to law, aa being unsupported by
any evidence. We hare no hesitation In say-
ing fhi^ the pBoof was vecy weak, and ytit
we must hold that the trial Judge did not
err in overruling the fourth ground of the
amended motion for new trial, nor In refus-
ing to grant the moU<m upon general grounda'
A Todict finding one aceoBed of crime guilt?
cannot be said to .be contrary to law for
want o( evidence unlesa tbwe ia ne crediUe
evidence In sunmrt of the jury's finding.
[4] 3. 4. This statement of the rule la not
questioned In the argument for the plaintiff
In error, but the point la made that In this
case the evidence in support of the verdict
is not credible. Of the credlblUty of tes-
timony the jui7 are the exclusive judges. In
the present case they had tbe right to be-
lieve the witness in of bis admitted in
t^e&t, and to attach no Importance to tbe tes-
timony as to his ill will toward the accused.
1 Both circumstances went to > his credit, and
I either might have authorised the jury to dl»-
I credit his testimony. But since men very
seldom prosecute their close blends, it fre-
quently happens that one may prosecute an-
other toward whom he mtertalns tbe un-
kindest of feelings, and stiU his testimony
be true; and the bias of one who has a
pecuniary Interest In a conviction is to be
considered by the jury In tbe light of tbe
same rule. Personally, the writer would
hesitate a long time before he would convict
one accused of crime upon the testimony of
one admitting that he bad no Interest in tbe
public good, and who had procured testimony
or (as In this case), manufactured a case by
Indudng his fellow citizen to violate one of
the laws of the state ; but In every such case
the question of the credibility of such a wit-
ness is one addressed peculiarly to the jury.
The interest of the witness goes to his cred-
ibility. If the jury believe his testimony is
the truth, without regard to bis Interest, they
are authorlaed to give It full credence, and
it Is only when tbe Jury believes that his
interest has induced htm to swear falsely
that they are authorized to wholly disregard
It. However, the decision of this question
may Involve the mind of the jury In such
reasonable doubt as would require an acquit-
tal. If the earn be one in which there was
no other testimony than that delivered by
the detective or hired witness.
It is alleged In the fourth ground of tbe
hm^ded motion for new trial that the cbar^
acter of the evidence Is not such as would
carry conviction to the minds of reasonable
jurora, and "that at this particular time, ow-
ing te the pr^odlce which edata against the
bandjlng of liquors, jtirlea are too wUUng to
convict on tbe sllghteet circumstance ac-
companied by a paypw called an Indictment;
and while It la true that tUa ia a bdnone of-
fense. Innocent people should not be con-
victed of violatlBg Qie prohibition laws.**
Tbfs court can know nothing of the condi-
tions referred to, and tbe contention of tbia
•Far ethsr eaass Mt smm lopte ud Mctlen NOMBaR taJDM.
m
SODTHBAOTBfKN BSPOBTSB
(Oh.
gronitd of tb« motion, ther«ft»«, can only be
wnMvaA as addreaaed to the trial Jadge.
He baa overrnled It Thia oonzt can oAly
eonrider tlie case Itk the light of the ordlnarj
nilflB Korendng tiie admlsdbiUty and wd^t
of teatlmoar, keeping in view the great on*
derlylng taxt that tSte ivxj, and not the court,
nniBt detenntaie what Is the tmtb In every
case, dvll or criminaL
[t] Conceding at ahly argued by eonnsd
fya lOalntlff In error, that the testtmony as
to the drcomstancea of the eala of Intoxi-
cating Uqnor, InToWed in thla eaa^ Is high-
ly improtwhlot stUl the Terdiet cannot for
that reason be aet arida A Jury may be-
llere testimony relating to an occurrence
which woald twdlnarlly be deemed to be im*
inotMLbla Ttu first qoestlon for the Jury to
determine la whether the witness testlfSrlng
to these facU i» credible. If this question la
settled In the afllrmative, then testimony of
a witness who is unimpeadied. and whoee
testimony la imenttradicted by other testi-
mony, cannot be arbitrarily disregarded by
a Jnry m&nSs because It la Improbable. Very
frequently It Is the unexpected which hap-
pens. Of course, the jury la not required to
believe the testimony of a wltoess to facts
which are wholly at variance with the nnl-
vOTsal etperleoce of mankind, or directly In
conflict with hnman observation as derived
from the five human senses. The mere fact
that the occurrence which Is related to have
tininspired did ^ot take place in the manner
OBnal in similar occorrences IS not of Itself
a' reason why the testimony upon that subject
should be cast arbitrarily aUde and disre-
garded.
' Jnd^nent afflrmed;
(U App. tt) .
80DIT ^ VAUIOSTA. BL * W. B. CO.
(No. 4,887.)
(OoBTt of Appeals of Georgia. Joly 8i 19U.)
(SyUabua by the Court.)
1. Afpkai. and Ebeob (i 1064*>--Tbiai. ii
^♦)— INJTJHT TO PaBSENOKB — IMBTBUC-
TIONS— ISffUABLB FaOTS.
A trial judge may, in his discretion (and at
bis peril), state, In his charge to the jury, that
a certain fact which is admitted or wholly un-
disputed has beeo proved; but be is not re-
gillred, even though so requested, to state to
the Juiy that an issuable net is true, or has
been sufficiently proved, even though it Is nn-
dlaputed in the evidence. The better practice
is to allow the jury to determine even the
qnestiOB as to whether any issuable fact pfov*
ed hy either party is oncontiadictad or nadis-
puted.
(a) In statins the contentions of the par-
ties the trial Judge used the following language:
"It being contended by the ptaindEE that he
was a passenger upon one of the trelna oC the
defendant company.** ffeld, that generally such
laacuage cannot M held - to be erroneous or
prcSodtdal to the •plaiattff, nor. viewing Oris
excerpt wl^ lts .eontext -in the chane in the'
present instance, was It prejudidal to the
plaintiff, although the' evidftice showed wlthoiit
contradictioa that the plalntifF was In fact a
passenger.
[Ed. Note.— For other cases, see Appeal and
Error. Cent tHg. U 4219, iS3X-4SaA; Dee.
Dig. I 1064:« TriJ, Cent. Dig. | GOO; Dee.
Dig! 1 206.*i
% TazAi. (H 171. 193, 30<(*)-4>z»moir or
VeSDIOT— InJUBT TO PaSSKIOBB— INSTBUO-
Tions.
The reqaSstod Instnictions to the Juiy, so
tar as they were pertinent and legal, were sof-
fidentiy covered in l^e charge giTen. and the
court could not have given the instructions fai
the form In which they were presented In the
requests, irithoat a palpable violatton ol the
provisions of section 4868 of the Civil Code.
It is not error for a judge, on the trial of an
action to recover for damage alleged to have
been caused by a railway company, to decline
to instruct the Jury that the compuiy has not
attempted to rebut the presompqoa of ne^
gence, no matter what may be tne itato of toe
record with reference to toat fact, since it is
never error to r^use to ^reet a verdict
[Ed. Note.— For other eaaes, see TriaL Cent
I^. |^^> 486-4S8, SOC^Dea DlgTlf 171,
3. Tbial (8 238*) — InsTBuonom— Coimm-
.TioNS or Pabtiss.
The defendant's plea was signed only by
Us attorney, and in one portion is siUiject to
the construction that the defendant, if guilty
of begligence st all. was only guilty of slight
negligence, though in another portion of the
idea all negligence was denied. Since the ^ea
was signed by the defendant's attorneys, it
was not error requiring a new . trial that the
court (In stating the contendona of the par-
ties) add that "the defendant by tto attorney,
further says that, if the defendant was guilty of
any negligence at all, such negligence vras
slight nei^igence, and it aaya, further, that if
the plalntUf to -the case waa injured at aU, he
was not injured with e hemfia as the rendt of
any injury received while upon the train of the
defendant company, but if injured at all the
Injury was a slight injury." In charging the
Jtiry it is «Tor for- the eoort to designate mere
argnmeut of counsel as a contention of a par^
ty ; but in the present case the conrt, in con-
nection with the foregoing statement referred
the jury to the pleadings to aecettaln toe ex-
act issues l>etwecB the parties, snd tt is not
prejudldal errw for the eoert to stato tiie ew-
tention of the party as bdng made by his at-
torney, if the pleadings support tltat statement
[Ed. 'Note. — For other oases, see Trial, Cent
Dig. H 527-680; Dec Dig. S 233. •]
4. New Tbiai. (% 70*)— GaomiDs— Evidbwoe.
The credibUity of witoesses is so exclus-
ively within the prerogative of the Jury that,
since the evidence authorised the verdict the
trial Judge did not err in refualng a new trial.
[Ed. Note.— For other cases, see New Trial,
Cent Dig. H 142, 143; Dee. Dig. I 70.*]
Error from Superior Court, Colquitt Oons-
ty ; W. E. Thomas, Judge.
Action by J. J. -Scott against the Valdosta,
Moultrie & Western Ballroad Company.
Judgment for defendant and plaintiff brings
error. Affirmed. - ■
SIdpp ft Kline, of Moultrie, for plaintiff in
error. James Homphreya and J. A. Wilkes,
both of Moultrie, and' B. XL ^meoz, of Val-
dosto; for defendant In error.
RtTS^^L, J. Jti'dginent afflrmed.
•VsrtftlMr ilAsM sWribM tople and Motion NU1188R ^ Dws. Dig. a Am. Dig. Key-No.
tusK T. BANK (sw-vmomt'
786
m Ta. «0 .
OLABK T. BA2«K OF UNION at aL
(Snpreme Court of Appeals of Wert VixaMa*
Mar 13, 1918. BeheaciDs DisiiJad
June 80, 1913.!|
1. Barks ahd ftAmnva n rr^ImmTuor
^Abskis ir Hards or TBums.
Tbe liabllit; of a bank's . officer* for grow
neglect of duty ahd villful miamanagement of
ita affairs, and the doable H^llity of stock-
hokkm, are both aBseta in the hante of the
tmatee of an inwdvetit bank, to be admbUatezed
lor the benefit of its creditors.
[Ed. Note.— For other cases, see Banks and
Banking, Cent Dig. H 106-176% ; Dec Dig.
f 77.*1
2. Barks ard Barkxrq (S Tl'y—lmovmtar
— Adhxrwiuror qw AaaRia.
It is proper to adminlater boUi of .said
assets in a suit brought hj tbe trustee against
the bank, its stockholders and creditonk
[Ed. Note.— For other eaaes, see Banks^and
Banking, Cent Dig. H 16((-lt6%; D«x iDlf.
I 77.*]
S. Barks ard BarCxho ({ 77*)— Irsolverot
— Brvoboihrrt of Liabiutt of OmoBBS.
If the trustee, by his bill, does not seek to
to enforce the officers' liability, the defendant
stockholders ma; do so by antfwors In the na<
tnre of croaa-buls.
{£d. Note.— For otfaer cases, see Banks and
Banking, Cent Dig. if 165-176)^; Dee. Dig.
I 77.*1
4. Barks ard Barkiro d 77*)— Ihsoltrrct
— LlABIUTT OF OtFXOBBS ARD STOOKHOtD-
In >qch BOit to which all Uw . parties is-
tererted are parties, in order that the court
may do complete equity, tiie extent of tbe of-
Beers* liability Bhould be ascertained before aa-
aeaidng any portion of the double liability .tipoB
the stockholaer&
I 77.*1
Appeal frpm (^rcnit Court. IConroe Goifntr.
Suit b7 R. L. Clark^ Trustee, against tbe
Bank of Union, A. B. Jobnson, and others.
From a decroe for plaintUf, defendant Jobn-
Bon' and oth^s appeaL , Beversed and n-
manded.
John W. Ar|>ackb^ of X^ewlsburg, tor ap*
pellantB. J. H. Croeler, of Ronceverte, B.
Kemp Morton. <tf Charleston, T. N. Bead, of
Benton, and Bowab & Meadowi^ of Uaitn, for
appellee.
WILLIAMS. J. Tbe Bank of Union be-
coming InBOlrent, Its stoAholders met im the
29th of Ffebmary, iSOS; and pasaed-a lesf^
Hon antborbdng and empowerli^ the preei-
dsnt of tlie bank to make a connyanee ot all
of ita aaseta to B. U Clark, trwtse, for tbe
beneflt oC Its eredltora^ FnTsnart 'to tiko tes-
olotlon, tbe president, on the same day, made
a conrsirante oC all the assets to said tsDS<
tee. In Augost following tha-trastoe bron^t
tUs salt, in tiw drenlt court of Monroe coun-
ty, making tbe bank, ita stockboldws and
creditmra, parties defoidant to bis bilL He
avers the bank's InsolTency. and the conse-
Quent nseossHy ot leonlrinc tb» atodEbolden
to pay a portion of tb^ double liability la
order to procure funds with wHiidt to pay the
creditors. He later filed an amended UlL
Among other things, he praja that the assets
of the bank in hSs hamds ib« eolleoted. ad-
ministered, and disbursed under the ordar
and direction of a* court that tbe stockhold-
ers, who are liable, be assessed in the man-
ner directed by law, and that a saffldent
amonnt ot money be therdty raised to pay
off the indebtedness of the bank,, and tor gen-
eral relief. A. B. Johnson, John Osborne,
and a few other stockholders filed answers,
In the nature of croea-blUa, charging the di-
rectors and officers ot.the bank. with gross
neglect and mismanagement of the corpora-
tion's afCairB, as the cause of Its failure, and
prayed that the amount of their liability
might be aacertained and enforced. They
aver that the cashier was a defaulter for a
number of years prior to the bank's assign-
ment and that this fact was known to the di-
rectors, and charge that the divsctofs had
made no examination of tbe affairs, of the
bank from 1691 to 1806, and that they negli-
gently permitted a syatem of bookke^»ing
which showed that the bank had on band a
anrplaB, when in rallty there was a -defldt
They also chai^fr that the president of the
bank was permitted to discount paper at the
bank without secnrity, or with Icbs secority
than the by-laws of the bank aUoivedl that
AUen Oapecton. another director, '.was per*
mitteff to borrow large sums of money in the
same manner, atal to overdraw bis account
more than $5,000, and that the preUdent utas
penoltted to indorse paper for tite cashier,
and the cashier for tbe president wtth full
knowledge of the dtrectera, and in vlolati<m
of the byrlawB of the bank.. Insolvency of
the bank is not denied. Tbe -court sustained
a d»imrrer to the original and ainended bills,
and held them bad:ln so far as they sought
to enforoe the double UabUty «f the' stock-
hold^ and atao sustained a demurrer to tti*
onoBB'biU. answers fllsd by A. XL Johnson,
John Osborne, and others, and dismissed
them. From that decree they have ap-
pealed.
Wboi the court pxoiounoed its decree, there
was ponditfg in tbe same court a salt bwngbit
by H. B.. and L. B^ Dunn, tbs two laivest
creditors of the bank, for the purpose of en-
forcing the doable liability ag^st the stock-
holders. These ' creditors liad bean made par.
ties defendant to the original bill, bnt had
not aivieared. They bfought their suit mow
than a year after tlie trostatfa suit was
brought The same parties were parties to
bMh-'SDlta. . Tbe tntstaa and a nnmber cX th»
stoekhfflden fleA Mr ssveral'pleas In-iblAB*
ment to the bill in the second suit setting
up Uie pendency of the form« suit by the
tmstee. The court Btmck out these pleas,
and heard the two causes together, and re-
•rer oUmt e«Mt ms suns topic and sscUon RUHBBB U Dm. Otr^ a Am. Dig. Key-:
78S.lD^-60
786
18 S0DTHI!lA.8T]flBN BBFOBTSB
(W.T*.
femd tbem to a master oommlBBloiier for an
Bccoontlng. The decree BostalnlBs the de-
murrera and dfemJafdns tbe croas-billa settle*
tlw prlnciplee ot tbe caiue. It Is theetfore
an appealable dacrea What Is thoeaftair
done will only be done In eanylng oot or
execntlng tbe conrfs decrees.
[1] Tlie bank being InsolTent, the dooUe
liability of tbe stockholders was T)Foperty en-
forceable by the trustee, for the- benefit of
the crediton, and it was error to sastaln tlw
demnrrer to- the trustee's bill becanse It
songht to enforce that llablUty.
It the directota and <^cers of the bank
bad Incurred UabiUty <ni aeoiant of gross
neglect and willfol mismanagemeat of the
bank's boslnees, that liability was also an
asset of the baiA, enforceable by tbe trustee
fbr the benefit of creditors, and It was error to
diem las the cross-bill answers of those Stock-
holders who asked that it be ascertained and
administered for the benefit of tbe creditors.
Both of the points, above stated, were de-
cided by tie In the recent case of Benedum t.
Bank, 78 B. B. 666, not yet officially reported,
and an elaborate discussion of them will be
found In the opinion prepared by Judge Pof-
fenbarger In that case. - We, therefore, deem
an extended discussion- of them here unneces-
sary. The officers' liability is a primary as-
set which the bank itself, or its sto<^hoIdOTs,
may enforce, even for the benefit of the bank.
The stockholders, therefore, had a right to
have such liability ascertained and enforced
in order that they might be relieved, pro
tanto, from the payment of their double lia-
bility, whi<di is only a secondary or condi>
tlonal asset, and never enforceable by the
bank for its own beneflt It becomes an
asset only in case of Insolvency of the cor-
poration, and is enforceable only for the
beneflt of creditors.
[1,4] Having all parties interested before
it, a court of equi^ will generally administer
complete relief. It could ' have done so in
this case by ascertaining the extent of the di-
rectors' liability, if any in fact should be
shown to exist, and applying it, together
with other assets belonging to the bank, to
the payment of Its debts; and. If they were
found to be Insnffid^t to satisfy the cred-
itors, the stockholders could then be assessed
a sufficioit amount to pay off the debts, not
to exceed the par value of their stock.
Says Justice Bradley in Graham v. Rail-
road Co.. 102 U. & 161, 26 L Ed. 106: "When
a corporation becomes insolvent, it is so far
civilly dead that its proper^ may be admin-
istered as a tmst fund for the benefit ct its
Btockholders and creditors."
The UabtUty upon holders of bank stof^
creatad by section 18, chapter 54, Oode 1806»
serial number %8M, commonly called their
"double liabtllty," is not an aaset tn the
hands of a sfdvoit; goins bank. So Umg as a
bank Is doing bniriness, and la able to pay
ita d«bts, there la no double liability npon
the atockholdffls la favor of the lank. Th9
bank cannot enforce it for Ua oirn purpose
or ben^L But when a bank becomes insol-
vent; the double Uatdllty of stodcfaolders be-
camea an asset, in tbe bands of the neeHrer,
or trustee, and he may enforce it for the
bmeflt of the bank's creditors. BoUes, In Us
recent valuable work on Modem Law of
Banking, toL 2, pages 821, 822, dasslfles both
the liability of the directors for gross mis-
management, and the douUe UabiUty of
stockholders, as assets in the hands of an
Insolvent bank for the benefit ot Its credi-
tors.
[31 We perceive no reaaon why the receiv-
er, or trustee of an insolvmt bank, who r^
resents both the creditors and the corpora-
tion (Aiderson <m Receivers, I fi39) shoold
not be permitted to enforce both of tiiese lia-
blUties for the beneflt of creditors. Tbe
trustee did not ask to have the UablUly of
the officers enforced against them, and there*
forb the sto-ckholders had a right, being vital-
ly interested, to file their answers In the
nature of .cross-blUs praying for it to be
done-
The decisions by the courts of the various
states are not uniform on tbe question of the
right of a trustee; or receiver, to enforce the
double UabiUty of stockholders. But we
think the better reasoning is In &vor of their
right to do BO, in the absence of a statute
defining the manner In which it may be done.
We so held in the case of Benedum v. Bank,
supra. In addition to the authorities cited
In the opinion In that case, we dte the fol-
lowing, supporting the proposition: Brown
V. Brink, Receiver, 67 Neb. 606, 78 N. W.
280; Howarth v. Angle, 162 N. T. 179, 66 N.
E. 489, 47 L. R. A. 726; Howarth v. Ell-
wanger <a G.) 86 Fed. 64; Homrth v. Lom-
bard, 175 Mass. 570,56N. B.888,49I«B.A.
SOL
By the dismissal of their cross-bill an-
swers, appellants were denied the opportu-
nity to prove tbe allied UabiUty of the
bank's officers. It was error to deprive them
of that right
Their cross-Mils were defective for not spe-
cifically namliv the officers chained with Ua-
biUty, but that was a formal detect, curable
by amendment, and It was error ta ^^ip***^
them without leave to am^d.
We reverse the decrees appealed from, and
remand the cause, with leave to appellaata to
amend their croce-blU anawera, and for fur-
tbn prooeedlngs.
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SMITH T. BOTBB
787
(n w. Ta. <U)
SMITH T. BOYBR
(Snpnme Ooart of Appeals ot West Vlcifiala.
June 24, 1918:)
(StfUabua by «&« Co«r*.J
Ybndoi aud Pubohaseb (| 190*)— Tax Tnu
— SioHTB or Vbndeb,
A Tendee fa possession dtnoot tiHenafler
acquire a tax title to tbe land and d^m thera*
oaoer adversely to his veodor.
(E!d. Note.— For other cases, see Vendor and
Purchaser. CenL Dif. U 384-392; Dec. Dig. |
190»1
Appeal from -Clrcnlt Oonr^ Eanawba
Oounty.
Bill bj H. B. Smith against Loin I>. ISoyer.
Decree tor plaintU^ and defendant appeals.
Affirmed.
W. S. Laldl^, of CaiarleBton, for appellant
B. CL Harrison, of Cbarleston, for appellee.
WILLIAMS, J. Harrison B. Smith, g^au^
or, sues Lulu D. Boyer, grantee, to enforce a
vendor's lien reserved In a deed to her for a
lot on Brooks street. In the dty of CSiarlestOD.
From a decree In favor of plalntUI, defend-
ant has appealed.
The court sustained plalntUTs exceptions
to defendant's answer and struck it ont, and
this Is assigned as error. Plaintiff conveyed
to defendant in April, 1004, by deed with cov-
enant of general warranty. The answer av-
ers that M. F. Clarke was the owner of the
lot In 1902, and In February, 1903, sold It to
M. D. Farley ; that Farley sold and conveyed
It to Harrison B. Smith in May, 1903; that in
that year it was returned delinquent in the
name of M. F. Clarke for nonpayment of taxes
of 1902, and so^d In February, 1904, and pur-
chased by Wm. Shoemaker, who, Ih April,
1905, obtained a tax deed, and then conveyed
the lot to R S. Sidlman, the partner of plain-
tiff; that it was returned delinquent, In the
name of Farley, for the nonpayment of the
taxes of 1903, and sold In December, 1904,
and purchased by defendant; and that she
received a tax deed in June, 1908.
Defendant contends that plalntlfPfl failure
to discharge the taxes assessed on the land
in the name of the former owner gave her
the right to buy at the tax sate to protect
her tlUe, and that by her tax deed she ac-
quired an adverse title which defeats plaln-
tifTs lien. This position Is nntenable. De-
fendant took possession under her deed from
plaintiff, and in contemplation of law has not
been even constructively ousted. Smith's
breadi of his covenant of warranty In fail-
ing to pay off the preexisting taxes entitled
defendant to damages, but it did not give her
the right to set op an af ter-aioqulred tax
title to defeat his suit She does not seek to
recoup damages; as she might have done, btrt
insists that the Shoemaker tax title operate*
to exttngnlsh both her title and Smith's Men,
and that, by the subsequent tax sale alsd
deed, flhe acqillred an advene title to the lot,'
After bar pnrdiaN from Smltti, a^mdant
bad 10 months In which she could have re-
deemed from Shoemaker. Her answer do«a
not explain why she did not do so. There
was no outstanding title, at the time qhe pur^
chased from Smith, which she was compelled
to buy in for her protection. It la a well-
settled rule that If one, having the right of
redemption, buys at a tax sale, his purchase
antonnta only to a payment of the taxes.
1 Blackwell on Tax TlUes, { 666 ; Callihan v.
RusseU, 66 W. Va. 624. 66 S. B. 695, 26 L. B.
A. (N. S.) 1176.
"A vendee cannot acquire a tiUe adverse
to his vendor by the purdiaae of the land at
a tax sale." Lambom v. County Commis-
sioners, 97 n. S. 181, 24 L. Eld. 026. It is a
rule of oniversal application that neither
party to a mortgage can destroy the right of
the other by buying the property at a tax
sale, if he objects thereto. The relation of
the parties to this suit Is essentially the same
in eQul^ as mortgagor and mortgagee, Mrs.
Boyer being regarded as the mortgagor In
poasession of the land. If there had not been
a second tax sale, and Mrs. Boyer, instead of
Spilman, had acquired the tax tiUe from
Shoemaker, she could recoup damages to the
extent of her reasonable expenses in acquir-
ing the tiUe; but she would not be permit-
ted to claim under It adversely to plaintiff-
Blg^w on Estoppel (6th Ed.), page 546;
Bush V. Marshall, 6 How. 284, 12 L. Bd. 440.
The same rule Is applicable In this suit as
would be applied If Mrs. Boyer had paid the
full purchase price, and had brought an ac-
tion for breach of plaintiffs covenant It la
well settied that, In such case, her recovery
would be limited to the amount of her expen-
ses in buying in the adverse titie. Leffing-
weU V. EUlott, 8 Pick. (Mass.) 456, 19 Am.
Dec. 343; Boiler v. ESlnger's Executor, 88
Va. 641, 14 S. a 337; Sanders v. Wagner,
32 N. J. Eq. 506; Cowdry v. Cuthbert Tl
Iowa, 733, 29 N. W. 798. The ca:8e last cited
Is very similar to the present one, and
stronger. If any odds, In favor of the vendee,
because he had notified his vendor to pay the
taxes and he failed to do so. Cuthbert the
vendee, did not buy at the tax sale, but
bought from the tax purchaser after he had
received his tax deed. In a suit by Oowdry,
the vendor, It was held that Cuthbert, the
vendee, was entitled to have the amount paid
for the tax titie treated as a payment on his
bond to Oowdiy, but that he could not claim
adversely to him ynder the tax title. The
same question was decided in Ourran v.
Banks, 123 Mich. . 694, 82 N. W. 247; in
Simons T. Rood, 120 Mich. 845, 88 N. W. 870;
and in Eaton v, Tallmadge, 22 Wis. 526.
Dafendant'a obligation as plaintUTs v^dee
is not affected by.fara purchase at a anbse-
quent tax sale. The tax titie which she ac-
quired, being fbr taxes assessed in the name
of a subs^uent owaer of the lot, operates to
defect the ^oomaker titie.
^i«retlureaaasSMBmetepWaMsMMmNUHBBataDeaIHg.*A]abDlg.XW-lAi9itj«a^
788
T8 SOXTtBStASTmS RBFOBTEB
07. T«.
The contention of defendant's coansel that
the Bhoemaker tax title extfngntshed her
title, and also the lien of plaintiff, and that
b7 her subsequent tax deed defendant ao
qnired the land discharged of the Uen, and
Is, therefore, under no obligation to make
further payment, Is not snpported by the
law. The Hen of a vendor cannot be thus
defeated.
The court sostalned plalntifTs ezceptlonB
to defendant's answer on 2l8t of Hay, 1910,
and allowed 10 days In which to file farther
answer. On June 6th an order was entered
filing farther answer. But the final decree,
made on June 10, 1010, recites that the order
of June 6tb was Improvldently entered, and
set It aside, and brought the cause on to be
heard upon bill and exhibits, without farther
pleading. This action of the eourt is com-
plained of, but It does not appear why It
should be considered as error. The court
has control over all Interlocutory orders, even
after the adjournment of the term at which
they were entered, and, until adjoamment of :
the term, has control also of Its final orders,
and decrees. We must assume that the
court properly set aside the ord^r. E^ror
must afflrmatlTely appear. Only one an-
swer appears In the record, and Its aver-
ments constitute no defease to plaintiff's suit
It was not ' error, therefore, to exclude It'
"befendaint did not ask to have the mon^
expended by her in acquiring the tax title
credited on plalntitTs Hen, and tt was not
«rror to decree tbt ftiU amonnt dalmad by
plaintiff. '
The deCTM la afllrmed.
<n W. Ts. 8>6>
KXNNSIDT V. GLEN ALXTM GOAt. CO.
(Saprsme Goort of Appeals of West Virglfiia.
Jane 24, 1018.)
(BvUalnu ik* Court.)
DAiusn (I 1S2*) — BBvnw — Iif aoiquaib
Dauaobs.
A verdict for' $200, in a tort action for
nwl^ntly canaine plaintHTs personal injury,
whereby he lost half ot a foot, will not be set
adde for inadequacy, when no pecaniary loss
is shown.
[Ed. Note.— For other cases, see Damages,
Cent. Dig. IS 3T2-S85, 396; Dec Dig. { 132.*j
Sm« to Circnlt Ooort Mingo County.
Action by LoinnEo Dow Kennedy, by his
next friend* against the Olen Alum Coal
Company. Jndgmoit for d^endaat^ and
plaintiff brings error. Affirmed.
Cook, Litx & Howard, of Welch, -and Ban-
kers & Crockett, of Bluefield. for plaintiff in
error. Sbeppard, Goodykoonts & -Scherr,
of Williamson, and Mannim A Marcnm, tof
Hnntlngtoiii Cor defendant In ^eRm.
WILLLAUfl. J. Plaintiff, an infant under
the age of 14 years, wa» ^ployed ae trap-
per In d^endanfk ooai mtBs^ and leosiTied
an Injury, for which he sued, and recovered
a Judgment for $2O0t He moved to set the
verdict -aside on the ground that it was
wholly Inadequate, and the court overruled
his motion, and entered Judgment on tlie
verdict, and he obtained this writ of error.
SecUon 15 of chapter 181 of the Code of
West Vii^inla (1906), permits a new trial to
be granted as well when the damages re-
covered are too small as when they are ex-
cessive. The only question we need consider
is: Did the court err in refusing to set aside
the verdict because too small?
Plaintiff was employed to trap In the main
entrance, about 200 yards from the moutli
of the mine. He had ridden out of the mine
on the trip about noon, as he says, to get
his lunch, which his sister was to bring to
him at the mouth of the mine. As the
motor was returning Into the mine, he at-
tempted to get on it at the front end, and
his foot slipped and passed under one of the
wheels, and was so badly mashed that a por-
tion of It had to be amputated. He was tak-
en to the hospital and treated at defendant* a
expense until he got welL He was three
weeks in the hospital. He says about half
of hla foot la gone, but just what part la
gone doeii not appear. Whether It was cat
off square across the foot, or along one side,
does not appear from the record. It does
not appear what plalntifiTs earning capadty
^as at the time the injury, or what he
Uu heea able to earn since. He does say,
however, that he has worked on his grand-
father's farm alnoe Us Injury, that he plow-
ed occaaLonally, and aom^lmes engaged In
playing ball. In view of these facta and dr-
ctunstances, no pecaniary lose being alunrn,
we are not Justified in saying that the conct
erred in refusing to set aside the vetdlet and
grant plaintiff anpther trlaL
In ac^na for personal lajnrlea flie law
fl^es out d^nlte role for measuring compen-
saUon. From the very neeeasity of the ease,
the Jury are made the Judges of what la a
proper compensation In audi actlona, * In
considering a motion to set aside the iwdld
of a Jury for InsnfOclency, the same rule ap-
pllea as on a motion to set aside a vetdld;
because It Is exeesslva Dowd t. Weettng*
house Air Brake Co., 182 Mo. 679, $4 & W.
493: 4 Sedgwick on Damages (9th Od.) |
1368, and cases cited in note 226. Bat, says
the author. In the same section: "The foiw
bearajuje of the court to Interfere with the
Jury is so great that, in actions of tort, the
general rule was once said to be that a new
trial will not be granted for smallneas ot
damages. And it Is stiU true that a new
trial wlU not ordinarily be granted for this
reason, especially where there Is no pecan-
iary standard for the estimate of damages,
ajB wh«re they are given for pain and suaer<
ing, beoause Juries seldom underestimate the
amount «f damages. So clearly Is this felt
•VHotbsr
ssaMtaglssaaseitaaMiaiBWaia|HfcPlfcaA».IMg.M»&ilfts«*gMM»8<»y^ilgM
W.Va.)
SOBS* A.VM'X T. BOSS -
789
to tw tiiA esse tliat courts are sotnettniei tor-
Mdaen Dy statute to Mt aside wdlctB la
personal tojory oaass on tba poend of ln>
adequacy.**
If It were oar prorlnce to ascertain tbe
damages, we wonld fix a larger snm than
9200. Bat the law places that duty apon the
jary, and the court Is jnstlfled In setting
aside their finding, only when their Terdlct
Is so Bmall as to evince passion, partiality,
prejudice, or mistake. We dA not feel war-
ranted In saying that they were thus Influeuc-
ed. Of course, If plalotifl had shown an
actnal pecuniary loss, and the verdict had
not been lai^ enough to cover snob loss, we
could then see that the verdict would be
whdlly Inadequate, and It would be our duty
to set It aside. But plalnttfF proved no pe-
cuniary lose ; he was pi^ to no expense In
effecting his cure. 80 the verdict must
have been Intended to compeDsato him only
for Us patu ' and suffering and- pertnanent
Injury. We cannot say that It is wholly
Inadequato tor that purposfc Vb» toUowliig
oases are In point, via.: Monfasey v. Wwt-
Chester Kleettte Hy. Go., 80 App. Dtt. 4M,
51 N. T: Supp. MS ; BDbbiBon v. Wuqpftca, 7T
WI& S44, 48 K. W. 809; Kalenoibadi ▼. Midk-
Igan Central B. B. Co.. 8T Mch. 900, 48 R
W. 106S; Dowd V. Westtnchonse A. R Go.,
188 Mo. 870^ 84 & W. 498; Karens v. Omaha
A a fi. B. Jk B. Ckk, 149 Iowa, 84, 120 N. W.
469; De Freltu t. NQnes, 180 IlL Ai^ 18&
In the lastdtod case a verdict tar <400, Cmr
the- loss ct an «ye, was set aside : but the
l^oof showed that Oie vodlet Old not
amoont to as rnddti as ona>balf 0w Mtuil
pecnntery loss proven.
We affinn the iudgnunt.
UILLBR, J., absent
at W. Va. «»)
BTAN V. FINBT GOAX. A QQKB 00.
(Supreme Court of Appeals of Weit Tligiiils.
June 24, 1913.)
(ByUahut h$ Oe OosrU
PaocKsa (I 16S*>~Amio)CKirT of Smacons.
Under section 16, c. 126. Code 1906, a
■nmmoDS In aasumpilt, served on defendant,
may be amended so as to correct the variance
between it. and a declaration in trespBse on tbe
case.
[Ed. Note.— For other caaes, aee Process,
cent Dig. II 224-288; Dec Di^. | 168.*]
Error to Circuit Court, Balelgh County.
AetioD by a C. Ryan against the Plney,
Coal A.Ooke Company. Judgment tor de-
tondant, and plaintiff brings error. Reversed
and remanded.
See. also, 69 W. Va. 692, 73 S. B. 830.
A. A. Lilly, of Charleston, and T. N. Bead,
of HInton, for plaintiff In error; Watts^
Davis & Davis, of Ohsrlweton, for defendant
in error.
LYNCH, X The i»lalntlfl, while employed
In defendant's coal mine, received the Injury
for which he seeks recovery In this action.
The summons Issued and served on defend-
ant required It to answer plaintiff "of a
plea of trespass on the case in assumprit,"
while the de<daratIon required it to answer
"of a plea of trespass on the case." The de-
fendant, having appeared Q>eclally tor the
purpose within the time fixed by statute, ten-
dered Its plea In abatement, because of the
variance between the writ and the dedara-
tlon.
While tbe record does not show, except by
implication, plaintiff's motion for leave to
anjend the writ, the final order recites that
the court "doth decline to permit the plain-
tiff to anmid the writ In this action to make
tbe same correqiond with the declaration In
trefpaas on tbe case, * * * and doth
therefore consider that the plaintiff's suit be
abated (Titbout pr^utUce, however, to tbe
Institution ct another suit by i^aintlff for
the same cause of action, tihould be so de*
8lre)t except In so fbr as the adjudication in
this case in sustaining Qte piea In afoatanunt
and refnslug tbe amendqieot asked tor nu^y
aflieet It, St sncb acUoo berdn may do ao." to
wbldi ndlng ^ntlff eoceepted.
aivlng eflMt to tbe ezpUdt .language ot
section 18» G. 12s, Code 1906^ it. la aniarent
tbat tbQ court wrad tat Its nfoaal to permit
pbUntlff to am^d tbe writ In tbla action. It
IwoTldes tbat "the dtfcndant 4^ whom tbe
proceas aqnmonlng blm to gnawer appean
to b^va bea served flOwU not talte advantage
of any dtftet la tbe writ or ntum, or any
variance In the writ fiom tbe decteiatton^
unless tta same- bt pleaded In abatement:
and In evwy sucSi eaae tbe court iaay,permit
tbe plaintiff to amend the writ or decilaratloa
so as to correct tbe varfanost and permit the
return to be amoided, n^on nn<A terms as to
It shall sem Just" See Barnes v. Grafton,
61 W. Va. 408, 410. 56 & B. 608; Byan v.
Coal * Coke Oo^ 80 W. Ta. 78 & A
830.
For the reasons stated, the Judgment of tbfli
drcolt court la reversed, leave to amend
tbe writ gsantad, and the case rnnandsd.
Cn W. Va. MO)
BOSS* AmrX v. boss et aL
(Supreme Court of Appeals of Wsvt Virginia.
Jane 24, 1813.)
(»vllafriw.»v Oe CosrlJ
1. EquxTT (I 148*)^Biu.— MuiaxKuzouB-.
HBSS.
A bill hy tiie widow aa administratrix pray-
ing that the land of tbe decedent be subjected
tO' tbe payment of his debts because of huuffl-
ciept personalty, and in her own right praying
tbat oower be assigned her )>eCore sale of the
land. Is not bad on demurrer for mnlttfsrfons*
[Bd. Ifota.~For other caseii sea Bqnlty. Oeat
Dig. H 841-607; Dee. m^,14S^S^ ^
*KroUer«M
700
78 SOUTHBASTSBN BBPOBTBB
2. Bqdztt <| 19y)-^m<— DBifUMM ■ -Busx
TO' Amwu.
On the OTCimllng of a demurrer to the
bill, if the defendant does not answer or waive
hU rixht to do M>, a mle to answer muBt be
flren him before any decree affording the plain-
tiff relief can be taken.
[Kd. Not&— For other csm, lee Stantty, Cwt
ig. H 448-146; Dec. ie4.*T
3. DOWEB (I dO*)— ADUSA8XTSE1CBITT— NonOB
TO HKIB.
The heir ehonld have notioe of the time
when commieslonera apptdnted to ]ms dower
will act. If they act without notice to him
and In hia absence, their report will be aet aside
upon bit exception.
[Ei. Note. — For other caseB, see Dower, Gent
Di^. H 846-847 ; Dec. Die I 99.*]
Appeal from Circuit Oonrt, Monongalia
County:
Suit by Alezls Hngti Boss* adminlBtratrlx
against John Boss and others. Decree for
complainant, and defendant John Boss ap-
peals. Reversed and remanded.
CbBM. X. Bogg, of Morgantown, for appel-
lant Donl«y * Hatfield, of Morgantown,
t<a appellee.
BOBINSON, J. Alexis Hngh Boas died
Intestate leavlns a wldov and two sons. He
was possessed of land but no personalty.
His widow became the itdmbdstratrlz of the
estate. As administratrix, and In her own
right as widow, she hron^t this suit In
chancery, iwaylng that the real estate of the
decedent be sold for Oie payment of hte
debts, after Qie assignment of dower to her^
sdf. The cause proceeded to such a decree
as that sought by plaintiff. One of fba sons,
John-Ross, claiming to be tggAtiveli by the'
dieaee, has appealed.
[1] Appellant says tlkat the blU Is bad be-
cause the widow snes in both representative
and iBdlTldnal capacity. But we readily
concelTe that the dannrrer to Uie bUl was
rightly overroled. Of course the administra-
trix can maintain a suit to enbject the
realty to the payment of debts when the per-
sraialty la InsofBdent, as In this case. In
snch a snlt the iover of the widow must be
assigned before a sale of the land for the
debts of the decedent The widow as a
necessary defendant in the snlt would ordi-
narily ask by answer that dower he assigned
her. Now, when It happens, as we have It
here, that the administratrix and widow are
one and the same party, why can not she sue
as she has? May she not thus reach by
direction what she cootd readily do by indi-
rection? Formally she should bring the suit
as administratrix and make herself a de-
fendant, indlTidnally as widow. But snrely
the some practical end is reached by appear-
ing as plaintiff administratrix for one pur-
pose and as plaintiff widow for another pur-
pose inherently connected with the former.
The charge of multifariousness ts by no
means tenable. Plaintiff In the one capacity
is not setting up a cause of action distinct
and iMI^Moidettt fnnn that whicb she assals
in the other capacity. Both the mattw that
pertains to tfalntiff as administratrix and
the matter that pertains to plaintiff as wid-
ow proi;>tt'Iy belong to the same soit, as we
have said. It is reaidred that tbey be dis-
posed of In the same snlt "If the bill ac-
complishes the desired end In a conrenloit
way for all concerned, and the mode adopted
is not so injurious to any one as to render
it unjust for the suit to be maintained In
that form, it will not be deemed to be multi-
farious." Johnson r. Blade, 103 Va. 477. 49
S. B. 638. 68 U B. A. aM, 106 Am. St Bep^
890. The bill hwetn canes i^ainly within
this princlpl&
[1} On the oTermMng of the demurrer to
tbe bill, tbe court Immediately wtered a de-
cree directing an c«der of reference in rela-
tion to the assets and liabilities of the estate
of the decedent, adjudging that tbe widow
was entitled to dower In the land, and ap-
pointing connnlssloners to go upon the land
and lay off Qie dower. Tbos merits of tbe
suit were passed upon. AK>eIlant soya It
was error so to decree without niUng him as
defendant to answer pursuant to Code 1906,
ch. 126, sec, 8a Voder our decisions, tUs
point Is well taken. 1 Bna Dig. Va. A W.
Va. 898-396; Hogi^s Equity Procedure, sec.
314. It is established In this state that when
tbe court overrules a demurrer to a t^l, U
the defendant does not answer or waive his
right to do so, there must be a rule on him
to answer the bill before any decree afford-
ing the plaintiff relief can he taken agfinst
the defendant, and that it is rereralble Mnw
to decree without such rulOb Xet the rule
need not be served, ,and amounto only to an
order that the defendant answer within a
certain time, which may he ^Mmlated accord-
ing to the drcnmatanees of the particular
case. So the statute has long been Inter-
preted. From our examination Into the ori-
gin and history of this statute we doubt
whether It has always been rightly iiiidM<-
stood and interpreted, it would seem that It
should not apply in favor of a d^endant
who, as appellant here. Is In default by a
bill taken for confessed i^alnst blm at rules.
Brent T. Washington's Adm*r, 18 Grat 628;
Reynolds t. Bank, 6 Orat 174. Such a de-
fendant has already neglected a rule to
plead. Why should another be given bim?
But no distinction has ever been made In our
cases. They apply the statute to any defend-
ant, whether one in default or not This
statute as long construed gives a defendant
a rule to answer on the overruling of his de-
murrer whether, In view of Code 1906, ch.
128, sec 68, It will avail him or not Mc-
LaughUn r. Sayets, 78 E. 355. Is not this
a mattw for legislative notice? See Virginia
Code 1904. section 3273.
[3] Should the heir have notice of the tine
of the laying off of dower by the commis*
•For ethw
I SMM tatfe- eaa weUea NUMB It to Pec Pis. A Am. Dig.
791
fllonvB ■pfutntad tot fbat porpoaet B7 ap>
ptflaoUfc ««aptl<m to the zwort <tf tfa* onib-
rnlMlonwa, tbte qnaatton Is raisid. It dm
not ftppsat that appeUant mm pnHnt or
had notlea He awerts by bU ezcwtton to
the report that he had so notice and., that
down ma assigned Is his abaeiufc Tet the
court confirmed the tfsxwt and decreed, npop
it Under the aathcHltr of Wamsley r. Coftl
and Lumber Oo., M W. TSi 296, 49 a E. lUt
we must view this action Of the court as*
erroneous. That precedent It le true r^tes
to partition of land betweeo owners in feet
but there Is nothing to differentiate the
principle in Its appUcatl<w to the asslgniDent
of dower. If It Is sound In the one case, it
certainly Is in-^the other. The role appears
to be a wh(^esome one indeed, though not
sanctioned in some Jurisdictions. We ap-
proTe It herein. Dower should not be laid
off in the absence of the heir, unless, after
notice he falls to attend. The court should
have snstained appellant's exception.
In Tlew of the reversal which must be or-
dered it is unnecessary to notice the ottier
asslgnmrats of error, further than to sa;
that the record which w^have befere us does
not show that the claim to which appeUant
exc^>ted is barred tlie statute «f limita-
tions.
The decrees complained of will be rerersed
and the caiiae .rwnanded for furtiur ^o-
ceedlnia.
MITifiBB, abeent
(II w. vs. ns)
BOWZJNa T. WALL&
(SapreqM Court of Appeab of West Virginia.
June 24. 1913.)
(StUalma by tU CourtJ
L Sn-On AND CoxTirrEBouni (| 27*)— AO'
TIOH OH XOTB— BBUOH Or COKTBAOT.
In an action on a note given as consider-
ation for the Bale of a itore the maker of the
note may cisfm recoupment for damages arising
from' bncacb by the vendor of hie agreement
made in tbe transaction of the sale not to go
into tbe mercantile business u a competitor of
the vendee for a stipulated period, though the
agreement is contained in a separate writing.
[Bd. Note.— For other cases, see Set-Ofl and
Counterclahn, Cent Dig. f| 45, 46; Dec Dig.
i 27.»3
2. Dauaoks (I 189*)— Bbsach or Ck>i(TBAOT—
Evidence.
In such an action the proof of the extent
of the damages under tbe notice of recoupment
need not be definite and specific ; the jury may
find the- amount of damages necessary to com-
pensate the injury proved by resorting to rea-
sonable Inferences from the facts, <drenmttancei^
and data furnished by tiie evidence.
[m Note.— For other cases, see Damages.
Gent Dig. H 288, U2; Dea Dig. i 189.*]^
Bmr to arenit OcKirt; Baielgh CooBty.
Aetitm by F. OL BowUng against XX B.
Wans and ottwra. Judgment fOr defUid-
ants. and plalntUf brings error. Afilrmed
VtOiv * Ward, of Beckley. for plaintiff in
ecroc. FUa * FUi^ of Bacfcler, for defend-
ant In CRor.
B0BIN30K, J. Bowling sold his stoiie to
W&Hs snd agreed to stay oat of tbe mercan-
tile business for a period of four bmntha
Part of the consideration for the sale was
represented by notes. The agreement not
to coihpete was a part of the tranaactlon of
sale but was contained in a separate writing
of the same date as that of the notes. When
BowUng «ued on one of the notes, Walls
claimed recoupment for breach of the agree-
ment, and produced evidence at the trial
tending to prove that within tbe four monUis
Bowling wait into the mercantile buslneBa
In the name of bis brother, as a competitor
of WallsJ The Jury fonAd for defendant,
thua recognizing that Walls had been Injured
by BowUiur's ' breach to the extent of the
balance due on the note for which the suit
was broQgt^t. Bowling seeka to reverse tbe
judgment entered on this verdict
[1] Plaintiet submits that a breach of the
agreement on hla i>art does not afford matter
of recoupment as sgalnst one of the notes
given In thci sale of the store. That damages
for a breach of the agreeinent may be made
matter of recoupment by defendant in this
suit, we have no doubt Those damages
arise out of the very transaction which af-
fords a baslB of plalntLfTs action. They grow
out of tbe contract for the sale ot the store,
as fully as plalntUTs cause of action grows-
therefrom. The case comes clearly within
tlie prindpte of recoupment aa ststed by a
well known author : "The right of the de-
fendant to recoup must necessarily arise out
of contract, and this defense is only available
when the baste of the plaintUTs action Is a
contract and his complaint to that there has
been a breach thereof by the defendant; in
vriAch case the defendant may recoup any
damages which may have resulted to Idhi by
a breach of another portion of the contract
or of a contract made at the same time and
constituting a part and parcel of the same
transaction, whether contained In <me vilt-
iEV or In two B^iarato wEttlqgSt or one in
writing and tha other la parol, provided,
however, th^ are all one transaction."
Hogg's Pleading and Forms (Sd Bd.) sec 262.
[I] Another pidnt of error is that the dam-
ages allowed by way of reeoopment against
the note are excessive and not svstported by
evidence. From the evidence the jury were
warranted In finding that idalntifl violated
the agreement that he made t« conneetSm
with the sale of the stoie. Moreover, then
is evidanoe amply tmdlng to prove injury to
defendant Tteta. drcnmstaneea^ and data
wear-fMn which the Juy weee warranted
in finding the amount of damages tbey dUL
In cases of this diaracter it is not reguiMd
that proof of the extent of the damages be
792
78 SOCTHBAfiTBSM BBPOBTEB
deflidte and spedBc: Than nnut be pMot ot
injury, tnit tlw jury mfty find tbe anKnut oi
damafes by drawing reasonable InCeiwiGeB
from tha facta, drcnmBtances, and data
fanriabed 1^ the eridmee. TUm mbjeet pt
tbe BMasnn of damasei tot the violation of
good will eontraets like the one lnTOlT«d In
tills caae la fnlly dlicnaaad in 8 Sotherland
on Damacea, at section es8.
It scans idkolly nonecessary to dlsooas
other points asalgned. Tbsf InTcdTe no
doubtful propositlonB of law.
An order affirming tba Jodgment will be
entered.
MTTJ.IBR, J., absent
Cn W. Vfc 6EI) "
SHIFUDY T. JBTrBBSON GOtJNTT
OOUJlT.t
(Etapreme Ooort of Appeal* of West Ylrgli^
Jane 24, 1818.)
fSyllobiM tJte Court.)
1. BBrooKS a 88»)— DMWJTiva Bbidgb— IjIA.
MLiTT rOR PiasonAL Injotiks— PBOOI".
Tbe admtnifltratoT of an employfi of a
coonty ooart, killed by the falling of a public
conn^ bridge,^ onder tbe weight of a traction
engine and 'stone cruBber on which h6 wai rid-
big, while acting within tbe scope of Us em-
ploymeot. has a statutory ri^t <^ action under
section 53 of chapter 48 of the Code, and need
not ascertain or show any defect in the bridge,
caaslng it to give way.
[Bd. Note.— Por otber caaei, see Bridges,
Oeat. Dig: H 07> 109; Dae. Dig. 1 88.«]
2. Statutes (f 184*)— OonsTEnonoar. '
A statnte la ahreja oonstroed In the light
of its parpoae and the evU it wa^ deaigned to
remedy.
[Ed. Note.— For 6flier eases, aee Statute^
Cent. Dig. I 262; D«i DteTriSi.*!
Elrror to Cinmlt. Coor^ Jefferson County.
Action, by Fonrose Shls^ey, administrator,
etc, against the County Court of Jefferson
Goanty. On a demurrer to tbe evldeiice
the Jury rendored a conditional verdict for
plaintiff, and, the ooort having sustained tbe
demurrer and dismissed tbe action, plaintiff
brings error. Beveraed, and judgment r^
dered on oondltlonal verdict.
George M. Beltsboover. Jr.. of Sb«iAerds-
town, and fitelknw, Walkw it Woods, of
Hartlnsburg, for plaintiff in oror. Forrest
W. Brown, George D. Moore, and James M.
Bfoson, Jr., an of Obarlestown, for defendant
In wior.
FOFFHSfflAROBB^ P. On a demurrer to
Om erldenee In this case, the jury mdered a
eondttional Terdict of f2,000 for the plain-
tilt, and, the court having snstalnM the
demurred and dismissed the actton, tbe plain-
tiff obtained a writ of error to the jadgnuBt
The actlai haaflw Its parpoae leeoyeaj ^
damages for the wrongful death of the
plalnttfl^ decedent, occbslmied by the break-
ing and telling of a highway 'bridge, under
tbe weight o£ a' tradtlon etatfna aad atona
cmsher whUe passing over it,- on which the
deoeased waa, at the tim^ riding. -
[1,1] A« tbe decedent, at the tlM ut hia
deaO, was engaged in the adrriea at the
'county court and sustabied Uw faijaiy fhma
which be died by reason of an alleged defeet
in tbe bridge' vrtille In the-eonne of hia
employment, tbe evidoica tending to prove
difectlteness of the' bridge most be dealt
with specially. This relation raises a highly
Important question. If hia cause of action,
in Wew of this relation, is founded iqK»
the ammta law. Imposing upon the mastw
the duty to exercCse reasonable care to lotH
vide his swvant a safe i^oe in vrtilch to
woiiE, It waa Inenmbent upon the plaintiff
to prove tbe defect in the bridge and omis-
sion of inspection to dlsocrrer it and maiu
r^Mtlrs. But, if it rests upon the statute
mating the cotin^ court Uatile for injuries
to any person by reason of a defect in a
public road or bridge, or by reason of any
such road or bridge being out of repair
(Code, c 4S, I 58), it is unneoeesary to jwove
la<A of safety tai the bridge or any defect
therein, for this statute haS' been construed
as lmpoi4i^ absolute liability' for injuries
for such defects, whether latent or «bviou^
discoverable or undiacoverable, and exerdse
dr nonezerclse of care and^dlligence on the
part of the county .court is altogethw imma-
terial (O'Hanlln v. Oil Co., 64 W. Ta. SIO, 4A
S.E.665,66L.B.A.893; Van Pelt v.
Clarksburg, 42 W. Va: 21S, 24 8. B. 878;
Teager v. Bluefleld, 40 W. Va. 484, 21 & E.
762; Gibson v. Huntington. 88 W. Va. 177.
18 S. K. 447, 22 L. B. A. 661, 46 Am. St
Bep. 868; Biggs v. Huntington, 32 W. Va. 66,
9 S. E. 61; Chapman t. Mlltoii, 31 W. Va.
884, 7 8. E. 22).
At the common' law, thoe was no liability
for personal injury occasioned by dedJeets In
highways, for tbe duty of keej^g them in re*
pair was regarded as one due to the public
and not to the individual, wherefore failure
to perform this duty was a mere non/eos-
anoe and not a miefeasance against tbe in-
dividual. Thonv). Meg. S91&. The statute
was passed to remedy this defect In the com-
mon law. Therefore to determine the extent
of liability it is necessary only to look to the
terms of the statute unless there are excep-
tions by way of Implication. That there are
some Is very well settled. Contributory neg-
ligence is an ^lectnal bar to the right of re-
covery, and It is about tbe only defense rec-
ognised by our decisions so far. The dece-
dent though a swaut of the county court,
ms within the ttsnoM at tbe statute. He was
a person injured iv a defect in the bridge.
Upon what ground can he be defined to'ba
excepted from the guaranties given ilv "tbm
statntet Aa the rdatiom ttf master and-swr-
aat existed between hbn and tbe defendant;
it may be said plansll^ that his case is not
Tfli miiir ■■■■■ wm mmt tnpli istl ■irtlnn niTMnw la Fin rig
t HahMring donM October
SHIPIiBT t: JEKFEBSON OQfJNTT OOUBT
wlOiin the etU the statute was designed to
correct, If the oommon law gave a li^t of
actiott in BDch cases. Thou^ there are some
dedstons In which municipal corpora tloiui
hare -been held liable to their employte tot
negligent Inlnry, upon common-law inr&elples,
tbe' gmeial rale Is to the ctmtrary. Labatt,
Blaster ft Serr. f 847; Shearm. & Redt Neg.
268, 255. Thus, an employe of a municipal
ecnporatUm, engaged In the operation of a
■tone crusher to prepare materials tor coor
■tracting and r^alrtng highways, Injured by
a defect In the machine, was denied right of
recovery. ColweU v. Waterbnry, 74 Oonn.
IS88^61AtL 680,57 I*.ILA.21& Soaaem.
ploye injured by a victooa horse famished
hbn by a quasi mnnldpal corporation; en*
gaged in work done for the state; was
denied right of recorery. Bather t. Park
Gom'rs, 66 111. App. 607. To the same gener-
al effeck, see Pettingell t. Qielsea, 101 Mass.
Se8,87N. B.880,24L.B.A. 428; Hill T. Bo»
ton. 123 Mass. 28 Am. Bepw 882;
Taggart r. Fall Blrer, 170 Mass. 825,
49 N. JR. fins. Oeneral prindples stated
In Hoidel t. Wheeling. 28 W. Ta. 288,
57 Am. Rep. 061, tend to the same coiir
dnsldn. See^ also, Nlchol v. Watw Ge^
63 W. Va. 848, 44 S. B. 290. PrlndpleB
declared In Shaw t. City of C^rleston,
67 W. Vs. 433, GO S. B. 627. 4 Ann.' Gas. 616,
Brown's Adm'r t. Ouyandotte, 34 W. Va. 296,
12 & E. 707. 11 L. R. A. 121, Gibson r.
Huntington, 38 W. Ta. 177, 18 S. B. 447,
22 li. R. A. 661. 46 Am. St Hep. 868, and
Bartiett r. CQarksbnrg, 45 W. Va. 893, 81 &
B. 918, 43 li. R. A. 296, 72 Am. St R^.
817, would deny recovery In such cases, under
tlie principles of the common law. absolvli^
mnni<4pal corporations from liability for
Injuries resulting from negligence on th^
part In, the exercise of their goyemmental
and . discretionary powers. A servant of a
county court Injured by a defect In a high-
way, while In Its service, cannot be excepted
from the general terms of the statute, there-
fore, on the theory that his case was not
wtthln the .mischief the Xiegislatore Intended
to remedy. Havii^ no right of action
against his employer for negligent Injury,
he was in the same situation as that of a
travels injured in the same way. In other
words, it cannot be assumed that Uw Eiegls-
lat:ure Intended to except him on the ground
that the con}mOtt law afforded him a remedy,
for he had no such remedy at common law<
The result of this conclusion accords with
that found In Tickets r. Cloud County, 69
Kan. 86. 62 Pac. 73, in which a workman,
employed by the county and Injured by the
falling of a bridge, was declared to be within
the protection of a statute In all substan-
tial respects like the one here under con-
sideration.
Under this construction of the statute.
It becomes unnecessary' to devote any time to
tbe conslderatton o£. tlw sufficiency of the
erldcnca to eatabUab mair partlcolar dsieet
in the bridge. As has already been shown;
the statute makes the county court an in-
surar of the safety of posons using its high,
ways and bridges, in the absence of contrib-
utory negligence or other Intervening caus»
Therefore, only the evidence tending to prove
n^ligence on the part of the driver of the
engine as the proximate cause of the Injury,
need be considered.
This ground of defense Is that, as the en-
gine was passing from the bridge onto the
roadway. It was driven so nearly to the east
side of the bridge that the rim of the rear
wheel struck the diagonal, constituting part
of the truss, and pressed it over so as to de-
prive it of Its efficacy as a support to the
bridga To sustain this theory of defense, the
fitrengjli of the bridge Is relied upon. Evi-
dence was adduced tending to prove that
It had for years carried vehicles similar to
the one under which it went down. One
of these was an engine weighing nine tons
and a separator five tons. The engine and
crasher under which it gave way had passed
over it the preceding day. It did not g^ve
way until after the front wheels of the
engine had passed off of It and onto the
ground, nor while the combined we^ht of
the entire engine and crusher were upon
it, nor until the weight of the rear portion
of the engine was divided between the earth
and the bridge, nor until the weight became
lighter than It had been at any other time
during the passage. The woodwork was
unbroken, and very slight defects, If any,
were found In the iron. There Is some con-
troversy as to whether any of the Iron work
was broken, although some of It was Admit-
tedly bent Thon^ the bridge bad been
erected In 1891 and was about J,3 years old
at the time of the injury, it had been painted
several times and had not been seriously Im-
paired by rust There was evidence tending
to prove the passage had been made at an
unneeeesarlly ra^ rata of speed, and undw
unnecessarily heavy steam. The approach
to the bsl^ was downgrade, and although
the engine and crusher were equipped with
brakes they were evidently not used. It
was the northeast part of the truss that
went. down. The witness QolUday, standing
in the door of a mill on the west side of
the road, 30 or 40 yards distant, and looking
at the crusher and the engine, says he saw
"the lower side of the bridge go out and
the thing sink from sight," and again said,
"I saw betweoi the coigine and the crusher
this side go oat and out of sight" . By dUs
be evidently meant Om east side of the trass.
In the argument are found calculations
based upon evlden<» of marks on the boards
which constituted the floor of the bridge and
the ground at the end of it, tending to show
probability that the rim of the hind wheel
struck the truss. !niese calculations involve
the width of the bridge between the trusses
and the length of the boards UBed>for the
Om After .th« east ri^igwi^idddagl
7M
78 BOUTHEASTBBM BEFOBTBB
<W.V«.
nnk to a certain point the bbid whedv of
the engine and flioae of the cnuher nUppei
toward the east leavlns marks on the boarda
Neither the distance of these marks from
the ends of the boards nor from the Inside
of the truss was measured. The witness
spoke In general terms. He sets the scar on
the board be noticed showed the wheel had
commenced to slide at a point four or five
feet from the side of the bridge. On cross-
examination, he said he meant fonr aud a
half or five feet from the ends of the
boards. The boards extended beyond the
tniBs. Oounting the distance from the In-
side of the truss, the wheels would have
struck the one on the opposite dde. Co ant-
ing from the ends of the boards, It would
hare missed It by the rery narrow margin
of two or three inches. As to the distance
the front wheels had gone beyond the end
of the bridge onto the road, when the acci-
dent occurred, relied upon in these calcula-
tions, the evidence Is equally uncertain and
Indeflnitfc Two of them give fOur to Are
feet, and the third one six to eight feet
Calculations based upon the testimony of
another one as to the position of the hind
wheels on the bridge makes it two feet eight
inches to four feet eight inches.
In opposition to this testimony, slight erl-
deuce, of defects In the bridge was adduced.
Witness Viand says he helped to construct
the bridge, and that a brace, pnt in near the
point at which It broke down, was defectlTe
in this, that It had but one riret at a point
at which it should hare had two. Under an
erroneous direction from the superintendent,
one of the ilvet holes was cut out entirely
and the other was partially cut, but the brace
was pnt in neverthelesa He further says
some of the bridge irons were pretty badly
rusted. Witness Klsner says some of the
irons were partly rusted In two where they
broke, and that the bottom cord was brok^
a little way from the northeast abutment
Witness C3ark also says some of the irons
were pretty ruaty. fhe effect of Viand's
testimony was considerably impaired by his
admisstons on cross-examinatloQ, and there
was testimony tending to prove the brace he
spoke of as liaving been defective was still
intact after 'the bridge had fUlen, and, be-
ddes, this brace was probably one that sus-
tained very Uttl^ it any, wei^t
As has been stated, the calcnlatlons relied
upon as concluBitely proving contact of
the rear wheel of the engine with the truss
of the bridge do not possess Ou probative
force claimed tot than, because It Is baaed
upon uncertain data: However, It does con-
clusively show the wheel must have been
very dose to the trdss^ and thus raises a
probabiUtT of contact Ttie tests of niffl-
dency and safety borne Iv Uie bridge for
many years, the day before the accident and
on the very day thereof, renders it more or
leas Improbable Oat the accident waa doe
to w«[^t upon It The uncontradicted testi-
mony of G<rilida7, t3ie only eyewltDsas wtw
undertook to describe the character of the
fiill, showiiv the careening of the tnus, fM-
lowed W snbsldakoe of that side of tbe
bridge, tmds directly to prove the theory of
the ieitmae. The sUght testimony above de-
tailed, taiding to prove defectlvoieBa of ma-
terials aud workmanship and the breaking of
some portions of the iron, might tw con-
sidered as overcome by the testa of suffl-
doicy and safety already referred ta Upon
Oieee considerations, I am Indlned to the
opinion that there is a preponderance of evi-
dence in fiivor of the d^endant, sufficient to
sustain the action of the court upon the de-
murrer, but my Associates are clearly of the
opinion that there is no clear and decided
preponderance, and that the Issue made by
the evldemoe was one proper for Jury detor-
ndnatton. As there is no difference of ot^
ion among us as to the law gowning demur-
rers to evld«sice, there is no occasion for
inquiry as to legal principles. When the evi-
dence deariy and decidedly preponderates
in favor of > the demorrant, all agree the de-
murrer shonld be sustained. We differ only
as to the existence of such a pr^ndMance
in the .evidence adduced In this case.
As in tbe opinion of a majority of the
members of the court, the case should have
bem submitted to the Jury, but for tnterpo-
sltion of the demurrer, the judgment will be
reversed, and a Ju(^ment rendered here tar
the amount of tbe condUlonal vwdlct
(tt w. Ta. WD
OAVBNDISH r. BhVMB GOAL ft COKE
CO. et aL
(Supreme Oonrt of Appeals of West Virginia.
June 24, 191S.)
(SylMtut by the Cowt.)
1. Schools and Sohool Dibtbicts (i 65*)—
Sale or School Lot— Biobtb or OaioiiuiL
OWNEB.
A lot in a village though not incorporated
conveyed to a board of edaeatloD by aboolnt*
deed with general warranty U within tbe ex-
ception of section 88, c 46, Code 1899 (Code
1906, c. 4S, I S3), and tbe grantor of such
lot, who has previooBly sold and conveyed hit
adioining lands, of which Buch lot was orig-
inally a part, to another, is not entitled to a
cancellation of the deed tor mch lot from such
board to tbe Same grantee, and to a reconvey-
ance thereof to him by virtue of said statute.
[Ed. Note.— EV>r other cases, see Schot^ and
School Diatrlcta, Cent Dig. || 162-107; Dee.
Dig. I 6B.*]
*
WoBDB Ain> Phkasu— "TzLuaa.**
A "village" is defined as an assemblage <rf
booTCS in the country leai than a town anl
Inhabited chiefly by farmera and other l^or-
ing people.
[Ed. Note.— For other definitions, see Words
and Phrases, vol. 8, pp. 7321-7324.]
ettar MM* M* «UM topte and MOttra NUimnt la Dm. Die. a am.
W.Taj
OAYBNDISB t. BLUMB- OaAL ft 00KB 00.
796
Appeal from Circuit Court, Fayette Conotjr.
BUI 19 J. F. CaTsn^ata acalnat tlu Board
of Xdncatlon of the Vtatdeb of NntfeaU and
others. Decree for defendants, and plaintiff
appeals. Affirmed.
Wyatt t Graham, of HantlngtCHi, for appe-
lant DiUon h NuckoUa, of FayettarUK tax
appdlees.
IGLLEB, J. Plahitlfl sues for cancella-
tion of a deed from the Board of Education
of Nnttall District, Payette Oounty, to Blume
Coal & Ooke Company, a co-partnership, dat-
ed April 13, 1908, in BO far OS it relates to a
school house lot at the village of Lookout,
and for a reconveyance thereof to him by
said board, by virtue of section 33, chapter 46.
Code 1899 (Code 1900, c 46^ | S3), in force at
the time the deeds now to be tefened to
were made.
This lot as alleged had been previously
conveyed by plaintiff to said board of eduea-
titm, by two deeds ; the flrst calling for about
a tuUf acre, was lost and never recorded,
bat the bill alleges it was made in 188—;
the second, dated May 1. 1897, calling for
a lot adjolniiv the first. Is described by
metes and bounds as a lot 4 poles wide by
11^ poles in length, and recorded July 25,
1898. By Act of 1905, c 70. said statute was
amended, and as now contained in chapter
46, Code 1906, no such right of reconveyance
la preserved.
In the deed sought to have cancelled this
lot, covered by both deeds, Is described as
containing ".69 of an acre." The considera-
tion recited in the second deed Is ten dol-
laxa paid; It Is absolute In terms, without
reservation, and wltli covenanta of general
warranty. The Ull alleges the consideration
for the flrat deed waa one dollar, and It Is
not alleged or pretended that it contained
uiy tenna of defeasance or reservation. The
answer of Blnme Coal ft Coke Company, and
of the Board of. Education, deny this and
affirm that It was *^088lbly as mndi as $26.-
00:" If the fact Is material, and we do not
think it Is, plaintiff has not made out a case
of nominal ccmslderation only. Bnt fbr the
right alles^ to be conferred by the stat-
ute no ground fxa relief is allseed or made
to appear.
Said section S3, of chapter 46. Code 1899,
excepts from the provision giving right of
reooav^anee to a grantor, lots aitnatea
within any village town or city, ^e en-
•wer of d^ndants, Blume Cbal ft Ooke Com-
pany, deny that said lot la not attuated with-
in any city, town, ifr village;' on the c<m-
trary they aU^ that It is situated wltUn
the village of Loofcont, and by the terma of
tbe statute expressly excepted from the pro-
vision giving Tight of reconveyance. They
also deny the aaid lot has been abandoned,
and allege that It was idmply exchanged for
a largv and more oommodlons lot In the
same vicinity and for a cash eonsldecatlon
vt 1200^, paid by requBdents, and <hi wUcli
exdiansed lot aald board haa «?ected a schMA
bnUdlng ooattng f3.000.0a
After BO respondlnf to the matter of tha
hUl, it la aUeted as groond for the affirmar
tlve relief prayed for. that admitting the
general ridit of raemveyaoce given tv said
statnte^ plalntlfl, by deed of March 1. 1002, .
bad omveyed to Blnme Coal ft 06ke Com-
pany all hia adjoining lands, and out of
which said school house lot was taken, and
other lands, and had thereby also relinquish-
ed, sold and conveyed to said coal company
all reversionary rights and Interests therein.
The prayer of said answer waa that it may
be treated as a Cfoas bill against plaintiff,
and that he be required to convey to respond-
ents his Interest In said lot upon the pay-
ment to him of $10.00 tendered tbwefor, as
per contract in said deed.
Plaintiff relied generally to said answer,
but made no answer to the afllrmatlve mat-
ters thereof; and the d^xwltlons taken by
him In relation thereto, were excepted to,
and in the final decree appealed from said
exceptions, though not apedfically passed up-
on, are noted, and the decree waa that plaln-
tlff be denied relief, and his bill dismissed,
but that the afflrmatlve relief prayed for by
the Blume Coal ft Coke Company be grant-
ed, and the decree so provided.
The provision of the deed relied on. a copy
of which is exhibited with the bill, is as
follows: "The said J. F. Cavendish and wife
covenant with the parties of the second part
that they have heretofore aold to various
parties cwtaln small tracts or lota of land
adjoining to and lying near the property
hereby conveyed, whldt said parties have
not i»id the said J.. F. Cavendish all the
purchase money due tb«reon, and the said J.
r. Cavendish hereby covenants and agreea
with the said parties of the second part that
in the event the said parties .fall to pay for
the aaid lota or parcels of land, and the
title thereto reverts back to the said J. F.
Cavendl^ or If for any reason the said J.
F. Cavradish cures the title to said tracta or
lots so sold by them, as aforesaid, then, and
In that event, he agrees to grant and con-
vey the said bracta of land, or ao mndi of
them as he may secure title thereto, to the
said parties of the second part, the said par-
ties of the second part to pay the said J. F.
Gavendlah tJia aame XMrioa^ with aocmed in-
terest thereon, wliidi had ben agreed to be
iwid by the partlea to whom J. F. Cav«a>
dish sold."
A number of Interesting qoesttona are pre-
sented and axgned by connael ; bnt if aald
lot at the time of the suit was attnated In
a '^village.** as on the evidence we think It
was, then, 1^ the very terms of the statute do
right of reconveyance existed, and relief waa
rightly denied plaintifl, and his Mil waa prop-
erly dismissed, and ve need oot eonsldar any
0U«r D,3„ized by Google
796
78 SOUTHEASTERN BE}POBTIIIB
[1] Bat it !■ eoateiided that as <^pter 47,
of the Cod^ ^OTldlng for the Incorpcwatloii
of cttieB, towna and Tillages^ was la force
at the time section 38, chapter 45, was enact-
ed, and on the theory that said section was
okacted to enoovrage persons In the cotuitry
to donate land Dor school house dtes, the
-word "Tinage,*' anph^ed In connection with
the words "dtW and 'towns,'* shonld be
construed to mean Incorporated vUlageB.
nra if that may bavo been one of the pur-
poses of the statute we do not think It was
the only or main pnrpose ; and It It wa^ it
failed In ads case, for the evidence shows
that the lot was not a gttt or donation, but
that ft full mon^ consktoratlon was paid for
It nils court, in Oarpn t. Goofc, 89 W. Ta.
861, in S. XL 881, saidt respecting this stat-
ute: *niis is a concession of Uie law to those
living In fiunning communities, that a small
portion of a Ikrm may not be taken for
sdbool purposes and then' be allowed to pasa
into the bands itf a stitaiger, to the damMe
of the residue of tiie land ; and the grantor
must make his Section promptly* before the
rights of third parties attach, by a re-pay-
ment of the purchase-money and a demand
for a re^nTeyano& If audi demand is re-
fused* ereu though made In time and in a
proper case, the right could not be enforced
by an action of ejectment" The word la
not defined by the statute. The general rule
In the construction of statutes Is that unless
a dUfermt meaning la giv» or plainly and
necessarily Implied from the context, the
words of a statute are to be given th^r usual
and ordinary meaning. Gbapters 45 and 47
of the Code do not relate to the same sub-
ject ; the first relates to education ; the lat'
ter to the Incorporation of cities, towiut and
Tillages. They are not In pari materia. Web-
ster defines village, "an assemUage of hous-
es in the country, less than a town or city,
and Inhabited chiefly by farmers aud other
laboring people," and so far as we have been
referred to or have found other authority
on the subject, judicial or otherwise, this
definition Is universally recognized as the
correct one. In confirmation we refer to 8
Words and' Phrases, 7321, 7822. In Toledo,
W. ft W. By. Co. V. Bpangler, 71 111. 568, 569,
one of the cases referred to, it Is' said: "A
place where tluere is a station hoi^ a ware-
house, a' store, a bladksmlth shop, a post-
aOst, and five or six dwelllog houses, wheth-
er they are situated upon regulaily laid out
BlxeetB and alleys ot not, comes fully up to
tba requlrranents of a village, for the pur-
pose of eKcualnc a railroad company from
fencing its track within the limits thereof.'*
Ill Territory v. Stewart; 1 W«sh. 98^ 28 Pric.
406, -406, 8 L. B. A. 106,' anotber'case, it' Is
said: Tillages and towns, ms used In Act
Wash. T. Feb. 2, 1888 CActs 1887-48. c. laS)
antborislng tlie inoorporatiDn of towns and
TlDages, and not dcflning the meaning of the
term, will be presumed "to be ased- in Itatr
ordlnaxT acoevtaUmi, as meanlnc an aoTecs-
tloni ot Ikrases and lolubttants more or leas
compact" The record of this case shows
that plaintiff himself opened up coal mines in
or near the vUlage of -Lookout, develtwing bis
lands fia that vicinity* and by hts effioarts the
vUlage was paitlaUy- built up. These lands
and coal properties he sold and conveyed to
the Blume Oool 4 Ooke Oonipany. If he
■honid succeed in this suit on his own tibe-
ory, be would defeat one of the very pur-
poses of the statute whltib he invokes, as in-
terpreted by this court In the case above re-
ferred to. According to the evidence there Is
located In the immediate locaUty of the orig-
inal Tillage of liookout some twtive or four"
teen houses, including a churdi, blackamlth
shop, and three stores, Inhabited by sevoity
five or ^^ty people; and the new scbool
house erected near by serTes a population
of five or six hundred people, living In hous-
es near to and really constltutliv parts of
said Tillage. These houses are located near
cross roads, some on both sides of the James
Blver and Kanawha Tumj^e^ an old State
road. The town or Tillage Is a mining town
It Is true, and many of the bouses belong to
and are located on the coal company's lands,
but we Uilnk this Is one of the class of vil-
lages covereA by the statute and on Oils
ground tliat plalntlfl has no right to a re-
conveyance of the pn^er^. Bforeover, hav^
ing conveyed his farm and property to the
coal conqtany, it may be Questtonable^ wheth-
er his conveyance, n^ardless of Its ipet^al
provision re^McUiu: other lots, did not carry
with it the r^ht of reconveyance given by
the atattde. But we need not and do not de-
cide this question.
[1] But what about the affirmative relief
decreed Blume Goal & Coke Company? Strict-
ly' speaking we question whether such re-
lief was well grounded on the theory of the
cross answer that the special provision of
the deed from plaintiff to the coal company,
above quoted, gsve that right But we are
clearly of the opinion on facts allied and
admitted, that a claim and decree for af-
firmative reUef, based on the fact of the lost
deed, allied and proven, and right of resto-
ration thereof, would have been well found-
ed. On snCh a cross answer or hlU the rdlef
would have been substantially the same as
that decreol on the theory of the cross an-
swer ffled. . Wade v. Ore^wood, 2 Bob.
(Ta.) 474. 40 Am. Dec 769. FlalntUI( was
requested, before -suit, to Jala in the conv^-
anee of the board of dduoatlon to the cmI
coihpany to resbtts'that deed, and ctmiplete
the record, but deeUntd. As no costs are
decreed against Iflm on the cn^ answer, or
In relation to the ■execution of the deed de-
enoA to be ocecnted by him, or on Ms-de-
fault tfT ft commissions appointed tat tt»
purpose, and' hois not injuriously alfeetad or
pnjndleed by «aiy error ini^ae decn we
Digitized by VjOOglC
797
ue not disposed to rerene it; for any error
tbereln, In deereelng sndi 'cross lellet. '
For Uieae rauou tbe decr«e twlow wlU be
afllrmea.
06 8. a in>
TAntBT T. ZBIGI^iB.
(Bnpnme Gonrt of South Carollwa. Jmlj 8»
1W3.)
Appeal and Ebbob (S I13S*>— BKvnw.
Where appellant meks bO relief In so far
BB the merits of the case are inrotred bnt only
desires to rererBe the judsment that he may not
be compelled to pay the ootts, and no sot^rltj
ii dtea to snitftin any of his esosptloBSi the
JodKioent will be affirmed.
{EU. Note.— For otiwr cases, see Appeal and
Error. Gent. Dlf. H 4454, 446S; Dwi. Dl*. I
1186.']
Appeal from Common Fleas Circuit Ooort
ot Hanvton County; J. W. De Vore and B.
W. Memmiuger, Jodgea
Action by James C. Falrey against B. A.
Zeigler. Judgment for plaintiff and defend-
ant appeals. Appeal dismissed.
the following are the exceptions:
**(!) His bonor. Judge J. W. De Tore, erred
In bolding and deciding, on the first motttm
of tHe defendant tp vacate the dalm and de-
UTery proceedings bo^, tbat tlie notice of
motion was not snfflciently deflnlte, and In
requiring the defendant to renew aaid mo-
tion and give more speciflc grounda of the
motion; It being submitted that the said
motion papers were sufficiently deflnlte to
apprise the plalntifF of the grounds of the
motion.
"(2) That hla honor. Judge J. W. De Vore,
vttd in refualDg the second motion of the
defendant to vacate the proceedings of the
plaintiff Id this action, heard at Barnwell,
8. a, on the 25th day of July, 19U; It be-
ing submitted that the affidavit of tlie plain-
tiff, on whJch the action or proceeding for
the immediate delivery of the property was
based, was not Buffici«tt, under the law, to
warrant the taking of the property fiDm the
possession of the defendant in this: Section
No. 268, Oode of Proeedare 1912, subd. 1,
requires that the plaintiff shall make an
affidavit tliat he Is owner of the property
claimed, or is lawfully entitled to the pones-
sion thereof, by virtue of a special property
therein, the factt in respect to whicjt »7uUl
he set forth,' and this requirouent' waa not'
complied with for the reason that po' fW)t*
were eet forth on whldi be based his dalm.
"(3) Uis honor, Jndge R. W, Memmiuger,
erred in admitting io evidoiM the chattel
mortgage^ over the objection of "defendant,
for the reason that, inasmuch as the plaln-
titt liad all^d, in his affidaiit and in his
oomplaint, that he was the wcner of the-
property claimed, any evidence showing a
fascial propeftr tbenfai waa irrdevaat and
PKQjndlidaL
*H4) Hlv henoi; Judge &femmingar» anced In
admitting any aridence offered by tha plain-
tiff to show that the plaintiff bad die iW
to the posensolon ot the propert; vlrtoe
ct the Qonpaymott of a d^t secored by a
chattel mortgage from the defendant to the
plaintiff; aame being Irrelenuit nndar the
aUegati<Hi of owawahlp;
"(6) That Us honor. Judge Menunlnger,
erred In admitting any evidence, to wit, the
^lattel mortgage and the verbal testimony of
witnesses, as to the right to the immediate
possession of the propa*ty claimed by the
plaintiff, the allegation, 'and of which the
plaintiff la oitltled to the immediate poaaea-
sitoi,' being a conclusion of law merely with-
f>at stating the facts with reevect to aald
right; his honor should have exdaded all
said testimony as irrelevant
. "(6) Hla honor erred In admitting evidence
of the wltnessea Ed Newltn and jdalntlff him*
self aa to any damage p^Mwyd by tha {dain-
tifl; there being no idlagatloii In the aonh
plaint aa to damagea
"(D Hla honor erred in refualng defend*
ant's OMtion for a directed verdict in his
briialf on the grounds that there was a
total variance between the allegata and pro-
bata in this: The complaint alleged that the
plaintiff waa the awner ot the property,
Vbeceasr tha proof was tbat he merely dabn-
ed the right to .the posaaarion of the same by
Virtue of that special property glvan by the
law where the mortgager defaults in the pay-
ment of the mortgage debt
"<8) His honor eraad in refoslDg the de-
fendant's motion for a directed verdict on
the grounda that the evidence of the. plain*
tUTs own witness, aa well as tbat of the de-
fendant showed that the plalMiff had tn-
Btruoted his agent, John EameUy, tha wit-
ness refrared to, to seize the pvc^ierty, take
it out of the «onnt7, and sell it; - It being
submitted that tha plaintiff did not have the
light to take the property from tlie defendant
for the purpoae of stiling it in another oonn-
■ty than the one where the defendant resided.
"<9) Hla honor 4mA In charging the jury
that tlie idalntlff In this action aeel:* to re-
-oovar from tha defendant (CO damages In
this' action; it being submitted 4hat there
is no allegation te the complaint aa to any
daniagta claimed by the plalntUI.
"(1(Q Hie honor acred In charglBt'Qie Jury
that toaosegiWiClr, under law, the conditiona
of the mortgage being broken, the ownership
tlie pRverty beeaaae- vested itt the plaln-
tUT; It being sabmltted tbat the breach ot
tha caadlllaD M a chsttel*>»rtgnge-doea not
vest the ownteatalp ttMi-i«(^erty--in the
mortgagee but mer^ the rl^ of- the plain*
Uff to tha posaesakm of the propraty for the
lAtfpoaa •of Sidling the same in satisfaction
of the mortgage debt
•Fw «tte turn Be* bbow t9pte and. smOob ifUIUUBB in Dm; Dig. *>aa.. Sfr KsyMo^^jp^^
798
78 SOITTHBASTflBM BBPOBTBIB
(S.C.
"(11) His honor erred In cbaisbiff the Jnry,
*lf yoQ decide that a demand was made and
Zetglw Bbonld bare fiven np the mules
and neTerthdeaa has kept them, he would be
liable in such damagee as the evidence shows
that Falrey sustained bj not being able to
get poaBesslon of these mnlee, and 70a moat
decide fnoD the evidence what amount of
4am^8 70a would fix ;' it beii% snbmitted
that the plaintiff was not entitled to Bay
damages whatsoever, there being no allega-
tion In his complaint as to any damages."
J. W. Vincent, of Hampton, for appellant
Glaze & Herbert, of Orangeburg, and J. W.
Manuel, of Hamptcm, for respondent.
6ABY, 0. J. This is an action In claim
and delivery for certain mules, and resulted
in a verdict In favor of the plaintiff. The
defendant appealed upon exceptions which
will be reported.
It eeema that the appellant does not con-
template an; relief in so far as the merits
of the case are Involved, and that the sole
purpose of the appeal is to reverse the judg-
ment In order that the defendant may not
be compelled to pay the costs of the case,
for his attorney in his argument says: "If
the cost Item could be eliminated, the defend-
ant Is cheerfully willing to deliver the prop-
erty to the plaintiff or pay the debt In full."
While the defendant has appealed upon 11
exceptions, he has not dted a single d»
dslon to sustain any of them.
First exception: The appellant's attorney
did not argue this exception, wbidt la clear-
ly untenable.
Second exception: It is only necessary to
refer to the affldarit to show tibat this ex-
ceptlqn cannot be snstained.
Third, fourth and flfth exceptiona: We tail
to see whoreln the mllngs mentioned In these
exceptions were prejudicial to the rights «r
the appellant.
Sixth exception: The authorities dted in
the argnmeit of the respondmt's attorneys
clearly ahow that this exception cannot be
sustained.
Seventh exception: What has alnady heen
said disposes of this exception.
Eighth exception: It has not been nude to
appear that the facts mentioned in said ex-
ception in any respect affected tlie -rights
of the plaintiff In this case.
Ninth exertion: What has alrew^ been
said disposes of this exception.
Tenth exception: The ruling of his honor,
the presiding judge, Is fully snstained' by
the authorities cited in the aisumeDt of the
respondent's attom^s.
Bleveoth exertion: What has already
been said dlspoees of this exception.
Anwal dismlBaed.
HYDBICK, WAXTS, and VBASBB, JJ„
concur.
CK 8. C ISO
WATTS T. HSaUflTAOB OOTTON 1IILE&
(Snpieme Oonzt of South Oandlna. June 80^
1A13.)
1. Mabteb akd Sebvant (H 101, 102*)— Du-
ty OF BIastxb— Savk Puob of Wobk.
It la an employer's duty to furnish an em-
ploy« with a saie place of work.
[Ed. Note.— For- other cases, see Master and
Servant, Cent Dig. If 135. 171, 174. 178-184,
ld2 ; Dea Dig. H 101, 102.*]
2. Misnot AND Sbbtaitt (I 180*>— Mar^ a
Durr— SAnc Method op wobk.
It is an employer's du^ to furnlBli his em-
ployS with a saie method of doing bis work.
[Ed. Note.— For other cases, see Master and
Serratit, Gent Dig: H 261. 266. 278; Dec.
Dig. S 130.*]
3. Masteb ahd Sertaut a 188*)— **VZOE
Pbincipal.**
Where the superiatendent of the mill In
which plaintiff was employed placed him under
direction of A., with Instructions to do
whatever A. told him to do, A. was the master's
representative In ordering plaintiff to set a box
on end, bo as to make the master liable for in-
jury from negtigmoe in gi^ng snch order.
[Ed. Note.— For other cases, see Master and
Servant, Cent Dig. H 427-43B, 437-448; Dec.
Dig. S 189.*
For other definitions, see Words and Phrases,
vol. 8, pp. 73i8-7ftl6.J
4. Masier and Sebvant (i 149*)— Macteb's
LlABILITT — NXOUGERCK Ot ViCE PBINCI-
PAI*
If an employ^ was injured from obeying
,the negligent order given him by the employer's
representative, the employer would be liable, in
the absence of contributory n^ligence or as-
sumption of risk,
[Ei. Note.— For other cases, see Master and
Servant, Cent Dig. {$ 291-295; Dec Di*. |
149.*]
5. TBIAL ii 296*)— iNSTBTTCnOITft— CUBIVO ICk-
bob.
Any error in an employe's injury action in
refusing to charge upon whether A. and N.
were fellow servants of plaintiff was not preju-
dicial, where the court charged that if A. stood
in the place of the master in directing the work
plaintiff was doing when injored, and acted neg-
ligently in doing so, the master wfiM liable, and
also instructed that B. was a fellow servant,
and the master would not be liable for Injury
ft^ his n^ligence. '
[Ed. Note.— For other cases, see Trial, Cent
70(^718, 7111. 7167718; I>ea Die f
& Appeai. and EkBOB (I 882*)— SsroppBL v>
AlXEQK EbBOB.
Where defendant itself, in an employe's in*
jAry action, pleaded affirmatively the def«ise
that the injury was caused by a fellow serv-
ant's negligence, though it would have been cov-
ered by the general denial, it cannot complain
that the court charged that It must prove the
defenses of assumption of risk, contribntory Di-
ligence, and fellow servant's negligence, even
though defendant was not required to prove the
latter, and plaintiff was required to prove that
tiie act was not that of a fellow servant
[Bd. Note.— For other cases, see Appeal and
Errer, Gent Dig. U 3S91-S610 ; Dec. Dig. |
882.*j
7. Mastbb Aire Sebvant (I 26Q*)— Pboop^
NEGLtOEITCB Or PbIXOW SeBVAMT.
An injured employ^ was not bound to prove
that he was not Injured by the negtirence of a
•Vm •tksc oaMS wm same topic sad seatloa NDUBBB is Deo. XMg. a Am. Dig. Ksjr-No. SerlesAllV'r ¥a4«x«s
Digitized by VjOUV
s.a)
WATTS T. HERMITAGE COTTON UILU
799
fellow serrant ; that being fair tta tmpldyw to
pioTe if he relied tbereon.
[Ed. Note.— For other eaae^.iea Mactar and
Serrant. Cent IXg. U 877^^ 96S; Da& Dig.
I 265.*]
& Masteb and SnvAHT d 279*)— In JUBIXfr—
Weight or Evidsnck.
The muter miut wove by a prepcmderaoce
of the evidence, in order to authorize the jnrr
to 80 find, that the Berrant't Injuriee were caus-
ed b7 the negligence of a fdlow aemnt
[Eld. Note.— For other casea, aee Maater and
Servant, Cent Big. N 878-816, 8T8-«80; Dee.
Dig. I 279.*]
9. MASTBB and SeBTAHT ^ 280*)— IHJDUU—
AsBuicKD Risk.
Eridence held not to austain the defense of
assumed risk in an onploTe's liajnry action.
[Ed. Noto^For oilier eases, see Master and
Servant, Gent Die H 881-986; Dea Dig. i
280.*]
10. Mastbb and Sebtaht (S 281*>— Injubibb
— CONTBIBUTOBT NEaUOENCS—eDrTIOIXNOT
OF Evidence.
Evidence, in an emplor^'s action for inju-
ries, held to sustain a finding that plaintifl was
not guilty of contrlhutoir negligence.
[Ed. Note.— For other cases, see Master and
Servant Cent Dig. 987-%«; Dee. Dig. i
28L*]
3X Marsb and Sebvant (| 279*)— In^ttibibs
— SumOlBKOT OF Bvidehob.
Evidence, is an employe's injory action,
held to sustain a finding that the Injary was
not eansed by the negligence of a fellow serv*
ant
[Ed. Note.— For other cases, see Master and
Servant Cent Dig. U 973-876, 978-880 ; Dea
Dig. I 279.*]
Appeal from Common Pleas Circnlt Court
ftf ^TBbaw Countr ; Geo. W. Gage, Judge.
Action by U W. Watts asalmrt tbe Her-
mitage Cotton Mills. From a jndgmoit tor
plalntlfT, defendant appeala. Affirmed.
The fourteenth exception was to the re-
fusal to charge upon the question whethOT
Andrews and Noland were fellow aervants
of plolntlll in performing the work about
which plaintiff was engaged at the time of
his Injury, and tbe nineteenth exception was
to ^ror in charging that defendant must
proTo the defuse of assumption of risk, con-
tributory negligence, and fellow servant's
negligence by a preponderance of tbe testi-
mony, when it was Incumbent upon plaintiff
to prove that the act was that of defendant;
and not that of a fellow servant
W. M. Shannon, M h. Smith, and Laurens
T. Mills, all of Camden, for appellant R em-
be rt ft Monteltb, of Columbia, and EL D:
Blakeney, of Kershaw, for respondent
OAB.T, O. J. This is on action for dam-
ages, alleged to have been sustained by the
plaintiff tbrough tbe negligence of the de-
fendant The defendant denied the allega-
tions of negligence, and set up the defense
of contributory ne^gence and assumption
of risk on tiie part of the plaintiff, and that
the Injury was tbe result -of a risk wMdi
was Incident to his eald wnployment, by
which, it Mems, was meant the n^ligenee of
a fellow servant At the clow of the plain-
tiff's testimony the defendant made a motion
for a nonsuit, which was refused. The jury
rendered a verdict In favor of tbe plaintiff
for |1,00(X The def^dant made a motion
for a new trial, which was also refused. Tlie
defendant then appealed upon numerous ex-
ceptions, which will be reported.
Tbe first anestion that will be considered,
is raised by the thirteenth exception.
Tile plaintiff testified as follows:
"Q. The date alleged in this complaint,
about the 6th of December, 1910, where were
you working? A At the Hermitage Cotton
Mills. Q. What were you employed to do
there? A I was employed to help, at the
time, Mr. Andrews, putting up frames. Q.
Tbe morning of tbe injury what work were
you actually engaged in that morning? A.
Putting up skeleton frames; I was helping
tbem move boxea Q. Who did you say was
there; whom did you work under? A. Mr.
Andrews; working under Mr. Andrews at
the time. Q. Was Mr. Andrews present?
A. Yes, sir. Q. Now, Mr. Watts, were you
injured there? A Yea, sir. Q. I wish you
would tell the court and jury bow you re-
ceived any injury there. A. Well, we were
moving those boxes, Mr. Andrews bad us to
move the boxes from tbe back end, the first
box had to go around tbe upper end of the
frame, and come between tbe wall and frame;
as I passed Mr. Andrews I said, 'Wbere will
we put this box 7" He said, 'Set it up over
tiiere.' Q. Pointed out the place to put it?
A Yes, sir. Q. Who was bringing it? A
Us three; Noland Ballard and myself. Q.
Where was Mr. Andrews? A. Standing in
the alley, opposite between them and tbe
other frames. Q. You went up and asked
him where to put the box? A Yes, sir. Q.
And be told yon where to put It? A Yes, sir.
Q. Did you put It where be told you? A.
Yes, sir. Q. And you were instructed to aet
it up on the end? A Instructed to set it
up on the end. Q, Did you place It where he
told you? A Placed it where be told me.
Q. Now, coming down to tbe actual injury,
how ^d that occur? A After we placed tike
box up there, I steadied It; I was on tbe
other side of It, and the other two turned
off In about the same time I did, I reckon, I
think about that time; but we steadied it
good before we let It loose, where It was to
stand; I just turned around; as I turned
around, I got far enough to keep the box
from catching me anywhere, except right
here, and it knodced me down. Q. Could
this box have been laid flat down on Hba
ground? A Yes, sir; could have l>een.
rrh* Court: What you mean is on tb« aide
and not on its end?
"Mr. Mont^th: Yes. sir.
■•Q. If it had been laid that way, would
have been flat down on the floor? A Yea,
sir. Q. Could it have turned over that way?
A No, sir. Q. Wflte' yon or not IjHtructed
•ror ether csms see sua* topic snd ssetloa KUHBBB in Dee. Dtg. a Am. Dig. Kar-^oHi6^'
809
7s BourrHBASTBiui nsEo^'sm
to nt IV (m Its end? A. I wfto, Q. Ami
TOO did Mt A. Did ao; yes, sir. ^ Was
tlila Mr. Andrews the superintendent of the
mUIT A. He wu foreman of tbem frames;
lie was not snparlntaident of the mill,
Who was si^Mrlntendent of th« mlUI A. Mr.
West was superintendent of the mllL Q.
Who told work with tUs puui. Andrews?
A. Mr. ' West Q» Told yon Mr. Andrews
was there In charge of imtting np the frame?
A. Tes, sir; he pnt me with BIr. Andrews
that momlnc. Q. And told yon to do as
Mr. Andrews told yon to do? A. Tes, dr.**
H. F. Andrews, a witness for the defend-
ant testified as follows:
"Q. Where were yon at work? A> ^e
Hermitage M1I1& Q. What was yonr bosi-
ness there? A. I came here to pnt up fly
frames. Q. Did yon have any one to assist
you at that work? A. Three of the mlU-
men. Q. Was Mr. Watts one of those em-
ployed i^th yon at the time? A. Tes, sir.
Q, Who furnished yon the hands to do this
work? A. The superintendent, Mr. West
Q. Was Mr, West there while you were do-
ing this work any time? A. He was In and
out of the room. Q. Ton did that; yon di-
rected what to do and how to do It A. Tes,
sir."
Redirect examination:
"Mr. Mills: Mr. Andrews, you were asked
whether there was reason for setting the
boxes on end, and you said there was.
Why? A, Ton set them on ends, square
them around to get them out of the way to
go by with the others and give more room.
Q. Are you aiccustomed to receiving boxes of
that size and setting them up? A. Yes, sir.
Q. Was that the usual box? A. Tes, sir;
with that stuff In it Q. It la customary for
you to have those boxes set np that way, on
end? A. Yes, sir. Q. How many years hare
you been doing that? A. Thirteen years. Q.
Ton have done that in one mill, or in many
mlllB? A. Several mlUs. Q. Have yon been
doing that since that time? A. Tea, sir. Q.
It Is not a common thlpg to set those boxes
up that way? A. Tes, sir. Q, And to re-
ceive them as you have stated? . A. Yes, sir.
"Mr. Blakeney: Too say'for the reason to
move them out that's the reason that you
set them up on end; more 'liable to fall that
way than If laid down to be opened? A.
Tes; more apt to fall. If yen bad laid It
down as you did when yon took It off of
Mr. Watts, it could not have fallen on any-
body? A. No, sir. Q. If you laid It down
flat It would be a safer way so lax as fall-
ing? A. Yes, sir. Q. There was plenty of
room to lay It fiat? A. Tes, sir. Q. That
U the safest way, as flar as falling on any-
body? A. Tes, sir."
P. L. West the anperlntendoit of the mill
thus testified as a witness, for the defend-
ant:
"a Did yon hire Mr. Watts? A. Yes, sir.
Q. What bad you Ured him to do? A. Be-
fore that I had him to do ■™^t*'*i'g else.
I tamed Urn am to Vx, Andietwi^ And Mr.
Andrews gave him iBstmetUuiB. I Stut told
Mr. Andrews to tike those mco, he coold
hare them to assist Mm." .
It wUl thns be seen that P. L. West the
superintendent of the mill, placed the plain-
tiff undw the direction and ^trol of H. F.
Andrews^ with instructions to do whaterer
Andrews told him to do, and that he was
injured while carrying oat the orders of
Andrews, which rendered Ihe situation more
dangerous than If the box had been placed
<Hi its flat surface.
[1-4] It was the duty of the defendant to
furnish the plaintiff Mth a safe place to
work, and also a safe method of doing the
work. Under the circumstances Andrews
was the representatlTe of the master. In or-
dering the plaintiff to deposit the box on
end; and. If in giving such directions be
was gollty of negligence which resulted In
the plaintUTs injury, tbe defendant would ba
liable, unless the plaintiff was guilty of con*
trfbutory neglljEence, or unless the injury was
the result of a risk which be assumed. Mo-
Brayer r. Cbemlcal Ca, 89 S. a 887. 71 B,
E. 980. la that case the court said: 'rThla
case Is tUstlnguished from Martin t. Boyater
Guano Co., 72 S. C. 2S7 [61 S. B. 680], b»-
cause in that case there was no testimony
that the foreman ordered Martin to work at
the particular place at which be was in-
jured, or that he ordered him to remain
there and work after he became apprehenslTe
of danger." This exception Is orerrnled.
{V\ We proceed to the consideration of the
fourteenth exception. The record shows that
the following took place, at the dose of the
charge:
**Mr. Smith: Onr emtaitioa ia. all of
these parties were fellow servants with the
foreman, as wdl as Noland and Tom Bal-
lard, and If tber wwe fellow ewmnt^ the
Jury are to find It made no difference wheth-
er ttke fomnan ordered him or not; the
mlU la .'not to be UaUe nndu tbe dream-
stance
"The Ckrartr I made my charge in re-
sponse to yov argamait
- "Mr. Smith: We took that posltton tUn
morning."
His honor the presiding judge had idready
charged the Jury as follows: "If Andrews
stood in the place of the master— that Is, of
the mill— and directed that box to be pnt
there, and Tom put it there because An-
drews, representing the mill, told them to
pnt it there ; if you conclude that is so, and
that was a careless thing, a negligent thing ;
that a reasonably careful man would not
have done that would not have ordered a box
of that character, to be put at that place;
if yon come to that condu^on — then yon con-
clude that the mill was negligent and that Is
a matter itecnllarly for you." He also diarg-
ed aa follows: "The third defense. If 1
***** tt. argument of (^m.^^^jl^.tC
DOTBON SAVANNAH T^&k TOOD OAKKIKa 00b
m
was ft fellow ' ierrant wltif Tom Ballard—
70a know who Tom 1b, the black man. I do
not think it will be disputed, I do not tUnk
Qiat there U any dispute about Watts and
Tom being fellow servants; ^t la to say,
they were together handling the box. If
Watts came to his disaster by reason of neg-
ligence on the part of Tom, nnder the law
the mill would not be liable^ because they
would be feUow serrauts, and when Watts
went to work with Tom, he assumed that
risk; that Tom would be as careful as he
would be, and be would be as careful as
Tom." So tbat, even conceding there was
•nor, it was not prejudicial, as the defend-
ant practically received the benefit of the
regaeet.
What has already been said disposes at
the flfteentb, sixteenth, aemiteaith, and
eighteenth exceptions.
[I] The nineteenth exc^;»tlon cannot be
sustained, for the reason that the defendant
bad set up as a defense that the Injury was
caused Bty the n^Ugence of a f6Uow servant
In mcb cases the mle Is thus stated In
Boberts r. Chemical Co., 8« S. a 28S, 08 8.
BL 288: "Evldenee tending to pron that
the plalntUTs Injury was caused solely by
hla own DegllgePce> or by tiu negligence of a
fellow servant, would hava been admissible
nndn fba general denial. It was Qierefore
vnneceasary for defendants to set iq>, as an
nfl9rmatlve defense, that plalnttfTs injury
was cawed by tin negligence of a fellow
somnt. This fault In their pleadings very
naturally led the circuit judge Into the in-
advertent error of charging the jury that
the burden was upon the defendants to prove
the defense, for it was set up as an afflrma-
tive defense between the other two affirma-
tive defenses, the burden of proof of which
was upon defendants. Parties ought not to
be heard to complain, when their own faulty
pleading misleads the circuit judgei"
11, 1] Furthermore, it was not incumbent
on the plaintiff to prove that he was not
injured by the negligence of a fellow serv-
ant; and the defendant could not get the
benefit of such fact, unless It made proof
thereof, which had to be established by the
preponderance of the testimony in order to
produce conviction on the minds of the
inrors.
[1-11] All the other exceptions relate to
the suffldmicy of the facts, to sustain the
plaintiff's cause of action, or to sustain the
defense of assumption of risk, contributory
negligence, or negligence of a fellow servant,
and. as shown by the foregttfng testimony
and for the reasons hereinbefore stated, can-
not be sustained.
Judgment afDnned.
. a^Q*. in)
DOTSON V. SAVANNAH PUBB T<H>D
CANNING 00.
(Siipnme Court of Oeoigla. June 16^ ttU^
L PXJIADIlfO (I 19S*)— FaILUU to ATTAOS
COFT OF COnTRAOI^-GBOCnTD OF SEMUaBIB.
Under the decision In Lynah v. CittienB &
SoaUien Bank, 136 Qm. 844 (2), Tl S. B. 469|
If a petition sets oat tii« substance of a writ-
ten contract, it Is not demurrable because a
copy of the contract Is not attadied.
[Ed. Note.— For otiier eases, .see Pleading;
Cent Dig. II 42S, 428-185, 487-443 ; Dec
i 183.*]
2. COBPOBAXIONS (I 90*)— SlOOK BVHHWF*
HON— AcnOH— PUEAOUTG.
A petitira alleged that the platatlfl was a
corporation under the laws <^ uili state, that
on a named date the defendant sobscrUwd for
two shares of its stock of the par valae of $200
and agreed to pay that ram, that relying on
Bach sobicription, tbe plaintilf bad iacarred a
large iadebtedness, which it could not pay un-
less it collected iJl of Its stock snbecriptioDa,
and that it had made a call therefor, bat tbe
defoidant bad refused to pay. Bdd, that the
petition was not demurrable on the gronnd that
It did not allege what was tbe mintiwi™ capital
ttoA anthorixed by the charter, or that It had
been subscribed.
(a) A suit on a oontraet of subscription eon>
taming a condition preced«it whliA must be
performed before liability attaches, is not the
same as a suit on a general sobseription to
stock, in wbiiA it Is sought to defend on the
ground that the mhdnnm capital stock has not
been aobecribed.
^^^^Other grounds of danufm wars without
[Ed. Note.— For -other cases, see Corporations,
Cent Dig. H 16*, 18S, 187, 190. IM; Dee.
Dig. I 90.»]
8. Appeal aito Bbbos A 1040*)— CoapoaA-
Tioits (I 90*)— Stock Sobscbiption Con-
TBACT— FbAUD.
Where a plea attacked a contract of sub-
scription to stock as obtained by fraud and al-
lege that tbe terms sought to be enforced were
printed on a separate page of the paper, which
was folded so as to conceal diem, tiiat there
was nothing on the face of the paper as signed
by the defendant to indicate sny terms, and
that he was fraudulently led to sign a subscrip-
tion list on verbal representations and a^ree-
meets as to the terms of snbecription, such
plea was not on Its face demurrable ; and where
tbe contract was not copied In the plesdtugs,
and did not appear to have been formally before
the court on the hearing of tbe demurrer, a
judgment suBtaiuing snch demurrer will not be
rendered correct 00 the ground that by referring
to tbe ctmtract, wUeb was later latiodueed In
evidence, it showed on Its face that thwe were
printed words on tbe sheet where the defendant
elgned^ferrlDg to tbe terms on the other page.
(a) Whether this alone would require a re^
versal ia not decided.
[Ed. Note.— For. other cases, see Appeal and
Error, Cent Dig. H 408&~4106; Dec. Dig. I
1040;* Corporatioas. Cent Dig. i| 184*1811^
187. 190, 194; Dec Dig. | 90.*]
4. EviDBiTcs (i 441*)— Wumnr OonnAOV--
Chanoe bt Pabol.
Where a printed contract contained its
own terms, and on the page where a snbecriber
for stock signed reference was made to terms
set out on another sheet thereto attached. It
was not competent to plead and move a parol
contract of subscriptfon different nwreCrom ; no
HTDBICK and WATTS, 3J^ concur.
FRASBB, J., ooncura in the result ^
•fee etbw eases aee saou tepls sad aeetloa NUHBBB In Dee. Dig. * Aa. D%. Ksy-HflDiNlWlBiCttMdtU Ic
T88JL-61 C>
78 SOUTHSIASTBBN BBPOBTBB (Ga.
SOS
•nffidcDt twuwn apiwaring why th« subscriber
did not or coald not read the reference on the
page where he signed and be put on notice of
the written contract.
^fOd. Note.— For other cases, see Ifirldenoe,
Gent Djt. M 1719, IT^Vtm, 176&-184G,
2030-2047; Dec. Dl». | 441.*J
Ol GOHPOBAnONB ^ 80*) OBGAHIUTXOn —
Stock SuBsoBiPnoir-^AsnainaiTT— Mxon-
BITT.
A contract in regard to the erection of a
factory provided, among other tbinga, as fol-
lows: The first party, "until full and final
2>aynient of this contract, is a Toluntary asso-
ciation of peraoDs." The second party was a
corporation, which agreed to erect and equip
a CBDuing factory for tbe price of f8,ES0O ao<
cording to certain spedfications. The contrac-
tor was to have tbe right to receive and apply
on the contract price any partial or total pay-
BOlta ot amounts snbscribed. Stoci subscrip-
tloiiB In excess of the purndiaBe price might be
obtained, "but the total subscription shall be
held and collected by second party (the con-
tractor) until such time only as fnll cash pay-
ment has been made. * * * All remaining
snbacrtptionB or note balance, after said can-
nli^ association's entire Indebtedness to sec*
ooi party has been so paid, shall be duly as-
signed to the said corporation for a working
capital. After payment and delivery baa
(have?) been made, as above, said canning as-
sociatiott shall organiie a cooperative society
under state law, fixing aggregate amount of
stock not less than the amount subscribed there-
to, represented by stock certificates of $100.00
each. • * * The within read, approved and
executed on tiie date first written hy subscrib-
ers to the Savannah Canning Ca" Held, that
the Savannah Pure Food Canning Company,
which was chartered and organized by the sub-
scribers to the agreement above described, was
not ipso facto vested with title to the diosea
fn action arising from the s^ing of sneh agree-
ment, without any aaaignment by tiM contract-
ing company.
(a) Upon a suit by the Savannah Pure Food
Canning Company against a subscriber to the
agreement. It was not sufficient to authorise a
recovery to Introduce evidence to show that
the contractor had been fnlly paid.
[Bd. Note.— For other cases, see (corporations.
Cent Dig. II 184. 185, 187, 190, 194; Dec. Dig.
I 90.*]
6. Equitabu A8siainaNi>— Stock Subsobif-
nON CONTHACT,
Whether payment to the contractor creat-
ed an equitable assignment or right to the sub-
scription, whicb could have formed the basis of
recovery under equitable pleadings and with all
parties in interest or to the agreement before
the court so that their rights could be ad-
judicated, is not now for determination.
BtaTor from Buperior Conr^ CftwitliBni Ooon-
tj; W. O. (SiarltDQ, Judge.
Action by the Savannali Pore Food C&n-
ning CompaD7 against O. O. Dotwai. Jitdg-
meat for plaintlfl, and defendant brings er-
ror. Beversed.
Sanssy & Saussy, of Savannah, for plain-
tiff In error. Anderson, Cann ft Cann and
T. F. Walsh, Jr., all of Savannah, for defend'
ant In error.
LUHPKIN, J. The KiTannali Pure Food
Canning Company brought salt against 6. C
Dotson, alleging tbat it was a corporation
under the laws of Georgia ; that tbe defend-
ant was Indebted to It In the snm of 1200;
with Interest, for that be subscribed to two
shares of the cai^tal stock of tbe plainttTT of
the i>ar value of 1200; tliat, relying on sndi
subscription, tbe plaintiff Incurred large In-
debtedness, amounting to a^oxlmattiy
910,000, and, unless it oidlectB all the In-
MxteOaua dne to It and aid>Bcrlptiona to its
stock. It will be nnable to pay its Indebted-
ness; tbat on a date named tbe plalnttfl, by
order <tf tbe board of directory through its
secretary, made a call Cot the amount dne
on tbe stodE, and gave notice to tbe defend-
ant flierefor, and demanded payment, bat
he failed and refused to pay; and tbat by
this and almllar suits It seeks to obtain the
sums due on subsnlptlons to its stock for
the purpose of paying Its ddits. Tbe defaid-
ant demurred to the petition. The demurrer
was overruled.
The defendant sought to amend its answer.
The amendment was not allowed. Tbe court
refused to grant a nonsuit, and after the
close of the evidence directed a verdict for
tbe plaintiff. The defendant excepted.
[2] As to only two points do tbe headnotes
require any elat>oratlon. Where a contract
of subscription includes a condition preced-
ent which must be performed before liability
attaches, it has been held tbat the plaintiff.
In a suit on such subscription, must show
tbat the condition has been performed or a
readiness to perform it Thus where a con-
tract of subscription to stock provided that
the subscription should be paid in such In-
stallments and at such times as might be de-
cided by a majority of the stockholders or
board of directors or trustees empowered for
the purpose by a majority of tbe stockhold-
ers, and suit was brought on such contract
against a subscriber, and no proof was offer-
ed showing tbat tbe stockholders, directors,
or trustees had ever provided in what install-
ments the subscriptions should be paid, or
bad fixed a time or times for such payment,
or had made any call therefor, a Judgment of
nonsuit was held to be proper. North A South
Street Railroad Co. t. SpuUock, 88 G&. 283,
14 S. E. 478. It has also been held that. In
a solt on a subscription to stock which stated
as a condition of liability the receiving of a
certain amount of subscriptions, this should
be alleged and shown. But, In a suit by a
corporation against a subscriber to Its stock
on a general subscription, it has been held
in this state that It is not necessary for a
corporation to allege and prove as a part of
its case what was the minimum cai^tal stock
fixed by Its charter, and that It had compiled
with the prerequisites of the statute before
organization. If tbe subscriber sued desired
to set up that he was relieved from his sub-
scription by reason of the fact that the min-
imum capital stock fixed by the charter had
not been subscribed, or that some of tbe sub-
scriptions were colorable only, or that some
•Ver atber esMS bm mhw unUt and seetloo NUUBBB in Dm. Dls. a Am. Dig.
• UUET T. BOT All ABCANUIC
808
ot the eabscrlbers bad been leleaaed, eo tbat
the corporation in fact did not have snbBcrip-
tions for the TniTi<fn^m amount. It has been
held In thla state that this was proper mat-
tra to be set up by way of defense rather
than snch as furnished ground for demurrer;
no lack of authority or right to sue appear
lag on the face of the petition. Wood r.
Coosa & Chattooga Btver R. Co.. 32 Ga. 273
<S); South Georgia & Florida B. Co. 7.
Ayree. S6 Ga. 230 (2) ; Heodrlx v. Academy
of Music, 73 Ga. 437. See, also, 1 Boone,
Code Pleading, | 13S; McKay t. Elwood, 12
Wash. 678, 41 Pac. 919.
[I] The trial Judge refused to grant a non-
suit and directed a verdict for the plaintiff.
In this he erred. The oontract described in
the fourth headuote was not the ordinary
subscription for stock in a corporation to
be formed, payable on call of the directors,
wliere, upon the formation of the corpora-
tion, the right to collect the subscriptions
Tested in it. Branch r. Augusta Glass
Works, 96 Ga. 673, 23 S. B. 12& Here the
IHriinary proriaion was not the toimatlon of
a corporation wlilcb should then proceed to
act for Its^. But, by the terms of the
agreement* the subacriben contracted as a
Tolontaiy unincorporated association; the
snbacrUitlons were parts of a oontract wltb
the coqioratton with whUA they contracted;
It liad the ri^ to collect tbem; there was
to be no incorporation of such subscribers
until perfOrnumce of the ctrntract with the
contractor; and then the agreement was,
not tbat the title to unpaid subscriptions
should Test in the oozporatlon so formed,
bat that the contractor, after rec^Ting full
payment, would assign what was left to the
new corporation. The partiea to the con-
tract plaf»d In the contractor the title and
rli^t to collect these subscr^tions for Its
benefit, and tbey distinctly recognized that
an assignment should be necessary to dlTcst
flw contractor of such titles The agreement
waa not one In the nature of a mortgage or
Uen, where payment terminates the lien of
the mortgagee, but it was a chose in action
for which an assignment was specifically
provided. The ordinary rule as to general
subscriptions to stock In a corporation to be
formed does not ther^ore apply.
The decision of the Court vt Ai^>eals In
Blng T. Bank of Kingston, 6 Ga. App. 678,
68 S. B. 6S2, does not conflict with this rul-
ing, but harmonizes with It, so far as the
two cases are similar. It was there held
that where subscriptions to stock were evi-
denced by promissory notes payable to a
named person. In the nature of a trustee to
hold for the proposed corporation, such per-
son could sue on them for the use of the cor-
poration. How could he sue unless he had
the title? Whether the new corporation
might have brought an equitable action, mak-
ing all parties in Interest, including the con-
tractor, partiea to the cas^ and detwminlng
Its rights as well as that of the snbscrlbert
Is not before as.
As tlie uncontradicted evidence showed
tbat Aere bad been no asslgnmait to the
new corporation, tt was error to OTermle a
motion for nonanU and direct a Tordlct for
the plalntifl.
Jndgmei^ rereraed. All the ImOiem
concur.
(140 a&. 178}
BILBIY T. BOTAL ABCANUM et aL
(Snpiems Court of ISeorgla. June 17, 191&)
(Byttahiu by thg Co»t.)
1. InsDBAHCK (i 815*)— Plbadiho (S 193*)—
Parties (i 88*)— Mibjoindkb— Objection—
Petition — Sdtticixrot— Gbnebal Dbuub-
bxb.
Where, In a suit upon an insurance pol*
icy, the plaintiff sets forth the name of the in-
sured, the Dames of the beDefidariea, the amount
for which the policy was iBsued, the facts upon
which he relies to show that be was a bene-
ficiary, and aliwa also Uie death of the In-
sured, the maturity of the policy in coosequenoe
of that fact, and refers for the full terms and
prorisions of the policy to that instrument it-
self, which he alleges to be in the possession of
the defendant, such jietitioa will be construed
to be a suit iavolvlog liability upw a policy
of insurance.
(a) It should not have been dismissed upon
general demurrer, no spedsl demnrror hanng
been filed, upon the ground tbat a oopy <j the
policy was not attached.
(b) Btcu if there was misjftoder ct parties
and causes of actlcm, this shoald hSTs been
raised by tpedal demurrer.
[Ed. Note.— For other cases, see Insurance
Cent Dig. 8S 1996-1998; Dec. Dig. 1 8157*
Pleading. Gent Dig. |i 426, 42&-^ ^7-448;
Dec I 193:* Psrtles, Cent Dig. H 14fr-
147; Dec. Dig. I 88.*]
2. iKSuaANOK ({ 816*)— PmnoN— DncuasKB.
The allMations in tbe petition not showing
tliat the policy sued on la other than an ordl-
naiT insurance policy, it will be treated as
such as againaf a general demurrer.
(Ed. Note.— For other cases, see Insotanoek
Cent Dig. SI 1996-1998; Dec Dig. | 816.*]
3. Qcxsnoii Not DRBuainD.
Inssmudi as tite Judgment of tiui court b»>
low is reversed upon another aas^ment of er-
ror, it is unnecessary to pass upon tbe question
raised by the exception to a refusal of the
Goort to give counsel time to prepare an amend-
ment to tae declaration.
Brror from Snperlor Gonrt, Folton Oonn-
ty; J. T. DPendleton, Judge.
Action hy 3. "L. BXley against Bobert BL
Biley and the Bc^al Arcanom. Judgment
for defendants, and plaintiff brings error.
KeverBed.
J. L. Biley brought suit against Bobert E.
Biley and the Boyal Arcannm, alleging tbe
latter to be "an assessment insurance com-
pany." It Is alleged In the petition tbat the
Insurance company, 10 years previously to
the filing of tbe suit, issued to £X S. Biley a
policy of insurance, wherein it contracted
•Tor otbsr eases MS SUM toDie sad a«>UoB NUHBEA to Dec. Dig. a Jtt. Dig. Kev-NoflBMiS
it (M^tracted
78 SOtPTHBASTSBM REPOBTOB
and agreed to pay **to the beneflclarlee desig-
nated by B. 8. Riley tbe nun of |3,000 mxHt
the death of BL S. RUey.** For the terma
and proTtBiona of said polli^ plaintiff refera
thereto, and says that said policy ta In pos-
session of one of the def^danti, and that Its
fuD terma and conditions are known to both
of them. After the Issuance of the policy
EL S. Riley, not caring to oontlnne paying as-
sesameuts and dnes thereon, agreed with
plaintiff and defendant R. SL Riley (J. L.
and R. B. being sons of B. 3. Riley) that if
plaintiff and R. S. Ril^ would pay snch as-
sessments aa should become due thereaft^,
upon maturity of said policy the same should
belong to and be paid to plaintiff and Robert
B.; "that said policy was issued to read
payable to J. L. Riley and R. E. Rlley, bene-
fldarlea." Plaintiff and R. E. agreed between
themselves and with E. S. Riley to make pay-
ment* of the assessments and dues that
might thereafter become due on the policy,
and that tbe policy was "rewritten or
changed" so aa to be made payable to plain-
tiff and R. B. BUey, and that from the date
thereof plaintiff haa paid each alternate
month the dues and assessments on tbe pol-
icy, and R. B. Riley has paid each alternate
month the dues and assessments, so that the
two benefldarlra named have complied with
th^ contract and made payments of dues
on aald policy up to the death of B. 8. Riley,
who died about April, 1911, and after his
death proof thereof was duly made to the
company. And it la all^ped that tbe snm of
18,000, the amount for whidi policy was
lanied, became due and payable to plaintifl
and B. D. Blley. Jointly. It la charged that
OB or about the 14th di^ of Augoat, i&lO,
ttie policy waa dianged aa to the benefld-
arlea, so aa to make K. B. BUey tbe sole
benefldary, and plalnUff, not having posses-
sion of the papers and docnmento through
and by which aald change was made, cannot
(orther aet them out, but aald papers and
documents are in the possession of the de*
tendants, or one of them, and th^ are folly
familiar with the contents thereof. It is
diarged that the defendant Royal Arcanum
had notlc« and knowledge of the contract be-
tween B. S. Bitey, R. B. Riley and plaintiff,
and had notice and knowledge that plaintiff
had a one-half interest In said policy, and
that plaintiff was paying one-half of th^
prfflnloms and assessments due thereon; tliat
plaintiff did not know until after the death
of E. B. Blley that the change was made
as to the beneficiaries, and continued to pay
half the dues, assrasments, and premiums
due on the policy; that having made a valid
contract by which he was to receive one-half
of the policy, he Is entiUed to recover that
amoxmt, even if the beneficiaries have been
changed; that the defendant insurance com-
pany has recognized its obligation to pay
said sum, but denies the right of the plaintiff
to zecover hla one-half thereoL The petition
was dismissed upm general demurrer, and
plaintiff excepted.
Watklns & Latimer, of Atlanta, for plain-
tiff In error. Doraey, Brewster, Howell *
Heyman, of Atlanta, for defendaiitB In enw.
BECK, J. (after stoting the facts aa
above). [1J 1. Considering all the allega-
tions In this petition, we are of the o^nlon
that it was a suit upon an Insurance policy.
It sets forth the name of the beneficiaries,
the amount due under the poUcy, allies that
the Instrument Is In the bands of the de-
fendants, and for all the terms and provi-
sions of the policy refera to the Instmment
Itself. It also alleges the death of the In^
sured, the submission of proof of the
death, and that the snm for wlilch the policy
was issued became dua But we do not think
tiie petition should have bem diamlased npmi
genera] demurrer, vpon a fallnre to oon^ly
with the proTlslona of seetlai SSH «f tbe
Code, requiring tbat a copy of tbe wtttten
contract or other writing sued upon shall be
attached to the suit Sndi an objaetion to
the sufllclency.of the jietitlon ahonUI lutTa
been raised by apedal demurrer, and conM
not be elVectively ralaed by a motion to dl»
miss to llie natnre of a fenml dannmr at
the trial term.
Nor should tbe general demurrer have
been sustained on tbe ground that there waa
a mlajolnder of parties or canaea of action.
An objection of this character ibonld Uke-
wlae be ralaed by special demuner at tbe
appearance term.
[2] 2. The mere faxt tbat tbe petltlfm re-
fers to the payment of assessments and dues
by himself and the other par^ alleged to ha
a beneficiary, and the allegation that tbe
policy was payable to the ben^darlea to be
named by the Insured, when consldraed In
connection with the allegation that, after
the agreement between himself and his fa-
ther and his brother, to the effect that If he
(the plalntiCF) and his brother would pay the
dues and the assessments, tii^ should be the
beneficiaries in ttie policy, and the policy was
issued so as to read payable to J. Riley
(the plaintiff) and R. B. Rll^ (one of tbe
defendants), are not sufficient, upon general
demurrer, to authorize the court to treat
the policy as one other than an ordinary
life Insurance policy, and to hold that it waa
merely a benefit certificate to a fraternal
beneficiary society, wherein the beneficiary
could be changed at will by the Insured. The
Instrument sued upon is alleged to be a pol-
icy of Insurance; and, to tbe absence oT aU
lotions to the contrary, upon general de-
murrer it will be considered an ordinary pol-
icy of insurance, In which the beneficiaries
named had a rested interest, espedaUy to
view of the fact that they had paid the pre-
miums thereon. If it had been shown by
the petition that what Is called a policy of
Insurance was a
. HUKT t, IiATJERDBK
805
In a fraternal ben^ctary sodetr, a dlflenvt
-QKestioii would lUTS IweD ralBeO.
[3] 8. InasBwch u ttte jodgment of tbe
ooort below Is rereroed upon another aait^
ment of error, U la anneaeasarr to pasa vpon
tbe qneetion. zalaed by tbe exception to a re>
tual vt tbe court to cive eoonsel time to
prvare an amendment to .tb« declaration.
Jvdcmeikt lerersed. AU tbe Jnsticca oon-
cor.
CHO 0«. 167)
HUNT et aL T, ItATENDBB «t aL
(Supreme Oonrt oC Qeocgla. Jane 16^ 19180
1. DBaoaifT AlTD DieTBIBDTXON (| 90*>— Ao>
TIOK BY HBIBS— ETTDBKOt.
The court charged the jury as follows: "I
dtane too If you believe that this land tmed
Cor in this caae was the dower lands of Mra.
EUza Lavender, and. that she died in 1911, and
tbe plalDtiffa were the heirs and legatees of Dr.
J. S. Lavender, they are entitled to recover, nn-
kss aome legal rcasoo is shown to tbe con-
trary." Thte charge was not accurate. Elri-
dently by the enumeration of certain facts and
the statement that upon these focts being made
to appear the plaintiffs would be entitled to
recover, unless some "legal reaaon" was shown
to tbe contrary, the court meant that, upon
proving the facts enumerated, a prima facie
ease in favor of the plBinfiffs would b« made
which would authorize tiie recovery unless re-
bntted by evidence; and the facta enazDerated,
even if established by evidence, would not of
themselves have made a prima facie case In
favor of tbe plalntifFs.
[Ed. Not«.~iror other cases, see Deatent and
Distribution. Cent Dig. fiaSl-SSS, 868-381;
Dec Dig. |90.*]
2. ExKcunoH (I 142*) — EzcBssm lAvr —
What Cokstituixs.
The court's charge that "an excessive levy
ll where an officer levies on more property than
ia necessary to discharge the liens in nia lumda,
with ooatBT contains a construction of the ex-
pression "excessive levv" that la too restricted,
and one which, under the'facts of this case, was
liable to be ntiaDDderstood by the Jury, in the
absence of aS' explanation that tbe levying offi-
cer exerdaes a certain discretion and abomd be
allowed a reasonable margin between the exact
value of the property levied on and the amount
of the execution in his bands, or aoma other ex-
planation of a aimllac purporL
(a) A similar criticism might be made of tbe
following charge of tbe court: "I charge yon
that a aberitt or other officer cannot raise by
execution sale a greater amount of money than
by tbe writ be is commanded to make with
o5st"
[Ed. Note.— For other cases, see Execution,
Gent. Dig. §8 S5&-863; Dec. Dig. f ■142.*]
8.' JtrDOURT (i 23S*) — JOZRT Aonov — Bi-
OOTEBT BT OWI PaBTT.
This waa an action for the recovery of
land by several coplaintldh; and, there being
aome evidence authoriaing the jury to find that
one' of the coplaintiffB did not own any inter-
eat in the lands aued for and was not entitled
to recover, upon request the jury should have
been instructed to pass upon the Question aa to
whether that plaintiff waa entltteo to recover in
thla action, and aboald have been directed, in i
the event they found he waa not entiaed to I
recover, to find against the other plaintlfh. The
cburt refuaed a written request to charge omei^
ins this lssae» and the refasfl waa errw.
fa) There was no error In refusing to give the
other writtni requeats under the ruUngs In (he
cases of Bicbarda v. Edwardy and Faninger T.
Edwardy, 138 Oa. 680, 76 S. E. 64.
[Bd. Note. — For other cases, see Judgment,
Cent Dig. 88 414, 429; Dec. Dig. I 285.*]
4. Etwkkce (88 165, 472*>-BEBr and Sio-
OITDABT— OoNCLITBIOmi.
In the progress of (he trial, J. 8. Lavender,
one of the coplaiotiffs, was asked the following
questions: "Q. Isn't it a provision of the will
that as the children became of age thev were
to get Guix ahare of the eatatet Ana. Zea, dr.
Q. Ton got yonraT Ana. Te^ t&r." Thia evi*
deuce, upon motion of plainttUb* counsel, was
excluded. In excluding it the court did not
err. Tbe first anawer atated a fact of wUdi
there waa higher and better evidence. And the
flxst as well as Uie second answer stated eon-
cluaionB of the witness which depended upon a
construction of a will, and that constmctlon
waa matter for tbe court to deal with.
[Ed. Note.— For other caaea, aee SMdaMa^
Cent. Dig. 88 Me-^. 2186-2196. 2248; Dec
Dig. 18 165, 472;>J^
Error from Superior Oonrt, Pike Conntr;
B. T. Daniel. Judge.
Action by S. J. Larender and others
against T. J. Hunt and another. Judgment
for plalntllEa^ and - tbe ^flendant named
brings error. Beversed.
E. 7. Dnpree^ of Zebalim. andB. J.Beagaii,
of McDouough, for plaintiff in error. J. F.
Bedding and O. J. Lester, boUi of Baiiu»
TiUe, for defmdants la error.
BECK. J. S. Lavender and seTon other
parties, aU^ng that tbey are belrs at law
of J. S. Lavender, deceased, and ,that they
are legatees under tbe last will and testa-
ment of tbe decedent, and alleging also that
the administrator of the estate of the de-
cedent gives bis consent to the bringing of
the salt, filed their petition against Thos. J.
Hunt and John Jenkins for the recovery of
certain lands, which it is alleged the dece-
dent was seised and possessed of at tbe time
of his death, and which was subseaud^tly
duly set apart and. assigned to Mrd. Eliza
Lavender, the widow of the decedent, as
dower. The widow died In the year 1911,
and after ber death In the same year the
suit was brought. During the life of the
widow the reversionary Interest in the dow-
er lands sued for had been s<^d under ex-
ecntions against the administrator of the
decedent's estate, and It Is claimed by the
plaintifls that the value of this interest was
largely In excess of the executions against
the estate and that tbe sale thereunder was
absolutely void. The defendant Thos. J.
Hunt filed his plea and answer, admitting
that he was In posseBsiou of the lands sued
for. and asserting that be had title thereto.
Tbe jury returned a verdict for the plaintiffs.
The defendant made a motion for a new tri-
al, wblcb was overraled, to which judgment
tbe movant then excited.
•For other oaaea sea ■amo topic and Motion NVUBER m Dee. Dig. a Am. Dig. Ker-N<f iUHif'^
TB SODTHBASXBBIf BBFOBTIIB
[1] 1. Ttae following charge of tbe court Is
excepted to: "I charge yon If yoa believe
tbat this land sued for In this case was tlie
dower lands of Mrs. EUsa Larender, and
that she died in 1911, and these plaintiffs
wwe the heirs and legatees of Dr. J. S.
Lavender, tliey are entitled to recover nnless
some legal reason la shown to the contrary."
This charge was not strictly accurate. It Is
ajwarent that the court failed to som np all
the facts which were necessary to constitute
a prima Ada case In favor of the plalntUTs,
and wha the court said that, if such and
gach tacts appeared, plalntlffB would be en-
tiOed to recover, unless a "legal reason to
the fiontrary" was shown, it meant that a
prima fade ease would be made In &vor of
the plaintiffs when the facts enumerated
were established by evidence or admitted in
fl» lOeadtngs; and merely to prove that the
patitlonerB were YuAta at law and l^tees
under the will of the decedoit, without show-
ing that they were all of the heirs at law, or
tiiat by the terms of the will th^ were the
only legatees having an interest In the land
med for, would iu>t authorise a recovery of
the entire intezeot in the property sought to
be recovered.
(2] 2. The court charged the Jury that "an
excessive levy is where an office levies on
more property than is necessary to discharge
the lien in his hands, with costs." This
dliarge is not strictly accurate. The jury
might have understood such instructions to
mean that any excess value of the property
over the amount of the liens and the costs
would render the levy excessive and void;
whereas tbe officer making the levy is allow-
ed a reasonable margin — we might say, a
liberal margin, between the amount of tbe
writ which he Is seeking to have satisfied,
and the value of tbe property levied upon
(Roser V. Georgia Loan A Trust Co., 118 Qa.
ISl, 44 S. B. 994) ; and especially In a case
like this, where tbe properly levied upon was
a reversionary Interest in the land, of which
the purchaser could not obtain possession
until the death of the life tenant See in
this connection 2 Freeman on Executions, p.
412, and casee cited; Tleruan v. Wilson, 6
Johns. Ch. (N. T.) 411. A similar criticism
might be made of the following charge of the
court : "I charge you that a sheriff or other
officer cannot raise by execution sale a greats
er amount of money than by the writ he Is
commanded to make with cost" While this
charge Is in the exact language used In the
fourth division of the opinion In the case of
Parker v. Olenn, 72 Ga. 637, It is only a part
of the sentence, and tbe context leaves no
doubt that the officer In making the levy is
allowed to exercise a sound discretion, and is
glvm some mai^.
[S] S. This was a Joint action for the re-
covery of land ; and, if the evidence showed
that ona of the Joint plaintiffs could not re-
cover, then none could recover. Shaddftx r.
Watson. 130 Oa. 764, 61 a B. 828. Tinder
the evidence there seems to be some doubt as
to whether J. S. Lavender, one of the Joint
plaintiffs, bad received his share of the es-
tate, and having received it was therd>y ex-
cluded from any further participation in the
subsequent distribution of the remainder of
the estate. He testified that he had receiv-
ed 100 acres of the land of whldi his ffttber
died seised and possessed, the entire acreo^
of land belonging to the estate amounting to
some 800 or 900 acres, and wheUker this 100
acres which the party last referred to re-
celved was his entire share of the estate of
his father, or only fata part of it ezdndve of
the interest In the reversion of the dower
lands, may be made deara upon the next
trlaL Bnt Uie Qtiestlon as to whether or not
J. 8. Lavender had any fnrOier Interest In
the estate was one for the Jury, and the
court should therefore have glvoi in charge
the following written request : "If you be-
lieve from the evidence that the plaintiff J.
S. Lavaider had his share of the estate of
J. S. Lav^der, deceased,- that was coming to
him under the will, and be received the same
and applied the same to his own vae, he
would not be entitled to recover in this case,
and, if be cannot recover, none of the plain*
tiffs can, and yoa should find for the de-
fendant" The other reQuests to diarge were
properly refused. The propositions of law
contained In them are ruled in the cases of
Richards v. Edwardy, and Farllnger v. Bd-
wardy, 188 Oa. 600, 76 9. B. 64.
[41 4. In the progress of the trial J. S.
Lavender, one of the coplalntute, was asked
the following questions: "Q. Isn't it a pro-
vision of the will that as the child became
of age they were to get their share of the
estateT Ana. Yes, sir. Q. Ton got yours?
Ans. Tes, sir." This evidence, upon motion
of plaintiffs* counsel, was excluded. In ex-
cluding it the court did not err. The first
answer stated a fact of which there was
higher and better evidence. And the first
as well as the second answer stated condn-
slons of the witness which depended upon a
construction of a will, and tbat construction
was mattw for the court to deal with. This
was not an effort to show that the witness
had settled with the legal representatives of
the estate and accepted that portion of Uie
land which they showed he had received as
being In full of all his claim against the es-
tate, Including any interest in the dower
lands, 80 tbat in no event would he have any
further dalm on the estate; but, when tbe
two questions are taken together, they
amount merely to asking tbe opinion of tlw
witness as to what the will authorized him
to receive, and whether be had received what
was BO authorized.
Judgment reversed. All the Justices cen-
Digitized by Google
ICOBOAK T. BTATX
807
a« Gta. Htt)
MORGAN T. STATU.
(Siq^reme Coart of Gcoriia. Jane 17, 1918.)
1. ImoncATiNe I^iquobs CI 16*)— TAunon
— Unifobmitt— Soft Dbihss.
Section 7 of the general tax act oi Ai-gii>^
16, 1909 (Laws 1909, p. 62; Code 1010. «
983), imposes a business tax of $1,000 for each
place of business on every person who main-
tains a place of business in tlUs state where
beverages, drinks, or liquors in imitation of
or intended as a substitute for beer, ale, or
wiB« or vrhiskr, or other alcohoUc. spirituous,
«r malt liqnors "are kept for sale or diitriba-
tioD, or are sold in vrholesale Quantities." The
tax above mentioned is enforceable whether
the person maintaiaing the place of business
owns the goods whit^ are kept or sold, or deals
with them as agent for another, or whether the
goods be manufactured in this state, or beyond
the limits of this state. So much of the act
as has the effect stated is not violative of the
uniformity clanse of article 7, S 2, par. 1, of
the Constitution of this state.
(a) But superadded to what is stated above,
section 7 of the general tax act, antkra, at-
tempts by a process of dasrification to impose
a different and greater tax on persons main-
taining a business of the character mentioned if
the goods handled at sacfa place of business are
manofaetared beyond the Umits of this state.
So macb at the act as seeks to impose a great-
er tax where the goods handled are manufao-
tured beyond the limits of the state is obnox-
loos to that part of the Constitution above men*
tioned, and is void.
[Bd. Note.— For other cases, see Intoxicatinfc
Liquors. Cent Dig. {| 19, 20; Dec. Dig- 1 16.*]
2. COWBTITUTIOWAUTT OF STATUTE.
OmittiDg the part of section 7 of the gen-
eral tax act which in the preceding headnote is
held to be oncoostitational, the balance of sec-
tion 7 iu not violattre of ^ther of several oth-
er constitutional provisions specified in the
gnestions propounded by the Court of Appeals,
and whether section 7 of the act would be vio-
ktive of any of snch conatltntional provteiona
If the part thereof which is held to be nncon-
atitntional were not eliminated need not be de>
elded.
Certified Qneatlons from Court of Appeals.
Proceedinga by the State against J. H.
Morgan under the statute Imposing a liquor
license tax, and Morgan brought error to the
Gircoit Conrt of Appeals, which court eertl-
fles a constitutional question to the SiQtreme
Court Answered In opinion.
The Court of Appeals has certified to the
Supreme Court the following questions:
"1. Is section 7 of the general tax act of
the General Assembly of the state of Geor-
gia, approved August 16, 1900, as codified
In' Code 1010; | 988| «von whl<3i the spe-
dal presentment In this case was founded.
In conflict with paragraph 1 of section 2 of
article 7 of the Constitution of the state of
Georgia in that: (a) The act Imposes a li-
cense and special tax not uniform upon the
same class of subjects; (b) it imposes a
.greater tax upon persons maintaining 'a sap-
ply depot, warehoase, distributing office, or
other place of business within titils state'
where 'any hererage, drink or Uquor In Imi-
tation of, or Intended as a substitute for
beer, ale, wine or whisky, or other alcoholic,
spirituous or malt liquors,* manufactured by
nonresident manufacturers, is kept for sale,
than is Imposed by the laws of this state
upon persons engaged In the sale of like prod-
ucts of resident manufacturers; (c) the tax
required by this act is a discrimination
against such dealers handling the products
of nonresident manufacturers* and in favor
of such dealers handling the products of
resident manufacturers?
"2. Is the said act In conflict with the four-
teenth amendment of the Constitution of the
United States in that: (a) The act imposes a
greater tax upon persons maintaining 'a sup-
ply depot, warehouse, distributing office, or
other place Of business within this state'
where 'any beverage, drink or liquor In imi-
tation of, or Intended as a substitute for
beer, ale, wine or whisky, or other alcohoUci
^IrituoQS or malt liquors,' manufactured by
nonresident manufacturers, Is kept for sale,
than Is lmi>osed by the laws of this state upon
persons engaged in the sale of like products
of resident manufacturers; (b) the license
or tax required by the act Is a discrimina-
tion against such dealers handling the prod-
ucts of nonresident manufacturers, and in
favor of such dealers handling the products
of resldrat manufacturers?
"S. Is the said act In conflict with para-
graph 8 of section 8 of article 1 of the Con-
stitution of the United States in that the act
attempts to discriminate in favor of products
of manufacturers of other states?
"4. Is the said act In conflict with para-
graph 1 of section 2 of artlide 4 of the Con-
stitution of the United States In that: W
The act denies to citizens of other states
privileges and immunltlet granted to citi-
zens of the state of Georgia; (b) a greater
tax la thereby Imposed vjfoa tiie sale of prod-
ucts of manufactarers of other states than
is imposed upon the sale of products of man-
ufacturers of the state of Georgia; (c) the
act Imposes a greater burden vjftm ttie sale
of products of manufacturers of other states
than Is imposed upon the sale of like prod-
ucts of manufacturors resident In the Mate
of Georgia, and thereby discriminates In
ttivot of manufacturers resident In the state
of Georgia and against manufticturers rest-
dent in the other states of the United States;
(d) a greater tax Is thereby imposed upon
persons sellbig at wholesale products of man-
ufacturers not residing in this state than
is imposed opon persons selling products of
manufacturera resident in the state of Geor-
gia r
A. D. Gale and H. F. Dunwody, both of
Brunswick, tor plaintiff In error. J. H.
Thomas, SoL Gen., of Jesup, for the State.
ATKINSON, J. [1] Section 7 being that
part of the tax act which is atte(±ed as be-
•ror atasr oases am ssms topis ssd ssetton MUHBBA in Deo, DIfr ft Am. XMs. Kvr-Hft^RtBSW^
806
TS SOnrHBASTJUtN &BPORTBR
Inr vnconatltatlonal, refers to tbe enbject
of deaUng In certain commodltlea "referred
to In the preceding section." The things so
referred to are "any beverage or drink or
liquor In imitation o^ or Intended as a snb-
stitnte for beer, ale, or wine or whisky, or
other alcoholic, spirltnons, or malt liguors."
"The preceding section'* makes It mandatory
fbr persons mannfactarlng such commodities
In this state to obtain from the ordinary of
the county where the business is carried on
a license at a cost of $1,000 for each place
of business. This much having been said of
aectlon 4, or "the preceding section," section
7 may the better be tmderatood. It la aa
follows:
"Every person, firm, or corporation who
shall maintain a supply depot, warehouse,
distributing office, or other place of baslness
within this state where such beverages*
drinks or Uquora refared to In the preceding
section are kept for sale or distribution, or
are sold in wholesale quantities, that la to
say, In quantities of more than five gallons^
and each and every agent or representative
of each separate non-resident manufacturer,
manufacturing firm, or manufacturing corpo-
ration of any such beverages, drinks or liq-
uors, and each person, firm, or corporation
handling tiie product of such non-resldmt
manufacturer, manufacturing firm, or corpo-
ration, and keeping for sale or for distribu-
tion or handling and artUogt any nudi drinks,
llqnora, or beverages In this state In whole-
sale quantltlefl as aforesaid, shall obtain a
license so to do from Uie ordinary of ttie
conntr wherein sneh supply depot; ware-
bonsa or dlstrlbotliv office or other place of
bufllnesB by wholesale la located, and shall
paj for aald llcenae the earn of one thousand
dollars for eadi calendar year or part there-
of for each audi place of wbcdesale business
In this states Tta said agents or represents-
tlvea of non-resident manufacturers of eudti
beverages, and persons handling and selling
tqr wholesale the product of such non-rebl-
dent manufacturing i>ersons, firms or corpo-
rations, shall obtain and pay for a separate
license for each separate non-resident person,
firm or corporation represented by them, or
whose product Is handled by th^ in whole-
sale quantltiea."
In its arrangement the language la some-
what confusing, but properly construed sec-
tion 7 requires a business tax of f 1,000 on
every person who maintains a place of busi-
ness In this state where beverages, drinks, or
liquors in Imitation of, or intended as a sub-
stitute for beer, ale, wine, or whisky, or oth-
er alcoholic, qdrltuous, or malt liquors "are
kept for sale or distribution, or are sold in
wholesale qtuntltles.*' Tlie tax la on the
business, and applies more definitely to the
place of bnalnesa. If one person maintains
but one place of business he pays one tax; U
he maintains more, he is required to pay a
correspondlBgly greater number of taxea
That a person maintaining such a place of
business might own the goods which are kept
or sold, or might deal with them as agent for
another, or that they might be manu&ctured
within this state or beyond the limits of the
state, would not affect his liability to pay
one tax for each place of buslnesa maintain-
ed by him. But superadded to all this, the
act attempts by a process of dassiflcation to
put places of business where goods of fordgn
manuftctnre are dealt with on a dlfTerent
footing from those manufactured within tbe
limits of this state. Relatively to the former,
the amonnt of tax to be paid must depend on
the number of manufacturers whose product
is dealt with, one tax of $1,000 being required
for handling the product of each nonresident
manufacturer, so that one place of bualiieaB
might be lazed at 91»000 or 910,000^ accord-
ingly as the product of one or ten nonresi-
dent manufacturers might be handled. Rel-
atively to the latter, there Is one tax for
the place of business, but no additional tax
where tbe goods handled are tb» product at
several manufacturers. la tUa Instance
tbwe could be but $1,000 tax for one place
ct bnslnesB. The dUferenoe in the tiro la
palpable^ The thing sou^t to be ta»d wu
the business of maintaining a place for tbe
sale of or keei^ng for sale or ^stribntion
tspedSloA articles. Tiie articles were the same,
and the character of dealing with them warn
the sama It was set a ttse cX taxing two
separate chuses of tmdness, but one where
It was sought to impose dlffermt taxes on a
particular class of businesses. This would
clearly C(mtraTene the uniformity clause ot
article 7, 1 2, par. 1, of oar Constltatlon. See
Mutual Reserve As^n v. Augusta, 109 Ga.
79, 36 8. E. 71, and cases there dted. to
which may be added Oould v. Atlanta, 5S
ok. 678, which deal with the subject of clae-
slflcatidn of bnsineBses for the purpose of tax-
ation. It foltows that so mndli of section T
as would authorize a tax of more than ^1,-
000 <Hk one place of business la void. But we
do not think that the part of the act which
we have held to be void becanse anconstita-
Uonal Is so Interwoven with the other parts
of the act, or that It forms such an essen-
tial part of the legislative scheme for taxing
places of business of the class referred to
in the act that its elimination should have
the effect of destroying the entire act With
the objectionable proviaiona eliminated the
balance of the act would merely Impose a
tax of (1,000 on each place of business of .
ev^ person maintaining a place of the
character contemplated by the act There
would be no lack of uniformity In that part
of the act It follows that in response to
the first question propounded by the Court
of Appeals we answer that in so far as tbe
act seeks to authorize the Imposition of a
tax of more than $1,000 on one place of busi-
ness it Is violative of ttie provisions of the
ConstttottoB abow,
BiaUAH T. HAWKINS
It Imposes a tax of $1^000 on «adi tfan
of business It la not nnconsUtntional.
[2] 2. Omitting the part of section 7 which
ts b^d to be oneonstitntlonal, ttae balance of
act left standing la not Tlolatlve of any
Of the consUtatlonal provisions spedfled In
succeeding queetlons propounded by the Court
of Appeala, and it Is unneceasary to decide
whetber section 7 wonld violate them If the
omitted parts bad not bran eliminated from
tbe act All the Justices, concur.
(UO oa. 131)
BIGHAM V. HAWKINS.
(SnpreoM Court of Georgia. ITnne 18. 1918.)
(SvUabiu bv the 0«urU
1. Bale of lAno— Rsscissioh or Oovruox—
KBAun.
Properly eonstmed^ tbe allegations of the
petition on the subject of fraoa were insnffl-
dent to support an aetim for readstfon.
(A4diiionul Svttaiua ^ SmorM Btaif.)
2. FUDD (I 84*)— OoNDiTions Pbsciosht to
Action— RxBCXsnoN of ConrBAOT.
Where a vendee sued for resdsslon and to
recover damages because of fraudulent repre-
seatatiODB, a money Jadsment could not be re*
covered until there bad been a resdsaion.
[Ed, Not«.— For other cases, see Fraud, Cnt
Dig. S 20; Dec Dig. | 84.*]
8. Vendob and Pubohasib (I 118*)»BXPBI-
SBNTATIONS— GONBTSUCnOR— FAIfflTT.
Wbere a vendor represented that the wa-
ter on the idace was good and pure, such rep-
resentatton should be construed as relating to
the quality at tba wdl water on the place gen*
erally aoa was tberfifore not falsified by the
fact that a single well contained much animal
and impure matter, which might have been
brought about by nonnae or insufficient cleans-
ing.
[Ed. Note.— For other cases, see Vendor and
Pnittfaaaer, Cent. Dig. & 2aiiDeo. Dig. ( 113.*]
4. YBKDOa AND P0BCHAaEB (| US*) — CON-
tract^Falbb Beprksbntation— Fraud.
Where a vendor represented that he had
done a good deal of ditching, that the land was
porous, and that no water would pond on the
place, and it appeared that six months after
tbe first contract was made a modified contract
wa^ entered into, and that nine months there-
after, when there bad been excessive rains, it
was claimed that water did pond on a portion
of the land, such facta were insufflcleot to show
false representations snffident to justify a re-
sdssion.
[Ed. Note.— For other cases, see Vendor and
Purchaser. Cent. Dig. { 201 ; Dec. Dig. | 113.*]
Error from Superior Court, Sumter Coun-
ty; Y. A. Llttiejobn, Judge.
Action by B. D. Bigham against C. 0. Haw-
kins. From a Judgment of dismissal on de*
mnrrer. plaiotin acepted and bringi vror.
Affirmed.
B, D. Blgham Instituted an action against
C. C. Hawkins. The petition contained al-
legations of fact relied on to state a cause
of action,, and concluded with prayers for:
(a) Besdssion of contract; (b) recovery of
a money Judgment for tbe amount paid on
the purchase pdce; (e) for process; (d) for
such other and farther e(inl table relief aa tbe
facts and drcamstances might antboTb&
Tbe action was foonded on two written la*
stnunents, both of whidi were aigned in
dopUcmte by the revectlTe parties and set
oot In the petition, one batng dated fifay 26,
1911, and tbe other November 28, 1911.
Omitting tbe formal parts, they were as fol-
lows :
(1) "Wltnessetb : That the said B. D. Slg-
ham has this day bargained with C. 0. Haw-
kins for the purchase of the following de-
scribed land in Snmter county, Ga., namely :
Lot of land No. (107) In the 27th district con-
taining 202% acres, more or lees; also east
half of lot of land No. (108) in tbe 27th dis-
trict containing 101^ acres, more or leas,
whole aggregating (303%) acres, more or
less.
"The said E. D. Bigham has tills day paid
to said C. 0. Hawkins five hundred ($500.00)
dollars in cash on the purchase of said
land, and It is agreed that said B. D. Big-
bam vrill pay to the said 0. C. Hawkins tot
the balance of the purchase money on said
land tbree thousand (83,000.00) dollars on tbe
Ist of October, 1911, and fourteen thousand
(814,00a00) doUars on the 1st day of De-
cember, 1911, which three (S) soms is the en-
tire purchase price of said land. And when
said amounts are all paid In full the said C.
C. Hawkins agrees that he wlU make good
and warrantee titles to the said B. D. Big-
bam, or his assigns, to said land.
"It Is understood and agreed that the flv«
hundred dollars this day paid by th& said E.
Blgbam shall go as part of the purchase
money on said land only In tbe event tb&t
the three thousand ($3,000.00) dollars due on
tbe 1st day of October be promptly paid. In
tbe event that said three Uionsand doHaiq
be not inompUy paid on Uie 1st day of Oc-
tobtf, 1911. then flie five hundred dollars
paid this day shall be forftited by tbe said
B. D. Bigham to the said C. G. Hawkiiu as
Uauldatton [Uqaidated] damages, and all
rights nnder tbla contract to tbe said B. D.
Blgbam Shan cease; ttme being of tbe es-
sence of this contract
"It la understood and agreed that the said
E. D, Bigham may have possession of Uie
land as soon as the three thousand ($3,000.-
00) dollars has been paid and C. a Hawkins
can conveniently gather the crop on tbe land
that Is planted and growing for the year
1911; It being the Intention of the parties
hereto that said B. D. Bigham a^y have tbe
privilege of sowing down whatever lands be
may wish In oats as soon as the said C. G.
Hawkins can turn over tbe land in the fall
after gathering the crop thereon, tbe ^ttre
possession being given as soon aa the last
payment on tbe land Is made."
(2) "Witnesaetb : That the said E. D, Blg-
bam has this day secured from G. 0. Haw-
kins an option for ttie purchase of the fol-
•Tor otbar eiMa sm same topic and oeetlOB NiniSaR la bee. Wg. * Am.
810
78 SOnTHBASTHBN RBFO&TER
inHmg described ItuOs, br 'Samter county,
■GtaL, vli.: Lot of land No. 107 In the 27th
dlatzict^ contabdi^ 202% acres, more or less;
«lM the east half of lot of land No. 106 In
the 27th district, containing 1<XL%- acres;
whole agsregating 303% acres, more or less.
"It la agreed that the said B. D. BIgham
shall have the right to purchase of the said
C. G. Hawkins the above-described lands up
to and including March Ist, 1012, for the sum
of fifteen thousand ($15,000.00) dollars,
which, if the said B. D. BIgham well and
truly purchase and pay the said sum of fif-
teen thousand dollars cash, the said O. C.
Hawkins binds himself and assigns to make
good and sufilcient titles to the said E. D.
BIgham, or his assigns.
"It is understood and agreed tliat the said
option shall extend only until March Ist, and
including March let, 1012, time being of the
essence of this contract, and if the said E.
D. BIgham shall not, within said time, pur-
chase said land and pay said sum of money,
then all rights under this contract shall
cease, determine, and be void, and whatever
sum may have heretofore been paid to the
said O. C. Hawkins, on account of any con-
templated purchase heretofore made, shall be
forfeited to the said C. O. Hawking as llq*
uldated damages.
"It is further understood and agreed that
if tile said B. D. BIgham shall, on or before
March first next, pay ttie said C. O. Haw-
kins the purchase price of said land, tlien he
shall also have the option to purchase all the
personalty, such as mul^ plows, feed stufC
and fhnning impl^ents that the said 0. 0.
Hawkins may hare and hold necessary to
ran the place to make a crop for the year
1012, and also to pay all debts that the said
O. 0. HawUns may have to Incor on account
of bis ftznsing relations in renting said
place for the year iSil2, and in the erent Uiat
the said BL D. BIgham pay aU of said farm-
ing debts, and purchases all the personalty,
and assumes an obligations incurred for the
raiting of said place, including fertilizers,
debts to hands and assumed by bands, then
the said B. D. Bigham shall have the right
to take immediate charge of the said place.
"It is understood and agreed that the said
O. O. Hawkins shall not charge more dian
the actnal market price for any of the ar-
ticles that tiie said B. D. Bigham may desire
to purchase in exercising this option; the
two parties hereby contracting mutually to
carry out these ends and intentions In the
beat of spirit
"It Is further agreed that, If the said B. D.
Bigham does not dioose to exercise this op-
tion in purchasing the personalty and assum-
ing of .the debts after he has purchased said
plantation, the said C. C. Hawkins agrees to
rent the place for the sum of $560.00, and
when this contract has been carried out; and
the said B. D. Bigham may have paid for
said place and received deeds, the said O. C
Oiwfcins will execute to the said BL D. m^-
ham his promissory notes for said rent"
According to the allegations of tlie pettlloa
the first deferred payment of $3,000 was Dot
made on October 1st, the date of Its maturity
under the first contract, but $2,000 thereof
was paid on the succeeding day. or 2d «f
October; and thus the transaction remained
until the second Instrument was executed
some two months later. After the executioa
of the second contract, BIgham, having ar-
ranged for a loan of $8,000 from a third
person on the property for the purpose of
applying the same on the purchase price, en-
tered into a further agreement with Haw-
kins, In pursuance of which Hawkins on the
22d day of December executed a deed to
Bigham to the land for the purpose of ena-
bling him to use the property as security Cbr
the loan above mentioned. The loan was
obtained and the proceeds paid over to
Hawkins. After executing the loan deed to
the lender of the money, Bigliam on the 23d
day of December, 1911, reconveyed the land
to Hawkins to be held until the balance of
the purchase price, amounting to $7,000,
should be paid. Hawkins continued in pos-
session subject to' the terms and conditions
as set forth in the contract Nothing further
appears to have been done until Bigham, on
the 29th of February, 1012. instituted a suit
for resdscdon of the Contract and other re-
lief as Indicated In the prayers mmtloned
above.
The allegations relied on as a basis for the
relief sought were to the efFect that before
the purchase of the land petitioner inquired
of defendant as to wdl water on the land,
and whether a certain baEdn on Uie farm,
whidi was at that time dry, was a pond <«
would pond water. In response to which de-
fendant represCTted to peUthmer that the
water on the place was good pure water, and
that the basin would not pond or bold water,
"and after your petitioner bad seen said
placcf* defendant represented that he had
done a great deal of ditching and tliat there
was no place on the land that would pond
w&ter, but as fast as the water would fall
it wonld seep through Uie ground. Petitioner
reUed dpon such represoitatlons of the de-
fendant when he entered into the contract of
purchase and had be known at that time
that the t^resentatlons were untrue he
wonld not have entered Into the contracts
of purchase for the consideration named.
When the representation was made, and
when the suit was filed, the principal well
on the place was supplying "water contain-
ing a good many worms and other Insects.
So much so that the people using said water
have to and they do strain the same for the
purpose of getting out of the water said
worms and insects. That new cloths are
used dally In straining said water. That this
condition of said water was, at the time of
tiie maUng of tJ«[^e^«e§^ttSl^^9J^e-
BIOHAU T. HAWKINS
811
Bald, wen kziown to said d^endant Petl-
tloner shows that said water, Instead of
being pure, Is well Imin-egnated with ani-
mal matter and Is anything else but pure."
Also at the time of the contract of purchase,
and when Urn suit was filed, a portion of the
land was so situated that It would pond
water, which fact was well known to defend-
ants; there being a pond "on said tract
covering an area of about 20 acres of land,
a portion of this pond b^g at a depth of
abont four feet That said water has ac-
Gomnlated and ponded until it has extoided
op to and -under one of the tenant houses
on said laud and ponded around a well of
water near said tenant house a d^pth of
about eight Inches. That, while it Is true
t2uit since last December there has been ez-
cessire rains, yet tlie said defendant assured
and represented to your petitioner that he
had so ditched said land that no part of it
would pond water. • • * That, while
your petitioner had seen said basin which is
now full of water, he specifically asked ttie
defendant If water would not accumulate and
pond in said basin, and In i^>on8e to said
inquiry defendant made the r^reaentatlons
and statements hereinabove alleged." On ac-
count of the condition of the well the land
Is less valuable and la not suited for the pur-
poses for which it was purchased. Peti-
tioner is not advised as to whether the condi-
tion of the water is peculiar to this one
well, or whether It can be overcome by
sinking another well in a dliferent locality,
but petitioner avers that the well water is
totally worthless for any purpose whatever.
The pond of water renders the place less
valuable because it renders cultivation of the
land Impossible, unless the pond Is drained
at a very great cost. The pond Is about
800 yards from the residence, and this fact
renders the property lesis valuable because
the pond la unsightly, "and when it begins
to dry up it will create sickness a;id will in
many ways make said place undesirable and
unhealthy." The property was purchased by
petitioner with the view of making It his
home, and this is why he specifically In-
quired in regard to the water on the place
and whether the basin would pond water.
It was further alleged: "That your peti-
tioner has complained to the defendant of the
condltioa of said well and of the ponding
of said water on said land, and has asked
fbr a resdseion of the contract and a refund
of the money that has been paid on the pur-
chase price of the same That he likewise
Btatad. to the defendant that If be would
make proper reduction for a reasonable con-
cessloB, on account of the unfavorable con-
dlttons of said tract of land he would still
pay a reasjcoiahle part of the purchase price
end carry out his oontract. That your peti-
tioner arera that said d^endant refused^ to
make any conceadon and also refused to' re-
turn or zefond to your petitioner tbe mon^
that has been paid by petitioner to d^end-
ant In the purchase of said land." ISie
case was dismlaaed on demurrer, and the
plaintiff excepted.
R. L. Haynard, of Amerlcus, tor plaintur
in wror. Sbipp ft Sh^pard, (tf Americas,
for defendant In «ror.
ATKINSON, J. This is an effort by a pui^
diaser to procure a decree rescinding a con-
tract fbr the sale of land and to recover a
personal judgment for so much of the pur-
diase price as had been paid.
[2] Before a money Judgment could be re-
covered, there would have to be rescission,
because the contract Is conclusive upon the
parties so long as It stands. Fraud Is relied
on as the ground of rescission. The Judg-
ment complained of was rendered on demur-
rer and resulted in a dismissal of the plain-
tiff's action by the court. The controlling
question Is whether or not the allegations
charge fraud upon the part of defendant,
thereby inducing plaintiff to enter into the
contract The. petition should be construed
most strongly against the pleader. Represen-
tations as to the quality of well water on the
land constituted the basis of one of the
charges of fraud, while the other related to
representations of the defendant In regard to
the ponding of water in a certain low place
or basin on the land. There were no diarg-
es of fraud upon any oOier subject connec^
ed with the transaction.
[3] Under a fair construction of the peti-
tion, the representations attributed to the
defendant In regard to well water should not
be held to apply to any particular existing
well, but to well vrater generally to be ob-
tained on the farm. The plaintiff did not
pretend to allege that pure well water could,
not be obtained on the farm, but the allega-
tions complaining of well water had refer-
ence to a single well which was allied to be
In a condition which' every one knows could
be brought about in any well by nonuse or
Insufficient cleansing. The fact that this one
well might have been In the condition as de-
scribed, when compared to the representa-
tlons attributed to the defendant, would not
be sufficient to show that the representations
were folsely or fraudulently made.
[4] In r^rd to the basin. It Is manifest
from the allegations of the petition that the
plalntifl as well as the defendant, before tiie
first contract was made, examined the land
and saw its condition. From the allegations
it appears that the thing conqilalned of was
pointed out by the plaintiff to d^endant at
the time the nlleged representations were
made, and b^Ore the fint contract was made,
which occurred in Hay, 1911. The represent
tations were to the ^ect that d^endant had
done a great deal of ditehing, and the land '.
was porons, and tlieretore water would not
pond on the place. It is not allied that this
statement was IkOse in that the land>wunoti
" Digitized by VjOOQI
8X2
78 SOtrrHBAS^rSlRK' RBPOBTSB
poronB and that there were no dltchea, which
together were sufficient at the time the repre-
seDtatloiis were made to prerent the pond-
ing of water. In one portion of the petition
it was alleged that the basin was dry when
the representations were made; in another
that It ponded water to the depth of several
feet covering a lai^e area. It is dlfllcult to
reconcile this repngnan^. If the water was
actually ponded, the condition was obvious
to the plaintiff, and he could not thereby
have been deceived. On the other hand, If it
was dry, the Inference would be that it was
properly drained. Such an Inference would
be reasonable and consistent with the truth-
fulness of the representation, and in the ab-
sence of allegations to the contrary ahonld
be given effect The representations were
made before the first contract, which was
executed some six months before the second
contract was made in November, 1911, and
nine months before suit was filed in Febru-
ary, 1912. In the meantime there had been
excessive rains. Under such conditions nat-
ural agencies would tend to clog and fill the
ditches and destroy their efficiency for drain-
age purposes, and probably did so. Allega-
ttcms that after so long a time, under such
drcnmstancea, the water ponded is not the
equivalent of an allegation that at the time
the representation was made It was folse
and known to be aucta.
The auctions as a whole were Insoffi-
dent to form a basis for a diarge of fftLud
upon the pa^ of defendant, and the case was
properly dismissed on general demurrer.
Judgment afflnned. All the Juatioes coo-
CWCm
a« 188)
LATHAM r. STEWAiST, Tax Oon«etor, et aL
(Sapiam Court of Geoi^ June 17, 1818.)
fSvIIa&w by tlte Court.)
Haweebs anp Prddlbbs (I 3*)— LiCEnsB—
Statcts — CoNSTBocTton — Bjuscoai Obit*
■BIB— '^Aht Otheb Kind of Mbbohjuioxsb
OB OOlOtODITT WBATSOEVEB."
The proviaioDB of the general tax act of
1909 (Civ. Code 1910. | are not to be con-
Btmed as imposing a Duainess tax upon peddlers
of cblckeBt, eggs, and butter. It was error,
therefore, for toe judge to refuse to enjoin tbe
collection of sacti a tax from the plaintiff, who
was engaged in peddling such commodities.
tEd. Note.— For other cases, see Hawkers
and Psddlera, Gent Dig. H 8-6; Dee. Dig.
18.*
For other deflnlttone, see Words and Fhiaasi,
vol 1. pp. 434-437; joL S, p. 7577.]
lABpUn and HIU. JJ., dlasentiiig.
Error from Superior Court, Fulton Coun-
ty; Geo. L. B^, Judge.
Aotlott A, P. Steirai% Tbz Collector,
and otho* agalnat E. M. r^atliBin. Judgment
for plalntUCs, and defwidant brings «rror.
Rerened.
E. M. Latham filed an equitable petition
for injunction against A. P. Stewart, as tax
collector of Fulton county, and Amos Baker,
as deputy, to enjoin the collection of a ped-
dler's license tax claimed by the tax collector
to be due under the provisions of part 1«
tit 2, S 2, par. 27, p. 46, General Tax Act 1900.
as now embodied in Civil Code 1910. f M6.
On the Interlocutory hearing there was evi-
dence to the effect that the plaintiff had en-
gaged, in Fulton county, during the year for
which the tax was claimed, in peddling from
his wagon chickens, eggs, and butter without
any license. The judge refused to grant an
interlocutory Injunction, and the plaintiff ex-
cepted.
Gober ft Jacksm, of Atlanta, for tfalntUt
in error. J. D. Ellpatrick and Brantl^,
Jones Se Brantley, all of Atlanta, for defwd-
ants in error.
ATKINSON, J. The judge was authorized
to find that the plaintlfl, without a license so
to do, in the county of Fulton, engaged In
peddlli^ chickens, eggs, and butter, and the
only question is whether the peddling of such
commodities renders petitioner subject to
the tax provided for In part 1, tit 2, | 2, par.
27, p. 46, General Tax Act 1909, as now em-
bodied In the ClvU Code 1010, i 046. After
providing for a number of specific and occn-
patlon taxes, the act Imposed snch a tax of
$00 In each county where the business was
conducted **npoa every peddler and traTcAlng
Vendor of any patent or proi^etary medi-
cines, or remedies, or appliances of any kind,
or of special nortnuns, or jewelry, or sta-
tionery, or drugs, or soap, or any ottier kind
of m^diandise oi emnniodlty whatsoerer
(whether herein enumerated or not) , peddling
or Baling any such goods, wares; meUdnes,
nostrums; mnedies, appliances. Jewelry, sta-
tionery, soap, drags, or other merchandise."
If the peddling of chidcma, eggs, and butter
Is comp^iended this section of the act
the plalnUff was subject to the tax, and the
tuUng ot the conrt was proper ; ba^ if not
so comprehended, the plaintiff would not be
Bubject to the spedlal tax, and the jnd^noit
of the court would be erroneous. It will be
observed that the tax is upon dealers "of
any patent or proprietary medicines, or -rem-
edies, or appliances of any kind, or of special
nostmms, or jewelry or stationery, or drugs,
or soap, -or of any other hind of ni«<handlse
or commodity whatsoever (whettter herein
enumoated or not)." Chlt^ens, tssB, and
batter clearly would not be induded under
any of tbe things spedaUy mendoned, and
the question Is whether th^ are conqrrtfmid-
ed hy the words *'or of any ether Idnd of
merchandise or oommodl^ - whatsoever."
These are general wwds, which are receded
by words specially designating parttcolar
clasaes of merctondlae or commodities. Ult-
der. tike rule ef cjtsdem generis, the general
•fWethtf Slii^ us'uau topto sad Mction ttmt^RteOao. Dig. a'Am.'Dls. K«r-He.'fi:irtM,* Bw'r Ifinm
Digitized by LjOOgCC
LATHAM T. STBWABT
818
words orfllnarUy should ba eoDfltrned as re-
ferring to merdiandise or commodities of tlw
same kind as tboee spedally named. QiMr
T. State, 108 Oa. 428, 30 S. 2S5. Tbooo
which were specially named ar« Of a dlffer-
mt nature altogether from articles of food.
In which class chickens, egga, and batter
would fall. It was evidently the legislative
Intent fliat the general words should apply
only to merchandise or commodities which
were of ^e same nature as those before ^>e-
dally named. The effect of so restricting the
general words wonld be to leave the Legisla-
ture free to tax the peddling of other mer-
chandise or commodities of a different nature
at a higher or lower amount, or not at all,
accordingly as the nature of the commodity
might in the legislative mind deserve to be
treated. Section 2, par. 28, of the act, Is In-
dicative of such intent, for there a higher
business tax of $200 was Imposed on peddlers
and traveling vendors of stoves, ranges, and
clocks, all of which were commodities or
proper subject-matter of merchandise, but
different In nature from patent, proprietary
medicines, etc., the things specially named.
If this interpretation be given section 2, par.
27, that part of the act will harmonize with
section 2, par. 28 ; but if It shonid not be giv-
en, and the general words should be held to
indnde all merchandise or commodities of
whatever nature, the two secttons will be In
irreconcilable conflict, fOr both would tax
the peddling of stoves, ranges, etc., but in
different amounts. Again, section 2, par. 27,
of the act (CLy. Code 1910, | 946), regnlioB
the payment of $00 In each eomity wberdn a
peddler may pell *^any patent or proprietaiy
* * * appllancei of any kind," while un-
der section 2, par. 28 (8), of the act (Civ.
Code 1010, i 947), every peddler la.ieqnired
to pay $25 In every comity In which be may
sell "any other patented article" than those
enumerated In that section. Now, unlass
flW rule of ejusdau) sapBtiB be angled in
coDstruing the two aectlona, at least In deter>
mining which amount, $S0 or 9^ shall be
paid by a peddler for selling a patented artl-
de In a county, whoi auch article la not one
spedflcally named In titber of these aeetions
of the act, how can the conflict tn the two
sections be reconciled? And, If the appllca-
tlcn of sndi rule must be made to reconcile
the conflict aa to some portions of the sections,
It teems fair and just to apply the rule gen-
erally to the conatmctloD of both sections
in their Mitlrety. Moreover. If the general
wwds In section 2, par. 27. should be con-
Btmed to extmd to every class of merchan-
dise or commodity ot whatever nature, it
wonld lead to absurd resnlts. It could hard-
ly be contended that a tax <rf (SO upon boys
IMddllng newspapers on the streets was in
the legislative ndnd; yet newspapers are
eommodltlea, and the peddUi^ of them would
be tand under sudi a oonstmctlon. Bz-
amplas of this cfearaeter eouM be nraltipUed.
FnrQier, If the fsneral word* are to be M
cmBtmed, the particular words which pre-
cede them would have been entirely uaelcsa,
and no reason appears why the Leglalatnre
should Idly have emi^yed than. The Leg*
Islatnre might have taxed the peddUng of
articles of food had it teat thought proper
to do so, but there was no mentbm of then^
or anything In the nature thereof anywhere
in the act It seems evident that the pad-
dling of them was not Intended to be taxed.
In view of this construction of the act. It
was erroneous to refuse to enjoin the ool-
lection of the tax.
Judgment reversed. All the Juatlces coiw
cur, except LUMPKIN and HILL, JJ., dis-
senting. EVANS, P. J., and BBGB; OOtt-
cur specially.
ETANS, P. and BECK, 3. (concurring
specially). We concur In the interpretation
placed on the tax act by Mr. Justice ATKIN-
SON. A familiar canon of construction of
statute* la that effect should be given to
every word In the statute If possible. If the
L^lslatnre meant to impose a tax upon a
peddler <a any commodity or every kind of
merchandise, bow easy would It have been to
Indicate audi Intent by Just saying so. The
enumeration of certain articles would be en-
tirely meanlndesB, unless they were Intended
to aj/^ij to a spedflc proposition, or were to
be used aa Illustrative of the snbjecta the
vending of irtilch wan Intended to be taxed.
The wordi^ "or any othw kind of merchan-
diae," ^o, are geiural, and are andUaty to
the Bpedflo proposition, vl&, to tax the ven-
dor or peddler of a certain class of articles
Where yon have general andUary wordi^
they ^oold not be glvra such a conatructton
aa to do away with the spedflc proposition
which they follow.
LUMPKIN and HILL, ' JJ. (dissenting).
Two cases were argued In this court, and are
controlled by the opinions filed by the major-
ity. In each case it appeared that the plain-
tiff In error was peddling on the streets of
Atlanta. In the one case he was peddling
^hlckens, eggB, butter, etc. In the other
case he was peddling fruit ^e only Quea-
tlon Is whether peddlers of such merchan-
dise or commodities fall within the terms
of section 946 of the Civil Code, which reads
aa follows: "Upon every peddler and travel-
ing vCTdor of any patent or proprietary
medicines, or remediea, or appliances of any
kind, or of special nostrums, or Jewelry, sta-
tionery, or drugs, or soap, or of any otSw
kind of mercbandiae or commodity whatsoev<-
er (whethor hwdn enumerated or not), ped-
dling or selling any such goods, wares, medi-
cines, nostrums, remefies, aKtUances, Jewel-
ry, stationery, soap, drug% <ff other merdtan-
dlse, fifty dollars in each coun^ where the
same or any of them are peddled, sold or
<rfEerM for arte." ^ iT?gj^,«^^tfle5gle
814
78 SOUTHEASTBRN BBPOBXER
ftve ot the opinion that, onder the doctrine
«r rule of conatractlon generally referred
to as the doctrine of "ejosdem generis," the
vords **or of any otiier tdnd of merchandise
or commodity whatsoever (whether herein
enumerated or not)" aboold be construed as
limited to merchandise or commodities of a
similar genos or kind to those specifically
OHimerated, and that, so constmed, they do
not Include the mwcbandlse or comnwdlties
which the plalntUEi in error wore peddling.
In this view we cannot concur.
' In Blade cm Interpretation of Laws, p.
141, the rule is thna stated: "It is a ^eral
role of statutory oonrtr^ction Uiat wbwe
cental words follow an enumeration of per-
sons or things, by words of s particular and
specific nwwwing, sQch general words are
not to be construed in their widest extoit,
but . are to be held as allying only to per-
scms or things of the same general ktod or
chiss as those spedflcally menUoned. But
this rule must be fflscarded where tha 1^
islatlve intention Is plain to the contrary."
On pages 148 and 144 It Is said: "But the
rule of constmetlon, that general and un-
limited terms are restrained and limited by
particular recitals, when used in connection
with them, does not require a rejection of
genovl terms entirely, and It is to be taken
In connection with other rules of construc-
tion, not less important, sndi as that an act
shall be so construed as to carry out the
dedared intention of the L^ieOature. '^e
doctrine of ejusdem gmerls is but a rule of
construction to aid in asoertainii^ the mean-
ing of the Legislature, and does not warrant
a court in confining the op^tion of the stat-
nte vrttiiin narrower Umlts than was intraid-
ed by the lawmakws. TbB general object
of an act soipetbnes requires that the final
general term shall not be'restricted in mean-
ing by its more spedflc predecessors.'
* * * It is fi)rther to be remarked that
this principle or rule applies only where tha
qtedflc words preceding the general expres-
sion are all of the same natore. Wliere th^
are oC dUfermt genera, the meaning of the
general word ranains unaffected by its con-
nection with them. Thus, where an act made
it pwal to cAuTey to a prisoner. In order to
facilitate his escape, "any mask, dress, dla-
golse, or any letter, or any other article or
fbtng,* It was held that the last goieral
terms were to be understood in tlielr primary
and wide meaning, and as indudlng any
arttde or thing whatsoerer which conld
in any mannw focUltate the escape of a
prisoner, sodi as a crowbar.' " In 2 Lewis'
Sutherland, Stat Omst (2d BU.) | 4S7 (p.
882), It Is said: "In cases coming within
the reatdi of the principle of ejnsdem gen-
eric genoral wwds ate read not according to
their natural and uSual sense, but are re-
stricted to persons and things of the same
kind or gotus as those Just enumerated ;
they are construed according to the more
explicit context TUs rale can be used only
as an aid In ascvtalnlng the legldatiTs la-
tent and not for the jmrpose of controllins
the Intention of or confining the operation of
the statute within narroww limits tiian was
intended by the lawmaker. It affords a mere
suggestion to the Judicial mind that, wtane
it d.early appears that the lawmaker was
thinking of a parUcular class of perscms or
object the words of mora general descrip-
tion may not have beui intended to embrace
any other than those within the class. The
suggestion Is one of commcm sense. Other
rules of construction are equally potent,
especially the inlmary rule which suggests
that the Intent of the I«e0slatnre is to be
found in the wdinary meaning of the words
of the statute. * * * Bo the restriction
of general words to things ejnsdem generis
must not be carried to such an excess as to
deprive them of all meaning." See, also, 26
Am. ft Eng. Ena Law (2d Ed.) 609, 610 ; 36
Gyc. 1119, 1112. Numerous dtatt<ms eoold
be made in support of the rules announced by
these authorities. One lUustrative case wUl
sufilce. In W^ber t. Chicago, 148 111. 813^
S6 N. El 70, an ordinance provUed for licens-
ing Mrcuses, menageries, caravans, side-
shows and concerts, minstrels or musical
Mtertalnments, given under a covering of
canvas, exblblUons of monsters ta of freaks
of natore, variety and mlnstrd shows, ath-
letic ball, or similar games of sport and all
other exhibitions, performances and entM--
talnments not here eaumerated, given In a
building hall or under canvas or othex cover,
or within any enclosure." It was h^ that
this ordinance included horse races within
an indosnre. The court declsred that the
maxim ot ejnsdem generis was only one M
many rules of constnictlon to ascertain tbB
Intent of the Lei^ature, and that **whexeh
from tbB whole Insbumeut, a larger Intent
may be gathered, the rale under consideration
will not be applied to defeat such larger in-
tent"
In the light of these rules <a constractliHi.
let us see whether the general wOTds In tike
statute under oonidderatlon should be i^Ten
a restricted meaning, so as to inclnds only
merdumdise and commodities of the same
kind or genus as those ipeclfically mention-
ed. Vbe General Tax Act of 1902 InoKwed a
specific tax "upon every traveling vendor or
proprietary medldnee, special nostrams, Jew-
elry, paper, so^, or other merdiandlae^ fifty
dollars in eacih county where they may offer
sudi artitdes for sale.*' In Standard Oil Co.
T. Swanson, 121 Oa. 412, 49 S. B. 262 (dedded
In Decembw, 190^, it was held that, under
the doctrine of eJnsdem generis, the genual
words **or other merchandise would be oon-
straed in connection with the words of spe-
cific enumeratl(m, and that they did not em-
brace vendvs of merchandise not ejnsdm
generis (that is, not of a Uke kind or genui^
with the articles expressly enumerated. The
Qaieral Tax Acte for some years emi^yed
the language above quotsd^^^^^^an-
I^THAM r. STEWABT
815
snage. In 1909 the LeglalatOTe materially
changed the form of words used In the Oen-
enl Tax Act In relation to these spedflc
taxes. We moat assame that the leglsIatlTe
branch of the goremment knew what lan-
guage had been previously employed and
what construction this court had placed upon
it Knowing that ttaia court had held that
the addition of the general words "or other
merchandise" to the specific eunmeratlon pre-
ceding them would be considered as mean-
ing other merchandise of like kind or genus,
the Legislature deliberately discarded that
form of expresfdon and used different lan-
guage, apparently for the purpose of meeting
the decision above cited, and placing beyond
controversy the fact that they did not mean
to limit the concluding general words to
mer<^ndlse or commodities of like kind with
those which had been specifically mentioned.
As codified In section 946 of the Civil Code
1910, after enumerating proprietary medi-
cines, or remedies, or appliances of any kind,
or special nostrums, or Jewelry, or stationary,
or drugs, or soap, the act added, "any other
kind of merchandise or commodity whatso-
ever (whether herein enumerated or not)."
Bearing In mind that the doctrine of ejusdem
generis is merely a rule of construction to
the effect that ordinarily. In the absence of
anything to Indicate a contrary legislative
intent, general words accompanying a spe-
cific enumeration will be construed to mean
things of like kind as th(»e enumerated, we
are unable to see how it can be held that the
general words "merchandise or commodity"
shall be construed to mean merchandise or
commodity of like kind as the articles sped-
fled, when the Legislature has declared in
express words that they do not mean of like
kind only, but "of any other kind. • • *
whatsoever (whether herein enumerated or
not)." "Other kind" Is not the same as like
kind, and cannot be prop^ly constrbed to
mean the same. The statute does not aay
any other merdiandlBe or oommodlty. aa It
formerly did, but any otlier kind.
In the light of the history of this leglalflr
tlon, the previous construction placed upon
tlie language by this court, and tho chango
thereupon made by the Legislature^ to bold
that the words merchandise or commodity
abaH be limited to merchandise or commodl^
of like kind only. In the face of the decla-
ration of the Legislature that it means any
othffiT kind of merchandise or commodity
whatsoever, would be in effect to hold that
the Legislature did not mean what they said
in plain English words, and that It was Im-
possible for them to escape from the Inter^
pretation which they knew that this court
had placed upon the general words "or oth-
er merchandise." We, of course, recognize
the rule that some effect is to be glvoi to the
fact that there is a spedflc ennmeration,
but, if the goieral words merchandise or
oommodl^ are to bo reetrlcted to merchan-
dise or commodities of like kind with those
enumerated, what effect Is to be given to the
words "or of any other kind • • • what-
soever (whether herein enumerated or not)."
Such a construction would give to the act
exactly the same meaning as If the words
last quoted were entirely strlckeoi from the
statute. It is one of the fundamoital rules
of statutory construction that the court
should presume that the Legislature Intend-
ed for all the words of the statute to have
some meaning. In the case of the Standard
Oil Co. T. Swanson, supra, no reference was
made to the question of whether the enumer-
ated articles were themselves of like kind
or genus, and it may be well doubted wheth-
er It can be declared that patent medldneB
and stationery are of the same genus, or that
jewelry and drugs belong to ttte same family
of merchaDdis& If the onuneiatlon Itself
includes dUCemt gmeia, as stated in the
text^KX^ abore dted, the dodxine of ^u»>
dem gmerle has little or no application as
to the words under discussion.
We recognise the fad that sections 946 and
947 of the OlvU Code 1010. may seem In
some respects to overlap each other. TbM
In section 946, among the enumerated ar>
tides, are "any patent or proprietary medi-
cines or remedies, or appliances of any kind,"
and in section 947, after enumerating certain
patented articles, occur the words "or any
other patented artlde." But this involves
another rule of construction, that the Legis-
lature is not to be deemed as having conflict-
ed with Itself In the same act, and that a
construction will be placed upon two parts
of an ad so as to harmonize them, if prac-
ticable. Where goieral words are used in
one part of an ad in reference to requiring
a spedflc tax, and in another part of the
same ad certain classes of things are made
subject to a different tax, they will be con-
sidered as taken from under the previous
general enumeration. This is Illustrated by
two different parts of section 047. In the
the first part are gmieral words in regard to
peddling certain dasses of articles. In the
latter part a different tax Is placed upon
traveling vendors using boats. We assume
that the court would construe the two parts
of the aectlon so as to harmonise them, and
give to each its proper sphere ot epantixm.
But we are unable to see that this rule of
harmonlzlDg different parts of an act can be
carried to the extent of saying that when
the Legislature declares in terms that it In-
tends to place a spedflc tax upon peddlers of
certain merchandise and commodities, and
upon peddlers of any other kind of merchan-
dise or commodities whatsoever (whether
herein enumerated or not), a construction
should be put upon the act so as to exdude
a large dass of peddlers from being snbjed to
any tax at all under any part of the act See
in this connedlon Cece J^,f|f^^^|j;!9tS§-lt:
81«
78 SOUTUBASTfllUM- EBIFOBTEB
toetbk, 3» ChL 102, 7ft 8. B. 8M« wheitt th*
BftAie Btatate was vnSgx consideration.
Wtth the quMttini of the ezpedieiKT <tf tbe
leglalatloii tbla oonit hu nothing to do.
That Is Cor Uu L^Mhitnra. Tb9 only ques-
tion ia. What did- that body enact? Moteorw,
tb» Ulnstration from newsbors does not seem
to US very convincing as newsboys hare ner-
er been classified as peddlers or trsTeling yen-
dois nndw any law. so far as we are aware;
a« Ga. ist>
BUTLBB St ^ T. STEWABT, Tax GoUector.
et al.
(Snpmma Gooit of Oeorfia. Jnue 17, 1918.)
Oasb Followkd.
This case is similar to that of Latham t.
Stewart. T. 0^ et al, 78 S. B. 812. tUs day
decided, and is controlled by tbe deciaioD there-
in rendered. The parties seeking the Injanctlon
in this oaae were ensaged in peddling froits,
consistins of oranges, apfilea, and bananas.
Lompkln and Bill. JJ.. dissenting.
Error from Superior Oonrt, Fulton Coun-
ty; W. D. Bills. Jt^lge.
Action between H. Bo tier and others
against A. P. Stewart, TtiX CJollector, and
others. BVom the judgment, the parties first
named bring error. Beversed.
Nathan Coplan, of Atlanta, for plaintiffs
tn error. Brantley, Jones A Brantley, of At^
tanta, for defendants' In error.
ATKINSON, J. Judgment reversed. All
tbe Justices concur, except LUMPEIM and
HILLh JJ., disBtottng.
a« 0%. ui)
lOLLS t. QBNTRAL OF OBOBGIA B7. CO.
^Bn^eme Oonrt of Georgia, ^oae 17, 1918.)
(BvUahu* by iK« OmtrtJ
1. DnmixBEB— Petition— Ebbob.
The court erred in instainlng the demnr>
rer filed to the petition in this caae.
(AddiUoiMl SifUQliiu 1>» Siitoridl Staff.)
2. NKOLIOENCS (I 111*)— FLEiDMTO— InJUEIES
TO Childrbn— Explosion, or ToBPEDo.
A petition In an action for tbe death of
glaintiEri 8 year old son alleged that, while
itestate was walking along defendant's track
at the ends of the ties in an uninclosed place
where the track was castomarily ased for pe-
destrians, his brother, 15 years old, picked np
a signal torpedo negligently left on the track
by defendant's servants, and placing it on the
rail bit It with an iron tap or nat to break it
opea without knowledge that It was dangeroQs;
that It exploded, and a piece of it strack in-
testate, resulting In his death. Eeld, that the
petition sufficiently charged defendant's negli-
gence as tftie proximate cause of decedent's
death to withstand a demurrer,
.. [Ed. Note.— For other cases, see Negligence,
Cent. Dig, it 182-184; Dec. Dig. { 111.*]
Unm ' from Superior Court, Emngham
County; W. W. Sheppard, Judga;
AcUim by BUsabeth Mills against the Cea-
tral of Qeor^ Railway Company. Jodc>
ment tor platntlfl, and aeffsndnwt brtngn
ror. Bsrersed.
Elizabeth Uills brought suit against the
Central of Georgia Railway Company to re-
cover damages for tbe alleged tortious kill-
ing of her minor son. The petition alleged
In substance that her three minor sons were
walking down defendant's line of railroad,
which was not Inclosed, to their work out-
side the corporate limits of the town of
Eden, where the public, traveling as foot-
men, have always had full access and free
use of the same in traveling to and upon tbe
railroad, walking between the track or In the
footpath at tbe end of tbe cross-ties, which
fact was well known to the servants and em-
ployes of the defendant The oldest son, 15
years of ag^ found lying upon tbe bcRck
between the rails a railroad signal torpedo^
a distance of about "14 telegraph poles"
from Eden. The torpedo was such as im
fastened upon the top of the iron rails to
give signals and warning to engineers and
trainmen. The torpedo being a pteaidng and
attractlvie looking object and harmless in
Its appearance, the oldest son picked It up
and tried to open It Being unable to open
It, Atta: walking the distance of about "six
telegraph poles" be saw and picked up an
iron nut or tap, and placing the torpedo oA
one of the Iron raOs hit It with the Iron
tap or nut for the purpose of breaking It
open, which caused the torpedo to explode,
and another son ot plaintiff (Buby) dght
years of age, standing some eight feet awaj,
and who was not aware and did not know
that he was In any danger, or that any harm
could be done 1^ bis brother trying to break
opea the torpedo, was hit and struck by a piece
of tt whldi penetrated his bowels and caused
his death. At the time of his death the boy
was tn good health and strong and well de-
veloped. He was earning 2S cents per day
at the time of .bis death, and U was aBetfed
that his earning capacity would have steaffi-
ly Increased until he would hSve earned $1.60
per day by the ttme that he arrived at tbe
age of 21 years: The boy had no Cather Ut^
ing at the .time <tf fals death, and it was al-
leged tbat the plaintiff was in part depend-
ent on his earning fbr her euEvort and main-
tenance It was also allegea that ttie ton>edo
was of a kind manufactured expressly for
railroad use In train signaling, and for no
other purpose, and was naed 1^ the defend-
ant aa signals In tfas tqwratlon ocC its trains,
and waa composed of dynamite, or other
highly dangerous explosives, Inclosed tn an
oral to^ tin box sMlsd vp^ to irtdch waa at
ta<died a leaden strap piojeottng about three
Inches on sack aide of the metal box ot tor>
pedo f <« the pnrpoee <tf etriMMHng it to tbe
t(v of tbe iron tall% to be exploded by the
next passing train. The torpedo was found
•Tor other caiwi sm sains toplo and secUoo ^CTllBEft' in Dm. big. a Am. Dig. :^}t)9^%f'^i>(^^)^(l&M
UOJM T. GBNTBAXi Or eXOBaZA KY, 00.
817
south of the south end of the ddlnf or pus*
tag track at Eden, amd at a point wh«e It
had been the custom «f defoidant's serrants
and agents to place signal torpedoes. Tbs
torpedo which caused the death of the i^aln-
tters son was placed on defendant's roadway
b7 its SOTTants In a wanton and careless
manner prior to the homldde. Defendant
waa careless and negligent in operating its
trains on Its roadway longer than Its passing
tracks, and in blocking the main line, and
In perioitting Its serTants and employte to
carelessly and wantonly place torpedoes on
its roadway at the points named, and in
pladng the torpedo on the track, and in wan-
tonly leavlnir the same where it was found
by the plaintltE's sons, and which caused the
death of her son Ruby as stated.
To this petition general and special demur-
rers were filed. One ground of demurrer
was that the petition shows that the injury
complained of was not the proximate result
of defendant's negligence. Another ground
of demurrer was that the petition does not
show by what agent and employ^ and when,
the torpedo was left on defendant's roadbed,
and how long It remained there. The court
sustained the doinurrer, and dismissed the
petition, and the plaintiff excepted.
J. H. Smith, of Eden, for plaintiff la er-
ror. H. W. Johnson, of SnTannah, for de-
iBiiduit In enroE.
HILL, J, (^fter statiiv th« facts as aboye).
[1] We think the petition madp such a case
as was sufficient to withstand the demurrer
filed thereto. It was alleged that the torpe-
do which caused the de^th of the plaintiff's
son, who was 8 years old, was placed on de-
fendant's roadway by Its servants in a wan-
ton and careless manner prior to the homi-
cide ; that the brother of the deceased, who
was 15 years old, picked up the torpedo ly>
Ing in the track on which they were walk-
ing to their work, as was customary with
pedestrians, and placing It on one of the Iron
rails hit it with an iron tap or nut for the
purpose of breaking It open, never having
seen one, and not knowing, that it was dan-
gerous or liable to do any harm. The young-
er brother was standing seven or eight feet
away, and when the torpedo exploded was
struck by a piece of it,, which caused his
death. The facts are more fully set out in
the forcing stateinent
[2] One ground of the demurrer Is that
the petition shows that the Injury complained
of was not the proximate result of the de-
fendant's negligence. It Is alleged in the pe>
tltion that the death of plaintiff's son was
caused by the negligence and carelessness of
the defendant, their agents, and «nploy6s,
by carelessly and negligently leaving or allow-
ing a dangerous and highly explosive torpe-
do to be thrown down and allowed to. remain
•B Its- Eoadl^iBd. What 1% or iriiat Is no^ the
proximate cause of an Injtry must In an cas-
es be determined from the evidence. Oco-
tral Br- Ca t. Tiibble^ 112 Oa. 666, 88 8. 10.
866. See, also, Smith t. Atlantic Coast Line
By^ 6 Oa. App^ 219, 220, 221, 62 S. S. 102a
In the case ct Harrlman t. Plttsburi^ etc.
By. Ool, 45 Ohio St 11. 12 N. B. 451, 4 Am.
St B^. 007, it was held: "The servants of
a railroad company negligently placed and
left an onezploded signal torpedo at a point
on the company's track, which the piAUc,
including children, had long been accustom-
ed to use as a crossing, with the acquiescence
of the company. The torpodo was picked up
by a boy 9 years of age, while so using the
company's track, and ms carried by lilm
into a crowd of boys ndar by, and, being Ig-
norant of Its dangerous character, be at>
tempted to open it The torpedo ttq^odalL
and the plaintiff, a boy 10 years of age, was f
Injursd by the explosion. Under this state
of facts. It was held tfaat the n^igence «t
the company's servants was the proximate
cause of the injury suffered by the plaintiff;
and the ffetct that the torpedoes won wanton-
ly lOaced on tb» company's track by its train- ,
men^ when there was no necessity for Wng
them at that time and place; did not exempt
the company from liability to tlia ^aintur."
See. also, BaUwa; t. Shields, 47 OUo.St
387, 24 N. O. 608. 8 L, B. A. 464, 21 Am. St
Bep. 840, and dlacosalon of this case In 81
Cent lAw J. 168, and eases thare dtedi
Jnntti T. Olirer Iron Uliitiic Gol, 118 Minn.
018, 138.N. W. 678, 42 L. a A. (N. SO 840;
Akin T. Bradley Bngbweftnc A Maeb. Ckh,
48 Wash. 97, 82 Pac 903, 14 L. B. A (N.
S.) SS8; FotwexB t. Harlow, 68 Ucb. 607, 18
N. W. 207, 61 Am. B^ 164.
It was bdd in the case ot Garter t. Oolump
bi8B.B.Oo., 19&a20^46Am. Bep^ 764,
that "a railroad ccHnpany is not liable In
damages for .tli» death of a man caused by
the avloatop of a twpedo vith vfhkdb be
intermeddles while walking on the railroad
track, and which had been placed there by
the company as a danger signal to approach-
ing trains." But It will be observed that in
the Garter Gase the person who picked up
and caused the torpedo to explode was a
'*man," and not a mere boy, as In the In-
stant case. And it d^nitely ai«>ear6d in that
case that ttie torpedo had been placed by
the railroad company as a danger signal.
Mr. Ohief Justice Simpson, In delirerlng the
opinion in that case, said: "It would, no
doubt require a nmcb stronger case to make
out negl^ence as to a trespasser than Is re-
quired in ordinary cases, but we have found
no case which goes to the extent of declaring
tbrnt a trespasser has no protection. • * •
Suppose • • * the defendant, knowing
that its track was being trespassed upon by
parties unanthorlzedly appropriating it as a
track or road to walk upon, and to break op
this use had placed a dangerouft explosive In-
strument tbereo* • %qXz^W^?^K3/U^&^k^
818
18 SOUTHBASISIBN BBFOKTEB
or adTertbement to the pnbUe ot tiie fiacta,
and a tniTeler, though tecbolcally a trespass-
er, had been Injured thereby, could It be
claimed as a legal proposition that, under
such drcumstances, the comEwny would be
exempt from liability? We think not"
In S ElUott on Railroads, i 1260. it Is said:
"It has been held that a railroad company
Is liable for an injury to a boy caused by the
explosion of a torpedo, which had been left
upon the track by Its employes at a place
where children were in the habit of going
with the knowle^e and acquiescence of the
company, and was jacked up by another boy
who was with him." The general rule is well
settled Jihat children are only required to ex-
erdae such care for their own safety as may
reasonably be expected, in view of their age
and condition. The question Is usually one
for the Jury to determine, bnt the child may
be so young' that the court may say that he
was noD Bul and Incapable of contribu-
tory negligence, or so old and intelligent
that he was guilty of contributory negligence
as a matter of law, where It Is dear that he
did not exercise such care as should reason-
ably'be expected of children of the same
and intelligence under the circumstances.
There Is no fixed period below which chil-
dren are non sni juris, and ,at which they
at once become snl Joiis. Id. 1201.
In the case of SulUran t. Creed (1904), de-
cided in the Irish Hi^ Court of Justice and
Ooort of Appeal, 3 British Ruling Oases, 189,
the dflCendant bad Itft a gun loaded and at
full cock standing inside of a fence on his
land, beside a gap from wUdi a priTEte
patb led over defandanta lands from the
public road to his house, and the defutdanfe
•on, aged between IS and 10, coming from
the road to the gap on his way home, fonnd
the gas. He vent bmA with it to tiie pnb-
Uc road, BaAt not knowing tihat It was load-
ed, pol&ted It, In play, at tbe plaintUT who
was on the road. The gun went off, and the
plain tlfT was injured. It was held by the
King's Beach Divlaion, and by tibe Court of
Appeal, that the defendant was liable for
the injury. lo delivering the oj^nion, Palles,
0. B., said : "One la veqronalble not only for
the necessary, but for the reasonably proba-
blOb consequence of bla acta. Now, oui^t the
defendant to have ao forcoeenT In other
words, would a reasonable man, placed in
the drcnmatances In which he rnu, and giv-
ing such constderatiini to the question wheth-
er be should leave bis gnn in the place In
wbicb he did leave It, have so foreseen? As
a general rule, sndi a question is one of fact^
and ought to be submitted to the jury.
* * * I hold that any one who is in pos-
session of a dangerous instrument owes a
duty to the public, or at least to such mem-
bers of the public as are reasonably likely to
be injured by Its mlsnae, to kew it with
reasonable care, so that it shall not be mla-
used to the Injuir of others.**
In another BngUsh caae^ that of ObiA
Chambers 0878) 8 Q. a D. 827, 19 Bng. BoL
Cases, 28. the defendant, without legal rlsbt,
had put dievaux-de-frlse across a private
roadway to prevent vehicles from coming ap
to hla land. Some persons, without his au-
thority, removed part of the barrier to the
footpath, and on a dark night the plaintiff,
while lawfully using the road, knocked
against one of the spikes and Injured his eye.
The defendant was held liable although the
immediate cause of the accident was the act
of the stranger who had placed the barrier on
the footpath. Cockbum, O. J., said : "It ap-
pears to na that a man who leaves in a pub-
lic place, along which persons, and amongst
them children, have to pass, a dangerous ma-
chine which may be fatal to any one who
touches it, without any precaution against
mischief, is not only guilty of negligence;
but of negligence of a very repr^ensible
character, and not the less so because the
Imprudent and unauthorized act of another
may be necessary to realize the mischief to
which the unlawful act or negligence of the
defendant has glren 00088100.**
There la nothing in the petition to Indicate
that the torpedo was being used by the rail-
road company aa a algniU device whenit waa
picked up. On the contrary, the petition
dlsdooea that no train waa at Uw place at
the time the torpedo was pldted up by the
boy, and its allegations are to the effect that
the torpedo was not being used for signal
purposes at the Ume of the Injury to the
plalntUTs son.
Another gronnd of demurrer is that the
petition does not show by what agent and
employ^ of the defendant, and when, the tor-
pedo was left on Its roadbed. We do not
think this ground of the demurrer well tak-
en. It Is sufficient If It Is allied that the
torpedo was wantonly, carelessly, and neg-
ligently placed there by the servants and em-
ployes of the defendant prior to the Inju-
ry, and this the petition does. Thus, it has
been held that, "an allegation in an action for
injuries caused by the n^llgence of the em-
ployes of a railroad company Is suffideutly
de^te, though it does not give the names
of the agents or servants." Bolin t. Sou. By.
Co.,66S.a222,43S. 1D.66S. Andinthe
case of Binard v. Omaha, etc. By. Co, 164
Mo. 270^ 64 8. W. 124, In a case where a
work train <m which the plaintiff's husband
was riding waa backing west when it collid-
ed with a freight train from the east, aa
the result of the negligence of defeodant'a
agents and servants while running the train.
It waa ioM that, '*a motion to make the pe-
tition more definite and cwtain by specify-
ing the agents and servants, whose n^Ugence
caused the deeUi of plalntUTa hoidMakd, waa
properly denied."
In view of all the allegations of the petl-
tion, we think thl^ caas^ig <^^5^^Jur,.
WILBUBN T. STATB
819
and dkonld not bava been fltoml—efl on de-
murrer.
Jndgnient rerereed. AH flie Jnstioee am-
car; FISH, a J., and Z^UICFKIN and AT-
KINSON, J VedAlly.
FISH, O. X (concnrrlng qteclalW. I eon-
cnr tn the lesolt, but I do not care^ at tliis
time at least, to concur In all of tbe reasoa-
tng of the oidnlon. I am not pr^red to
bold or Intimate that railroads cannot em-
ploy torpedoes properly constructed and used
for signaling purposes, lest they be removed
by trespassing boys, and exploded by than.
But, as I constme the auctions of the pe-
tition, they mean that the torpedo was not
at the time in nse for signaling purposes,
but had been carelessly or wantonly placed or
dropped In the middle of the track, and al-
lowed to remain there by the defendants'
agents or employes, who had charge of tor-
pedoes for use as signals, where they knew
that the public, including children, were ac-
customed to pass coDStaoUy without objec-
tion ; and that the boy picked it up and ex-
ploded it, and injury resulted therefrom. So
con&tmed, the petition sets out a cause of ac-
tion ; and I do not think it necessary to go
further in the case.
Mr. Justice LUMPKIN and Mr. Jnstlce
ATKINSON authorize me to say that they
concur In thla view.
a40 Qa. 1S8}
WILBUBN T. STATSL
(Smtreme Conrt ot Oeor^ June 18, 1818.)
(Syttabvt ly the Court.)
1. CsiHiNAi. Law (1 1023*)— Vxinro— OsAHQK
OF Veituk— Wbit or Ebbob.
Where a petition for a change of Tsane is
made by one accused of crime under the provi-
■ions of the act approved August 21, 1911
(Act! l^llf p. 74), relatiDK to the change of
venae In enmhial cases, and after hearing the
evidence tiie jndge hearing the petition Texosed
the same, the Judgment Is reviewable In the
Supreme Court, where a bill of exceptions is
sued out in pursuance of tiie provisions of the
act referred to.
[Bd, Note.— For other cases, see Criminal
Law, Cent Dig. H 2588-2S88; Dec. Dig. |
1028.*]
2. CBXKtirAL Law (| 184*)— iTunnD— OHAireK
or ViinTB— EvinaKOB— nBji7ni(» or Pcb-
xio.
Under the evidence submitted for the cm-
rideratlon of the judge below, then was no er-
ror in refusing to grant the prisoner's motion
for a change of venue.
[Ed. Note. — For other cases, see Criminal
Law, Cent Dig. f | 243, 2C1, 2SB; I>ec. Dig. |
184.*]
8. CKotTKAXM LAW (1 1023*}— TBmm-OHAjrett
or Ybnue — PBBJunioK or InHABXTAins-
Black-Hano Letter.
The court did not err in excluding from
evidence a certain letter of a threatening char-
acter purporting - to be a "black-hand letter/'
addressed, not to the accused, bat to another
party, and tntimating that violence would be
visited ui>on tihe addressee ni the letter In ease,
he furnished money to assist the defendant m
makinr his defense ; there being no testimony
offered to show the authorship f»f the lettw.
[Ed. Note.— For other cases, see Criminal
I^^Gent Die 11 258S-2C88; Dee. Dig. I
(Ad4i^onal ByUabm hy BditorM Bivff.)
4. Gbiujnax Law <| 184*) — "Caxiaiuii
Case."
Tbe term "criminal case," as nsed in Const
art 6, S 2. par. K, declaring that in reference
to criminal cases, tbe Supreme Court shall be
a court for the correction of errors in all cas-
es of conviction of capital felony, is essentially
one in which is lovolved an alleged injury done
to the state by the violation of some law, for
the punishment of which the offender is pros-
ecuted by the state in order that punishment
may be meted ont after conviction, the criminal
case necessarily involving the question of the
guilt or innocence of the party accused, so tliat
a proceeding by accused, in a prosecution for
homicide to obtain a change of venue, was not
a criminal case within such provision (citing
2 Words and Phrases, pp. 17«.-1745}.
[Bd. NotSv— For other eases, see Criminal
Law, Cent Dig. || 243, 2B1. 2SZ\ Dee. Dig. 1
1S4.*]
Error from Superior Court, Jones County;
James B. Park, Judge.
Nick Wllburu was Indicted for murder, and
from an order denying bis motion for a
change of venue, he brings error. Affirmed.
Nlcik Wllbom, under Indictment for tin
offense of murder, which crime was aJIeged
to have been committed in tbe countr of
Jones, at tbe April term, 1013, of tbe superior
court df that connty presented a pettttoi to
tbe Judge of diat court, alleging that at the
time of presenting the petition he was de-
tained in the Jail of an adjoining connty, and
that If he Bhonld be carried back to Jones
county there was danger ot Ua biAng visited
with mob Tlolenoe and of his b^ng lyndied,
and that a fair and impartial Jury conld not
be obtained in Jones county for the trial
of the case against him. Tbe petition was
filed under the provisions of the act ap-
proved August 21, 1011 (Laws 1011, p. 74),
relating to the change of venue in criminal
cas^. A rule nisi was issued, calling npon
the -solicitor general to show cause why the
prayer for a change of venue should not be
granted. Tbe state resisted the motion to
change the venue, and evidence was submit*
ted iMth by the petitioner and by the state.
After hearing evidence the court denied the
motion. The petitioner sued out his writ
of error to this court nnder the provisions of
the act referred to.
John R. Cooper, of Macon, for plaintiff In
^ror. F. B. Johnson and J. B. Jackson, both
of Gray, Jo& E. Pottle, SoL Oen., of MlUedge-
vnie, and t, & Felder. Atty. Oen.. for the
State.
BECK, J. (after stating the facts as above).
t1] 1. The first qnestion that arises in this
case is whether this court has jurisdiction
•Fer otbsr caws. sssm to^ muk seotlaa NDHBBB in Dm. EMg. * Aia. Sis. K«r-
820
78 BODTHnASTBI&N BdPOBTBB
to oitertalii tbe writ of error brlnglDg the
zicAwa of tbe lower oonrt to grant a cbange
of venne here for review. It tbe petition ad-
dreesed to tbe judge of the court below and
the resistance by the state of tbe motion con-
tained In that petition conatittited a crlmtnal
case, then this court Is witboat Jurisdiction to
review the ruling of tbe Judge on aM>eal. For,
by article 6, 1 2, par. 5, of tbe Constitution of
tbla state (GivU Code. { 6502), It la declared
In reference to criminal cases that the Su-
preme Court shall be a court for the correc-
tion of errors "in all cases of conviction of a
capital felony." And so far as relates to
criminal cases, this court has no Jurisdiction
except that which arises in cases where
there has been a convlctiOD of a capital
f^ny. There has been no trial nor convic-
tion in the case of the state against this
plaintiff In error; and. If his petition for a
change of venue and the issue Joined upon
that, and the evldtoce heard upon that Issue
made a criminal case, this court Is clearly
without Jurisdiction to review the Judgment
rendered by the court below disposing of tbe
motion of the petitioner for a chai^ of
vuiue. But after a careful consideration of
the question we are of the opinion that the
presentation of a petition for a change of
venue, and the hearing thereon by the judge
below, Is not neceaaarlly to be claaaed a« a
criminal case.
[4] A criminal case is essentially one in
which Is Involved an alleged injury done to
the state by tbe violation of some law, for the
punlidunent of whicb tbe offender Is prosecut-
ed by the state in order that punishment for
the offense may be meted out to said person
after convlctlim. QrtmbaU v. Bom, T. U. P.
Charlt 175;- Ames v. Kansas, lU U. S. 449,
4 Sup. Gt 437. 28 U Bd. 482; and cases cited
In 2 Words and Phrases Judicially Defined, un<
der the definition of "criminal action" and
''criminal case." A criminal case necessarily
involves lite question of guilt or Innocence of
the party accused. But in the proceedings
which we are asked to review here, and
whfdi readied a finality before the oom-
mencemoit at the trial undw the Indictment,
neither tbe qnesUon of tbe guilt or tnnoeence
of the prisoner waa involved, nor what pun-
ishment should be meted out to hLD. Of
oonrse it would btf competent tat the Legle-
latore^ In provUUng tm a hearing upon the
qneatlim as to whethn tlu venne ta& erlmlnal
cases dtonld be dianged or not, to. provide
that the hearing of that question should take
lOaoe at the trial* and under those drcunb
stances the hearing of that question ml^t
become a part of a criminal case^ and be
reviewable here in case of conviction, aa othw
questions arising upon tbe trial are reviewed.
Just as is done In passing upon the question
as to whether it waa wror or not to refuse
a contlnnanee of tbe case upon motion made
tbe defendant at the trlaL But a motion
like that which we have ooder oonalderatkia
is not so intimately or essentially omnected
with the criminal case which we have under
coiuidderatton aa t6 make it a erlmlna! case
or a part of a criminal case^ It la provided,
in the act under wbldh t^ese proceedings to
review were Instituted, that the Judge mlafit
hear tbe petition of the aecnaed at chambers
with or without the i^esence ot the aocoaed,
and at any time and place In the state that
he might direct Taking these iirovialolu
of tbe statute under consideration, as well aa
the fact that the question of the guilt or
innocence of tbe prisoner is not Involved; that
no puntahment or discharge of the prisoner
follows the Judgment of the court below,
rendered upon this proceeding, whether It be
in favor of or adverse to the prisoner — ^we
are convinced that the procedure for tbe
determination of the question as to whether a
change of venue should be granted to the
prisoner or not is one of a drll nature, and
does not fall within the category of criminal
cases. While the pendency of a criminal case
or action against tbe prisoner most exist be-
fore the right to address a petition to the
court upon the subject of changing tbe venue
shall arise, and to that extent It might be
said that the right to make the petition and
the right to a hearing thereon spring from a
criminal case, the real source of the right
to a hearing is th the existence, or the claim
thereof, of the danger of violence being visl^
ed upon the prisoner, or the existence of such
feeling ta the county where tbe crime Is al-
leged to have been committed that it Is
impossible for a fair and Impartial Jury to
be obtained there for tbe trial of the criminal
case against him. Hence we think It was
competent for the Legislature to treat this
matter of making a petition for a change
of venue as a thing apart from the criminal
case, and that, severance having been effected
by l^lslatlve enactment, the case falls in tbe
category of dvll cases. And to the Judgment
of tbe court below determining the issue in
that case a writ of error will not lie to thU
court
[2] 2. Wbiie the act of the Legislature, re-
ferred to above, relative to the change of
venue has oUai^^ the <da8B of cases In
whldi It is propOT for 1^ Judge the grant a
change of v»u^ and it Is provided tiiat If
the evidence submitted shall show **tbat thoe
is probability or danger of lynching, or other
viol^ce, then It shall be mandatory on said
Judge to cbange the veniw to audi county in
the state as in bis Judgment will av(dd swdi
lyndUn^" we are o( the opinioo tbat where
the evidence is conflicting upon the issue as
to whether or not under the prtlttcn such a
case is made as requires ttie Judge to grant
the motion, tbe Judge bearing tbe same pass-
es upon the issues that axe to be detennlDed
upon evidence^ and that bis flndlns and Judg-
ment upon the same hi final and controlling,
unless manifestly erroneous. In tbe present
EZBIiL T. CITT 07 ATLANTA
material lss^e^ aild'lt canAot be said tliat It
was manifestly erroneous to refuse to ^rant
a change of venue.
[I] 3. It retjnlres no argument to demon-
Btrate that It was proper for the court to ex-
clude from the evidence a letter which was
addressed, not to the accused, bat to a third
party, threatening the addressee of the letter
with violence In case he should furnlah
money for the purpose of assisting the ac-
cused in making his defense; no evidence
being offered to ahoyr the authorship of the
letter.
Judgmei^ affirmed. All tlw Justices
concur.
OMOa. 197)
BZBLL V. CTFT OT ATLANTA.
(Supreme Court of Georgia. June 17, 1918.)
OoiocBBoa (S 61*) — IimBSTATB CoiacnKiB—
Bkgulation— Liquors.
Ad ordiuance of the city of Atlanta re-
golrea the agents, In charge of their bnnneM
1 tbe city, of all railroad companies, express
eompanies, and all common earriers doing busi-
ness in tbe city, on receipt of any apirituons or
malt liquora, mnes, or beers, in quaotities in
excess ot three galloni, coo^ned to any per-
son, firm, or corpontMO In the idty. to **maka
out a liat of same, place at ahipment, nana of
consigDee, and the quantity by cases or bar-
rela, the contents as marked thereon,** and to
r^ort die same tp Ibe police anttawltua of the
d^. B^ldf that sncb ordinance, ia so far as
ft relates to interstate shipments of the liquors
therein specified, la repugnant to the fifteenth
section of tbe act of Congress, commonly
known as the "Interstate Commerce Act (Act
[U. 8. Comp. St Sapp. 1811, p. 1801]). and is
therefore void and nnentoroeable.
[Ed. Note.— For othw, oases, see Commerce,
Cent Dig. Si 81-84, 89; Det Dig. S 61.*]
Action between the dtf of Atlanta and O.
M. S^L On oertlflM qneatlonB fnnn the
Court of Appeala
'*Tbe Court of Appeals desires the instruc-
tion of the Supreme Court upon the ques-
tions herdnafter stated ; the determination
of such guestiotts being necessary to a de-
d^on of the above-stated case. The dty of
Atlanta haa enacted th« following ordinance :
** 'An ordlnanoe nqnlrtng railway companies,
- express companies, and all common car-
riers to r^tnt Uw recetpta of any and
all ^Irltnous or malt llqnom In quanti-
ties In exoesB of tliree gallons, and to
pemdt tile cid^ of ^Hce, and Ills officers
uaOng under tola anthorltiy, to make an
Inspection ot their books as to the re-
oslpts. of andi liquors, and for other pur-
posea.
*"Be it wdalned by the oMytv and general
eoundl of tbe dty of Atlanta as follows:
" 'Section 1. That all railroad companies,
cxpreas companies, and all common carriers
doing business In the dty of AOanta shall, oo
receipt of any spirituous or malt liquors,
wines or beers, In quantities In excess odC
three gallons, on the day of the receipt of
same, or on the day following thereof, make
out a list of same, place of shipment, name
of consignee, and the quantity by cases or
barrels, the contents as marked thereon.
" 'Sec 2. That la the event any jrerson, firm,
or corporation shall have consigned to them
In three gallon lots, more than one shipment
In any one week, then a full report shall be
made thereof in the same manner as provided
for other shipments in sec. 313S of this ordi-
nance.
" 'Sec. 8. That the books, bills of lading,
waybills, records, and other documents In the
possession, custody, or control of railroad
companies, express companies, and all com-
mon carriers, which show tbe receipt or de-
livery of any spirituous or malt liquors, wine
or beers, to or for any person residing in the
dty of Atlanta, doing business in this dty,
shall be, at all times during the hours when
their offices are open for business, subject to
the Inspection of the chief of police, or any
memlier of the department authorized by
said chief to Inspect same, and said common
carriers, their agoits and employ^ ^shall
permit the chief of police or his authorized
officers aforesaid to Inspect sndi books, ree*
ords and documents fully and completely In
BO tar as same refer or show dellv^ or re-
ceipt 6f any spiritnons' or malt liquwa, wines
or beers, to or for any person residing wltbln
the Itndts of the dty of Atlanta.
" 'Sec. 4. Ttie reports provided for in sec-
tion 1 of this ordinance shall be made by the
agent of said common carrier In charge of
its business in ttie dty of Atlanta, and shall
be made on a printed blank, whldi blank
dull be famished by the dty free of dia^«^
and tt« T^rts provided for shall be written
or typewritten ttwecm neaUy and legibly.
** 'Sec 6w Any person, firm or corporation,
railroad otnupany or txpnm oranpany, or
common carrier, their cOoeni, agrats and am-
ployta, Tlolatliis of Ui« prortelou ot
tills Mdlnance, or filling or refastng to fur-
nish the rwcrtt'prorlded hereunder, or fail-
iag or refoelns to aHow their books to be In-
spected as to the character at Ails/maaa
hereta designated, shall be deemed guilty of
an ottame against the peace and good mdw
and general welfare of said dty, and on con-
victlon ttnetva in the recorder's court shall
be pnnlahed by a flna not «ceeedlng two hun-
dred dcdlars, and by a sentence to work «n
tbe pnhUc works of the d^ of Atlanta for
not exoae^ng tUr^ dan either or both
penalties to bo inflicted In tbe discretion of
the recorder.*
"The plaintiff in error was tried before the
recorder for the violation of the foregoing
ordinance and convicted.
"The following facts were agreed on -by
*Var«tlMr<
) tapU sad aaattoa NUUBaa la Dm. Die * An. Ola. K«r-NObL«pllss«t|t^
78 SOUTHEASTBBN REFOBXQB
oonnsel for both parties: 'Said accoaed, 0.j
tlL Ezdl. Is the agent of the Central of Geor-
gia Railway Company, a common carrier en-
gaged In commerce between the state of
Georgia and other adjoining states. That on
or about March 0, 1912, the dty of Atlanta
famished printed blanks to said accused, as
agent of said common carrier, to make re-
ports mentioned in said ordinance, and on
March 19, 1912, officer T. D. Shaw, a member
of the police force of the city of Atlanta,
demanded said reports from said O. M. Ezell,
and he failed and refused to furnish the
same in response to said demand. In the
meantime said railroad company had received
at its agency in Atlanta, of which agency the
accused was the agent in charge, certain
shipments of aplrltuons and intoxicating liq-
aoni (tf more than three gallons each, from
pointa wlthoQt the state of Oeor^ to At-
lanta, Ga^ and made delirery of the same
in the ordinary course. On the 19th of
March, 1912, said officer Bhaw, then a police
officer of the dt7 of Atlanta, with aatboti^
as above stated, demanded of said E&ell in
the dty ctf Atlanta that be make a report to
him, acting for the dty of Atlanta, aa de-
scribed In sectUm 1 of said onllnanoa At
the time, said Shaw suspected that persons
were receiving shipments of spirituous llq-
xton over tlie Coitral of Georgia Railway for
the purpose of sale, or Illegal sale, In the
dty of Atlanta, and while he did not have or
Qtedfy any particular name of offender, he
desired such information for the purpose of
prosecuting such persons as he might ascer-
tain had been guilty of such Illegal traffic
In spirituous Ilgnors; and such Information,
If received, would have been used In the
recorder's .court of the dty of Atlanta in the
prosecution of cases against such offenders
If such Information had been found pertinent
Said recorder's court has Jurisdiction, not
only of offenses against the ordinances of
the city of Atlanta, but also has Jurisdiction
as a court of Inquli^ for the state of Georgia,
with power to require a bond for the api>ear-
ance of those for whom reasonable cause ex*
Ists as to the violation of offenses against the
state of Georgia for tbetr appearance in d-
ther the dty court of Atlanta or the superior
court of Fulton county to answer such crime.*
"(1) Is the said ordinance invalid or un-
enforceable against the plalntlfl In error, as
being an unlawful interference with and at-
tempt to regulate Interatate eodunerce?
"(2) Is the said wdlnance repugnant to
the act of Gmigreaa, commonly known as the
^twstate CcHnmeroe Act,' as amended hy
ttie art of Congxem passed June 18, IfilO;
and eqpedally to Utat portion ttf Hie fifteen^
eecttoa of said act of Gongresst fdlowi:
It sbaU be unlawful tar any common carriw
(rql^ect to the provlaknu of tbls.acti or any
ofltou, agent or emiAoy4 of such, oommon
oancUr, or for any other person or corpora-
tion lawfolly anthortoed by such common
carrier to recdve information thuefrom,
knowingly to disclose to or permit to be ac-
quired by any person or coilwration other
than the shipper or consignee, * • • any
Informatlbn concerkdng the nature, kind,
quantity, destination, consignee, or routing
of any property tendered or delivered to sudi
common carrier for Interstate transportation,
which Information may be used to the detri-
ment or prejudice of such shipper or con-
signee, or which may Improperly disclose his
business transactions to a competitor ; and it
shall also be unlawful for any person or cor-
poration to BoUdt or knowingly recdve any
such information which may be so used:
Provided, that nothing in this act shall be
construed to prev^it the giving of such In-
formation In response to any legal process
Issued under the authorit; ct any state or
fedeiral court, or to any officer or agent of tlte
government of the United States, or of any
state or territory. In the exerdse of his pow-
ers, or to any officer or other only authorised
person sedclng sndi information tor the pnw-
ecution of persons charged with or suspected
of crime j or Infonnathm ctven by a common
carria to Knottier carrier or its doly author-
ised agent, fat the purpose of adjusting mu-
tual traffic accounts in the ordinary course
of bnslnesa of snch carrlera.'
"(8) Is the said ordinance repugnant to
section 20 of the above-mentioned act of C<ni-
gress, t^ reasuL nt the tact that in said act
ezdoslTe JvrlsdlctleD is oonfOTed upon the
Interstate Coi&merce Commission to pre-
scribe the manner in which common carriers,
subject to said act, shall keep their books
and acconnlsT
"(4) As Applied to transacttons of an In-
trastate nature in the state of Georgia, Is
said ordinance Invalid because repugnant to
section 2663 of the OtvU Code of 1910, which
confers upon the Railroad Commission of
the state of Georgia exdnslve jnrisdlctl<at to
prescribe the methods In which common car-
riers are to carry on their intrastate bud-
ness in the state of Georgia, In keqilng thdr
books and accounts?
"(5) Had the dty of Atlanta authority, un-
der Its charter or under any laws of the
state, to enact said ordinance?
"Wherefore it is ordered that the derk
of this court transmit to the Supreme Court
a certified copy of these questions, togetber
with the bill <tf exceptions, and record in ttie
casa"
Uttle & PoweU. of Atlanta, for platutlff In
error. J. U Maysoo. and W. D. ElUs, Jr^
both at Atlai^ta, tor defendant In error.
iriBH, a J. We win Urst consider the
second queetloii, that is, whether the ordi-
nance Is T^agoant to that poition of the
flfteoitb section of the Interstate OtHmneroa
Act wbldi.ls set forth In that question. The
veetien of the act qnoted, in express terms,
makes it unlawful for any eoHunm carrier,
WELUS'V. TBOMPSOH
828
subject to the prorlBions of tbe ad; or any
oflScer, agent, or employ^ of such conuaon
Carrier, knowlii|£ly to disclose the very In-
formation which the ordinance requires the
agents of sudi common carriers, In charge of
their bttsineBs In the dty of Atlanta, shall
give to the police of the city, and the ordi-
nance Is therefore repugnant to the act. and
for this reaadn toI^ unless the ordinance
fAIls within the scope of the proviso of the
act Under the proviso the Information
sought to be obtained the ordinance can
only be given "in re^<mse to any legal pro-
c^ Issued under the authority of any state
or federal court, or to any officer or agent of
the government of the United States, or of
any state or territory in the exercise of his
powers, or to any officer or other duly
anthor^ed person seeking such information
for the prosecution of persons diarged with
or suspected of crime.*' The provisions of
the ordinance requiring the Information to
be given are general, and apply to every case
of interstate shipment of liquors, and are not
limited to any of the instances referred to In
the proviso of the act This Is Illustrated by
the facts of this case, where an effort is made
to enforce the ordinance In circumstances not
within the proviso. The police officer who
demanded the report from E^ll as to certain
Interstate shipments of liquor was not acting
under any legal process issued under the
authority of any state or federal court, nor
was he an officer or agent of the United
States, or of any state or territory, acting
in the exercise of his powers, nor was he an
officer or other duly authorized person seeking
such Information for the prosecution of per-
sons charged with or suspected of crime. He
bad no warrant; no offense had been com-
mitted in his presence; he knew of no per-
sons who had committed any offense against
the state or the dty ; and therefore he was
not acting, in demanding the report, as an
arresting officer in the exercise of hie powers
to make arrests. No person had been charg-
ed with crime; in fact no particular person
had been snsj^ected of committing a crim&
The officer merely suspected that if he ob-
tained the information sought, he would then
have reasonable grounds to suiq^ that some
one had, or would, violate the prohibition
law. The act of Gongreas under considera-
tion does not give permission to common
carriers engaged In Interstate commerce, or
their agents, to furnish Information such as
the ordinance seeks as to interstate ship-
ments, tor ttie pnrposft of raising msptelon
against some unldentlfled or unknown person
or persons. But it pamlts such Information
to be given for the purpose of aiding the
detection or prosecution of some particular
person or persons already dmrged with or
suspected of crlm& It follows therefore tbat
the answer to the second question must be in
the afflnnativ&
UanlfesOy the ordinance la not aimed at
Intrastate shipments alone, or separately
from Interstate shipments. It is a siniUe
legislative scheme to cover all shipments, lr>
respective of their origin. Indeed, as the
manufacture or sale of the liquors referred
to in the ordinance Is prohibited In this
states It seems that there would be few, If
any. Intrastate shipments. It appears from
tbe agreed statement of facts that the only
shipments involved in the case were inter-
state in character, and there Is no IntlmatiMi
that there were any Intrastate shipments at
alL Aa we have held the ordinance to be
Told C0F the reasons above stated, it is
unnecessary to pass on the question as to
whether the requirements of tbe ordinance
are, as to Intrastate shipments, In conflict
with the provisions of Civil Code, | 266S,
authorizing the Railroad Commission of the
state to prescribe the methods In which com-
mon carriers shall ke^ thdr bo6k8 and ac-
counts.
In view of what we have said, It becomes
unnecessary to make spedflc answers to
other questions.
It waa suggested In the brief of counsel
for the dty that, since this case axos^ what
is known as lite "Webb Acf* has bew
passed by Congress. Whatever may be the
extent or diect of tbat act— as to whlCh ve
express no opinion— It has no effect npcm tbe
presmt am. All tlie Justices cmicnr.
Ott Oft. U»)
WmtliS T. THOMPSON.
(SuprsBM Court td Georgia. June 18, IflU.)
(SyUaliu hf the Court,}
1. Wnis (tS 62, 289*) — Pbobati — Souaor
FOBU— BURDKN OV POOOF.
To probate a will In solemn form, the bur-
den Is upon the proponent to prove the due ex-
ecution of the iostrnment and the testamentaiy
capacity of the testator at the time of its ex-
ecution.
[Ed. Note.— For other ease&_see Wills, Gent
'^•J^ 101-110, eSS-^wTTDea Difr^H 62,
2. Wnxs fl 303*)— Pbobatb— Solemn Fobh-
Statutes.
Tbe statutory rule that a will most be
proved in solemn form by all tbe attesting wit-
nesses is of necessitv dispensed with, where the
production of all Is Impossible because some
may be beyond the Jnrismction of tbe court, or
cannot be found, or are dead, or Insane, or oth-
erwise incompetent as witnesses at the time Vl
the trial. In such cases the doe execution of
the wilt may be proved by the subscribing wit-
nesses who can be produced, and proof of due
fttteatation by tbe requisite number of witnesses
may be made by proving the handwriting of tiie
others.
fIBd, Note.— For other cases, see WHI^ Cent
Dfgnil m-728; Dee. Dig. | SOS.*]
3. DEPOsmoNs (j2*)— Statutobt Fbovisions
—Probate of Will— Statdtos.
WUIe the interrogatories or depodtions oK
attee^ig witneases who reside beyond the jozis-
dictlon of the court may be takesr^^ IL not
~ — --- - - — -- - ^^is^^iij^VjQQQlC
•Fttr otlwr omm bm sime topl« sad saotloa NUMBSB in Dao. Die A An. Dls- Kv-Ho;
Ba»*r
824
78 SOUTEOlASTBiBN ^IPOBTBB
(Gn.
Mcetury to take tbem If the will can be proved
by other legal and aadafactor; evidence.
[Bd. Note.— For other caww, tee Depoittiona,
Oent Dig. 8S 2, 8 ; Dec. IMg; | 2.*]
*; Wills (J 289*) — AmsTAfioN OLAtrsB—
FBBSUVPnON.
Where there ii an attestation deuM to an
instrument offered for probate M a will, re-
citing all the facta essenuel to its dae execution
u a will, and it ia shown that the alleged tes-
tator and those whose names appear thereon aa
witnesses actually affixed their aCgnatures to the
paper, a presumption arises that it was execut-
ed in the manner presezlbed by law for the ez-
eention of wills.
[Bd. Note.— For other cases, see Wills, Oent
Dig. II 6SS-661 : Dea Dig. | 288.*]
5. WILLS (1 809*>— Pbobatb— DEVIflATir TXL
Non— KifowLZDOE or Tbbtatob.
That the alleged testator knew the con-
tents'of the instrument offered for probate and
deaired to execute it as a will may be considered
on the trial of an issue of devisavit vel non.
[Ed. Note.— For other cases, see Wills, Cant
H 786-737 ; Dec Dig. | 809.n
6. Wills (| 216*) — Ezsounoir — Pbobatk —
— Dbvibavit Vbl Noh— Soofb of Ikquibt.
In a proceeding to probate a will in solemn
form, tlie only issue is devisavit vel luin, and
Uwrnore the matter of construing the terms of
uie instroment offered for probate Is not up for
determination.
[Ed. Note.— For o&et cases, see WHls, Oent
ig. II 622, 628 ; Dec DLgTi 215^*]
T. WiLu ii 824*)— Pbobjus— PBoor-Dme-
non or VBBDIOT.
The evfdenee submitted In behalf of the
proponent as to the due execution of the instru-
ment offered for prolAte, and aa to the testa-
menta^ capacity of tiie allee^ testatrix at the
time of its execution, was aomcient to make oat
a prima facie case for the probate of tlie paper
aa a will, and, no evidence naving l)een addooed
for the contestant, the court erred in directing
a verdict in favor of the latter.
SEd. Note.— For other cases, aee Wills, Cent
r. 11 225, 767-770; Dec Dig. | 824.*]^
Error from Superior Oourt, Tamer Ooon-
ty ; Frank Park, Judge.
PetltloD by A. J. Wells, nominated executor
of the alleged will of Mrs. Evie Brown, for
probata in which Pearl M. Thompson filed
objecUoiuL Judgment for objector, and pro-
ponoit brings error, Berersed.
-A. J. WellB, the nominated executor of the
allied will of Mrs. Bvie Brown, applied for
the probate of the same in solemn form. A
caveat was filed by Mrs. Pearl M. Thompson,
who riaimed to b« the sole tuix at law of
Hrs. Browa The grounds of the careat
were In snbstance as follows: (a) Mrs.
Brown, at flie time the alibied wUl purports
to have hem executed, was not of sound and
disposing mind and memory, but was then a
lunatic, and continuously so remained until
the date of bar death; (b) if Mrs. Brown
signed the alleged will at all, she did not do
so freely and voluntarily, "but she was mov-
ed thereto by the undue influence and per-
suasions of * * * said A. J. WelU;"
and (c) tiiat the pretended will was void be-
cause A. J. Wells was not the son-in-law of
Mrs. Brown at the time of her death, as his
wife^ the dau^ter of Mrs. Brown, bad died
vrltbont . !anw prior to Qu death .of Mrs.
Brown. Mrs. Thompson at the time of Oie
filing of the appUcatlou bad two GhBdrai,
both of whom were minors, and a guardian
ad llton was appointed for tbem. The case
was tried in the superior court of Turner
county on appeal from the court of ordinary
of that county. On the trial the instrument
sought to be probated was put in evidoice
by the proponent The second item, thereof
was as follows: *^ give to my daughter,
Mrs. A. J. Wells, and my son-in-law, A. J.
Wells," a described house and lot in the
city of Ashbum, this state. In the third
item two designated lots in the same dty
were given to Mrs. Pearl M. Thompson for and
during her life, with remainder to such chil-
dren as she might leave surviving her. In
a Bubsequoit item all other property owned
by Mrs. Brown was given to ^er two daugh-
ters, Mrs. A. J. WellB and Mrs. Peari M.
Thompson, share and share alike. The In-
strum^t purported to be signed by Mrs.
Bvie Brown and four attesting witnesses,
namely, M. J. Miller, O. W. Graham, J. N.
Raines, and X E. Allen. The name of the
latter purported to be signed offlcially as a
notary public of Turner county, Ga. The
following attestation clause Immediately
followed the purported signature of Mrs.
Brown and preceded the purported signatures
of the four witnesses: "Signed snd putdlsh-
ed by Mrs. Evle Brown as her last will and
testament. In the presence of the andofilgn-
ed, who subscribed our names as witnesses
at the instance and request of said testator,
and In her presence, and in the presence of
each other, this the 1st day of AprU, 1909."
By evidence introduced by the proponent it
was shown tbat two of the persons who ap-
peared to be attesting witnesses to Uie In-
strument bad remolded from this state, and
that one of them, inUer, was, at the time ot
the trial, a resldeit of the stete of Sontb
Carolina, and that the other, Gmham, was
then a resident of the state of Florida. It
appeared that tbe places where these wit-
nesses reopeetlTtiy resided In snob states
were known. ThB Interrogaterles of nether
of tbese two mmresldent witnesses woe tak-
en. Millar's brother testified that he knew
MiUer^ signature, and that his stgnatore
to tbe Instrument was gaiuin& No one tes-
tified as to a knowledge of Ute handwriting
of Graham. Balnea and Allen, the o^er
two persons who appeared to be subscribing
witnesses to the instrument; were Introduced
by the proponott and testified on the trial.
Raines* testlnuniy was to the effect tbat Mrs.
Brown signed the instrument sought to be
probated In bis presence, and tbat he signed
It as a witness In her presence^ He could
not remember seeing Graham, Allen, and
Miller, the other three persons who purport-
ed to be attesting witnesses, sign the instru-
ment, but he testifled that they were presoit
Dig- «4^M«9r£o^giSMi
•Vsratbwi
I sss sants te^ sad ssetlaa mniBBR la Dep. XHc * Am.
828
wbtti It was iil^iea. Oo ■ crpw-wcamlMtkni
IM testulea: "Mow, I don't vmtmba txr*
log seen Mr. Allco there." Baines fnrtber
teotlflea to the effect that he had boarded
In the same hooeo'wtth lira. Brown for three
ywn or mm prior to her death, and wet
aeenstomed to see her on an avense of three
times dally. She spoke to hln three or foor
timee «bont making her will, and asked him
to reeommoid to her some one fie draw It
np. She Informed witnesses sereral times
how she dedred to ^qiose ot htt propwfcy*
and Vn dtoosltlon made of It In the Inatm-
meat was the same as she has Informed him
ttM wished to make of It He conversed
with her freqaentlr, and Otan was nothing
In hw «ondact to Indicate that she was not
ot Bonnd mind. Bw memory was bad the
last six months of her life. Allen's teitl-
mony was in sabstance as follows; Be knew
Mrs. Brown several years prior to her death.
He went freanently to the hoase whwe Mrs.
Brown resided. She signed the paper offered
tm probatOt and be hlmstff, Batnes. Oraham,
and Ulller also signed it She reonested die
witness to sign it - He w«ttt on: **She signed
It in my presence and In Uie prosenee of
others. • « • She said that she nnOer-
stood ft I etmversed with her, and she was
rational as she otct was. She read the pa*
per over: She knew what she was giving to
Ifrs. Thompson and what She was living to
Hrs. Wells. I mid to her: < • • • Mr&
Brown, I want to fix It jnst Uke yon want
It, and If It la not Uke you want it I wUl tlx
it;' and she said: *The property Is divided
JjoBt like I want ft and I want to have it wit-
nessed up to-day.' "
At the conclusion of the evidence Intro-
duced In behalf of the propon^t— and when
no evidmce had been adduced for the contest-
ant— the court directed a verdict In favor
of the latter. No exception was taken by
the proponent on the ground that the court
was without authorl^ to direct a verdict at
tbe conclusion of the evidence for the pro-
ponent, and where the contestant had tntro*
dnced no evLdence. Proponent moved for a
new trial on the usual general grounds that
the verdict was contrary to law and the evi-
dence, etc., and upon the following special
ground: "One of the grounds npon which
tbe court directed said verdict wAa that the
evidence adduced showed that Mrs. A. J.
Wells, one of the benefldorles under said
will, died without Issue prior to tbe death of
the testatrix, Mrs. Evle Brown, which left
only two legatees named In the will, her son-
in-law, A. J. Wdls, and her daughter. Mrs.
Pearl Thompson, and that because of the
death of Mrs. A. J. Wells A. J. Wells was
no longer a son-ln-Iaw, and as a matter of
law could no longer be a benefldary under
•aid will.'" Srror was assigned upon the di-
rection of a verdict on this ground, because
It was contrary to law, and that the words
**my son-in*law. A. X WeUs," as nsed in the
wlG, were merrty descrtptlo persona, and
did net designate the rtiani<tT fta wUeh
WeUs was to take nndsr the wUL A new
trial was refused, and tlia proponent ea-
cqited.
J. T. HIU and J. W. Dennard. both of
Oordele. for plaintiff In error. J. B. Hutche-
Bon, of Ashbnrn, and J. H. Tipton and J. B.
WilllantKn, both of Sylvester, for defend-
ant In error.
FISH, O. 3. (after statli« the Iketa aa
above). [1] Upon the trial of the issue
devlsavit vel non, the burden was npon the
proponrat to prove the dne necntlon of the
Instniment offered for probate aa tbe will of
Mrs. Brown— that Is, that she signed It aa
her will— and that It was attested and aab-
scrlbed in her presence by iliree or more at-
testing witnesses (Oivil Oode, | 884(9, and
that she, at the time of its ezeentlon, was
mentally capable of makli« a wOL
[2] To sacceasfolly carry this burden — It
befaiga proceeding to probate a wlU In solemn
form— It was incnmboit nptm tbe inoponent ^
to prove the paper offered to be the will of *
Mrs. Brown by all the witnesses purporting
to attest it who were at tbe time of the trial
in existence and within the jurisdiction of
the comt, or by proof of their sUmatnres and
that of the alleged testatrix, BCr& Brown, If
the witnesses, or any of them, were beyohd
the Jurisdiction of th^ conrt Civil Code, |
S806.
[t] It was diown on the trial that two of
the persons whose names appeared as at-
testing witnesses, viz., Graham and Miller,
were at that time nonresidents of this state,
and were therefore not within tbe jurisdic-
tion of the court The proponent has no
means of compelling these two nonresldttit
witnesses to attend tbe trial In person, and
it was not obligatory npon him to procure
and to introduce in evldoice upon the trial
their interrogatories or depositions, notwith-
standing the declaration In Civil Code, |
8861; that "Witnesses to wills may tw ex-
amined by commission, in the same cases,
and under the same drcumstances, as other
witnesses In other cases." This provision la
merely permissive, and a will may be adfultted
to probate npon other legal and satisfactory
proof, without the Interrogatorlee or deposi-
tions of nonresident witnesses. The fact
that the deposltionB of a witness could have
been teken does not prevent proof at his
handwriting. Doiny v. nnney, 60 Vt S24,
12 Ati. 106; Alilson v. AlUson, 104 Iowa,
m, 78 17. W. 489; Turner v. Turner, l litt
(Ky.) 101; Clark's Wills, 76 Hun (N. T.)
471, 27 N. T. Supp; 681 ; WUson v. CoUum, 0
L. B. Ir. ISO; McEeen v. Frost 46 Me. 239.
ClvU Code, I B884, provides: "Whenever the
subscribing witnesses to an instrument In
writing are dead, Insane, Incompetent, or in-
a<!ce6stt»le, or, being prodnced, do not recol-
1m tbe transaction, then proof of the act^
^pdngbyi or of the handwriting of, the
Digitized by Google
826
78 SOUTHBASTBBN BBFOBTBB
alleged malnr diaU be nerved u prlmur
erldesce of the fact of execatton.'* cen-
eral rules of evldeaoe are awUcabla In ze-
gard to the admissibility of evidence to srore
the ezecntton, existence, and genuineness of
a wia OUUs T. GiUis, 96 Oa. 28 8. a
107, 30 Lk R. A. 14S, SI Am. St B«Pl 121;
40 Gyc 1284. How codid tbe trial court
compel a witness In A- f ore^ Jnrlsdictlon to
appear Qien before commissioners tbat bis
interrogatories or d^osltlona might be taken?
Moreover, wills are docoments of too Im-
portant and Talnable character to reovirto
them to be sent into fore^ Jorlsdictlons
that the Interrogatories or depositions of
witnesses there may be taken— the instm-
ment may be lost or destroyed in transmla-
iloii— and, besides, tbere la no metiiod by
whldi commissioners may be required to re-
turn the paper to the trial court of this statft
Tbe statutory rule requiring Uiat a will must
be proved in solemn form by -all Oie attest-
ing witnesses Is of necessilar dl^ehsed with
when the iffoductlon of all Is ImposslUe be-
cause one or more may be beyond the Jur-
isdiction of Qie court, or cannot be found, or
are dead, or insane, or otherwise incompe-
tttkt to testify at the time of trial. In su<di
cases the execution of the will may be proved
by tbe nibscrlblng witnesses who can be pro-
duced, and proof of due attestotlon 1^ the
requisite number of witnesses may be made
by proving the handwriting of the others.
40 Oyc. 1307, 1308 ; 14 Enc. B7. 417. Nnmef^
ous cases are dted in these encyclopedias In
stvport of the principle announced. There
Is mithing In ctmfllct with the propositions
hereinbefore stated In the decisions in Deu-
inee t. Denpree, 45 Qa. 417. Brown t. Mc-
Brld^ 129 Ga. 9S, 58 S. Bl 702, or Bowen r.
Meal, 136 Qa. 860. 72 S. B. 840, relied on by
counsel for d^endant in error. The rulings
in these cases considered in connectloD vrith
the &c(b involved tend to support what we
now hold. In the Deupree Case, which was
tried in (HEletborpe conn^, tbe proponent
moved for a continuance on tbe ground that
two of tbe attesting witnesses resided In the
county of Meriwether, this state, that they
had been served with subpcenas and were
absent, that the expenses of attending court
had been tendered to both of such witnesses,
and, further, tbat the other subscribing wit-
ness resided to the stote of Alabama. A con-
tinuance was refused and the ruling was
upheld by this court on the ground that the
wttaesses did not reside In the county In
which the trial was had, and under the gen-
eral law of tbe state were not compelled to
attend court In another county. It was fur-
ther held that the interrogatories of all the
wltaesses could be used. In Brown v. Mc-
Bride there were toree witnesses to the in-
strument offered for probate. One of them
testified by interrogatories that he and the
othw two witoesses signed the Instrument In
the presence of the testator, and In tbe pres-
ence of each other, but that, according to
his recollection, tb» testator did not rign U
In the presence of this witness, and that he
did not know Aether the oQwr two wit-
nesses were present w1h» the testator sign-
ed. It WBM proved on tlie trial that one ot
the other witnesses was dead, and that tbe
other, some 15 years before the trial, had
left the otnmty, and had not been heard ct
8lnc& It was diown tbat tlw signature to
the Instrument was the genuine signature of
the testat<»; It was held by this court:
"When it Is Bought to prove a will in solemn
form, where one of the subscribing witnesses
Is absmit, it Is conqntent to prove the signa-
ture of endi witness after proving that the
witness is inaccesmble. Such proof for the
purpose moitloned is equivalent to proof
that the witness is dead m bvoai the jnrle-
difetlon of the court" It was further bdd
that the evid^ce was of such character as
to Buppozt the verdict In favor of the validity
of the will In Bowen V. Neal one of the wit-
nesses was dead, and It was said proof of
his handwriting could be shown. The case
was decided adversely to the inroponent on
the ground that only one of the three wit-
nesses was introduced to prove tlie will, what
it did not appear that the other subscribing
witness was sbovrn to be b^ond the Juris-
diction of ttie court as he resided in another
county of this statSb and his Interrogatories
could have beoi takai.
In the case now befbre ns^ Raines whose
name appeared as an attesting witness, tes-
tified that he saw Bin. Brown sign the liutru-
ment offered for probate, and that be signed
it as a subscribing wltoess in her preeenca
Allen, whose name also appeared as an
attesting witness testified that he saw Mrs.
Brovni dgn the instrument that he signed
It as a subscribing wltoess, and that he saw
Graham, Miller, and Batoes, whose names
appeared as attesting witoesses, sign the
instnuuent as snbscrlblng witoesses, and that
Mrs. Brown signed the will in his presence
and to the presmce of others. It thus ap-
pears that two of the snbscrlbtog witnesses
testified upon the trial, and tbat the evidence
of one of toem, Allen, showed that the to-
strument was executed to accordance with
all the requirements of the law. His testi-
mony was to the effect that the signature of
Mrs. Brown as well as the signatures of all
four of the witnesses were genutoe, and
Raines' testimony was to the effect that Mrs.
Brown's slgnatore and his own were genuine.
There can be no more satisfactory evidence
of the genutoeness oC a signature than toe
testimony of one who saw it written @ Cham-
berlayne, Modern Law of EMdence, | 2177),
and toe CTidence of Allen and Batoes as to
the execution of the Instrument sought to be
probated was, in the circumstances of toe
case, sufficient to make out a prima fade
case. Moreover, there was evidence of Mr&
Brown's knowledge of toe contente of to»
Instrument and her desire to execute It as
her will, and besides there J'^'J'^^^'
BARRETT MAYOR. ETa, OF SAVANNAH
827
tlon dsnse reciting compliance wtth all for-
malltlea of execntion, and these were mat-
ters for consideration In passing upon tbe
qaestlon of will or no will. 40 Cyc. .1286-
1801
[4] In Underwood t. Thorman, 111 Ga.
82S, S6 S. n 788, It was held: When the
attestation clause to an instmment offered
for probate as a will "recites all the facts
essential to Its doe execution as a will, and
it Is shown that the alleged testator and
those whose names appear thereon as wit-
nesses actually affixed their signatures to the
paper, a presumption arises that it was ex-
ecuted In the manner prescribed by law for
the execution of wills, and this Is so, though
there may be on the patt of one or more of the
witnesses a total failure of memory as to
some or all of the drcnmstances attending
the execution."
[t, •] In a proceeding to probate a will in
solemn form the Issue and the only issue ia
devlsavit vel non. The Jury must find that
the paper offered fbr probate is or la not the
will of the decedent The construction of
the terms of tbe instrument are not in such
a proceeding before the court for determlna-
tton. Wetter t. Habersham, 60 Oa. 193;
Glllls T. Glllls, 06 Ga. 1, 28 S. EL 107, SO U
R. A. 143, 61 Am. St Rep. 121. Ofterefore,
even if the provision in the Instrument offer-
ed for probate in the present case, deviaing
to Mrs. A. J. W^U, the daughter of Mrs.
Brown, and her son-ln-law, A J. Wells, cec-
tain realty, could be construed as being In-
operative by reason of the fact that Mrs.
Wells died prior to Mrs. Brown, and that
therefore he was not the latter's son-in-law
at the time of her death, this could not be
a valid reason why the Instrument should
not be probated as the will of Mrs. Brown.
[7] There was ample evidence, In the ab-
sence of any showing to the contrary, of the
testamentary capacity of Mrs. Brown to make
a will at the time the instrument offered for
probate was executed.
It follows from what has been said that
tbe verdict directed by the court against tlie
proponent was contrary to the evidoice^ and
tlie Judgment r^naliig a new trial is thexe-
ftire reversed.
Judgment reversed. AH tbe Jnatioea con-
cur.
<13 Ofu App. 101)
ATKINSON et aL T. COOK. (Ne. 4,627.)
<Oonrt of Appeals of Georgia. July 16, 1018.)
(SvOahiu hf Oe OoartJ
1. Xnjitbixs to Fbbioht Shiphent.
The exceptions to the ruling upon the de-
murrer, as well aB the asaignments contained
in the motion (or a new trial, are controlled
by the rulinn of this court in Lonisville &
Nashville Railroad Co. v. Burns, 0 Ga. App.
243, 70 S. E. 1112, and Atlantic Coast Uoe
Railroad Co. v. HU>, 12 Ga. App. 302, 77 S. E.
816, adversely to the contention of tte j^aln-
tiffs in error.
2. CONRECriNO CABBma.
Since the plaintiff's petition can properly
be eonBtrued as an action sounding in tort,
predicated upon tbe carrier's breach of duty
as the last of several connecting carriers, the
ruling In Southern Express Co. v. Cowan, 12
Ga. App. 818, 77 S. E. 208, is not in point
3. Injttbibs to Feeight.
Tbe evidence authorized the verdict and
there was no error in refusing a new trlaL
Error from Olty Court of Fitzgerald ; B.
Wall, Judge.
Action by B. O. Cook against H. H. AQdn-
son and others, receivers. Judgment for
plalntU^ and defendants brljv error. Af-
flnned.
ElUns & WaU, of Ftbsgerald, anA BolUng
Wbltfleld, of Bmnnrtckt for plalntlffft in er-
ror. Qriflbi ft Orlflln and lIcDwiald ft Gran-
tham, all of Fltagerald, Cor defendant In
ror.
BUSSSLE^ J. Judgment afifrmed.
(U Oa. App. 79)
EAYLOR T. HATOB, BTO, OF OABROU*-
TON. (No. 4^.)
(Court of Appeals of Georgia. July 8» lAlS.)
(SylUibu* by tke OovrtJ
Cbiuhai. Law (| 1170*)— Bsthw— Dbouioit
or iNTIBiaOIATE COCTBT.
Where a petition for certiorari attacks
the finding of a recorder of a, municipal court
solely on the ground that It was without evt*
deoce to support it, and tlds finding is approv-
ed by the Judge of uie sapeiior court and there
is some evidence, althonxh slight, In support
of the finding of the recorder, this court will
not reverse the Judgment of the superior court
overruling the certiorari. Hardaway v. Olty
of Atlanta, 0 Ga. App. 837. 72 8. B. 804.
(Ed. Note.— For other cases, see Criminal
Law. Cent Dig. | 8001; Dee. Dig. i U70.*}
Error from Superior Court; Oanoll Oonn-
ty ; R. W. Freeman, Judge.
Petition for certiorari by Jeff Eaylor
against the Mayor, etc, of CarroUton.
From a judgment dismissing tbe petitlOD,
plaintiff brings error. Affirmed.
J. O. Newell, of CarroUton, for plaintiff In
error. 0. B. Ro(^ of CarroUton. tor dtfend*
ant in wror.
HITiTs 0. J. Jndgmit ■fllrmafl.
(u Oa. App. an
BARRETT V. MAYOR, ETC., OF SAVAN-
NAH. (No. 4.406.)
(Court of Appeals of Georgia. June 26, lOlfl.
Rehearing Denied July 15, 1013.)
(Sytlahtu bv tlu Oowrt.)
1. Appeai. and Ebbob (S 1003*)— Findinos—
bvidencb.
Under the ruling of this court when this
case was here before (0 Ga. App. 642, 72 S.
49)< two questions were left to be determin-
*Fer otbtr ausa asms tx^e
Digitized by VjOOglC
f9 aOXJTBBABTBBH BBFOBXSIt
•d bj tk* jmrt (1) WheUiw it vw negUgenee-
npon tbe part of the nnnldpaUtj to leave the
ezcantioii npon Its stroot unprotected by goard
rails or otber deTice; aad (2) whether this
negllgeneo (U tbe jury found that the excava-
tioii ma ■ncli as required protection) was a
concorrent cause of the injury. Both of these
Jiaeetions were fairly submitted by the trial
adce to the jury. While, la our opinion, Che
eTidence atrongly preponderates in lavor of a
finding for the plaintiff, still we cannot adjudge
that the testimony demanded a finding that the
plsintifrs Injury would not have resulted if the
oity had not been negligent, nor can we hold,
as a matter of law, that the act of tbe dty in
leaving. the excaTation nngnarded was negli-
gence.
{Sa. Noteu— For other cases, see Anieal and
Brror, Cent Dig. K Se88-8M&; Dee. Dig. |
1008.*]
2, Hdnicipal GoBPOHAiiom 821*)--Qi»>
XlOff roB JUBT.
No act can be affirmed to be negligence,
as a matter of law, unless it has been made so
by statute; and nothing ruled in the former
decision of this case can properly be construed
as a holding that the act of the municipality in
leaving the excavation unrnarded was, as a
matter vt law, negligence. For this reason the
court did not err in the instructions of which
complaint is made in the various grounds of the
motion for a new trial, nor in quali^ng tbe
request for Instructions, so as to leave it to
the jury to eay whether the failare of the mu-
nicipality to place guards or barriers around
the excavation In question was negligence,
when considered in connection with the facts
and drcumstances of the particular case.
[Ed. Note.— For other cases, see Mnnidpal
Corporations, Cent Dig. H 174B-1757: Dec
Dig. I 821.*y
Brror from OLty Oonrt of Sanumah; Da-
vis Freeman, Judges
Action by Mrs. J. H. Barrett, Jr., against
tbe Mayor, etc, of SavannalL Jndg^nent for
defend:anU and plalnfiUT brin^ onror. Af*
firmed.
Twiggs 8c Gazan, of Savannah, for plain-
tiff In error. H. B. Wilson and David 0.
Barrow, IraUi of Savannah, for defmdant in
«Tor.
ttUSSBOi, J. Indgmait alBrmed.
.(13 Oa. App. 81)
JBNKINS T. STAm (No. 4,«7&)
(Court of Appeals of Georgia. July 8. 1S13.)
fByVaJtiu by (Jbs Oemrt.)
1. Gnmivjx I*a.w <| 776*)— Ikbi«tjo«onb—
NBCEBsrrr.
The evidence tending to establish an alibi
was weak and inconcluffive, and there was no
error In the failure of tbe court to eharn the
5ary spedfleally on the subject; especially le
this true in tbe absence of a request to give
such charge. Smith v. State, 6 Ga. Am;>. 677,
66 S. B. SOiD^
[Bd. Note^For otiier cases, see Criminal
Law, Cent Dig. H 183S-1887; Dee. Dig. |
776.*]
2. Witnesses (| S31H*)— luPEAOBrtfo Bvi-
nSNOB— EXCLUaiON.
The ruling of the trial judge in ezduding
bom evidence testimony offered to impeach a
grant
vritnass on a matter wholly immaterial and ir-
relevant to tlic Issue vras not nroneons.
[Bd. Note.— For other cases, see Witnesses,
Dec. Dig. I 881%.*]
8. Cbihinai. Law ({ 042*)— New Teia]>-Ix-
PEAOHXnO Etidbnob.
The alleged newly dlseovrnd evidenoe be-
ing purely Impeaching In character, there
no abuse of discretion In the refusal to g
a new trial on that ground.
[Bd. Note.— For other cases, see Criminal
Law, Cent Dig. K 2816, 2mr2882; Doc Dig.
I m*]
4. Rbvisw ov Affbai*
No enor of law appears^ and the svldence
dtearly supports tiie vwaiet
Brror from City Oonrt of SandersvUlo; B.
W. Jordan, Judge.
B. A. Jenkins mu catvietoa of crime, and
brings error. Affirmed.
A. R. Wright and Gross ft Swlnt, both of
SandersvUIe, for i^alntlff In error. J. B. Hy-
man, SoL, of SanderavlUe^ for the Stata
HILL^ a J. Jodgmoit ifflrmed.
(II Oa. App. 78)
SHHFFIBLD r. BTATSL (No. 4,063.)
(Oonrt of Appeals of Georgia. July 8, lOlS.)
(SfUuhut by th€ Court,)
1. HAflTBK AHD SBBVAUT (| 67*)— LAB0> GOH-
TBACT— PBOSBCUTXON— EVIDKItCE.
To authorize a conviction under the act of
1003 (Acts 1003, p. 00). the evidence most show
a contract of service, distinct and d^nite as to
all essential , terms, such as the time whan l^e
contract Is to commence and- terminate, the
amount of waees to be paid, how tbe laborer is
to work, whetner by tiie day, week, month, or
year, where he is to work, and the kind end
character of the work to heperformed. Star-
Ung V. State, 6 6a. App. 171. 62 S. a 903
Moaely v. State, 2 Ga. App. 1S6, 68 8. B- 298
Glenn V. State, 123 Ga. 685, 51 S. B 60S
McCoy V. State, 124 Ga. 218. 62 & B. 434
Presley v. Stat^ 121 Ga. .446^ 62 a B. 760.
Thorn V. State, 12 Ga. App. 78 8. B. 808.
[Bd. Note.— For other cases, see Master and
Servant Oent Dig. | T6; Dec Dig. | «7.«]
2. BfABTBa Aim Bcbtaut <| 67*>— Laboe Ooiv<
TRAOl^PBEBUMPnOH.
A verbal contract alleged to have been
made in March. 1012, by which the laborer
agreed *'to work for the prosecutor from Janu-
ary 1, 1018. to July 1, 1018, at 820 per montii,"
is too indefinite as to some of the essential
terms, such as the place where the work was to
be done and the kind and character of tbe work
to be perfonned, to be the baris of a prosecution
for cheating and swindling under tin above-
mentioned act
[Bd. Note.— For other cases, see Master and
Servant Cent Dig. S 76; Dec EHg. { 67.*]
Brror from City Court of Jackwm ; H. H.
Fletcher, Judge.
Bd Sheffield was convicted of violating the
labor contract lav, and brings error. Be>
Tersed.
T. T. Moore^ of Jackson, for plaintiff in
error. 0. Lb Bednun, SoL, of Jafjcaon, for
the State.
HILL, a 3. Jutl^ent reversed.
•Vte otkfs oases see same tsfpls an* ssottSB NOMBBE la Deo. Dtg. a Am. Dig. ^nl^ §^nseAJt^l
MOOBK T. a H. LOWB A Oa
829
(S Oa. App. S)
QIB80N T. 0<a 4^4.)
(Oonrt of Appcftli of Clow^o. Jtily 8* m&)
^fiyRadu by U« OQurt.)
Lucsht (H 28, 30, 32*>— iKDionooiT— Dx-
8CB1PTI0N OF PeOPEBTT— DwnjBBEB— LOCA-
TIOM OF PbOPEBTT— OWWBBSHIP.
The court did not err in overroUnff tke do-
Kiarrer to the iDdictment.
(a) Where a timely demand Ib made by spe-
cial demurrer, one indicted for simple larceny is
•lititlect to tiave such a definite and particnlar
description of pioperty alleged to have been
stolen as will enable him to know the exact
transaction in vhicb it la claimed he violated
the law; but a description of the property as
"one metai chnrch b^' belonging to a named
ehnrch is sufficiently definite to withstand a
apedal dennrrer which does not itself apedfy
in what leapect the description ihoold be more
ninnte.
Qi) In an indictment (or dmple lanjenTt it
is not necessary to state Uie location of the
property or the place fxom which it was taken
and carried away, farthw than to state that it
waa in tlie ooon^ in which the court had jnria-
dictifoi, oalsM a atatemcnt of tho locati« ia a
descriptiTe averment esseDtial to the identifica-
tion of the property alleged to have been atoleu.
(c) The wor& "Morning Star Coiored Baptist
Obnreh" import a religious association, and
nch'a light to the possession of property suit-
able for church purposes as will aQthoriie the
ownership of uiy ptopwtr umI • 1>7 H vliich
may ium been stolen to bo laid In inch a oom-
sregation of persona.
[Bfl. . Note.— For other cases, see Larceny,
Cent Dig. li 68. 69, 62. 64-76. 81-02, 90. 101;
Dec. DigT H 28. 80. 88.^]
Error from Superior Oonrt, lOUar Oonnty ;
W. C. Worrlll, Jadge.
Will Gibson was convicted of laroeny, and
brings error. Affirmed.
W. I. 6eer| of Colquitt, for plaintiff In er-
ror. J. A. Lang, Sol. Gen., of Dawson, and
B. T. Oastellow,. SoL of Gothbert. by
JU B. Arnold, of At]RIlb^ for the State.
BUSSELli. J. Judgment affirmed.
(IS Oa. App. 101) '
PAYNB v^ SEAOARS. (No. 4,768.)
(Court of Appeals of Geor^ July Iff, 1918.)
FaTUKIfT (t 89*) — APFUCATIOa — liUTDLMD
AND Tenant.
In the absence of direction by a debtor to
apply a payment made by him to one of two de-
mands which his creditor holds agalast him, the
creditor can apply the payment to either vae of
the demands, where no rights of third parties
wilt be affected, even thongn the payment be de-
. lived from the proceeds of property upon which
the creditor has a special Uen as to one of the
del>tB. This princMe applies to the payment by
the tenant to the landlord, where the latter re-
eelves no direction from the tenant to apply
such payment to the rent, but the tenant leaves
it optional with the landlord either to apply the
payment to the rent due or to another unsecur-
ed indebtedness which the landlord holds
•gftinst the tenant Bnfford v. Wilkerson, 7 Ga.
i^ 443. 67 8. B. 114; Ovil Code 1910. f
[Ed. Note.— For other cases, see Payment,
Cent Dig. Si 104-114; Dec. Dfg. t 89 ;* Land-
lord and Tenant Cent Dig. H. 657, 85&]
Error from QttyOovtoiCJeffinKni; Q.A.
Johns. Judges
Action between John Payne and 8. A.
Seagars. From the judgment, Payne brings
error. Affirmed.
Bay ft Bay. of Jefferson, for plaintiff in
error. Chaa. Emory Smltb and Votrex IL
Smith, both of Athens, tot defendant In
error.
HTTiTs O. J. Judgment dfllrnma.
(U Oa. App. 1U>
HAYOB, Sra, OF OBDARTOWN T. TANN.
(No. 4,8600
(Ooart of Appeals of Georgia. July IS, 1818.)
(ByXiabiu by M« Coari;
Tbxai. (I 198*)— iNsifatnmoNs— ShnunoH
or Opinion.
There being evidence that Ae grade of
the street adjacent to the plaintiBTs propraty
had been changed without her consent and
that in consequence thereof the market value
of her property had depreciated to the extent
of from $400 to $500. a verdict in her favor
for was not unsupported. Pause v. At*
lanta. 98 Ga. 82, 26 & B. Am. St Bep.
290.
Taken as a whole, the tdtarge of the trial
indge anfflciently restricted the jury to a find-
ing of damages resulting from diminution in
market value. The charge snffidently insteuct-
ed the jnry in reference to the measure (tf
damaaes, in the absence of a request for more
spedBo iDstmctlona. Considered in the light
of the context and of the entire charge, ue
court did nott the ue of tiie following lan-
guage, express tiie opiBlon tliat the plaintiff
was entitled to recover: "Ton look to all the
evidence, see what the proof is upon all these
questions, and see what the damage was, what
she would be entitled to."
[Ed. Note.— For other cases, see Trial, Cent
Dig. H 436-188: Dee. Dig. % 19S.*]
Error from City Court of Polk County;
F. A. Irwin, Judge.
Action by Mrs. M. B. Yann against the
Mayor, etc., of Cedartown. Judgment for
plaintiff, and defendant brings error. Af-
flrmed.
Jno. E. Davis and W. G. England, Jr.,
both of Cedartown, for plaintiff In error.
Bunn ft Trawicfc, of Cedartown, for defend-
ant In error.
POTTLE, J. Judgment aflirmed.
01 Oa. App. 121)
MOOBB r. a H. LOWB ft 00. (No. 4,^)
(Court of Appeals of Georgia. Joly 22, 1018.)
ffiylte&w by tks Ootirtj
1. No Euon— Vebdiot Sustained.
There was no error In the charge of the
court ; and, though there was sharp conflict in
the evidence, the verdict waa authorised.
2. Trial (|S 253, 206*)— Instbuotions—
BKQUSBTS— WiTHDBAWAX. Or ISSUES— OOU
BT OtHXB iNSTBUCnONB,
The tact that the court did not ntedficaHy
refisr to tdrenmstanees eorroboratlve oi the ecm-
•Tor •tlMr<
I ss* sasts tspio aaa aeeUsa MDMBaR to Dse. Dig. * Am.
830
TS SODTHEASTBBN BBPOBTflB
tontiotia of one of the partiei affords no grotind
for an asBignment of error complaining that
thia omiasion withdrew the coneideration of
these drcamatances from the Jury. The iwigB
fairly stated the controlling isaoe in the case
and correctly ioBtructed the jury with reference
thereto. If more explicit instructions were de-
sired they should have heen made the sabject
of a timely and appropriate request
[Ed. Mote.— For other cases, see Trial. Cent
Dte. II 61B-628. 628-641. 706-718, 715, 716.
718; Dec Dig. H 268, 296, 296.*]
Error from aty Coort of VaUIosta; J.
G. Cranford, Judge.
Action by G. H. Lowe ft Co. against W. H.
Hoore. Judgment fbr plalntUCa, and defend-
ant brings error. Affirmed.
J. R. Walker and Dan B. Bruce, both ct
Taldosta, for plaintiff In error. I. H. Cor-
bltt, ot Mllltown, and W. B. Smltb. of Nasli-
▼lUe^ for detendantB in wr'or.
BUSSELL, J. [1] Lowe ft Co. brougbt
suit against Ifoore on a promissory note. He
filed a plea of non est factum, and this was
the only Issue in tbe case. The defendant
contended that be never signed the note,
and witnesses testified in his behalf that the
note which he signed was a very small liiece
of paper, whereas tbe note here involved is
an extremely long instrument, covering near-
ly two pages of the record, with clauses con-
taining reservation of title, conveyance of a
mortgage lien, power of sale, and various
other stlpnlations. Moore also Introduced,
for comparison on the part of the Jury, a
number of other notes which he had given.
It is enough to say that there was ample evl-
dence to have sustained the finding on the
part of tbe Jury in favor of the defendant's
plea of non est factum. On the other hand,
the plalntifEB proved by the subscribing wit-
nesses tbe executfon of tbe note.
[2] The assignment of error and the
amended grounds of tbe motion for new
trial all complain of the omission of the
inigfi to call apedal attention to certain
drcomstancee In tbe evidence, and especial-
ly that the court excluded from the consid-
eration of tbe jury evidence in his favor and
tbe argument of his counsel, which tended
to stress the fhct that It was improbable and
nnllkfily that a man of the defendant's stand-
ing would have given such a hide-bound In-
rtmmait as that In suit. It is Insisted that
when the Judge told the Jury that it was not
ft question of what tb^ would have donci or
any one else would have done, in the prem-
ises, but that the real question was whether
tbe defendant signed the note, he virtually
prevented the Jury from considering the
reasonableness or nnreasonablenesa of the
testimony in behalf of the plaintiff, and
thereby prejudiced the cause of the defend-
ant. A case can be Imagined In which an In-
stractlon on the part of the trial Judge
nd^t have had ttds effect ; but in the pres-
oit case the Judge spedflcally told tbe Jury
(after correctly teUbig them Oat tbe gnes-
tion being tried was whether the note warn
signed by tbe defoidant and iMber tUs
was the note or not) to consider all the evl-
dence that throws l^cbt tQMn whethw or not
Moore signed the note, and Uiat, if tb^ be-
lieved from tbe preponderance <tf the evl-
d^ce that Moore signed It, their verdict
would be In favor of the plaintiff ; whereas,
if they believed that Moore did not sign It,
the verdict would be in fftvor of tbe defend-
ant So far from exclndlDg from the Jnry
the consideration of the probability of the
defendant signing such a note as tbat In suit
the Judge In his charge expressly told them
more than once that all the evidence bad
been admitted for the express purpose of
throwing light on the question whether Moore
had in fact signed the note. As stated by
the Judge, what any one of the Jnry would
have done in regard to the note would he Im-
matertaL The true question was whethtf.
under tbe drcumstances in the case, and con-
sidering Moore's surroundings, he signed the
note. In a portion of the charge, antecedrat
to that of whidi complaint is made, the
court charged the Jury as follows: TThe
burden of the proof Is upon tbe plaintiff^ in
this case, and the plaintiffs should make out
their case by a preponderance of the testi-
mony. Tbe question is a question of fact It
la a question of whether or not Mr. W. H.
Moore signed tbe note sued upon. All the
testimony has been let in for the purpose of
throwing light upon tbat one fact as to
whether or not Mr. Moore signed or not"
Viewing the charge as a whole, there Is
nothing In the point tbat tbe court withdrew
from the consideration of £he Jnry any fact
or drcamstance illustrative of the main is-
sue. The real question in the case was
whether or not Moore signed the note. The
court did not withdraw such drcumstancee
from the Jury, but on the contrary, express-
ly submitted to them every drcumstance
which might illustrate what Moore would
have don^ or did, nndw the drcnmstanesB.
What any one else mi^t have done was en-
tirely Immaterial, because the same Influ-
ences might not have operated in like man-
ner upon another IndlvlduaL There was no
oror In refusing a new trlaL
Judgment afflrmed.
(U Oa. An- lOO)
ATKINSON et aL v. TATLOB. (No. 4,442.)
ffjourt of Appeals of Georgia. July 19, 1018.)
(ByUahUM by the OourtJ
1. Apfieal and Ebbob (I 1004*)— BiTiBW —
BxcEssirE Dauaqes.
The recovery of damages which cannot be
legally measured by any other standard than
the enlightened conscience of impartial jurors
cannot he Bet aside upon the ground that it
is excesstre, unless it is manifesuy the result of
prejudice, bias, or corrupt motive. Sonthera
•Vor «tkar oasw ■•• mom toplo and swiUra NVMBBB Is Dec Dig. * Am* Dig.
Qa.)
TEAROIN r. DTB
831
Bmttway Co. t. Wrl^^ 6 Qtu App. 172, 64 S.
BL 703 : Mnrphj t. MMcham, 1 Giu App. 155.
S7 S. E. lOiB; Mercbantf ft Mioen' Trans-
rrtation Co. v. Corcoran, 4 Ga. App. 664, 62
£. 130.
[Sd. Note.— For other caae% tee ApipQal and
BnOT^^Cent Dig. U S&M^T; Dee. Dig. 1
2. Davaou (i 102*) — Pkbsohal iHJUBm —
"Inaamuch as entoreed idleness or dimin-
lihed efficieocy in offices of labor is calculated
fiairment can be classed as *'pain and siiSer-
ng," and the jnry may properly be instructed
that tiie law fixes no otber measure than the
enlightened consdence of impartial jnrors.
Powell T. Railroad Co^, 77 Oa. 200, 3 S. £9.
757: Atlanta Street Railway Co. v. Jacobs,
88 Ga. 647, 652, 15 S. E. ^5 ; Metropolitaa
Street Railway Go. t. Johnson, 90 Ga. 508, 16
8. a. 49: Southern Railway Co. t. Hutcben-
■on, m Ga. 69ia). 71 8. B. 802.
Note.^For other cases, see Damages,
Cent Dig. i| 266-250; DeoTDlg. i 102.*]
S. DaxAon (§ 216*) — Febsohal iNjimiEs —
Mental Suffebino.
Though ttie allegation upon that subject
might lure beoi subject to spedsl demurrer,
mental pain and sufEering was charged in the
petition as an element of damage ; and (or this
reason, as well as because the allegations of
the petition were supported by evidence, it was
not error for tiie court to charge the jury that
"tioa physical injury which incapacitates a
man or woman from labor is ctaeeified in law
with actual mental pain and Buffering, such
pain and suffering as is charged in the peti-
tion."
[Ed. Note.— For other wses. see Damages,
Cent. Dig. if 648-556; Dec Dig. | 216.*f
4. DAHAGES (I 216*) — PXBSOIf Ali InJITUU —
Ikbtbuctionb.
The use of the word "accident" in an In-
stmction, in which the jury were told that "Lf
Inability to labor is the resott of an accident
or injury, and is the result of the accident or
injury charged in the petition, if there is evi-
dence to sustain that you will take that Into
consideration with otner evidence in determin-
ing what the plaintifl in this case should re-
cover for the injury which she claims was
sustained," was entirely harmless, since the
meaning of the word "accident" was qualified,
If not entirely eliminated, by the immediate
nse of the words "or injury" as explanatory
thereof, and coold not have misled uie lory;
for all right of recovery was ezpreasly oonBned,
in the latter part of the InBtmetton, to the
injury alleged by the plaintiff. .
[Ed. Note.— For other cases, see_ Damages,
Ctfit Dig. {{ 548-665; XSeeTDig. I
5. TBIAL (5 252*>— iNBTBtrcnoNS— EVIDENOB
10 SUPPOBT— PhTSICAL CONDITION.
The jury saw the plaintiff, and there was
evidence that at the time of the alleged Injury
her appearance would plainly indicate to any
observer her extremely weak and delicate pliysi-
eal condition. It was therefore not error for
the court to Instruct the jury that when a per-
son is phyrically incapable of helping heraelf
on a train, and that fact is known to the con-
ductor, then, under the relationship existing
between the carrier and passenger, it would be
the duty of the conductor to render snch as-
sistance aa the drcumstances might necessitato.
Nor was it error f w the court to diaiie, in
connection therewith, "Tlw fict^ and draun-
stancee. If yon believe they existed in this
case, that would demand and require any as-
sistance of the eoudoctor are to be determined
by you," altliough the plaintlfl'e petition did
not charge that any asnstance was demanded
or required of the eondnetor.
[Ed. Note.— For otiier eases, lee TrtaL Cent.
Dl^. H 606. 696-612; Dee. Dig. 1 m*]
6i Ikstbuotions.
The evidence authorised the reference
which the court made to the subject of perma-
nent iojurin, and the instruction upon that
subject, of woich complaint la made, was ap-
propriate and free from error.
Error from City Court of Tlfton; R. Eve.
Judge.
Action by 8. A. Taylor against H. M. At<
kinson and others, receivers. Judgment for
plaintiff, and defendants bring error. Af-
firmed.
J. H. Herrlll, of Thom&svlUe, and Fal-
wood ft Skeen, of Tlfton, for plaintiffs In er-
ror. J. 8. RidgdlU and a a Hall, botb of
Tlfton, for defradant in erxor. •
RUSBEIiL, J. Judgment affirmed.
(la Oa. App. 108)
YEARGIN ▼. DTB. (No. 4,862.)
(Court of Appeals ot Georgia. July 15, 1913.)
Guabautt (I 49*) — DuOHAsas or Guabah-
TOB.
Where one agrees to pay the debt of an-
other, and receives for his promise a valuable
consideration, he Is not released merely be*
cause, upon his failure to pay, the creditor,
without a return of the consideration, agrees
to look to the original, instead of the substitut-
ed, debtor for payment The statements made
by the creditor in the present case did not
amount to an agreement to release the sub-
stituted debtor, and were admissible in evidence
only for the porpose of illustrating whether
there had been an agreement by the defendant
to pay the plaintiff tlie debt due him by a third
person. There was no error In the instruction
oQ this subject of which complaint is made in
the motion for a new trial. The defendant
in effect admitted a promise to pay what the
ori^al debtor owed, and contended merely that
he and the plaintiff had been unable to agree
on the amount The evidence tolly aotiioiised
the verdict
[Bid. Note. — For other cases, see Guaranty,
Cent Dig. t 60; Dec Dig. | 49^*1
t!rror from City Court of SOberton ; Geo.
O. Gr<^an, Judge.
Action by Albert Dye against W. H. Teaz^
gin. Judgment for platntUF, and defendant
brings error. ' Afllrmed.
Worley ft Nail, of Elberton, for plaintiff
in error. Ward ft Payne, of Elberton, for
defendant In error.
POTTLE, J. Judgment affirmed.
•For otner eases sas same topis and seotm HUHBBB la Dep. Dig* ft An. Dig. Kmj-Ho. SMss ft Bw^ Xndcxss
Digitized by
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832
18 SOCrTHlLASTBBM EBPOBTBB
<U Qa. AM. W
BODGES A OTLLESPIB, SHIELDS ft CO.
CNo. 4,868.)
(Cotitt of Appwls «f Georgia. J0I7 & lOlS.)
HmBAHD AHD WlTK (| 232*) — CoiTTUOn —
Subeitship^Btidbkob.
The evidence demanded a finding In favor
of the plea of soietyihip filed hj the defendant,
who vas a feme covert, and the court erred in
overmling her motion for a new triaL
[Sid. Notfc— For other caies, we Haaband and
Wife. Cent. Dig. » 8t^-848, 981; Dec. Dig. {
282.*]
Error from City Court of JefCetson; J. A.
JohoB, Jndge.
Action by GUlesple. Sbielda & Co. against
Olivia Hodges. Judgment tor plaintiff, and
defendant, Olivia Hodgea, brings error. Be>
\«ned.
Geo. C. ThonutB, vt AUiens, for plaintiff in
error. Lewis G. Bnssell, of Winder, for de-
foidant in error.
ViyiTUE, J. Salt was bronght egidfiBt a
hnsb&nd and wife on two promissory notes
signed by them apparently as Joint makers.
Tbe wife pleaded that she signed the notes
as surety for her husband. It appeared from
the evidence that the husband was a mer-
chant and that the notes were gtveU for the
purchase price of certain merchaiidlse which
had been shipped to him. The evidence
shows that the wife had no interest in the
business and received no part of tbe consid-
eration for which the notes were given; the
goods having been shipped directly to the
husband and disposed of in a stock of mer-
chandise owned by him. The husband and
the wife both testified that the notes were
signed by the wife as security at the request
of the husband. One of the agents of the
plalntltts. testified that he did not ship the
goods to the husband nntU the notes wa« re-
ceived, and that he requested that both tbe
husband and the wife sign the notes before
the goods would be shipped. Several letters
and telegrams containing correspondence be-
tween the husband and the plaintiffs were in-
troduced in evidence. In these It appraxs
that the husband promised to forward the
notes, and the plaintiffs wrote to tbe hus-
band that the goods would be shli^ed as
soon as the notes were rec^ved, signed joint-
ly by the husband and the wife.
Several decisions are cited by counsel for
the plaintlttB to the effect that where a sale
has been agreed upon with a husband and he
cannot give security, and thereafter his wife
becomes the purchaser of the goods, either
directly or throimh ber husband as agent,
and gives the required seenrlty. It la the
same as If no mle to flw husband had ben
contenq»Iated. In sn^ a case tbe debt to
hers^ not Usl See Bolaod r. KUnk, OS Oa.
448; Hallr.SnmTaa,63Ga.l27! McDonald
T. Blntfanthal ft BIdEart, UT Ga. 120^ 48 S.
B. ^2. Olie-facts of thja eaiM^ taowerar, do
not bring it witliii^ the prfndlOe of thoae de-
cisions. There is notliinc to show that anf
sate was made to tbe wit^ Nor were time
any negotlationa between tbe wife and tbm
creditors toolOng to a sale to her. On tbe
contrary, the evidence demanded a flndins
that the sale was made to the husband. Tbe
goods were shipped to him and disposed €t
by Mm, and the wife received no part of
the consideration. It Is tme she might have
constituted her husband her agent to pnr-
<hase tbe goods and sell them for h^, and
she might have signed the notes Jointly with
him as a maker, and the obligation wfinld
have been binding upon her, bnt there is
nothing in the evidence to show that she did
this.
Both the husband and the wife testified
positively that the wife signed tbe notes
solely as security for the husband, and the
only evidence to impeach the truth of this
testimony is the bare fact that the creditors
would not ship the goods nntil it rec^ved
the notes signed Jointly by the husband and
the wife. This testimony In behalf of the
plaintiffs Is not Inconsistent with the testi-
mony for the wife that she was merely a
security for ber husband. Doubtless the
plaintiffs thought that her relation to the
paper was that of a joint maker; but when
they shipped the goods to the husband, with-
out making any contract with tbe wife and
without ascertaining what her true relations
to the paper was, they took the risk of her
showing, as she has done, that her real rela-
tion to the paper was that of a surety for
her husband; that she did not contract .to
buy the goods, either directly or through
ber husband as agent; that she received no
part of the consideration; and that she
signed the notes merely for the accommoda-
tlon of her husband. There is nothing In any
of tbe correspondence to Indicate that the
husband was acting as agent for his wife.
The case Is cdmply one where the creditors
dealt exclusively with the husband and de-
clined to extend him credit until the wife
signed the evidence of the indebtedness with
him. They knew that she was a married
woman, knew that she had no power to bind
her estate by a contract of suretyship, and
knowing these things th^ took the risk.
The evidence demanded a verdict In the
wife's favor, and a ctmtrary finding should
have been set aside on bee motion for a new
txlaL
Judgment reversed.
•r»r etliw a«MS M SUM toplo sad NetlOB mniBBn la See. XHg. A ABb Dig. Xtr^ra BNlN A Rq^
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(UO Cte. SD
AUI/rUAN ct «L T. NATIONAL BANK OF
ITPTON et aL
(Snpreme Goart of 6eorgii. July 18, 1913.)
(SvUalma fey «&• Oewrt.)
Widow's Suppobt.
The judge, to whom the caw, by ccmient,
was Bubmitteo for detenniQatioQ vithout a
jury, did not err in holding that, under the evi-
dence and the lav applicable to the issues In-
Tolved, the widow and children of tiie decedent
were not entitled to tha fond in controveray aa
a year's support.
Ikror from Superior Ooort^ Xtft Ooontr;
W. B. Thomas, JnigA.
Action by Mrs. Lee Avltman and others
against the National Bank ot Tlfton and
others. Judgment for defendants, and plain-
tiffs bring error. Affirmed.
Perry, Foy ft Monk, ot Ss^Tester, for plaln-
tlftli In error. Fdlwood tt Skerai, of TIfton.
tor defendants In error.
VlSB, a 3. Judgment affirmed. AU the
Jusflns conoDr.
04» Oa. Ufl)
HcOOBD T. MeCORD <t«« cases).
OSnpieme Gonrt'oC Qeorgla. Jnae IT, 1918.)
fBvUahiu by the Court,}
1. DiTOBOE (I 90*)— Bill— SgmcDut* ot Pbop-
■BTT.
The court did not err hi refusing, apon
oral modoD in the nature of a general demurrer,
made by the defendant at the trial term, to dis-
miss the petition in this cftse oft the eround that
a schedDre of the property of the lAaludiF and
defendant was not attached to tha petition.
[Ed. Note.— For other caae& see Divoioe,
Cent Dig. H 283-286; D«r5ig. I 90i»]
2. Witnesses (| 219*>— Husbasd ahd Wife
— Confidential Communication— Waives.
A confidentia] communication by a wife to
her husband, whether orally made or by letter,
la privileged, and in a suit between the huabana
ana wife wut be excluded from evidence, upon
objection made by the wife, based upon the
ground of a privilege. Btit such prlvilflge may
be waired. And where, as in the present case,
the suit la one brought by the wife for divorce
on the ground Of desertion, and the wife gives
testimony in her own favw showing that her
husband had wlllftiUy and oontlDnonsly desert-
ed her for a period of three years prior to the
commencement of the suit, it was competent for
the husband to introduce her letter, In which
the wife, at a time immediately prior to the be-
ginxdng of the period of atlegea desertion, wrote
him requestiQg him not to make any attempts
to see her upon her return to her home, from
whidi she had been absent a short time on a
Tisit; the plaintiff and defendant during their
mamed life, up to the time when she left oa
the visit, having resided upon the property of
the plaintiff.
[Ed. Note.— For other cases, see Witnesses,
Cent Dig. U 769, 781, 782 ; Dec. Dig. j 21fi."J
8. Appeal and Ebbob ({ 802*)— Motion iob
New Tbial— Oboundsl
A ground of a motion for a new trial,
oomplainiug of a lengthy excerpt from a charge
oovering several pages, and oabraeing nomer-
OQs and varied propositions of law, some of
which are clearly applicable to the facts of the
caao, presents no ground for the reversal of a
judgment refusing a new trial, where the
ground of the motion was that the charge ctnn-
plained of did not correctly state the law ap-
plicable to the facts of the case.
[Ed. Nota^^or oUier cases, see Appeal and
Egor^ Cent Dig. %%17&-VK2r Dec. Dlig. I
4. DrVOBCB {} 147*>— DSBESnON— ScPABATIOlt
BT CONSKHT.
Where a suit, hron^t by a wife for divorce,
from her husban^ is based upon the ground ot
desertion, as In the instant case, and the hus-
band introduces In evidence the letter from the
wife referred to in the secMid headnote, and
from the wife's testimony tt appeared that the
husband actually remained away from her home
continuously for three years prior to the filing
of the suit, it cannot be said Uiat the court err-'
ed in submlttiug to the Junr the question as to
whettier or not hit remalniiig away "was done
with the consent and agreement upon the part
of the plaintiff."
(a) The letter referred to, considered in con-
nection with the testimony of the wife and the
fact that the husband did remain away, wonld
have authorised counsel for the defendant to
iiave argued to the jury a theory of the case,
based upon a contention that the absence of the
husband for a period of three years from the
home of the wife was by consent and agrees
ment; and, the court having stated in his
charge that such was the contention of the de-
fendant, it will not be assnmed. In the absence
of anything to show tliat the defendant did not
make this contention, that the statameat ot the
court was not true.
[Ed. Note.— For other cases, see Divorce,'
Gent Dig. H 489-492, 493 ; Dec. Dit t 147.*]
6. DivoBCE (1 148*)—lN8TRUcTi0N— Misuse or
Wobds— Disjunctive Conjunction.
In one part of the charge to the jury, the
judge used language which imposed, upon the
defendant In the case the burden of showing, in
case the Jury believed that he willfully remain-
ed away from the wife fdr a period of three
years, that this was done by "consent and agree-
ment," whereas it would have been a sufficient
reply upon the part of the defendant to show
that he had remained away from the wife with
her cooaent or by agreeuMnt
[Ed. Note.— For other cases, see Divorce,
Cent Dig. 11494, 495: Dec. Dig. 1 148.*]
6. DiTOBOB a 119*)— DnsBnoR— ABnCHOB—
Intent.
The court should not have so charged the
juiy as to make the undisclosed intent With
whiGh the wife wrote the letter referred to In
the Mcond headnote a material fact for the con-
sideration of the jury In passing npon the ques-
tion as to whether or not the absenting of Dim-
self for a period of three years by the husband
was with the consent of the wife, in the ab-
sence' of evidence to show that the husband
knew of the intent with which the letter was
written. *"
[Ed. Note.— For other cases, see Divorce,
Gent Dig. i 888 : Dec Dig. | 119.*]
ElTor from Superior Court, Brooks Coun-
ty; W. B. Thomas, Judge.
Action by Mattle B. McCbrd against B. E.
McCord for divorce. Decree for plaintiff,
and defendant brings error and plaintiff pros-
ecutes a cross-bill of ezceptlonB. ReTeTsed
on defendant's bill and affirmed on the cross-
wa
Mrs. MeCord fllefl' her llbd for dlTorce,
basing her action upon the alleged wUlfoI
and contlnnons desertion of her bnsband for
•Per otb« «MM «M4ftM topic M pnOoa UVUMJUt In Dig. a ^ Mg. KfV'Na^^^f^ • fl^f^iy);;^
78 &Br— 68 O
834
T8 SOUTHBASTBBN aBPORTEB
a period 9t time yeahi' ^lor to tba oom-
mencement of the suit The husband filed his
tSaa. and answer densrlns the trntb of the
material allegattone Id tiie jAalntUTs peti-
tion. Upon the trial a verdict In faror of
the petitioner and granting a total divorce
was rendered by the Jury. A motion for a
new trial was made by the respondent, which
being overroIM, he excepted. And the plain-
tiff filed her cross-bill of exceptions, com-
plaining of the admission In evidence, over
objection, of a letter written by her to the
husband a short time before the commence-
ment of the period of desertion alleged In
the petition.
J. R, Walker and Dan B. Bruce, both of
Valdoeta. and J. D. Wade, Jr., of Quitman, for
plaintiff in error. G. G. Edmondson, McGall
ft McCall, and Branch & 8now» all of Quit-
man, for defoidant in error.
BECK, 3. {atter stating the facta aa aborc^.
[1] 1. The court did not en in refnaing, up-
on oral motion In the nature of a general de-
murrer made by the defendant at the trial
term, to dismiss the petition In this case <hi
the ground that a schedule of the proputy of
the plaintiff and defendant was not attached
to the petition.
[t] 2. Both in the motion for a new trial
filed by the hurtnnd and in the cmss-blll of
exceptions filed by the wife, -who was the
IHKvalllng party In the action, exc^;>tions
are takoi to the adndsrion in eridence of
communications in the shape of letters from
the complaining wife to bat husband, which
letters were written a short time before the
alleged desertion began. The plaintiff intro-
duced three of these letters written by her-
self, and the husband introduced one letter
from his wife, writtm 'to him. Objection
was made to the introduction of the letters
written by the plaintiff and tendered at the
trial by her counsel, upon the ground, among
otiiers, that the same were nothing more
than self-serring dedarationa. The letters
contained, among statements and communl-
catlona that are immaterial, complaints ui>on
the part of the writer of the husband's cold-
ness towards the writer and neglect of her,
Of bis failure to give indications of love and
affection, and at indifference to hoc w^are.
This is not a full statement of the contents
of the letters, but sufficiently lllustratea thcAr
character for pnrpoeea <a this, decision. The
letter from the wife to the hnsband, and
whld) was introduced in eridmce by the
husband over objection of counsel for the
plaintiff, was as follows : "Mr. McCord : I
send you your ring and also the brooch, and
ask you to kindly return my ring by register-
ed mail to Quitman, Ga. I expect to reach
home soon, and asfc yon in advance to not
make any attempts to see me. Very resptly,
tSigned] Mattie B. McCord."
While the question of admissibility of this
last letter is raised in. the croas-bUl, the anes-
tion Is c«ialdered here In connection wlOx the
objections raised by the defendant to the ad-
mission of the letters from the wife, which
were tendered In evidence by her. So far as
relates to the letters written by the wife to
the husband and tendered by her they should
have been excluded upon the gronnd stated,
vl2., that in so far as they were r^evanti
to tiie case they were purely self-serving dec-
larations. It was not competent for the wlff
to write to the hnsband charging htm witb
certain acts and a course of condnct which.
In a suit subsequent^ brought for divorce,
would corroborate her testimony as to bla
desertion, and then by means of a notice to
produce have these letters brought into court
and made evidence for herself. Whether
these letters at the time they were written
were penned with an eye to the use which
the plaintiff subsequently sought to make of
them, or whether penned under the stress of
sincere grief and passion aroused by the
husband's real or seeming neglect or Indif-
ference, they contain nothing more relative-
ly to the issne involved between the husband
and wife in this case, than declarations made
by the wife In her own favor, and should
have been excluded under the rule applicable
to self-serving declarationa *<rftered hy tiie
I>arty making them.
As to the letter writen by the wife to ber
hnsband, the defendant in the case, and which
was Introduced In evidence by the husband,
counsel for the wife raised the objection that
It was in the nature of a confidential com-
munication between husband and wife, Bad
fell within the Inhibition contained in sec-
tion 6785 (1) of the Ciode, which exdudea, on
account of public policy, communications be-
tween husband and wife. The language of
the section of the Code referred to is as
follows : "There are certain admissions and
communications occluded from public policy.
Among these are: (1) Communications be-
tween busband and wife."
In dlscQssing a somewhat similar provision
at common law and In other Jurisdictions in
this country. Prof. Wigmore, In his woriE
on EMdence, says: "(1) That the disqualifica-
tion of husband and wife to testify the one
on the other's behalf is distinct from the
privily of either against the other's disdos-
ore of communications ought to be plain
enough The Judicial confusion of them is
neverthelesa freqnra^ and the occasional
legislative commingltaig of them In the aame
sentence of the same enactment has given rise
to much of this confusion. Perhaps the com-
monest error is to Ignore the husband's ri^t
to iraive the pririlege ; 1. &, whcm he frfteis
the wtfb to prove hla communications to hoc,
the erroneous tendency Is to treat the dlsdo-
sure as absolutely prohibited In spite of his
consent A disqualification, of course, can-
not be waived ; but It is of the essence of
this privilege (as of every privilege) that It
my «^ yet tt.
^offered by tbe privileged person, are eren yet
repeatedly ezcladed, In apparent ignorance
of tbe disttnctton." Volume IV, p. 8259.
And on page 3268 of the same work it was
said: "(1) The privilege Is intended to secure
freedom from apprehenidon In the mind of
the one desiring to communicate (ante, S
2882) ; it thus belongs to the communicating
one, and the other one — the addressee of the
communication — Is therefore not entitled to
object, unless, as already noticed (ante, S
2838, par. ^, the lattOT's silence is desired
to be treated as an assent and an adoption
of tbe statement, which thus makes It doubly
a communication and doubly privileged.
(2) The e|)ouse possessing ttie privilege may
of course . waive it The waiver may be
found in some eztrajudldal disclosure, or
in some act of testimony which In fairness
places tbe person in a position not to object
consistently to further disclosure; for, as
already noted (ante, | 2327), the principle of
waiver i»iuiot d^?end aoUity upon the inter-
pretation of conduct implying wllUngness to
waive.. NevOTtheless, in a few courts the
doctrine of waiver appearv to be ignored en-
tirely, mils confusion of a disqnallflcatlon
with a privilege has been already adverted to
(ante, |2334); It la entirely unjustiflable (ex-
cept as required by Che express words of some
jwrveraely phrased statute), and la so radical
an etmr at principle that no further argu-
ments would cure such a mlsaiiprehenslon."
The reasoning in the pasmge last quoted
from Pro! Wlgmore's work and the distinc-
tion between a disqualification and a privi-
lege seem to be sound, and r^tlvely to tbe
question under, coiuideratlon the same dla-
Hnctlon Is drawn in Greenleaf on Evidence.
Xaying it down as an accepted rule that "one
spouse may not testify to confidential com-
munications by the other," he says: "Under
the third head [which embraces the rule last
stated], the principle applies quite irrespec-
tive of whether either sirause is a parly to
the cause. Moreover, the death or the di-
vorce of the other member does not affect
the policy of prohibition. Again, the other
member may always waive the privilege."
1 Greenleaf on Bvldence, I 383c. While the
distinction which la pointed out In the fore-
going between a privilege and a disqualifica-
tion does not seem to have been distinctly
recognized In any decisions by this court, it
has been rect^nbsed' in other Jurisdictions,
in decisions which are cited to support the
passage from Wlgmore on Evidence quoted
above; and in no case in our own decisions
to It ruled that the section of the CJode rela-
tive to the earcluslon of communicatl<nu be-
tween husband and wife creates a disqualifi-
cation. It Is true Uiat In numerous dedslona
of our own oourt it has been ta^ that one
spouae Is not competent to testt^ as to con-
fidential oomnmnlcations from tbe other, bat
In none of Ota cases, so far as we are able
tf> dlKwrer^-and we have ^amined aU to
which our attention baa been - called, or
which we have beAi able to find after dill-
gent search — has it been h^d that tbe sec-
tion of the Code referred to did not create a
privilege ■ instead of a disqualification, and
that the privilege could not be waived by the
possessor; that la by the member making
the communication. Had it been the legis-
lative intent by this se<^on of the Oode to
create an absolute disqualification, it could
have appropriately been done by making It
an exception to the rule in reference to the
competency of witnesses laid down Id Oode,
I 585&
Now, while It appears that .the wife Is In-
sisting upon her privilege, and that the let-
ter tendered by counsel for the husband
should have been excluded under the statute
when the possessor of the privilege is appar-
ently standing upon it. It would seem that,
although apparently Insisting upon, the priv-
ilege, the yrite had, before raising the express
objection to the introduction of her letter,
waived tbe right to make audi an objection
and destroyed her privilege under the statute
by bar conduct; that la, by testlfiying to
conduct npoa tbe part of her husband and In-
sisting tbat it should be cfmstrued as
amountiiv to deseitloa That ^ ehe tea-
tifled: -^e [that Is the plaintiff and tbe de-
fendant] lived together as husband and. wife
until July, 1906, when I left home and went
to Waynesvllle, N. C, on a summer vacaUon.
I did not return lunne from Waynesvllle un-
tU the middle of October, 190& Wben I left
home for Waynesvllle Mr. McCord and my-
self were living In voj borne In Quitman, G4.
Mr. HcCbrd accompanied me to the train
wben I left for Waynesvllle, and I have not
seen him since. He has never returned to
my home and lived with me since, nor pro-
vided a Joint home' for myself and him, nor
has he made any proposal for me to live
with Mm." Here the witness testified to
conduct on the part of the husband which
the Jury might have found amounted to de-
sertion. While she is stating, seemingly as
a bare fact, that he did not return to her
home, and did not lire with her after her de-
parture for Waynesvllle, that fact so stated
might have the effect of producing one or an-
other conviction in the minds of the Jury ac-
cordingly as It was coupled with another
fact or disassociated from that other fact
While she testifies to the bare fact that the
husband did not return to her home, when
this testimony is considered In connection
with the allegations in her petition that the
husband was guilty of desertion, the testi-
mony given by her as to his not returning
to her home- is to be construed as meaning
that he continued to absent himself from her
home and remain away from her without bet
consent; for, If it was with her consent^ his
mere absence Would not amount to desertion.
Oonsequently, In tbe li^t of tbe pleadings
la the case and. the &a^ of bu-Wf^
Digitized by VjOOglC
' . McCORD V. MoCORD
83ft
78 SOUTHBASTEBN BBPOBTBB
wlft mm TlrtaaUy toadfyiBS tbat tbe hus-
band mnained away fnnn ber without her
coBsoit, and thna practically brought Into tbe
case herself the question as to whether she
had commnnicated to Um a deslTe tiiat he
Aonld mnain away, or a consent that he
should remain away, Sho ttnu removed the
veil that protects from the public gase the
pflTacy of the married Ufe and shields com-
nmnlcations from Ihe wife to the husband
from Judicial inquisition. She herself de-
stroyed her own prlTlIege ot protection from
a disclosure of her commnhlcatloDt to her
husband. And having destroyed that prlvl^
lege for the purpose of making ont her own
case, she conld not have It restored and up-
held for the purpose of maintalQlng tbe fab-
ric, when It was proposed to subject It to a
perfectly proper test, tnstltnted for tbe pur-
pose of ascertaining whether that fabric
rested on a solid foundation. The founda-
tion of her case was desertion. The tmt of
the solidity and strength of that foundation
was whether that seeming desertion was ac-
tual desertion; that is, willful desertion by
the husband without cause, and without con-
sent of the spouse claiming to have been
deserted. If the husband stayed away from
the wife in obedience to and in compliance
with her wish that he should stay away, that
he should make no efforts to see her, surely
she could not charge that he was guilty of
desertion whatever other grounds she may
have had for complaint against him. And
the wife's letter, which was offered and In-
troduced In evidence in this case, unless ex-
plained Itself, certainly explains tbe hus-
band's conduct In remaining away from her.
[S] 3. Where a lengthy excerpt from a
charge consisting of several pages Is com-
plained of on tbe ground that It does not
state tbe law applicable to tbe facts, and the
portion of the charge thus criticised embrac-
es many and varied propositions of law, some
■ot which are clearly appllcatde to the facts
of the case, a new trial will not be granted
upon this ground of the motion ; such an ex-
ception Is not suflSciently sped&c;
[4-1] 4-6. The rulings made in headnotes 4,
S, and 6 reQuire no elaboration or discussion.
There are other Inaccurades appearing in
the charge, but none of such gravity to re-
quire the grant ct a new trial, or of snfll-
dsot Importance to require a Ascueelon of
them.
In the cvow-bUl of exeeptlona filed by the
defendant ia error there Is only one excep-
tion, and ttiat relates to tbe admission of the
letter, ovev objection, which is set forth in
the second divlalon of this t^lniMi; and, as
we have ruled above Omt this letter was
PVPperly admitted In evidenoe, no further
dlfcoBrion la lequlied how.
Judgment reTorsed <m die main bill of ec-
ceptlons and affirmed on tbe cross-bilL All
the justices omcnr.
WABBEN T. aTATB.
(Sapreme Court of Oeorgla. July IS, 1913.)
(SyllaJiii* by the Court.)
1. HOlCICina (i 286*) — INSTEUCTIOBS — Kvi-
DENCB.
A woman was indicted for the murder of
ber huaband. The evidence showed that she
admitted tiie killing, but asserted that it was
the result of an accident, wliile she and her hus-
band were scnffling over a gun. Other evidence
flhowed that she bad cone to a house near by
and borrowed gun shells, on the statement that
her husband desired to sboot some wild chick-
eo^ but that she had carried a gun with her
and left it on die side of the road before readi-
Ing the house to which She was going. There
were blood stains on the bed in the honse of
the couple, and a pillow was found under an-
other bed, with a hole shot in it, and with
bloody pieces of flesh and teetii forced into it.
The deceased was shot in the face with a gnn ;
the shot tearing away a part of bis month and
teeth. The defendant ran away, and was cap-
tured about two years thereafter. There was
evidence tendlag to show that die and her hus-
band had had some fusses before tlie homicMe.
BeU, that the evidence authorised a charge to
the effect that, where a homicide is shown to
have been committed by the accused, tbe law
presumes that It was malldons, untfl tiie con-
trary appears, unless the evidence adduced by
the state shows justification, or mitigatltm, or
excuse, and that, if it does not do so, it de-
volves on tbe defendant to show sudi justifica-
tion, miti^tkm, or exense.
[Bid. Note.— For other cssea, see Hoaiicid^
Cent Dig. SS S86-6S1: Dec Dig. | 280.*]
2. Homicide (| 263*)— Bviduck.
The evidence was suffident to support th«
verdict, and there was no error In overmlinc
the motion for s new trlaL
[Ed. Note. — For other cases, see Homidde.
Cent. Dig. il 628-682: Dec. Dig. I 263.*]
Error from Superior Court, Baneoik Oonik-
ty; J. B. Park, Judge.
Bell Warren was convicted ct murder, and
brings error. Affirmed.
T. M. Hunt, of Sparta, for plaintiff In er.
ror. Jos. E. Pottle, SoL Gen., of BCUedge-
vllle, and T. S. Felder, Atty. Oeu., for the
State.
LUMPKIN, J. [1] BeU Warren was In-
dicted for the murder of Eugene Warren, her
husband. She admitted the killing, but stat-
ed that her husband Intended to go the
swamp to shoot some wild chickens, and that
she and he got into a scuffle over the gun,
and it was accidentally discharged, cauatns
his death. The evidence for the state showed
that she came out of tMe house where tta^
lived, carrying a shotgun, and went to d
house located near by ai^ borrowed some
gun shells, alleging that ber husband desired
to shoot chickens; that btfore reaching the
house to which she went she left the gun on
the side of tbe road; that after she obtained
the shells she returned to the house where
stie lived, and In a v^ few minutes. fi gun
was heard to fire, and when other perems
went to the honse her husband waa found ly^
ing on the floor beside the bed. There waa
•Vta- otbar oaiSs sss Bams topte and BsettoB HtniBBR la Dab. Dig. * An. Dig. Kay-Ne. 8sti«s * B«p*rlBdaaas
Digitized by Google
Oa4
987
also ertdact tkat tbertf were al«iu of blood
upon tbe bed, as If tbe deceased bad been
lylDg dowD, and that a pillow was afterward
found Jin anoUier room, under a bed located
there, wbich sbowed signs of a cbarge of
shot having penetrated it at close range, car-
rying Into tbe pillow bloody flesh and teeth.
The deceased was shot Id the face; the shot
tearing away a part of bis Jaw and mouth
and some of bis teeth. A witness testified
that prior to tbe killing the defendant and
her bosband had not lived in perfect amity.
After the kilUnc sbe rui away, and was cap-
tured some two years later. Sbe sought to
explain this by saying that the father of her
deceased bosband bad told ber to leave; but
he denied this. These facts were aaffident to
bring the case within the ruling made in
Hann t. State, 124 Ga. 760, E»3 S. E. S24, 4
Ii. B. A. (N. S.) 034, and other cases follow*
lug it, 80 as to aatborlze a cbarge to t^e
efCect that, if a homicide 1« shown beyond a
reasonable donbt to have been committed by
the defendant, the law presumes that It Is
malicious until the contrary appears, unless
the evidence adduced by the state shows
justification, or mitigation, or excuse, and
that. If the evidence adduced by tbe state
does not show clrcnmstani*es of Justification,
mitigation, or excuse, it wonld then devolve
upon the defendant to show such drcum-
itances In order to reduce the homicide from
murder to manslaughter or to justify it
[2] 2. Tbe evidence was suffldent to sup-
port the verdict asd tlw vefnnl of a new
trial wu not wror.
Judgment affirmed. All tbe Juatlces con-
cur.
CUDOa. IS«)
LANS! T. STATSL
(Buprene Ooort of Georgia. July 10^ 1018.)
(Bi/lMnU the OomrtO
1. OnnairAX* Law 3 655*>— TiULU>-BncAus
OF COUBT.
"It is not nece88ar7 for the judge, in
eba^nng a jury in a cnminal case, to make
introductory remarks as to Uw importance of
tbe can both to the state and to the aocnsed ;
bat It is not error reqalring a new trial for
bim to do so, provided what is said is not a
miMtatement of tlte law, or calculated to prej-
udice die minds ct the jaronr against tbe ae-
eused."
[Bd. Note.— For other caaas, see Orlmtoal
Law. Cent Dig. H 162&*1I8», 1107. 1D39;
Dec. pig. I 655.*]
2. OtmnAL Law (| 783*HnuAZr- Oouob-
OBATUO EVIDBNCS.
The female alleged to have been nped
testified to the fact, and ber testimoi/y was
corroborated by that of other witQcese*. The
failure of tiie court to Instruct the Jury iliat
no conviction could be bad utdcsa tbe vietiai's
tsstimony was eorroborafesd by that of lottwr
witnesses is not error.
[Ed. Note.— For other eases, aee Orimin&l
Law, Cent Dig. SI 1847, 1849, 1851. 1852.
187T^ 1ST8, 1880-1^, 1906, 1907, lOO^im,
1960. IMS, 1967; Da& Dig. I 782.*]
Enw fipom SoDwIor Oowl; 0|b)cl) iCQnn-
ty ; T. A, Park, Judge,
Uge lAno wQs couvjctqa of «rUn^ and
brings error. Affirmed.
B. W. ComeUus and R. Q. Dtcherson, both
of HomerviUe, for' plaintiff in error. M. D.
Dickerson, Sol. Gen., of Douglas, 8. Burii-
halter, of iHomervllle, and T. 8. Feider, Atty.
Oen.» for the State.
EVANS, P. J. The plalotifr In tftor, a
negro man, was convicted of the rape of a
white woman. The person alleged to have
been raped poeltlvely identified the plaintiff
in error as Iwr assailant, and tesUfled that
he had carnal knowledge of her forcibly and
against her will. B)ie made immediate com-
plaint, displayed her torn clothing and a
wound upon ber mouth made, as testified to
by ber, by tbe accused In stifling ber outcry.
Tbe scene of the crime was near tbe home of
the victim, and bore evidence of a strug^e.
[1] 1. Complaint Is made of the court's In-
troductory Instruction: "You sit as impartial
men between the state of Ctoorgla and this
defendant You have a important and
serious duty to perform. It Is a matter of
tbe mwt vital importance to this accused be-
cause with bim It Is a matter of life or death
or Imprisonment in the penitentiary; it is
a matter of no less importance to the state
ot Georgia that If her laws have been delat-
ed they shall be vindicated. Tbe only way
we can get protection for ourselves, our
homes, our Uvea, our property, and our per-
sons Is through a due and proper adminis-
tration and enforcement of tbe law. I cbarge
you that the law is just as truly vindicated
In the acquittal of an innocent man as it is
in the conviction of a guilty man. And at
last tbe purpose and object of every legal in-
vestigation is the discovery and ascertein-
vent of the truth. That Is the purpose of title
trial." Tlie criticism Is that it tended to stress
the importance of the case, and amounted to
an intimation that the accused was guilty.
It is not necessary for a Judge in charging
a jury to make introdnetory ranatks as to
the Importance of the caae, bat tbe pnqniety
of doing so nmat be left tothe Judge; and*an>
less the charge contains a adsatatooait of tbe
law, or tbe form of expression Is calculated
to prejudice the jury against tbe accnsed, a
new trial will not be panted. Tandsrford
T. State, 126 Qa. 7N. W 8. B. 1025; Johnson
V. State, 128 Ga. 102, 57 S. a 353 ; Lyles v.
State, 130 Ga. 308» 60 S. B. 57a The giving
of this instruction Is not ground for a new
trial in this easfe
[2] 2. Gtvnplaipt la further made of the
court's oml«d(m to charge tbe Jury that, "be-
fore you are anthorized to convict the de-
fendant under the Indictment in tbls ease,
you must find that the victim's oatti bas been
cDcroberatsd by other evidence tha* ber
own." There was conoborattnff 0vl0e|io«»
WUICMBite Dec Di«. aiaa. Pig. Ksy-WfeiHi^lyl^Oiaigle
*Var etbw tssM HS tepiB 4ad MotiaB
838
18 SOUTHEIAffinBIBM SBFORTBR
and the fiUloie of tbe court to give this in-
struction Is not error. Wasbington v. State,
188 Oa. 370, 75 S. B. 2S3. The evidence anp-
ports tbe verdict.
Judgment affirmed. All the Justices con-
cur.
OM Oa. Ul)
BBOADHDItST v. HILL et al.
(Supreme Court of Georgia. Jnly 16, 1913.)
fSytldbut hv the Court.)
1. iHeTRDcnoNa.
Tbe instrucdoni excepted to were not er>
roneoni for any reason assigned.
2. Tkuz. d 200*}— iHSTBUcnons.
The matter ot the written request to in-
struct tbe Jury was fully covered In the charge
giveo, not only in stating In the abstract tbe
legal principle involved, bat also In a full and
clear application of tbe legal principle to the
evidence in the case.
[Ed. Note.— For other cases, see Trial, Cent
Dig. H 6C1-6S9; Dec Dig. 1 260.*]
3. NlW TBIAI. (I 39*)— RBITT8AL OF iKSnSUC-
TIONS.
In accordance with numerous decisions of
this couri the refusal of an oral request to
instruct tbe jury is not cause for tbe grant
of a new trial.
rsid. Note.— For other cases, see New Trial,
Cent Dig. II 67-61; Dee. Dig. | 89.*]
4. New Trial (§{ 104, lOB*)— Nkwlt Dis-
OOVEBED QVIDENCE.
The alleged newly discovered evidence was
cumulative and impeaching in its character,
and moreover would not likely produce a dif-
ferent result on another trial.
[Ed. Note.~For other cases, see New Trial,
Cent Dig. Jl 183. 218-220, 221-223. 228,
220; Dec. mg. H 104, 105>]
6. SujTViouHOT or EviDincE.
There was evidence to authorise tbe ver-
dict, and tbe court did not err In refusing a
new triaL
Error from Superior Court, Sumter Coun-
ty; Z. A. Uttlejohn, Judge.
Action between R, S. Broadharst, as guard-
Ian, and E. B. Hill and others. From the
judgment, Broadhurst brings error. Af-
firmed.
R. L. Maynard, of Americus, for plaintiff
In error. Ellis, Webb & Ellis, W. P. WalllB.
J. B. Hudson, and E. A. Hawkins, all of
Americus, tor defendants in error.
nSH, O. J. Judgment affirmed.
jQstloes eonciir.
AU flie
(140 Oa. tM)
BLOUNT V. BTATHL
(Snpnme Oonrt of Geor^ Jnly IS; 1918.)
(SyUalHu hv the OomtJ
StrmcMNCT or Evidence.
There are no assignmeuts of alleged er-
rors of law requiring a new trial, and the evl-
denee Is sufficient to support the verdict
Error from Superior Court, HaneoA 0mm-
trt J.B.Fmrlc, Jndse.
Jim Blount v»s convlctea of crimes and
brings error. Affirmed.
John R. Cooper, of Macon, and T. H. Hunt,
of Sparta, for plaintiff In error. Jos. E.
Pottle, Sol. Geo., of MlUedgeville, aud T. S.
Felder, Atty. Oen., for the State.
HILL, J. Judgment afilrmed. All tbe Jus-
tices concur.
a« os. an
KENNEMER v. BRANCH.
(Supreme Court of Qeoigia. July IS, 1913.)
f SylZa&iM &y the Court.)
SUFTICIENOr OF EVIDENCE.
No complaint was made that any error of
law was committed upon the triaL There was
evidence to authorise the verdict, and the Judge
did not err In refusing a new trial.
Error from Superior Court, De Ealb Coun-
ty; L, S. Roan, Ju^.
Action between G. M. Kennemer and R. E.
Branch. From the jodgment; said Kenne-
mer brings error. Affirmed.
Alonzo Field, of Atlanta, for plaintiff in
error. . Napier^ Wright & Cox, of Atlanta, for
defendant in error.
HILL, J. Judgment affirmed. All the Jus-
tices concur.
OM Ob. »)
DAVIS et aL v. WALTERS et aL
(Supreme Court of Qeorgia. July 15, 1913.)
(BytMrnt by Oe Court.}
Appeal and Ebbob 327*>— DisiassAi^Di-
ncT or Pabtus.
Where, upon an interlocutory bearing, the
judge refused an ad interim injunction, and tbe
plaintiffs excepted, a party defendant to the
pleadings in the trial court, who will really be
affected by the judgment to be rendered in this
court, is to be regarded as an indispensable par-
ty : and, where there is a failure to serve the
bill of exceptions upon such party defendant,
and service is not acknowledgea by him, for bim
by another duly authorized, with consent that
he l>e made a party by ammdment in the Su-
preme Court, and that the ease proceed, as pro-
vided under the Civil Code 1910, j 6160, par. 3,
the writ of error will be dismissed.
[Ed. Note. — For other cases, see Appeal and
Error, Cent Dig. « 1795, 1814-1820, 1822-
1836; Dec Dig. | M7.*]
Etror from Superior Court, Lee County;
Z. A. Uttlejohn, Judga
Action by Mallnda Davis and others
against Bfonroe Walters and others. Judg-
ment for defendants, and plaintifb bring er-
ror. Dismissed.
B. J. Bacon and B. H. Ferrdl, both of
Albany, for plalntifls In error. Ware &
Martin, of Lee8A>urg, for defendants In error.
ATKINSON, J. Mallnda DutIs and severe
al other persons Instltated an action agaimA
Monroe Walters and others, including Cora
•Voretksr<
I MS Bssn tepio and ssetlon NUKBOB la Xtss. Dig. * Mm, Dig. |9^^9-i^M^ ^y^fl^p^aam
Oft.)
WIUGHT MATOB, ETC.. OF BRimsWIOK
839
Duncan. The petition as amended alleged
that, as legatees and hetrs of legatees under
the wOI of Jack Walters, the plaintiffs were
the owners of separate tracts of land of S%
acres each, set apart to them nnder a parti-
tion of the last half of land lot 166 in a des-
ignated district, beqneathed by the decedent,
In which partition certain lots were also set
apart to the defendants, and that all of the
parties took possession of their respectlTe
tracts, and acquiesced in the partition for
ftbont 18 years. It was further alleged:
"Monroe Walters Is now attempting to wrest
the possession of the tracts of your ];)etitlon-
ers from your {Ktltloners, and to throw cloud
upon the title of the tracts of your petition-
era, and is attempting to gain the occupancy
and possession of the entire east half of said
lot, nnder conspiracy with the other of said
defendants, who are assisting him In said
endeavor; and said defendants are guilty of
repeated acts of trespass on the lands of
your petitioners, and now threaten to further
trespass thereon. • • • The title of all
your petitioners to thdx respective tracts In
severalty rests upon the validity of said parti-
Uou, and your petitioners have common cause
In sustaining said petition and In fighting
and resisting the said occupancy of the said
defendants as aforesaid, and now bring this
suit in order to avoid a multiplicity of suits."
Process was prayed against "said defend-
ants." Other prayers were, "that the cloud
from title may be removed from the several
tracts of your petitioners, and that said par-
tition may be decreed to be obligatory and
binding, and that the possession and bound-
aries as shown by said plot may be recog-
nized and sustained by Judgment and decree
of this honorable court, • * * that de-
fendants and each of them be enjoined from
any acts of trespaas." and that "all the par-
ties to this petition may be required to setQe
all oOier differences in regard to the said
partition of said Jack Walters' estate in this
litigation, and be enjoined from all litigation
In other conrts." All of the persons named
as defendanta were served, ezc^t one. Bd-
atively to him there was a return of non
est inventus. All of those served filed de-
murrers and answers, except Con. Duncan,
who did not Appear by counsel or otherwise.
On the Interlocutory hearing the judge refus-
ed to grant an ad Interim injunction, on the
grounds: (1) That the petition was multifa-
rious; and (2) that mxHsr the allegations of
the petition and evidence the court was not
authorized to Issue the Injunctton prayed for.
The plaintiffs sued out a bill of exceptions,
assigning error on this judgnieat There was
an acknowledgment of service upon the bill
of exceptions by counsel of record for desig-
nated defendants, constituting all of those
who were served and appeared In defense.
There was no service of the blU of exceptions
upon Ooza DniKan, or acknowledgment of
service by her, personally or otSierwlBe. In
the Supreme Court there was a motion to
dismiss the bill of exceptions, on several
grounds, one of them being that "all persona
who are essential parties defendant in error
are not such parties to this bill of excep-
tions." Cora Duncah was one of the defend-
ants designated in the petition against all of
whom Injunction was prayed, based on the
same state of facts as to all; and, having
been served, she was a party to the action,
and any Judgment rendered by the court on
the hearing for Injunction would affect her
to the same extent as It would any of the
other defeudants. The Judgment was In her
favor, and as a result she was not enjoined
as prayed, nor rendered liable to the pay-
ment of costs. As a formal party to the ac-
tion she was Interested, therefore, in sustain-
ing the Judgment which was rendered by the
court Under these circumstances she was
a necessary party defendant in the bill of
exceptions. Western Union Tel. Co. v. Grif-
fith, lU Ga. 651, 36 S. E. 869. Cora Dun-
can was not served with the bill of excep-
tions, nor did she acknowledge service, ei-
ther personally or otherwise. Consequently,
she is not to be treated as a party defendant
In error. Civil Code, H 6161, 6176. Nor by
her consent was she made a party defend-
ant by amendment to the bill of exception^,
under the provisions of Civil Code, 8 6160,
par. 3. It follows that the motion to dismiss
the writ of error must be sustained. U. S.
Leather Co. v. First National Bank, 107 Oa.
263. 33 S. B. 31.
Writ of error dismissed. All the Justices
concur.
aw Oa. ssu
WRIGHT T. IfAYOR, BTO., OIP BRUNS-
WICK et al.
{Supreme Gonrt of Geoi^ia. July IS, 1013.)
(Syllahua hy the Court.)
Mtthicipal Cobpobations (I 066*) — Taxa-
tion—SiTns OF Vbsski.
During 1006 Wright was the part owner
of a veBael registered under the acts of ConereBs
at the port of the city of Brunswick, Glyon
county. She made dally trips, except on Son-
days, from Bnmawick to St Simon's Island, al-
so Id Glynn county, to the city of Darien in
McIntMb coanty. leaving Brunswick about 8 :30
o'clock B. m., arriving at St Simon's Island
about 0:80 a. m., arriving at Darien about 1
p. m. Retnnung by St Simon's Island, she
reached Brunswick about 6:30 p. m., where ihe
remained during the night and until the next
start to Darien. Wright did not reside within
the cil7 limits of Brunswick .at any time during
1005, hut during all tA that year resided at
St Simon's Island. Eeld, Wright's interest In
the vessel was not snbject to ad valorem munic-
ipal taxation durli^ the year lOOS by the dty
of Brunswick.
(Ed. Note.— For other cases, see Mnni^Md
Corporations. Cent Dig. $8 2046-2061; Dec.
Dig. I 066.*]
£^ror from Superior Court, Glynn County;
C B. COnyers, Judge.
Dl«. K«r-Mii0%ff^9A>|l£@l^le
*PBr otiwr sasw ■•• sun loplo and aaetlon NtWBBR In Dae. Dig. A: Am.
78 SODTHBASTHHN BIVORTBR
Action by J. B. Wright against the Mayor,
etc, oC Bnmswlcfc and axwther. Judgment
for defendants^ and plaintiff hrlngs error.
Reversed.
On JTnne 20. 1909, the derk of the mayor
and conndl of the city of Brunswldc tsBUed
an execution against J. B. Wright and his
^'Vi»« interest In the steamboat Hessle No.
2, for taxes dalzned to be due the dty on. hla
Interest in the ressel for the year 1906b The
execntlfni was levied by the marshal of the
dty upon Wright's Interest In the ressel,
and he thereupon brought his petition against
the mayor and council and the marshal to
enjoin the enforcement of the exMution.
The petition alleged the execution to be Il-
legal for. the reason, among others, Chat
Wrli^t's Interrat In the ressd vas not sub-
ject to taxatlw by the dty for 190S, because
he did not reside in the dty at any time
during that year. The case, by conaent, was
submitted to the Judge for decision on the
law and evidence without a Jnry. On the
hearing, the evidence was in substance as
tollowa: Wright; daring 1005. was the
owner of an "Aso interest in the vessel
Hessle No. 2, which, during that year,
was engaged in the transportatim of freight
and passengers, making dally trips, except
of Sundays, ftom the dty of Brunswick.
Olynn county, to St Simon's Island, in the
same county, and on to the dty of Darien, in
Mclntosb county, all in this state. The ves-
sel Irft Brunswick about 830 a. m., arriving
at St Simon's Island about 9:30 a. m., and
at Darten about 1 p. m. Returning, she ar-
rived at Brunswick about 6:30 p. m. the same
day. Wright did not reside within the cor-
porate limits of the dty of Brunswick at any
time during the year 1906, but during the
whole of that year resided at St Simon's Is-
land. He did not return his interest in the
vessd to the dty authorities of BrunswidE
for taxation during 1005, and paid no taxes
on such interest to the dty for that year,
but did pay to the dty "dock rent for the
purpose of wharflng during the short time
the boat was In the harbor of Brunswick.''
The vessel was registered in the office of the
collector of cnstoms of the district and port
of Brunswick, as required by the United
States statutes relating to the registration
of vessels. The Judge dedded that Wright
was not oititled to an Injunction, and he ex-
cepted.
D. W. Krauss, of Brunswick for plaintiff
In error. J. T. Gcdson, of Brunswick, for de>
fendanta in error.
FISH, G J. (after stating the tacts as
above). Under tbe first ad valorem tax act
of this state (Acts 1862, p. 288) all returns
of property for taxation were to be made in
ttie cotttaty- wherein th« taxpayer resided.
Our first Code, after providing for returns to
be made by banks and railroad, Ijpsurance^
and express companies, dedared: "AD otber
companies or persons taxed shall make theii
returns to the recdver of the respective coun-
ties where the persons reside, or the office of
the company is located, except In case of min-
ing comiranies. and of persons who cultivate
lands in counties not their residence." Code
1863, f 756. TMs provision has been incor-
porated In all of our subsequent Codes, and
appears in Political Code (1805) S 82& Bas-
ing the opinion upon this statutory provi-
sion, It was hdd In County of Walton v.
Oouuty of Morgan, 120 Oa. 648. 48 S. E. 243,
that in the absence of a statute to the con-
trary, personal proper^ Is to be returned
where the owner resides, and that except
as to special provisions referred to in the
opinion, section 826 is the only law of this
state regulating the place where personal
property is to be returned. This statute and.
decision relate to the taxable situs of per-
sonalty in respect to state and county taxa-
tion, and fix such situs In the count? of the
owner's residence. There Is no statute in
this state fixing the taxable situs of vessels
for state and county .taxation elsewhere than
that of the county of the owner's residence;
but on the contrary, section 16 of the gen-
eral tax act for 1906 (Acts 1904, p. 26) de-
clared: " • • ♦ That any person or com-
pauy, resident of this state, who is the own-
er of a vessel or boat or water craft of any
description, shall answer under oath the
number of vessels, boats and other water
craft owned by them, and the value of each,
and make returns of the same to the tax re-
ceiver of the county of the residence of such
persons or companies, and the same shall be
taxed as other personal property is taxed."
A like provision appeared in the general tax
acts for many previous years. This statute
clearly fixed the taxable situs. In respect to
state and county taxes, of all vessels, boats,
or other water craft owned by residents of
this state, for the year 190S, In the county
where the owner resided.
In the absence of any statute to the con-
trary, we cannot say that it was the inten-
tion of the Legislature to fix the situs of
vessels for munidpal taxation at a place not
within the county of the owner's residency
where its situs is for state and county taxa-
tion. If Wright had resided during 1905 in a
county of the state other than Olynn. it
would be clearly inconsistent to say that the
dty of Brunswick could have taxed his In-
terest In the vessel In question, but that it
could not have been taxed for the benefit of
the county of Olynn, although BrunswidE Is
in and constitutes a part of that county.
No power is given expressly or by necessary
implication to the dty of Brunswick fay its
charter to tax vessels registered at the cus-
tom house in that dty, where their ownm
do not reside within the dty IbnltsL The
only authority given to the dty by its char-
tet b- general; that la; **to laiy and collect
a tax upon aU taff*|tfie9¥9l(^D^^ftJlM
OOBEK T. dOHJBK
limits of aaid dtr." Acta 1:072, ^ 110. 1 12;
Aets 1889, pp. 1010^ 1022.
It ham been decided tbe Stqwraae Oonrt
of tbe United States tbat ttie place «C cn-
TOllmeat of a TeseOl is Irrtferant to tbe vvee*
tion of taxation, because the power of taxa-
tion of TeBsela d^^cnde dtber ivon the actoal
domicile of the owner or die altne of a per-
manrat nature of tiie property within the
taxing Jvrlsdictloa. Ayer & LoM Go. t. Ken-
tacky, 202 n. & 409, 26 Bop. Ct 670, BO Ij.
Ed. 1082, 6 Ann. Oaa. 205. In Hooptx t.
Mayor and CSty OoimcU of Baltimore, 12 UH.
464, It waa held: ''A ahlp registered at the
cnstom hooBe tai and nlllng out of tbe port
of Baltimore, owned by a bona fide and ac>
tnal resldoit of Baltimore county [but not
of tbe dty of Baltimore], bavlng bis plaee of
biuineBe, as a merchant In the city. Is not
liable to pay taxes to tbe dty for municipal
pnrposea** In Cook t. Town of Port Fulton,
106 Ind. 170, 6 N. B. 321. It appeared tbat:
•'Dnder section 628S. a 8. 1881, all water
craft must be listed for taxation at tbe place
of the owner's residence^ without regard to
Us actual situation. Two of the members of
a firm owning water craft resided la P., an
incoxporated town In this state; the prop-
erty b^ng kept at a harbor two miles ue-
yond the town. The other partner resided in
another town In the same county." It was
held '^tbat the property Is sobject to taxa-
tiou by the town of P." Under a statute of
New Jersey, personalty Is taxable In the
township, word, or taxing district where tbe
owper resides. It was held In AmralGan
Mall Steamship Co. v. Growell. 76 N. J. Law.
54, 68 AtL 762: "Vessels owned by a New
Jersey corporation baring Its prlndpal office
In one county are not taxable In a mnnldpal-
tty In another county, although registered
pursuant to act of Oongress In flie latter
munidpality." Tbe same tUng was decided
In Shrewsbury w. Mer^ants' Steamship
Co., 76 N. J. Law, 407, 00 95&
Our conduaicm Is that the ^ndge erred In
refusing to grant the Injunction.
Judgment reversed. All the Justices ooo*
cur.
(UO Ga. MB)
COHEN T. ooam
(Supreme Coart of Georgia. Jane 17, 1913.)
(BvUobv* by the Court.)
1. Denial of CoimHUANoa.
There was no abuse of diseietlon In orer-
mlinff the motion to continue or pos^ne tbe
ease, wben origioally made or wben repeated.
2. Bnu Alp Notes Q 36^)— Exeootzoh xb
BLAITK— VALIDITT.
A promlsBory note, payable' to order and Is-
med mth a blank for thh payee's name, may
be filled Qp by. a/ay bona fide holder witb Us
own f\ame as payee, and it ia a sood,DromiaHO-
ry note as to him thjm itfl date. 'Moody V.
Threlkeld, 18 Ga. S0 (3). See, also, Rotli^ t.
Donnelly Oroee^ Oi., 8 Qk. App. 6EU 70 B.
140.
(a) The motion to zeriew and ireTene the rul-
ing of this court tn the ease above cited Is de-
nied. '
[Ed. Note^-JW other cases, see Bills and
Notee, Cent Dig. H O^i 960; Dee. Dig. |
368.*]
3. JuBT (I 80*)— Appeai. and Ebbob (8 1045*)
— Habmless Erbob— Stbikiro tboh Jubt
Paheu ■
In a dvU ease, it li generally the better
practice not to requlEc > party, over objection,
to strike a Jury from lesa than a full panel ;
but in this case no injary could have renilted
to the defendant from eo doing.
nSd. Note.— For othur oases, see Jury, Cent
Diff. H 360-366; Dee. DiTlSO ;* Appeal and
Error. Cent Dig. H 4121-4127: DecTlHg. I
1046.*]
4. SnvncixNCT or Evidence.
The presiding Judge submitted the theory
of each party,' and it cannot be said tbat the
verdict was without evidence to support it
5. Monoif von New Tbiai-
None of the grounds of tbe motion for a
new trial show any error requiring a sevmoL
Error from Superior Court, Vnlton Coun-
ty; Geo. Jj. Bail, Judge.
Action by Julius Gohoi against B. Ann
and Horrls Coben. Judgment for pintiittff',
and defendant Morris OAen brings error.
Affirmed.
Morris .Macks and Oober & Jackson, all
of Atlanta, for plaintiff In error. Winn ft
Ylsanska, of Atlanta, for defendant in error.
LUMPCIN, J. Julias Cohen sued S. Aron
as msker and Horrls Ooben, as lndprs» on
a promissory note. Morris Cohen pleaded,
among otber things, tbat the note had been
altered, since he Indorsed It, by the Insertion
of the name of the plaintiff as payee, and al-
so that he and tbe plaintiff agreed to indorse
a note for Aron, to be dlsoounted at a cer-
tain bank or returned, and that It was nei-
ther so discounted nor returned, but the
plaintiff ^ve his own note for the amount
of money, and thus obtained it from a tliird
party, and then held this note as security.
There was conflicting evidence. The Judge
submitted the two contentions. Tbe Jury
settled tbe Issue, and there was sufficient evi-
dence to sustain their verdict None of the
grounds of the motion for a new trial re-
quire a reversal.
13] The headnotes require no elaboration
except In one respect When the case wss
called, there were 18 Jurors present The
plalntlfl'B counsel declined to strike, and
waived bis right to do so. Tbe deftodonf s
counsel desired a full panel of 24. Tba Judge
directed ttiat be strike trom the la After
be bad exhausted his 6 str^s, ttw case was
tried before the remaining 12. This is al-
leged as error. Perhaps it mSgtit have been
more oorrect to have flUed tbe panel. But
how was tbe defendant hurt? There woe
IS Jurors. He had but « strlkds. Twelve
irare-l^ Tbe thirty-nlnUk rule of the su-
*FDr ettw «UM BM sum sod MOtlen MUHBBB la Deo. Dig. * Am. Ug. '^^'^^■fj^^^^f^^^^^ [(^
842
78 SOUTHEASTERN REPOBTER
(Ga.
VwdoT conzt prtfTldee that, if either party
shall fall to strike, by such failure he shall
forfeit a strike; and if. more than 12 Ju-
rors remain upon the list, the first 12 not
stricken shall consUtnte the Jury. Had the
names of 6 extra jurymen been added to the
panel, and had the defendant stricken any
or all of them, then he would have lost that
many strikes, which he used as to jnrymen
already on the panel. Had he made the
same strikes, then the 6 added Jurymen
would liave been excused after calling the 12
first names above than. So that, in either
event; we see no barm whidi befell the de-
fendant
Jndgment affirmed. All the JosOcea con-
cur.
(140 Qa. m)
LITTLB & OREEN v. DAVIS et aL
(Sopreme Court ot Georgia. July 15. 1913.)
(SvllaTHt* iff the Court.)
1. InTERPLSA,DEB ({ 23*)— OBOTTNDS FOB RB-
LiKF— Petition.
Under the allegatioQa of the petition for in-
terpleader, the plaiotlff was practically a mere
stakeholder, willing and ready to pay to either
of the two defendants the debt which each of
them waa demanding of him, upon the deter-
mination of a single qneation of fact, in regard
to which the defendants were tbemaelvea at is-
sue, and which the plaintiff coidd not determine
for himself without the hazard of having to pay
the debt twice; and the court did not err in
overruling the demurrer to the petition.
[Ed. Note.— For other cases, see Interpleadar,
Gent. Dig. H 47. U; Dee. | 2S.«]
2. IRTBBPLBADEB (| 10*)— RlOET TO BBUEr—
DiSIKTKBXBTBn STAKBHOLDKB.
But Dsder the answer of the defendants
(the plaintiffs in error) and the evidence intro-
duced to support the answer, the plaintiff in
the petition for interpleader was dearly divest*
ed of his character as a disioterestea stake-
holder, and the right to require the other par-
ties to interplead was therefore lost
[Ed. Note. — For other cases, see Interpleader,
Cent Dig. | 12; Dec. Dig. i 10.*]
Error fA>m Superior Gonrt, Fulton Coun-
ty ; Geo. Xt, Bell, Judge.
Petition for interpleader by W. J. Davis
against W. L. ft John O. Dnpree, a partner^
&hlp. and others. From an order requiring
defraidants to Interplead, the defendants Ll^
tie ft Green bring error. Reversed.
W. J. Davis fUed a petition against W. U
ft John O. Dupree, a partnership, and Little
ft Green, another partnership, alleging that
each ot said defendants is a firm of real
^tate agents; that during certain months
of the year 1912 the petitioner sent out to
almost every real estate firm and agent in
Atlanta a circular letter, In wbicb he called
attrition to a certain piece of real estate
owned by him which was for sale, and re-
quested the agents addressed to undertake
the sale of same at a stated price; that each
of the defendants rec^ved the letter and
became active in regard thereto; that the
piece of real estate was sold to Columbus
Roberts; and that each of the defendants
claims to have effected the sale; that while
the trade has been closed with Columbua
Roberts, petitioner Is unable to detemdne to
which defendant Ann he is due the commis-
sion; that tittle ft Green hare instituted
suit ther^r. and W. U ft John O. Dapree
threaten to bring suit to recover the same;
that it is a universal custom in Atlanta that
when the same piece of property is placed
Cor sale with a numbo' of real estate agents,
the commlsEdon is to be paid to the agent
brlnf^ about the sale, and, there bdng no
difTerent agreement made in this case, there
is consequently an implied contract that only
one commission is to be paid. Petitioner
admits his indebtedness of $387 as due to
the agent or firm bringing about the sale;
he is willing and anxious to pay the same,
and he prays that the defendants be required
to interplead, so that it may be determined
to whom the same is due. W, L. & Jno. Dn-
pree answered, setting up that they induced
and brought about the sale to Columbna
Roberts, and claimed the commission there-
for. Little & Green answered to a similar
effect, and made the additional averments
that they claimed the commission under a
contract with Davis, with which contract the
claim of the other defendants can have no
possible connection, and that Davis Is not an
Innocent stakeholder of a fqnd to which all
defendants claim a right, nor does he owe
the same duty to all defendants. A copy of
the alleged contract Is as follows:
"Little ft Green, Real Estate, Atlanta, Ga.
Salesman, LItUe & Green. Atlanta, August
8. 1912. 1100.0a Received of Columbus
Roberts one hundred (f 100^) dollars as a
part payment on all that tract or pared of
land which I have this day sold Coltunbns
Roberts, subject to approval of ttties, for
the sum or consideration of thirteen thou-
sand five hundred dollars, to be paid as tbl-
lews: 98.000.00 cash, assume loan of sU
thousand five hundred at six per cent, bal-
ance in one and two years at six per cent
I agree to pay Little ft Green a commission
of R^ Commission dollars tor service:*
rendered. As per agreement with L. C
Green. In the event the buyer fails to pay
for the property as stipulated above, then
the amount paid Is to be forfeited and is
to be kept by W. J. Davis. [Signed] W. J.
Davis, Owner.
"I hereby agree to purchase the above-
described property upon the terms and con-
ditions above named. [Signed] Columbus
Roberts, Purchaser."
Upon the trial the court passed an order
in accordance with the prayera of the peti-
tion, requiring the parties to Interplead. To
this order Little ft Green excited.
•r«r stker cams sm same topic aod swtlon NUUBBA in Dm. Olg. A Am. Dig. Key-No. Seflw f^|apX^^^^»s
UTTUB A GBBlIiK r. DAVIS
813
L. Z. Hosser, Jr., and Stiles Hopkins, both
of Atlanta, for plaintiffs In error. J. A. & J.
M. Noyes and C. T. & H a Hopkins all of
Atlanta, for defendants In error.
BSCK, J. (after stating the fiacts as
above). [11 1. We do not think that the
conrt erred In oremiUog Qie demurrer to
the petition for interpleader. Under the al-
legations of the petition the sole question
for determination was which of the two par-
ties whom the plaintiff sought to have inter*
plead had procured a purchaser. The peti-
tioner admitted tliat he owed one or the
other the sum of $387, and «eU up facts to
show that this identical sum was due by him
to one or other of the two real estate firms.
The petition made him practically a stake-
holder, owing but one debt to one of two
parties, and which he could not safely pay
to either without the hazard ct having to
pay the debt twice; and the qneatton as to
which was the rightful claimant of the debt
d^nded, according to his allegations, upon
the determination of a single issue of fact,
which was, as we lutre stated. Who had pro-
cured the purchaser? Thla was a question
of fact, In the solution of which, under the
allegations of the petition, the petitioner had
DO interest whatever. And moreover, this
issue of tBCt (the sole issue for determina-
tion before it could be. rightly determined
which of the two clalmantg was entitled to
the fond) was an Issne made by the claim-
ants themselves, in the suit brought by one
of titem, and in the suit which the other was
threatening to bring. We mean by this that
this plain, single Issne of fact was involved
in Oie two suits, the one actually brought,
and the other threatened, as stated In the
petition. Under the allegations of the peti-
tion the plaintiff therdn clearly owed but a
single debt No question of a double lia-
bility could arise under the allegations of
the petition, and consequently the object of
the petition for Interpleader was against
the danger of a "double vexation against a
single liability." The allegations of the pe-
tition, taken as true, sliow the right of the
plaintiff to an order requirlnf Qie defend-
ants to interplead.
[21 2. But upon the hearing to determine
whether the injunction should be granted
and the parties required to Interplead under
the Issues made by the allegations contained
in the answer of the plaintiffs in error aud
the evidence submitted to support tiieee al-
legations, a different case from tliat made
by the petition was disclosed. Under the
allegations of the answer filed by UtUe &
Green and the evidence Introduced In sup-
port of that answer, Davis, the petitioner,
ceased to be a disinterested stakeholder, be-
cause, under one theory of the evidence,
Davis had agreed in writing to pay the com-
mission to LltUe & Oreen, "subject to agree-
ment with Lb C Green, a membor of the firm
{Of tdttle & Green." As to the' mteafng of
that ooDditloD, "subject to agreement with
Im. C Great," there was an Issue of fact be-
tween Davis and Green; Davis testifying that
the agreement betwe«i him and Green was
to the effect **that the commission should be
held by tlie said Davis and should be paid
over by him to whichev^ one said real
estate firms should be entltied thereto ac-
cording to a decree of court," while L. C.
Green testified that "the words 'as per agree-
ment with L. 0. Green,' which were Inserted
in the sales contract by Davis, had no ref-
erence to any agreement to pay the money
into court, or to allow the court to pa-sa a
decree as to whom the money belonged; but
these words were inserted before the suit by
Llttie & Green against Davis was filed, and
had reference to a statement of Gre^ to
Davis when Davis refused to pay Green his
commission; that this agreement was a prop-
osition by Green that if Davis should pay
Green the commissions, Greoi would give to
Davis a good and solvent bond in an amoimt
not less tlian twice the amount of the com-
mtoslons, conditioned to reimburse Davis
should Davis ever have to pay this commis-
sion to another agent, and that this was the
only agreemoit ever made by Green and
.Davis, and this statement was made be-
fore suit was filed against Davis for
Little & Green. Again, while It is al-
leged in the petition that there was a
universal custom in the dty of Atlanta, well
known to defendants and all dealers in real
estate, that when the same piece of property
Is placed for sale with a number of ' real
estate agents, only one real estate commls-.
Blon should be due for the sale of the prop-
erty, and the same was to be paid to the par-
ty brlngli^ about the sale; and, while this
allegation was supported by the testimony
of a witness Introduced by the plaintiff, it
was controverted on the hearing, and a sharp
Issue raised thereon by the testimony of
L. O. Green, who testified that from an ex-
perience of between two and three years In
the real estate business in Atlanta, and be-
ing familiar with all the customs governing
the trade, he could and did swear that there
was no custoih in Atlanta to the effect that
only one real estate commission was to be
paid for a sale of property listed with more
ttum one agent, but that in every such case
the numbOT of commissions was a matter of
contract in each case. With the Introdnction
of this conflicting evidence In reference to tiie
meaning of the words "subject to agreement
with L. O. Green," and upon the subject of
the custom of paying commissions to only
one agent (whether the testimony of Davis
or that of Green was true with reference to
the agreement, or whether the ^timony in-
troduced by the plaintiff or that introduced
by the defendapta with reference to the cus-
tom was true), the character of the petition-
er as a disiiUerestad stakeholder^wiished,.
and he stands revealed g^fg^ 0^*(»(9i|^L
844
78 SOUTHHASTIQRN BBPOBTQB
onlst Of little ft Green, end Intereeted U
deetroying the ^ect of tbe wrlttai contract
between Um end Little ft Green to the ex-
tent of ellmlBBtlng ttom that contract a
^wondae to pay the commiaslons to Uttle ft
Green, taking from them a bond for Indon-
nitj. Under Davle'e theory of the case, as
developed by the erldence, he was Interested,
as against Little ft Green, to the extent of
remoTing them from the adrantageoua posi-
tion of the holder of a written promise to
pay, to a level with the other claimants of
the d^t, W. L. A J. O. Dupree, as mere
claimants of tbe fund, with the validity of
that claim depending npon the establishment
at the fact that they had effected the sale.
Having nnder the evidence been divested of
tlie character of a mere stakeholder, Davis
was ad longN in position to enforce his de-
mand fttr interpleader between Little ft
Green and the Diqtrees, and the oeurt wnd
in holding otherwise^
Jvdgnwit xeversed. All ttie Jastlcta ooa-
cor.
ati) Oa. S86}
HeAFEB et aL v. FLANDEKS at aL
(Soprsme Oourt of Geoisia. jTine IS,
fSvUattu &v the Court.l
"L Sfboial Assionmbnts.
There are do errors In the special anlgn-
ments requiring a new trial.
2. Ehxctnroits and ADumiSTBATOBs (| 814*)—
ACTTOM— VCBDIor— EVIDEHOK.
The Teidict la ooDtralr to tbe evidence.
The evidence tended to ahow that there were
seven le^teea entitled to the estate left by the
testator. The jury ftiand in favor of tbe three
plaintiffs the fall amonat of all cotton left by
the teatatw, certain rents, and the parchaae
money of certain lands collected by the ezeca-
tors. The three platntiffs were entitled to re-
cover only three^eventha of the estate left by
tbe testator. The following portion of tbe Ter-
diet of tbe Jury, ander the tacts of this case,
was also contraiy to the evidence and the law,
to wit: "We, the Jiiry, direct that Ox of the
heirs at law be paid the aom of $aOOiOO each,
as said will provides."
[Ed. Note.— For other cases, see Execetora
and Administrators, Cent Dig. H 1274-1297;
Dec. Dig. I 314.*1
Error from Superior Court, Johnson Coun-
ty; K. J. Hawkins, Judge.
Action between & A. Flanders and others
and J. K. McAfee and others, executors.
From tbe Jodgmen^ McAfee and oOwrs bring
error. Reversed.
See, also, 138 Ga. 403, 75 a B. 819.
Hlnes ft Jordan, of Atlanta, and Kent ft
Moye, of Wrtghtsville, for plaliltiffs in er-
ror. Wm. Falrcloth and A. U Hatcher, both
of Wrtghtsville, and Little ft PoweD and M.
F. Goldstein, all ct Atlanbi, tor defoidants
In ermr.
HILL. i. Judgment nnrsaa. All tte
Justtcea concur.
<u» Oa. M»
DB TAUGBN T. HA Y&
(Bnpreme Goart of Georgia. Jidy U. 1913.)
(SyUahut ig t&« Court.}
1. Tbusts (I 114*)— ComnuorxoB— BIXCDT-
KD OB EXECUTORT.
A deviae to a named trustee, in truat for
another for life, and after his death to such,
child or children as he may leave surviving:,
and, in the event there aball be oo such child
or children, then to other legatees named in
the will, ahare and ahare alike, created a trust
only for the life estate, with legal remainder
over, and tiie trust for life became executed
upon coming into existence. If the life tenant
were then sni jaris, or ao soon as he became eo.
rSd. Note.— For other eases, see Tmsta,
Cent Dig. 1 164; Dee. IMg. tU4.«]
2. TBUSTB (li 9, 06*) — SFBIfDTHUIT TBUSI —
Vauditt— AmrouiEBT.
A valid trust may, under certain clrcam-
stances, be created In this state for the benefit
of one eui juris. The. mere fact, however, that
a legal remainder over is made in the Lnatm-
ment creating a trust, will not aaffioe to nphold
tbe trust for one sui juris. If at any time the
grounds for the creation of a "speudtbriff '
tniBt shall cease, then the beneficiary thereof
shall be possessed legally and foUv of the same
estate as was held in trust, and be may file a
proper proceeding In tbe enperlor court where
the trustee resides to have the trust annulled
on .that ground. The petition in the preaent
case being brought to annul a "spendthrift"
trust on such ground, and the allegations of
the petition, which were not denied In the an-
swer filed, being sufficient to authorise the
granting oi the relief sought the court erred
in denying tbe prayers of the petition.
[Ed. Note.— For other cases, see Trusts,
Cent Dig. || 6, 7, 76; Dec. Dig. H 9. 6B.*]
Error from Superior Court, Macon Oounty ;
Z. A. LlttleJohn, Ju^
Action by O. B. De Vaughn against 3. B.
Hays. Judgment for d^endaut, and plaintiff
brings error. Beversed.
The win of J. B. De Vaughn, executed July
11, 1908, was duly proven in solemn form and
admitted to record. The porttona of the will
here material are as follows:
"Item 3. I give and bequeath to Mary
Porter De Vaughn, Mrs. Mamie Pierce, Mrs.
Rosa Polhlll, Carl L. De Vaughn, Mack S.
De Vaughn, and Otis 6. De Vaughn all tbe
remainder of my realty and personalty, and
other property of every kind and description,
share and share alike, except my wife, Mary
Porter De Vaughn, to have a certain policy
of life insurance payable to her, and to
Mack S. De Vaughn the Lytle and Wood
farms, containing 200 acres, more or less;
also the dwelling house and lot where he now
lives; and to Otis 6. De Vaughn five thou-
sand dollars in cash, so that the last three
-named heirs will be made equal in property
heretofore given off to my h^rs hereinbefore
mentioned,
"Item 4. I give to my nephew, J. B. Hays,
in trust for my son, Otis B. De Vaughn, tbe
above described property as set fbtth la Item
No. S of this my will, to be held by said Ha:^
and rented annually, or leased as the case
•For •ttar easss ss* saw w4 sastlea NUMBJCB4a Dm, Die * Asi. Die- Ker-Na. SarlsTft P^f^,
Digilized by VjOO*
Oa.)
DB VAUGHN T. BATB
845
■1*7 be) and tb« prooeedi applied numtbly
for ttae BQpiKwt of my said eon Otis B. De
Taoghn, daring tbe remainder of bis life, and
at hlB deatb, Ms said property held in tmst
by Bald Hays, shall go to bis cbild or cbll-
dren Uiep In life, and In tbe event be sball
have no cbild or cbildren at bla deatb, his
said interest or property so held In tmst by
J. E. Hays, shall revert back to the other
heirs of my estate, as mentioned in item 3
of this my will."
Otis B. De Vaughn brought bla petition
against Hays, as trustee, in which the provi-
sions of the win were set out, and alleging
that a partition in kind of the property
left by tbe testator bad been made, and tliat
the defendant as trustee bad rec^ved tbe
portion allotted to blm In tmst for petitioner,
and had since held and managed the same as
such trustee. It was further alleged that
petitioner was 21 years of age, of sound
mind, and able to manage his own property,
and that, if there were ever any reason why
the property devised to petitioner should be
put in tbe bands of tbe trostee, such reason
no longer existed,- and that the defmdant was
willing to resign as trustee. The allegations
of tbe petition were not denied in the de-
fendant's answer. The prayers were that the
defendant be allowed to resign hlB.trast, and
that petitioner be authorized to take charge
of and Control tbe proi>er^ devised to the
defendant as bla trustee, and that a full ac-
counting be bad between petitioner and de-
fendant as trustee.
There being no Issues of fact Involved, tbe
case by consent order was heard in vacation
by the Judge, with ttae right of exception to
both parties reserved. Tbe Judgment render*
ed was adverse to petitioner, and tbe material
portion of It was as foUom: "It Is my opin-
ion that, from tbe broadest contructlon that
could be given tbe will, tbe testator gave the
property In trust for his son, tbe plaintiff, for
life, with limitation over to plaintltTs chil-
dren, and. If no cbildren, tboi to revert back
to the other heirs mentioned In said item of
the will. • • • The testator had tbe right
to create this kind of an estate, and to ap-
point a trustee to carry out his wishes In re-
gard to this property, and to preserve an
estate over in accordance with his wishes.
Therefore I have no authority to remove the
trustee and turn the property over to tbe
plaintiff, and, should the trustee resign, it
would be the duty of the court to app<^nt
another, to preserve this estate, and to carry
oat tbe wishes of tbe testator in regard there-
to. The prayers of tbe petition are hereby
denied." To ttala jndpoait petltloiier ex-
cepted.
Jule Feltob, of Montezuma, for plaintiff In
«rror. B. L. Greer, of Oglethorpe, for de-
fendant tn errmr.
TISB, a J. (after aUting the tacti as
abor^ [U The devise to Haya is tniat Cor
Otis B. De Yaugbn for life, and after his
death to such child or children as he might
leave surviving, and. In the event that there
should be no such child or cbildren, thai to
other legatees named In the will, share and
share alike, created a trust only for Otis B.
De Vaughn during bis life, as no express
trust was created for thwe to take in re-
mainder. Such a trust was executed as soon
as it became operative, if Otis B. De Vaughn
was then sul Juris, or as soon as he became
so. Vernoy v. Robinson, 133 Ga. 653, 66 S.
B. 928, and cases cited. While under certain
drcumstances a valid tmst can be created In
this state for the benefit of a person of full
age (Civil Code, f 3729; Blnnott v. Moore,
113 Qa. 908, 39 B. B. 416; Moore v. Slnnott,
117 Ga. 1010, 44 S. B. 810), the mere fact
that there Is a legal remainder over will not
suffice to uphold a trust for one sul Juris. Tbe
ruling In Lester v. Stephens, IIS Ga. 39
S. B. 109, la not authority to the contrary,
for there tbe testatrix by her will undertook
to create a trust for her brother and sisters,
who were sul Juris and had no intemperate,
wasteful, or profligate habits, and which It
was held she could not do under Civil Code,
S 3729, aikd tbat therefore upon her death
tbe tmst became immedlatdy executed.
Civil Code, i 3729 provides: "Tmst estates
may be created for the benefit ot any minor,
or person non compos mentis. Any person
competent by law to execute a will or deed
maf« by such Instmment doly execnted,
create a trust for any male person of age,
whenever In fact such person Is, on accouut
of mental weakness. Intemperate habits,
wasteful and profligate habits, unfit to be
entmsted with the t-igbt and maflagement of
property; • * • Provided also, if at any
time the grounds of such tmst shall cease,
then tbe beneficiary shall be possessed l^Ily
and fully of tbe same estate as was held In
trust, and any person Interested may file
any proper proceeding In the superior court,
were the trastee resides, to have tbe tnut
annulled on that ground. If be so desires.
Any person having claims against the ben-
eficiary may avail himself of the provisions
of the Code In relation to condemning trust
property at common law."
[2] Treating tbe trust created for his ben-
efit in tbe will under conslderatloB as falling
within tbe provisions of tbe Code section
Just referred to— tbat is, as a "spendthrift
trust" — the petitioner sought in the manner
prescribed to have the trust uinulled on the
ground that, if the trust was created for any
of the leaaoui i^tedfled in sach sectton, they
had ceased to exist, for the reascm that at
the time his petition was filed he was 21
years of age and fully capable in every way
of managing and controlling bis own prop-
erty. As the allegatlona of bis petition were
not denied by the def«idant trustee, the
court tfrred in deny^ the prayere of the pe-
tition. ,
In recpeetio the l»nn>tbi$tilM>99 fe^^^fi IC
84G
78 SOUTHEASTERN rMPOIITEB
given to the defendant in trust for the peti-
tioner, the court may upon tiie trial provide
by decree for the protection of the corpns for
the benefit of the contingent remaindermen.
See, In this oonnectliHi, Otalsholm t. Lee, S3
Oa. 612.
Judgment reversed. All the Justices con-
cur.
ttS)
ROY V. STATU.
(Supreme Court of Geoivia. Ju^ 10, 18130
(SylMv »y the Court.)
1. Gbiminai, Law ({ 939*) — New Tbjaz.—
Gbounds.
Where a mother wag chained with murder
resulting from ao aasanlt upon her child, in
which the latter was beaten and stamped, and
it appeared that several persona were present,
one of whom assisted the mother in catching
cfae child, it furnishes no ground for reversal
that after the trial the evidence of some of
these eyewitnesses (including the one who as-
sisted her), who had not been subpoenaed or
introduced as witnesses on tiie trial, was claim*
ed to have been newly discovered; no suffi-
cient reason appearing why the accused did
not know of such witnesses, or could not pro-
cure their evidence, at the triaL
[Eld. Note. — For other cases, see Criminal
Law, Cent. Dig. S§ 2318-2323; Dec Dig. §
939.*]
2. Cbihinal Law (8 ©56*)— Nnw Tbial— Af-
■ nOAVITS— SumCIENCT.
Where such witnesses made mere general
statements in affidavits that they did not ap-
prise the defendant or her counsel before the
trial of the facts to which they could testify,
for the reason that they "had no opportunity
to. see defendant after her arrest, or her coun-
sel after counsel had been employed/' and the
defendant and her counsel made affidavits in
which they stated in general terms that they
did not know of such evidence before the trial
of the case, and could not by the exercise of
ordinary diligence have discovered it, without
any reason being shown why it could not have
been discovered, this did not suffice to explain
the failure to obtain such testimony before the
trial, or to furnish ground for a new trial.
[Ed. Note.— For other -cases, see Criminal
Law, Cent. Dig. fi| 2S7&-2S91; Dec. Dig. (
9e6.*l
3. Cbimirai. Law (| llS&t) — Afwkal -~
GBOunti TOB Rkvebsal— Newlt Discoveb-
XD EviDGrrcE.
Newly discovered evidence, which is only
cnmnlative or impeaching in its character, wiU
not ordinarily require a reversal, where the
p)%siding judge has declined to grant a new
trial 00 that ground.
[Ed. Note.— For other cases, see Criminal
Uw, Cent IMg. H 8007-8071; Ded Dig. |
ii5e.*i
4. Vkboict ahd Dxnui. or New TttXAL Af-
EBDVED.
The evidence was sufficient to support the
verdict, and there was no error in refusing to
grant a new trial.
Error from Superior ^Coort, Bleckley Coun-
ty; E. D. Graham., Judge.
Fanimy Boy was cpnylfited o£.alm«, and
brings error. Affirmed.
J. 0. Zinney and A. '0. Sftffold, both ot
Cochran, for plaintiff in error. W. A. Wooten,
Sol. Gen., of Eastman, and T. S. Ftider, Attr.
Gen., for the State.
LUMPKIN, J.
Justices concur.
Judgment affirmed. All the
aw Oa. ior>
CALLAWAY v, BEAUCHAMP et aL
(Supreme Court of Georgia. July 16. 1913.)
(SyaalHU by tKe Covrt.)
1. Afpbai. and Erbob (I 499*)— Rbcobd— Ob-
jxcnoMs.
In order to authorize tliis court to re-
verse the Judgment of the trial judge allow-
ing an amendment to pleading, the record must
distinctly disclose, not only that objection to
the allowance of suA amendment was made at
the time the same was allowed, but also tb«
ground of such objection. McCowan t. Brooks.
113 Ga. 532 (4), 89 S. B. 110.
[Ed. Note. — For other cases, see Appeal and
Error, Cent Dig. H 229&-22g8; Dec. Dig. i
499.*]
2. New Tbial (| i24*) — Motion — 3uB»r-
OXINOT.
The ground of a motion for new , trial,
complaining of the admission of documentary
evidence, over stated objections, which does
not set forth the document, In form or sub-
stance, is incomplete, and fails to set forUi
any question for decision. Stewart v. Bank,
100 Ga. 496(2), 28 S. E. 249: Stewart v.
RandaU, 138 Ga. (5), 76 S. B. 352.
[Ed. Note.— For other cases, see New Trial,
Cent Dig. |f 250-253 ; Dec. Dig. | 124. •]
3. Advebse PosBEissioN (I 8S*)— Bvxdekcx or
Titlb— Deeds.
In an action iA complaint fbr land, where
the plaintiff relied on prescriptive title, ancient
deeds, purporting to convey the land, not con-
nected with plaintiSPs chain of deeds, were in-
admissible at his instance as tending to illus-
trate the good faith, of his poanession, tlioagb
offered in connection with extraneous parol evi-
dence to the effect that such deeds were includ-
ed among a number of other ancient, though
more recent, deeds, handed down to him as
mnnimente of title by his predecessors.
. [Ed. Note.— For other cases, see Adverse Pos-
session. Cent Dig. 313, 498-503, 656, 657,
660, 6^, 688-690; Dec. Dig. S 85.*]
4. Adteksb Possession (S| 109, 116*)— Rb-
fdsal or iKSTBDorroNS— Title— Abandon -
VENT.
Where title to land Is acquired by sereu
years' adverse possession under color of title,
such title cannot be lost by the holder there-
of by abandonment Tarver v. Deppen. 132
Ga. 798 (7), 65 S. E. 177, 24 L. R. A. (N. S.)
1161. Accordingly, in an action of complaint
for land, where plaintiff relied for recovery on
prescriptive title, and the evidence in his fa-
vor tended to show that after he had acquired
prescriptive title he moved away from the
state, leaving a tenant in possesBlon, and the
defendants relied on prescriptive title, based
OQ adverse possession alleged to have com-
menced after the departure of the .plaintiff, and
to have run foe the prescriptive period before .
the institution of the suit, and it was an is-
sue whether the tenants residing' on the prop-
erty were those of the plaintiff or those of the
defendants, it was error requiring the grant
<tf a fiew -trial f 6r the court to refuse, sb wrlt-
•Tor other cues' see same tiapio 'aad section liuUB^R In Dec Dig. & km. Dig. IKfVi^al.
W.ATTEm T. LANF032>
847
ten reqnes^ to charge the principle abort an-
nounced.
[Ed. Note.— For other cam*, see AdrerM Poo-
seMiOD, Gent Dis- U 68i S^-OSB; D«& Dlf.
8. iNSTBUOnOHS.
All Other requeata to charge were cov-
ered b7 the general chaiKe, in bo far as thej
accurately stated Drinciplea ot law applicable
to the case ; ana white certain portions of
the diarse, which were eomplained of in the mo-
tion for new trial, may not have been entirely
accurate, none of them were erroneooi for any
reason assigned.
0. Mattkss Not DxTmnNED.
As the case will be returned for another
trial, no ruling will be made on the assign-
ments of error based on the general grounds
of the motion for new trial, and tbose which
complain particularly that the verdict was con-
trary to the charge of the conrt.
Error from Superior Court, Quitman Coun-
ty; M. C. Edwards. Judge, pro bac.
Action by B. D. Callaway against J. W.
Beauchanqi and others. Judgm«it for de-
defendants, and plalntlfl brlDgs error. Re-
versed.
Smith ft MiUer. of Edison, for plaintiff In
error. B. T. Castellow. of Cuthbert, for de-
fendants In error.
ATKINSON. J. Judgment reveraed. AU
the Justices concur.
(UO Os. 217)
FELKEE T. CITY OT MONBOB.
CBnpremo Conrt of Geor^ July 16, 1913.)
(BnlUbma hy the Oonru)
1. BUIHEHT DOVAIN (S 307*)— DABUOBS FBOM
Construction or Sewbb— Nonsuit.
While the declaration in this case Is inar-
tificially drawn, and does not dearly and dis-
tinctly allege any amonnt of damages as the
result of the taking of petitioner's property,
it does in general terms allege that the plain-
tiff was damaged in a certain amount per an-
nom by reason of the constructioa of a sewer
through his land alon; a Cerent route from
that on the line of which he had consented for
the dty to construct it, and that, in conse-
quence of the unauthorized change in the loca-
tion of the sewer, plaintiff had been damaged.
There was some evidence from which the jury
would have been authorized to find that the
city had constructed the sever along the route
□ot authorized in the plaiotiff's agreement with
the city ; and, that being true, the court should
not have granted a nonsnit, but diould have
submitted to the Jury the question of damages
resulting to the plaintiff.
[Ed. Note.— For other cases, see Eminent
Domain, Cent IMg. S| S20S2i; Dec Dig. |
307.*]
2. Ehihbnt DoxAin (S 271*)— DAMAGBSnoU
Construction of Sb web— Dura nses.
If, as a matter of fact, the plaintiff had
oonsented for the dtj to construct a sewer
upon one line through his property, the city
could not altogether defeat a recovcEy of dam-
ages, in case toey actually constructed the sew-
er along a different line through the plaintiff's
land, although the constructiou of the sewer
along the latter line did not cause any greater
damage than If It had been constructed along
the line agreed upon between the plaintiff and
the city.
. [Ed. Note. — For other cases, see Eminent Do-
main, Gent Dig. H 726-786, 741; Dee. Dig. I
271.*]
Error from Superior Court, Walton Ooon-
ty; H. C. Hammond, Judge.
Action by Joseph ' R. Fether against the
City of Mouroa Judgment for defendant,
and plaintiff brings error. Reversed.
Jos. H. Felker, of Monroe, for plaintiff in
error. B. L. Cox, ot Monroe, Cor defendant
in error.
BECK, J. Judgment reversed.
Josttees concur.
All the
iX» Oa.
WATTER6 r. IjANVORD et at
(Supreme Court ot Georgia. July 16, 1918.)
(SyttalMU hy the Covrt.)
1. Ihterpixadbb (I 8*)— Right to Cohpei..
"Whenever a person is possessed of prop-
er^ or funds, or owes a debt or duty, to which
more than one person lays cl^m, and the
claims are of such a' character as to render it
doubtful or dangerous for the holder to act,'he
may apply to equity to compel the claimants to
interplead." Cfv. Code 1910, I 5471.
[Ed. Note.— For other cases, see Interpleader,
Cent. Dig. 0 8, 9, 11; Dee. Dig. | &*]
2. Imtbbfleadbb (} 6*)— RioHT to Compel.
Lanford brongbt a petition for interpleader
against Andy Nolan and J. C. Watters. The
petition alleged that Lanford was in possession
of certain described jewelry, which Be held as
a mere stakeholder, having no title or Interest
therein, and that his possession was acquired
In the following way: Nolan reported to peti-
tioner, who was chief of the detective force in
the city of Atlanta, that Watters had cheated
and defrauded Nolan out of the Jewelry while
the two were engaged in a game of chance
commonly known as a "crap game." Petitioner
thereupon had Watters arrested, and be turned
the jewelry over to petitioner. Both NoUn and
Watters claimed title to the jewelry, and both
notified petitioner of their respective claims.
Nolan sued out a possessory warrant for the
jewelry against petitioner, and Watters had
broii|;ht an action of trover and bail against
petitioner for the jewelry. Petitioner was
ready to deliver the jewelry to either Watters
or Nolan, as the court mieht determine upon
the trial under an interpleader. Upon the hear-
ing, the evidence tended to prove the allega-
tions of the petition. Held, that the court did
not err in ordering -Nolan and Watters to in-
terplead, and in granting an interlocutory in-
junction restraining them from further pro-
ceedhig -with their respective actions against
the petitioner.
[Ed. Note.— For other cases, see Interpleader,
Cent Dig. | 6; Dec. Dig. S 6.*]
3. lNTSaPI.BADEB (| 6*)— RiGHT TO COMFBL.
Even if Nolan, under the facts of the case,
could not maintain his possessory warrant, this
of itself did not furnish a good reason why
the interpleader should not have been granted,
as Nolan might bring an action of trover
against Lanford for the recovery of the jewel-
ry, after failing in the possesaoir warrant pro-
ceeding.
[Ed. Note.— For other cases, see Interpleader»
Cent Dig. I 6; Dea Dig. | 6.*]
VHoChereBBss8MssmetoploaadsseUo&NUllBaBlnD«s.DIS.*Ain.Dis. Kqr-No. 8tri<
Digitized
84d
78 SOUTHBASTBRN BBFOBTER
(Ga.
Brror ftom ^perlor Court, FWton Oonn-
ty; W. D. BUlB, Judge.
Petition for interpleader by yt. A. Lanford
against J. CL Wattera and Andy Nolan.
jQdgmoat for petitioner, and Watteva brings
emr. Affirmed.
Moore A Branch, of Atlanta, for plaintiff
in erft»r. J. U Mayson. W. D. MIIm, and
Frank U Baialson, all of Atlanta, Cor de>
f endants in error.
FISH, O. J. Judgmaat affirmed.
Justices ooncnr.
AU the
a« am. 168)
McCOXt.MILUOOB.
(Snprame Oonrt of Georgia. Jnly 18^ 1913.)
fSifUabus Ay tke Court J
1. New TfUAi. (S 1S2*)— Bbibf or Btidbrci.
While certain matteri are set forth in the
brief of evidence which properly have no place
therein, they are not aumcient to require a ml-
ing that the brief should not be considered in
paBBing on the grounds of the motion for new
trial.
[Ed. Note.— For other cases, lee New Trial,
Cent Dig. H 273-276; Dec Dig. % 182.*]
2. N«w Trial (I TO*)— Obquwdb— Evidence.
The salt being npon an open account,
which' defendant denied owing, and no witness
having testified aa to the sale to the defend-
ant of the gooda for the prices of which the
action was brought, nor aa to the delivery of
snoh ffooda to the defendant. It not being shown
that the salesman waa d^ad, or that h^a testi-
mony could not be procured, and there not be-
Uig aufficient evidence to prove tbe correctness
of the account, the verdict in behali of the
plaintiff waa without evidence to suppqrt It,
and the court erred in refusiiv a new trial.
. [Bd. Note.— For other cases, see New Trial,
Gent. Dig. H 142. 148; Dae Dig. | TO.*]
. Brrw from Soperlor Gonrt, Fulton Coun-
ty;- Geo. Ij. Bell, Judg&
■ AcUon by T. D. Header, trustee, against
B. F. McCoy. Judgment for plaintt?, and
defendant brings error. Beversed.
W. Bi Suttles, of Atlanta, for plaintiff In
error. Tlndall & Silverman, of Atlanta, for
defendant in error.
FISH, O. J. Judgment reversed.
JuflUces concur.
All tlie
a« Oa. S2S)
mnXARD ft WOODSON et SL T. PLANT-
BBS' WAREHOUSB ft GBO-.
CBRT CO.
(fiqpreme Court of Georgia. July 18, 1913.)
(HplJahM by t\9 Court.)
Appeal and Erbob (| 9M*)— REViiw-r-lNXix-
lACbTOKT IHJUMCTIOW.
Thia case comes within the wen-aettled
rule that the discretion of the Judge, fit the au-
perior court in granting or rearing an tnter-
locatory injunction wHl not be Inteifered with,
unless abnaed.
[Bd. Note.— For other cases, see Ai^eal and
Error. Cent Dig. H 3818-3821; Dec. Dig. |
954.*]
Evana, P. X, dlaaenting.
Error from Soperlor Court, Bleckley Conn*
ty; E. D. Grabam, Judge.
Action by tbe Planters' Wardiouse ft Gro-
cery Company against Bnllard & Woodson
and others. Judgment for plabitlf^ and de-
fendants bring error. Affirmed.
H. F. Lawson, of Hawklnsville, for plain-
tiffs in error. Saffold A Stallingii^ ot Cotdi-
ran, for defendant In error.
BILL, J. Judgment affirmed^ All tbe Jus-
tices concur, e»ept BVANS, P. J., dissenting.
(W Oa. Ml>
LINDSBY r. POBTBR ft GARBBTT.
(Supreme Court of Georgia. July 18; 1013.)
(ByUaJnu hy the Court.)
1. MOBTOAGEB ($ 499*)— FOBECLOSUSB— Va-
UDITT OP DECBEE— BnTOBCEUENT.
Where, upon a petition filed In 1892 to
foreclose a mortgage in equity, a Judgment was
rendered foreclosing the mortgage, while, so
far as the aame may purport to be a general
personal Judgment, it is dormant because of
failure to Issue, an execution thereon in terms
of tbe statute relating to dormancy of judg-
menta, it is valid and enforceable as a decree
foreclosing a mortgage. Conway v. CaswelL
121 Ga. 254, 48 & a 956. 2 Ann. Cam. 269.
.[Ed. Note.— For other cases, see HortsageL
Cent. Dig. SS 1478-1486; Dec Dig. { 493!*]
2. MoBTOAaES (Si 480*) — Fobkcldsube zh
BQUITT— VBBDICT OF JUKT— NeCBSSITT.
The decree Is not invalid and void because
rendered witboat a verdict of a jury. Tbe
mortgagee 'filed his petition In equity to fore-
close the mortgage nnder the provisions of
Civil Code 1910, | 8805. There was no ap-
pearance by the mortgagor. There was no
question of fact Involved requiring dedslon by
a jury, and the Judge properly rendered the
decree without the verdict of the jury, under
tbe provisions of Civil Code 1910, | 5422.
[Ed. Note.— For other cases, see Mortgagea,
CenL Dig. { 1399; Dec. Dig.! 48a*]
Error from Superior CSourt;. Butts County;
B. T. Daniel, Judge.
Action by Porter ft Garrett against B. P.
Llndsey. Judgment for plalntlfb, and de-
fendant brings error. Affirmed.
W. A. Thompson, of Atlanta, and Jdo. R.
Ll ftnitht of 'Macon, foB plaintiff in error. O.
M. Duke, of BloTllla, tor defendants In error.
BBCK, J. judgment affirmed. AU (be
Justices concur.
•For otber caMS M* asBM topic and MetloD NUUB^b ia Dec. Die. a Am. Dig. Key-No. Sertat ft RWr IndezM
Digitized by
GooqIc
DKVmtBAUX T. 8TAXK
040 Oa. sas)
DBVfl&BAUZ T. BTATB.
(BnpMM Ooort of a«orgU. Jaly 16, 1918.)
/'5vna&«M bp the Oovrt.)
1. HOUZOIDE (t 200*)— DtXKO DiOLAUTtOH—
ADuiasiBiurr.
There was testimony that the deceased was
In artictilo mortis aod consdoas of bis coDditioa
at the time be made the statement received is
flvidence as a dylne declaration, and the coort
properly instmotca tb« Jury with nfereoM
tbereto.
[Bd. Nota— Fbr oOur caae^'wa Homicide,
C«it Die. II 42{M27; Dm. fiif. | 200.*]
3, CracmAL Law 828*)— Innairozxoits*
Dtxno Dkueations.
Snch instruction was not erroneous because
of an omission to charge. In the absence of a
written request, that evidence of a dying dec-
laration sboold be receiTed by tbe inry with
great caation.
{Ed. Note^— For other eases, see Criminal
Law, Cent Dig. { 2007; DeoDig. I 82&*]
8. HouiciDC (I 292*)— InarsrcnoiTs— Malicc.
Tbe charge on the sobject of malice was
not open to tbe criticism that it was inappropri-
ate because no nnlawful homicide was proved.
[Ed. Note. — For other casee, see Homicide,
Gent Dig. || G9T, 688, BeoTeOl; Deb Dig. {
292.*]
4. HoinciDE (I 800*>— IirsTBCcmoNB— JiTsn-
riABLI HOHIOIDB.
The charge on tbe rabject of Justifiable
homicide was not open to the criticism that it
narrowed the law of self-defense. _
[Bd. Note.— For other cases, see Homicide,
Cent Die. H 914, ei«-e20. 622-«t0; Dee.
Pig.|805.*]"
6, Geimihal Law (I 814*)— Ihbtbuctiors—
IirPEACHHEITT or WiTHESSEfl.
In an instruction relating- to the impeadl-
ment of witnesses, it is proper to omit reference
to a form of impeachmanf coneervtaig wUeb
there is no evidence.
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. |{ 1821, 1833. 1839, 1860,
1865, 1883, 1880. 1024, 1879-1080, 1087 ; Dec.
Dig. I 814.*]
Ok Gbimiivai. Law (| ' 814*)— IinrrBoonoiw—
DCFENSB OF HABITATIOH.
The evidence did not aatborize an instruc-
tion upon the defense of one's haUtation, at
contained In Peoal Code 1910, { 72.
[Ed. Note.— For other cases, see Orlminal
Law, Cent Dig. H 1821.. 1% 183% 1860,
186S. 1883, 1890, 1924, 1979-1986, 1987; Dec
Dig. { 814.*1
7. Hoiucim (I 809*)— InmBnonoiis— Mait-
SLAUQBm.
The evidence did not authorise a charge on
Voluntary manslangbter.
[Ed. Note. — For other cases, see Homicide,
Cent Dig. U 049, ABO, <162-6S6; Dee. Dig. |
«oa*] . ^
& Hoiacxm d »i6*)— BTxmniac— DamAx. or
Nbw Tjuai:,.
The verdict is supported by tl^ evidence.
[Ed. Note.— For other cases, see Homictde
Dec Dig. I 81&*]
Ettot tram Stiperlor Oonrt, HHieookt GDmi-
ty; J* B* Pu-k, Judge. '
•Win <or Buck) Devereavx wa« oonvioted
«t mnrder, and be brli«8-ern>r. A'fflriBed.
Jelin B. OooptXt <ii ICgeon, mai V. M.
Hnnt, ot Sparta, for plaintiff In error, Joa.
E. PotUe, 8oL Oen., of MllledgevlUe, and
T. 8. FeMer, Atty. Oen.. for tbe Stattt:
EVANS, P. J. The plaiotUt Sn error was
convieted of the morder of L. D. Thornton,
and recommended to the mercy of tbe conrt
According to tbe teatlmoDy sabmitted by the
prosecotlon, tbe accused bad a farm on fbe
plantation of the decedtfit The deced^t
went to tbe honae of the accaeed and aifeed
him why be was not hoeing bis cotton. The
accused replied that be ms sit^. Both en-
gaged In a collogny. and the accused got his
shotgun. Tbe decedent, who was tinErmed.
ran around the hoase, entreating the accused
not to shoot htm. The accused shot him
twice as he was endeavoring to escape. The
wound was Inflicted upon the right side of
tbe body, in the upper p&rt of the lumbar
region. Tbe gunshot made a hole as large
as a man's Ost, and brohe several ribs. The
decedent survived about six hours after re-
ceiving his injurtes. Shortly before bis death,
after stating that he knew be was going to
die, be declared that the accused shot him.
The defendant offered a witness, who testl-
fled ttiat after the decedent and the accused
engaged In a wordy altercation, each cursing
Che other, the decedent ran to his home, pro-
cured a pistol, and Immediately returned to
the house of the accused; that be came Into
the house of the accused, saying. "Buck If
you want to ^oot me, I am here;" the ac-
cused replied, "I didn't say I wanted to shoot
you, and I didn't say Z was going to do it,
but before I wHI let you run over me like
you aid this morning I wUl shoot you like
a damn rabbit" Whereupon decedent pre-
sented his pistol and shot the accused, who
was sitting on the foot of hla bed. The ac-
cused then shot the decedent with a gun.
Evidence' was submitted that, this witness had
made statements outside of court, respecting
the homicide, matralally different from his
testimony.
[1] 1. There was no error in admitting the
dying declaration of tbe decedent as to the
canse of his death and who shot him, as it
was made by the declarant In aitlculo mor-
tis and while conscious of his condltlcm.
Penal Code, J l02fl. '
[2] a: "While the testimony of a witness
whose evidence goes to the Jury throTu;h the
medium of dyln^ declarations is to be con-
sidered under the same rules that govern
them in determining the credibility of other
witnesses who testify from the stand, tiie
fhllure of the Judge to ehai^ upon the snb-
je^ of encb rules win not be a sufficient rea-
aon for granting a new trial,' In the absence
of an appropriate and ttia^f written request
•asktog InstruetlonB -upon the subject** Hall
v. State, 124 Gtt. 649 (2>, 02 8. B. 89t '
[I] 8. The jury werelmthiCted : "Under the
**»*f ^^^^^^U^ M Di,. « Am. IUr-Hg,«|«|j*1^'^J^[^
890
78 SpUTHEASTBEUf REPOBTBR
deflntUon of malice as defined by the law, It
does not necessarily Imply any previous 111
will qh the part of the person killing against
the person killed ; bat where a homicide Is
shown to have been committed, and all the
drcnmatances connected with such homicide
show a deliberate intention unlawfully to
take human lif^ without mitigation, or with-
out ezcnse, or without Justlflcatlon, under
flrcumstances of that kind malice as defined
by the law would exist" There was erldence
of an unlawful klUlng; and this instruction
was. not erroneous because the defendant in
his statement admitted and justified the kill-
ing. Mann t. State, 124 Ga. 760 (1), 63 S. B.
324, 4 U B. A. (N. S.) 934.
[4] 4. llie court's instructions as complain-
ed of In the third and sixth grounds of the
amended motion, when considered in connec-
tion with that part of the cliarge from which
the excerpts were taken, were not open to
the criticism that th^ narrowed the ^iw of
self-d^NiBe, in that the Jury were not told
that if they should find that the deceased
waa making an assault upon the defendant,
less than a felony, ^nd the circumstances
were such as to arouse in him the feara <^ a
reasonable man that his life was in danger,
and he killed the decedent under the Infiuoice
of those fsars, the homicide would ha Justlfl-
ahle The court bistructed the itaj. In Im-
mediate connection with the charges com-
plained ot, that "If the circumstances that
surrounded the defendant at the time [of the
killing] were soffldent to excite the fears
of a reasonable man that his own llfft was
In danger* or a felony was about to be com-
mitted on his person, and be shot under the
influence of those fears, and not in a spirit
of revenge, under the laws of the state of
Georgia he would be Justifiable, and you
would not be authorised to convict the de-
fendant of any offense."
[S] S. The court charged that a witness
may be impeached by disproving the facts
testified to by him, and by previous contra-
dictory statemoits made by him of matters
relevant to his testimony and to the case. It
is contended that the court also should have
instructed tbe Jury that a witness was Im-
peachable as to his general bad character.
There was no attempt to Impeach any witness
by proof of general bad character, and the
court properly gave .no instruction as to this
mode of Impeachment.
[I-I] 6-S. The summary of facts, though
brief, is comprehensive of the case made by
the prosecution and the defense. There was
no attack upon the habitation of the accused,
and the court properly refrained from giv-
ing in charge Penal Oode, | 72. According
to the evidence submitted by the prosecution,
the accused was guilty of murder. If the
witness offered by the accused was credible,
he was Justifiable In taking the life of the
decedent. There was no middle ground. The
*Var etlisr
verdict is supported by the evidence, and
reason appears for Interf^ng with the dis-
cretion of the court In refusing a new trial.
Judgment affirmed. Ail the luatlceB concur.
(IS Oa. App. 9&>
EZBLL V. CITY OF ATLANTA. (No. 4,158.)
(Court of Appeals of Georgia. July IS, 1013.)
(SyUabut by the OourtJ
GOUVBROB (S 61*>— OBDXRAHOM— lETVAUDlTT
— Cbiminal Offekse.
The Supreme Court, in response to ques-
tions certified to it by tbe Court of Appeals,
having held that the ordinance under which the
petitioner for certiorari was convicted, in so
far aa it relates to interstate shipments of liq-
uors therein specified, is void and unenforce-
able ; and since it was admitted on the trial be-
fore the city recorder that the report demand-
ed of the accused was one relating to inter-
state shipments of ligaors, the conviction of
the accused by tbe recorder was illegal, and the
judge of the superior court erred in renulng to
sanction the petition for certiorari.
[Gd. Note. — For other cases, see Commerce,
Cent Dig. SI 81-84, 89; Dec Dig. | 61.*]
Error from Superior Oourti Fulton Coun-
ty ; Geo. L. Bell, Judge.
. O. M. BEeU was convtcted of violating
a city ordinance, and brings error from re-
fusal at the superior court to sanction his
petition for certiorarL Rev:erfled.
For answer of Supreme Court to oerttfled
Questional, see 78 8. & 821.
UtUe & Powell, of Atlanta, for plaintifl
in error. J. U Mayson and W. D. ElUa, Jr.,
both of Atlanta, tor defendant in error.
RUSSELL, J. Ezell. who Is the agent of
the Geulxal of Georgia Railway Company at
Atlanta, was arrested for a violation of a
municipal ordlmince requiring railway com-
panles, and all other common carriers, to re-
port receipts of any and all spirituous and
malt liquors In quantities In excess of three
gallons, and to permit tbe chief of police and
his officers acting under hla authority to
make an inspectiott of the books of the car-
rier compaiiy as to the receipts of audi liq-
uors.
Before filing his plea of not guilty the de-
fendant presented a verified special plea set-
ting up: (1) That the ordinance Is too vague
and indefinite to be capable of enforcement;
(2) that the ordinance Is void because the
transaction to which the accusation relates
was one had by the carrier In carrying on
interstate commerce, and, so far as the ordi-
nance requires the defendant to furnish the
information required In th^ ordinance, it is
repugnant to ttiat provision of the fifteenth
section of the Interstate Commerce Act
(Act Feb. 4, 1887, c. 104, 24 Stat 884 [IT.
S. Comp. St 1001. p. 3166], as amended by
Act June 18, 1910, c. 309, | 12, 86 Stat 661),
under which it la unlawful for a common
1 SM sine tople sad saetlqa NUHBBK la Dm. Dig. a Ab. Dig. K«r-M«.
Digitized
^fS^SLL T.'dTT OF ATbASTJL •
carrier <!Dgagea In Interstate commerce, or
any of Its agents or employes, to Imowingir
disclose, or permit to be acquired by any
person other tban the shipper or consignee,
any information which may be used to the
detriment of the shipper or consignee, or to
Improperly disclose his business transactions
to a competitor, unless such information be
glren In response to legal process for the
prosecntlou of persons charged with or sus-
pected of crimes, etc.; (3) that the ordi-
nance, as applicable to the defendant and
the transaction with which he stood charged,
was repugnant to article 1, | 8. par. 3, of
the Constitution of the United States, to the
effect that "the Congress shall have power to
regulate commerce with foreign nations and
among the several states," etc. ; (4) that the
ordinance is repugnant to section 20 of the
Interstate Commerce Act, since by said act
of Congress sole and exclusive Jurisdiction is
conferred upon the Interstate Commerce
Commission to prescribe the manner in wnich
common carriers shall keep their books and
accounts; (6) that the ordinance Is void be-
cause no authority has been conferred upon
the city of Atlanta to pass It ; and (6) that
the ordinance Is void because those portions
which are repugnant to the Con^tutlon of
the United States and the Interstate Co-
rn erce Act are so Interdependent and so con-
nected with the other provisions of the ordi-
nance as to render Qie entire ordinance nuU
and void.
The accosed was tried before the recorder
of the city of Atlanta upon an agreed state-
ment of facts, to the effect that ElEell was
the agent of the Central of Georgia Hallway
Company, a common carrier engaged in com-
merce between th6 state of Georgia and oth-
er adjoining states ; that the city of Atlanta
furnished printed blanks to the accused as
agent of the railway company to make the
reports mentioned In the ordinance; and
that a member of the police force of tiie city
of Atlanta, having authority to make arrests
for offenses both against the laws of the state
of Georgia and the city of Atlanta, demanded
reports required by said ordinance from
Bzell, and that he (Ezell) refused to furnish
the same in response to the demand. In
the meantime the railway company had re-
ceived St the agency of which the accused
was In charge certain shipments of spirituous
and intoxicating liquors of more than three
gallons each from points without the state
of Georgia to Atlanta, Ga., and had deliver-
ed them In the ordinary course. It was fur-
ther admitted that the policeman, acting for
the city of Atlanta, demanded of Ezell that he
niake a report to him of the receipts of ship-
ments of spirituous liquors which had been
delivered In quantities exceeding three gal-
lons each, because be (the policeman) sus-
pected that persons were receiving ship-
ifLehts pT i^irituotui liquors over the Central
of Georgia Railway for the purpose of sale,
or ill^al sale^ in the city of Atlanta, and
that he desired the Information for the
purpose of prosecuting such persons as be
might ascertain had been guilty of Illegal
traffic in spirltoous liquors ; and the ioforniB-
tion, if disclosed, would have been used In
the recorder's court of the city of Atlnnto —
which has jurisdiction not only of offenrtes
against the ordinances of the city of Allan-
to, but is also a court of inquiry with power
to require bond for the appearance of those
as to whom reasonable cause exists to ap-
prehend that they have violated the laws of
the state of Georgia.
The recorder struck the special plea, and
upon the facts as agreed to be true in the ad-
mitted statement of facts adjudged the ae-
fendant guilty, and the judge of the superi-
or court refused to sanction a petition for
certiorari, in which the accused soi^ht to re-
view the Judgment of the recorder. To the
judgment of the Judge of the superior court,
In refusing to sanction the petition fbr cer-
tiorari, exception was taken by writ of er-
ror upon all of the grounds originally urged
in .the special plea. This court certified to
the Supreme Court appropriate questions as
to each of these grounds, and in answer to
these questtions the Supreme Court holding
that the ordinance In question, being repug-
nant to tiie fifteenth section of tiie act of
Congress, commonly known as the IntMstato
Commerce Act, as amended June 18, 1910, is
void and nnenforc^ble. In so tar as it re-
lates to Interstate Bhlpmente of liquors
therein spedfled, an answer to other que»-
tiont submitted by tills court was held to be
unnecessary.
The opinion ot tb» Supreme Conrt to\-
lows: **We win first consider the second
question; tiiat 19, whetfao- the ordinance Is
r^ugfiant to th&t portion of the fiftemth
section of the Interstate Commerce Act
which is set fbrth in that question. The
section of the act quoted In express terms
makes It unlawful fbr any common carrier
subject to the provisions of the act, or any
officer, agent, or employ^ of such common
carrier, knowingly to disclose the very in-
formation which the ordinance requires the
agents of such common carriers in charge
of their bustness in the dty of Atlanta shall
give to tbe police of the city, and the ordi-
nance is therefore repugnant to the act, and
for this reason void, unless the ordinance
falls within the scope of the proviso of the
act Under the proviso the Information
sought to be obtained by the ordinance can
only be given 'in response to any legal pro-
cess issued under the authority of any state
or federal court, or to any officer or agent
of the government of the United Stetes, or
of any state or territory in Qie exercise of
his powers, or to any officer or other duly
authorized person seeing such Information
for the proisecution of persdifs charged wlUi
or BU8i)ected of crime.* The prprisiona oft
the ordinance requiring) |||^e^fli5<fcBi®#^C
869
be gtw an gmtaUt and to erary cbm
of Intmtate ahlmDent at Uqaors, ai^ are not
limited to any of tlie Inataiicea referred to In
the proviso of the act Thla la Ulnstrated
b7 the facta of tble case, where an effort is
made to enforce tlie ordinance in eircmn-
stmncea not within the proviso. The police
officw who demanded the report from Brell
as to certain Interestate dilpments of llqnor
was not acting under any legal process is-
sued under the authority of any state or
federal court, nor wa> be an officer at agent
of the United States or of any state or
twiitory acting In the ezerdae of his pow-
en, nor warn he an officer or other duly au-
thorized person eeeUng such Informatioa for
the prosecution of persona dialled with or
suspected of crime. He had no warrant;
no offense bad been oomndtted in his pres-
ence ; he knew of no persons who had com-
mitted any offense against the state or the
dty, and ther^re he was not acting, In
denumdlng the report, as an arresting- offi-
ce In the exercise of bis irawers to make
arrests. No person bad been charged wltb
crime — ^In fact, no particular person had been
suspected of committing a crime. The officer
merely suspected that If be obtained the in-
formation sought be would then have rea-
sonable grounds to suspect that some one
had, or would, violate the prohibition law.
The act of Congress under consideration does
not give permlsslott to common carriers en-
gaged In Interstate commerce, or their agents,
to furnish information such as the ordinance
sedES as to Interstate shipments, for the pur-
pose of raising suspicion against some un-
identified or unknown person or persons. But
it permits such Information to be given for
the purpose of aiding the detection or proa-
ecQtion of some particular person or per-
sons already charged with or suspected of
crime. It follows, therefore, that the answer
to the second question must be In the affirma-
tive.
"Manifestly the ordinance Is not aimed at
intrastate shipments, alone or separately
from Interstate sMpmentB. It is a single
legislative scheme to cover all shipments,
Irrespective of their origin. Indeed, as the
manufacture and sale of the liquors referred
to in the ordinance la prohiUted in the state,
it seems that there would be few, if any,
Intrastate sbipmenta. It appears from the
agreed statement of facts that the only
shlpmrats Involved in the case were inter-
state in character, and there is no Intima-
ttiHk that thttre were any intrastate shlpmento
at aU. As we have held the ordinance to be
vcdd ft>r the reasons above stated, it is un-
necessary to pass aSKn the qvmaxm as to
whether the requirements of the ordinance
tM, as to Intrairtat* shUtments, In conflict
with the provisions of the Uvil Code. 1 2663,
antherlslns the Railroad GommlsBton of the
state to prescribe tho methods In which com-
mon carriers shall ke^ their books and ae-
connts. In view of what we have said It
becomes unnecessary to asks vedflc an-
swers to other queetionSL
"It was suggested In the brief of oonnsel
for Ois dty that, since this case arose. What
Is known as the 'Webb Act* has been passed
by Gi>ngr«S8. Whatever may be the extent
or effect of that act — as to whldi we express
no opinion — it has no effect upon the prescmt
case."
Since It was admitted by the dty of Atlan-
ta that the Information to whlcb the r^>ort
would have related <lf the report had been
aiade In accordance with the ordinance) was
as to the shippers or consignees of Int^
state shipments, it follows that the records
erred In adjudging .the defendant guilty, and
the Judge of the superior court erred in re-
fusing to sanction the petlti<Hi for certiorarL
Judgment reversed.
(U G%. App. US)
tJSHBR <t A V. HARRELSON et sL
(No. 4,475.)
(Court of Appeals of Geor^ Jnly 22, ISIS.)
(SyUaiut hp <Ae OomrtJ
1. Exceptions, Siuc or (| 66*)— CxBtmaA-
TION— SUBFLUSAGE.
Wbrre R bin of ezceptioos is dely and reg-
ukiriy certified according to law, an additional
certificate, following the one required by stat-
ute, will be ignored and treated as surplusage.
Stilwell V. WatklDB, 135 Ga. 149 &), 68 & B.
1114: Dts<hi v. Southern BaOway Go., 118 Ga.
327 (3). S8 S. B. 749: Wool! v. State, 1(M Ga.
036, &37 (8), 30 a B. 796.
{EA. Note.— For other cases, see Exceptioiu,
BiU of, Cent Dig. U 94-96; Dec. Dig. | BQ^l
2. JunouEifT (I 893*)— Hotioir TO Sn Asms
— BSABINO.
In the absence of an order, granted in
term, continuing the hearlDg of a motion to set
aside a judgment, tbe court is without jurisdic-
tion to render a Judgment in the premises in
vacatioa.
[Eld. Note.— For other cases, see Jadgtnent,
Cent. Dig. I 768; Dec Dig. | 893.*]
Error from CKty Court of Sprin^ltidi J.
H. Smith, Judg&
Action between Sate Usher and others and
W, H. Harreison and others. From the
Judgment^ the parties fin^ named brine wror.
Reversed.
Jos. A. Cronk, Paul B. Seabrook, and
Stubbs & CSiapman, all of Savannah, for
plaintiffs In error. H. A. Boyklu, of Syl-
vanla, for defendants In error.
BUSSBIIA h Judgment reversed.
•For torn mam m* bum tople sad seoUoa NUUBBR la Dm. DIs. * Am. Dig. K«r-Mo. Suiss A Hsp'r bdaxss
'Digitized by Google
THOBigr r. ST ATE
8G8
CU Gil App. U)
THOBN T. 8TAm <N^ 4.688.)
(Ooort of Appuli of OooitlA. Jue 25^ IMS.)
J. KLunas akd Sbtaut 67*)— liABOB COR-
lucT Act— iKDicnaNT— StjmonBNOT.
An indictment charglnc a violation at th«
"l^r contract act" of 19(» (Penal Code 1910.
I 716) i* demornUe, where it aUesea that the
wagea contracted to ba paid to the defendant
were to be half of the crop made by him aa
a cropper, but fails to allege tbe kind or ex-
teat of the crop to be planted and faila to iden-
tify and locate the particular paxoal of land
which be was to cumvate. Id an Indictment
chai^g this offense, a distinct and defiaite
contract of service must be alleged, and tin al-
legations mmt be anfficieotly fall to enable the
accused to defend the chane. Qlann v. State,
123 Ga. 587, Bl 8. E. 6«S; WllaoQ f. State,
124 Ga. 22, 52 S. E. Bl: Sandera V. State,
7 Ga. App. 46, 65 S. E. 1071; McCoy v.
State, 124 Ga. 221, 62 S. £L 434; Taylor v.
Stat^ 124 Qm. 798. 63 S. D. 820;
[Ed. Note.— For otbw cases. See Master and
Servant. Cent I^. | 75; Bee THt. i 67.*]
2. MaSTKB ABD SBBVAMT (J 67*)— VlOLATIOW
or Labob Oontbact Law— Fbosboutioh—
Btmi»H OF Pxoor.
The evidence was insnfficient to authorize
the conviction of the accused. It is essential to
conviction of the offense of cheating end swln-
dllBfi under the labor contract act (Pen; Code
1910, S 715). that it be made to appear that
the failure of the aecnaed to carry out his
umtract was without good and aufBcient cause )
and the state, in the present case, failed to car-
ry that burden. So far at appeara. tbe accused
may have had good and sufficient cause for
not performing the contract; and tbe mere
failure to perform does not raise the presump-
tion that ha failed to comply whh faia contract
without a cause, or good and aufBcient cause.
[Ed. Note.— For other cases, set). Master and
Servant. Cent Dig. | 76 ; Dec. Dig. I 67.*]
Error from City (Tonrt of MlUen; Thos. L.
Hill. Jadge.
Sam Thorn was ocmvieted of Tiolating the
"Labor Contract Aet," and btinga error. Be-
Tersed.
O. a Dekle, Of Mllesi, fbr plaloUff in er-
ror. W. Woodnun, Sol, of MlUen, Cor the
Btete.
RUSSELL^ J. The defendant was Indicted
for n Tlolatlon of section 715 of the Penal
Code. The Indictment allied that he con-
tracted with one T. L. Burke "to perform for
him on the farm of Urn, the said T. L.
Bnrke, in said county, eervlcea as sbare crop-
per from the Ist day of January, 1912, nntll
the 1st day of January, 1918. The . wages
tm said period were to be one>half the crop
made by said Sam Thorn, said cropper, with
intent then and there to procnre mtmey, and
did thereby and nnder aald contract, and In
furtherance of said Intent, tb^ and there
proetare of the said T. L. Burke flT.00 in
money, of the valae of |17JfO, and bcAonglnB
to said Bnrke^ iMendlnf tiien and there to
iwocnre said bsodc^ fnidi the said T. L.
Bnrfee and not to perform tbe serritoeo con*
tracted for, and then and thereafter CaUlng
and refusing, without good and sufficient
cawi^ to cona^y with the. said contract and
render aald ser^ees, and failing to. return
to the said T. L. Burke the aald money, after
opportunity to do the same, to the loss and
damage of tbe aaid T. L. Burke In the sum
of $17.50 aforesaid, contrary to tbe laws of
said state," etc. The defendant demurred to
the indictment as follows: "(1) That said
Indictment does not set forth the contract
and the terms thereof with sufficient defloite-
ness to pnt the defendant on notice of what
he has to defend. (2) That said indictment
falls to state the nature of the crt^ to be
I4anted and shared in by tUe defendant. ^) ,
That aald indictment faUa to state the
amonnt of services that was to be rendered
by defendant on. the. term of the said T. L.
Bnrke. (4) That aald :iDdictment does not
locate the farm of the said T. L. Burke
(whether in Jenkins or other county), nor
does it describe said farm with any amount of
deflnlteness whateverr-certalnly not enough-
so to pat defendant on ^Uce of what farm
of the said Burke Is meant (5) That the
contract a». set forth in said Indictment
Is too vague and Indeflntte to be the basis
of a criminal prosecution." The court over-
ruled the demurrer, and on the trial the
defoidant was convicted and sentenced to
serve 12 months in the chain gang. His mo-
tion ior a new trial was overruled, and he
excepts to this Judgment, and also to the
judgment overruling bis demurrer.
[1] 1. We think the demurrer to the in-
dictment should have been sustained, and
we treat all of Che grounds of the denmrrer
as one, because each ground merely cails at-
tention .to the different respects wherein the
indictment falls to set forth the contract vnith
sufficient clearness and dlstlnctneas to pnt
tbe defendant fairly on notice of the charge
againat bim. A distinct and definite contract
between the partlea is easentlally necessary
as a basis to a prosecntion for dieattng and
swindling as defined Ip the "labor contra<^
act" of 1903 (now embodied In section 716
of Che Penal Code). Unless the promise to
work which is the Inducement of the advance
(which advance the contracting employfi mnst
obtain with the J^esmt Intention not to per-
form tbe labor) la so dear and definite as
not to be misunderstood by eltbOT partar (in
oUter words, nnless tbe minds of both parties
meet at the same time, npon tto same tbing,
and in ibe same sense), a contract Is not
created; and, if the contract Is vague and
indefinite^ it neoessartly follows that It will
be impossible to aoeertaln whether tbe ac-
cused intended to perfwm the contract in-
sisted upon by tbe prosecutor or not. In
otber words, U It la doobtfal whether tbe
accused intended to perform tbt oodtract as
be vnderstood Ity though he did net Intend
to carry oat tbe 'contract as his employw
•PorettMri
t HmfBSK ta nee. Xttt * An. Dig. Ksir-N&ljNrtSK*M!i'
78 SOUTHEASTSBK BBBORTEB
nnderstood !t, Vben ooold not 1>e a. oon^c-
tlon.
In the Indictment In tbe imeent Cftse the
duration of the contract and the wages to
be paid the accnsed are definitely stated, but
there seems to have been no agreement what-
ever as to what croira should be planted or
what particular plot of ground should be cal-
tlTated by the accnsed. If there was no
agreement as to this, the contract failed to
be either definite or distinct If there was
an agreement which made the contract on
these points distinct and definite, it should
have been alleged and proved. To one fa-
miliar with farmli^ operations It Is easy to
see that a laborer might contract with a
landowner to enltlTate on shares certain
marketable crops, on a dedgnated portion of
a plantation, which the proposed cropper
knew to be suitable to these crops and snffl-
dently fertile to warrant the expectation of
remuneration for his services; whereas he
might not be at all willing to contract to
take another portion of the same plantation,
which might be worn out and unfit for cnlti-
ration and wholly worthless, and take the
risk of receiving as his sole means of a
Uvelthood a part of such crops as he could
not reasonably eiqwct wonld be produced.
The prosecutor and the accnsed in this case
could not have made a contract which would
not have been too vague and indefinite for
enfOTcement, unless there had been some ref-
erence to some particular plot of ground to
which the minds of both parties had turned,
which was mentioned between them (even if
it was to be selected by one of tb^>, and
wUdi both parties had agreed should be the
land to be cultlTated.
It la easoitlal to the guilt of one accused
of this ottense that at the time that he ob-
tained the advance he entertained the in-
tention of not performing bis contract, and,
if there had been no agreement as to the
land he was to work, there could not, of
course, be any definite Intentioa, one way or
the other, as to this unfixed subject-matter.
In such R ease the wrongful act of the ac*
cused becomes merely a general innnilse to
work In repayment of a preexisting debt,
and the case would flUl within the ruling in
Ryan v. State, 4S Oa. 128. lAe '^abor con-
tract act," supra, like all other criminal
statutes, must be strictly construed, and It
is especially essential that there shall be a
distinct and definite contract between the
parties as to every material matter pertain*
ing to the services, for (he reason that it Is
only the contract of employment and rtitance
upon its future performance that prevents
this sutute from being a statute to enforce
the c^lection of mere debts.
[2] 2. As has frequently been held by the
Supreme Court, and as also held by this
conrti the tmrdm is on the state to prove
that the failure of the aoensed to perform the
service contracted for, or to return the mon-
e^, was without good and sufficient cause.
Brown V. State, 8 Qa. App. 212, 68 8. B. 865 :
Mason v. Terrell, 3 Ga. App. 348. 349, 00 S.
E. 4. The failure to perform the servic-es
or return the money Is presumptive evidence
of an undisclosed intent to defraud only
when It appears that there was no good and
sufficient cause why the contract was not
performed. And hence, to complete its pre-
stunptlve case, the state must show that
there was no good reason why the contract
was not performed, or, in default thereof,
that there was no good reason why tbe ac-
cused did not return the money advanced to
him. Without this proof the stete's case is
incomplete, because the prosecution has not
created the evidentiary presumption neces-
sary to rebut the presumption of innocence.
Presumably the accused had good and suffi-
cient cause. It Is only after the state baa
made it appear that there was no suffldent
cause, nor any good reason, why tbe accused
did not perform bis contract, or dae return
the money, that the state has made even a
prima fade case. In the present Instance
the defendant, in his statement at the trial,
gave a reason which the Joiy might have
adjudged snfilGlent; and this statement was
not denied by the itrosecntor.
Judgment reversed.
(IS Oa. App. 81)
WILLIAMS V. STATE. (No. 4,952.)
(Ooart of Appeals of Oeortfa^ July 8, 1918.)
fSt/llahut by the Court.)
1. GKtMiNAi. Law (| 970*) — iNDicnnnr —
VoLtJNTART Manslaughter— Pacts Chaxo-
INQ MtrSDKB— AbBCST OF JOOOWIffT.
Where a bill <tf indictiDent diarging marder
by Bhooting with malice was considered by the
grand jury, and a return of "trae bill for vol-
uQtarj manslaugtiter" was indorsed thereon,
and tne accused joiQed issue and was convicted
of Toluntary manslaughter, the judgment of
conviction will not be arrested because the of-
fense of murder was charged In the body of the
bill.
[Bd. Note.— For other eases, see Crimioal
Law, Cent Dig. H 244S-2462; Dec. Dig. I
970.*]
(Additional Bwltahu* Bditorivi Staff.)
2. Indicthent ano Inpobuation (} 10*)— Of-
fenses or Different Degrees— True Bill.
A finding of a "true bill" against accused
for voluntary mansUtaghter was equivalent to
a finding of no biU as to higher degrees of
homicide.
[Bd. Note. — For other cases, see Indictment
and Information, Cent. Dig. M 60-61; Dec
Dig. I 10.*1
Drror from Superior Court, BlchnMmd Goon-
ty; H. C Hammond, Judge.
Isaiah WlUiams, Jr., was convicted of vol-
untary manslanghter, and be brings error.
Afflmed.
frefttr eaiw — ■ i
> topieaad MedoB-mncBaat tu DS& ng. AAa.
GlU)
WILLIAAfS f . STATB
855
HUtra a BarwidE, of Ansnsta, for plain-
tiff 1b error. A. L. Franklin, SoL Oen., of
Augusta, by Jno. H. Oraliaiii, of Atlanta, for
tbe State.
POm^, J. An Inffictment was prepared
by the solicitor general and presented to
the grand jury, charging the accused with
tbe offense of murder In that he "did onla*-
folly and with malice aforethought kill and
mnrdrar one William Brown by sbootlng him
in tbe bead with a piatot" On this Indict-
ment the grand jury made the following
finding: True bill for voluntary manslaugh-
ter.** Hie accused was oaiTleted of Tolnn-
taiy manslavttbter. He moved In arrest of
judgment on the ground that no tn» blU
was ever found by the grand Jnry* and tbat
tbe indictment under which he waa tried was
not a valid indlctmoit for "«f"fU"g***^
Tbe motion was overruled, and ha accepted.
II] Of course there can be no auestion
that, if tbe bill had beoi found to be tme
as preaeDted, the accosed ml^t bave been
convicted of voluntary manslai^ter. Reyn-
olds V. State, 1 Ga. 222; Welch v. State,
50 Oa. 128, IK Am. Rep. 690; Smith v. State,
109 Oa. 479, 39 3. E. 69; Dlcketaon v. State,
121 Ga. 338, 49 8. &. 276; Spence v. State^
7 Oa. App. 825 (2) 827, 68S.B.448. It la
contend in behalf of the aeenaed that the
finding of the grand jury was virtual^ a
finding of a "no bill," since tbey foond tbat
no murder was committed, tbey, 'in reach-
ing this conclusion considered and acted
only npon an indictment in which murder
was charged. Had murder alone been Involv-
«d in the charge aa presented to the grand
Jury, their return must of eonrse have been
limited to a finding ot tme or not tme as to
that offense. But the indictment conddered
by the grand jury contained a charge of mur-
der, voluntary manslaughter, assanlt with
intent to murder, the statutory offmse of
sboottn^ at another, assault and battery, and
assault It was just as though each of these
offenses had been set forth In separate
counts. If they had been, a finding of **tme"
as to one count would have rendered all th6
others nugatory.
[I] A finding of '^me" as to the charge of
voluntary manslaughter Is equivalent to the
finding of "no bill" as to the higher grade
of homldde, and a true blU for voluntary
manslanghter, under which a conviction
might be had for that offense or any lesser
offense involved In an indictment for volon-
,tary manslaughter. If the Indictment had
in the body of It charged the offense of man-
slanghter, judgment of conviction would not
have been arrested because the facts set
forth In the Indlctmoit made oot the offense
of murder. Gamp v. Stat^ 25 Oa. fiSb. It
can make no substantial dUferenee Chat the
charge of manslaiq^tieir was emtmaced in
the grand jury's retnm, rather flian in Qie
twdy tlie Indlctmenl; It the facta therein
alleged are sofficlent to support the finding.
It is true that the Indictment In the case Just
cited did charge a wlUfol as well as mali-
cious killing, and hence did in terms embrace
a charge of voluntary manslaughter, but the
bill was treated as one charging murder and
such lesser offenses aa were Involved in a
charge of murder by beating. The exact
question now under consideration was not
Involved in that case, but It was discussed,
and the contratlon of tbe plaintiff In error
was fully answered by the Supreme Court In
tbe following excerpt: "There Is ancient
authority for sayli^ that, if a grand Jury re-
turn a tme bill for manslaughter on a bill
for murder,, it Is void, but tbe reason assign-
ed for it is not very satisfactory, viz., that
the fvand Jury are not to dlatinguisih .be-
tween murder and manslaughter, for it Is
only the tdrcumstance of malice tbat makes
the difference^ and that may 'he Implied by
law without any facts at alL Bac. Ab. In-
dictoient, Letter ;0.' The same reason would
prevent a Ju^ Uom finding a true bill for
dtber murdtf qr manslaivhter op a bill hav-
ing two counts, one chafing murder and
the other manslaughter, for tbey would have
to distinguish bettveen them in tbat case.
There is an antbority as old aa tbe flme of
Sir -Matthew Hale tbat if a bill of Indictment
be for murder, and the grand j\iry Ignore it
as to murdor, but find a tme bill for man-
slaughter, tbe words which give to the charge
the distinctive character of murder may be
stricken out in the presence of the jury and
leave- so much as makes the bill stand barely
for manslaughter. Id. Tbe same authority
says the safest way Is to deliver the grand
Jury a new bill for manslaughter. But, what-
ever of doubt bangs over this question In the
English courts, there Is none l^re. Tbe
grand Jury accused tbe prisoner of man-
slaughter. Tbe body of the indictment
makes a charge of murder. If the grand
jury had found a bill throngbottt for mnrder,
on the trial tbe petit Jury might hare ac-
quitted tbe prisoner of murder and found
Urn guilty of manslaughter. The prisoner
Is not prejudiced by tbe change of a single
word, manslaughter for murder. He is rath-
er benefited, for he cannot be found guilty
of murder. He was arraigned on tbe indict-
ment as it stands and pleaded not guilty.
If be wished to demur to the indictment for
any matter not affecting the real merits of
the charge, he ought to have done It on ar-
raignment, before pleading tbe general issue.
It Is too late after pleading the general issue -
and undOTgolng a trial thereon, for no motion
In arrest of Jndgm«it can be sustained for
any nutter not affecting the real n^erlts of
tbe offense <^rged In tbe indictment." See,
also, Wharton, Grim. PL & Pr. | 374; 1 Arch-
hold, Crlm. PL (Pomeroy Ed. 1887) fi^ 311;
8 Barn's Justice (24th Ed.) tit Indictment,
7 p. 44; Cnierry v. State, 0 Fla. 679; 23 Gyc-
267; 2fl Cent Kg. «. n^n.n\r>
Digitized by V^OOQ It
666
T8 SOnTHSASTBBN BEPOBTBB
In an proMblUtT the 6bjectt<m to tbe In-
dtctment would not have been ffdoi it raised
b7 demurrer, but at most It was an exception
which went merely to the form of the Indict-
meat and did not affect the real merits of the
offenae and codld not be taken advantage
of by a motion In arrest of Judgment Penal
Code, I 980. The accnaed was not hurt He
was d^nlved of no right to which he wonM
tanve been entitled had the offense of volnn-
tary manalaoghter been apedflcally set forth
In the body of the bill. A snbstitntlon of the
word "wlUfally" tor tbe words *^rttb maUce
aforethooght" and striklnc the word **mnr-
der" wonld have made the bUl a good Indict-
ment for TolontBzy manslantfiter, Tta effect
ct tbo grand Jury's retom was to make
the necessary snbatltntlon and elimination.
ICalice iDTolTes. Intention and stnDetliiitf
more beside. The grand Jnry ftrand the in-
tention to have existed bat not the other
Ingredients of maUoe. There was aumgh In
tbe tdll to antborlse the flndhig of the grand
Jnry. The eoart did not <»r in OTerraling th%
motion in arrest ot Jndgmott
Judgment affirmed.
PABES BANK OF ADAtRSTILLB.
(No. 4.6830
(Ooort of Appeals «< Georgia. Jnly 8, 1918.)
(Svilabtu &v the Courts
1. JnsnClM OF THX PSAOS (I 164*)— APPBAZ.
— PAPBEB— TBANBlCISaCON TO GLEBE B7 AT--
TOBNBV rOB, APPBI^LANT.
Where an appeal from a justice's court
has been doly entered in that court, the costs
fMld, and the appeal bond approved, the appeal
IS not resflered invalid because the attorney
for the appellant, on request of th^ justice,
transmits and delivers to the clerk of tbe su-
pezior court the papers in the appeal Case.
The case of Bower t. Patterson, 116 6a. Sli,
48 S. B. 2Bk la distinguished.
[Bid. Note.— For other cases, ses Justices of
the Peace. Gent Dig. H 607-6S&; Dec. Dig. S
164.*]
2, XCTSnCES OF THB PbAOC (| 188*)— APFSAZr-
TBARsinssioN OT Papbbs— iBBaaVUBZIISS
—Motion to Disifias— Tun.
After an appeal case from a Justice's court
has been tried and judgment rendered in the
superior court it is too late to move to set
the judgment aside because of irregularity in
the transmission of the appeal papers from the
justice's court to the clerk of tbe superior
court. The proper practice is to move before
the trial that the appeal be cUsmissed tor this
reason.
[Ed. Note.— For other cases, see Justices of
the Peace. Cent Dig. U 721-725, 783; Dei
Dig. I ISt*."!
a. ATTOBNBT AlfD OUXIfT (f 76*) — Bmplot-
lOENT or COCITSBL— GONTinUARCn— APPBAL.
The employment of counsel in a litigation
extends to the whole of it from the time of em-
ployment to the end of the litigation, unless ex-
Sressly Umlted by the cUent; and the attnmey
I expected to xupteneatt the clirat throoghont
its progress, unlesk otherwise Inslrneted by
him.
[E^ Note.— For other eases, see Attorney
and^CUent Gent Dig. |t 120-181; Dec. IHg.
Russell, J., dissenting.
Error from Superior Court, Gordon Goonty ;
A. W. Fite, Judge.
Action by tbe Bank of Adalrsvllle against
W. B. Parks. Judgment for plaintiff; and de-
fendant brings error. Affirmed.
J. M. Lang, of Oalboon. for plaintiff la
»ror. F. A. Caidr^ of Onibn^T", tot d^oid-
ant In emr.
HIIX^ a J. The bill of eizeeptlons In thU
case recites that tbe proceeding in tbe lower
conrt was a motion to reinstate tbe case and
a motion for a new biaL On tbo call of the
case, after reading tbe papers and affidavits,
the court passed an order striking the motion
for a new trial and giving Jodgmeoit fOr the
costs against tbe movant to width ruling
the movant tben and Uiero excepted and
now exe^Jts and assigns the same as error.
Then, on mcrtlon for the respondent, tbe conrt
passed an order overruling the motion to rein-
state said ease and refused to relnstato the
same and to grant a new trial, to wbicb
ruling the movant excepted and now as^gns
tbe same as enot. We gatbtf from tbe rath-
er 'chaotic' condition of the record tliat the
cam Was really a mottoD to set aside a ver-
dict and Judgment which bad been rttideied
against' tbe movant in the superior conrt on
appeal from the Justice's court. It seems that
tbe Bank of Adairsvllle brought suit against
W. B. Parks on a promissory note In a jns-
ttce's court, to which a plea of non est factum
was filed; that the JuMoe rendered a Judg-
ment in favor of the defendant, and the
plaintiff took an appeal to a Jury in the
superior court; that on the trial of the
appeal a verdict was rendered against the de-
fendant and In favor of the plaintiff, upon
which. a Judgment was entered; and that
tbe defendant, by his motion, d^dres to set
aside this, verdict and judgment on the fol-
lowing grounds: Tba( he had no notice of
the appeal having been entered ; that he
asked tbe Justice If an appeal had been en-
tered and tbe Justice told him "No"; that,
relying upon this statement of the justice, be
did not appear at tbe term of the court to
which the appeal would have been properly
returnable; and that he was not represented
In the trial of the appeal. It appears, how-
ever, that this statement of the Justice was
an error, since tbe evidence discloses the fact
that he hud approved tbe appeal bond which
bad been flled by tbe defeiulant on the very
day the Judgment was rendered in the jus-
tice's court in Uie following language : "Costs
paid and approved. W. A. Jonea» N. P.
4i J. P." it further appears that on ^d
day , the ^H>eal pap^ were tamed over by
•For otiMr easss set mm topic end ■setlon MVHBBR la Bee. Die ^ Att. Clg. Sey-Kb.
Digitized by
Ga.)
IiOVJCTT
T. 8TATB
857
like Instlce to tbe attonie^ for the appellant
with the request tbat be transn^t them to
the clerk <hF the eaperior conrt.
[1] It ifl Insisted b7 the plaintiff In error
that the appeal was never properly transmit-
ted to the superior court, because the at-
torn^ for the appellant had no authority or
right to take the papers and deliver them to
the clerk of tbat eoiut, and he dtes the case
of Bower 7. Patterson, 1X8 Cfa. 814, 48 S. D.
26, where It la held that: "When an appeal
from the Judgment of a Justice of the peace
has been entered, It la the duty oi the Justice
to transmit the same to the superior court;
and when tiie attorney for the appellant, with-
out authority from the Jnattee bo to do^
hands the papm to audi clerk, tt)c appeal la
not transmitted aoeordlng to law, and shonld.
upon mottoD of the opposite part? therefor,
be dlsmiaBed." The dedston Is not eon*
trolling, In view of the evidaace in the
(absent case, because here the evidence
sbowa that the Justice not only entered the
appeal bet authorized the attorney tw the
anwUant to transmit the puwn to tte dark
of the superior court.
12] The eridence fnrtber dlfldom the fact
that the plaintiff in error was represented
iB the superior court on the trial of the
appeal by an attorney at law; and. If the
appeal had not beat properly trananltted, the
pnqw ^oeednre woidd have .been to move
to dismiss it on fUa ground. It W too late to
make tite point after Indgaent
[3] It la Insisted, bowew, by the ^alntlff
in e^r that this attorney did not re^vaent
him ia the superior oomrt en the trlid of the
appeal case, that he r^mmted hbn only on
ttw trial of the case in the Jnstloe court It
does not appear, however, that be hiad dis-
charged the attorney, and, having once em-
ployed bim tn the eas^ It would serai fair to
presume tbat the employment would continue
until tbe end of the litigation, at leaet
In the trial court, unlesa be was diiectly In-
atmcted to the contrary, it la bdd in
Walker r. Floyd. 80 Qa. 240, that the em-
ployment of counsel goes to the whole of
the- litigation from the tbne of his employ-
ment to the aid of the aam^ and he la ex-
pected, and It Is bis dotyt to do every service
in the progress of the oansa that is necessary
for the protectbm or defense of bis client's
rights. It also aKMttrs that this attorney not
only represented the plaintiff in error on the
trial of the appeal In the superior court but
subsequently filed a motion for a new trial In
behalf of the plaintiff In error, whldi service
the plaintiff In error accepted In the court
below, and the dlsmlsal of tbat motion by
the lower court on the ground of his aBslgn>
Dients of error, though not Insisted on here.
In the case of Combs v. Choven, 89 Ga. 770,
U 8. a 686, It is held that failure to keep
sight of the caae and to ascertain when it
stands tat trial is negllgraos ' against wbicih
equity wUl not giant relief, after the case has
been tried ex parte and a Judgment rendered
in favor of respondent in the appeal proceed-
ing. Certainly no case iff made for relief
from the verdict and Judgment on appeal
where the evidence discloses that the appeal
has been properly entered and the appellee
properly represented by counsel on the trial
of the same.
We think that the case for the plaintiff
In error was entirely without merit, and that
the refusal of the court below to reinstate
the case and to grant a new trlAl diould be
affirmed.
BlTsrajOLL, J., dlssmta.
(U Oa. App. 71)
LOV1QTT V. STATU (ffo. 4^19,)
(Court of Appeals of Geor^^ July 8^ 1918.)
(SyUalrui hp the Gourt,)
1. DntmitABDs (t 11*) — CBiMiwja, Law (}
1189*)— fivEinroa— FUbu« Bvbxrs.
la a ptoseevtion for drunkeoueis on a
public street or highway of a municipality, the
evidence must show that the street or high-
way legally becsfaie soch by leglslattve enact-
ment, or by amiMclpal ordiaanoe authorised by
the charter of the dty or town, pr by dedica-
tion or preacription. But the fact that the
court permitted a witness, who bad already
stated facts ehowlng the establishment of the
Ugbwaj in gaestioQ by prescription, and an-
other witness, who proved that another high-
way was a public street by dedication and inb-
segueat use, to refer to these streets as "pub-
lic streets" is not error requiring the grant of
a new trial.
[Ed. Note.— For other cases, see Druokards,
Cent. Dig.JS 12-18; Dec. t>lz. J 11 Crimi-
nal Law, dent. Dig. » T64, SOBS. 8180, 8187-
3143; Dec. Dig. | 1160.*]
2. DarrnKABDS (} 11*)— 'IvaAcctnoHS.'
It anpeariac that^ la an iodiotinent ebarg-
Ing.a violation <n section 442 of the Penal Code
of mO, it was alleged that the defendant man-
ifested the alleged dninkeimesB In bD the ways
referred to In the statute. It Was not error for
the court to charge the Jury (after having read
to them the Code section) that if tbey believed
"that the defendant was'drunk at the place al-
leged in this bill of bidietatent, and t^t Us
oonduet was snch as violates this statute I
have Joat read to you," it was their duty to
convict This instruction wss uot error be-
cause, as alleged, it tended to confuse (lie Jury,
or for any other reaaon.
[Id. Mote.— For other cases, see Drunkards*
Cent Dig. » 12-13; De& Dig. | U.*]
3. DBUITKABDS (I 11*)— BVIUENOB.
To vomit on one's person and olotbmg. al-
though the act be done Involuntarily and m a
dmnRen stupor, and ifl> not acoempsnied by
any other act or> by any language, places one
ia Boch BD "indecent conditioa," as related to
a. public highway as will authorise a Jury, upon
proof of tlie dninkeuiess of the accused, to
convfct him .of a violatten of seetloa 442 of the
Penal Cods of lOlO.
[Eid. Notst— For other cases, see Drunkards,
Cent. Di^.. B 12-18; Dec &g. % II.*]
4- SnrnaiEisoT or Bvidknck. ,
The evidence authorised the verdict, and
there was no error In rtffushig a new trial.
4#ir etas^sssasaes MBM topie sad ssousamnuuia Dss. Ha. A Aau
868
78 SOUTHBIASTEBN REPORTER
(Ga.
Error from C3l7 Court of Dublin ; X B.
Hicks, Judge.
J. R. Lorett was conTlcted of drnnkennesa,
and brings error. ' Affirmed.
T. E. HIghtower, ot Dublin, for plaintiff
In error. Qeo. B. Davl^ of Dublin, for fbe
Stata
RnsrSELI^ J. The defendant was oonvlfjt-
ad of the offense of bvHog dmnk upon a pbb-
11c highway. There are only two points pre-
amted by the special assignments of error.
In the fourth ground of the amended mo-
tion the plaintiff in error ccmtends that the
court erred In allowing certain wltnessea to
testis that the defendant was dmnk on
certain streets, which they designated to
be "public streets," in the town of Dexter,
Oa., without proof that these streets were in
fact public highways. If the proof as to
whether the streets in auestion were In tact
lawfully created public highways rested
wholly upon the <q;>lnlon of witnesses to that
effect, the point would be good. As pointed
out In Johnson t. State, 1 Ga. App. 105, 58
S. E. 265, public hl^ways which are not
within a munldpallty can only be established
In four ways, to wit: (1) By legislative en-
actment; (2) by action of the proper county
authorities ; (S) by dedication ; or (4) by pre-
scription. Within the limits of a monldpal-
ity public highways or streets can only be
established : (1) By leglslatiTe eoactiDent;
(2) the action of the manldpal autborlties
within the special powers conferred by the mu-
nicipal charter, or by virtae o£ the act of the
proper county authorities prior to Incorpora-
tion; (S) by dedication; and (4) by pre-
scription.
[1] Since the law definitely prescribes the
manner in which public highways must be
established, the proof, upon the trial of one
accused of drunkenness In violation of sec-
tion 442 of the Penal Code, must show that
the road or street which the indictment al-
leges to be a public street or public highway
was established In accordance with the law,
and in one of the modes prescribed by the
law. In the present case, however, this was
done. As to one of the streets over. which
the witnesses testified they saw the defend-
ant pass In a drunken condition a witness tes-
tified that this street bad been used as a public
highway or road for more than 20 years.
The establishment of this street by prescrip-
tion was therefore proved. As to another
street upon whl<di numerous witnesses testi-
fied that the defendant was seen In a drunk-
en condition, the former owner of the land
through which the street was opened testi-
fied that he had dedicated It as a public
street It is true tliat there was testimony
that the place where the defendant was ar-
' rested In his three-wheeled bnggy was not a
public street, but a mere passageway which
had been opened by the owner of the land to
provide customm <tf bis mill means of ac-
cess thereto ; hut this Is immaterial, since
ttie testimony is undisputed that the defend-
ant bad traversed two public streets proved to
have been established as such in the two
methods to which we have above letemO.
Since there was positive evidence of the
establishment of these two streets, it was not
error on the part of the trial Judge to per-
mit the witnesses, In referring thereafter to
these highways, to designate or describe
them as streets and public streets.
[2] 2. It is insUted that the instruction of
the trial Judge which is quoted In the head-
note was error, because It tended to confoae
the Jury and mislead them as to the law on
which the defendant was bdng tried, espe-
cially as the court had charged the whole
statute and the defendant was only being
tried, as insisted, for violating a specific
part thereof, and not for a violation of the
whole. The language of the trial Judge is
not error or objectionable because It tended
to confuse the Jury, or for any other reason.
The Indictment charged that the drunken-
ness at the accused was manifested In all
of the ways mentioned In section 442 of the
Penal Code. It might be that the evidence
was not ffufflclent to satisfy the Jury that
the drunkenness of the accused was manifest-
ed in any of the ways mentioned in the In-
dictment (and also in the statute), exoc^ one.
But since It was not the duty of the Judge
to pass upon the evidence, nor within Ills pow-
er to determine irtietha this was in fact tbe
state of the record, and as it was for tbe
Jury to determine whether tiie drunkenness
of the accused was manifested in all of the
ways mentioned in the statute, or in mly
one way. It was not error for tlw Judge, after
having read the statute, and referring spe-
dflcally to It (as an>ears from Oie charge), to
tell the Jury that it they bellflivea the de-
fendant's conduct was such as violated the
statute in any ot the wi^s speeded lliaeln,
he would be guilty.
[3] 8. The facts in this case make apparent
the soundness of the Judge's instmcOon.
The real question in the case was whether
the involuntary act of tbe accused, while
In a dmnken stupor, of vomiting all over
himself, and thus making an szliibiUon of
himself, in one of those public places where
the observance of common decency must be
enforced, was such a willful act as to come
within the Inhibition of the statute, which
forbids any one to be and appear on a public
street or highway In an intoxicated condi-
tion, which Is manifested by the indecency
of his acts or by his very condition. In a
supposable case, in which it appears in the
proof ttiat the defendant did none of those
acts which are mentioned in the statute as
means by which tbe drunkenness which Is
prohibited may be demonstrated or manifest-
ed, the law may still be violated If the condi-
tion of the person accused, caused by his
drunkenness Is n^,tilb«f ^lt9ia9(dgieBb-
0«4
BOWEUt
▼. SfCA.TB
noxlolu to pnbUe deoeBcy,' and yet the nxm-
CUm as to whether one's condition la such aa
to offttid pQbUc decency la purely a question
of fact, and miiBt be determined by the jnxy,
who can take into oonaldmtlon tiie drcomr
stances of the caaa^
[4] Havlns dealt with the apedal aarign-
fflenta of error In the headnotes, we need
say nothing more than that a review of the
record satlBflea us that the evidence fully
avthoilced the rerdlct, and It was not error
<m the part of the tdal jndse to refose a
new trlaL
Judgment affirmed.
03 Oa. App. T4)
HOWELL T. STATB. (No. 4,027.)
(Court <^ Appeals of Georgia. July 8, 1013.)
(ByUabua hy the Oowrt.)
Cbiminai. Law (S 292*) — Evidence— Judi-
OIAI. NOTIOB— ClTT OBDINANCBS— FOBUSR
JaOPABDT.
Judidal cognizance of the superior court
does not ezteDd to or include the by-laws or
ordinances of mtmicipalities. Consequently a
plea of former jeopardy, settiag up that the ac-
cused bad already been couTicted by the record-
er of a certain municipality of the same offense,
but wUch failed to set out a copy of the ordi-
nance under which he had been cooTtcted, was
totally defectiTe, and was properly stricken on
demnrrer.
[Ed. Note^For other cases, see Grbninal
Law, Cent Dig. H 668-671 : Dec Dig. 8 292.*]
Error from Superior Oourt, Whitfield
County; A. W. Flte, Judge.
Don Howell was convicted of being intoxi-
cated on certain highways and pubUe streets,
and he brings error. Affirmed.
W. Bi -Mann, of Dalton. for plaintiff in
error. Sam P. Maddox, SoL Oen., of Dalton.
for the State.
RUSSELL, J. Howell was Indicted for
the offense of being intoxicated on certain
highvrays and poblic streets of Dalton, Ga.;
it being alleged that his drunkenness was
manifested by boisterous and indecent ctmdi-
tlon and acting, by vulgar, jvofone, and un-
becoming language, etc. On arraignment
and before pleadli^ to the merits, he filed
a plea setting up a former conviction of the
same offense by the recorder of the <dty of
Dalton. The court struct the plea, and a
ruling is invoked hen^ aa It was in the
oonzt below, aa to wheUier one punished un-
der a municipal ordinance Cor the offense
of public drunkenness can thereafter be tried
in a state court for a violation of section 442
of the Penal Code. It la a general rule that
muidclpal ordinances cannot occupy ttie ter-
ritoij covered by state laws. Where the state
has penalized a certain act, the exercise of
this power on the part of the state excludes
the rii^t of a municlpalltT to punish for ttie
nme act, unless by express legislation the
state has anthorlzed it so to da It would
seem, therefore^ that tbe p^ of tarmv!
jeopardy filed tqr flie defdndaot in this -case
would be ineffectual, if It had related to
ahnOBt any munidpel ordinance^ because It
would have devolved upon the d^endant,
when arm^ed in the municipal court, to
tdead to the jurisdiction of the oourt upon
the ground that 'the oftense charged was
only cognizable in and triable by the state
courts. If the offiense charged against the
defendant had not been that of dmnkenness,
be might have relied upon such rulings as
those of Uie Supreme Court in Kahn v. Ma-
con, OS Ga. 419, 22 S. R 641, and Moran
T. Atlanta, 102 Ga. 840. 30 S. E. 298, and
that of this court in Cotton v. Atlanta, 10
Ga. App. 397, 73 S. E. 683. If the defense ia
one covered by a statute of the state in
which the state has reserved to itself the
sole right of dealing with the act forbidden
by law, this fact will afford to one accused
of violation of a municipal ordinance which
attempts to punish for the same act a per-
fect defense in a munlcii>al court On the
other hand a munidpallty may punish for
an act which is forbidden by the penal laws
of the state, if into the act penalized by the
ordinance there enters some essential ingre-
dient not. necessary to constitute the statu-
tory offense, or if the ordinance can be vio-
lated, even though there enter not Into the
act thereby denounced some ingredient es-
sential to the consummation of the act which
la made a crime by the state law. Upon
this point see Callaway v. Mlms, 6 Ga. App.
9, 62 S. El 654; Athens v. Atlanta. 6 Oa.
App. 245. 64 S. B. 711; Alexander v. Atlanta,
6 Ga. App. 320. 64 S. E. U05 ; Callaway v.
Atlanta. 6 Ga. App. 354. 64 S. E. 1106; Dom
V. Atlanta, 6 Ga. App. 529, 65 S. E. 254.
In the present case neither the lower court
nor this court can tell whether or not the
ordinance of the dty of Dalton is invalid
upon the ground that it impinges upon the
state law, and thereby enables the munici-
pality to usurp the functions of the state;
for no ordinance is in the record. Neither
the superior court nor this court takes Judi-
cial cognizance of munldpal ordinances. It
may not be the duty of the municipality In
making out its case to produce evidence of
tlie existence of tlie ordinance under which
the defendant In the municipal court is be-
ing tiled, for the mayor, or recorder, aa tlie
case may be, can perhaps be presumed to
know that there is a municipal ordinance
applicahle to the case upon trial. This oourt
hdd in Collins Dalton, 12 6a. App^ 110,
76 a. BL 1068, that tHe judgmoit rendered
might import the existence of an ordinance
forbidding the act to which the sentence and
judgment In thia case related, but we have
iuiA also that ju^cial oognisanoe . does not
eztoid to municipal ordiuaneea Dorsey r.
State, 70a. App. 867. 66 8. E. 1006. For this
reason, one who seeks to review a judgment
S80
18 BOUTHflABTfiRIf BXFOHTBB
(0^
of t moiiMpal comt iiUdi 1> predicated up-
en an alleged ramddpal ordinance mnst. In
the record, present tbe ordinance, ao as to
«uUe tbe vevlewliig oonrt to InteUlcently
paas upon Uie queatiioiL
In tbe present case It la contmded tbat, as
section 442 of the Penal pode providea tbat
It "sball not be constmed to affect tbe powers
delegated to monidpal corporaUons to pass
by-lawa to pnidsb dmnkcnnesa or dlsordwiy
condnct wltbln ttaeir corporate limits," tlie
plea of former Jeopardy la good, and should
not have been stricken. In tbe original act
(Acts of 1906, p. liS) tbe language nsed Is
tbat *iiotblng contained In tbls act ahall be
constmed to affect the power heretofore or
tbat may hereafter be del^iated to mnnldpal
eorporattons to regain te the liquor tralBc and
pass by-lan to punish dmnkenness or dis-
orderly omdnct within tbelr corporate lim-
Its." It would seem tbat ttila language is
broad enough to ban authorised the dty
of Dalton to jnss a by-law punishing drunk*
enneas upon Its streets, and even, In such an
ordinance, to define the offense exactly as
defined In section 442 of the Penal Code, and
of course In that erent, a conviction in tbe
municipal court would be a bar to any prose-
cution ftor tbe same act in the state court,
and a Umdy and proper idea of former
Jeopardy, should be sustained. BowcTer, so
far as appears from the record in the present
case, we are left completely in the dark as
to the nature of tbe ordinance passed by the
dty of Dalton, and even if under the ruling
In Collins V, Dalton, supra, we might assnme
that an ordinance bad been passed contain-
ing such provisions as would authorize the
municipality to pnnlsh for the offense of
drunkenness, still we do not know whether
the ordinance is thus restricted. Nor was
tbe trial Judge informed npon this point by
the production of the ordinance itselt If
the dty of Dalton, by its ordinance, sought
only to penalize drunkenness at scnne otber
place ttian those mentioned In section 442 of
the Penal Code, the' act forbidden by the
ordinance would be differentiated from the
state offense, because it could be eomndtted
without tbe Ingredients of manifestation
which are essoitlal to constltate a viokitlon
of tbe state law, and the judge could prop-
(ffly have stricken the plea of former Jeopar-
dy, upon the anthority of Athens v. Atlanta,
supra, and the other cases dted.
We are unable to dedde irtietber, under tbe
provlalons of section 442, which would seem
to delegate to the munldpality certain power
to deal with tbe question of drunkenness, tbe
dty of Dalton had such rlgbt to punish for
dmnkoanoas on Us pubUe highways and
streets as woqM, under a plea of fturmer
Jeopardy, inwrent a proeecutlon fur ae same
act in I2ie state oouria, m wbeOier die dty
oHUnanoe merely prohibits dmnkenness at
places other ttian those mentioned in the
statute^ or only drnnlrennfs nanlfMBd In
ways different from tboee dealt with in the
state law ; becanse the wdlnanee la not be-
fore us, and we have no legal means of
ascertaining its scope or contents. We have
held more than once that mere drunken-
ness, manifested by extreme stupor or deep
Bleep, Is not a riolatton of tha stata law,
for ttu state pmalises only that dmnkenness
which is mwnlfpsted in the manntf specifical-
ly pointed out by tbe aectlou of tba Oode.
TlwefSDre^ It there la no ordinance of Dalttm
which attenqits to punish for drunkenness at
those placea mentioned In aactmi 442 of tbe
Penal Code, or for drunkenness manifested
by ttiose drcnmstancea enumerated in tbe
Ood^ the question whldi tlie plea of former
Jeopardy sedEs to present would not be In-
volved at all. Staioe mere drunkenness, when
not manifested "1^ boisterpusnesa cx by
lndec«it condition or acting, or vnlsar,
profane, or unbecoming language, or load and
violent discourse," has not been forblddn or
made pmal by tb» state law. there Is no
such confiict wiOi the state law as would
prevent a munldpality from passing an or^
dlnance «Mfci*ig mere dmnkenness a mnnld-
pal offense.
In tbe present caae Oie necessity for the
produetiMi <tf the ordinance la emphaslaed by
the fact that the summons (as anwara from
the record) charges Howdl with tbe offense
of drunkenness within tbe corporate limits of
the dty, and from tbe sentence it appears
that the defendant jAeaded guU^ of being
drunk on tht streets of Dalton. Tbe or-
dinance not bedng in the record, we cannot
tell whether tbe diarge or the sentence con-
forms to the ordinance. For the same rea-
son, the trial Judge did not err In striking
the plea.
Judgment affirmed.
<U Oiu App. IS)
BBMFQRD v. SHITHIS. (No. 4.853.)
(Court of Appeals «f Oeorgts. Joly 22, 191S.)
(8yJtahu$ Ay tht Oowri.)
L CoinTin;4Aci tf !»*) —GBouNns— Sick-
ness.
It appeariof, wtthoat contradicljoa, Oiat
one of the partfei to the caose was detained
■t his home on account of the extreme iUne««
of his child, and that hia attendance apon the
child was necessary. It was error to refase to
eondnae the case, after hli counsel had stated
in effect that bis presence was absolutely aec-
essarj to enable oonnael to proceed with Oe
trial.
[£)d. Note.— For other cases, see Contioaanee,
Cent Dig. H 41. 43-48; Dee. IMg. | 19.*]
2. JnooinitT (I 359*)— Motion to Sct Aaioa
— GBotTNDB— ftaruaAL of Continqanck.
While; generally, a verdict cannot be set
aside except for defects aMMaring i^aa tbe
record, this rule Is not without exoepUons, reo-
ofnized by tbe common law, for at common law
a motion to set aside a Judgment could be
based opou'sny Irregnlarity of tbe judgment,
■0^»c otter eaiss — i
t tOBla aad ■eottoa MUUBBB la Dm. Dig. AvAB. Ug.
BENVOBD ▼. BHIVSS
881
whetber appearing on the face of the record
or not A judgment which depend* enttnly
npon the fact that the court erred in refusing
a contintiance ma?, upon a proper shewing, he
aet aside (or this irn^ularit?, jU0t as a judg-
ment obtained by fraud or by perjury may be
set aside npon a timely and appropriate motion
filed at the term at which the Judgment was
TCDdered, thoaidt neither the fact of perjury
nor of fraud would appear from the record.
[Bd. Note.— For other cases, see Jndgmoit,
Cent Dig. i 687; Dec. Dig. | m*]
8. JuDOKsifT (I 859*>— Monon to Set AnDB
— GbOUND»— KBF0BAI. or GONTINUAHCE.
In the present case a motion to set aside
the judgment wns based npon the ground tliat
the defendant was entitled to a continuance,
for the reason that he was providentially pre-
Tented from being present at the conrt, and
was thus deprived of an opportunit? of testi-
fying, as well as of the general right of a par-
ty to be present and assist his counsel in the
conduct of the case. The motion was filed at
the term at which ilte judgment was rendered,
and its material averments were s^ported by
proof which was not contradicted. The movant
showed therein that he was not is laches, and
also by express reference to the defendant's
plea set forth a meritorious defense, and an-
nounced immediate readiness (or trial It was
therefore error to refuse to set aside the ver-
dict and to reinstate the original case.
[Ed. Note.— For other cases, see JodgmeBt,
Cent Dig. f 697; Dec Dig. { 858.*]
Error from City Conrt of Dnblin; J. B.
Hicks, Judge.
Action by B. S. Shiver against J. R. Ben-
ford. Judigment for plaintiff, and dtfendant
bnnss error. Reversed.
Hal B. vnmberly of DvUln, for ^aii^ la
errtw.
RUSSELL, X At the December qoartarly
term of the dty court of Dublin the case of
Shiver t. Benford was called for triaL The
defendant's counsel moved (or a continuance
because of the absence of the defendant, and
stated, in bis place, that his client's presence
was necessary for him to go to trial In the
case, as it was a salt on a contract, in which
his client would have to do all the swearing,
and in which he could not swear for hiOL
He stated farther, as explanatory of his
client's absence, that on Monday night of
the week at which the verdict was rendered
be received a cote by the band of tb« de-
fMkdan^s son, which stated that a child of
the defendant was dangerously 111 and need-
ed his (the defendant's) presence and atten-
tion at that time, and that until the rec^pt
of this eommanlcatlon, eettliw forth the b1c&-
nees of his client's chUd^ he had fully ex-
pected to go to trial, but tbat without his
dlent he was unable to go to trial. The
court overruled the motion for continuance,
and a verdict was retadered In favor ot the
plaintiff. Daring the same term the defend-
ant's counsel larepared an affidavit and sent
it to the defendant to have it signed by the
attending physician, whldi was done; and
Oolni tbe wuem tarm eevsfd fltoA ft.notSm
to set aside the verdict, which motion itatad
the fimgolBS ftuits, and wn vnaaifA by
aetttog out a meritorious defense and an-
no uodng ready for triaL Upon this motlea
the CMiit beard tiw testimony. The movant
testified that at the time hl» case was tried
he was at home with a side child, who at
that time he thought was going to die, and
that be bad sent ont for assistance to aid in
shrouding the dilld. He teatlOed that bis
reascm for not sending a certificate of a
doctor was that he did not know what to do,
since he was ejecting the child to die. Ac-
cording to the doctor's statemmt ttie child
waa 80 dcfc at that time that the presrace
of the defendant waa needed at the sickbed.
There was further evidence showing the ne-
cessity fbr the attendance of the physidao,
and the neceaaUy for the presence of the de-
fendant with Ua diild, as well aa evidence
of the payment of the physician. The conrt
refused to set aside the verdict and to re-
Instate the ease, fbr the reason tbat it ap-
peared from the evidoice that the doctor waa
attending the Child 10 days before the caae
waa called, bedding, in ellWt, tbat if pnnwr
diligence bad been diown, the defendant
would have made a VBoptit dioWng for eon-
tlnnance upon the call of the cascb
[1] We ttlnk tte oonrt tried In refnalag to
set aside the verdict It aniearlt«, wltbont
contradiction, that one of the parties to the
cause was detained at his home on account
of the extreme lUneas of his <dilldt and that
bis attendance upon the child was necessary,
it was error to refuse to continue the case,
aJCter bis counsel had 'stated, in effect, that
hla presence vres necessary to enable counsel
to proceed with the trial. We do not think
that the exerdae of diligence on the part
of the defendant required that he should
have sent a certificate or sworn statement
from the doctor 10 days In advance of the
triaL Neither this defendant nor any one
else could have known with certainty at that
time what would be the condition of the
child upon the first day of the trial. If a
certificate of this kind had been furnished.
It would rather have Inclined us to b^eve
tbat the deTendant was anxloas for a con-
tinuance without regard to the ^priety of
continuing the case, and without any good
reason why the case shonld be continued.
The testimony for the movant b^ng the only
teetliBOny introduced upon the motion to set
aside the Judgment, and It being apparent
from the statement of the Judge that be him-
self did not dlsbetteve it, it appears that at
the tini» die vodlct was rendaed the i»e»-
eneeof tbla fUher with bis cUId, if not abao-
lately neoesaary, waa demanded by anrery in-
attnot of homanlty. The child ' wu thought
to be dying; ttw phyatdan himself .expressed
the oi^on tbat the child could not live 20
minutes. Conceding the defendant to have
■Vor eUsr easer sasM tspte aaa ■setton NOHBBB In Dee. Ufr a Am Dig. Kar-;
862
78 SOUTHEASTERN BBPQBTBB
(Ga.
tlw natural Instincts of patendt^. we cannot
concnr in the oi^nlon tbat he was required
to be bnaylng Wmiw^if with perfectins a cer-
tlflcate to explain his absence from court,
tut rather are of the opinion that he shoald
be eronsed for the reason that the absorbing
nature of tola Interest In his child precluded
the consideration of an7 oOier subject
[t, S] 2. If the Judge wred in refiudng the
motion for conttainance, the question whtcb
next arises Is wluther the point can be reach-
ed by a motion to set aside the Judgment
There have been a number of rulings In this
state In whidi It has been held that a motion
cannot be made to set aside a judgment ex-
cept for defects appearing upon the record.
Regopoulaa t. State, 116 Ga. 506, 42 S. E.
1014, and citations. But, as pointed out by
Justice Svans in Ford v. Clark, 129 Ga. 292,
5S S. E. 818, motions to set aside Judgments
are not necessarily based on matters appear-
ing on the face of the record. In support of
this proposition the ruling in Mobley t. Mob-
ley. D Ga. 247, la cited. In that case ob-
lectlon was offered to the admission of evi-
dence of fraud under the proceedings, be-
cause it could not be disclosed by anything
appearing in the record. As to this point
Nisbet, J., ruled: "£>aud In procuring a
Judgment la ground for its raversaL • • *
It Is an Irr^cnlarity which vacates it It
may- be inquired Into by the court which ren-
dered the Judgment" The same may be said
as to a motion to set aside a Jnds^ent oh*
talned by perjury. TbB proof that the testi-
mony allied to be perjured was in fact
knowingly, willfully, and absolntely false,
would necessarily be proof which would not
be apparent upon the record.
It is to be borne in miod that at common
law a motion to set aside a judgment could
be based upon irregularities in the judgment,
whether these appeared in the face of the
record or not The true rule seems to be
that "In a proper proceeding by petition with
rule nisi or process, and service upon the
necessary parties, the courts of this state
may exercise the Jurisdiction, which obtain-
ed at conuion law, to set aalde Judgments for
Irregolaiitles not ajwwlns on the &oe of
the record." Union CkHOvren Go. v. Leffler,
122 Qa. 640 (1), EM) S. E. 4S3. Seey alsov
Turner v. Jordan, 67 Qa. 604; Dobbins t.
Dupree, 3d Ga. 394; Ayer v. James, 120 Oa.
578, 48 S. E. 154.
Whether the rule would apply after the ad-
journment of the term at which the judgment
was rendered or not we are clear that dur-
ing the term at whiA it was returned a
propw motion mi^t be filed, and upon a
proper showing the Judgment might be set
aside and the case reinstated for another
trial.
Judgment reversed.
(IS Ga. App. u*>
TOUUANB et aL v. MOOBB. (No. 4,47aj
(Court of Appeals of Georgia. July 22. lOlS.)
(Byllobut hy tJk« OourtJ
1. Atpeai, and Ebrob (i 1068*)— Hi MOT.— I
EBROB— FAII.UBB to INSTBUCT.
It is plalD that neither tlie diarge of the
court nor the - omission to diarge on the sub-
ject of counterclaim and set-off, of which com-
plaint is made, injurioualj affected defendants
(the plaintiffs in error); for the jury, in their
finding, reduced the amount clwaed by the
plaintiff, by allowing, as credits on the note
sued on, varioas items of the account pleaded
as a Bet-off.
[Ed. Note.— For other cases, see Appeal and
Error. Cent Dig. H 422^-4228, «fiIO: Dec.
Dig. i 1068.«1
2. Bills xvd Noras (f 471*}— PuaDiHO— At-
tobnst's Fee.
la the absence of a timely demurrer there-
to, the statement in the petition that the de-
fendants had been "notified of this suit in writ-
ing, ten days before filing same," construed in
connection with the allegation in the first para-
graph of the petition, to the effect that the de-
fendants, in their promissory note, a copy of
which was attached to the petition, promised
to pay "10 per cent attorney's fees,^' was a
legally sofflclent basis for the recovery of at-
torney's fees, npon proper proof of these al-
legations; and since the defendants, in their
amended answer, admitted these allegations, the
finding in favor of the plaintiff, for attont^'s
fees, was anthorixed.
[Ed. Note.— For other cases, see Bills and
Notes, Gent Dig. || 14e7-14TO; Deci Dig. f
471.*]
3. COUPBOUIBE AND SBTIXEUEKT (| 23*)— EX-
ECUTION OF Note— Pbbsuuptioh.
Upon proof that the promissory note sned
upon evidenced a transacuon separate and in-
dependent of prior accounts between the plain-
tiff and the defendants, the presumption that
the execution and deliveir of die note evidenced
a settiement of antecedent tnnsacticaia may
be rebutted. But unless the Jury is satisfied
that there Is no connection between the note
and any prior acconnts, the presumption, aris-
ing from the execution of a promissory note by
one claiming to be a creditor upon an open ac-
count of the payee of the note (that the note
was given In settiement of all differences be-
tween the parties and truly represents the
state of their mntaal dealings) would be suf-
ficient to authorize a jary to find a verdict in
favor of the payee of the note. The judge
did not err In charging the jury that "the exe-
cution of a promissory note is presumptive evi-
dence of a full settlement of all debts up to
date Uiereon, except sucii as are especially ex-
cepted at the time, and where the maker sues
the payee for a debt alleged to have been due
before the execution of the note, the giving of
the note to the payee is presumptive evidence
that he had paid the debt to the maker before
or when the note was executed. This presump-
tion may be rebutted."
[Ed. Note.— For other cases, see Oomprcimise
and Settiement Cent Dig. H 01-04; Dec Dig.
I 23.*]
4. Appkal aito Ebbob (I 1064*) — Haxklbss
ESBOB-'ZNSTBUCTION—DKraNSEa.
The nse of the terms "paid" and "pay-
ments," in the lostmctiona of the court with
reference to the set-off relied upon by the de-
fendants, was not apt, nor, in a technical sense,
precisely appropriate, and yet this reference to
the defense presented by the defendant was
not harmful, for the reason that it was per-
•ror otlMT «as« M* SUM t^le and seetloB NUHBBR lit Dee. Die. * Am. DIf. K»r>Ns. See
Digitized by
Oa4
MOBOAN V. CTET OF OEbABTO^
863
fectly plain to the Jnry that the judge was re-
ferring to tiie defense of set-off, as this was
the omy defense relied apon bj the defmdant,
and the Inatractlona flven were pertinent and
correct.
[Ed. Note. — For other cases, see Appeal and
Error. Cent. Disr. K 4219. 4221--4224: Dec.
Dig. i 1064;* Trial, Cent Dig. SS 476, 628.]
Error from City Conrt of SwalnSboro ; H.
B. Daniel, Judge.
Action by D. J. Moore a^lnst E. S. Ton-
mans and others. Jndgment for plaintiff,
and dflfandants brtnx enov. Afflrmed.
wmiamg & Bradley, of Swabuboro, for
plaintUfs In error. Smitli & IQrkland* of
Swainatwro, for defendant In error.
BUSiSDLI^ J. Judgment affirmed.
(IS Ga. App. Ml)
WADE V. STATE. (Mo. e,00a)
(Oonrt of Appeals of Georgia. July 22, IftLS.)
(SyOabu* &y Us OourU)
1. Obdcxhax. Law (| 1163*) — Withhbsbb (|
240*)— Appux/— LBADuro Quxsnons— Di8-
CBETIOR.
The admission or rejection of evidence
drawn out h:f leading questions la generally in
the sound mscretlon of tbe tdal Judge, and
unless that discretion has been clearly abused,
to the prejudice of the party complaining, this
court mil not interfere. 4 Enc. Digest Ga. Rep,
456. In the present ease no abase of this dis-
cretion appears.
Pid. Note.— For other cases, see Criminal
Law, Cent Dig. H 3061-3066: Dee. Dis. |
1153;* Witnesses, Gent Dig. ff 786, 887-^,
841-846; Dec Dig. I 240.*]
2. No Bbbob— Vebdict SusrAnriD.
No other error of law is complained of
here, and the rerdict Is supported by the evi-
dence.
Error from Superior Court; Grady Coun-
ty; Franlc Park, Judge.
Oble Wade was convicted of crime, and
brings error. Afflrmed.
See^ also, 11 Ga. App. 411, 76 8. B. 404.
W. M. Harrell, of Balnbridg^ and Ira Car-
lisle and J. Q. Smith, both of Cairo, for plaln-
tur in error. U. L. Ledford, Sol. Gen. pro
tern., of Cairo, for the Btata
HTTJjy OL J. Jndgment aflSrmed.
(U Oa. Am- U»)
MOBGAN T. CITT OF CEDABTOWN.
(No. 4,996.)
(Court of Appeals of Georda.' July 22, 1913.)
(SytlahuM I]/ the Court.}
ImoxioATiiTa Liouosa (H 224, 236*)— Pkob-
■CUTION— PBOOF.
On the trial of one charged with keeping
on hand intoxicating liquors for unlawful sale
in violation of a municipal ordinance, a prima
fade case agaUiat the acooaed is made by proof
that he received mosey or otlur thing of value
and furnished IntoxicatinK liquor in considera-
tion therefor. In order to rebut the prima ifa-
cle ceee thus made, Uie accnsed D^ast show that
he was acting Boleqr as agent for the purchaser
and did not participate in any way in the illegal
sale. A conviction is warranted under evidence
which authorizes a flnding.that the defense in-
terposed by the accused is merely a subterfuge,
and that be was either the seller or was inter-
ested in the sale otherwise than as agent for
the purchaser. Cheatwood v. City of Buchan-
an, 6 Ga. App. 828, T2 S. E. 284.
FEd. Note.— For other cases, see Intoxicating
Liquors, Cent D^. H 276-281. 800-^; Dec
Dig. 11^224, 286.'!
Error from Superior Court, l^lk County;
Price Edwards, Judge.
W. A Morgan was convicted before a mag-
istrate of violating a municipal ordinance,
and from the judgment of the superior court
brln^ error. Aflirmed.
W. W. Mnndy, of Cedartowo. for plaintiff
in error. W. G. Eni^and. Jr., tf Cedartown,
for defendant In error.
POTTLOt J. The accosed conducted la
restaurant AjKiUcaUon waa made to him
for the sale of Intoxicating liquor. He re-
plied that he did not know where any oonld
be purchased, but shortly thereafter banded
the applicant a piece of paper on which was
written, "If you will give me the money,
maybe I can torn a txldc for yon." There-
upon the applicant handed him a dollar and
he retired. When he returned he reported
to the person who had handed him the dol-
lar that a pint of whisky might be found in
the rear of the restaurant by the side of a
sugar barreL It was subsequently found
there and appropriated by Uie purchaser.
In reply to the prima facie case thus made,
the accused offered evidence that he gave the
purchaser's dollar to a negro, whose name
was not disclosed, and who went away after
the whisky. Under this state of facts the
magistrate was authorized to find that the
negro was the agent of the accused. The
magistrate might have found that the prima
facie case made ' by the city was rebutted,
but he was not bound to do so. In order
to exculpate himself, one who procures In-
toxicating liquor from another must dis-
close the real seller and acquit himself of
any guilty connection with the sale. The
negro may have been the agent of the ac-
cused. There may have been collusion be-
tween both of them and the seller of the
whisky, or the accused himself may have
been the seller and the negro a mere Inter-
mediary. Apparently the accused was a
party to the sale, and It was incumbent upon
him to show that he had no connection with
the illegal transaction. The showing made
by him was not such as to dmand a find-
ing In his favor, and the Jndgmoit against
him nmst be affirmed.
Judgment affirmed.
Tor ether eassi we sams topic and ssetfcmWIJMBHKiii Pea. Wfc * Abl Dig. gay-Mo. awlss*lt^f Indaxas
Google
8M
<U Gft. App. 148)
THOlfPSON ▼. OTTT OF CEDAIKrOWN.
(No. B,005.>
(Court of Appeal! of Qeorclo. July 22. IfilS.)
(BytMmt by jtik« CourtJ
ILLSGAX. SAXE of LiQUOB.
Thit case is in princiide controlled by the
dedsuA of thia court this day rendered in the
case of Morgan v. G.t^ ci Gedartown, 78 S. B.
86&
Error from Superior Ooort, Polk Connty;
Price Edwards, Judge.
Slle7 Thompson was convicted of violating
a city ordinance, and from the Judgment of
Uie Baperior coittt brings error. Affirmed.
W. W. Mnndy, of Cedartown, for plaintiff
In error. W. O. England. Jr., of Cedartown,
for defendant in error.
FOCTLB,X Judgment affirmed. ■
<U Ga. App. 117)
PEARSON v. WHITE & OOCHKAN.
(No. 4,466.)
<Coart of Appeals of Oeorgia. July 2% X93J8.)
(Bvllabut by <Ae Oowri.)
IlWAHTB (H 80, 64*)-COHraAOTS-LUBIim
— NBCKSaARIBS.
The evidenoe demanded a verdlet in favor
of the defendant in the juBtice'a court, and the
judge of the superior court erred in overruling
the certiorari,
[Ed. Note.— For other cases, see Infants,
Cmt.^1]^ S^l^ X16. U7-lit7, 180-184; Dee.
Error from Superior Court, Cherokee Cotm*
ty; N. A. Morris, Judge.
Action by White & Cochran against J. D.
Pearson. Judgment for plaintiffs in Justice's
court, and from an order of the superior court
overruUng certiorari defendant brings error.
Reversed.
H. L. Patterson, of Gumming, and J. A.
Patterson, of Atlanta, for plaintiff In error.
J. W. CoUina, of Canton, for defendants in
wror.
RUSSEI^ J, The mdt was brought in a
Justice's court, upon a promissory note. The
defendant filed a plea of Infancy. The evi-
dence la uncontradicted that he was a minor
at the time the note was executed. The
plaintiffs adduced testimony to the effect that
the consideration of the note was an account
tov clothing furnished to the minor, and that
for some years the minor bad worked in some
nearby mines, collecting his own wages and
Signing the weekly pay roU. Thore was also
evidenoe that he bad conducted a fann, but
this was irrelevant^ because it appears that
the fiirmlng was subsequent to the execution
of the note. In btiialf of the defendant there
was tertlmony that he lived with his father,
that tiie tether's consent for him to labor
in the mines wss npon the condition that the
(Oa.
father was to draw such porttm-of Us w«A-
ly wages as he might desire, and that Owflia
could collect nothing vKceglt such batance as
the father had not dravrn. The fiather fur-
ther testified that the dothlug parchsjsed
from the plaintiffs was not necessary for his
son ; that he provided him fully all dotties
and other necessaries suitable to tats oondi-
tlon and station In Ufe, and this was not dis-
puted, the testimony for the plaintiff m«ely
showing that the articles furnished by the
plaintiff were clothing. The Jury returned
a verdict in favor of the plaintiffs, and it
appears from the record that this was the
second finding in their favor. In the superior
court the verdict of the Jury in the lower
court was sustained, and the certlDtarl was
overruled.
We think the trial Judge erred In overrul-
ing the certiorari. In order to hold an In-
fant upon his ctntract it must appear: (1)
That he was practicing a profession or trade
or engaged in some business as an adult ; (2)
that he had the permission of his parents or
guardian to pursue such occupation or pro-
fession ; (3) that the contract was connected
with that trade, profession; or occupation.
CivU Code 1910, | 423S. None of these things
appeared In the present case, and the fact
tliat the minor was working for wages with
a mining company showed that he was not
engaged tn practicing a profession or trade,
nor could this occupation as a laborer be
called a bnslneea t^rthermore, the idalntlffs
■were not entitled to recover upon the theory
that this account was for necessaries fur-
nished, because the evidence was undisputed
that all necwsariee for the minor were fur-
nished by his father. James T. Sasser, 3 Ga.
App. 568, 60 & E. 320.
Judgment teversed.
OS Ga. App. 121)
SEABOARD AIB JJNE RT. y, GABNE3 &
CO. (No. 4,481.)
(Court of Appeals of Georgia. July 22, 1913.)
(8ylMnu ^ t*« OoitftJ
Railboads (S 446«) " IMJUBT TO AHWAU—
Questions roa Jubt.
The railway oompany attempted to r^ut
the presumption of negligence against it, aris-
ing upon proof that the mule had been killed by
one of its trains, by testimony tending to show
that the servants of the company exercised all
due diligence to avoid killing Oe mide; but
the drcnmatances in evidence, contradictory to
the testimony for ^e defendant, authorized the
Jury to infer tiiat the defendant was negligent.
Several statements of the engineer as to mate-
rial matters were contrsdicted by witnesses for
the plaiatlff; «ad the credibility of the witness-
es, as well as the ultimate question whether
the injury in question was due to negl^ace,
are questions so exclusively for the jniy that
there was no error in refusing a new tniU.
[Ed. Note— For other cases, see Railroads,
Cent. Dig. II ie2r-1641; Deo. Dig. | 4M.«]
Error from CAt? Court of Abbeville; D. B.
Niidiolson, Judges
18 901ITHBA8TB^ BBFOBZEB
•For ethsr cams ass saass topU sad ssation NUMBBK la Dec Die * Am. Olg. ^fi|^
DtimOEBfi T. HOSLKT
66S
Action by Oarnes ft Co. against the Sea-
board Air line Railway. Jadgment for plain-
ttfls, and defdcdant tninga ertor. Affirmed.
TOm Eaaon, of UiiBAB, for xOalntUt In er-
ror. Hal Lawaon, of AlAevUla^ for defend-
ant! in error,
BUSSELL^ X jQdgment affirmed.
OS 0«. App. un .
HASH T, STATE. (No. 4,986.)
(Conrt of Appeals of Georgia. July 22, 1913.)
(BvUmbut hjf t\e CourtJ
Cbiminal Law (} 1173*) — Appial — Habm-
lASe EBBOB— iNSTBUCnONB.
The evidence demanded the verdict; and
if there was any error, either in charging the
jury or in falling to charge. It alfords the ^ain-
tiff in error no caase for compIalnL
[Ed. Note.— For other cases, see Criminal
Law. Cent Dig. U S164-S168; Dec. Dig. |
1173.*]
UtrcMr from City Court of Carterarille;
A. M. Fonte, Judge.
John Rash wns convicted of crime, and
brings mor. Affirmed.
W. T. Townaend, of GartwaTllIe, for plain-
tlir In onor. Watt B. Hllner, ot Oartera-
rOle, for the State.
POTTI.B, J. Judgment afflrmefl.
(U Oa. App. US)
TOOIiD et aL T. DAYI&
(Court of Appeals of Georgia.
(No. 4.638.)
July 22, 1918.)
(BpllabMt ly the Court.)
1. Appxal ard Bbbob (I 781*)— Wbit of Db-
BOB— ObOCMD fob DiSUISSAI,.
In a case in which the defendant below
(the idafaitiff in error here) woold be entitled
to recover the money back in the event the
jadgment ibonld be reversed, full payment of
the fi. fa. founded on the jadgment sought to
be reversed, pending a writ error (it not ap-
peariDg that any supersedeas was sned out), is
not cause for dismisfling tiie writ of error.
Bichmond ft Danville Railroad Oo. v. Buice, 88
Ga. ISO, 14 S. B. 20S; Hndson t. AUord, IIB
Ga. 669, 45 & B. 454. See, also, upon this
subject, WhUe T. Tifton, 1 Ga. App. 669, B7
8. E. 1038. The wrtt of error wilt not be ^
missed.
[Bd. Note. — F^r other cases, see Appeal and
Error. Gent Dig. | 8122; Dec Dig. { 781.*]
2. WITNB88BS (I 8tl6*)— CoBBOBOBATIOM-'AB-
GUtCBNTATIVB MATTBB— SiXOLUSION.
Upon the direct examination of a witness,
it Is not error for tbe court to repel or ezclade
testimeiv as to Irrdevant matters, when it Is
apparent tiiat the only pnrpose of the testi-
mony Is to give argomentaave support to a
positive statement, previondy made by the wit-
ness, as to a material fact as to whl<£ tibe par-
tiei are at issue.
[Ed. Note.— For other oans, see Witnesses,
Cent Dig. H 1084-1086; Dea Dig. | 318.*]
S. SAUi d 202*)— DBUYBBT^SnnOT.
Xh* assigiuBent of error that a part of
the charge of the conrt was argumentaUve, for
the reason, as bislsted, that the jndge did not
-dharge the eonveme of a certain 'pi^osltloii
stated by the court (iriiidi is quoted, and bi
which a correct prindple oi law was prcveriy
applied to testimony which was before the
S'lry), is without merit because It woald have
eeo error to have so charged the jury. If the
defendant sold the trunk in question to tiie
plaintiff, and, without reserrtng title, delivered
it to her fn parsoance ot tiie sfie, as the plain-
tiff testified, it became as completely the prop-
erty of the blaintiEF as if the purchase price had
been paid in full before the delivery of tiie
chattel. On the other hand, of coqrse, the
plaintiff had no title If, as was also testified,
the defendant had not sold the tmnk to the
plaintiff, but merely permitted her to use it,
and the court correctly instructed tbe Jury to
this effect. It was immaterUd whether the
plaintiff moved the trunk after Uie defendant
delivered It to her, except in so far as the
moving of the trunk might illnstrate the Lasue^
and aid the jury In determining whether tbe
tmnk was deuvered in pursuance ot a sale, ox
had merely been loaned to the plaintiff.
_rEd. Not&-^or other cases, see Salei, Coit
mg. H 642-S(n; Dee. Dig. | 202.*3
4. Tbiax (I 256*) — Duty to Iwstbtjct — Nb-
CMS ITT OF llEQtTEST.
It is the duty of die trial judge, even with*
oat a reqaest to give the jury appropriate In-
structions as to the law applicable to material
contentions of both parties, set out in tbe
pleadings and supported by testimony; but in
the absence of an appropriate and timely re-
quest therefor, the judge is not required to
direct tbe special attention of the jury to spe-
cific portions of the testiUKMiy which dtfaar of
the parties may think are in his favor or w«ak
points in the lines of his adversary.
Pid. Note.— For other cases, see Trial, Gent
IMg. II 627-^1; Dea Dig. i 255.*]
Itnor from City Court of IClller Cooaty;
a C Bnah, Jndc&
Action by W. Ifc DftTla againat Z. B. Toole
and otbara. Judgment for plaintiff, and de-
fendanta bxlng error, Afllrmed.
Bush & Stapleton, of Oolqnltt, for plaintiffs
in error. W. I. Geer. of OolqalK, for defend-
ant in error.
BUSBBUi^ J. Judgment mMrmelL
(UOa. App. in)
DBIGGEBS V. M0SLE7. (No. 4344.)
(Court of Appeals of Georgia. Joly 22. aitl&)
(BvlUbiu fty tU Court.)
APPKAI, AND Ebbob (i 227*)— Objictiozt Bb-
Low— NECESerrT.
The judge of the soperior ^ort did not
err in overmlinc the certiorari. According to
the answer, which was not traversed, the trial
court properly overruled the defendant's mo-
tlon for a contiQuance and ruled tiie case to
triaL The defendant though present, made no
effort to- amend his plea, and waived his right
to complain of the dismissal of Us appeal, by
declining to Interpose any objection at uie time
the monbn to dismiss it was made. Cour^ of
review oannet adjadieate questions tfiiitih are
not preseneed in (he trial court
[Ed. Kote^-^or other oases, see Aftpasl and
Error, Dee. Dig. | 227.*]
fficror ^m Superior CottM; nattnall'Oomi-
ty; W. W. Sbeppard, Judge: ^ .
•Per eUtar cmm sm same topto and Motion NTJHBBR is Dm. Die * Am. Die. Kar-NteliiklrkM ia%^*f QiQ^
78S.B.-66
866
78 SODTHBASTBBN BBPORTBR
Action by EHlzabeth Mosley agalnat S. B.
Driggers. Judgment for plaintUF, and de-
fendant brings error. Affirmed.
H. H. Elders^ of ReldsrlUe, for plaintiff In
error.
BUSSMXh J. Judgment afflrmed.
(U Oft. App. no)
AMOS T. STATE. (No. 6,000.)
(Conrt of Appeals of Oeorgia. July 22, 1913.)
(EyUaiiu hy the Court,)
WlAPONB (S 13*)— CABBYTWO WBAPOHB— BLB-
MKNTS OF Offense.
The verdict is wltiiont eTldenee to wpport
it, and therefore la nnanthorlied by law.
[Ed. Note.— For other easea, see Weapons,
Cent Dig. IS 16. IT; Dec Dig. | 13.*]
Error from City Conrt of Hadlatm; K. 8.
Anderson, Judge.
Sod Amos was convicted of crime, and
brings error. Reversed.
WUUford Lambert, of Madison, for plaintiff
In error. A. Q. Foster, Sol., of Madison, and
Little, Powell, Hooper & QoIdBteln, of At-
lanta, for the State.
HILL, a J. This wn a conviction of a
violation of the act approved August 12, ISIO
(Acts 1910, p. 13^, whldi malces it penal for
any one "to carry around with him on bis
person, or to have In his manual possession
outside of bis own home or place of busl-
neas," a idstol or revolve, \rtthont first ob-
taining a license from the ordinary. The
defendant's motion for a new txUI being over-
ruled, be brings error.
The facts, brle^ stated, are as follows:
The accused lived with his wife In Social
Clrde. He was a mnsidan, and was on-
ployed to play In a restaurant In MaAson,
not far fiwm Social Circle. He heard that one
Jesse Hollls had threatened to shoot him, and
while he was acdeep in his room in Madlsm,
at his coup's house, wliere he stayed while
at work In Madison, HoIIis came to the house
looking for him and making threafas against
him. He was Informed of these threats by
his 'lonsin, and he got txfm bSa bed, dressed
himself, went Into his cousin's room, and took
her pistol off the dresser, and lield it In his
band for the purpose of defending himself
against Hollls who was then searching the
bouse for him. Hollls came Into the room
where he was standing with the pistol and
pulled out his own pistol, and thereupon
the defendant shot him In the month. Hollls
sank to the floor, his pistol falling out of bla
hand, and while he was down the defendant
told him that if he attempted to raise bis
pistol be would shoot him again. Hollls got
up, went out of the room, and walked home.
The defendant put the pistol bade where he
got It and went away» but later voluntarily
gave himself up to the sherlfl of the county.
The purpose of the act in question was to
prevent the evil of carrying pistols or re-
volvers around on the person, or having them
in manual possession while going aronnd
from place to place, outside of one's home or
place of business. The act should receive a
reasonable construction; and, giving it a
reasonable construction, we think that under
the facts of this case the accused was not
guilty of its violation. According to the un-
disputed evidence, he did not carry the pistol
around on bis person ; It was not his, and he
bad It only a short time, for the purpose of
self-defense. He did not even keep it In bis
room, but took it from the dresser in the
room of another person, compelled to do so by
the ezlngency of aelf-defoise.
Judgment zevwaed.
(U oa. App. un
DAVIS V. STATR. (No. 6,011.)
(Court of Appeals of Georgia. July 22, 1918.)
(BvUahut hv thm Court.)
1. Cbihinai. Law (S 808*)— Pbbsuhptioh or
Innocbnck.
Where the facts in evidence and all rea-
sonable deductions therefrom present two theo-
ries, one of guilt and the other consistent with
Inoocence, the justice and humanity of the law
compels the acceptance of the theory which is
consistent with innocence.
[Ed. Note.— For other cases, see Criminal
Law, Cent. Dig. | 781; Dec. Dig. S 308.*]
2. Cbihirai. Law ({ 661*) — BnninM or
pBOor— Bkasohablb Doubt.
Guilt of a criminal offense must be proved
beyond a reasonable doubt, and must not de-
pend upon mere conjecture or rest upon bare
suspicion.
[Ed. Note.— For other cases, see Criminal
Law, CenL Dig. | 1287; DecL Dig. » 681.*]
Error from Superior Court, Laurens Coun-
ty; Frank Park, Jndg&
Charleston Davis was convicted of selling
intoxicattng liquors, and brings emHT. Re-
versed.
nainUff in error was convicted ot selling
Intoxicating liquor; and, his motion for a
new trial having been overruled, he brings
error. Only one witness was introduced by
the state. He testified as follows : "I know
Charleston Davis. I bought a pint of whisky
from him about the 1st of December, 1012, in
the transaction 1 paid him 7S cents for it
I gave blm the money, and he gave it to a
woman, she gave him a pint of whisky, and
he gave the whisky to me. I saw Charleston
when he gave the woman the money, and saw
her when she gave him the whisky, and then
he gave the whisky to me." The defendant's
statement to the Jury was as follows : "I
did not sell the whisky, Dorsey gave me the
money, and I laid the money down and the
woman picked It up and put a pint of wblsky
down, and I gave it to I>orsey. I did not sell
the whisky.'
•ror «tb«r oasM wm nune topic and mqUob NUMBER la Deo. Die * Am.
Oa.)
JACKSOK T. STATB
Howard A Kea, of DnbUn, for plaintiff
in error, B. h. Stephens, SoL Gen., of
WrigbtSTlUe^ for tbe State.
Sniili, C. J. (after stating the facts as
abore). Li, 2] Do the above facts exclude
erery other reasonable hypothesis save that
of the gi^t of the accused? Under this evi-
dence, it is Just as reasonable to infer that
the accnsed was agent of the purchaser as
that he was agent of the seller, and It Is
well settled that where two theories are
presented by the tects in evidence — one of
guilt and one of innocence — the one should
be accepted which is consistent with Inno-
cence rather than that of guilt The So-
licitor General Insists that the facts of this
case bring It dearly within the rule fre-
quently announced by the Supreme Court and
by this court, that, where one la charged
with the sale of Intoxicating Uquor, proof
that he received money from another person,
with a request to procure whisky for the
latt«, and tiKrenpon went away and ahortty
returned and deUvered a bottle of whisky to
the purcbaser, casta on the accused the onus
of showing how, where, and from whom he
got tbe whi^. Mills T. State, 11 Oa. An^
383, 76 8. IL 266; Gaaklns v. State, 127 Chu
SI, 66 S. n. 1046. In the case of Bray v.
Commerce, 6 Oa. 605, 68 S. B. 086, this
court held that the burden wblcb would be
cast upon the accnsed by these facts would
be successfully carried by bim if, in ccwrobo-
ratlon of his own statement, be proved by an
on impeached witness that he had, in fact,
•bought the whisky from another person and
paid him for it Here the state proved by
its (mly witness (and there is no evidence to
the contrary) that tlie witness lianded.to Qie
accnsed 75 cents for the whisky, and that
the accnsed banded the 75 cents to a woman
who then handed a pint of whisky to the
accused, and he immediately delivered it to
the i^tneas. The accused did not keep any
of the money, and apparently he acted as
the medium tiirou^ wlilch the money for
the whisky passed from tbe purchaser to the
seller and the whisky from tbe seller to the
purchaser. It is Just as reasonable to con-
clude from these facts that the woman sold
this Uquor as that the accused sold it. The
situation thus prosented leaves entirely too
much for conjecture. If the evidence had
shown the existence of some relationship be-
tween the woman and tbe accused — either
that of husband and wife or any relationship
at all — or that the man lived in the house
where the whisky was kept, then unquestion-
ably tbe Jury would have been authorized to
infer that the accused was either the seller or
was interested in the sale in some way ;
and on a second trial these facts possibly can
be shown. Gotain^ something mcnre ahevld
be shown. Indicating that the accused was
the seller or interested in the sale, before
the jury would be authorised to infer tbe
existence of a mere subterfuge or pretext on
his part to violate the law. It Is difficult for
courts to detect all tbe Ingenious devices and
tricks employed by those who violate tiie liq-
uor laws, but in the trying of these cases
well-established rules of evidence must con-
trol, and this court does not feel justlfled in
permitting a verdict to stand which rests
solely upon a bare sus[dclon of guilt, and
and which presents a theory as consistent
with innocence as that of guilt For thla
reason, we are constrained to bold that the
verdict was withtmt any evidence to support
it, and therefore was contrary to law.
Judgment reversed.
(13 Qa. App. U7)
JACKSON V. STATE. (No. 5,013.)
(Court of Appeals of Georgia. July 22, 1913.)
(Si/Ual>ua by tha Court.)
1. CsnnNAL XjAW (|_654*) — Intoxicatino
LiQUOBS (S 236*)— EVIDBHCB— SlATElCBnTOT
ACCDSBD.
This case falls wlthhl the well-settled role
that where one receives money, and in consid-
eration therefor delivers IntozicadDg liquor,
he is presumed to be the seller, and bis con-
vlction is authorized, unleas he shows to tbe
satisfaction of the jury that he was neither the
seller nor intereated in the sale. To meet the
prima facie case made by the state in the pres-
ent case, tbe accused relied solely upon his own
statement which the jury had a right to disbe-
lieve. The caae differs from that of Davis v.
State, 78 S. E. 866, this day decided. In that
case the evidence relied on by the state showed
that the accused neither furnished the whisky
nor received any part of the money paid tiiere-
for.
IE6. Note.— For other cases, see Criminal
Law. Cent Dig. fS 1255, 1256; Dec. Dig. |
554;* Intoxicating Liquors, Cent Dig. M ^0-
822; Dec Dig. { 236.*]
Z Gbikinal Law (§ 821*)— lNsrBnoiioH»-
Dtrrr to Beqtjkst.
The theory of defense upon which the
court failed to charge having arisen solely from
the prisoner's statement at the trial, and, no
written request to charge upon such theory
having been presented, the omission to chargs
is not reversible error. Cobb v. State. 11 Ga.
App. 62, 74 S. E. 702.
{Ed. Note.— For other eases, sea Criminal
lAw, Cent Dig. || 1996-2004; Dea Dig. »
824.*]
Error from Superior Court; Laurens Coun-
ty; Frank Park. Judge.
Norman Jackson was convicted of selling
intoxicating liquor, and brings error. Af-
firmed.
Howard ft Kea, of Dublin, for plaintiff in
error. E. U Stephen^ SoL (Sen., of Wrlgbte-
ville, for the State.
paETLB^J. Judgment afBnned.
•War Miar cmm sm same toplo and Motion nhUBBR in i>|g. a Am. Dig. K«r-N& SarlM ft Bo*r Imlw
Digitized by
Google
78 SOUTSBAST^IK BEPQRTER
(Oil
(U On. An. Ui)
BBOWN V. STATE. (No. 4^)
(Court vi App«>li of Georgia. July 22, 191S.)
(Byttaliu &y the Court.)
X. CimnNAL Law (| 1158*) — Avfsai.— Db-
NIAL OP NBW TBIAL.
Where a new trial la soa^t In a eriratnal
caae on the ground that <Hie of the Jarora who
rendered the verdict had, after hearing the evi-
dence addneed on a former trial, ezpreseed an
opinion that the aeenaed was gnllty, the trial
Judge, aa to thia matter, occnideB the poaition
of a trior, and the reviewing court wIU not re-
verse a finding that the juror waa Impartial, if
there la an? evidence to sopport the conclu-
lion tlina reached.
[Ed. Note.— For other caaea, we Criminal
Law, Gent Dig. « 8061-3066^ 8070. 8071,
8074; Dec. Dig. | fl58.*l
2. CBiiauAL Law (§§ 552, 1159*)— Appbai>—
VBBDICT— OxBomtSTANTIAI. EVIDKNCB— SuT-
nCTXROT.
^e evidence was drcamatantlal, bat waa
sufficient to authorize the verdict
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. « 1257. 1260-1282, 8074-
8088; Dec Dig. %% B62, lUa«]
RnaseD, X, dinoktiag.
Bmnr from City Gonrt of Bandersrlllft;
B. W. Jordan, Judge.
Qardnar Brown was convicled of Uucen7,
and brings error. Affirmed.
Evans & Evans, of Sandersville, for plain-
tiff in error. J. E. Hyman, Sol. Gen., and
Hardwick & Wright, all of Sanderaville, Jas.
K. Hines, of Atlanta, and W. H. Borwell, of
Sparta, for the State.
POTTLE, J. [1 1 1. A new trial Is sought
upon the ground that one of the jurors who
had qualified on the voir dire was not im-
partial. In support of this affidavits of five
persons were tendered to the effect that pre-
vious to the tilal the Juror had stated that
he believed the accused was guilty, and that
a former jury, which had made a mistrial,
ought to have convicted him. Accompanying
the motion were affidavits of the accused and
his counsel that, until after the verdict of
guilty had been returned, they had no knowl-
edge of the statements claimed to have been
made by the juror. The affidavits of cer-
tain other persons were tendered, to the
effect that the persons claiming to have
beard the statements made by the juror were
persons of good character and Worthy ' of
credit The only counter showing made by
the state was the affidavit of the juror him-
sdf, positively and unequivocally denying
that he made the statements attributed to
him, and stating further, that he was per-
fectly impartial between the state and the
accused, and had never formed or expressed
an optadon as to the guilt of tbe accused.
If there had been no counter showing, a
new trial would have been demanded. Ac-
cording to the evidMioe Introduced by the
accused on. the hearing of the motion for a
new trial, he had not been tried by a consti-
tntlonal jury; that Is. « jury made up of 12
impartial dtixens, without bias or prejudice
against him. Monroe v. btate, 6 Ga. 86, 142 ;
Wade V. State, 12 Ga. 25; Glover v. State.
128 6a. 1, 67 S. B. lOL Where a new trial
is songht on the ground that one of the ja-
rors was not impartial, the trial Judge as to
this matter occupies tbe position of a trior,
and the reviewing court will not undertake to
control his discretion, unless it manifestly
appears that it has been abused. Bowdoln
V. State, 113 Ga. 1160. 30 8. E. 478 ; Jones
T. State, m Qa. 710, 44 S. B. 877; Moore
T. State, 1 Qa. App. 728, 67 & E. 06a
Oounsd for the plaintiff in oror reot^nlza
the correctness of this rule, but Insist that
the reoord discloses such an abuse of discre-
tion as teqnlres a rsvwnl of the Judgment.
The question to be dctwmlned was whether
the Juror expressed the opinion attributed
to him. Upon tihls qosstlan, tSw evidence
sobmltteA to tbe trial jndgs was omfilcUns.
If we should hold that the Judge oned In Us
flndlng, this would be equivalent to substitut-
ing our own opinion of the evMencaa for that
of the tdal indge, and would ^ei/Ay Urn al-
together of the discretion with which the
law vesta him. There are good reasons why
' we ought not to do this. Tbe preponderance
of evidence is not always with Oie grsetor
number of witnessea ^nio dtlsens upon
whose affidavits the accused reUed may be,
and doubtless are, as counsel suggest, mot of
character and veracity, and doubtless the
persons who made the affidavits in support
of tiheir <diaracter are citizens whose word is
entitled to respect But what rtiaU be said*
of the Juror? He, too, is presumed to be a
man of character. The Jury commlMionera
thought him sufficiently upright for his name
to be put in the jury box ; and we are bound
to preeume that his character was such as
to justify the confidence placed In him by
tbe jury revisers. But all this has been
determined by the trial judge. He knows the
parties, and had a right to say whom he
would believe. The law does not clothe us
with the power to say that he must have be-
lieved the five witnesses rather than the one.
even though this one be the person whose
character is attadced. The only rule by
which we can be guided is tlut where any
matter of fact is addressed to the discretion
of the trial judge, his flndlng will never be
cmtrolled where thwe is any evidence to
support it
[2] 2. It Is earnestly Insisted that the ver-
dict is wholly without evidence to support it
Circumstantial evidence is rarely aver con-
clusive of guilt, and the law does not require
It to be BO. It is only necessary that It shall
exclude every other reasonable hypothesia
save tiiat of guilt It must be borne In
mind, also that the reviewing court must
examine the evidence, not for the purpose of
satlB^ng Itself of the guilt of the accused.
•For ottMT «u«a am ume tept« ud aeoUon NUUBBR In Oee. XHg. a Am. Dig. K«r-Ma Be^e^^J^'^^^^xes
Gaj WILLIAMS t. OBATEUI.M REAL X8TATX * DIPROYEMBNT 00. 8t8
but only for the porpoM of MOert&lnlng
wbetlier there was any evMeDCe from whlcb
the Jury were sntborlzed to Infer gnUt
Sometimes tlie erldenee prodnoed to oi npon
the printed record raises a reaaonable doubt
In oor minds as to the goilt of the aoensed,
m that. If we had the poww to pass npon
the Htta as jurors, we would nnhesttattngly
set the verdict aside. Wba a question of
fact comes before as for determination, the
only matter which we have jnrlsdlctlom to
decide is whethev there was any erldenee to
suKtort the vwdlct We are flreqaeniir
obliged to let a vvdlct stand even whm we
do not approve of It When the evtdenoe Is
drcomstantlal. Out only Qseetlon wbl^ can
be properly addressed to ns Is not vAether
we are satisfied that the elrconutances were
snfflelent to show gnllt, but wbetha there
enoiUEh to aud)le the 12 men who foond
the fiicts to conclude that the aceosed was
guilt7. We hare carefnlly examined the evl-
dence in the present record. It Is by no
means condnslve of gnllt, and. If we could
sit as jurors, we might find In favor of the
accused; but we cannot say that the jnry
were compelled to take this view of the evi-
dence and that the circamstances were whol-
ly Insuffldent to justify the conviction. It Is
certain that the prosecutor's cotton was stol-
en, and there was enough to authorize the
Jury to find that the accused was the thi^.
This being so, we have no power to Interfere
with the verdict ; no material errors of law
having been committed.
Judgment alBrmed.
RUSSELL, J. (dtesentliig). While I would
not under any dTcumstancefl usurp the pre*
rogative of the jury In deciding a contest-
ed issue of fact, or in passing upon the credi-
bility of witnesses, still when the evidence
Is not legally sufficient, under any view of it,
to authorize a conviction, a verdict &tdlng
one who Is accused of crime guilty Is con-
trary to law. It Is dear to me that in the
present case the circumstances in proof are
as fully consistent with the Innoeence of the
accused as with his guilt, and consequently,
In the contemplation of the law, it is not
within the power of the jury to prefer a
hypothesis under which the guilt of the ac-
cused may be euspected to the hypotbrata,
equARy as strong, that another committed
the larceny. See Davis v. Btat^ TO S. S. 866,
this day decided.
. aa os. i«p. «)
WIIiLIAliB V. CHATEAU RDAL BSTATIB &
IMPR0YBM9NT GO. et aL (No. 4.620.)
(Goort of Appeals «f Georgia. JoJj 8, 1913.)
(BvU^hu* by the Court.)
L Mechakicb' Uenb (§5 73, 263«) — FobE-
CLOSuBK— Pasties — Irtbrest or Mobtoaoix.
Where tii« Ixdder of k deed to real estate,
made to secure a debt, had knowledge of a con-
•Vsr 0tlMr esMS sm hum ualo'Snd Motion MTJICBSft
tract made by the vendor to hnin-ove Ae real
estate, and ezpreuty agreed to- locb eoQtract,
he ii a proper party to the foreclosare of a
lien for the improvemeats made under the con-
tract; and the Uea of the contractor binds the
interest of the bolder of tiis deed to the real
estate.
[Ed. Note.-'For other cases, see Mechanlca*
liene. Cent Dig. K 8T, 88, 90-102, 471-481;
Dea big. IS 73, 2?e.«]
2. Courts (H lOS, 188*)— JumsDioxioif —
CiTX Conars.
While a city coart in this state has no
jurisdiction to decree affirmative equitable re-
lief, and no jurisdiction of suits InvolTing title
to land, ft has jarlsdictloB to render a judg-
ment foreclosing a BiateriahDan's lien on real
estRte.
[Ed. Note.— For other cases, see Courts,
Cent. Dig. SS 4ia 411, 43», 440, 442, 443, 447-
449, 451, 452. 454, 458, 464, 406, 407, 468,
1294; Dae; Dig. H 108, 188.*j
E^rror from City Court of Savannah ; Wal-
ter O. Charlton. Jn^re. , $
Action by OrtfBn WUllams against the St
Paul's Colored Methodist Bptscopal Cbnrdi,
the Chatham Real Estote & Improvement
Company, and others. Judgment for deCeod-
ants, and ptelntlff brings error. Bevereed.
Anderson, Cann A Cann, of Savannah, for
plaintiff In error. H. W. Johnson, of Sa*
vannah, ftnr defendanto In error.
HILU G. J. Orlffln wlUUins bnrac^t ndt
against the St Panl's Colored Methodist
B^so^l Church aad the trustees thereof,
naming tbttm and tha Chatl^'ftm Real Bstato A
ImvroTement GMvany. The petltloo sovght
to obtain a general indgmmt agaiaat the
chureh and the trustees, and to set up and
eetabUsh and enforce a ilea which the plain-
tiff daimed for tanpsovuDento made ^ Urn
as a eoBtractor on land on which the chnxdk -
was, located, and to which the Real
Estoto A Improvement Oonvesy held a deed
to secure a d^t The real eatate company
filed demorrera, general and spedaL Then
demurrers were suafealBed, and the petition
was dlenrtsBSd aa to the real estate company,
and to this Judgmoit tiie ^Untlff excepted.
The aUegations of the peClttoa Bohstutlally
made the following case: The church and
Ito trnstees named.made a contract with tlie
plaintiff Cor tihe naldsc of certain impiOTe-
ments on a certain lot of land, which land
and ImiffoveaMnto were described In the pe-
tition. This contract was made with the fnU
knowledge, acqoleeceuce, and approval of,
and mis adopted aa Ito own t^, the GbaOMB
Real. Batate A Ini|Mnn«ment OonqiiaBy. ti»
holdw of a deed to aseue a debt eorering
said land. The seal estate eeapanyv before
the contract was e»cuted, agreed widi the
plalatut to see that be was paid the amonnt
called for by the cmtract and. the plaintiff
relied upon this agreement and represento-
tioB. of the company. The Improvements i&r
ereaaed tha value of the lot of load, which in-
ured to the beneflt <tf the real estate oom-
p^joy. Ijtotloe of the U«a dalmed 1^ the
plalntifl was given to the defleadantsi both
^"Z^ sit. * An. Dig. Kegr-Mo. SerMs A^sp^ indcbM
^ • Digitized by LiOOgle
870
78 SOUTHBASTBBN REPOBTEB
befor* and at the time of the aUns of Bald
lien for record, and before the money bor-
rowed by tbe tmstees and the church had
been paid out by the real estate company.
The secretary and treasurer of the realty
company, who was authorized to act In the
premises, was the person to whom notice
was given, and who acted In behalf of the
company. The contract made by the plaintiff
was duly complied with and completed, and
his claim of lien dniy recorded, and hla suit
was brought to foreclose this lien within the
statutory period after the recording of the
same. Attached to the petition was a copy of
the lien, and a copy of the contract made with
the dturch and the tmstees thereof. A bill of
particulars was also attached to the petition,
showing the work done and the materials fur-
nished by the plaintiff under this contract.
The petition alleged that the original contract
price for the work and materials was f3,500,
and that of this sum (3,100 had been paid,
leaving a balance due him under the contract
of $400, and that in addition to the contract
price he performed woris and furnished ma-
teilal at the instance and for the use of the
defendants, under Changes In the plans, not
specifically agreed on in the original con-
tract, to the amonnt of $5^ which, after
maUng an allowance of $120 on price of win-
dows, leaves a total amount sued f6r of
$8^40, for which amonnt a li^ Is claimed
upon the Imiworementa, couiedsUng of the
church edifice and parsonage, and the real
estate described In the petition upon which
the improvements were erected; the same
being tbe property of the church and the
realty ctnnpany, holder of tbe deed to aecure
a debt The general demnrm of the real
estate company waa upon the gronnds that
the allegatlo&B of the petition set ont no
cause of action against that defendant, and
time was a mlajcdnder of parties de-
fendant, In this, to. wit: That the petition
undertakes to join In one salt tbe St Paul's
Colored Methodist Bplscopal Qmrcb and
nine Indivlduala and this defendant the Ghat-
ham Beol Estate ft Improvement Oompany,
whereas the petition shows on Its fooe that
there was no previons contract between the
pazttes named In the petition, also that the
dty court of Savannah had no jurisdiction
to hear and determine the case, because the
petition ae^ eqnitaUe rtHlet which conld
oitly be granted by the sopertor oonrt The
gronnds the special demurrer. In so far as
they were merltoilons, were met by appro-
IHiate ameftdmcnt and therefina trill not be
considered.
CI] 1. Under tbe act of U68 the lien of
mechanics upon Improvements made by them
attached to soch tanprovemflnts without re-
gard to the title. The Ovll Oade (1910)
I 88B2» pioTldea that: "AU mechanics of
evwjr sort who have takot no personal se-
cnrlty th^efor, Aall, for woA done and
material furnished In building, r^lrlng, or
ImpcoTlDg any real estate of th^ employers;
all contractors, matwiabncso, and persona
furnishing material for the Improvonents
of real estate * • • shall each have a
special lien on such real estate" — and, fur-
ther, that when work Is done or material fur-
nished for the Improvement of real estate
upon the employment of a contractor or some
other [>ersoQ than the owno*. then and in
that case the lien given by this section shall
attach upon the real estate Improved as
against the true owner, for the amount of
work done or material furnished. In the
case of RepiiMird-Snedeker Go. v. Morrison,
120 Oa. 28, 47 S. E. KK, it was held that
the owner conld not be subjected to a lien
unless he expressly or impliedly consulted
to the contract under which the improve-
ments were made, or the materials fnmlshed
for Improvements mad& In other words,
the general principle Is decided In that caas
that the title of the tme owner cannot be
iDcumbered by a lien without some act on
his part, either actual or constructive which
shows that he assented to the contract under
which the Hen la claimed. That was a case
where a tenant had the Improvements put
upon the property of the owaeXf and It waa
held that no ll«i was created on the ptopov
ty against tile owner unless It was shown
that be assented to the conteact In the
present case tbe auctions show that the
church, or the trustees thereof, held the eq-
uitable title to the land upon which the Im-
provemmts were placed, that the legal title
to this land was held by the Ohatbam Beal
Estate & Iminovemrait Company to aecure a
debt, and that this debt was Incurred for the
purpose of making these tmprovanenta. We
think that the holder of an equit^e title
to property stands in a somewhat dlffamt
and higher position with reference thereto
and to the general public than a tenant
Tbe equitable owner retains possession of the
propoty, and really ocenples the posltlfm of
a true owner to mie contracting with him
for the purpose of Improving the pnpoty.
But this is immaterial here, because the al-
legations at the petitimk wedflcally show
that, the contract made by tbe plaintiff wltii
the equitable owners of the property was
adopted as its own by the Chatham Beal
Estate ft Improvement G(»ivany, who wen
the legal owners of the property. In other
words, both the equitable ownen and the
legal owntfs stood In a ccmtrectoal relatl<m
to the plaintiff, in so tar as the Improvemoits
were concerned. In Central of Oeorgia By.
Ca V. Shiver, 12B Oa. 220, 63 S. B. 610, It
Is held that all that is required to create a
lien agitinst tbe true ownw Is consoit on
his part, either eipreea or Implied, to the
contract for the Improvement of the real
estate Here the allegatitm Is that the bold-
er of tbe legal title, or tbe one who In law
could be called the real owner, knew of the
contemplated Improvements, acquiesced in,
and ai^oved of and adopted as tta own Uie
c»tr«t tar tt. Un^^y^^^^^y^
BEYLDT V. ATLANTIC COAST LINK ^ CO.
871
The cue of Bennett Lumber Go. t. Marttn,
132 Oa. 493, 64 8. E. 484, as weU as the case
of Carr v. Witt, 137 Ga. 373, 73 S. K. 668,
seeuiB to be distinguished on the facte from
the Instant case. In the first case mentioned,
which was an effort to set ap a lien for lum-
ber famished to Improve real estate, the evi-
dence expressly showed that the real owner,
or the holder of the deed to secure a debt,
had no knowledge whatever that any lumber
was furnished or was to be furnished by the
person seeking to foreclose the lien, and in
the second case a general demurrer was sus-
tained, because there was no auction that
the contract for the IraproTements of the
real estate had been adopted by the holder
of the deed to secure a debt In the present
case It is spectflcally allied that the inlAer
of the deed to secure a debt on the real es-
tate bad knowledge of the contract for the
Improvement of the real estate, and express-
ly agreed to see that the money was paid to
the contractor for the improvements, thus
ratify iDg and confirming the contract made
by the trustees ot the church, and adoptiug it
aa its own. If these allegations of the petl-
Oxm be snatalned proof, under the prin-
(4ple of Ok above dedaloiia, a inrlma fade
ease fw tbe eBtaUlstament of a lleo votm the
real estate, em as against the cautbam
Beat Bstate ft ImionTraiHit Company, would
be made out We do not think it necessary
that the Chatham Real Estate ft Improve-
ment Company should have actually Joined
with tibe trustees of the church in making
the contract for the improvement of the
church property; but If the evidence should
show that it had full knowledge of the con-
tract that It expressly assented to Its execu-
tion, agreeing with the contractor to see that
he was paid according to its terms, and re-
ceived the benefit of the improvements which
tbe contractor placed upon tbe property, re-
lying upon Its representation as to payment
these facts would be sufficient to give to the
contractor a special Hen upon the real estate
to which tiiat defendant held title for the
purpose of securing e debt
2. There was no misjoinder of [mrtles. Be-
fore tbe lien on tbe land could be establish-
ed under the allegations of the petition, both
the holder of the legal title, to vrlt, the Chat-
bam Real Estate & Improvement Company,
and the holders of tbe equitable reversionary
title, to wit the trustees, for the use of the
church, would have to be Joined In tbe suit
The 1^1 title being In the realty company,
and the equitable title in tbe trustees for the
church, and the church itself having been
built for the use of the Colored Methodist
Episcopal Church, under the auctions of
the petition thoe was a privity of interest
between all the parties. Oartainly the realty
company was a necessary party, and Its ti-
tle could not have been incumbered In tbe
suit without first having made It a party.
Tbe owner of the property, or of the interest
sought to be charged, is a necessary party,
without whose presence a valid Judgment
foreclosing tbe Hen cannot be rendered. 27
Cyc. 349 ; Western & Atlantic E. Co. v. Tate,
129 6a. 626, S9 B. E. 266.
[2] 8. WhUe the city court had no Juris-
diction to afford affirmative equitable relief,
It has Jurisdictloo to render a judgment fore-
closing a materialman's Uen on real estate.
Cooper v. Jackson, 107 Ga. 25S, 33 S. E. oa
See, also, the case of Beckwlth v. McBrlde,
70 Ga. 642, where suit was brought In tbe
dty court of Atlanta i^alnst Beckwltb, trus-
tee, for the purpose of charging certain
cbnrcb property located in Atlanta for goods
which had been furnished to the church.
In tibat case a demurrer was filed on the
ground that tbe dty court was without Ju-
risdiction, because the petition set forth an
equitable cause of action, in that it son^t
to subject trust property to a d^ and, far*
ther, because the title to real estate was lur
volved. The demurter was overraled, the
court placing its judgment upon section 8877
of the Coda of 1882 (CiTil Code of 1910, |
3786). It beld, in effect, that tmat astates
are made llaUe in courts of law for aervlcea
rendered to them, or for property or money
fmniataed for their uae^ to the eztuit to
wMcfa thear would be held liable In courts ot
equity, and It was further beld that it was
certainly not a anlt rejecting tbe title to
land, in the sense attached to those words
by the Constitution and laws, any more than
would be any ottier suit whidt might evoitn-
ate in fixing a Hen npm land. For the rea-
sons atated, we think the trial Judge erred
in austalning the general demurrer ot tbe
Chatham Beal Bstate ft Improvement Con^
pany.
As heretofore stated, the grounds of special
demurrer, exce^ those met by special amend-
mentt were not meritorloua.
jndgmuit xerersed.
(9B a. c. HO)
BETLOT T. ATLANTIC COAST LIMB B,
CO.
(Supreme Court ti South Carolina. July 1^
ma.)
Mastbb and Sbbyaht (f 78*)— CoHFSira^-
TION OV SBBViinT — BSHKFIT AND BBLIBP
Funds.
Under Civ. Code 1912, | 2808, providing
that where a comDanr maintaiDs a relief fund
for its employes, it shall be liable to pay tiie
the amount called for by the contract the ac-
ceptance of which shall not bar the right of
the employ^ or his personal representative to
recover damaKea for negUgeoce, and that any
contract to the contrary, or any release given
in consideration of payment of the relief fund,
shall be void, the beneficiary under soch fund
may recover the amount due after having, as
administratrix, recovered damitfes for the death
of the employ^, canaed by the n^ligence of
the company, even thoogh the benefit contract
^TO^ides that tf suit be brought against the
•JTw otbM CSMS MS MUD* tOpU SBd MOtlOS NVUBBft
878
TO fiOUTHElASTHBN RBFOBTBB
(8. a
company in danani bouAt iliall to ior-
feited.
[Ed. Note.— For other casfls. Me Muter and
Serrant, Dec Dig. | T8.*]
Gary. G. J., diuentiiig.
Aiv>e&l from Commion Pleas CSrCDtt Court
of Charleston County; Frank B. Gary, Judge.
Action by Caroline M. Beylot agabut the
Atlantic Coast Line Bailroad Company.
Jndgmoit tor the defendftn^ and plalntUt np-
penla Berersed.
Logu it Grace, of catertesttni. for appet
last W. Hnger Fits Sbnons, of Oharleston,
for reaiKi&dent
VRASBB, X Tbe napondent thoa atateo
tfala case: 'TTlila action vaa oommoiced on
the 16th day of July. Mil. This suit Is by
the benofldaiy named In flie contract at
Marlon J. Beylot, deceased, who was a mon-
ber of the Atlantic Coast Line Bailroad Com-
pany relief d^tartment, and is brought to
recover f2S0 death beneflta tinder said con-
tract Marlon J. Beylot vas an employ^ In
the serrloe of the Atlantic Coast Line Rail-
road Company, an^ as snch became a man-
bw of said relief department, and was kill-
ed on the 19th day of Jannary, 1010, while
In the swTioe ot that company, and a mem-
ber of said relief department The com-
plaint alleges these facta. The answer al-
leges that Caroline !M. Beylot the plalntUT
her^n, as the administratrix of the said
Marlon J. Beylot, brought a suit against tbe
Atlantic Coast Line Bailroad Company for
the death of said Marlon J. Beylot ^d a
Judgment tberaln, rendered in NoTomber,
1910, wbicb Judgment was paid in full Jan-
nary 7, 1911, and release in fall executed
therefor. Tbis suit was for the sole benefit
ot the plaintiff, Caroline M. Beylot as the
motha of Marion J. Beylot The answer
also alleges the nature and organizatlMi of
the relief department its regulations, and
the nature of tbe contract of a member of
audi department It also alleges tbat by the
terms of said contract it was provided: 'If
any suit should be brought against said At-
lantic Coast Line Railroad Company for dam-
ages arising from or growing out of injury
or death occurring to him, the benefits other*
wise payable and all oUIgationa of said re-
lltf department created by bis membership
tberehi should thereupon be forfeited with-
out any declaration or otfaw Act by said re-
lief departmoit or said Atlantic Coast Line
Bailroad Company.' The answer further
alleges that the bringing of said suit for
damages tor the death of said Marion 3.
Beylot and the recovery and payment of the
Judgment therein, forf^ted all obligations
for payment of benefits by defendant to
plaintur uaSet the terms of the contract and
operated as a release and discbarge of de>
fendant from any and all claims by reason
vt the death ot Otfarlon J. Beylot or 1^ rea-
son of his memberdJp in said relleC d^art-
meat Plalntlft demurred to the answw, al-
leging that the tacts thueln stated did not
constltnte a defense, for tlie reason Oiat tta*
Judgment in the suit for damages oonstltated
no defense to tbis suit for benefits under the
relief departmoit contract The case cam*
on for trial upon the pleadings before Judge
Frank B. Gary at the April term, 1912, the
drcnlt Judge overruled the demurrer, hold-
■ing tbat the forfeiture clause of the con-
tract was binding, and tbe facts stated tn
tbe answer would constltate a defense by nn
order made May 8, 1912. Fnnn tiiat mder
this appeal was taken. The only question,
thwefore, raised by this appeal is whether a
mauber of >uch a relief dqiartmoit or hta
beneAclary, can wMiiif an action vptm-
snch a contract for benelts tberennder, af^
a suit for damages has been prbsecated and
recovered xxprn tor the very injoty for whlcAi
tbe beneflta are dalmed."
The respondent relies upon Stnrglss t. R.
R. Co., 80 8. a 167, 00 S. B. 989, 61 a BL
261, to sustain the order overruling tbe de-
murrer. The difference between tbat ease
and this Is that hi the StutglsB Gaae tlio
statement of facts contains the tollowtag (80
& a at pages 198, 199, 00 6. B. at page
930. 61 8. B. 261): '*That as a result of said
action, the plalntur succeeded in recovering
from the defendant the sum of $2,700 tor tbe
alleged Injuries sustained, and tbe same
was paid to the plaintiff by the defendant
and a full and oomj>Ie(6 release and d<f-
charge tea* takm for aU claim and demand
againat the said defendant for aaid infu-
riea."
In this case there is no such allegation.
Forfeiture was allied and release by oper-
ation of tbe original contract Mr. Justice
Gary (now Chief Justice) and Chief Justice
Pope, who concurred with htm, did net hold
as respondent claims. They set torth in
that opinion the w^-establiidied doctrine
tbat there ia a difference betweoi a coo-
tmct to release or limit liability tor dam-
ages from future negligrace and a settle
ment for psst acts of negligence. Hie one
is forbidden by law and the other favored,
Tbo appellant claims that In the Miller
Case, 90 S. a 249, 73 S. B. 71. the plaintiff
was allowed to take relief money and then
bring suit, and claims that there Is no logi-
cal difference between that case and the one
in which an employe brings suit and then
claims the r^ef money. There Is no lo^cal
difference, but tbat is not the question. Our
cases hold tbat the question must be dedded
by the statute, and there Is no power In the
courts to so ammd tbe statutes as to make
them contonn to tbe oonrf s ideas of lo^c
The statute Is as follows: Code of Lawa
ot South Carolina. toL 1, i 280S: "Becedpt of
Btilef Fond No Bar to Aetlin tor Damagaa.
—When any oazporation, flnn^oc indiwidnal
I Ugta «Bd bmUob NUMBBB inDM. Die
8.0)
wiLKnas T. Hzi/roiF-DODOX LUMBsa oa
873
npu or opentM wliat Is nmally called a re-
lief departmeiit tor tte employte, the mem-
ben of which are Tequlred or perndtted to
p&y daea, fees, money or other compeoBa-
tton, by whatever name called, to be entitled
to the beaeflt thereof, upon the death or in*
jury of the «nploy£, a member of stich re-
lief d^artment, such corporation, firm or
lndlTldiial, 90 mnninK or (V>eratii4: thio
aame Is required to pay to the person en-
titled to the aame 0» amount it was agreed
the employ^ his hein or other benefldary
imder SDCb contract diotdd reeelTe from
sndi relief department; the acceptance of
which amoimt sh^ not (Operate to estoPi or
in any way bar the right of each emirioye
or his pezsenal rqireaentatlTe teem reoover-
Ing damages of auch eorpoxation, firm or In-
dl^ual for pmaMl InJtiry or death caused
by the negligenoe pf such corporation, firm
or IndlTidnal, their Boranta or agents, as
are now provided by law; azid any contract
or agrennent to the contrary, or any receipt
or release glvea la consideration of the pay-
ment of soeb woBit ia and Aall be null and-
ToUL" It will be observed that in the first
part of tin section tliere is an absolute re>
qalrem»t that coipoiatlons. firms or individ-
uals shall pay according to the contract
This absolute requirement is not limited by
any other part of the statuta On the con-
trary, it provides that acceptance of benefits
shall not operate as an estopped, and also
that a release given, ia pursuance of the con-
tract, shall be void. If the Legislature bad
intended to make the action fOr damages
operate as a release, it ranat say so in the
act. The act does not say so, and this court
bas no right to amend the act by saying that
a suit for damai^ shall opiate as a re-
lease.
The jndgmeot Is reversed.
HyDBICK and WATTS, 33., ooDcqr.
GABY, a J. I dissent for the reasons stated
in the decree of his honor the circuit Judge.
(96 & C. 248)
WILKINS V. HILTON-DODGE LUM-
BER CO.
(Suprome Court of South Carolina. July UL
1S13.)
L IlTJUWCnOK (I 175*) — Pbbumiicaet IW-
mNCTioN— Motion to Dibsolvk— HiAanfo
— CONTUCTINO AiTtDAvrrs.
In an action by the grantee of a rtgbt of
war to restrain a prior grantee of another
rfcbt of WRT across the same land from cross-
iDB tlie plaintiff's rigbt of way, where the af-
fidavits are conflicting as to whether the prior
grantee had notice of an option previoosly
8:iven to tiie sobseqnent grantee, that qnestlon
should not be determined on a motion to dis-
solve a preliminary ixtjnnetloB.
(Bd. Note.— For. -other cases, see Injunction,-
Cent. Dig. g 388 ; Dec. Dig. | 175.*]
2. RuutOADS (I 80*) — RiOHn ov Wat —
Caessina Right or Wat or Anotheb
Kailboad.
Where the owners of a tnuit at land grant-
ed a right of way across it for a nilroad to
be ased In eanying on timber operations, the
right of way does not exclude the right of
the owner to use the land subject thereto,
and where they subsequently granted the tim-
ber rights and a right of way for a railroad
to another company, the prior grantee is not
entitled to enjoin the suhsequent grantee from
crossing tlie line <tf his right of way.
[Ed. Note.— For other cases, see Railroads,
Gent INg. t| 2S4-2S8; DecTD^. I 88.*]
Oary, O. 3., dissenting.
Appea.\ from Common Pleas drcolt Court
of Colleton County; R. W. Memmlnger,
Judge.
Action by V, D. S. Wllklns against the
Hilton-Dodge Lumber Company. From an
order refusing to dissolve a tonporary re-
straining order, the defendant anteals. Oi^
der reversed.
Benl. H. Bntledge and Hagood ft Blvers.
aU of Charleston, and Padgett, Lema^ &
Moorer, of Waltersboro^ for appeUant Logan
A Oiaoe^ of Charte8ton» for respondent.
WATTS, J. This is an appeal from an or-
der of his honor Judge Memmlnger, dated De-
cember 28, 1912, reftastng to dissolve a tem-
porary restraining order issued by his honor
Judge Prince, on November 27, 1912.
The fftcto Involved in the appeal In brief
are: That on July 23, 1912, the plaintiff
respondent, Wilklnn, and YL B>. Savage ob-
tained from WiHiam B. FUH&b and Rebecca
Blsoell, for valuable conslderatloo, an optloo
to purchase a right of way, 30 feet In width,
across the lands of said Fields and Bissell,
known as Deer Island, for the purpose of
building a railroad to carry on timber oper-
ations. That after that time, on September
10, 1912, Fields conveyed aU of his undivided
one-balf interest in tbe timber-on said Deer
Island tract of land, together with a right
of way 30 feet in width over said land, to
the Savannah Timber Company; the stock
of whldi said company is owned by the de-
fendant appeUaut That In September, 191%
Rebecca Bissell, for valuable consideration,
conveyed her one-half interest in the timber
on the same tract of land, known as Deer
Island, together with a right of way t>ver the
land 30 feet in width, to the Savannah Tim-
ber Company. That the stock of this com-
pany is owned by the defendant appellant
That on October 19, 1912, . Fields and Biss^
In pursuance of the agreement, previously
by option given to Wllkins and Savage cpn-
veyed to them the right of way of 30 feet
in width, and on the same day, to wit, Oc-
tober 19. 1912, Savage conveyed to WlUdns
his iptere^ in the right of way, conv^ed
to him, and Wilkins by Fields and Bissell.
That after this time the app^ant, the Hil-
tQo-Dodte LnmbOT Con^any, owner, ot tbe
•Vw OUMT essM MS ■uas to^ sad seetlen NUHBKR in Dtv * Am. XHg. XtfNo; Serlw ft Bsp'r IifdakM
Digitized by Google
874
78 SOUTHEASTERN REPOBTBB
(S.C.
SaTann&h Timber Company, began to locate
a Agbt of war on said Fields,* or Deer la-
land, tract of land, which would Incumber the
right of war of respondent, and, as alleged in
the complaint, result In a practical confisca-
tlou of hla property, and Irreparable damage ;
and In order to prevent this the respondent
began this proceeding br summoDs and com-
plaint, and obtained from Judge Prince a
temporary restraining order. The appellant
moved to set aside this 'order before Judge
Memminger, and he refused this motion. The
grounds relied on by appellant before Judge
Memminger were mainly two: First, that the
appellant wag a bona fide purchase, without
notice, for valuable consideration of the
premises of which it was in possession, and
Uut Its rlc^ts of way were ezclusiTe, and that
reqpondent'8 rights, if any, were obtained
snbsequent to his; and, secondly, that he
was the owner, angnestlonably, of the timber,
and the rights of way across said premises,
and that the crossing of the reowndent'a
rights of way, alleged to be about to be made,
ooidd work no Irreparable injury, nor In fact
injury of any kind, to rectpondent On bear-
ing this modon Judge Memminger in his or-
der says: "A clear-cut question of fact Is
made as to whether defendant had actual no-
tice of plaintiff's oipUcm before it pnndiased.
The option was recorded, but it appears that
its execution by one of the owners of the land
shows on the record no subBcrlblng witness-
es; whereas, the original. It is claimed for
plaintiff in reply, has the names of the wit-
nesses, which it is claimed were left off the
record by error of the clerk of court" But
there was testimony before his honor clearly
showing that the appellant had actual notice
of the option of respondent to purchase the
right of way before the appellant purchased.
The respondent and others make affidavits
to this, and appellant denies it under oath.
From the order of Judge Memminger, appel-
lant appeals, and alleges error on practically
three grounds: That he erred in not holding
that appellant bad no actual notice, and even
if it did, it did not affect its rights; the
appellant had no constructive notice as the
option is not a recordable instrument, and
conseQoently, no notice, and If a constructive
notice by recording, it was Improperly re-
corded as to one-half of the premises; and
the third ground, that the injuries specified
in the complaint as irr^arable were remote
and speculative^ and were subject for action
fat damages, and not for Injunction.
[1] We do not think Qiat his honor was in
error in refusing to diasolTe the Injunction,
on the grounds there was no actual or con-
structive notice to the ain)ellant of the option
of the reQwndait; to have done so would
ban required him to determine a question
of Act on affidavita^ whlfdi this court has re-
peatedly held is nnsatisfiictory, and by re-
fusing to do BO the circuit court followed flie
decisions of this court in a numbw of cases.
Alderman v. Wilson, 69 S. 0. 166, 48 S. E.
S6; Kelly v. Tlner, 86 S. 0. 160, 68 a E. 466;
ChUds V. Columbia, 87 S. a S68, 70 S. E. 296,
34 L. B. A. <N. 8.) 542.
[2] We, however, think that his honor
was in error In not dissolving the injunc-
tion, under the authority of Miller t. Sea-
board Air Line By., 94 S. C. 105 (Advance
Sheets), 77 S. E. 748. Admitting for the pur^
pose of this case that the respondent had a
valid instrument anterior and prior to that
of appellant from Fields and Blssell to the
right of way claimed by them across Deer
Island, and that the app^nt knew this be-
fore its purchase from Fl^da and Bissell.
yet Fields and BlsseU atUl owned the land;
the fee was In than subject to the rlglit of
respondents right of way, and it wonhl be
both unreasonable and absurd to say, because
they had sold a right of way across their
land, that tlie pnrchaser of the right of way
could prevent them, the owners, from crossing
this right of way. in going to and fro across
their lands, and not enjoy the use of the
lands, of which they were the owners, and
the record shows that the appellant here pur-
chased the timber on these lands from Fields
and Bissell, and now is the owner of the tim-
ber in question and right of way. The re-
spondent would only have the right to claim
its right of way as purchased, and could not
prevent the owners of Oie land In crossing
this right of way. Mr. Justice Woods in
MiUer y. Seaboard By. Go^ on page 109 of 94
S. C, on page 7^ of 77 S. E.. supra, uses
this language: "The rule established by au-
thority and reason, from which we find no
dissent, is that where a railroad company ac-
quires a right of way, either by deed or by
condemnation, which divides one tract of
land into two parts, the law will not impute
an Intention so unreasonable as that the rail-
road company Intended to exclude the owner
from the right to pass from one [>ari of his
land to the other, or that the owner of the
land meant to part with such right, but. on
the contrary, will hold that the Intention vras
that the owner of the land would of neces-
sity have the right of crossing. If a crossing
could be made so as not to Interfere material-
ly with the use of the right of way acquired
by the railroad company. Baltimore & O. By.
Co. V. Slaughter, 167 Ind. 330,. 79 N. B. 188
[7 L. R. A. (N. S.) 597. 119 Am. St Rep. 503] ;
Kansas Ci^ A E. R. Go. v. Kregelo, 82
Kan. 608, 6 Pac. 15; Atchison, T. & S. F.
By. Co. V. Conlon, 9 Kan. App. 338, 61 Pac.
321; New Tork A N. B. By. Co, v. Board
of Railroad Commissioners, 162 Mass. 81, 88
N. B. 27; Kiric T. Ballway Oo. [61 Ia. Ann.
604] 26 Sooth. 463, etc. WUle the precise
point is not involved In Simklns t. Coliunbla
AG. B.B.Co^20S.a268k that case waa de-
cided tm the sama principle.*'
<Mer appealed from reversed.
HTDBIOK and FRASBB. JJ:r<oncar. i
Digitized by VjOOglC
GAMBIA V. MBTROPOLITAK UFB INB. 00.
876'
GABY, a J. (dlssentiiis). The sole object
of the plaintiff's action Is to obtain a per-
manent Injunction. In such cases the rule
is thus stated In Ondd r. Colvert, 54 S. C
457, 32 S. B. 603: "Where the action Is
brought solely for the purpose of obtaining
an injunction, and where. If the facts alleged
in the complaint are found to be true, a prop-
er case for Injunction would be presented,
it Is error to dissolve a temporary injunction
apon a mere motion, heard upon affidavits,
as that would deprive the plaintiff of bis
legal right to have the focts determined in
the mode provided by law, instead of by af-
fidavits— a most unsatisfactory mode of elic-
iting truth. Indeed the practical result In a
case like this would be to dismiss the com-
plaint upon a mere motion, heard upon af-
fidavits, without any opportunity being af-
forded the plaintiff to have the facts upon
which he bases hla claim for relief deter-
mined in the mode prescribed by law.**
I, theref ore» dissent
(K 8. C. IK)
GAMBLE v. METROPOLITAN LIFE
INS. CO.
(Supreme Court of South Carolina. July 12,
1913.)
INSUKANOG (S 666*) — INSUBAHCE — DB-
nEifBES— Fbavd— Waiveb.
A life insurance company hM not enti-
tled, under the showing made, to defeat a re-
covery on a life policy, on the ground of fraud-
ulent repreaentationa in the application, in view
of the evidence on the question of waiver.
[Ed. Note.— For other cases, see Insurance.
Cent. Dig. H IfiSfi, 1707-1728; Dec. Dig. |
e65.*i
Hydride, J., dissenting.
Appeal from Common Pleas Circuit Conrt
of York County; T. S. Sease. Judge.
Action by Jam^ M. Gamble against the
Metropolitan Life Insurance Company.
From a Judgment for plaintiff, defendant ap-
peals. Affirmed.
See, also, 92 S. a 49^ 75 S. B. 788, 41 L.
R. A. (N. S.) 1109;
BUlott ft Herbert, of GolnmUa, fbr aivel-
lant Dnnlap ft Dnnlait, of Bock HUl. for xe>
spondent
FRASER, J. Tbla Is the second appeal tn
this case. The first is reported in 92 S. C.
451, 75 a E. 788. 41 L. B. A. (M. S.) 1109.
Appellant's argumwt contains the following:
"This is a salt on a policy of lnsa<ance
fbr $500 on the life of Maggie Gamble, wife
of the plaintiff, in which policy the plaintiff
is named as the beneficiary. The applica-
tion Is dated February 10, 1010, the policy
was dated February 1(^ 1910, and Haggle
Gamble died on June 14, 1910."
The answer of the defendant sets up the
defense that certain statements made In the
application for the policy were untrue ;
that It was agreed in the application that
the answers shall form the basis of the appll-
cati(m, and. If they were not correct and
whoUy true, the policy of Insurance shall be
null and void; that In said application in-
sured stated she was In sound health, etc,
whereas she had been affilcted with disease of
the kidneys, had been treated for Bright's
disease, and had said questions been truth-
fully answered the policy would sot hare
been Issued, etc.
The fourth paragraph is as follows: "(4)
Further answering the said complaint, de-
fendant alleges that said policy of Insur-
ance mentioned in the complaint was obtain-
ed by fraud, misrepresentation, and deceit,
and in consequence of said fraud, misrepre-
sentation, and deceit, the said policy of in-
surance is null and void."
The case was first tried at the fall term
of the court of common pleas in York coun-
ty before Hon. R C. Watts, presiding Judge,
who directed a verdict On appeal this court
reversed the Judgment Gamble v. Metropoli-
tan Life Insurance Co., B2 S. C. 461, 75 S.
E. 788, 41 L. R. A. (N. S.) 1199. The case
was again tried before Hon. T. S. Sease,
presiding Judge, at the fall term 1912, and
the Jury rendered a verdict in behalf of plain-
tiff for the face of the policy and Interest
Defendant appeals on four exceptions which
present two questions. The first three ex-
ertions raise the first point, and the fourth
exception raises the second point These
grounds of appeal are: (i) That the presiding
; Judge erred In charging the jury upon the
law of waiver by the agent of the defendant
company, where there was no such issue
made by the pleadings or evidence, and re-
fused, when requested, to charge that there
was no evidence of waiver by the agent
(2) That the presiding Judge erred in not
granting a new trial upon the evidence in the
whole case, and because of the wrong dia^
above."
1. The first ground of appeal cannot be
considered. The case does not show that
his honor's attention was called to the mis-
statement of tlu Isaaea. The case shows
the following:
"Mr. Herbert: Your honor, I will ask that
yon snpptement your charge to the extent of
instructing that there la no evittenoe that the
agent knew Mrs. Gamble's ctmdltion or va-
ried any stipulation in the contract
"The Court: I am afraid that would be
charging on the &ct8.
"Mr. Herbert: I Just asked for it I don't
know whethw It would be competent or not
"The Court: You will write yonr verdict
on this paper, that blue pv>er. Take the
lecora."
The difference between no evidence and no
Issue is great The rule stated in matiy cas-
es Is that where the presiding . Judge mis-
states the Issues, the Jndgment will not be
4^01 oUar ouas m* bum toplo and section mjHBBH p^e. IMtt. h Am. Dig. I^-No. Bwlaa AJlap'r End«x«>
Digitized by VjOOglC
87C
18 SOtFTHBASXIHtN RITOBTBB
revMsefl for tlmt reason, nnleM bis atten-
tion was called to the misstatement on tbe
Ismes. One refttence Is snffident Plonkett
T. Insarance Co., 80 S. G. 410, 81 S. B. 894.
"It wlU be seen by referring to the case of
Nlckles V. R7. Co., 74 S. a 102, 186. 64
S. B. 255, 266, that Vhatever may be the
▼lew elsewhere, onr cases support the view
that an Instruction upon an Issne as to
which there Is no evidence whatever or a
mistake In stating Issues la not reversible er-
ror, unless the attention of the court Is call-
ed to the matter.' See Yann v. Howie, 44 S.
O. 54«, 22 S. B. 736; Grosswell v. AssocU-
tlon, 51 S. a 469, 29 8. B. 236; State t.
Still, 68 S. G. 38, 46 S. Bl 624 [102 Am. St
Rep. 667]. This first ground of appeal Is
overmled." So here, this first ground of ap-
peal Is overruled.
2. The second ground of ai4>eal must also
be overruled. The fourth exception, to which
this ground of appeal refers, complains of
error In not granting a new trial because the
oyerwhelmlng preponderance of the evidence
was against the verdict The overwhelming
preponderance of the evidence la a question
for the <^alt Judge, and this court cannot
consider it
We cannot say that there was no evidence.
An examination of tbe deceased by a phyd-
clan chosen by the insurer Is some evidence
of one or two things, either that the disease
did not exist or that Its existence was
knows to and waived by tbe Insorer.
The Judgment appealed from la affirmed.
GARY, O. J. (concurring). One of the pro-
vislMiB In the poUcy Is that statements
made by the Insured shall, In ttie absence of
frawl, be deemed representations and not
warranties." Therefore, even If the state-
ments contained In the appUdatlon were not
tme, this foct alone was not aoffident to
defeat the plaintiff's right of recovery. The
burden of proof rested upon the defendant
to prove, as allied It, that the policy of
the Insnrance was obtained by fraud, ml»-
representeUon, and deceit which unques-
tionably would render It aaU and void. Tbe
testimony upon this question was conflict-
ing, and th« caae «u properly tobmitted to
the Jnrar. Indeed, the detendaufB attorneys
neither made a motion fbr a nonsnlt nor re-
quested tiie direction of a rerdlct We have
stated these tacts for the purpose of showing
tlw tones raised by 0ie pleadings.
His honor, tbe presiding Judge, was not
requested to charge that there was no testi-
mony tending to show waiTer. He, however,
was requested to charge that there was no
erldenee that the dtfen^Umfs agent knew of
Mrs. Gamble's condition or varied any atlpu*
latioBs in tbe contract, which is an entirely
different propoaltiou, and wliich be could not
have charged without invading the province
of the Jury. The qoeBtlon of waiver was not
inrolved In tlie case, and nothing was saU
in regard to It tihat was preji^leial to the
rights of the appellant
Vor these reasons I concur.
HYDBIGE, J., dissents,
qualified.
WATTSp dlB-
(M 8. asm
OBBaORT-<X)NDBR HULB Ca T.
RODDBT.
<Sepmma Gonrt of South OaroUna. Jane 14,
1018.)
Appkal ahd EBBon <| 1122*) — BhulHd —
Opinion.
The Supreme Court should not in Ita opin-
ion upon reversing and remanding fbr a new
trial, unneceesarily make a statement of the
facts and their consequeDcea, oo si to raise or
surest questioos which tb* parties have not
raised at triat
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. 1 4420; Dec. Dig. { 1122.*!
Appeal from Common Pleas Olrctdt Court
of Richland County ; T. H. Spain, Jndge.
Action by the Qregory-Gonder Mule Com-
pany against J. B. Boddey. From a Judg-
ment for plaintiff, defendant appeals. Re-
versed and lemanded tor a new ttial*
Frank Q. Tompkins, of Oolnmbla, for ap-
pellant. Ijyiea & hjUM, at Columbia, for re-
spondent.
FRASBR, 7, TUfl 1$ an action on account
for a sat of furniture sold to Mr. Roddey by
Mr. H. A. Taylor. The plaintiff claimed that
tbe account waa aaaigned to It, and ttat no
part thereof had been paid. The defmdanl^
Roddey, claimed that the account liad hem
paid by certain commlaaions, to which be waa
entitled on a sale of an automobile bf the
plaintiff to Taylor. The presiding Judge di-
rected a verdict for tbe plaintiff, from which
defendant appealed.
There was much conflict of testimony as to
whether the account was assigned or not and
as to the terms of the contract between the
plaintiff and Taylor in the sale of the auto-
mobile, l^ese questions ought to have been
submitted to the Jury. There are four ex-
ceptions, bat the above statement disposes
of all that are necessary to a determination
of this case. This court might make a state-
ment of the facts and their consequences at
the various times ; and, as they were affect-
ed by the change In the relations of the par^
ties, it would be manifestly unfair to do so,
as It might raise questions that the parties
have not seen fit to raise, and might prac-
tically determine ttie facta, and this eonit
should do neither.
The Judgment is reversed and Oie cause re-
manded for a new trial.
QART> a J., and HTDRICK, and WATTS,
JJ. coneur.
tmmeteptoaad«MtleiiNiniBBBtBD^DlK,aABi. Dlc K<9ltil<l9^ «f£o®gll&«
•Por eia«r osMs I
8.0)
DXMISRT r. BBNMETTSTILIA * a B. 00.
877
(K & C. 180)
DIMEBT BSNNEnrSTIIiLB ft a B. GO.
(Snpnme Court of South Carolina. July ll,
1918.)
1. Tbxai. a 29*)— ADjnsMiAr «r BnimioB—
STAmanrs bt Goobt.
In an action Malnit a lallroao company
for rannioc over puintiff** foot, causht lo a
•witch, defendont^a engineer testiSed that when
he first saw plaintiff bis engine was 160 yards
away. On croes-ezaminlna the witness plaln-
tiiFs attorney asked him If his idea at the time
was that it was 160 yards, to which be replied
that he did not recall exactly, but that It was
further than 200 yards, whereupon thecoart in-
terposed, statins to plaintifTs attorney, "His
statement is more favorable to you than it was
before, isn't It?** to which the attorney replied
in the atfirmatlTe. Seld, that such statement
amounted to a mere sngfestion to plaintiff's at-
torney that there was no necessity for laying a
foundation for contradiction, as the witness
bad given testimony more favorable to plaintiff
than he gave before, and the remark was there-
fore not prejudicial to defendant
[E^ Note.— For other cases, see Trial, Cent
Dig. IS 80-83, 508; Dec. Dig. S 29.*]
2. Railboads (I 401*)— Pebsons on Traok—
Ikjubjbs to Child— Discovebed Pekiu
Tn an action against a railroad company
for running over a child's foot, which baa be-
come caught in a switch wbUe she was walking
on the track, where there was evidence that
those in chaise of the train saw the child In
peril and made no effort to stop until it was too
late, the court properhr obarged that after bar-
ing discovered plaintUTs pen! it was the duty
of defendant's servants to nse every reasonable
way to stop the train and prevent the Injury if
possible, wbether plalntlfl was a UousM or a
trespasser,
[Bd. Note.— For other cases, see Railroads,
Cent Dig. H 1382-1390 ; Dec Dig. | 401.*1
Appeal from Common Pleas CIrcnit Court
(rf Marlboro County; Jot. A. McGnllougb,
Spedal Judge.
Action by Georgia Dlmery against tbe Ben-
nettSTllle & Gberaw Railroad Company.
Judgmeot for plnintiff, and defendant ap*
peals. Affirmed.
See, also, 92 S. C. 169, 76 S. E. S09.
Stevenson, Stevenson & Prince, of Bennetts-
vllle, for appellant J. K. Owena, of Ben-
nettsTllIe, for respondent
FRASER, J. This was an action for dam-
ages. The plalntlS, by her guardian ad
litem, alleges that she la an Infant of about
nine years of age, and that on or about the
7th of March, 1910, was walking In company
with her older sister along, by, and then upon,
the track of the defendant railroad company,
when her foot became fastened in the irons
forming the switch, and when tbe plalntifT
and her sister were engaged In endeavor-
ing to rescue her therefrom, the defendant
grossly, recklessly, carelessly, and wantonly
ran its engine and tender backwards upon
the plaintiff and cut off her foot The de-
fendant denied negligence on Its part, and
pleaded contributory n^Ugence. The Jury
found a verdict in favor of the plaintiff, and
Judgment was entered upon the verdict
From this JudgmMit tb« OMiAdaat tpp«aIM
upon alx exceptloDB.
[1] Tbe first exception complains of a re-
mark by tbe presldl&c Judge to plalntUTa at-
torney, and the other Are to the dia^ tfte
Jndge. The first ^ceptiw Is as follows:
"(1) Tbe defendast excepts to the following
Incident of his honor, the presiding Judge, at
the trial:
"Question by i£t. J. K. Owens In cross-u-
amlnatloo of X W. Page: 'Q. That Is 200 or
250, and your idea at that time was It was
ISO? A. I do not recall exactly ; It was fur-
tber than 200 yards.*
"The Court: 'His statement Is more favor-
able to yon than it was befwe Isnt Itf (ad-
dressing Mr. Owens).
"Mr. Owens: Tea, sir.'
"The defendant reapectftUly aabmlts that
this was a dlseuMdm of the eTldsnoe hy the
oonrt In the ^asenee of the Jury, and an
presslon of oplnlott that tUa witness was
giving more fiivorable testimony at tbSa time
than he had on a former occasion, and we
submit was srrra."
Thla was defendant's witness. Tbe plain-
tiff's attorn^ was laying the foundation for
a contradiction. In effect his honor sakl,
"Thve Is no ose f or thl% as the wttness la
giving testlnKmy more fBTorable to you than
he did before." Tbe remark was really a
protection to the defendant's witness, and
was a qneetloB to counsel, snd not a charge
to the Jury. This excwtion Is overruled.
[2] The other exceptions are not separatdj
consldwed In argument and will not be om-
sldered separately here. They are as follows:
"(^ Tbe defendant excepts to the following
charge of bis honor, the presiding Judge:
'Now, gentlemen, wbether one Is a licensee,
or whether one Is a treq)as8er, makes very
little difference under crataln drcomstances,'
and also by tbe following statement, referring
back to this statement, to wit: 'Now, If you
see a person in a line of danger, whether
that person be a licensee, or whether that
person be a trespasser, from the moment you
discover that they are In a position of peril,
then the law says you are due them care,
due care, not to Injure them, the moment It
Is discovered that they are in a position of
peril' — ^the error being that he had previously
told the Jury that in this case and In cases
like this there Is practically no difference be-
tween a licensee and a trespasser from the
standpoint of the defendant; tbe same being
error of law, in that a higher degree of care
Is required under the drcumstancea not to
Injure a Uoensee than Is required as to a
trespass^.
"(3) In laying down tbe rule in bis dbarge
that a trespasser is entitled to due care In-
stead of being entitled merely to exemption
from willfulness. In the following language:
'It is for the Jury to say whether or not there
la anything in their condition or situation or
■VarotbsrsasassSsSMMtairto and ssoUob NtJUBnRl^^^~i^ a Am.Di^ Kay-'Nbi firtM ftB^MMa^l C
8T8
76 BOUTHBASTSBN BEPOBTBB
(8.G.
•arroundings tbat ought to apprise the en-
gineer or other parties in charge of the train
that they are not In possession of their facul-
ties, or have not absolute control over their
movements, and if they appear disabled or
otherwise in a condition where they are not
prepared to take care of themselves, then the
law says It is the duty of those in charge of
the train of cars to nse due care to prevent
Injuring them. And right here, gentlemen,
is a very Important and material fact to con-
sider In this case. Was the plaintiff in a posi-
tion of peril?'
"(4) He further erred in making the follow-
ing charge: 'By the eserdse of ordinary care
and prudence after having discovered the
presence of the plaintiff npon the railroad
track, if the plaintiff was upon the track, was
there anything in the sarroundlng circum-
stances that ought to have a^rlaed those in
(^arge of tbla train that this par^ was In a
positloD of peril, or was disabled? If yon
believe those to be the facts, and If so, were
they apprised In time to stop the train and
prevent the injnryT If so, tt was their duty
to nse every reasonable facility at their
hands so to do' — ^In that he required a higher
degree of can^ to wit, the nse of every
reasonable facility at their hands to avoid in-
juring the plaintiff, and this uudOT a charge
that made no difference between a licensee
and a trespasser, and thereby allowing the
jury to base their verdict against the defend-
ant, not on failure to use ordinary care, but
on failure to use every reasonable facility or
means to avoid Injury to the plaintiff; and
he erred In laying down this rule, especially
where he embraced a trespasser and a licen-
see under the same rule.
"(5) The court erred, It Is respectfully sub-
liiltted, In charging the Jury as follows: 'But,
If gentlemen of the Jury, they discovered the
presence of these people upon the track, and If
they saw after that discovery, or could have
seen by the exercise of ordinary care, that they
did not recognize or obey the signals, then it
is for you to say Just what the distance was.
Could they have stopped the train by the ex-
ercise of ordinary care? If so, and they did
not do It, and the girl was Injured, then the
railroad company would be respon- (sic) In
order to stop the train and avoid the injury,
if they did everything after discovering the
perils of the party, the dangerous position,
everything that a reasonable party could do
in order to stop the train and avoid the in-
Jury; if they did that, then they are not
responsible. Now, that is a fact for you to
consider, and in considering it you will take
into consideration all of the testimony. You
have heard it ; frou were there, and you have
heard the various witnesses testify as to
what they did. You will consider how mnch
time must have elapsed from the time the
party was placed in a position of peril. If
you believe she was so placed, until the en-
gine ran .over her foot, and it ia undisputed
that the engine did run over her foot An-
swer whether or not the railroad company
did everything that a reasonable person conld
do under the circumstances after discover-
ing the peril of the party, in order to stop
the train'— the error being that he again
placed In two or three paragraphs, and em-
phasized It In the last paragraph, the burden
of showing that the defendant did everything
that a reasonable person could do under
the circumstances, after discovering the peril
of the party, whether the party was a tres-
passer or licensee; and we submit it was
error in applying this rule to all classes of
persons on a railroad track, and especially
under the evidence in this case.
"(6) The court erred, it Is respectfully sub-
mitted, In charging the Jury as follows: 'As-
suming, for the purpose of inquiry, that this
girl was guilty of contributory negligence in
going on the track in the first instance, a»
sumlng that, yet If she became In a position
of peril and danger, and the railroad com-
pany saw it In time to have avoided injur-
ing her, and didn't use due care after It
discovered her position of peril, and that was
the sole cause of her injury, then the plain-
tiff's prior negligence. If she were gnllty of
negligence, would not defeat a recovery, be-
cause under the circumstances that negli-
gence would not be a proximate cause of the
injury. Ordinarily the proximate cause ia a
question of fact for the Jury, but under the
facts as I stated to you, I charge you that,
if notwithstanding her negligence, the rail-
road company could have avoided the injury
to her by the exercise of due care, after they
discovered her peril, if she were in peril,
and did not exercise that due care after they
discovered that she negligently put herself
in that position, if she did so she would nev-
ertheless be entitled to recover at your
hands' — the error being that he told them
that if by the exercise of due care, although
the plaintiff was guilty of contributory neg-
ligence, the railroad could have avoided the
injury, then the contributory negligence was
not the proximate cause of the injury; the
error being, first, in undertaking to say that
the negligence which brought about the In-
Jury was not a proximate cause, thereby tak-
ing that issue from the jury; and, second,
requiring the railroad company to exercise
due care when there w^s no question but that
she was nothing but a licensee, and the rail-
road company was ordinarily required to
exercise ordinary care, and it she were &
trespasser, the railroad company was only
required to refrain from willfulness in in-
juring her. It is respectfully submitted that
error in all these particulars was committed
by the said charge."
In the Carter Case Mr. Justice Watts,
then circuit judge, changed the jury fully aa
strongly as did Special Judge McCuUonsh in
this case. Appellant's eighth exception waa
as follows (93 S. C. pages 334, 336, E.
963): Becaused^^%9i£r«^Ogiterg-
8.0.)
LATIMER T. ANDERSON OOtJNTY
879
Ing tbe Jnry as follows: 'Now, I charge you
fnrtber, aa a matter of law, tbat a railroad
company In mnnlng Its cars over Its track
has a right to assume, In the absence of any-
thing to the contrary, or any proof to tbe
contrary, that when a person Is walking on
Its track, and they see or hear the approach
of a train, or If they glje the necessary sig-
nals, and everything of that sort, they have
a right to assume tbat the party walking on
the track will get off tbe track and get oat
of tbe way of tbe approaching train. At the
same time the law reqolree the engineer, tbe
party in charge of tbe train, tbe locomotive
running It, to observe doe care and due pre-
caution not to Inflict Injury to any person
that is on the track. They must obsure due
care and due precaution, exercise tbe ordi-
nary care, do what an ordinarily prudent per-
son would do, under similar clrcnmstances,
not to Inflict any Injury on any person on
the track, and give the necessary signals, and
tbey don't get off, and there is any reasonable
way whereby be can stop the train and pre-
vent tbe Injury, and he doesn't observe due
care and due precaution, bat Is careless and
negUgmt, and doesn't observe doe care and
due precaution, and injures any one under
drcumstances of tbat sort, and the party In-
jured doesn't, by any act of carelesaness and
negl^coice on Us part, in any manner om-
trlbute to tiie direct and proztmate cause <tf
bla Injary, then the part7 Injured, or the
party suing for Um, would have a xi^t to
recover such actual damages as sustained,
proportionate to tbe injury suatalDed' — tbe
errOT bdng that such charge was confusing
to tike jury. Inasmuch at hia honor felled
to distinguish betwem- the duty owed a
licensee and a trespasser, and ditis diarged
tbe jury that, emi If, nnder the facts, the
jury should find that idalntUTs Intestate was
a trespasser, still the defendant company
would be liable If It felled to observe due
care and due precoutlbn, or felled to exercise
ordinary care; whereas Qie law Is tbat If
he was a trespasser tbe mere failure to ob-
serve due care or ordinary care would not
render the defendant liable." This excep-
tion was overruled. He charged that, after
seeing a person in a perilous position, those
who handle dangerous machinery must ex-
ercise due care, and If there is any reaton-
alfle way whereby they can stop the train
-and prevent tbe injury, they are bound to do
it Tbat charge was sustained.
This Is a very much stronger case for re-
Bpondmt than the Carter Casfc In tbat case
the person injured was an adult In this
case there were two diildren, the oldest
atwut 14, and tbe Injured about 9. There
was only an engine and tender, with no al-
leged reason to hurry. Those In charge of
the train saw these diildren In a perlloua
position, and made no effort to stop until
It was too late to avoid Injury. In the Garter
Case, Hr. Justice Watts said *lf tbey see
any one" In a position of danger on the track,
they are twund to use any reasonable way
to prevent Injury, l^ere was no charge on
tbe facts. His honor said "if you find."
These exceptions are overruled. Tbe judg-
ment appealed from Is aflSrmed.
GARY, a J., and WATTS and HYDRIOK,
JJ., concur.
(86 S. G. 187)
LATIMER v. ANDERSON COUNTY.
(Suprune Court of South Canllna. July 11,
1913.)
1. Highways ({ 213*) — Liabilitt tob IS-
JUEIE9 TO PbBSONS OH HIGHWAY— ACTIONS
— JOBY Question.
In an action a|;ainat a county for injnries
received by the plaintiff owing to the presence
of a rope stretched across the bigbway, tbe
question of the DegUgence of defendanrs offi-
cers held for tbe jnry.
[Bd. Note.— For other caseB, see Highways,
Cent Dig. SS 535-537; DecTbig. | 213.*]
2. Tbial (I 194*)— Ikstbuotzons— iNsrauc-
noNS ON Facts.
A charge in an action against a county
for injnries suffered by plaintiff, who was hurt
while riding in an autotaobile owing to tbe
presence of a rope stretched across the high-
way by the county officers, that, if the county
officers placed tbe rope across the highway, the
jury should ask themselves whether a person
of ordinary prudence wonld have so placed It
without a warning or a light, is not a charge
on the facts.
' [Ed. Note.— For other cases, see Trial, Gent
D^ g ^"^19^^ -IdlMll, 446-464, 4S6-4«e;
3. Afpbai, Ann Bbbob (I 216*)— Pbbbbitta-
TioN 09 Gbockds or kevibw in Coubt
Bblow— Nbcessitt.
A defendant cannot complain tbat Uie
charge did not present Us theory of defense
where no special charge was requested btSow.
tEd. Note.— For other cases, see Appeal and
Error, Dec Dig. { 216.*]
4. Highways (| 214*)— Instbuctioks— Ap-
plicability TO Evidence.
In a personal injnry action arainst a
county by a fdrl who with her mouier and
brother was riding In an automobile when the
injury, which was caused by a rope stretched
across the highway, occurred, mere evidence
that plBlntitC was having a good time when
hurt 18 no basis for a charge on the question
of whether she was talking to the driver of the
car, and distracting bis attention or acQuiescing
in his negligent driving.
[Ed. Note.— For other cases, see Highways,
Cent Dig. SI 538-640; Dec Dig. | 214.*]
6. NBOLIGEnCB (S 117*) — Contbibutobt
Nbouobncb— Plea DiNO.
Contributory neglUcence must be lAeaded.
[Bd. Notew— For oQitte cMei> >M Nwligenoe.
Cent Dig. K 195-107; Dec Dig. | W.*}^
6. NiGLiGBNOE (i 98*) — Liabujit fob' In-
JUBIES TO PeBSONS ON ROAD.
Under Civ. Code 1912, { 1972, a county Is
liable for injnries to travelers npon tbe high-
way caused by its negligence, unless plaintiff's
own aot caused the Iiqury or contributed there-
to; consequently, where plaintiff was riding In
an automobile when injured by an olMtmctlon
•Wm sttar msm set sssse topte aad Mctkn NUHBBR la Dla. a Am. Dig. K«r>N«. SwlM A Bsp'r
Digitized by vIj*
7S SOUTHEQASTBItN RBPORTBR
In tb« hishwar. tiie oeglicenoe of the driver Is
not Impntable to her.
[Ed. Note.— For other casei, lee N^eliKence*
Cent. Dig. H 147-lSO; DeeTbiK. | 08 •]
T. HlGBWAn (I 214^lNJURn8 ON HlOB-
WAT— MKASnSE OP LlABILlTT.
The liability of a county under GIv. Code
1912, I 1972, decIarlnK that any person who
■hall be Injured .by a defect in a highway may
recover, li in effect the same as that of a city,
and consequently in such an action It is not
improper for tht court to so charge the jxirj.
[Ed. Note.--For other cases, see HlBhways,
Cent. Dig. ii 638-640; Dec. Dig. { 214."]
Appeal from Common Pleaa Circuit Court
of Anderson County ; S. W. O. SMpp. Judge.
Action by Miss Virginia Latimer, a minor,
by Mrs. Marlon Klrkpatrlck, her guardian
ad litem, against Anderson County. From a
Judgment for plaintiff, dafendant appeals.
Affirmed.
Bieazeole A Peumant of AnAenaOt Cor ap*
pellant Bonham, WatUua' & Allen, of Axh
denna, tax roqiondent.
FBASnB, J. Xlila was an action for dam-
ages. The following statement aivean in
the case:
"The plalatlflt by her guardian ad litem,
brings this actlcm against tbe defendant for
dama^ for personarinJuleB caused by the
antomoMle In which she was riding running
Into a nve sbictched across the highway, al-
leging negl^ence of the agents of Uie county
in placing Bald* rope across said highway at
a dark place in the woods, and no light or
sign nor notice of any sort was posted to
show it was there ; and it was stretdked at
such a height as not easily to be seoi, said
repe was being used tn the repair of the
highway, and was far removed from the
place wher^ the road hands were at work,
ttat ao pwson would look for a rope acroes
the road- at sndi place. That she was not
negligent nor did she ,in any way contribute
to the injuries recelred. The defendant ad-
mitted Its corporate capacity, and its duty to
keep the roads in repair, and denied all the
auctions of the complaint.
"On the trial of the case, before Judge
Shipp and a Jnry, at February term, 1913, the
defendant, at the conclusion of plalntttrs
testimony, moved for a nonsoit, which was
overruled. The Jury found for the plaintiff
91,000 danuges. Motion for new trial was
made and rexnsed. Judgment was entered
upon the verdUt. The defendant gave notice
in due time of Intention to appeal to this
conrt, and now anieals upon said Judgment
upon the case and exceptions following,
"(Dtfendan^s attorneys admit that on tri*
al of the case they did not contend that the
negligence of the driver of the car wad im-
putable to the plaintiff.)"
.The exceptions are as foliowS':
f1] Oxceptlon 1: "That his honor, -the pre*
ddlng Judge, erred tn overruling the defend-
aiit's mptlon for nonsuit and made on the.
grounds that the testimony of plaintiff fall*
ed to prove that the injuries complained of
were through the negligent repair of the high-
way or that the rope acroes tbe road was
being used in repair of tbe highway, or that
said injuries were caused by the negligence ot
the defendant; and he should have therefore
granted the said motion because the plain-
tiff had failed to prove the necessary facta
to make the defendant Uable under the pro-
visions of section lfi72, voL 1, of Civil Code."
In the recent case of Stone v. Florence, 94
S. C. 877, 76 3. EL 24, we have: "To keep a
street In repair means to keep It In such
physical condition that It will be reasonably
safe for street purposes. It Is not enough
that Its surface should be safe; a street la
not In r^mlr when poles or wires or other
structures are so placed in or over it as to
be dang^us to those making a propw use
of the street" See other cases there cited.
Tbe complaint is made that his honor said
that the statute governing rity and county is
tbe samew So tar as it applies to this case
that is not error. There was evidence that
the plaintiff was riding along the public road
at the rate of 12 miles an hour, less than Is
permitted by the statate, and that the driver
of the car was looking ahead of him at the
road^ and did not see the rope until be
struck IL There was evidence that the rope
was pnt tliere by one Cochran, who was in
charge of the work for tbe county on that
road. There was no evidence that the driver
was looking, and did not see. Now, as to
whether it was negligence to tie a rope across
the road without any sign, other than the
rope, to Indicate its presence, particularly
where there is testimony to show that the
place was dark, me a question for the Jnry,
and bis honor committed no error in refus-
ing the nonsnit. This exception la overruled.
[2] Exception 2 : "That bis honor erred In
charging the jury as follows : 'Now. if you
come to the conclusion that the county offi-
cers engaged in the re];)air of the public high-
way placed the rope In question In this case
across tbe pauuc road, you ask yourselves
the question. Did they place it there in a
way in whl<di a person of ordinary prudence
would have placed it there under the same
cUrcnmstances? Did they place it at such
a height that a person of ordinary prud«ice
would have placed it? IMd they i^ce it in
such a place as would .be suflSctent to warn
people who were l^tima^y using the hlg^
way, or would a person of ordinary pmdoice
have . placed something more than a rope
there? You ask yourselves tbe qnestloii,
Wss tbe rope itself sufficient warning for tbe
travele» who were legitimately using the
highway ? Or would a person of ordinary pni-
ideuce have done something more than place
the rope there? Would they have placed a
warning there to warn the people or woufd
they -bavs-hi)ng a light ^wre. or would they
•Tor otbw. e«i^ fM.MUD* topic. ud^McUop NUHBBja in Dm. Dlg..l^ Aff, J>fav,K«7-Np..8w:}«»« H*9'.t.iJB^9xm
Digitized by VjOOglC
8.0)
ULTnCER T. l.NIkXR80N COOirFT
881
baTe AoM awtUns?' IHd th« oonntr ofllctn
manage that rope In tile way that a parson
of ordinary prodence and care woirid be ex-
pected to do onder am larae drcniBataucea?
Now that Is the test in CUs caaa Now, it
the county did not do that, did not do what
a person of ordinary prudence would have
done under titw arcatnatanoes, why then I
cbaq^e yon that would be negligence;.' The
error being that said charge was on facts
and in violation of section 26, article S, of
tbe Constitntion of the state, in that it was
a statement In interrogative form of the
facta lu issue in the case, and contained a
strong intimation to tbe Jury as to his opln-
ton of the facts. And, farther that It was a
statement of what facts constituted n^ll-
ganee, in that it was a statement that, If the
county did not do these things which, he
had a^ted the Jnry to Inquire If they had
dome, then that would be negUgenoe. And
tbsre was further error in said chaise, In
that it assumed that the plaintiff was legltl-
mat^ using the highway, which the defend-
ant had denied." This <diatge was not on
tha facts, as one sentence will show : "Now,
If yon craie to the conclusion that the county
ol&cvn engaged In the repair of the public
highway placed Oie rope In Question In this
case across tbe public road, you ask yonr-
■dtvea the queattm did they plaee it there In
a way In which a person of ordlnair pru-
dence would hava placed it there undor Oia
same dxcuawtances." That is not a cbaras
on the facts. It simply says that It is negll-
guoa to do anything aegUgoitly; that la all.
That is a propositim <tf law, and not a atato-
ment of fact TUa exception ia onwrnded.
Exceptions 8 and 4: *Yrhat his Iwmor ened
In rharglng the jury aa loUaws: 'Now I
diarge you that, where a perscni la a passen-
ger In a ^rate vehicle or automobUeb that
the nsgllgoice of the driver of the aatonKri>Ua
cannot be imputed to the passenger unless ttie
passengar had aome right to manage or con^
trol the driver, unless some relation of mas-
ter and servant existed between tbem or
some relation of prindpal and agent, unlesa
the driver, was tiie agent of the passenger,
that Uiere was r^atlon of maater and serr-
ant^ that is, unless the passmger had em-
ployed the driver as his servant, aa his
agent Bo, unless there is testimony in this
case showing that, Virginia Latimer had the
right to control the operation of ttu machine
and give directions about the operatioa and
control of it, why she cannot be held liable,
and It would not affect her. case If you
should find that the driw was. ncvUgent'
The error being that by aaid charge his hon-
or eliminated from 4he cfmdderatlon- of the
jury the'auestlan whether t^e plaintiff, in
any way brou^t about muSh injuries by her
own act* as tbe defendant contended she
did by laughing, talking, and wtertainlng
the drlv^, and attracting his attention from
his business of driving the machine, and,
farther, that it did not contain the correct
78SJI-B6
law aa to taqmted negligence by not tnchid-
tog In said charge the exception of persona
engaged In a common enterprise, as said ex-
ception was pertinent to tbe case and appli-
cable to tbe focCs as contended for by the
defendant"
"(4) That his honor «rred In charging tbe
Jury as Hollows: *If the county was not neg-
ligoit the county would not be responsible at
all. Or If tbe county was n^llgent, and
notwlQistandlng that fiact the acddeut hap-
pened entirely by the negligence of the driv-
er, the county would not be responslbla But
if the county was negligent and the negli-
gence of the county concurred and combined
with tlie neiligenoe of the driver, why then
tb.9 county would be responsible. If the
county was negligent and tbe negligence of
the county, in connection with the negligence
of tbe driver, if tbe driver was n^Ugent,
combined as tbe proximate cause M tike in-
Jury of yii^lnla, If she was injured, why,
A^i^tnta could recover.* The error t>eing
that It eliminated from the coasldwation of
tbe Jury tbe question of tlie negligence of the
plaintiff In attracting the attention of the
driver from loc^ng out tor otwtaeles; and.
farther, that said prt^^odtlon of law was not
api^licaNe under section 1972 of 1 ClvU Oode,
and made tbe county Uable fbr the injur-
ies, whetho' OF not Its n^Ugenoe was the
iwoxlmate cause therecrf. And, farther. It
eliminated tbe questtoa as to whether the
plaintiff knew and acquiesced in the viola-
tion of law in mnnlng the antomoUIe at an
mlawfal xata of speed; fovtftw becanss said
proposition of law warn not apidicable to a
case for damages under section 1972 of Civil
Oode, vol 1, when tke Injur was due in
part to tike negUcwiea af the driver, not be-
canse the negligeBOs of the driver Is Imputed
to the passenger, but because the obstruc-
tion was not the sole caaae of the Injury."
These exceptions are ovenliled-
[I] It doet not iQipear from Oie case that
there was a rtquest to cbaqpe aa to the Quea-
tton raised as to the re«H»udMllty for each
other's conduct among those engaged In a
common aterprlseb It cannot be raised hen
for the first time.
[4] These Is no evideBce that Miss Tlxsln-
la, the plaintiff, waa talking to t2ie driver, or
that she waa talking at all, even though she
admits Uut she was bavlnc a good tbne.
There wfu evldenoe that she waa not talking
to the drlrer, and Chegce Is no enddenoe that
she was. Siuely a .pwson may have a good
time and not talk, even though It is a lady.
It la true that there was a cenfllct at testl*
mony as to what the driver was d<^g, bat
there waa no. evldenoe th«t lUss yii^la was
Calking ■ to him or interterlag with him In
any way. or had any right to Interfere with
the management of the automobU& Her
mother was there and she was undei- her
control; and, If the automobile bad been
ruoning too fast it was not the province, uor
882
78 SODTHESASnSKN EEPOBTEB
(S.C
rect the moTements of her mother and older
brother.
[S] The doctrine which seems to be main-
tained by the appellant Is that the plaintiff
«onld not recover If the driver was n^Ugent,
and his DegllgeDce contributed to the Injury.
That Is the doctrine of contributory negli-
gence, and contrlbntory negligence Is an af-
flrmatlre defense, which must be pleaded.
It was not pleaded here.
[6] The contention by the appellant that
the Injnry must be the result sol^y of the
n^Ugence of the county cannot be maintain-
ed with success, because, where there is an
Injury which arises from the defect in the
highway, the county Is liable, unless it ap-
pear (1) that the Injury was brought about by
the plaintiff's own act, or <2) that he negli-
gently contributed thereto. See Cooper v.
Richland County. 76 S. C. 206, 66 S. E. 058,
121 Am. St Rep. &46. These exceptions are
overruled.
Exception 6 : "That his honor, after read-
ing the statute as to the unlawful speed of
automobiles, erred in adding the following:
'Now that is the law about the driver. But
take now In connection with what I told you
in regard to a passenger in an antomobUe
Is not Imputable to a passenger in the auto-
mobile, unless the passenger had the right to
control, unless the relation of master and
servant existed between them, or the rela-
tion of principal and agent existed.' Bnt
should have diarged instead of the above:
That, If the antomobile In whldi the plaintiff
waa riding was nmiilnK at an unlawful rate
of speed, it was conclusive of negligence, and
the i^alnttff could not recover because it
was at her own peril that she was riding In
an antomobile running at an unlawful speed,
«apeclall7 if she aoqulesoed ther^ And, fur-
ther, the charge Intimated to the jury that
« passengw In an automobile running at an
unlawful rate of qpeed could not be n^ll-
g»t, and Oiat any negligence in that partic-
ular could only be attributed to the driver
of the machine." There was no enw in the
Judge's chai^. If the appellant deedred to
iwve the durge as he saya it ought to have
been charged, then It was his duty to have
«o requested. This exception is overruled.
Exception 6: "That his honor erred in
charging the Jury that the negligence of the
driver could not be Imputed to a passenger
AS quoted in exception 3 and S above, when
he should have charged Instead: 'Passenger
in an automobile cannot recover for personal
Injuries caused from running Into an ob-
etructlon across a highway If the negligence
was due In part to the negligence of the driv-
er, not because the negligence of the driver
is imputed to the passenger, but because the
obstruction was not the sole cause of tbe.
injury.' And further he should have diarged
that : 'A passenger in an antomobile running
at an unusual rate of apeeA on a public hlgb-
way and acquiesdr^ in said unlawfulness
and consenting thereto cannot claim to be
absolutely free from contributory n^ligence
or that she did not in any way bring aboat
the Injury by her own act' " What is said
in r^rard to exception 6 applies here If
app^ant desired to have the law chained as
he says it ought to have been diarged, he
ought to have so requested. This exo^tlui
Is overruled.
[7] Exception 7: "That his honor erred In,
chai^Elng the jury as follows : 'Or as stated
In a particular case — a case I refer to here —
the case of Irvine v. Town of Greoiwood
[89 S. C. 611, 72 S. B. 228, 36 L. R. A. (N.
S.) 363]. And What they soy about the
duty of a town or a dty to keep its streets
up would be equally true in regard to the
duty of a county to keep up public roods, be-
cause the statutes are veiy suillar (reading
to the jury from said decision). Bat we ore
unable to give to the duly of keeping the
streets in repair the narrow meaning con-
tended tor by the respondent To keq) a
street In r^mlr means to keep It In mvik
physical condition that it will be reaamably
safe for street purposes. It is not eaoa^
that its surfaoe shall lie ntn. A street is
not in repair when ptfles or wires or other
structures are so placed in or ovw It as to
be dangerous to those making a proper use
of the street • • ** The error bBii«
Uiat the case of Irvine r. Qreoiwood was
against a titr and tUa ia a case against a
county; t&e statutes making dtles and
towns and counties liable tos damages are
not 'very similar.' The statute as to towns
and dtles making munidpallty liable for
the mismanagement of anything under their
control, while the statute as to counties
makes them liable only for damages through
a defect in a highway or the negligent repair
of a highway or mismanagement In the neg-
ligent repair of a h^hway; and the said
charge waa equivalent to saying to the jury
that, if a town or city would have been liable
under the same facts, then the county is lia-
ble in this case." This exception Is over-
ruled.
His honor was right when he said, in so
far as affects this case, the statutes are
similar. This is not a suit for mismanage-
ment of "something nnder control of the
county," but for a defect in the highway.
The judgment appealed from is affirmed.
GART, C. J., and WATTS, J, concur. HY-
DRICE, J., concurs In result
Digitized by Google '
8.CJ
TAIXOB T. STRAUSS
883
(96 S. a 295)
TATLOB et aL T. STRAUSS et aU
(Sapreme Coart of Sonth Carolina. Jaii« 10,
1913. On Petition for Rehcuinf ,
July 26, 1913.)
1. Taxation (| 805*) — Sale ot Laho vob
Nonpayment— Estates which may bk
Sold— Remaindkb.
OiT. Code 1012. i lis, proviainff tbat no
action shall be brought to recover poesea-
Mon of land sold for Qonpayment of taxes
unless brought within one year from the date
of sale, does not apply to an action by remain-
dermen to recover land sold for taxes assessed
linst the life tenant, since Civ. Code 1912,
2SS, 290. 393. requiring the property to
listed in the name of the life tenant and
making the person to whom it is assessed per-
sonally tiable for the taxes, do not author-
ize the assessment of the property of the r»>
maindermen or the sale of their interests.
[Ed. Note.— For other cases, see Taxation,
Cent Dig. SI 1593-1597; Dec. Dig. { 805.*]
2. Taxation (| 617*) — Sale of Land fob
nonpatkent— ibtebe8t8 of ownbbs not
Absessbd.
The statutes make the amount of taxes
due a debt against the person listing the prop-
erty, and only the property of those whose
names are on the tax list are subject to sale
for the nonpayment of taxes.
[E^. Note. — For other cases, see Taxation,
Cent Dig. SI 1273, 1278; Dec. Dig. i 617.*]
Appeal from Commoo Pleas Clrcnlt Gonrt
(rf Sumter County; Tbos. H. Spain, Judge.
"To be officially reported."
Action by Maud O. Taylor and others
against Isaac Strauss and another. Judg-
ment for the defendants, and tbe sdalndfTs
appeal. Reversed and remanded.
The uceptlons of the plaintiffs are as fol-
lows:
"The plaintiffs herein except to the rulings
of the presiding Judge and Ms order of non-
suit In the above-stated case as fbllows:
"First Because bis honor erred In holding
tbat section of the reWsed statutes of 1803
passed in A. D. 18— was of such effect as
that a sale of the land In this state for taxes
and a deed to the purchaser made under
such sale carried with It not only all right,
title, and Interest of a life tenant but also
all the right, title, and Interest of any remain-
dermen baring a right to the title and pos-
session of the property In question upon the
termination of the life estate; the proi>erty
In this case having been sold for taxes as-
sessed against and in the name of the life
tenant
"Second. Because his honor erred In hold-
ing a ruling that the statute of laws of this
state were so altered and amended and sub-
seQuent to the decision of the Supreme Court
on tlie point Involved as announced In the
case of Shell against Duncan, reiwrted In
volume 31, p. 547, of the South Carolina Re-
ports, tbat under the sale of the land for
taxes In this case assessed against the life
tenant in 1895 such tax sale carrlefl with it to
the purchaser not only all right, title, and In-
terest in the property of the life tenant but
alBO ttie rights of the remaindermen In the
land in question, some of whom were not
bom and could not be expected to pay taxes
at tbat ttma
'TTblrd. Because bis honor erred In tbat
he sbould have held that a common source
of title having been shown In this case In
tbat both that claimed by the plaintiffs and
that claimed by the defendants were derived
from William Keels, who divided the tract of
land in question to his son J. L. Keels for
life and after the death of J. L. Keels to
the children of J. L. Keels, the fact being
disclosed that the defendant's title came
through a tax sale of said land assessed
against the defaulting taxpayer J. U Keels,
who owned only a life interest In Bald land,
and, having died since said sale, the remain-
dmnen under said will having now the bet-
ter title to the land according to the proof,
and that the Issue shoold have been sub-
mitted to the Jury to determine who has
the better title from such common source-
"Fourth. Because his honor should have
held tbat section 860 of the Revised Statutes
of 1893, limiting the right to recover against
a tax title, must necessarily be construed
with the previous sections of said statute
wblcb require taxes to be assessed In the
name of the true owner, and tba^fore per-
sons referred to in section 360 could only be
such persons against whom the taxes were
assessed or those claiming by, through, or
under them.
"Fifth. Because bis honor erred in granting
the motion for nonsuit in this case in that
such application of the statutes referred to
would opoi the door to fraud and permit
any life tenant to defeat the title of remain-
dermen by failure on his part to do his duty
in paying taxes on the land assessed against
him and bis estate; that such was not the
intention of the L^lslature and such !■
not the meaning of the statute."
A. B. Stnckey, of Sumter, for appellaats.
Lee ft M<dae, Hannon D. Molse, and John H.
Clifton, all of Sumter, for reQwndents.
GARY, 0. J. This l8 an action to recover
posBesslon of the tract of land described In
the complaint, and the appeal Is ftom an or-
der of nonsuit
The plaintiffs, some of whom are intants
under the age of 21 years, claim title to the
land In dispute under and by virtue of the
last will and testament of William Keels,
deceased, who devised It to J. L. Keels, their
father, tor and during the term of his nat-
ural life, and after his death to be equally
divided between bis children. The defend-
ants denied the plaintiffs' title and set up
the following defenses^ (1) That neither the
plaintiffs, their ancestor, predecessor, or
grantor, were seised and possessed of the
Premises within ten years next before the
CQtomencement of the action; (2) that the
•Far otber eassa m« subs topia ud
bmUob MOHBBK ^^^X^cTdU. * Am. Dls, Ksr-Ho. Beitas ^^tep'i IdAsxm
Digitized by V^OOglC
884
78 80UTEIBA8TBBN BDPOBTEB
(s.a
<!aQ8e of action atated lb fbe complaint a**
croed more tban ten years next before the
commenceioent of tbe action and la therefore
barred by the statute of Umltatlona; and (3)
that the cause of a<Alon accrued more Qian
two years before the cranmencement of the
action, and the plaintiffs are barred mider
and by virtue of the provisions of section 402,
Oode of Laws 1912.
In 1895 the land was sold to pay the taxes
which had been assessed against J. L. Keels
and was purchased by tbe defendant Isaac
Strauss, to whom a deed of conveyance was
made, under which he entered Into posses-
sion, and which was duly recorded. J. L.
Keels died In 1906, and this action was com-
menced on the 2d day of March, 1911.
At tiie close of the plaintiffs' testimony,
the defendants attorneys made a motion for
a nonsuit on several grounds, but all were
overruled except those based on section 115.
Oode of Laws 1912, which is as follows: "In
all cases of sale, the sberflTs deed of con-
veyance, whether executed to a private per-
son, a corporation, or to tbe commissioners
of the rinklng fnnd, shall be held and taken
as prima fade evidence of good title In the
holder, and that all proceedings have been
regular and all requirements of the law have
heea compiled with. No action for the recov-
«ry of land sold by the sheriff under the pro-
visions of tbls acA, or for the recovery of tbe
fMsaesalon thereof, shall be maintained unless
'brought wltbln one year from tibo date of
«ale, and unless It be sustained by condhslTe
«vKleiM!e from the tax dupllcatea, or from a
tax receipt signed by county treasurer, or by
« certificate signed by the Secretary of State,
or by bis agent, showing that all of the taxes
4Ud levies for which the land was sold, with
lite costs that may have accrnad thereon,
w«» paid prior to the sale, at the protwr
tbna, and to the properly antboitaed of-
-fldals." Plaintiffs appMled upon exceptions,
wUdi will be reported.
[1] The main question presented bj the ex-
ceptions la whether section 116, Code of L«mi
1912, iM applicable to this case.
Section 288, Code ol Laws W12t prarldes
that "every person shall be llabls to par
taxes and asseaaments, on tbe real estate of
wblch be or she may stand seised in fe^ or
for lUA by courtesy. In dower, as bnrttand
in right of his wife, or may have tiie care of
as guardian, executor, trustee or committeew**
Section 290, Code of Laws 1912^ is as fol-
^ws: "All taxea, assessments and jwnaltles
legally assessed shaU be oonildflred «nd bdd
■as a debt payable to the state Iqr a puty
against whom tbe same Aall be diarged;
And such taxest assessments and penaltiea
shall be a first Uen In all cases whatsoever
vjfoa the property taxed ; * * * and the
county treasurer may oiforoe tbe said Hea
by execution against fbe said properly; or,
it It cannot be levied on, be may proceed by
action at law against tbe person holding said
Iffoperty*"
Section 297, Code of Laws 1912, contains
the following provision: "All persons require
ed by law to list proper^ for others, shall
list it s^rately from their own, and in
the name of the owner thereof ; but shall be
personally responsible for the taxes thereon
for the year in which they list it, and may
retain so much thereof, or the proceeds
the sale thereof, in their own hands, as will
be sufficient to pay such taxes: Provided,
that all lands shall be listed and assessed as
tbe property of tbe person or persons having
the legal title to, and the right of possession
of, the land at the time of listing and assess-
ment, and in case of persons having possession
of lands for life, in the name of the life tan-
ant"
Section 393, Code of Laws 1912, is as fol-
lows: "The auditor shall make out, in a book
to be prepared for that puriMse, In such man-
ner as tbe comptroller general shall pre-
scribe, a complete list or schedule of all tax-
able property in his county, and the value
thereof as equalized, so arranged as that
each separate parcel of real property In each
district, « * • shall be contained in a
line or lines opposite the names of the own-
ers, arranged in numerical or alphabetical
order, • * * and the value of all p«son-
al property shall be set down opposite the
names of the owners thereof retoiectlvely;
and if listed by any other person for and in
the name of the owner, the name of such
person, and the character In which be acted*
shall also be stated in such list"
The deed of the sheriff to Isaac Strauss
contains tbe following recitals: "Whereaa,
it Is provided that immediately upon tbe ex-
piration of the time allowed by law, for the
payment of taxes in any year, the county
treasurer of each county shall Issue in the
name of the state a warrant or execution
against each defaulting taxpayer In his coun-
ty, directed to the sheriff or his lawful deputy,
requiring and commanding him to levy the
same by distress and sale of so mnch of the
taxpayer's estate, real or personal, or both,
as may be sufficient to satisfy the taxes,
state, school, county and special, of such de-
fauitert; and further that under and by
virtue of such warrant or execution tbe
sheriff sliall take exclusive possession of so
nradi of tbe defaulting taxpayer's estate,
real and personal, or both, as may be neces-
sary to raise a sum of mon^ named there-
in; and, whereas, there appears on the tax
duplicate of Sumter connty for the fiscal
year commendng November Ist, 1892, to '93
and 1893 to '94 certain real estate consist-
ing of one hundred and nine acrea of land
(under two executions), assessed In the name
of J, L. Jteelt, and valued at three hundred
and fifty dollars; the taxes, penalties and
assessments thereon amounting midier botb
executions to twenty-seven 81-100 dollars;
and whereas the above lumed /. L. Keeit,
having neglected to pay to tbe^conn^rtrMS-
nrer of Samtav cinaHdrzttt*y»o^ta^w
BATSON T. OBSaomLLX 4t K. RT. 00.
886
ita ud pcnaltlef as prescribed by
law, an exeoutton was Issued ttierefor as
directed by said act, on the 20tli day of April,
18M, asd'ietb di^y of Harcb, 1895, aod lodg-
ed with the Bberlfl of Somter county; and
whereas, at a sale made as directed by said
act. by Uie said sheriff, after lery under said
ezecBtlon and due notice, Isaac Strauss be-
came purchaser, and haTlng paid to the
sheriff the said ampont," etc; (ItaUcs added.)
The statutes provide that property In the
possession of a life tenant shall be listed for
taxation against him, but they do not con-
template that the taxes ^ould be assessed
against the property of the remaindermen.
It was no doubt supposed that the value of
the life estate would be sufBdent to satisfy
the taxes ; and the intention of the Legisla-
ture was to prevent Just such a case as the
one now under consideration, where the rights
of the remaindermen would otherwise be sac-
rificed, when there Is no necessity to resort
to their property.
[2] Another reason why there was error in
granting the nonsuit was because the proper-
ty of those alone whose names are on the
tax list Is subject to sale for nonpayment of
taxes. In the case of SmlHi v. Cox, 68 8. O.
1, 66 S. E. 222, one of the reasons why the
purchaser at the tax sale therMn mentioned
was not allowed to hold possession of the
property against the owner was because a
sale of land under a tax execution, issued cm
an assessment against one not the owner, la
void. A further reason ^y tbere was error
in granting the nonsuit was because the case
cranes within the following prlnclt>les an-
nounced in BlaA, Tax Titles (4th Ed.) p. 678
(quoted with approval by Mr. Justice Mc-
Gowan in Shell v. Duncan, 81 S. a M7, 10 S.
&. 830, 6 L. R. A. «21): "Id those stateswHeru
tax Is a cha^ upon the land alone, where
no resort In any evoit is contemplated against
the owner or his personal estate, and where
the proceeding is strictly In rem, the tax deed
will undoubtedly have the effect to deetnv
all prior Interests In the estate, whether vest-
ed or contingent, etc. In sudi case the tax
law Is notice to the whole world of Uie lia-
bility of the land for all public assesKnents.
etc. If one neglects his duty Id tills re-
spect, his title becomes ezUnct, and a Dew
aDd Independent tlUe becomes vested In the
pnrdiaser. freed from all prior Incombrancea,
and Indeed of every Interest carved out of
the old On the other lumd, where the
law rettulxes the land to be listed in Qie name
of the owner, provides fcnr a personal de-
mand ot the tax, and In case of default au-
Qioriaes the sdsore oC the bodr or goods ot
the delinquoit, In sattafactlon of the ta:^ and
in tennsp or upon a taSx construction of the
law. pramits a sale of the land only, when
all other remedies have been eiJtonsted, then
the sale and oonv^rance of the officer pass-
es only the Interest of him In whos^ name
It was listed, upon whom the deftiand was
made, who had notice of the proceedings^ uid
who alone caa be regirded fts legally delin-
quent In such case the title Is a derivative
one, and the tax purchaser can recover only
soeh interest as be may prove to have heui
vested In the defttuttar at tlia time et ttw
assessment," etc.
Under the statutes ot this state, aa we
have shown, the ataount doe for taxes Is a
debt against the person listing the property
for which he may be sued. rnrthemu>r«^ the
real estate cannot be sold until the personal
pnq;>erty has been etxhausted. ^teugh v.
MulUnaz. 84 & a 801, 18 B. B. 618.
It Is the Judgment of this court that the
Judgment of the drcnlt court be reversed,
and that the case be remanded to that conct
fltir a new trial.
hydeuoe;
On Petition for Rehearing.
PBB ODRIAM. After careful considera-
tion of this petUten the ooort la satisfled that
no mat^al oueetton of law or of fact has
either been overlooked qt dlnegarded. It
is therefore ordwed that we ordw herrtofove
granted staying the rradttltar b» leveked and
that the petition be flimnlwiej
(K 8. c. m)
BATSOK v. GREENVnjLB & E. BY. CO.
(Supreme Court of South Carolina. July 14,
1913.)
1. Taui. (1 145*)— WiTHOBAWAi. or Issues.
Where Jnat before the oonrt began his
diarge, plaintiff stated tiiat the allegation as to
common-law neiJigeace was withdrawn, but
after the charge, where the court statMl the
isBuea, aach withdrawal was withdrawn by the
attorney, defendant waa not prejudiced thereby.
[Ed. Note.— For other cases, aee TriaL Cent
Dig. U 328, 841 ; Dee. Dig. | 146.*]
2. RAiLBOAos rj 801*>-<:sossiiro Aoomitn
—Duma AT Gaosaine.
The natural obligations of a railroad com-
gany and one crossing the track on a public
igbway were mutuaL
[Ed. Note.— For other eases, aee Railroads,
Cent Dig. I 956; Deo. Dig. | SOI.*]
3. Rahboads (1 860*)— OBoesnvo Aoomxin^
JVBT QunsnoN.
St is ordinarily for the inry to detemdne
er it ia a wiUful and reckleaa disregard
of duty for a railroad company to fail to give
the required legal warning at a dangerous
place, where the track crosses a pobUe U^-
way through cuts.
[Ed. Note.— For other cases, see Ballroadi^
Cent Dig. H 115a-llW: DeTDIg. f^Syj'
Appeal from Common Pleas Circuit Court
of QreenviUe County; J. W. De Yore, Judge.
Action by W. X. Batson, administrator
of J. Asa Batson, against the Greenville ft
KnoxTlIle Railway Company. From a Judg-
ment for plaintiff, defendant aM>eals. Af-
firoied.
•rvt oUwr c«Ma Me aam* topic and aeettoa KVUBBR lAg^Tbli. * Am. Dig. Kn-MoDl^irt«fcft)9t£tdMdglC
886
78 SOirrHBASTBBN BBFORTBB
O. K. Uauldln and Harnsworth & Hayns-
worth, all of Greenville, for appellant Mc-
Cnllough, Martin ft BlTth^ of GreenvUle.
for respondent
ERASER, jr. This la an action for tbe kill-
ing of plaintiCTs Inteetate at the erossins
of a public bigbwar and the railroad.
All the exceptions refer to the charge of
the presiding judge, and the fact upon which
the salt l8 based need not be set out
The first and second exceptions are as fol-
lows:
"(1) His honor erred in not charging the
third request submitted: *If a person care-
lessly drives upon a railway crossing in front
of an approaching train, by the exercise of
slight care he could and would have known
that the train was approaching, and that It
was dangerous to attempt to cross, then snch
person may be said to have been guilty of
gross negligence, because failure to eierdse
slight care Is gross negligence, and in such
case the party could not recover, even though
the railway company had negligently failed
to Ting the ball or blow the whistle.' It
is submitted that no part of the charge as
given dearly presented to Hie Jury the prop*
odtlon ct law that a person who drives upon
a railroad crossing, who knows or oo^t to
know that It is dangerous to attempt to cross
at that moment, is guUt7 of gross n^igence.
He erred in not charging defendant's
seventh request as submitted, to wit: 'It
one about to cross a railroad track fails to
take Billet care to ascertain whether the
train is approaching, or whether tbere is any
danger in attempting to cross the railroad
track, this would constitute gross negligence,
and If this operated as the proximate cause
of his Injury, he could not recover even
though tbe railway company bad failed to
blow the whistle or ring the bell.' It is sub-
mitted that this request correctly stated a
proposition of law aK>UcabIe to the case,
not covered by tbe charge as ^ven, and
which was not on the facts."
His honor charged the jury as follows:
Then and under such circumstances
It is his doty then to look out for himself, to
use reasonable care for the purpose of pro-
tecting himself and for his own safety.* The
balance of that request, I think, is on the
facts, and will not charge it That request
means this, gentlemen, in sum and substance :
As I have already explained to you, that
while It is the duty of the railroad company
to blow tbe whistle and ring the bell, as I
have explained to you, yet if a person has
notice in some other way tbat the train is
approaching, and he knows it Is approaching
the crossing, then he must use that degree of
care and caution that a person of ordinary
care and prudence would have used under the
same or similar circumstances, and look out
for himself. He cannot be guilty of gross
negligence under such <;lrcum8tances. And
if he knew on that occa^n, if he knew Oiat
the train was coming, if he knew it in any
other way other than by the blowing of tbe
whistle or the ringing of the bell, and he
failed to observe such care and caution and
prudence, under those drcumstances, as a
person of ordinary reason and prudence and
care would have done, and his failure to
do that contributed to his own death, as a
direct and proximate cause tbweby, he conld
not recover, unleas jou conclude tbat tbe act
of the deftaidant was willful and reckless, or
that the defendant was gntlt^ of a oonsdons
ftdlure to perform a duty imposed by law.
"(3) Then It is for you to say whether
sndb person was guilty of gross negUgence or
not* I charge it that way. The failure to
exercise slight care to gross negligence; I
charge you that: 'Provided his failure to
exercise slight care contributed as a direct
and proximate cause of his death or Injury.*
I cbarge you tbat with that addition.**
His honor charged all it was proper for
him to cbarge.
2. The second exception Is : "(3) He erred
in not charging defendant's ninth request
as submitted, to wit: Tbe plaintiff having
in open court withdrawn all charges of com-
mon-law negligence, and announced that the
only charge of negligence upon which be
relies is the claim that the railway com-
pany failed to give the crossing signals as
required by statute, I. therefore, cbarge that
unless you are satisfied by tbe preponder-
ance of the evidence tbat the railway com-
pany did, in £act, fall to give the crouiiig
signals by blowing the whistle or ringing tbe
bell as required by statute, your wdlct moat,
in that case, be for the railway company.'
It is submitted tbat this request correctly
stated a proposition of law applicable to
the case which was not covered by the
charge." It to true that the plalntUTs atp
torney did say. Just before the charge began,
that the allt^gatlons as to common-law neg-
ligence were withdrawn, bat Just aftor the
charge began, his honor asked fbr the issues,
and stated them aa fcOlows :
"Court: In other wirds the claim as it
stands now 18 that the first act was done reck-
lessly and willfully; the second was done
rec^eaaly and willfully; Hie third was done
recklessly and willfully ; and the fiourth was
done negligently, reckles^, and willfully.
"Mr. Blythe: Thafs correct, sir.**
[1] There were four E9>eclfication8 of neg-
ligence in the complaint They were all in-
cluded in the statement Plaintiff bad the
right to withdraw the withdrawal .unless
something had been done or omitted that
prejudiced the defendant. If the defendant
had failed to Introduce any evidence, or
omitted any argument on account of plaintHTs
statement it would have been different It
seems from tbe case tbat both statements
were made after ev^^ gj^j^^)!^!^^
HARVELBT T. SOUTHERN RT. 00.
887
closed. No prejudice has been shown, and
this exception is overruled.
GxcepOoD 4 : "(4) He erred In not charging
defendant's eleventh request as submitted, to
wit : 'I charge Ton further that there Is no
erldrace In this caae to carry the qnestlon of
wnifnllness or wantonness to the Jury. This
Question, therefore, is wltbdrawa, and yon
need not consider that chai^ In the <»Hn-
plaint* It la submitted that there was no
evidence of a willfol, wanton, or reckless
failure to give the statntory irigiials; the ev-
idence at most only being open to tlie infer-
ence of ordinary negUgence."
[2, 3] The facte were before the Jury,
anl it was their province to say whetli-
er there was a failure to give signals
of the apivoach of a train and it there
was a follnr^ whether It was m^e In-
advertence or willful and wanton diar^rd
of duty. The appellant thinks that crossing
was 80 dangerous that the respondent should
have been very careful in approaching it
The natural obligation was mutual, and the
statute has added the giving of signals to
the appellant Unfortunately there Is no
law In this country to prevent a death trap
lllce this, where the public highway and a
railroad cross eacb other, and both are In
cuts. It is no part of the duty of the courts to
make law. It Is the province of the courts to
enforce the law and the province of the Jury
to say whether it Is willful and reckless dis-
regard of duty to fail (If It did fall) to give
the warning required by law, at a dangerous
The Judgment la affirnied.
GARY, C. J., and BTDBICK and WATTS,
JJ., concur.
(96 s. c. sm
HARVELBT t. 80TTTHBRN BT. CO.
(Supreme Court of South Carolina. Jolr 12,
1813.)
1. Cabbiebs (i 89*) — Shipuent on Loos —
BeOULATIONS— RBASONABLEniSS.
Logs shipped on an open car muflt be
made secure by the shipper, as by stakes, etc,
to bold them on, and a rule of the company so
requiring is reasonable.
[Ed. Note.— For other cases, see Carriers,
Gent I>is. I 88; Dec Dig. 39.*]
2. Cabbiebs (| 69*) — B^kght— AcnoH on
Contract.
In order to recovw dapifges against a rail-
way company for breach of a contract of car-
riage, it must be shown to have failed to per-
form some duty thereunder.
[Ed. Note.— For other cases, see Carriers,
Cent Dig, f| 217-219, ^TiS^ 230, 232-
239; Dec Dig. i 69.*]
AiH;>eaI from Common Pleas Circuit Court
of Barnwell County ; H. F. Rice, Judge.
Action by H. M. Harveley against the
Southern Baitway Company. EYom a Judg-
ment fbr defoodsnt, plaintiff appeals. Af-
firmed.
James H. Patterson and B. P. Searwn, Jr.,
both of Allendale, for appellant Harlay 4k
Best, of Barnwell, for respondo^
FBA8EB, J. The appelh&nt states his case
as tollows: "This action was commenced in
the court of W. B. Brabham, Bsq., magis-
trate, on summons duly served, and demand-
ing damages of $100 against the defendant
respondent for actual and punitive damages,
foi willfully, knowingly, malldou^, and un-
lawfully extorting from him more than a fair
and reasonable toll or eompenaatioD Cor the
transportation of one car of logs from Bam-
weU» 8. C to Bumter, & G. Upon the trial
of said case the Jury found a verdict for
plaintiff In the sum of 900, from which an
appe^ was duly had with the drcult court,
which resulted In the appeal b^g sustained
and the complaint dismissed in tbe following
order: *It appears tlut the 76 cents chained
by the defendant for restaklng car No. 6161S
was choffred in accordance with a fust awt
reasonable rule of defendant company, and,
there being no evidence to sui^ort punitive
damage, it Is ordered tliat the company be
and the same is herAy dismissed with coats.*
From which said Judgment the appellants
have brought this appeal upon four excep-
tions, whid) are duly set out in the case."
It will not be necessary to consider the
exceptions separately, because under no view
of the case could a Judgment for the plaintiff
be sustained. The 75 cents charged was not
a "toll or compensation for the transporta-
tion." The charge was for restaklng, and not
for transportation.
The first connection of the defendant with
this case Is when the plaintiff, who Is engag*
ed in shipping logs from various places, pre-
sents himself to the agent of the defendant
at Barnwell, 3. C, and gets a bill of lading
for a car load of logs that were at Ashley,
about three miles away. When the car got
to Branchvllle, It was Inspected by the In-
spector of the defendant and condemned as
unfit for the transportation, because there
were not stakes enough to hold the logs in
place on the car during transit to its destina-
tion. The agent at Branchvllle bad addition-
al stakes put in at a cost of 75 cents. This
cost of restaklng was demanded at Sumter,
the point of destination, from the consignee
before the logs were delivered. After some
delay and some demurrage, which was paid,
the shipment was delivered, and this action
was brought for actual and punitive dam-
ages.
[1] There is no direct evidence as to who
loaded the logs, or whose business It was to
make them secure. That logs shipped on an
open car must be made secure is too mani-
fest to be qneettoned, and is not questioned.
There is not a word to show that the rules
are unreasonable. There la no evidence to
show that the logs were securely placed np-
•Per otbar BSMS tM
S88
TS 80UTEBA9TSBN BSPOBTBB
on tbft car. There was teaHnuoj 'to diow
that the restaUnc was neeeaaary, and it was
ancontradlcted.
[2] There was no evidence to show that It
waa the do^ of the defendant to stake or
reetafee the loga; and. In order to recorer
damagea on the contract, tbere must appear
to have been a failure on the part of the de-
fendant to perform Mme Osxty. There waa
eridence of some ^ay and some expense at
Sumter, but there was no etldence of the
loigth of the delay at 8umt», or the loas oc-
caaloned by it and no evldenoe of the ex-
pauwa. There was no evldeoce that there
was any default on the partof the defendanti
or any loss for which it was reapmalble.
The Judgment appealed from la afllrmed.
GABY, a and HXDBIGK and WATTS,
3J*t ooncnr*
9< 8. a iH)
OBOCB GBBBNTILUQ. S. A A. BT. OO.
(SnpEWM Oonrt el South GaroUna. Uazdi 28,
1918.)
1. Bailboads (I T2*K-BX0HT OP Wat— Stx-
TKNT or Wat Aoquxbcd bt Dbkd.
Where a right of way had been granted
along a line to be located appnudmatdy along
a certain surrey, tte railroad cannot change
its line so as not reasonably to approximate
the location referred to in ue grant
[Ed. Note. — For other cases, see Bailroads,
Ceot Dig. H 168-178; Dec. Dig. |72.*]
2. Eminent Douain (| 66*)— Publio Usb—
Gbanob of Railboad Locatioit.
If the proposed cbsngs from the origiaiU
line is not reasonably oeceBsary to the proper
constTQCtion of the railroad, the right to 'take
the land needed cannot be acquired by con-
dwnnation, since the power of emiQent domain
can be exercised only where it is reasonably
necessary for^ some public parpose.
[Ed. Note.— For other cases, see Eminent Do*
Cent Dig. 18 147-160; Dec Dig. f 56. •]
8. Eminent Domain (i 69*)— CouFXNBATion
—NECEasiTT— Payment of Monet.
Where a railroad company changes the
line of its road after acgoiriiiE a right of way
by deed, it cannot compel t£e landowner to
accept a conveyance of other land in lieu of
that talcen by the proposed change, since com-
pensation for property taken for poUle uae
can be made only in money.
IBd. Noted— For other caaes, sea Eminent Do-
main, Gent Dig. || 171-17fl ; Dee. Dig. i 69.*]
4. Eminent Doxair Q 274*)— Bsmkdibb or
OWNEB — iRJUNOnOH — RKSTRAINIRG OON-
STBtJCnON.
Where a railroad oompany, which baa ac-
quired a right of wey hj deed along a line as
S proximately located by a certain survey,
uiges its route, but sail claims a right of
way under the deed, and the landowner claims
that the new line does not reasonably approxi-
mate the line described in the deed and that
there is no reasonable necessity for the change,
the owner ie entitled to a temporary injunc-
tion until the hearing on those questions^ dnee
neither ean be tiled -In condemnation- prooeed-
ings.
[Ed. Note.— For other cases, see Eminent Do-
main. Cent Dig. il 75S, 765-768; Dee. Dig. |
274.*]
B.TBUPABa a 13*) — Aon ODnatmnuro
Tbbspass— WaoivaFDL Am aRB a Bioht*
WUh Ehtbt.
Where a railroad company enters npm Um
land under a rrant of a right of way or witli
consent, actual or presumed, it is liable for
uiy trespass oommitted outside the right of
wsy granted or for any Invasion of the prop-
erty rights of the owner not incident to tha
proper location and eonatriadion at Us aoad.
[Ed. _Nota^For other caae^ aee Uwapasa^
Cent Dig. I U; Dee. T^STfiA.*}
6. iHJTmonoK (i 48*)— TassPAsa to Bbaz.
PBOFUtTT— OoNTXlTUIHa TaBSPASa.
Zf the treipaas la oontinning and of awA
a nature that the legal remedy tiierefor Is in-
adequate, the owner la entitled to an injunc-
tion.
[Ed. Notfc— Vor other casea, see Injuactiott,
Cent Dtig. I 101; Dee. P^gT? 48.*]
7. IirjiTHcnon (f 148*)— InmLoouton
mNonoR— Bond.
Where a temporary injunction la granted
to restrain the construction of a railroad pend-
ing a determlution of the company's right to
conatraet its nad along a certain line over
the plaintifrs land, the company is oititled to
a bond sufficient to protect it from any loss
occasioned by reason of the Injunction in case
its right should be finally upheld.
[Ed. Note.— For other cases, see Iniunetloii.
Gent Dig. » 32&-^: Dee. Dig. | 148.*]
Gary, O. J., dlssoiting.
Action by oaa Orooa against the GveenTlUa^
SportanbDtK A Anduaon Bailvmy Gonva-
ny. From an order denying an Interlocotory
injunctkm, the plalntifl aj^teala. Order re-
vened.
Bomar ft OAome, of Spartanburg, for ap-
pellant NlchoUa ft NlchoUa and Jno. Ga^
Evana* all of Spufcanbnrib apptflaai
HTDRICE, J. PlaintifC brought this ac-
tion solely for the purpose of obtolnlng an
Injunction and appeals from an order refus-
ing an injunction until the case can be heard
on the merita So much of the complaint
as is material to the consideration of the ap-
peal la, in substance, as follows : That plain-
tiff Is the owner of a tract of land which la
bounded on the west by Middle Tyger river,
her line extending to the center of the stream ;
that, in May, 1912, she granted defendant a
right of way over said tract along a certain
route which had been surveyed and waa
agreed upon; that defmdant thereafter
changed its plans and la proceeding, against
her objection and. protest, to construct Ito
road over her land along a substantially dif-
ferent route, without legal right or her per-
mission to do so, and is about to cut a new
channel for said river fbr the parpose of di-
verting the stream from her said lands with-
out her consent or permission; that nelttier
such change in the route of the road or in the
channel of tha river is necessary for the
p«formanc» of defendant* a fanctlona aa a
railway company, and that, unless defoidant
is enjoined, she will be deprived of valuable
•Vor «tt«r osM* BMSsme tsplo ana ssOIMi MUHBSBia Dso. 2M* A Am. Dig. KtgMo. Mslsa A te'* lataM
Digitized by VjOCfVit;
&0
OBOCE QBSOKVILUB, S. ft A. ST. 00.
889
fiKopertjr rlgbts, without due psooew of law,
and vrVl be irreparalily Injured; ttunt defend-
ant nerer notified her In writing, as lefioir-
ed by the statute, that It teQulred a right «f
way over her land along the roate upon
which It la now constrncting Its road, or that
It required a change In the bed of the river
for ita purpoaes, and, as eoon as she learned
that defendant was proceeding to take ber
property without authority and without pro-
cesB of law, she objected and protested against
the same, but that her objections and pro-
tests were onaTailing, and ahe is without
adequate remedy save by the injunctive pro-
cess of the court; that defendant d^es her
ownership of said land and b&t ri|^t to -com-
pensation for the taking thereOX. Sbe vraya
that defendant be enjoined.
The plaintiff's grant describee the right of
way as "running la a genenl watlkeaatarly
direction, and to be flnallr located approxi-
mately as shown by a snrvey made by MaJ.
Tbo& B. Lee." It also gave defendant the
ris£ht "to do any and all acts neceasary or
appropriate for any propw pmpoBe eonnect-
ed vlth said »ad at line."
As origlnaUy located, ttie road passed to
the east of a certain b^d Is Jflddls Tygar
river on plaintifC's land. The bend Is in
tbe at a horseshoe^ At the nearest
point to tile toe of the shoe, the road ap-
pears to be only about 10 or 15 feet from tbe
eastern bank of fbe river. The new roate
which the company proposes to take begins
Its d^rtnre from the eld betweoi a tiUrd
and a half of a mile south of the river, and
It gradoally diverges to the west, ontil It at-
tains a distance of a little ovw 100 yards
from tbe origlDal tocaUon, and then the lines
<a tbe two locatlcHis converge until Cher
meet about fbe same* distance north of the
point of greatest d^rtnre. The new loca-
tion being a shorter curve than the old, it
crosses the bend of tbe river about 200 feet
west of the old. The proposed change in the
channel of tbe river consists In tiittoMng It
entirely west of the new location wlttilB tbe
horseshoe. The part of Uke horseshoe east
of the new location contains about three
acres, and, to compensate piaiotUf for the
proposed change In the channel of the stream ,
and still keep the stream as her western
boundary, defendant has offered to convey
to her tbe land within tbe horseshoe east o(i
the proposed new ehanneL
The defendant asserts the light to make
these changes under and by virtne of the
plaintiff's grantr— that in the route on the
crowd that it Is **approztttiately'' as shown
by the survey referred to in the grant, and
that In tbe channel of the river oa the ground
that It Is necessary to the' proper location of
Its road. These allegations are denied by
the plaintiff. Upon both propositions the
testimony is conflicting; so much so tSiat,
considering all the evidence, the court could
not say that It was made so clearly to «^
-pear that plainturs action is Withoot msrit
as to Wttxraot the jefnsal of a 'teaporaiy in-
junction until the hearing on the merits.
[1.2] If the plaiatur stould establish, at
the trial, that the revised location is such a
departure from tbe old that, aU tbe docum-
stanoes being considered, it is not reasonably
approxtmate to the location r^ejred to In
the grant, then the right of way along the
new route is not covered br tbe grant, and
plaintiff would he entitled to compmsatUm
for the taking thereof; and. If it should be .
proved that tbe proposed <diange In the chan-
nel of the river Is not reasonably necessary
to the proper location and construction of de-
fendant's road, the change cannot be made
without plalntUTs consent, because the power
of eminent domain cannot be exercised to
take the property of the citizen, unless It la
reasonably necessary to do so to subserve
some -pubUc purpose.
[3] Just here it may be said that the of-
fer of defendant to convey to plaintiff the
land within the horseshoe east of the pro-
posed new location of the river may be a
fair compensation for the change, and It may
be that plaintiff Is unreasonable in refusing
to accept it But, as has been shown, if the
change Is not reasonably necessary for a pub-
Uc purjmse, It cannot "he made at all without
plaintiff's consent, which she may even ca-
priciously withhold. Moreover, there Is no
authority for requiring plaintiff to accept the
land within the horseshoe in compensation
for her property rights taken. The law pro-
vides for compensation only in money. Any
otber must be by consent of the parties In-
terested.
The necessttr for the taking above referred
to need not be absolute but it should be
reasonable; otherwise oorporatUms invested
with the power to condemn might arbitrarily
and oppresEdvely deprive the dtSxea of his
property, when it is not necessary to the pnb>
lie good. 16 Oyc 6S2.
[4] In eltiier event above suggested, tudees
■0x6 injunction Is granteS, tiie plaintiff might
be deprived of her p^ODerty, not ooly without
compensation, but she mlglit be deprived of
It without authority of law. The case falls
squarely within tbe principle ot Bil^ t.
Union Station, 67 S. a 46 & B. 149, and
ttie cases thweln dted. This ^ew of the
case renders unnecessary, at this time, tts
coMderatton ef the iqaestlon whether Che
defendant's entry, upon plaintlff^s land for
the purpose of conetructiott vras by the con-
sent of plaintiff, actual or presumed, for the
purpose of relegating , her to condemnation
proceedings, because the defendant denies ber
right to com[)enBatlon, and the pl^tiff de-
nies the defendants right to change the lo-
cation or the channel of the river dtber
under her grant or under the power of emi-
nent domain. These questions Can be decided
only ^ action. Railroad Co. v. Burton, 68
a. c m u B. a «i ; ©^ehJ^le
890
78 SOUTHBAUTJUUN BBPOBTEB
(S.C.
tiOD, 67 S. G. 84. 45 S. E. 148; Olorer v. BaU-
way, 72 S. 0. S82, 51 S. B. fll7, and cases
dted.
[B] But, even If the entry for the pnrpose
of construction was made under the ^ant or
by consent, actual or pr^umed, the defend-
ant would nevertheless be liable for any
trespass committed outside the right of way
granted or for any Invasion of the property
rights of the plaintiff not incident to the prop-
er location and construction of Its road, just
as It wonld be in case of an entry without
such consent. Granger v. Telegraph Co., 70
S. 0. 528. SO S. B. 193. 106 Am. St Bep. 750;
Burnett v. Telegraph Co., 71 S. C. 148. 50 S.
B. 780; Mason v. Telegraph Co., 71 S. C.
Ui2, 60 8. B. 781; Pbilllpa t. Telegraph Co..
71 S. a 677, 61 S. B. 247; Bnmett t. Tele-
graph Co., 79 8. a 465. 60 S. Bu 1116; 88Cya
098.
[I] The allegation beie Is that the defend-
ant la tzespasdng oatside the light of way
granted, and that tlie treapasa 1> not only of
a oontinuoua nature, bnt tluit It la of sn^ a
nature that the legal remedy tlierefor is In-
adequate; and therefore the remedy by in-
junction is approprlata McGlellan v. Tay-
lor, 54 S. C. 430, 32 S. B. 627; McClary v.
Lumber Corporation, 90 S. O. 164, 72 S. B.
145, and cases cited.
[7] It appears from the record that no
bond was required of plaintiff when the mle
to show cause, which carried a temporary
restraining order, was granted. It further
appears, from affidavits In the case, that de-
fendant is sustaining heavy damages dally
by reason of the Injunction. Therefore, as a
condition of enjoining defendant until the
trial, plaintiff should be required to give such
bond as will afford the uefeodant adequate
protection, if the court shall finally decide
that plaintiff was not entitled to the Injunc-
tion. Defendant is entitled to such a bond.
Water Power Co. v. Nunamaker, 73 S. C. 550,
63 S. B. 99a The amount of the bond will
be fixed upon applicatton to the circuit court
or a Judge thereof.
Beversed.
GABY, a J., dissentB.
(» S. G. 803)
TUCKBB V. CUNTON COTTON MILLa
(Supreme Court of South Carolina. June 80,
1018. On Petition for Bebearing,
July 25, 1913.)
1. Tbial (S 139*)— Nonsuit— BviDKNo*.
A motion for nonBuit, on th« ground of the
failure of the testimoii; to estabbah the mate-
rial allegations of the complaint, is properly
overruled, where there la testimony tending td
prove all the allegatioDS of the complaint
[Ed. Note. — For other cases, see TriaL Cent
Dig. 81 332. 333. 338-341, 865; .Dec Dig. 1
139.«]
2. MABm AND Skbtakt (91 2S& 289*)— Ac-
tion FOB Death or Chilo — ETiDaH<S —
Question fob Jubt.
In an action' by a parent for the death, by
wrongful act of an infant child. Where the evi-
dence of decedent's contributory ne^igenee and
the parent's assumption of risk was snsceptiUe
of more than one inference, the tesoes were for
the jury.
[Ed. Note.— -For other cases, see Ifaster and
Servant Gent Dig. U 1068-1000, 1000-1182;
Dec. Dig. H
8. TBIAI. (I 200*)— lN8TR1TCEn>NB— BBmUXi
OF iNBTBUCnONS COVIBBD BT OHAXOV
Given.
It is not error to refuse reouested instmc-
tions embraced in the charge given.
[E^d. Note.— For other eases, see TriaL Gent
Dig. Si 661-659; Dec. Dig. | 260.*]
4. Tbiai; (I 286*) — InaiBuoTiosB — Sufvx-
onsncT.
The instractions must be considered lo
their entirety, and if, when so considered, the
issues are fairly presented to the jury, excep-
tions assigning error in parts thereof most bo
overniled.
[Bd. Note.— For otiier cases, see TrisL Cent.
Dig. M 708-717; Dee. Dig. | 206.*]
6:. Appkal and Ebbob (| 216*)— Instbuctiohb
— Objbotions— Necessitt.
Exceptions, assicning error in stating in
the instructions tlie issues raised by the puad-
ings. cannot be sustsined, where the trial court
was not requested to make the necessary cor-
rection.
[Ed. Note.— For other cases, see Appeal and
Error, Dee. Dig. { 216;* ^Mal, Cent Dig. %
627.]
6. Appeal and Ebbob (1 l(t32*)— QuBsnons
BbVIEWABLB— PBBJTTDICIAIi Bbbob.
A party oomplainiu of errors ranst show
that they are prejodidal, or the Jndffneot moat
be affirmed.
[Ed. Note. — For other cases, see Appeal and
Error. Cent Dig. §{ 4047-4^1 ; Dec Dig. {
1032.*]
Appeal from Common Pleas Circuit Court of
Laurens County; B. W. Memminger, Judge.
Action by Nannie Tucker, administratrix
of Boy Tucker, deceased, against the Clin-
ton Cotton Mills. From a Ju^ment for
plaintiff, defendant appeals. AlBrmod.
F. P. McOomn and Bi(^ey ABlchey, «U of
Laurens, for iQ»pellant Oannon 4 Blad^wcAl,
of lAurens, for respondent
GABY, C 1. This Is an action tor dam-
ages, alleged to bave been sustained by tbe
plaintiff, on acconnt of the wrongful acts of
the dtfendant, in cansliig tbe death of her in-
testate son. The allegations of tbe complaint
material to tbe questlona presented by tbe
exseptloia are as follows: "(1) That on the
28d day of Jane, 1011, and prior thereto, tbe
defendant, Clinton Cotton Uilla, owned, main-
tained and used in connection with Its cotton
mill at Clinton. S. C, a large and deep dam
or reservoir, wMctk it kept filled with watw,
to be used in connection with its said cotton
mill, the said dam or reservoir being located
near the Clinton Cotton Mills, public streets,
and many of tbe residences of tbe town of
Clinton, where cbildren of tender years were
•Vra etliar ouea ■•• atfaoM topic aatf MOtSea NUHBBB la Deo. Dig. * An.
TUCKER T. CLINTON COTTON MILUS
891
accustomed to resort for play, the said dam
or reservoir not being protected by a fence,
Kuard, or otlierwlse, but was exposed and
easily accessible to diUdreu, who, not know-
ing of the danger, made use of it as a place
of amusement (2) That It was the duty of
the defendant, Clinton Cotton Mills, to bare
secnrely protected the said dam or reserroir,
K that children resorting to It as a place
of amusement wonld not be injured!, bat the
said defendant, not regarding its dniy In that
behalf, carelessly, negligently, willfnlly, and
wantonly permitted the said dam or reserrotr
to be and remain nninclosed or unprotected
in any way. (3) That the defendant, Clinton
Cotton Mills, knew of the unprotected condi-
tion of aald dam or reserroir, and that chil-
dren resorted there as a place of amusement
which facta this plaintiff is informed and
bftlleiTea, and so alleges had been more than
once called to the attention of the defendant
with the request that the said dam or reser-
TOlr be properly protected. (4) That the
plalntlirs intestate. Roy Tucker, a small boy
of tender years, being about 14 years of age,
while playing around said dam or reservoir
en the 23d day of June, Idll, fell Into said
dam or res^rolr, which was filled with wa-
ter, and waa drowned. That the plaintiff
is the mother of the said Boy Tucker, de-
ceased, for whose benefit this action is
brought and maintained. (5) That the dam
or reservoir mentioned aforesaid waa so con-
atructcd and used by the defendant Clinton
Cotton Mills, that the hot water from Its
boilers and other portions of said mill was
run back into said dam or reservoir, and
that at the timeeaid Boy Tucker fell into said
dam or reservoir and drowned the water was
almost scalding hot (6) That Roy Tucker
waa an employ^ of the said d^endant Clin-
ton Cotton Mills, at the time of hla death,
and was at work for the defendant on said
date, and that the plaintiff, the mother of
the said Roy Tucker, had previously request-
ed the said defendant not to allow ber son
to leave the said cotton mill until its regular
stopping hour for dinner, or otherwise, which
the defendant negUgently, carelessly, will-
fnlly, and wantonly disregarded on the day
tliat her son was drowned." The defendant
denied the alleged wrongful acta, and by
way of defense alleged: "That the said Boy
Tucker was well acquainted with the charac-
ter, conditions, and surroundings of the said
miUpond, and was of a sufficient intelligence
and capadty to comprehend and understand
its dangers, and so carelessly, recklessly, and
negligently Jumped across a gap in the dam
in said pond, and thereby Induced his young-
er brother to attempt to leap across the said
gap in said pond, and caused his younger
brother to fall therein, and so carelessly and
negligently attempted to rescue bis younger
brother from drowning in said pOnd that he
thereby contributed to his death as a proxi-
mate cause thereof without which bis death
would not have occnrred.** The defendant
also set .up the defense of assumption of
risk, both as to Roy Tucker and the plaintiff.
At the close of the xdalntifT's testimony the
defendant made a motion for a nonsuit,
which was refused, and, at the conduslon of
all the testimony, it made a motion for the
direction of a verdict on the same grounds
as the motion for nonsuit which was also
refused. The jury rendered a verdict In fa-
vor of the plaintiff for $1,000. The defend-
ant made a motion for a new trial, whicb
was overruled. The defendant then appealed
upon numerous exceptions.
[1] There was testimony tending to prove
all the allegations of the complaint her^-
before mentioned. Iterefore the exceptions
assigning error, in the refusal to grant the
motion for nonsuit on the ground that there
was a failure of testimony to" establish the
material allegations of the complaint must
be overruled.
[2] Ooncedlng that there was testimony to
the effect that Roy Tucker was guilty of con-
tributory negligence, and that Roy Tucker
and the plaintiff assumed the risks incident
to Ms employment nevertheless the testi-
mony is susceptible of more than one infer-
ence, and those issues were properly submit'
ted to the jury.
[3] The defendant presented certain re-
quests to charge, which hla honor the presid-
ing Judge did not charge in the form in
which they were presented, but stated that
he would endeavor to embrace them in his
general diarge, which he did. The excep-
tions assigning error in this respect are there-
fore without merit
[4] There are exceptions assigning error In
certain portions of bis honor's charge; but,
when the charge is considered In its entirety,
it wHI be seen that there waa no prejudicial
error. The charge was fall, dear, and able,
and fairly presented to the Jury the law ap-
plicable to the case.
[S] The exceptions assigning error on the
part of the presiding Judge, in stating the
issues raised by the pleadings cannot be sus-
tained, as It does not appear that he was
requested to make the necessary correction,
[t] None of the other exceptions can be
sustained, for even conceding there was error
in the particulars thn^ spedfled, It has not
been made to appear that It was preJadldaL
Judgment affirmed.
HTDBIGE, WAirrS, and FBASER. JJ.,
concur.
On Petition for Rehearing;
PBR CURIAM. After careful considera-
tion of ttits petition the court is satisfied
that no material question of law or of fact
has either been overlooked or disregarded
It is therefore ordered that the order hwe-
tofore granted staying the ronittltur be x*-
yoked, and the petition be dismissed.
Digitized by Google
892
78 SOUTHSASTBBN REPOBTBB
(S-C.
(K 8. a IK)
lIcNAIR «t ftL JOHNSON At at
(Sspreme Coart of South GuoUna. 3u]y 8,
191fl.)
1. MOBTOAGES (I 494*) — FOBIOI-OBUBK — Dk-
OSBX— Dkbckiption.
A mere false deacriptioo does not mak« an
instrnment inoperatlTo; conseqaently wbere a
judgment of foreclosure adjudged a sale of "the
mortgaged premlsea described in the complaint,"
wfalcb anfflclently described Qie premises, is not
invalid and void aa to the parties to tbs ac-
tion, the additional description in the jadgment
itself was luaccurate, the description furnished
in the complaint rendering it possible to make
the judgment certain.
[Bd. Note.— For other caaea, aee Montgafes,
Cent Dig. il 144X-1445 ; Dec. Dig. | 4M7]
2. Dbbdb (I 38*)— VAUDrrr— DssoBiFTion.
A deed is not void for uncertainty where,
though there be errors, yet from the whole de-
scription the land sought to be conveyed can be
identified.
[Bd. Note.~FoT other cases, see Deeda, Cent
Dig. H 6&-79; Dec. Dig. | Sa*]
Appeal from Common Pleaa Glrcnlt Oonrt
of Chesterfield Ooimty; H. P. Oreen, Spedml
Judge.
Action by B. B. HcNalr and another
against Fanny Johnson and another. From
a judgment for defendanti; pi^infiff^ ajVMl.
Reversed and remanded.
Sterenson 4k Prince, of Gberaw, for appel-
lants.' W. P. Pollock and Edward Mclrer,
both of Obeiaw, for reepondenta.
OART, (X J. Tbia is an actbm to recover
poaseaaton of the tract of land described in
the complaint, and the ajM^eal ia from an
ordOT of nonsnlt
Andrev Jobiuop, tbe defendants* ancestor,
executed a mortgage in favor of Calvin B.
BfcNair and plaintiffs' ancestor on "all that
Idsce, parcel or tract of land situate, Ifiog
and being in tbe county and state aforesaid,
and bounded by lands of J. 3. Burch and p.
T. Bedfeam, omtainlng three hundred and
five acres. Beference to a deed from Joseph
8. Bunfti to J. J. Jolmson will more fully
appear.** The mortgage was foreclosed and
in the ju^pnent of foreclosure It was "ad-
Judged that the mortgaged premises de-
scribed in the complaint In thia action be
sold at public auction, In the county of Ches-
terfield, by tbe sheriff of said county.
***** At tbe conclualon of tbe judgment
of fbreclosure, the property ordered to be sold
is thus described: "All that certain piece,
parcel or tract of land sltuBte, lying and be-
ing, in the county and state aforesaid, on On
watexs of Indian creek, containing three hun-
dred acres more or less and is bounded as
foUovs: Qa tha nortb side, by lands of Ji F.
Meyerst jna D. Barber and Lou W. Wbltt^
and Indlan-creek; on the east by lands be*
longing to the estate of Elizabeth White, de-
ceased ; on the south side by lands of Mai7
J. and Carolina R. Mnlloy ; and on the west
side, by lands b^ooglng to or in the posses*
slop of Dollle Pitts and others — an entire-
ly different tract from that described In the
mortgage. The property described in tbe
mortgage was advertised and sold by tlie
sheriff to Oalvin Si McNalr. who died Intes-
tate in 1905. Tbe description of the property
in the deed of conveyance, executed by the
sheriff to Calvin B. McNair, was tbe same as
tliat mentioned In tbe mortgage; and ths
mortgaged property was property descrilwd
In tbe complaint for forecdosura
His honor, the presiding Judge, granted the
nonsuit on the grotmd that the wrongful de-
scription of the property in the judgment d
foreclosure rendered the sale of tbe property
by the sheriff null and void; and the sole
question properly before tbe court for con-
sideration la whetlm said roling was onn
neous.
[1] One of tbe maxims recognized In
Broom's Legal Maxims (star page OOS) is:
"Mere false description does not make an in-
strument Inoperative** (falsa demonst ratio
non nocet). The author in commenting
thereon uses this language: "Falsa demon-
stratio may be defined to be an erroneous
description of a person or thing In a written
Instrument; and the above rule respecting it
may be thus stated and qualified as soon as
there is an adequate and sufficient definition
with convenient certainty of what Is intwid-
ed to pass, by tbe particular instrument ; a
subsequent erroneous additlim will not viti-
ate It" The judgment of foreclosure refers
to "the mortgaged premises described in the
complaint in this action" and was suffldent
to put all parties (especially those who were
parties to the acdon and their privies) upon
Inquiry which, if pursued with due diligence,
would have shown tbe true description, not
only from tbe mortgage but from the com-
plaint, to which reference was mad& There-
fore tiie description in the jnd^ent of fore-
tflosnre was not rendered inoperative by a
subsequent erroneous addition. Another
maxim of the law applicable to this case Is:
"That is sufl3clently certain which can bo
made certain.**
[2] in Devlin on Beal Estate, toL 1 1012,
the author says; **A deed is not void for tm-
certalnty because tba« may be errors or an
Inconsistency In some of tbe partlcalars.
Generally tbe rule may be stated to be that
the deed will be sustained, if it is poadble
from the whole description, to ascertain and
Identify tha land Intoided to be conveyed.**
In a note to that section It Is said: "As that
is certain which can be made certabi, tlie
description, if It will enable a perstm of oi^
dlnary prudence acting In good fittth and
making inquiries whldi the description
would sunest to him to identify the land, is
nifllcient** He also says: "Where there are
several calls in a deed, and with the excep-
tion of one they may all be applied upon the
face of the earth, constituting an ItrtelUgeat
•Foe ether aasw ses bsbm to^le sod aeoUon NUHBBR in Dm. Dls. k Am. Dig. Ksy-No. Bertea.* Bsp'r ladexm
Digitized by VjOOg[C
8.G)
OTT or SnMTKft T. XBKLS
893
and coR«± description ef tbe lot. to wUek
tbey refer, tbe one that does not s^iplT will
be rejected as surplusage and the athen wUl
prevaU. • • < If the deed cvnt&lns two
doBcr^tltnis, one correct and the othor false
in tact, tbe latter ohoold be rejected aa eor-
plnsaga Where one oi two different de-
•crlptions applies to land to which Uie
srantor bad title, and the otiher to land
which he did not own, the former wiU be tak-
en as the true description, 4nd the latter will
be rejected as false. If sufficient remains
after rejecting a part of the descrlpUon
which is false, tiie deed wiU take effect"
Section 1016.
These principles are appllcaUe to this case
and show concloslrdy that It waa enw to
(rant the nonsuit.
It is the judgment of this coart that the
IndgmeiU of the <diCTlt ceiurt b« roTeraed, and
the CBse xemanded for % sew trial.
HTDRICK and FHASEB. IJ., concur.
WATTS, J., dlsquaUfled.
(» 8. C. SOS)
OITX OF SUMTER t. KEEIA
Ok parte KBBLS.
(Snpreme Gonrt of Sonth Oardina. Jnly 1!^
18130
CsnaifAL Law <{ W^y-Jxmnnanoit or Rb-
cobsxe's Ooubt.
Under Cn- Code 1902, | 2008. oonferrlna
upon mayors the powers and authorities
niagistratea In criminal cases within the police
jorisdictioD of their respecdTs dtles. It was
merelj intended to give them ths same pwrer
to try persons charged wiUi the violation of
an ordinance that a magistrate bad to try a
person charged with the violation of a atatote
m other law of the state in cases where the
{mnishment did not exceed a fine of $100 <ur
mprlBonment for 30 days, and the recorder
of the city of SamtOT was without power to
try offenses other than Titrations of city ordi-
nances, and hence ^thont jurisdiction to try
and convict for petit larceny in violation m
the criminal laws of ^e state.,
[Ed. Note.— For other cases, see Criminal
Law, Gent Dig. || 129, 187-106; Dec. Dig. 1
98.*]
Original proceedings lu'lfabeaa corpus tw-
fore Justice Fiasw.
John Keels was convicted in the Record-
er's Court of the Git7 of Swnter of petl^
larceny, and from ajx order in habeas corpus
proceedings discharging Um, the dty ap-
peals. Affirmed.
The order of Justice Fraser was as follows:
"This is a proceeding in habeas corpus.
The defendant was convicted by the recorder
of tlte city of Sumter upon charges o^
petit larceny and sentenced to 30 days for
each offense. There was Included in the in-
dictment a charge of carrying concealed
weapons. The defendant was also convicted
of this offense. The alternative was given
in each case of paring a fine. The defendant
paid the fine for carrying concealed weap-
ons. The dtf 9t Sumter has an ordinance
against carrying concealed weapons, but
none against larceny. The prisoner raises
the question of Jurisdiction of the recorder
to try offenses other than violations of the
ordinances of the city. It is conceded that
Sumter Is a city of more than 2,000 Inhabi-
tants and less than 20.000 Inhabitants. I
hold that the recorder of the city of Sumter
has no jurisdiction to try prisoners for of-
fenses other than offenses against the ordi-
nances of the atj of Sumter. It Is th^^
fore ordered that the defendant, Jno. Keels,
be discharged from custody under the com-
mitment by the recorder of Sumter, and that
unless be be held under some other authority
he be discharged from custody and allowed
to go hence without day."
Lee ft Molse. of Sumter, tor appellant
H. D. Holse and A. 8. Merrimon, both <^
anmter, for recSKmdent
WAIW J. The agreed itatem«it of fscts
In' this case shows that John Ke^ was
tried by the recorder of the city of Sumter In
1913 on six charges of petit larceny and con-
victed <Hi all the cbarges ftnd semtoiced to
30 dsys' Imprisonment on the county chain
gang for the county of Sumter or pay a fine
of 9100 in eadi case. Keels haviiv beoi
committed to the county Aaln gang, a peti-
tion for a writ of habeas corpus, in the usual
form, was talcoi before Jnstifie Fxasu, based
upon the Isdc of JurlsffictiOB the reetnrder
of the ot Sumter to try and punish the
defeodant (respondent liere) for petit lar-
ceny upon the ground Oiat the dfey of Sumter
had no ordinance proUUtlng the same^ and
that recorder's powers extended only to
t^e pnnishiaent of offenses against lite ordi-
nances of the said dty of Sumter. Justice
Fraaer Issued 'the writ and heard the case
and sustained the contention of Keels and
ordered his discharge from custody. This
order of Justice Fraser should be set out In
the report of the case. From this order the
dty of Sumter appeals, and tiie exceptions
practical^ raise but one point: Did his hem-
or. Justice Fraser, err in holding that Oie
recorder of the dty of Sumter was without
power or antiiorlty to try or convict the de-
fendant for a criminal offense, contrair to
Ske crlBBinal statutes tjt the state of South
GaroUna then in force, but only had jurisdic-
tion to try and convict for offenses contraty
to Uw ordlnanoes the dty <jt Sumter?
Under the facts of flie case, we have no iies-
ItatlOB In saying the exc^)tlon8 should be
overruled, and Judgment affirmed.
The case of City of Anderson v. Sellgman,
85 S. O. 16, 67 S. BI 13. Is conclusive and
controls this case. On page 18 of 86 S. 0., on
page 13 of 67 8. B., of that case. Justice
<now Chief Justice) Gary uses the following
language: "When section 2003 of the Code of
]>ws IWSt conferred upcm mayors the powers
•For otlMT esMs Me same ttole sad sistloB HVliBBR pgo. Dig. * Aa. Ker-Ne. SerlM A Bep'r lodesM
Digitized by Google
894
78 SOnTHOASTSBN bhpobtbb
<s.a
and authority of magtstrates In criminal
cases, within the corporate limits and police
Jurisdiction of their respective cltiea, It was
merely Intended to give to mayors the same
power to try persons chained with the Tlola-
tlon of an ordinance that a magistrate had to
try a person <^arged with the Tlolatlon of
a statute or other law of the state In cases
where the punishment did not exceed a fine
of $100 or Imprisonment for 30 days. A vio-
lation of the provisions of an ordloance of a
city and a violation of the statute of the
state are two separate and distinct offensea"
Judgment affirmed.
GARY, C. J., and HTDRICK, concur.
FItASBR, J., dlsiiuallfied.
(95 S. C. 217)
BROWN & PARLER v. KOLB.
(Supreme Court ol South Carolina. July 14,
1913.)
1. Costs (| S*)— Taxation^tatutm.
Costs are purely statutory.
[Ed. Note.— For other cases, see Costa, Crat
Dig. SS 1. 4, 5 ; Dec. Dig. 8 3.*]
2. OosTS (S 231*}— Beoovbbt bt SuccEsaixn,
Under Code CIt. Proc. 1812, | 412, de-
claring that, where tiie judgment In the ap-
pellate court is more favorable to appellant
than the judgment appealed from, he shall
recover costs, a defendant appealing from a
judgment against him iu claim and delivery
which awards to plaiutifE the right of posses-
sion of the property In dispute or the value
fixed at ¥100, is entitled to costs, where the
appellate court affirms the judgment, with the
exception that It reduces the amount to $77.50.
[Ed. Note. — For other cases, see Costs, Gent
DiK. §S 847, 862, 853, 856, 872^5; Dee. Dig.
S 231.*]
Appeal from Oommcm Pleas Clrcalt Oocrt
of Sumter Connly; Ernest Gary, Judge.
Action by Brown ft Parler against J. It.
Kolb. From a Judgment taxing costs In
favor of plalntlfFs against defoidant, tbe lat-
ter appeals. Reversed.
A. B. Stuckey, of Sumter, for appellant
li. D. Jennings and B. D. EppB, both Of Sum-
ter, for respondents.
FBASER, J. The respondent's statement
of this case Is as follows :
"This is an appeal from the order of hia
honor, Judge Ernrat Gary, In the above-stat-
ed case, taxing the costs upon appeal against
the defendant, who was the appellant upon
the first appeaL This was an action in <daliii
and' delivery bnraght In the court of magls-
trate. Before the ease was submitted to Um
jury, the attorn^ for the dtfendant ufeed
that a spedal verdict be also rendered by tbe
jury, fixing the amount due to 'the plainUlb
by the defendant In response to this re-
guest, the verdict of the jury was as follows:
'We find for the plalntifEs the right to the
possession of the property In dispute, or thm
value thereof, to wit, the sum of $100, In case
the return thereof cannot be had. We find tlie
defendant is due the plaintiff the sum of
$100. Eugene B. Aycock, Foreman.*
"From the ju^iment entered on this ver-
dict, the defendant appealed to the Supreme
Court upon nine exceptions, asking for a new
trial upon four grounds. Upon said appeal
the Supreme Court refused the new trial, and
affirmed the verdict below, with the exception
of the special finding of the jury, which was
reduced in amount from $100 to $77.%.
Thereupon the plaintiffs gave notice of a mo-
tion to tax the appeal costs, and the defend-
ant gave a like notice. When the motion
came on to be heard by the clerk of the cir-
cuit court the said clerk taxed the costs in
favor of the defendant and against the plain-
tiffs. The plaintiffs thereupon moved bis
honor, Judge Ernest Gary, to correct said
taxation, and to tax the costs in favor of the
plaintiffs. When this motion was heard by
his honor, the circuit judge, his honor passed
an order correcting the said taxation, and
ordered that the said costs be taxed in favor
of the plaintiffs against the defendant From
this oraer the defendant now appeals."
[1, 2] Costa are purely statutory. The stat-
ute provides as follows (Code 1912, VoL 2
[Civil Procedure] | 412): "If such offer be
not made (none was made here) and the judg-
ment of the appellate court be more favorable
to the appellant than the Judgment of the
court below, or if such offer be made aud not
accepted, and the judgment in the appellate
court be more favorable to the appellant than
the offer of the respondent the appellant
shall recover costs: Provided, however, that
the appellant shall not recover costs unless
the Judgment appealed from shall be reversed
on such appeal, or be made more favorable
to him, to the amount of at least ten dollars."
The judgment was made more favorable to
the appellant herein to the amount of $22.45,
and the statute says the appellant shall re-
cover costs.
The judgment appealed from is reversed.
6ABT, a J., and WATTS, J., concur. HY-
DBICK, 3^ concurs in reeolt
•For etair omm m* hum tople sad MCtfam NUMBBR Is Dm. Die. ft Am. Dig. Wtj-Vo. BmUm * R^r IMcua
Digitized by Google
THOMASON T. YtCTOR MFO. 00.
895
(96 S. C. 2S9)
THOMASON T. yiCTTOR MFO. <X>.
(Saprttoe Court of South GaroUna. Jane 14,
1813,)
1. Master and Sksvant (H 101, 102*>— Dtt-
T1E8 OF MASTEft— Safe Place to Wobk.
It ia tbe duty of the master to foniub the
lervant with a reasonably safe place to work,
and to keep the place ia reasonably lafe and
suitable repair.
[Ed. Note.— For other cases, see Master and
Servant Gent Dig, l| 135, 171, 174. 178-134,
lB2j Dec. DUr. »101, 102 .•]
2. TasAx. (I 260*)— iNSTEucnona— Bbqubbis.
Where the court charged on tbe defendant's
liability for De^ligence, and on Uie plaintiff's
contributory nesligence and assumption of risk,
and expressly toU them that willfulness was
not claimed, and that they had nothing to do
with that error in refusing to sustain a motion
that there was no evidence of willfulness or
wantonness was harmless.
iBd. Note.— For other cases, see Trial, Oant
f. U 661-669; Dec Dig. | 26a*]
S. TBIAI. (I 260*) — iHBTBUOnOHS — RSQCTST
GOVBBID BY OBNEBAL ChABOB.
Where tbe court in his own language
chained the jury fully as to all the law in the
case, it was not error to refuse requested charg-
es, the law of which was substantially embodied
in the court's general charge.
fSd. Note.— For other cases, see Trial, Gent
Dig. il 661-669; Dec. Dig. { 26a*]
Avptiai from Gomuion Pleu Gircalt Coart
of Spartanburg County ; T. S. Seaae^ Judge.
Action by Hdvln B. ThomaBon ag^nat the
^ctor Manufacturing Company. Judgmoit
for ^alntlff, and defendant appeals. At-
firmed.
Haynsworth & Haynsworth, of GreenvUle,
and Bomar & Osborne, of Spartanburg, for
appellant C. P. Sims and Sanders & De
Pass, all of Spartanburg, for respondent
WATTS, J. This was an action for dam-
ages (compensatory and punitive) by respond-
ent against appellant for an injury sustained
by the respondent while In the employ of tbe
appellant The answer of appellant was a
denial of the material allegations of the
complaint and set up the plea of contributory
negligence and assumption of risk on tbe
part of plaintiff respondent The case was
tried before Judge Sease and a jury, and
rfflttlted in a verdict in favor of plaintiff
respondent iu the sum of f56a Tbe appel-
lant appeals, and alleges error on the part of
his honor In elgbt exceptions.
[1] The first three exceptions all^e error
on the part of bis honor In not granting a
nonsuit at the close of plaintiff's testimony.
In the cqnslderation of this question this
court will consider all of the testimony in
the case, and from the evidence in the case,
we see no error on tbe part of his honor in
refusing to grant the nonsuit There is no
question but that It Is the duty of the master
to furnish tbe servant a reasonably safe
place within which to work, and keep the
place within reaaonaUe .repair. Then was
abundance of evidence to go to the Jury to be
determined by them whether the -place, at
whldk plaintiff was tnlured, was nnsaf^ and
these exceptions artt overmled.
[2] The fourth and fifth szcQptlmis allege
error In not dlrectiiig a verdict for tbe de-
fendant on the ground there was no evidence
of wHlfolness or wantonness, and also on tbe
whole case. Th«e was snffldent testimony
to carry the case to tbe Jury on ttie question
of ne^^igence, and his bcmor committed no
error in this; he should, howeva, have
sustained the motion ttmt tiiere was no evi-
dence to sustain the contention that there
was wlllfnlneas and wantonness, bnt this
was harmless, and not at all prejudldal to
the defendant tox In his <^rge to tbe Jury
later he said to them, **Ne^igence la Inad-
vertence. 'Now, <ni the contrary, as a con-
trast—bat with that you have nothing to do
In the consideration of this case — willfulness
Is advertence^ Nobody daims in this case
that there Is any willfulness"; and through-
out bis whole charge he nowhere told the
Jury, In estimating damages, that they could
award punitive damages for willfulness or
wantonness, but was careful to charge them
that In estimating damages they were to con-
sider the question of negligence on the part of
defendant and contributory negligence and
assumption of risk on tbe part of plaintlft.
These exceptions are overruled.
Tbe sixth exception alleges error in his
honor's charge to the Jury. We see no er-
ror as complained ot It is the duty of the
master to furnish a reasonably safe and
suitable place for the servant to work at
and keep the same in reasonably safe and
suitable repair. Mr. Justice Woods, in Green
V. Southern Ry., 72 S. C. 401, 52 S. B. 46,
6 Ann. Cas. 165, uses this language: **In
every suit of a servant against a master for
personal injury arising from the use of
machinery, inquiry is directed mainly to two
forces operating under natural laws, namely,
tbe master's machine supplied to tbe servant
and the servant's mind and hands acting on
the machine. The injury la usually due
either to the error of the master In failing to
supply safe machinery, or to the error of tbe
servant in the use of his mind and bands,
or to both of these causes acting together. But
an error of the master In furnishing a de-
fective machine does not conclusively imply
negligence by tbe master, for he may have
used due, and even great care in its selection;
nor does an error of the servant in the use of
the machinery conclusively imply negligence
on his part for he may be In actual error
while doing Just what a prudent man would
do under like clrcumstancea Neither the
master nor the servant is cbaiged with per-
fect knowlMge of all natural laws and forces
Under which they act nor even with errorless
conduct In applying their imperfect knowl-
*For etiisr oasss ■••
SUM topic »d SMUOli NUMBBH^^Dla. * ABU Dig. K-^-WglgB-^^^'^^l^^e
18 aovTBOAsmsasi vapovrm
«dse of 'snch laws and tbrcea ; and hence
tbey are diargeable only with the reaalta of
errors which are due to ne^lgence. l%e
•errant on entering the employment assumes
the risk of his own errors, whether dne to
negligence or not, and he aseumes also the
risk of the operation of the machine and of
the errora of the master, tmlees the master
falls to use dne care In making tbe machine
aaf& When an injiiry to a servant Is proved
to result from a defective machine, the law
puts upon the master the burden of proving
that be used due care In making It safe. Ia-
svre T. MJg. Co., 18 8. C 276; Carter v.
Oliver Oil Co., 34 S. 0. 211, 13 S. EL 419 [27
Am. St Rep. 815]; Branch t. I^. Co., 85
S. a 400, 14 S. B. 806^'— «nd hls bonor com-
mitted no error.
[3] We cannot see that he-was in error In re-
fnsli^ to charge tbe seventh and eighth excep-
tions ; be left all of tbe fact to the Jorj to
find what were the condlHons at the time 'of
tbe injury. He chained the Jary carcffulty
and fully as to the Issues made by the plead-
ings and evidence, and in his own language
instructed tiiem fully as to the law of the
ease, and aU of the law emtKMlled in these
requests were snbstantiaUy charged In his
honor's general charge. Reference to the
charge sbows tliat tbe substance of every
sound proposition of law contained in the
reqneeta was given to the Jury. "Tbe judge
has the rigbt to charge the law of tbe case in
his own language, and where he fully dls-
^arges this duty, be is not requited to
charge abstract propositions or sound prop-
ositions of Che law applicable." Joyner v.
Atlantic Ooast line R. R. Co., (H a a
104, 74 B. a S25.
All ezcepUouB are overruled.
Judgment affirmed.
OABT» C 3^ and BTDKIOK, 3L, eoneBT.
(M s. a «R)
8TATB cK ttL AEBB T. MAJOR.
(Supreme Gonrt of Boutb OaroUna. Uay IS,
1918.)
GouiTTiBS (8 63*) — Officebb— Apfointmbnt.
l^e clerk of tbe board of county commls-
aioners of a county, composed of a supervisor
and two commissioners, holding for two years,
who is appointed over the protest of tbe soper-
Tiaor by the commiasloners appointed and quali-
fying In March. Is entitled to the office as
Vorette
against an appointee by Aa snperrisor and tt«
retirtag oomauBkloDen.
[Ed. Xote.— For other oases, see OotmtleB,
Cent Dig. SI 87-90; Dec Big: f es.*]
Qoo warranto by the State, on the r^tloa
of J. S. Aker, against J(dm J. MajOT* to d^
termlne conflicting tilalm to tOet, Jndf
ment for relator.
K. P. Smith, of Andmcm, for idator.
PER OtntlAIC. TUs la an action. In th»
nature of qno warranto, to detemdne tba
conflicting claims of fbe plaintiff and deBmd-
ant to the office of clerk of the board of cooa-
ty commiMflonera for Andmon ooonty. That
board Is eompoaed of tbe county anperrlRir,
whQ It elected by Qie people and two oom-
Diiasloners, who are i^ppolnted by tiie QoTem-
or, upon the reconunendatlim oC tbe mcm-
ben of tiie <3enaral Aaaunbly Iter tbat eonn-
ty. The texm of ofBce «f tbe raperrlactt and
comgdarioners Is two years, and until their
ETQCceesors are elected or appointed and qual-
ified. By statute the smtervlBor la mado
chairman of the board. CKvll Code 101% U
936, 988, 940.
Tbe present ■nperrlsor, being In office^ waa
re-eleeted. at flw laat general Section, to
succeed Mmaaif, and was oommlsdwed for
hla new term In the early part of January.
Tbe present commissioners were not appoint-
ed and commissioned until the early part of
March. Before that time^ to wl^ In Jannaxy,
the Bupervlaor and outgoing oommiaaloners
undertook to appoint defendant clerk of the
board for two years from that date. At a
meeting of tbe board held on Maxth 4tfa,
after tbe present comndasIonerB wetv ap-
pointed and qnaliHed, tbe plaintiff was ap-
pdnted clerk of tbe board by than, over tbe
objection of the anperrlsor, nho contended
that the defiendant^ app^tmcnt waa cood
for two yearn Tbe prlmciplu announced by
ttiis eonrt In tbe case of Bandera t. BAnm,
78 8. a 171, 6S 8. B. "MO, ate condulve of
every qneatlon Involved In tbla case, and ap-
plied to tbe fbcta of tbla case^ Cbey show
dearly tbM tbe plalntUC la entitled to tba
office.
It la therefore adjudgiea tbat the defend-
ant baa bo rl^ to tbe office in qEOeetlini, and
tbat ha be andnded tbereCrom, and tbat be
dellvw to tbe plaintiff tbe booka and other
prepevty and -apportenances of tbe offlo^ anA
pay the costs of these proceedings.
I sM MUM tapis sad
HVMBBB tB.X>«ib DIE. a Asi. Dig. Xay-Nsu S«lM * Rs»^ laanss
Digitized by Google
Giu)
HAUM Oim T. HIMHAK. '
(SapTsm* Court of Qeoiglv Jul; 18, JtilS.)
(SyUahiu Iv iheVovrt.)
Vendo* ahd Porcbaseb (S 164*>— Acnoir ht
VBNDOB — MlBTAKI lit DESCBITOON — NOW-
Sdh.
Then ^wm no error In srantiDg & ooiualt
[Ed. Note^For other csmk Me Vendor and
PuTchaaer, Cent. Pis- S 328; Dec Dig. 1 191.*]
Brror from Superior doxat, Ttoltoii Oomity;
J. 'T. FendletOB, Judge.
Bgnltable action by Mn. 8. TS. Qabbett
against George B. Hinman. Hrs. Gabbett
dying, W. B. Hammond, execator, was sob-
atitated. Judgment for defraidant; and tbe
substituted plalntur brings error. Affirmed.
W. R. Hammond, of Atlanta, In pro. per.
Tye, Peeples & Jordan, of Atlanta, for de-
fendant In error. '
ATKINSON, J. Mrs. 8. E. Gabbett Institu-
ted an action to reform a deed, and for other
equitable relief, against George B. Hinman.
Pending the action Mrs.. Gabbett died, and
thereafter an amendment was allowed mak-
ing her executor the party plaintiff. Tbe bill
of exceptions assigns error, on a judgment
of nonsuit.
In the city of Atlanta, Currier street runs
east and west At right angles from the
north Blpley street runs into It Farther
east Lowndes street opens lnto.it, approach-
ing at right angles from the south. On the
east side of Ripley street and the north
side of Currier street Mrs. Hinman owned a
lot which fronted on both of these streets.
Adjoining this lot on the east and extending
along the north side of Currio* street beyond
the projection of Lowndes street was a tract
of land b^onglng to Mrs. Gabbett She sold
a portion of this property to the defendant
tbe husband of Mrs. Hinman, and executed a
deed describing the property as follows: "All
that tract or parcel of land lying In land lot
fifty (SO) of the fourteenth (14th) district of
originally Henry, now Fulton, county, Geor-
gia, commencing at a point on the nortKem
side of Currier street, at tbe comer of Cora
F. Hlnman's lot, one hundred and sixty-one
(161) feet more or less, east of Ripl«y street
at which point was the dividing line between
BlpIey and Qabbett property as per plat
made by H. L. Currier April 23, 1862; from
thence running easterly along the nwthom
Bide of Currier street one hundred and seren-
ty-flT« (176) feet more or less to a point di-
rectly opposite the western side of Lowndes
street now opoiing into Currier street on the
Bouthera side thereof; thence running north-
erly, in a line parallel with Ripley street
one hundred (lOO) feet; thence in a westerly
direction, parallel with Currier street to a
point on the dividing line between Ripley
ud Qabbett property as per plat as afore-
said; thenoe fiflfawlng said divldhi^ Itne In a
sontihwly direction to bdglnnlu^ ^Int*** ^
Two years later Mrs. Gabbett instituted ad
action to reform the deed, so that It would
conTey a frontage of 176 ffeet on Currier
street commencing at a point 27 feet east of
the banning point described In tbe deed,
and ext^dlng east tt> the pn^ectlon of
Lowndes street Qte effect ot which would
be to withdraw ftom the deed the southwest
tomer of -tbe land granted, whereby Mrs.
Gabbett would retain A triangular Shaped
parcel of land having as a base 27 feet front*
fng on Carried street With the Tertex about
80 feet bacfc in the lot thus prerentiug to
that extent def«idant*8 acquired land from
adjoining that of Mrs. Hinman. The alleged
grounds reUed on for r^ormatlon wwe ndih
take of ttie plalntlft and her agent at tile
time the land was measured and the deed
OEOCuted, a« to tbe trro loeatlini of tiie divid-
ing line between Mrs. fftiwiffn and Mrs. Qab-
bett ttom, wUeh the measurement cum*
menced, whor^, Instead of oommaidng at
the true lln^ the measnrcmait began 27 feet
east thwflot and, vrtten inecHnmted In ttie
deed, resulted In giving defendant 27 feet
frontage more than be bought and paid for,
and actual ftaod Ok tiie part of dsfiandant;
in tkkt he knew the location of the true
dividing llne^ and that tbe at wUdi
the measnremsnt commmced was 27 tevt east
thereof, and knew that the plaintiff and her
agent were Ignorant thereof, bnt nerntJU-
less, in order to gain tbat amoont of frontage
without paying for It, co-operated with the
plaintiff's agmt In making the taiat meas-
urement knowli^r that tbe agent was acting
under a mistake and failed to Inform blm
of It, and after tbe measoronent was so
made caused tbe deed to be executed, where-
by It couT^ed to him 202 feet frontage,
while be only paid for 176. It was alleged
that tbe land was bought by the front foot
at ¥10 per foot and the land pointed out to
the defendant and sold to him, and paid for
by him, was only the 176 feet frontage next
west from the projection of Lowndes street
and did not indnde the 27 feet f^tage that
lay next west of It Based on the same al-
legations, of fraud and mistake^ th«e were
prayers tor the recovery of that part of tbe
land which it was alleged was not intended
to be conveyed, and, If not entitled to mch
relief, that plaintiff have a money judgment
for $270 as tbe iwiee thereof. '
When the case was brought to tbls court
on exceptions to a judgment , dismissing Uie
petition on general demurrer, the deed was
construed as conveyli^ all tbe land betweoi
the projection of Lowndes street and the
true Une of division between Mrs. wiffiman
and Mrs. Qabbett; and on the allegations <tf
mistake on the 'one band and fraud on the
other it was tatid that a case was allegdd
tor reformation of the deed, and the judg-
78S.B.-C7 Digitized by Vjlrogie
messt wt9 Ecrreraed. Oabbett t. Hlnman, 137
Oa. 143. 72 S. EL 024. On the svbaeqneDt
trial, tbe ag^t of plaintiff, who took the
measurement, a Bnrreror, and the defendant
were Introduced ias witnesses for plaintiff.
Tbe first-named witness testified that with
the asslstaQce of the defendant be measured
off the land with a tape line, and, thinking
the true line of division was marked bj an
9ld fence, he adopted that as the starting
point, and held one »d of the tape while the
d^endant carried the other eastward along
tlie line of Cnrrler street, and In that man-
ma fbej measured down to the [wojectlon of
Lowndes street whieb was found to be 175
feet; that be pointed out to the defendant
the land that be was sdllng, and that It was
sold by the foot There was also evidence
that the point at which this measurement
commenced was 27 feet east of the true di-
viding line between BCrs. Oabbett and Mrs.
Hlnman. The defendant denied that he
bongfat b7 tbe foot, but tostlfled that be
boi^ht by tbe tract. Intending to buy all of
tbe land betwen Mrs. Hlnroan's lot and the
projection of Lowndes street There was no
oontroversy as to tbe fact that plaintiff In-
traded to sell and defmdant intended
to buy back to Mrs. Hlnman's lot Tbe
plaintiff's agent, who made tlie sale, admit-
ted, on crose-ezandnatlon, that Oie Intention
was to sell the defendant all the land back to
Mrs. Hlnman's line, and that he pointed
out as an Inducement that by making tbe
purchase the defendant would straighten his
line. There was no evidence that the de-
fendant knew the tme line of division, or
that be knew that the plaintiff's agent was
acting under a mistake as to the starting
point In making the measurement The evi-
dence that the sale was Intended to include
all the land back to Mrs. Hlnman's lot dis-
proves the charge that the land sought to be
carved out of tbe deed was not sold.
While eqult? will, in a proper case, so re-
form a deed to land that It will conform to
the contract of sale. It will nMther make a
contract for the parties nor so reform a deed
that it would defeat the contract The evi-
dence did not make a case for reforming
tbe deed; and as that instrument is conclu-
sive upon the right of plaintiff to recover the
land. It did not authorize a verdict for the
land. The deed was a conveyance by the
tract. The front llne^ which formed the
bone of contention, was described as begin-
ning at the east line of Mrs. Hlnman's lot
which was recited to be a glvw distance
from Ripley street, "more or less," and run-
ning thence 176 feet, "more or less," to the
projection of Lowndes street The defendant
did not know accurately the location of the
east line of Mrs. Hlnman's lot did not
know that the plaintiff's a^nt commenced
the measuremoit east of the true line, or
that be was laboring under a mistake in
(Oa.
adopting a starting point Nor did be do
anything to mislead the plaintiff or her
agent either in measuring the line or In
drawing the deed. In such case the rule is
that, in order for one party to such a sale
of land to be uitltled to a reduction on ac-
count of fraud by tbe otba, the fraud mast
be BCtaaL Sknlen v. Roper, 133 Ga. 726^ 06
S. E. d34. See, also, Wylly t. Gasan, 69
Ga. S06, when the rule was applied to tbe
sale of a dtj lot when sold by the tract, and
the words "DKnre or lead" were used in sta^
Ing tbe quantity of land sold. The evldenoe
was Insnfficient to support a rerdict In ftvor
of the plaintiff for any of the relief son^t,
and then was no error in granting a nonsuit.
Judgment afflnned. All the Jnstloes eon-
cnr.
att Ga. M)
TIDWBLL T. CENTRAL OF OBOROIA
KT. CO.
(Snpreme Court of Cieorgla. July 18, 1918.)
(SyllalHu iy th9 Court.)
Uabtsb and Sebvaut (i 244*)— Injubus t«
SSBVAIfT— GOHTBXBUTOBT NEQUOKNCE.
Under tbe facts of this case, there was no
error in granting a nonsuit
[Ed. Note.— For other cases, see Master and
Servant Cent Dig. fS 776-777; Dec. Dig. f
244.*]
Error from Superior Cour^ Foltoo Coimty ;
Geo. li. Bell, Judg&
Action by J. F. Tldwell against the Central
of Georgia Railway Company. Judgment for
defendant and plaintiff brings error. Af-
firmed.
J. F. Tidwell, an engineer, instituted an
action for damages against bis employer, the
Central of Georgia Hallway Company. By
the pleadings and his evidence the following
case was presented:
The defendant maintained three parallel
tracks going out of Atlanta in the direction
of East Pobit and other places, which, com-
mencing with the most northerly, were num-
bered 1, 2, and 8, respectively. These were
Intersected by the two diverging prongs of a
T approaching from tbe south, known, re-
spectively, as the "North T," or "Belt Line
No. 1," and "South T," or "Belt Mne No. 2,"
of the Atlanta & West Point Railroad. De-
fendant's tracks Nos. 1 and 2 were "main line
tracks and operated nnder a block syston.'*
The track No. 3 was a "switch tradE," used
for switching cars and the like, and was not
under the "block system"; but to avoid col-
lision with trains on the respective tracks
of the Atlanta & West Point Railroad T'a,
mentioned above, trflck Mo- 8 was operated
under an *'lnterlo<^lng system," in whlcb
certain "derailing switches" were wuployei,
which were designed to derail trains on track
No. 3 before reaching the belt line unless the
switches were closed, in which ev^ the
78 SOUTHBASTERN BEPOBTES
•I' or uiber cssm bw muds topic and swUob NUMBBR Id Dm. Die A Am. Die ^^|'||^ ^
0*.)
TIDWILL ▼. OSNTBAI* 09 QBOBaZA ST. OO.
899
trains would pass orer tiie line safely.
Ttaere were two of these derailing switches,
one for each of the Intersections of the prongs
of the T with track. No. 3. The distance
along track No. 8 from the point at which it
was Intersected by the respective prongs of
the Y was estimated at from 200 to 400
yards. Abont midway between these points
was a switch tower, from which the derail-
ing switches were operated. In connection
with this were certain "dwarf signals," sta-
tioned about 6 feet from the respectlTe de-
railing switches, by means of which the oper-
ator In the tower indicated to approa<±ilng
trainmen on track No. 8 wbetbnr the switch
was open or closed. If closed, the switch
ta^t wonld show "white"; if open, it wonld
show "red." Defendant promolgated certain
rales, one of which provided that these dwarf
signala "mnst never be passed when the
switch target shows red."
On a day in December, 1909, the plaintiff
was operating his «[^ine, drawing several
cars, orer track No. 8. He was fiunfllar with
the location and object of the 'derailing
switches" and "dwarf Blgnala,** and the man-
ner of operating the latter, and, the rale
above motioned, and knew the danger of
allowing his englDe to enter elthor.ot the de-
railing swltt^ieB. Going away from Atlanta,
on approaching the first derailing swltdi,
the target of the dwarf signal dUq^layed
"white," and the plaintiff passed over the
switch safely, and proceeded along track No.
3 in the direction of the next derailing switch,
running bis engine at the rate of about 15
miles an boor. The first dwarf signal having
displayed a "white" target, he assumed that
the same target would be displayed at the
second, and did not discover what signal the
latter target displayed. In fact, it displayed
"red," and the switch was open, and the
engine ran upon it and was derailed, thereby
injuring plaintiff. He did not attempt to dis-
cover the second signal, giving as his reason
therefor that be felt sure it was like the first,
and be could not have seen it becanse of
smoke from an engine running slightly in ad-
vance of him on track No. 1. Nor did he
attempt to stop or slacken the speed of his
engine, bnt continued to ran at the rate of
16 miles an hour until be was about tq run on
the second derailing switch, or, to use his ewn
language, until be was "within 6 feet" of
the switch, at which time he discovered that
the switch was open, but it was too late to
avoid the castastrophe. He also testified that
there were no trains in al^it oa the Y, and,
there being non^ there was no necessity for
the signal to be operated with the derailing
switch open. ' It was the custom and practice
of engineers, wboi tb^ were gives a "widUf
signal at the first switch, to proceed "on
tbrongh" over the second. A witness tsstl-
fled, without objection, that In response to
the inqnlry. "Wl^ was the switch ovteaT the
operator in the tower answered, "He had let
a backup on the West P<^t belt line, and
when be let them back on the main line he
forgot to close the switch." ,
At the conclusion of the plaintiff's evidence,
the Judg^ on motion, granted a nonsuit; and
the plaintiff eseepUA.
Westmoreland Bros., of Atlanta, tar idaln*
tiff in error. Uttle & Powell, of Atlanta, for
defendant In error.
ATKINSON, X Tbe snbstanoe of plain-
tiff's case Is fUrly set fOrth in the statemmt
of facts. TreaUng as trae all that Is stated,
and giving the plaintiff tbe bentf t of all rea-
sonable dednctlona to be drawn from the evi-
dence. It Is fUear tbat his evidence did not
present a canse of actltm. Ooudderlng the
object and diaracter of the "derailing switch-
es" and "dwarf signals," and defendant's
promulgated rale, with whlcb plaintiff was
familiar, prohibiting tbe passing of signals
where a red light was displayed, the rale was
essential to the safe operation of tbe defend-
ant's trains at that point, and the plaintiff
was under duty to observe It, and knew the
danger of disregarding it He disobeyed it
by running his train past the dwarf dgnal
which protected tbe open switch where the
injury occurred. He voluntarily took tbe
risk of what It might Indicate If be had taken
the precaution to sea The defendant's di-
rections for plaintUTs conduct under snch
circumstances were in plain terms, and he
deliberately violated tbe precautions for bis
safety and that of his employer's property.
It was not a case of defect In tbe instrament
and a failure thereof to give a signal. Tbe
derailing switdi did accomplish what tbe
plaintiff knew It was designed to accomplish,
and the signal was present to Inform him
that it was in position to bring about the re-
sult tbat followed. It was no answer that
engine^s were accustomed to disobey tbls
rule, or that there were no trains in sight on
the Y of the Atlanta & West Point RailroadL
or that smoke from another engine might
have so covered the track that the plaintiff
could not have seen the signal, had he at-
tempted to do so. That he did not see it was
purely bis own negligence, which, under tbe
facts, was the proximate cause of the injury.
This is the only legitimate Inference to be
drawn tnm the evidence as adduced, and it
presoits a case where there could not be a
recovery, even in view of the enlarged lia-
bility of railroad common carriers to th^r
employfe under the provisions of the act ap>
proved August 16, 1900. Acts 1909, 100;
GlvU Code, i 27S2 et seq.
Judgment affirmed. All the Justices con-
cur.
Digitized by Goog
• 78 SO1IT0BA8TSIRN BBPORTHB (Oo.
m.
<1M Oft. SU)
FLORIDA YELLOW PINE CO. et ■! T.
FLINT RlVm MA VAX* 8T0BBS OO.
(Supreme Ooort of 'Oeorgla. July 18, 1913.)
(Syltabu*. hy iht Court.)
% PLEADino rt 378*>— lasuEs, Pboo». and
Vabiance-^Mattbbs to be Pbovbd — Admib-
It was charged in the petitioD and admitted
In the answer, that plaintiff and defendant
daimed from a common grantor the title to and
the right to. tK>x the trees for turpentine pur-
poses on a described lot of land. Such admis-
Bion relieved the plaintiff of the necessity of
showing title into the common grantOT in an ac-
tion to enjoin the defendant from ralng the tim-
ber for turpentine purposes.
[Ed. Note.— For other cases, see Pleading.
Cent. Dig. H 1225-1227 ; Dec Dig. f 37fi.*]
2. Evidence (I 266*)— ADiasaxBiuTX— Bioni
TO Refute XninsBioN.
A party to a suit will not be allowed to
disptDve an admission made in his pleadings,
without withdrawing it from the record.
[Ed. Note.— For other cases, see Evidence,
Cent Dig. SS 1029-1050; Dec Dig. S 265.*]
8. IlfJUNCnOK (J 48*)— Gbouhdb— TbEBPASBu
A tl^apass may be restrained in eqaity,
iHtere it is a continotng me. and will give rise
to ft multiplicity of soi^ althoo^ the timpasa-
w may be solvent
[Ed. Mote.— For other cases, see Injunction,
Cent Dig. { 101 ; Dec Dig. f 48.*]
4. InJUNOTIOH a 18S*)— IfAHDATOBT IITJUHO-
TIOH.
A temporary Injanetion, restraining the de-
fendant from entering upon land and boxing
for turpentine purposes timber claimed by the
plaintiff, is cot mandatory in character, al-
though the defendant may be oagaged in boxing
the ttmbw at the time die pcdiraiury natraln-
ing order was granted.
[Ed. Note^For other eaaea, see Injunctiioii,
Cent Dig. 1 802; Dec. Dig. | 133.*]
Error from Superior Court, Decatar Coun-
ty; Frank Park, Jadfo.
Acttoa b7 the Flint River Manl Stone
Company againat the Florida Yellow Pine
Company and others. Jn^cment tor plain-
tiff, and defendants brloft error. Affirmed.
W. V. PuBter, of Balnbrldge, for plaintifltB
m error. A. H. Ruseell and M. El O'Neal,
both of Baii^ridge, fw dedSnidant in error.
nVAMS. p. J. [1] 1. The plaiDtlff sought
to enjoin the defendants from cupping, box-
ing, and extracting gum from the trees on
a described tract of land. In the petition
it was alleged that W. N. Spear on November
10; 1905, being the owner of the timber, ex-
ecuted to J. J. Calder a turpentine lease for
the purpose of boxing, working, and other-
wise using the timber for turpentine pnr^
poses, the lease providing that the lessee may
commence working the timber for turpentine
at any time that be may desire, and shall
have the rii^t to continue to work the tim-
ber for the fall term of six years from the
time the boxing and working first commenc-
ed, which lease was duly recorded February
2, 1006; that Calder assigned his interest
In the lease to the plalntifl. In the fifth
panwraph It was allesed that tiia deHsndantB
about March; 1912. altered upon the land
and are cupping the timber for torpentiiM
purposes; and In the semith par^raiA it
was alleged that the plaintiff and defend-
ants claimed under the same common grantor,
to wit, W. Spear, and that the plaintiff's
title Is clear. In their answer the d^endanta
admitted having entered upon the land and
worked and cupped the timber thereon un-
der a lease made by W. N. Bpear to the de-
fendants on February 17, 1011. In re^onae
to the allegations of Che seventh paragraph
the defendants denied the same, and said
that the petitioner tiad no titie In law or in
equity to the timber, llie effect of the plead-
ings is to admit that both claim under a
common grantor. The defoidants expressly
admitted that they entered upon the land
and worked the timber for turpentine pur-
poses by virtue of a conveyance from the
same person that the plaintiff claimed un-
der, and alleged by them to be the owner of
the timber. The seventh paragraph of the
petition alleged, not only that both parties
claimed under the same grantor, but also
that the plaintiff's title was clear, and the
denial is to the effect that the plaintiff lias
no titie in law or in equity to the timber. So,
on the whole, we construe the pleadings of
the plaintiff to charge that the defendants
claim the light to work the turpentine un-
der a conveyance from the same parson un-
der whom the plaintiff claims, who was al-
leged to be the owner thereof, and the answ^
of the defendants to admit this allegation.
Where It appears from the petition and the
answer that each party to the suit claims
from the same common grantor, it la not nec-
essary to show title Into the common source.
Brinkley v. Bell, 126 Oa. 482 <2), 55 S. B. 187 ;
Garbutt Lumber Go. t. Wall, 126 Oa. 17!^
54 S. El 944.
[2] 2. The defendants did not set up in
their answer any other titie than the lease
from W. N. S[>eaT, which was of subsequent
date to the plaintiff's; but on the inter-
locutory hearing he offered to prove an out-
standing titie acquired subsequently to the
filing of the suit, and the court repelled evi-
dence of such titie. Where a defendant in
his answer admits that he claims under a
common grantor, he will not be permitted to
prove a paramount outstanding titie. The
averment that the defendants claimed tlUe
from a common grantor is a solemn admls-
idon in Judlcio, and they will not be permit-
ted to introduce evidence to deny any admla-
elon in the record until such admission has
been withdrawn. Pinkham t. Glbbs, 108
Ga. 141, 33 S. E. 046 ; Alabama Midland R.
B. Co. T. Guilford, 114 Oa. 62T, 40 S. XL 704.
The court properly reused to receive the tes-
timony.
[S] 3. The evidence authorized a finding
that the trespass was a continuing one, and
that unless the injunction was granted a
c«ue4 b«e Muue loviti uid Motion NUHBUt In Deo. Dig. A Am. Dig. Key-Mo. B«rtti^%A«rrJd4<mB
DigHized by VjOOy Ic
GaO FIORIDA TELLOW PINS OO. t. imimT BXVWt XfAYAL STORKS 00. 901
miiltU)Ueitj ot salts would ensae. In «acb
ease an InjimctlOD will Issue. Gray Lomber
Oo. T. GmUh, 122 Oa; S4% 50 S. B. 104;
Loudermlllc t. Marttn. ISO Oa. BSA, 61 & B).
122.
[4] 4. court restralnea the aefecdants
from going npoD the land, and from cnpplnft
boxing, and working the timber. Inasmuch
as the defendant were already upon tiie
land, engaged in cuttlDg, boxing, and work-
ing the timber, It Is Contended that the in-
junction was mandatory In character. M'e
do not think so. The ac^ of the court's
order was, not to require the defendants to
do a particular axt, but to refrain from
cutting and boxing the timber.
JutUEment attrmed. All the Jastlcea <on*
cur.
a« <H. s»)
VLOBIDA nSLUaW PINB oo. T. FUNT
BITER NATAL ST0BS8 00.
(Sopsune Oomt <tf Geuxia. Jolr 18» 1918.)
(SvllahM* hf the Court.)
Loos AND LoaOIH» (S «•>— iNJUHOraON (I
148*}— DnoBmoir— TuBKB Luss— Vobrx'
TUBB.
All owner of timber made' an Isstmment in
the form of a deed, expreaslnx a consideration
of $1 paid, and zecitiDg that the maker "baa
ftEDted, baiiAlned, leased, and conveyed, and
does by these presents grant, bargain, lease,
and conTey," to the other party, his heirs and
assigns, "lor the aam of one hundred and fifty
($160.00) dollars." all of the timber on a de-
scribed tract ot land, for the purpose of cop-
plog, working, and otherwise uung such timber
for torpentine purposes. There was a haben-
dum clause, a waxran^ and a clause giving a
right of aselgnment The Instmment also in-
cluded tbe following: **Tbe beginning of the
work [of] tbe turpenttne tntsiness shafl be De-
cember iT 1011, and contiDae until December 1,
1016, and the payment of the abore snm ahali
be made on or before December 1, 1811." TblB
was attested and recorded like a deed. Held
that, although the work did not begin and Qie
payment was not made on December 1, lOll,
thu did not forfeit all rl^ts on tbe part of tbe
lessee; and where, early in tbe year the
aame grantor made another lease of the timber
for turpentine purposes to one who was affect-
ed with notice of the prior lease, there vras no
abuse of dlscietion in granting au Inionction to
restrain the sec<md lessee from nring the timber
for turpentine purposes, at the same time re-
quiring tbe plaintiff to srtve -a bond to pay tb^
defendant any amount which the latter migfat
recover on (he final trial, and proridlng that if
tlds ahoold not be done in 10 days the defaid-
ant might give a like bond, and in that event
the plaintiS should be enjoined.
[Ed. Note.— For other cases, see Logs and
LMging, Cent Dig. 6-12; Dec. Dig. 18;*
Infunction, Oent Dig. {{ 323-334 ; Dec Dig. i
148.*]
Error from Superior Court, Decatur Coun-
ty; Frank Park, Judge,
Action by the FUnt Blver Naval Storea
Company against the Florida Yellow Pine
Company. An injunction was granted condi-
tionally, and defendant brings error. Af-
firmed.
On May U, 1011, J. B. 6ho1|9on executed to
O. Cunningham an instrument which ex-
pressed a consideration of 91. It then de-
clared that Cunningham "haa . granted, bar-
gained, leased, and conveyed, and does ^
these presents grant, bargiUn, lease, and om-
vey, unto the said party of the second part,
his heirs and aaaigns, for the snm of one
hundr«d and fifty ($1S0.00) dollara, all of the
timber upon the fbUowlng described tract <tf
land, for the parpoae of capping, workls^
and otherwise using said timber for tnrpMk-
tlne pnrposea: All (he turpentine timber he
owns <Hi lot No. 847 in the Twenty-Ftrst dis-
trict of Decatur coDntTi Georgia. Tbe be^
ning of the work [of] the torpentine business
shall be December 1, 1011, and continue until
December 1, 1916, and the paymei^ of tbs
above amn shall be made on w before Deosm-
ber 1, lOU." It also contained the orasl
habendum dense, oovenaat of wairanty, and
provision for rl^t of egress and insresB^ and
the right nit assignment It was secprded,
and later assigned OoDnlngham to tbe
Balntnrtdge Naval Stores Company, ud, h7
that company to the FUnt B^ver Naval
Stores Company. Neither Onnnlntfiaip nnr
the assignees under blm paid the purchase
money or b^^ working the timber for tnr*
pentlne purposes. On Idbrdi 4, 1013, Oholson
executed to the Florida Xdlow Pine Timber
Company a turpentine lease covering the
same timber, and fontalnlng the usual ha-
bendum clause covenant of warranty, and
right of assignment. That oompany b^tao
working the tlmt>er,for turpentine purposes.
The Flint Bivw Naval Stores C<i»mpany there-
np<m filed a petition to enjoin sudi work, and
to recover damages for what had already
been done. On the hearing the presiding
Judge granted the Injunction, but required
the plaintiff to file a bond to pay the defend-
ants any amount which the Jury might find
against the plaintiff at the final trial, and
provided that If the bond should not be givoi
within 10 days the defendants might give a
similar bond, and the plaintiff should thep bo
wjolned. The defendants excepted.
W. T. Ouster, of Balnbrldge, for plaintiff in
erior. A. H. Bussell and M. S. O'Neal, both
of Balnbridge, for defendant In error.
LUMPKIN, J. Each party chilmed under
what is called a lease <^ the timber for turpen-
tine purposes from the same owner. The
taker of the subsequent lease proceeded to
use the timber for these purposes. The hold-
er of the first lease sought to enjoin sn<di
operation as a continuing trespass. The pre-
siding Judge granted an interlocutory Injunc-
tion, requiring bond to be given. The case
turned on the question: Which of the con-
testants had the superior right? The Instru-
ment under which the plaintiff claimed .was
in the form of a deed, reciting a present con-
sideration of $1 paid, and stating that the
•For ether esMS BM SUM topie SBd smUos NUHBSRIb n«e. * l^*r*Ho. Sarlas A K^z^uIsbmI
*^ Digilizedby v30(jyiC
902
n bouthbabtbrn bbpokter
further amount of $100 was to be paid on or
before December 1st tiiereafter. It declared
that "the beginning of the work [of] the
turpentine business shall be December 1,
1911, and continue nntll December 1, 1916."
This fixed the limits within which the gran-
tee might exercise the right to use the tim-
ber toT the purpose named, bnt it did not pro-
vide for a forfeiture or loss of the right if
be sbonld not begin work on that day. The
date mentioned for beginning the work and
that for payment were the same; but there
was no provision for a termination of the
right in case payment should not be made
on that date. The paper here Involved differs
from that considered in Clyatt v. Barbour,
111 Oa. 180, 36 S. E. 468. There was no ef-
fort in the present case to use the privilege
without payment, nor was there any refusal
of payment on demand, nor any allegation
of Insolvency on the part of tbe holder of
such Instrument. The lease included also the
grant of rights of Ingress and egress, a cove-
nant of warranty, and a right of assignment,
and was recorded like a deed. The case is
more like that of Baxter v. Mattox, 106 Ga.
844, 82 8. B. 04. than that above cited. The
grantor, on March 4, 1013, made another lease
of the same timber for the same purpose to
the defendant company. There was no de-
nial that this lessee was affected with notice,
and that it was proceeding to use the timber
for tmpentlne purposes; and there was no
abuse of discretion in granting the interlocu-
tory injunction, with the protective provisions
as to requiring bond. Florida Tellow Pine
Go. T. rilnt Biver Naval Stores Go., 78 & B.
900.
Jadfmmt affirmed. All tbe JniUcea concar.
(UD Oa. M8>
PRITCHETT et al. v. KENNEDY.
(Sapreme Court of Georgia. July 16* 191S.)
(ByUabv* (y ih» CottriJ
1. Pabtrbbship (5 324*) — AcconnnNa — Ih-
Jtrncriow— Reoeiveb.
On an interlocutory bearing of an aiHitlica'
tion for injnnction and receiver by one partner
gainst another, in an action for dissolotlon of
the firm and an accouoting, where both i>artiefl
Jirayed for diasolutlon and accounting, and the
adia was authorized to find that both parties
violated tbe reciprocal duties of each to tbe
other as partners, among others, in the matters
of properly accounting to the other, and in tak-
ing exclusive possession of firm assets, consist-
ing of products and earnings of the basioesa,
there was no abuse of discretion In granting the
injanetlon and appointlne a receiver, althoogh
neither partner was Insolvent, and the except-
ing partner offered to give bond for proper ac-
counting as to the assets In bis bauds.
IBd. Note.— For other cases, see Partnersbip,
Gent Dig. H 750, 706; Dec. Dig. | 324.«]
2. Pabtitebshxp (% 327*)— AcconwTiNo— Pbti-
non— SiraiTCXKnct.
The case was tried on tiie pleadings. Tbe
petition was sworn to by tbe plaintiff positively
in so far as it referred to matters denved from
his own knowledge, but in so far as derived
from the knowledge of otiiers ht beQeved the
allegations to be tme. Most of the allegmtioBa
of tbe petition related to personal acts of the
plaintift, and acta of tbe defendant and her
agent concerning which the plaintiff had per-
sonal knowledge, and practically everything al-
leged which did not thus fall witbSn plaintifTs
knowledge was admitted in the answer. Sea
Beooett v. Smith. lOS Ga. 466, 84 S. B. 106;
Civil Code 19107l8 0476, 6476, 6477.
[Ed. Not& — For other cases, see Partnership,
Cent Dig. IS 760-778 ; Dea Dig. S 827.*1
Error from Superior Conr^ Lanrena Coun-
ty; E. J. Hawkins, Judge.
Action by J. O. Kennedy against Leila
Pritchett and others. Judgment for plain tiff,
and defendants bring error. Affirmed.
J. 8. Adams, of Dublin, and Hlnea & 3or-
dan, of Atlanta, tar plalntlfh In error. How-
ard & Hlgbtower, of DabUn, tor deffendant In
error,
ATKINSON, J. Juj^ent affirmed. AD
the Jasticea concur.
(US Oa. «00}
OU>S MOTOB WORKS T. OLDS OAK-
I^AKD CO.
(Supreme Conrt (tf Georgia. July 10, 1913.)
(SyUahtu hv the OowtJ
1. JVOaiaUtT (I 217*)— PUEADIITO (% 220*)—
AlCSNDlCEHT— DeMUBBBB— DlSUISSAI.
Where a demurrer to a petition was filed,
and on the hearing the court made an order
sustaining all the grounds of the demurrer ex-
cept three, and directing that tbe case be dis*
missed unless tbe plaintiff would, within five
days, offer an amendment to meet the grounds
of demarrer which were sustained, and within
tbe time allowed the plaintiff did amend the pe-
tition to meet tiie grounds of demurrer, which
amended petition was likewise demurred to, and
the court, on hearing the second demurrer, over-
ruled tbe same, except two grounds, which were
sustained, the original order of tbe court is to
be treated as a conditionaL and not an absolute
and final, judgment, as it did not finally dispose
of the case.
(a) A trial Jndie may. In an order snstainlng
a demurrer, provide toAt the plaintiff have aa
opportuni^ to amend his petition so as to meet
the groundi of demurrer. Lamar Drug Ga v.
First Nat Bank, 127 Ga. 448, 462 00 S.
E. 486: Buchan v. Williamson, 181 Ga. 001,
607, 62 S. B. 815: See, in this connection,
Dudley v. Mallery, 4 Ga. 52.
(b) Where, in such a case as above set forth,
tbe amended petition is eufScient to withstand
the ameoded demurrer, the case Is still in ooart^
and will not be dismissed.
[Ed. Note.— For other cases, see Judgment
Cent Dig. I S84: Dec. Dig. (217:* Pleading,
Cent Dig. it OTthOSS; Dec W I 226.*]
2. DEinjBBKBS TO AUBNDED PsnnOlT.
The court did not err in overruling the dc-
mnrrets to the amended petition.
Error from Superior Court, Fulton Gonn-
ty; J. T. Pendleton, Jndg&
Action by the Olds Oakland Company
against the Olds Motor Works. From a Judg-
ment for plaintur, defendant brings error.'
Affirmed.
•Vor ether cssss ss* same topla and section NVUBItB la Dec. Dig. A Am. Dig.
BOLHBS T. HOIilCEB
Oandler. niomson St Hlrsdk. ot Atlanta, for
plaintiff In error. Napter, Wright A Cox, of
Atlanta, for defendant in error.
HILL, J. Judgment affirmed. All tbe
JuBtloea ooncor.
a«> oa. a?)
HOLMES T. HOLMES.
<Snpreme Ooart of Georgia. July IB^ 191ftO
f8vnabM$ by Me OanrU
1. EXBCTITOBS AltD ADHinUIBATOXa (I S73*)—
Saus— Action AoAmsr Binon— InRiiBSS
— MiffTAKB or LAW.
A motual mistake of law le a good defenae
against an acti<m to recorer money, under con-
tract of porcbaae, where there la foil knowledge
of all the &ictB, provided the mistake be dear-
ly proved and the plaintiff cannot in good con-
science receive tiie money sued for.
[Ed. Note.— For other eaae^ aee Execnton
and Adminlatraton, Cent Dig. H 1519-1627;
Dec. Dig. t 878.*1
2. ExEcuTOBs ASD ADKunffraAToBS ^ 367*)—
Aduinibtbatob's Salb — Acnon Aqaxrbt
&iDDB»—DKnHaE»— Mistake or Law.
A hnaband and wife owned a tract of land
in common. Hie wife died, leaving her hnaband
and eight children aa her heirs at law. Sub-
■egnently the hnaband died. The adalt heira
agreed to sell to one of their number their re-
•pective aharea ; hut. o one of the sharei was
owned by the minor children of a deceased heir,
it was agreed that one of the heirs should ad-
minister opoQ both estates and sell the land at
administrator's aale for the parpoae of invest-
ing the purchaser with a good title to the
Vfiole. According application waa made to
the ordinary for administratioD on both estates.
.The attorney for the applicant and the ordinary
were of the opinion, and so advised, that. up-
on the death of the wife her estate in the land
passed to the husband as sole heir, and, act-
ing on this mistake of law, administration was
had upon the estate of the htuband alone. An
order of sole was granted, and the belr who
had contracted to buy became the purdiaser at
administrator's sale, bidding upon the land un-
der the mistake of law and the representation
of the administrator, who was a coheir, that
the title of both parents would pass to the par-
chaser by virtue of the sale. Afterwards the
pnrcbaser discovered the mistake of law under
wliich he acted, and refused to pay his bid. In
an action by the administrator to recover the
amount of the bid, kOd that a verdict for the
defendant woe proper.
[Ed. Mote.'— For other easea, aee Bzecntors
■nd Adniniatratora. Cent Dig. || 154&-1649;
Defc Dig. 1 8e7.*3
"Stmt from Snpolcnr Oonr^ Dade Oonnfr;
A. W. FIte, Judge.
Action by 3. D, Holmea, administrator,
against Wm. Holmes. Jndgment for defend-
ant, and plaintiff brings error. Affirmed.
The action Is by an admluistrator against
the highest bldd^ at an administrator's sale
of land, to recover the amount of the bid.
The defendant pleaded that he had bid upon
the land upon the representation of the ad-
ministrator, and under a mistake of law in-
duced by him. that his Intestate owned the
land, and that the administrator had the
right to sell and convey the entire lot, where-
as the administrator's intestate had only
title to a part of the lot of land, and that for
this reason he is relieved from liability for
the purchase money of the land, and the
sale is invalid. It appeared at the trial that
James C. Holmes and his wife owned a lot
of land. Mrs. Holmes died before her hus-
band, and npon the death of fifr. Holmes, the
defendant, who waa a son, contracted to buy
the shares his codlstrlbntees in the land.
He took conveyances from several of them*
and, as some wcxe minors, an administration
was deemed necessary in order that the de-
fendant might acquire a complete title. Ac-
cordingly a son, J. D. Holm^ applied for
letters of administration on the estates <ft
his father and mother in one petition. The
defendant submitted evidence that on the
day letters of administration were granted,
the ordinary, acting on the advice of an at-
torney of the applicant that upcm the death
of Mrs. Holmes all hu estate in the lud
passed by inheritance to her hmAiand, to the
exclusion of bet children, issued letters ot
adminiatnition only upon the estate ot James
O, Holmes to J. D. Holmes, who dnly qnall-
fled as administrator. The adminiBtrator
applied for leave to scU the land of his in-
testate, the order was duly granted, and
the land was advertised and sold as the land
of James O. Holmes, and was bid off by the
defen^nt Since the sale the d^endant has
acquired the Interests of all the heirs except
that of the minors, who own the Interest of
their father, a deceased son of Mr. and Mrs.
J. O. Holmes. liie administrator and the de-
fendant at the time of the sale mxe folly
informed of the respective ownershb) of
James C Holmes and his wlfft in the land,
and that Mra Holmes died about' thrte
years before her hosband, leaving e^t Chil-
dren, including the administrator and the
defendant The administrator testified that
be did not have sufficient money to discbarge
the debts of his intestate without a sale ot
the land (the amount of the debts did not
appear, though the Inference was that they
were not lai^) ; that he offered the land for
sale as being the sole property of his intes-
tate, but It was his understanding that his
Intestate owned but ^'/is of the land; that
by an arrangement with the defendant he
had accepted (500 for his share in the land.
The ^tate waa worth more than the amount
at which the adult heirs had agreed to sell
it to the defendant, and the administration
was had solely for the purpose of perfecting
title and protecting the minor heirs. Upon
the conclusion of the evidence the court di-
rected a verdict for the defendant
Fonst 4t Payne, of Ohattanooga, Tenn., tot
plaintiff in error. W. U. Jacoway, of Tren-
ton, for dtfendant In error.'
BVAMS, P. J. (after stating the fticts as
above). [11 The disposition of this case de-
^te oUur mam am same tsgie sad saotlen NVMBia «a. ^ * ^ °l>- ^bt-No, SwIsb *,
^ *^ Digitized by '
m
'pettds' npoB a dedstoh whether or not tts
Cardi brli^ It' wltblii the rule that, nnd^r the
doctrine of careat emptor, a parcbaser at
an admlnifltrator's sale cannot repudiate bis
bid because of a defective title, or want of
title in the decedent The principle of careat
emptor has never been carried to the extent
'tiiat a purchaser at an administrator's sale
la not reUerable against the fraud or mls-
reprerientation of an administrator. It an
administrator Is guilty ot Imposition, and
the purchaser Is influenced In making -his
bid on account of the fraud or mlsrepresenta-
tlon of the administrator, he Is rellevable of
his bid. Colbert t. Moore, 64 Ga. 502 ; Jones
T. Warnock, 87 Oa. 484; Bangabery v. Love,
95 Ga. 543, 22 S. a 617. If the administra-
tor had been guilty of such conduct as to
induce the purchaser to bid upon the faith
that his Intestate was the owner of the
whole fee, and knew that such bidding was
made under such misapprehension, It would
be inequitable for him to bold the purchaser
to a bid Induced by his own misrepresenta-
tion. There Is no pretense, however, in the
presoit case that the administrator has been
guUty of any intratlonal fraud or mlsrepre-
eentatlott. The parties seem to have acted
with a fall knowledge of all the facts, bat
under a misapprehension of the law as ap-
plied to these facts. There was a conference
among the children of Mr. and Mrs. Holmes.
One of the children desired to punduise the
land. A price was agreed upon. In the ne-
gotlatious all parties conceded that the minor
children of the deceased brother were en-
titled to his share, and that their Interest
coold not be conveyed on account of their
minority. To meet this difflcalty In the
matter of conveyance of title, an administra-
tion npon the estates of Mr. and Mrs. Holmes
was deemed necessazy. Accordingly, Uie
eldest brother was selected to apply for adr
ministration on both estateSi wlUi a view of
obtaining an ordor to sell the laud at admin-
istrator^ sale in efltoctnatlon of tlie agree-
ment among the adult hetrs. AroUcatton
was nude to the ordinary' pursuant to this
arrangement; bat It aj^eara that both the
am^licant^i attorney and tlie ordinary labor-
ed under a misapprehension of lav that npon
the death of Mrs. Holmes her entire estate
was inherited by ^er husband to the ezdn-
aitm of her children, and it was upon tUs as-
aoranoe by the ordinary and attorney for Ute
applicant that administration upon the estate
of Mrs. Holmes was abandoned, and letters
granted upon the estate of Mr. Holmes.
There is no dispute that this sale was plan-
ned and made solely for the purpose of iier-
fectlng title of the prospective bidder. At
the time of the suit the bidd^ was In posses-
sion of the land, having purchased the Inter-
ests of the adult heirs of his father and
mother. Some of these purchases were
made prior to the sale and some afterwards.
The law doee not look with favor upon
i(6a.
• -. ,1.. ■ T - . •*.
private agreements to divest the title of mi-
nors in property In pursuance of such, agree-
ment, whether made with the minoria them-
sdves or with others who have the mlnoitf
Interest at heart. The policy of the law ia
that sales where the Interest of minors Is In-
volved, under Jndldal process, shall be unfet-
tered by any private arrangetaient. The
minors are eatitled to Hitit diare of tba
land . at the price fixed by a sale pnrsoant to
the statute. likewise creditors are interest-
ed in having a sale of the property of ttieir
decedent free from any entanglements grow-
ing out of a private arranganent among hdra
that the property Should bring a spedflc
price at the sale. It Is therefore no argu-
ment In favor of the collection of a bid made
at an admlnstrator'a sale, under a mistake
of law, that the sale was pursunt to an ar-
rangement to which the bidder was a party
having for its purpose the divestiture of the
title of the heirs of the inteetate to the prop*
erty oCtered for sale.
The rule Is the same leqpwctlng pardiases
at sheriffs* sales aa It Is at admlnstrators*
sales. We have a . case of aa execntton sale,
where the purchaser thereat was a mortgagee
whose llMk was sapodor in date to tiie Jndf-
ments under whldi the property waa sold.
He purchased the pmpettr oader a mistake
of law that the effect of the sale would be to
divest the lien of his mortgage and entitle
him to participate in the proceeds. His com*
I>etitlve bidder waa laboring undw the same
iM>stwie» of law. Immediataiy after the land
was knodced off, he was apprised of his nda-
take, and notified the aheriff that be wonld
not comply with his bid. The land was Im-
mediately resold, and the siwriff, for the use
of the defendant in execution, brought salt
against him to recover the diffi«ence In the
two salea. The court denied him a reeowy,
on the principle that a ndstafce of law Is a
good defense against an action to recorw
money, provided the mistake la dearly
proved, and the plalntlfl cannot in good con-
science rec^ve the mom^. Collier t. Per-
keraon, 81 Ga. U7.
[9] This Is not a case whwe the pordiaser
almply bide vpon pnqtertv upoeed to paMie
sale by the administrator on the assomptloB
that the title of the adndalstiator's intestate
is good; nor Is it a case where be >elied en-
tirely upon the personal aasnranoe of the ad-
ministrator that tlie title of bis Intestate waa
good, other elements enter into tt It la a
family arrangement, entned Into bj all the
parties who were able to contract^ and the
bid by the defendant In the execution ot each
plan was made under a mistake of law, In-
duced by the plalntUTs counsel and the or-
dlnary, that the husband inherited the wife's
estate, to the exclusion of the children. Now
it wotUd be inequitable to allow the heirs of
Mrs. Holmes to have her Interest In the land
administered upon and sold for dlstribntion
among bar beli% ^h^^^^^i^^^^ve
18 BCNfTEdBAI^nSSA'mBPtlBTSIB
OEOKOIA TALGl;CO.T. OOHHTXA .^T^LC 00.
905
already received their. Bhare of the pprchase
pri?e qf the entire laud. The .minor children
of the deceased child of Mr. and Mrs. tiolmes
will not be hurt, because the undisputed tes-
tlnpony . in that the laud Is worth as much or
more tban the amount which was paid for
It at the administrator's sale. It would be
li^qaltable to allow them to have the benefit
of a portion of the land as being the proper-
ty of th^ grandmother's estate, and also
recdve their share of the proceeds of the
entire tract as being the pn^rty of their
grandfather. Nether does it appear that
the creditors of James C Holmes will sus-
tain any loss ; .for, while tlie amount of the
debts not made to appear, yet the Infer-
ence la strong that they are of very small
value. It does not appear that Mrs. Holmes
owed any debts at ali So that, under all
the circumstances, we believe that the sale
was made under a mutual mistake of law,
participated in by the administrator and
the Mdder, and that it wonld be inequitable
to require compliance with the bid. GItU
Code, I 4B76.
Judgment affirmed. AH the Justteea con-
cur.
aw Oa. S4S)
GUOROIA TALC CO. t. COHUTTA TAIX!
CO.
(Supreme Court of Georgia. July 16, 1813.)
fSvUabua by the Court.)
1. Boundaries (ft B2*)-'PBooaaKOKiHO Pao-
OBEDXnOS — BUBDBl!! OF PBOOF.
Ob the issue formed by a protest to the
return of proceaslonera, the burden is on the
applicQDt to make a prima faci^ case,
[Ed. Note.--Por other cases, see Boundariea,
Cent. Dig. H 253-260, 262, 263: Dec. Dig. S
62.*]
2. Tbiai. (S 2d6*)— PBocBsmoniHO Pbogeed'
INGS— INSTBUCTIOHH— ADVBSSB FOBSBSaiOH.
The atatQte provides that land procession-
ers, in the location of the line between coter-
minous iKQdowners, shall follow Certain rales,
one of which is that acquiescence for aeven
years, by acta or declarations of adjoining land"
owners, shall establish a dividing line, and an-
other IB that actual posaeasion under a claim
of right for more than seven years shall be re-
spected, and the lines so. itfarked as not to in-
terfere with such possession. Ad instruction
applying these roles was not cause for new
trial, because the court referred to the time of
acquiescence and actual possession as "a term
of years as the law prescribes" and "a nomber
of years," where In immediate connection
ttereirith he also Instructed the Jury, in the
langnage of Civil Code 1910, |S 8821, 3822. that
suco acquiescence or actual posseAion must
exist for aevep years. The evidence authorized
• the charge complained of.
tEd. Note.— For other cases, see Trial, Cent
Diff. » 706-713, 716, 716, 718; Dec Dig. {
8. Appeal AWn ^rbob ft 1066*)— BothtDaribb
(I 52*)— Harmless Ebbob— Peocessionino
Pboceedinqs— Natube.
The issue formed by a protest -is not of
title, but of boundary; and though the charge
of the court on adverse. possession, for 2Q. years
as tUvitif a prescriptive title may have been
ioappllcable, it was not injarious to the losing
party.
[Ed, Note.— For other cases, see Appeal and
Error, Cent. Dig. | 4220; Dee. Dig. jf 1066
Boundaries. Cent. Dig. || 26S-2eO, 262, 268;
Dec. Dig. S 52.*]
4. Appeal aKd Ebbob (I 1066*) — Habulbss
Ebbob— Instbdotxon— PaooEssiONina . Pbo-
CEEDIN Qfi
Civ. Code 1910, I 3819, which declares
that, when the surveyor's ptet shall be filed
with the ordinary, in all future disputes aris-
ing in reference to the boundary lines of the
tract surveyed, aucb plat shall be considered
prima facie correct, is Inapplicable to the issue
before the court formed by a protest to the
processioners' return. But the giving of tlUs
section in charge was not prejudicial to the
losing party, because In the trial of an issue
formed by a protest the return of the procea-
sioners is to be deemed prima fade correct.
{Ed. Note.— For other cases, see Appeal and
Error, Cent. Dig. S 4220; Dec. Dig. & 1066.*]
5. Tbial a 210*)— iNSTROCTioNa— Witnesses.
As it was not sought to impeach any wit-
ness by evidence introduced for that purpose,
it was not error to instruct the jury: "The
law presumes all witnesses are honest, and
tell uie tmth, until ths contrary appears by
proof."
[Ed. Note.— For other eases, see Trial. Oaot
Dfg. U 490-494, 501; Dee. Dig. f 210.^}
6. ESTABLISHUEITT OF BOUNnABT.
Other ast^ments of error are without
merit, and the evidence supports the verd^
Error fnmi Supwiw Gonrt, Bfonay Oonn-
t7i A. W. rite. Judge.
Pteoeailonlng proaeedlngs by the Georgia
Xalc Company against the G<di.atta Tale Com-
pany. The appUeant, being dia^^tlsfted with
the letnm of the processioners, ptotealod.
and the papers were returned to the auperior
court for trial. The Jury sustained the le*
turn of processioners, and from the judgn mt
the applicant brings error. Affirmed.
W. E. Mann, of Dalton, for plalntlf in
error. C. N. King, of Spring Place, fM 1e>
fendant in error.
EVANS, p. J. The Georgia Talc Oomi ny
and the Cohutta Talc Company own adj- (n-
ing lots of land. The former gave notlcf to
the latter, in order to have the line betw.Mn
the respective lots procesaioned in accordauce
with the statute. The processioners caused
the land to be survej'ed and a plat of the
same made by the county surveyor, which
plat was returned by them pursuant to the
statute and filed In the office of the ordinary.
The applicant, being diasatlsfled with the Mne
as run and marked by the processioners imd
surveyor, ^led his protest, and the papers
were returned to the superior court for trial.
The Jury sustained the return of the pro-'^es-
sioiiers.
[1] 1. The court ruled that the burdep. of
proof was upon, the applicant This ruiiiKE is
sustained by the decisions in' Rattaren v.
Morrow, 71 Ga. 528, and Chism v. Wlllierwon,
134 Ga. 636, 68 3. E. 425. In the former case
Tor otbsr caw sm auis topic and section NltMSBR in riac. 'O'it- a Am. Dig. Key-No. Serl<
■ ■ . -» M^. ■ ■ Digitiz'
909
78 SOUTHEASTERN REFOBTER
Hall, aaid: "There Is no direct rale upon
tba subject, and no reason occnrs to ns why
tbe applicant for tbe proceeding Is differently
situated from any other plaintiff or movant
In respect to this question. Where there Is
evidence on both sides, the plaintiff has the
right to open and conclude the argument"
[I] 2. Complaint Is made of an Instmction
that If the Jury should find that the line had
been acqnlesced In by the owners of tbe ad-
joining land for a number of years, or if the
Cobutta Talc Company had actual possession
of the land between the two lines for a term
of years as the law prescribes, they should
And against tbe protest The erttlclam is
that the Jury were not told the term or num-
btx of years neceasary to flx a line by acqui-
escence or actual possession. Thia particular
excerpt la opea to such critlcbsm, but in Im-
mediate connection therewith tbe court read
to the July tbe Code isovlalons as follows:
"* * * Acquiescence for seven years, by
acta or declaratlona of adjoining landowners,
shall establish a dividing line." "Where ac-
tual possession bas been bad under a claim
of right, for more tlian seven years, such
claim diall be respected, and the lines so
marked as not to Interfere with 8a<^ possea-
don." Civil Code, SI SS21, 3822. There was
evidence to authorize tbe ^arge, both upon
acquiescence and actual possesion.
[3] 3. The primary object of our proces-
sioning laws to to settle disputes of boundary
lines between coterminous landowners. It to
a summary proceeding, and Is not designed to
be a substitute for an action of ejectment
Title to not directly involved. In the instant
case the court read to the Jury certain sections
of the Code relating to adverse possession as
conatltntlng prescription. While these sec-
tions may have been Inapplicable to the case,
we do not think tbe losing party was injured
by the court's reading them to tbe jury.
[4] 4. CivU Code, I 3819. declares it to be
the duty of the county surveyor to make out
and certify a plat of tbe lines as run by him
and the processloners, and to deliver a copy
tlwreof to the applicant, and that "In all
future disputes arising In refoence to tbe
boundary lines of such tract, with any owner
of adjoining lands, having due notice of such
processioning, such plat, and the Unes so
marked, shall be prima fade correct, and
such plat • • • shall be admissible in
evidence, without further proof." The snb-
Ject-matta of thto section to tbe effect to be
given to a plat made by tbe surveyor under
tbe superintendence of tiie processloners, and
filed as provided by law, In subsequent dis-
putes between tbe ootermlnoos landowners.
It to Inapplicable to the issue formed by a
protest to the correctness of the plat Tbe
return of the processloners and the plat of
the surveyor are admissible In evidence in
tlie trial of an Inue formed by a protest to
the proeeaslCDers* retumi Tbey serve to
make out a prima fiide ease, aad, in Uie
absence of any other evidence, would author-
ize a verdict sustaining tte return. Castle-
berry V. Parrlsh, 13B Ga. 527, 6» S. B. 817.
Inasmuch as their introduction In evidence
makes a prima fade ease, the giving in
charge of tbe section referred t» was harm-
less error.
[B] 5. There was no attempt to impeacb
any witness by evidence introduced for that
purpose^ The court ^iged that "the law
presumes all witnesses are honest, and tell
the truth, until the contrary appears by
proof." This charge was not erroneoua.
CornwaU v. State, 01 6a. 277 tS). 18 S. EL
154; 40 Cyc. 2555.
[I] 6. There are other assignments of er-
ror ; but we do not think they are of such a
character aa to require a new trial. Tbejr
involve propositions which are well settled,
and a discussion of them would be without
any practical benefit The evidence was snf-
fldeut to authorize the verdlet, and no sufll-
cioit reascm to made to aKiear tor vacating IL
Jodgmemt afflnned. All tbe Jnstloes con-
cur.
cut Gs. «B>
MAYOR, ErrO. OF SAVANNAH t. STAND-
ARD FUEL SUPPLY 00.
(Supreme Court of Georgia. July 19, 191S.)
(ByJM»u by Oe CosrlJ
1. DzDIOATTOir (S IS*) — StBIEES— IVPUOA-
Tion.
Dedication to tbe public of a use of land
for a street rests uiion the Intent of tbe owner
to make aucb dedication. Where the dedicati<m
is not express, the acto of the owner relied up-
on to imply a dedlcatttA must be sneb as dear-
ly Indicate an Intent to ezdnsively devote the
property to use as a street
[Ed. Note.— For other cases, see Dedicatloa,
Cent Dig. 118; Dec DigTriS.*]
2. DiDiOATioii (I 20*} — Usn BT PUBUO —
Whabf Peopibtt.
Wharf property on a navigable atrcam la
a place of a quasi pobllc character, to which
the pabllc are invited. Tbe fact that wUhoat
Intent to make a dedication, the wharf owner
permits its use by some of tbe public, who do
not come thereon for the purpose of transacting
business, should not operate to defeat bis titlb
In the absence d. proof of exnresa dedication
and acceptance, such use by the public will be
regarded in the nature of a license, and. of it-
self, will be insuffldent to raise an application
of its dedication as a street by tbe owner.
[Ed. Note.— For other cases, see Dedication,
Cent Dig. fi| 17-80; Dec. Dig. I 20.*]
3. MiTHIOlPJX GOBPOBATIONB (| 648*) —
Stbegts — AOQITISinON OP Tttle — Whabt
Pbopebtt.
In such a case, where tlie wharf owner re-
tains dominion over and use of the dockyard,
although he may permit the public to trarel
over it as if it was a part of tbe street lon-
gitudinally adjacent thereto for upwards of 20
years, such use by tbe public to so Ucklng in
the dements of adverseness and exdoslvenesi as
*Por Mber osms ■■■ suite twle and leotloa NUUSaR la Dee. Dis. * Am. Dig. KM^ilKi^i
HATOB. ETC., OF SAVANNAH T. STANDARD FUEL SUPPLT OO,
907
,to be insufficient to establish a preBcriptlTe
right thereto.
[Ed. Note.— For other cases, see Municipal
Gorporations, Oeot. Dig. » 1421, 1422; Dee.
Dig. I 648.*]
4. Dbdxoation (i 44*)— MnifioiFAL Cobpoba-
noNB (5 ■654*)— Obbtbuction or Strbets—
Injunction— SupFiciENCT of Evidence.
The facta examined, and Mi Inauffldeiit to
■how tiiat a itreet orer the locos In qao exist-
ed, eitlier from implied dedication or prescrip-
tive use.
[EJd. Note. — For other cbbcb, see Dedication,
Cent. Dig. H Dec Dig. § 44:* Mu-
nicipal Coniorationa, Cent Dig. i 1428; Dee.
Dig. I 654.^
Error from Superior Court, Chatham Coun-
ty ; W. O. Charlton, Jndgew
Action by the (Mayor, etc:, of SaTannab
agatoBt the Standard Fuel Supply Company.
Judgmrait for defendant on directed verdict,
and plaintiff brlnga error. Affirmed.
H. E. Wilson and David C. Barrow, both
of Savannah, for plaintiff In error. R. R.
Richards and Saassy ft Sanssy, all of Savan-
nah, for defendant tn error.
EVANS, P. J. The issue between the par-
tlea la whether a certain area in the <ltj of
Savannah is a part of River street The con-
trover^ is between the owner of a wharf
lot and the dty. The wharf owner wna pro-
ceeding to bnild a structure on the locus in
quo, when the dty filed a petitiim to enjoin
him from so doing on the ground that be waa
obstructing a public street On the trial a
nonsuit was refused, and after all the evi-
dence was in the conrt directed a wdlct tor
the de^dant
[4] The evidence is very volnmlnona ; great
latitude having been allowed In its reception.
We will not nndertake a diecosslon of all
of it, and will refer only to such portions as
will serve to Illustrate the legal propositions
which must control the case. The dty of
Savannah does not claim ownership of the
ffee, or express dedication of the locna in qao
as a street, but does daim that a street ex-
isted by prescription or by implied dedica-
tion and acc^tance. The wharf owner claims
1^1 title to the land and denies the city's
claim of a street over any part of it
In the original plan of the dty of Savannah
as laid off by Gen. Oglethorpe there was no
River street The Savannah river runs east
and west along the northern boundary of the
dty. In the original plan of the dty the tots
along the river front extended southward
over the high bluff aa far as what la now
known as Bay street, which runs parallel
with the river. The streets of the dty run-
ning north and south mn down to the river,
and at the foot of each street there la a pub-
lic dock. The north and south streets which
Indnda the locna In qoo ace Idncoln and
Abercom; the wharf, lot In controvmy abut-
ting Uncoln street In the early mapa of
the cit7 no street appears between the river
and Bay street under the bluff. The deed
to John David Mongln/ in 1821, from whom
the defendant derives his title, does not In-
dicate any street along the bluff. In the
munimoita of title we first discover a refer-
ence to a street in. the deed from Stoddard
to Willis, dated March 7. 1864. In this con-
veyance lot No. 1 in Reynolds ward is de-
scribed as running back on Its eastern bound-
ary on Lincoln street 96 feet and 4 inches
from the water line and on the western
boundary 88 feet and 4 inches, and lot No.
2, Reynolds ward, is described as running
back on Its eastern boundary from the water
line 88 feet and 4 inchea, leaving back of
these two blocks (and two others), and be-
tween than and the buildings on the remain-
ing portion of the lots, the space of 20 feet
In width, which la reserved as a steeet The
locus In quo is a part of lot No. 1 of R^olds
ward. The wharf owner contenda that he la
entitled to nae all of lot No. 1 aa described
In this and snccraslve deeds down to htm,
whidk will leave a street of 20 feet width
on the south aide of the property. The dt7
contends that it has acquired by prescription
and implied dedication an expansion In the
width of this street in front of the whart
property, so as to encroach upon it to the
plUara of the wharf shed and nndw tiie
eaves, nearly one-third of the area of the lot
The evidence most strongly relied on by tlie
city to establish its contention is that about 40
years ago It paved the locus in quo ; that over
20 years ago a railroad company built a rail-
road track over the disputed territory undor
permlssim fnnn the dty to lay it on Blver
street, whidi Is now upon the property; and
that upwards of 20 yeara the pntdlc has used
It as a street The evidence diows that
wharf property is treated the munidpaUty
very differently from other property. Many
ordinances have been enacted in which quite
extensive munldpal control haa been assert
ed by the dty over wharves and wharf lota
owned by private individuals. They relato
to regulations of dodiage and wharfage, mode
and manner of building and repairing such
wharves, the control of harbor lines, prohibit-
ing the incumbering of wharves with cotton,
coal, brick, lumber, eta, so as to prevent use
of wharves to vessels wishing to load, and
fixing the dockage rates and charges which
the wharf owner may make. Indeed, so
broad was the power of superintendence of
private wharf property asserted by the city
that in 1866 the petition of the owners of this
wharf to permit the use of It exduslvely fOr
steamships was refused by the dty. It aj^
pears from the evidence that In 1867 the dty
paved the locus in quo with oobUe stones,
and charged the cost of the pavement against
the dodu and wharves account "snuax tbe
streets were paved as streets a charge was
made by the dty against the streets and
lanes account, and U wharves were , paved the
expense was charged against docks and
•For otair esMS same t«irt« aaa sMtlen NUKBBB 1^ pefr DMc- * ABl Dig.
908 78 BOOTEUBASraBdR KBFOETBB
wharves bcconnt The cost ot the paring of
a wharf by the dty was collectible from the
wharf owner. The evidence la Bflent aa to
whether or not the dty reimbursed itself for
the paving of this area from the wharf own-
er, as It had the right to do tinder Its ordi-
nance. There was no curbing or ddewalk
laid on the locus In quo, or other interference
with an entrance from the 20-foot street to
any part of the wharf lot The pavement ex-
tended to the posts which supported the roof
of the wliarif shed, and the eaves projected
over it During this time many steamers,
Including the New Tork and Philadelphia
lines, used this wharf. It was one of the
busiest spots In the dty. The area in dis-
pute was used by the patrons of the wharf
in delivering and receiving freight Busses
and backs were stationed on it for the re-
ception of passengers, debris and rubbish
were thrown npon a portion of it, and it was
generally ased by the wharf owner In con-
nection with the business of the wharf, before
and after the laying of the cobble stones. In
1889 the Central Railroad & Banking Com-
pany constructed a track over a part of the
wharf property, under permission of the mu-
nldpallty to lay It on River street A spur
track was also built thereon for the use of the
wharf. The spur track extended beyond this
property for the use of other wharf owners,
but has been discontinued in part In the
ordinance authorizing the construction of the
railroad along River street, it was provided
that "all damages that may be sustained
by private individuals or corporations from
the use and occupation of their property in
exerdsing the rights herein granted shall be
met and paid by said company." Tbe evi-
dence showed that lincoln street Sloped from
the bluff to the water's edge^ and that most
probably to avoid the upoise of reading*
and on account of a Jog In a bnUding on the
M8t fide ot Uncoln street* Qie railroad was
constmeted upon the i^rf front, where the
gronnd was more level. Instead of npon the
20-foot street The evidence doM not disclose
whether tills was dcme with tba anent or
over the protest of the wharf owners. The
railroad track was used mostly toe the hand-
Ung t)f freight cars, and frequently dead cars
were left standing on flie track on this area
tor a day or more at a time. Whatever may
be the respective rights of tbe railroad com-
pany and tbe y^tart owners Inter seee, It Is
dear tiiat the emstnietlon of a tracfe along
the wharf front, under an ordinance granting
permlaslon to lay it upon a street and ex-
nnptlng the dty from damages if laid upon
private prbperty. Is too incondnstve an act
on which to base ^dedication <ir preserlptibn
of tbe wharf front occupied by Out railroad
as Veing a part of tbe street
Since tbe paring of tbe whaif the general
public had been accustomed to travel over
fte area covered both by -the 20-fooe street
and Uuit portl9n of yae wbarf lot. i|hlch was
paved. But tbe use by the public of the
paved area on tbe wharf lot was never of
such a character as to Interfere with its use
by the wharf owner for his own business, or
to Indicate that the 6wu», by tolerating suidi
use by the public, Int^ded to dedicate bis
property to tbe public as a street The own-
er paid tbe public taxes on the proper^,
which were received by tbe city, wlthont
giving notice of any adverse claim ; and the
general trend of tbe testimony was that the
area In front of the shed on the wharf was
left open, on account of the peculiar nature
of wharf prop^ty, for use Id connection
with tbe owner's business npon tbe wharf.
The circumstances to which we have Just
alluded, as well as other matters embraced
in the testimony, .were ineufflcloit to show
an Intoit by tbe wharf owner to dedicate
any part of his property to a public use, or
that tbe public authorities attempted to ac-
cept any such dedication, or that the use by
the public was so adverse as to exclude the
owner from the use of his own property.
[1, 2] The Idea of dedication to the public
of a use of land for a public street depends
upon the intoit of the owner in some way
to malce each dedlcatlcm. "The acts x»*
lied upon to establish such dedication must
he such as dearly showed a porpose on tbe
part of tbe owner to abandon bis personal
dominion over such property and to devote
the same to a definite public use." Swift v.
Mayor, etc, of Ufbonia, 101 Ga. 706, 710, 29
S. B. 12; Irwin v. Dixon, 9 How. 10, 13
li. Ed. 25. In Georgia Railroad v. Atlanta,
US Ga. 48S, 45 S. BL 200, Mr. Justice Lamar,
in dlscnsslng tbls proposition, said: "The
ease comes aqnar^ witUn the rule appli-
cable to squares and areas around staUons,
depots, wharves, and other places of a Quasi
public charactw, and to whidi the public
at large are invited. The fact that atreata
ot roads enter natik epen apaeea from varloaa
directions, and that pedestrians and vehicles
pass across the square for tbe purpose of
going from one road to another, does not
of itself show that the space has been dedi-
cated to a public oae. • • • me fact
ttaa^ witbent intent to make a dedication,
tbe cempasy perrnUa Uie land to be used by
those who do not come thereon for the por-
poae of bnainosD wlth the conipany, ataonld
not operate to defeat Us titta Its Indnl-
gence ought not to be charged against It,
and need as a meana of depriving It of prop-
erty allowed to be 'enjoyed, but not Intended
to be given. That It does not caprldonsly
warn off petsoAs erossii^ tbe strip, will not
wipe out tbe effect of acts showing an In-
tention to bold tte property as its own. Tbe
public in a propw caae may obtain the title
by ctmdetamatlon, If the other easendal tie>
mtots are presenti But no law of force in
this state intends to take private propwty
for publle purposes without (Miyment tb^e>
for; nor wl^.^Ws "g,gfe^S^^^3f^ft«
t> Ayib ' r . TUCKER
909
Dame of detllcaUoD, where ttiere haa not be«n
an express gift by the owner, or where his
IODg-«ontlniied acta have not Indicated a
purpose to set apart- Uie property for the
public good."
The paving of the area, nnder the facts
submitted, will be attributable to the munic-
ipality's regulatory control over this qnaal
public property, rather than as an acceptance
of an Implied dedication. The Savannah
river Is a navigable stream, and the public
authorities bave from the earliest times ex-
ercised regulatory control of privately owned
wharves on navigable waters. In this state
the Railroad Cbmmlsslon is given jurisdic-
tion over wharves and docks. Civil Code,
S 2G62. Had the municipality, as It had
the right to do, compelled the paymait of the
amount expended for the pavement of this
area, then, of course, no Implication of dedi-
cation or acceptance conid be implied from
such an act If. the municipality failed to
enforce Its rights In this regard, then its
pavement of the street will be deemed volun-
tary. It Is of great significance that no gut-
ters or sidewalks were constructed upon this
area, that nothing was done by the dty to
prevent an easy approach to the shed, that
the pavement was extended under the eaves
of the roof of the shed, and that taxes were
accepted by the city upon this very area as
being a part of the wharf lot, wlthont any
notice from the municipality that It claimed
an easement over It
[S] The doctrine of title by preBcrlptUm
la founded on the presumption of a right by
grant or license to the taBement, after 20
years of nnintermpted advene enjoyment
To authorize such presumption from posses-
sion alone^ the enjoymmt mtnt not only be
uninterrupted for the apace of 20 years, but
It must be exclttslTe and adverse, and nnder
a claim or assertion of rlfht, and not the
consent or favor of another claimant or own-
er. Hie fact that the user must be adverse
must exist In every such cam to authortxe
the necessary presumption. Mlt£be]l v.
Rome, 49 6a. 19, 15 Am. Rep. 669; McCoy
V. Central of Georgia By. Co., 131 Ga. 382,
62 S. E. 297. In all cases of prescription the
prescrlber must show a possession hostile
to that of the owner of the land. From the
nature of wharf property the approaches
must be kept open for the convenience of the
owner and his customers. It would be In-
equitable to Impose a public easement on the
wharf owner's property because he tolerated
liberties from the public which did not In-
terfere with his private enjoyment From
a careful consideration of all the testimony,
we think the circumstances relied on to show
dedication and prescription too Inconclusive
to deprive tbe wharf owner of a part of his
property.
Judgmut affirmed. All the Jnatlces con-
cur.
•Vor oUmt cum sm mid* toplo attd McUon NUUBB^
'(140 <3a> M»
DAVID T. TtJCKEB.
(Supieme Court of Georgia. July 16, 1913.)
(SyUahua hf the Court.)
1. Trial (| 343*)— Vebdict— Consibuctioh.
Where one died, leaving a wife and chil-
dren in possession of certain land to which be
bad title, and subsequently the grantee in a
deed executed by the husband before bis death,
and purporting to convey title to such grantee,
evicted the widow, and after such eviction she
filed a petition to have this deed canceled on the
ground tbat it was not an absolute conveyance
of the property, but merely a security deed or
a mortgage to secure a debt, asserting In the
petition ttiat the grantee in the deed held the
lands "In trust for the grantor," and a verdict
was rendered In favor of the widow, finding
that she tw restored to poflsession and that the
deed be canceled, such verdict, conatroed, as It
must b^ in the light of the pleadings and nn-
disputed facts, and the decree upon the same
(which Is not broader than the verdict), has the
eifect merely of annulling the deed and restor-
ing the widow to such possession as she had be-
fore her eviction ; and the verdict does not bave
the effectj nor does it puniort to have the effect,
of declaring or vesting title in the widow,
[Bd. Note.— For other cases, see Trial, Cent
Dig. II 809-^ ; Dec Dig. | 343.*]
2. Trial (| 253*>— Instbuctiors— loRoaiifa
lasuBS OB DaraHBis— EvinENCE.
An exception to a charze on the ground
that "it ignored the defendanrs contention tbat
defendant claimed the land In controversy nn-
der a gift by her father, who had a valid title
thereto," Is without merit wh«« from the un-
disputed evidence it appears that the dafend-
anrs father never bad title.
[Ed. Note.— For other cases, see Trial, Cnt
Dig. U 613-623 : Dec. Dig. | 253.*]
S. Adtbmb' PoaBBsaoR (| 113*)— BnaDmi w
Floor.
Inasmnch as the evidence for the plaintilf
showed title In his intestate, as alleged In the
petition, and the defendant relied upon her as*
sertion that she had acqniied a good bresa^Ta
tide, the court did not err in ao obarging tbe
jury as to place opon th? defendant the bnf»
den of establishing, by a preponderance of evi-
dence, the prescriptive tlw asserted.
[Ed. Note.— For other cases, see Adverse Poa-
session, Cent Dig. » 651, 6BS, 6S4, 687-669^
661-663, 665. 666; iDec Dig. | 112.^]
4. Advebbi PossBsaiOH a 74*)— C0X.OB or Ti-
tle—What COHSTnUTEB— DECBEB.
A verdict and decree, which, properly eon-
stmcd, did not purport to find title in a party,
or to vest such party with the title, did not
amount to color of title.
[Ed. Ifote.— For other cases, see Advene Fbs<
SMsion, Cent Dig. f| 443-4A7; ~
5. Apfeai. Ann Ebbob (|
Ebrob— iNStBTTonons.
Under the evidence, the defendant who set
up prescriptive title by virtne of seven years
possession under color of title, was not entitled
to a charge on the subject of the effect of pos-
session under color of title, and was not injoxed
by the cborga upon that anhieet tvan thoniA
the same was not strictly aocorate.
[Ed. Note.— For other eases, see Appeal and
Error, Cent Dig. | 4220; Dec Dig. | IWd.*]
0. EsTopFBi. (I 68*)— Claik nr Jttdicui. Pbo-
CEEDIIfO.
The court did not err In Instructing the
ivXJ ^ snbstasce that the defendant could not
nrevsil upon the theory that she bad title dc:-
^•^ycd trom her father, when In a former suii she
Dec. Dig. i
1066*)— HABxma
Dig. A JUo. Dig. ftsr-No. Buiw
Digitized by
78 SODTHBASTBRN BBFORTIBB
bad eannd ft to be Jndldally ucertalned and
declared tbat tlw fatber'a title, based upon an
invalid cooveyance from her hasband, vas Toid.
[Ei. Note. — For other cases, see Estoppel;
Cent Dig. S8 165-169; Dec. Dig. f 68.*]
7. Adverse Possesbioh (| 116*) — Ietbtkuc-
tioh— -notiob.
"There can be no adverse poasesslon
axainst a cotenant until actual ouster, or ex-
ciuBiTe possession after demand, or express no-
tice of adverse possession." Civ. Code 1910, I
3725. And the substitution of the expresaioo
"actual notice** for "express notice," In charg-
inff this seetioB to the jury, wai not error.
IBd. Kote.— For other cases, see Advene Pm-
sessios. Cent Dig. i 66; Dec. IMg. 1 116.*]
& Tbial (§ 252*)— BErnsAX ot InBiBUonova.
The court properly refused to giTe a charge
not authorised by the evidence.
fBd. Note.— For other cases, see Trial, Cent
Dig. H 606, 696-^12; Dec. Dig. { 262.*]
0. Appeal and Ebbob (| 1050*)— Habhlbbb
Ebbob— ADwasiON or Evidence.
Upon examination of the evidence objected
to as irrelevant, it is apparent that even If it
was Irrelevant it could not have the effect of
harming or prejudidng the defendant's case be-
fore the jur^, and consequently its admission Is
no ground for a new triaL
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. » 1068, 1069, 415»-4157,
4166 ; Dec Dig. | 1050.*]
10. Appbax. and Ebbob ({ 273*)— Exception
BxLow— SumoiXNOT— Aboumbnt or Ooitnt
8EL.
Where, during the argument of the case
by the plaintiOTs attotsey, tiae defendant's coun-
sel interposed the objection that the aigoment
then being advanced was improper, and asked
the court to disallow the iwme, and the court
ruled upon the question ini the following lan-
guage: "If there is any legitimate evidence on
whldi to base that as a legitimate conclusion, I
will let that go in ; whatever is in, and not rul-
ed out, can be argued" — a goieral exception as-
signing this raUag as error is without merit In
the absence of an allegation or showing, in the
ground of the motion itself, that the argument
was not anthoriied by any evidence In the MC^
[Ed. Note.— For otbelr cases, see Appeal and
Error, Cent Dig.
1625-1«S0, 1764;
Cent Dig. SS 256, 257,
. Error from Superior Court, Hart County;
D. W. Meadow, Judge.
Action by J. H. Tadcer, administrator,
against Mary David. Judgment for plaintiff,
and defendant bringa sior. Afflrmed.
A. G. & Julian McCurry, of Hartwell, and
Dotou^ & Aflama, of Royston, for lOalntlfr
In error. . Jas. H. Skelton and A. S. Skelton,
both of Hartwell, for defendant In error. -
BEOK, J. J. H. Tucker, as administrator
de bonis non of the estate of James David,
applied to the. court of ordinary of Hart
county for leave to sell a certain tract of
Jand. Authority was given by an order
from the court, as prayed. Upon his pro-
ceeding to bring the land . to sale, a claim
was filed by Mary David; she being in pos-
MBidoil, and being the widow of James Da-
vid, wbo died in Oie year 1862. The admin-
istrator brou^t m petition, sQ^ttng forth .that
the land In controversy banged to t3ie
estate of his intestate, and that it was neces-
sary for him to have possession of the same
for sale, for the payment of the debts of
the estate and for distrlbntion among the
heirs. Mary David answered, alleging that
the property was her own: First, becanse
she had a prescriptive title resulting from
20 years' adverse possession of the land;
second, becanse she had prescriptive title re-
sulting from possession under color of title
for 7 years; and, third, because the property
had been given to her by her father, William
Ray. The verdict was for the plaintiff. The
defendant filed a motion for a new trial, and,
this being overruled, she accepted.
It was established on the trial, by un con-
troverted evldraice. that the land In qneatloo
was the property of James David at the
time of his death, unless he had been divest-
ed of title by a certain deed, which, it ap-
pears from certain parts of the record, he
had executed In the year 1862 to William
Ray, the father of the defendant, purporting
to convey this property, though the deed
Itself was not introduced in evidence. The
execution of a deed absolute in form, which
purported to convey the land involved, bnt
which in fact did not have the effect of
cottveylug It, appears from the record of a
suit which was introduced In evldmoe by Oxe
defendant in this case. That suit was began
by a bill in equity bronght in the year 1875,
wherein Mary David allseed that she was
the widow of James David; that on the Sd
day of May, 1862, her husband was In posses-
sion of and held tlOe to the luid in contro-
versy; that James David, being about to
leave home to Join the Confederate States
army, and being Indebted to William Bay
some small amount, and rspoeing full confi-
dence In him, executed a deed pnrportliig to
conv^ the land to Ray, witbont any other
condderation than: the amaU amouiit so
owing by David to Bay, with the undostaud-
Ing that tha deed was a aeenrlty deed m&etij;
that soon after the execution of this deed
she moved into the honse of WlUiam Bay
and became one of bis fitmlly, where she
remained until 1S73, when Bay told her to
go back to the old home place, known m
the David places without paying anythli^ for
It, which she did; that ahe did not know
that Ray claimed Qxe land absolutely, but
believed that he only claimed a Uen for tb»
amount due him. until, the year befbre briiv-
ing her equitable petition, be demanded rent
from her, and subsequenUy, In 18TO, sued
out a warrant and evicted her from the land.
She prayed that Ray be required to account
for the difference between the true value of
the laud at the time the deed was made
and the amount due him, with interest there-
on, or that he be required to turn over to har
the laod, and ,tb^ti}ie deed be declared null
and void, and be ddlvered up and canceled.
•For eOMT ewes ssa ssms topl^ ^ud ssetfon HpHBBp.lB iMq^Dig. * Am. Dig. X»i^HKcBflfliBj^«Mipjt^^l||BM
0«.)
DAVID T. TUOKJEB
911
By amendment she alleged that the agree-
ment between James David and WllUam Bay
nas tbat Ray was to bold the land In trust
for David nntU the payment of the debt, and
tbat Ray took possession of the land af-
fected by said trust, and that there was no
Intention on David's part to make an abso-
lute conveyance of the land to Ray. It does
not appear that any demnrrer to this bill
was filed; but Ray filed his answer, denying
that he had received the deed merely as a
security deed for any amount of money due
him, and Insisting that the deed, as it pur^
ported to be, was an absolute deed conveying
title to him in fee simple upon a sufficient
consideration. Upon the trial of that case
the Jury returned the following verdict:
"We, the Jury, find and decree that the deed
to the David place, copy of which is attach-
ed to bin as Exhibit B, be and is hereby de*
clared null and void, and be delivered up to
be canceled, and that defendant restore pos-
session of said David place to complainant,
and that said defendant pay to complainant
the sum of $200 and the cost of this case."
This verdict was made the decree of the
court, and Ray was ordered to restore posses-
sion of the David place (the land In contro-
versy) to Mary David.
[1] 1. The court properly instructed the
Jury in this case that, in the suit brought
to cancel the deed J^m the plalntiCTs intes-
tate to Ray, the effect of the decree was to
leave the title to the property which tbat
deed purported to convey where it was be-
fore the deed was executed; that is, In James
David, or rather In hla estate, as he had
died leaving a wife and children. Nowhere
in the bill brought by Mary David to have the
deed from James David to Ray set aside and
canceled does she assert title in herself, or
make any allegation from whidi an inference
could be drawn that she was asserting title
In herself. She distinctly alleged that under
that deed Ray held the "property in trust
toT Bald James David"; and while she did
not m^ition the tact that she had children,
she nowhere alleged that at the time of her
eviction her possession was In het own right
or under claim of title. Throughout that
petition die treated the deed from James
David to her father as a mere security deed,
or as a mere mortage. Sbo caMeA it a mort-
gage in her petition. And a decree cancding
that paper, as the eonrt said In the charge,
had no other effect than to leave the title to
the property where tt was before. WUle
It restored her to the possession of the land,
the possession thus restored was of the same
character as It was before she was evicted
and befbre the security deed wab canceled;
and there is no pretense tbat up to the time
of the eviction ber possesadon was in her own
right For, up to the time of her erictlcHi,
as she shows berselC; she did not know that
Ray was making such a claim of title to
the property as would enable him to make
any gift of it to. ber. "Verdicta are to have a
reasonable intendment, and are to receive a
reasonable construction." Olvil Code, { 6927.
And the entire pleadings and all undisputed
facts proved upon the trial may be examined
and considered In construing the verdict
Mayor, etc, of Macon v. Harris, 76 Ga. 761.
[2] 2. Another ground of the motion for a
new trial complains of the following diarge
of the court: "She [the defendant] does not
deny the fact, as I understand, that upon
the death of the father of the children, and
her husband, that In law the land In dispute
vested in her and the children, share and
share alike, unless she saw fit to claim a
year's support or a dower, neither of which,
they contend, has been applied for." This
charge is excepted to on the ground that "it
Ignores the contention of the defendant that
her husband. David, conveyed said land to
ber father, and received the full purchase
mon^ therefor, and that defendant claimed
said land through her father, W. O. Ray, who .
had a valid tltl^ thereto." Clearly the ex-
ceptton Is without merit, inasmuch as, under
the evidence introduced by the defendant in
this case herself, W. C. Bay had never had
title to the land; and tf he had ever claimed
title, it was under and by virtue of a deed
which she had canceled on the ground stated
In her petition therefor, as set forth above.
[3] 8. Inasmuch as the evidence for the
plaintiff showed title In his Intestate, as al-
leged in the petition, and the defendant re-
lied upon her assertion that she had acquir-
ed a good prescriptive title, the court did
not err in so charging the Jury as to place
upon the defendant tJie burden of establish*
Ing tbe prescriptive title asserted l^- a pre-
ponderance of evidence;
[4] 4. The defendant's assertion of a good
prescriptive title by virtue of seven years'
possession under color of title was based
entirely upon her possession under the ver-
dict and decree set forth in the opening
paragraph of this opinion; and Inasmuch as
that decree does not purport to vest her with
title, or to And that she was vested wlOi
title, it did not amount to color of title.
Beverly v. Burke, 9 6a. 440. 64 Am. Dec
351 ; Street v. Collier, 118 Ga. 470. 46 S. B.
204; Hansen v. Ow^, 132 Ga. 648, 64 8.
B. 800.
[I] 6. Inasnmdi as the evidence fUled en<
ttrely to show that the possession of the
land in controvwsy by the i^aintiiE was un-
der color of title, the Instruction of the
court In refereDce to the MmSaafft omtai-
tlon that she had a prescr^ve title, based
upon seven yeon^ possessioo under color of
title, will not be examined critically to see
if thvr ue entirely sceurate; for, having
shown no color of tlQe ia hers^ the plato*
tiff was not injured by a charge upon tiiat
subject, even though tt was not in an le-
spects accurate^
[I] 6. The court did not err in chi'rgtng
the lory in substance that ttie dtitendant
QOulA not set up a title in this
DigiEized by '
78 BODTHSASTSBN BSFOBTER
tnm m. gut lur fU3ier, Wimam a Ray ;
for, OB against the defendant in this ease,
oniler tbe erldeiMe Introduced by her. It
bad been Jndi dally ascertained and declared
that Ra7 new had title to the land, and
she wtn not now be perrattted to assert that
he once actoally had title. It would be play-
ing fost and loose, Indeed, with all princi-
ples of equity, to allow this defimdant in one
smt to set up her husband's title to doTeat
her fsther, and In such proceeding hare the
deed which he held from her husband de-
clared void, and now, in order to deMit her
husband's estate, have the court declare that
the deed from him to her fttther was valid.
[7] T. "There can be no adverse posses-
stem against a cotenant until actual ouster,
or ezcluslTe possession after demand, or ex-
press notice at advene possesston.** This
Is the language of the statute. OItH Code,
t 87!%. And the substitution of the ezpres-
, slon "actual notice" for "express notice," in
charging this Code section, was not error.
Morgan t. Mitchell, 104 Ga. 696, 80 8. B.
792.
[I] 8. The request to charge was neither
adapted to nor authorized by the evldenee,
and it was not error to refuse and fall to
charge the same.
II, 1 0] 9. 10. The rulings in the ninth and
tenth headnotes require no elaboration.
Judgment alUnned. All the Justices con-
cur.
(uo Ofu ue)
WADLEX T. OEBTEli et aL
fSnprems Court of Qeo^la. July 18, 1918.)
(Syllahiu &|r tko Court.)
1. JUDOHEITT i% 670*) — Dbbionattoiv — Dx-
mMDj[iiT xif RBPBammAnvi Capacrt—
Waivbb or Defbot.
Where a statutory action was brought to
recover land and mesne profits, against two per-
sons, the name of one of whom in tbe petinon
was followed by the words "e:fecutor'' of a
named person, and where such defendant Bled
a plea of prescription aa. executor of his testa-
tor, and after the case was lost, and a motion
for a new trial was brerruled,- he, In his repre-
sentative character, joined in a bill of excep-
tions and in executing a supersedeas bond, aft-
er afflrmance of the Judgment, an injunction
wlU not be granted to restrain the execution by
the sheriff of a writ of possessioa, on tbe
ground that tbe judgment only bound him in-
dividually, and did not preclude him from as-
serting the title claimed by the estate.
[Ed. Note.— For other cases, see Judgment,
Cent Dig. H llSl, 1185; Dec Dig. ? 670.*]
2. ExECunoM (1 171*)— iNJUWOTioif— Gaouirns
— ExisTKNCE or Otheb Suhbdt.
If the judgment for mesne profits and the
execution issued thereon only authorized the
realizing of the amount de bonis uroprils, and
not de Donis testatoris, this would not require
an injunction, but tbe levy could be met by af-
fidavit of illegality.
[Ed. Note.— For other cases, sea Execution,
Otat Dig. H 497-^18; Dec. ZMg. | 171.*]
. Srror from Superior Court, Bichmond
County; H. C Hammond, Judge.
*ror oUmt essss sM'saae tople and smUob NUHBBB'
Aetlm by W. M. Wadley, ezeeutof^ asRlaat
T. E. Owtel, encntor. etc, and others.
Judgmmt for defeiidantB, and plalntllf
brings error. Affirmed.
On August 21, 1906, Benjamin A. Chew
and others brought an action to recover land
against' H. L. Chichester, Jr., and **W. M.
Wadley, executor of Wm, O. Wadley, de-
ceased," In tbe superior court of Jenkins
county. It was alleged that the defendanto
were in possession of certain described land,
to which the plaintiffs claimed title ; that the
defendants had received tbe profits there-
from, and refused to deliver the land or the
proQts to tbe plaintlffB. An abstract of title
under which the plaintiffs claimed was at-
toched. The caption of the process stated
the case to be against "H. Tj. Chichester, Jr.,
and W. M. Wadley, executor of W. O. Wad-
ley," and commanded H. L. Chichester, Jr.,
of the coun^ of Jenkins, and W. H. Wadley,
executor, of the county of Monroe," to be
and appear, etc. The sheriff of Jenkins coun-
ty made an entry of service "on defendant"
by leaving a copy at his most notorious place
of abode. An answer was filed, which began.
"And DOW come the defendants in the above*
stated case," etc. They admitted possession
of the land and the receipt of profits there-
from, but denied that the plaintiffs had title.
Pen<Ung the suit, an amendment was of-
ferred, so as to make the plea read, "And
now comes defendant, H. U Chichester, In
the above-stated case," etc, and to change
the plural to tbe singular number in other
parts of the answer. The court refused to
allow this amendment. Subsequently one
Oertel, as executor of Benjamin A. Chew,
and W. B. Piatt, as administrator of another
of the original plalntifCs, presented their
petition, ailing that these two plalntiffa
had died, and that the petitioners were their
legal representatlvea, and desired to be made
parties In their stead. On this petition serv-
ice was acknowledged by a Ann of attor-
n^B *for H. L. Chichester, Jr., and W. If.
Wa^ey, executor of the estate of W. O. Wad-
ley, deceased." An order was passed maklnc
the petltionera parties In lieu of the two
deceased plalntifflB. The Jury found fOr the
pta,lntlffs the premises sued fbr and a cer-
tain amount as mesne profits, and a Judg-
ment was entered accordingly. A motion for
a new trial was made by Qie defsudanta. It
was overruled, and they excepted.
Tbe Ull of exceptions so filed recited tibat
there came on to be heard the case oH "Butb
Chew Le Cato, T. IL Oertel, uecutor of BenJ.
A. Chew, and W. EL Piatt, administrator of
Hull S. Chew, agalnat H. 'Lt Chichester, Jr.,
and Wm. M. Wadley, ezecutoi* of W. O. Wad-
ley." After reciting the overruling of tbe
motion for a- new trial, it then concluded:
"Wherefore the plaintiffs in error, W. M.
Wadley, as executor of W. O. Wadley, de-
ceased, and H. h. Chichester, Jr., come now
In Dso. Dig. * AaL Dig. IQn^M^liaAl
wltUn 80 dan eC the onmUiig of tbelr
aald motion' for new - tdal,'' ebL A super-
sedesB bond' was given. - Id the'oaptlbn 0ie
defendants were named ee L, Ohldieeter,
Jr.. and W. M.- Wa^ey, eaacotor of W. O.
Wadley." In the hedy of the bend It wag
deeland: "Now, tbereflore, we, H. Ifc Ghl-
chester, Jr., and W. U. Wadlejr, aa eracntw
ct W. O. Wadley. ai prlndpate. and Geoz^
•life InBiiran<» Company as earety, do here-
by acknowledge oarsdres aafely and firmly
boQBd unto the said plaintiffs," etc It was
signed: "Wm. M. Wadley, as Bzecntor of
W. O. Wadley : Estate of W. O. Wadley, by
Wm.' *U. Wadley, Executor ; H. L. Chichester,
Jr.**«e8 prlndpalSL In the Supreme Court
counsel fer both parties entered into a stip-
ulation In writing' as follows: "It Is hereby
stipulated and agreed by and between coun-
sel for both sMes In this case that a plea of
prestirlptlTe title of the premises In dispute
was duly filed In the court below by the de-
fendant, W. M. Wadley, as executor of W. O.
Wadley, deceased." The Judgment of the
trial court was affirmed. Wadley v. Le Gato,
139 Ga. 17T, 77 S, B. 47. A motion for a re-
hearing was made by "W. M. Wadley, exec-
utor of the estate of W. O. Wadley." It was
denied. A writ of possesEAon was issued.
.The sheriff returned that he had executed
it by putting plaintiffs into possession, and
that he had levied on certain land as the
property of the estate of W. O. Wadley, de-
ceased, in possession of W. M. Wadley, as
executor, for the purpose of making the
amount of a judgment for mesne profita
William M. Wadley, as executor- of the es-
tate of William O. Wadley, deceased, filed
his eqnltiUl>le petltlw against the plaintiffs
in the former action and against the sheriff
of Jenkins county. He alleged In substance
as follows: The former snlt was against him
as an IndiTidual, and not in his representa*
tive capadty as the executor of the estate of
W. O. Wadley. The estate was not bound
by the Jn^ment, bnt the plaintiffs obtained
only a Judgment against Ohlcheeter and
W. 'M. Wadley as Indlvldaals. The land be-
longs to the estate. The writ oi poflsessbm
Issued by the cleife of the snKterlor eonrt fol-
lowed the description at the land sued for,
except that the clerk also attadied to It cer-
tain maps, plats, and court prooeedlngB,
which formed no part of tike orlgbul plead*
ings In the ejectment anit, or of the Terdlct
and Judgment therein. The sheriff. In com-
pany with (me of the counsel for the plain-
tuts in ejectment, aterad upon Uie lands
the estate ot W. O. Wadtey* and attempted
to find the lands corered by the description
In the writ of possessltnL Falling to do this,
he handed to a young man, who was tem-
porarily in charge of the place, a notice
which to petitloBer Is wholly unintelligible.
Be then left the premises with instructions
to the young man to deliver the paper to
counsel for the estato of W. O. Wadley.. The
78B.E.-68
V. OSRTKL
patitkmer apprehttids that further steps wfll
be takm' to ofince the wtit.x>f poasceslMi
and t»- evict him, c^ the tenants holding
OBder him, as exeootiv irt the eetate of W.
O. Wadley. The writ ot poaaeaskm issued by
Oie cleft Indaded a danae In the naibire
of an execution for money, 'Commanding the
sheriff *'that of the goods and chattels, lands
and tenements, of W. M. Wadley, executor
of W. O. Wadley, and W. M, Wadl^, as ad-
ministrator pf H. 'Ia Chlchestn-, and the
Georgia life Insurance Company, security
on the supersedeas bond filed by said de-
fendants, you make or cause to be made by
levy and sale the sum of ¥3,200, besides in-
terest," etc The sheriff, when attempting to
execute the writ of possession, levied "this
execution clause of said writ" on certain
lands of the estate of W. O. Wadley other
than those described in the ejectment salt,
and unless prevented from so doing will sell
the lands thus levied on. It was prayed that
the plaintiffs in the former action to recover
the land be enjoined from further proceedii^
to have the writ of possesion and the Judg-
ment and execution enforced against the es-
tate of W. Q. Wadley, and from claiming or
asserting any rights aa against audi estate
by virtue the proceedings in the former
action, and that the sheriff be enjoined from
further proceeding to execute the writ of
possession or to sell the land levied on by
him.'
The defendants answered in substance as
follows: Chichester was the son-in-law of
W. O. Wadley, deceased, and was the tenant
In possession of the land claimed to belong,
to the estate of W. O. Wadley. The executor
of the estate moved to make the amendment
which Is stated above. The court refused to
allow the amendment, and held that both
Chichester and the exetrutor of W. O. Wadlsy
were In court, and that all Imperfections In
service had been waived by their appearance
and pleading, and the suit would have to be
defended by them. The entire proceedings
show that W. H. Wadley, as oecntor of the
eetate of W. O. Wadl«7, deceased, was a
party, and defended the case, and that the
estate is bound bj the Judgmrat Tb» diolff
executed tbe writ of possession and. put the
plaintm In possession. There was no dlffl-
chlty in finding the pxopwty. W. M, Wadley
waa not in poss^bslon of the land aa an In-
dlTidnal, uid he defended the anit in his
representative capacity. In addition to the
records of the tonoex solt, ceitaln affidavits
were Introduced which need not be set out
The presiding Judge refused to grant an in-
terlocutory injunction, and. the plaintiff ex-
cepted. . : .
Miller & Jones,, ef Macon, for plaintiff In
«rrOT. W. K. MUIer and Pierce Bros., all ot
^^gnata, and H. M. Holden, ot Athois, for
78 BOUTHEASTEBN BBFOBTBB
LUUPKXM, X (aftw itBtliig Uie tecCs as
alMT«). [1J 1. Tbe UtUe word W la quite
an Important word in determining whethw a
anlt la by or against an administrator or ex-
ecotor In bis repreaentatlTe cbaracter or as
an IndlTldnal. Bat it is neltber a sine qua
non of pleading in a case against an executor
in that capaelt?, nor is It a ne plus ultra of
le^l constmction. The general rule Is that
an InstromeDt signed by one as agent, trus-
tee, gnardiao, administrator, executor, or the
lilEe, wtthoat more, is the IndiVidoal under-
taking of the maker, "such words being gen-
erally words of description." Civil Code, |
8670. A salt by one with the word "adminis-
trator," or "execator," added to his name,
especially on a contract made by him, will
ordinarily be treated as being his individual
suit; and likewise when the suit Is against
him. Woodward v. Harris. 138 Ga. 751, 76
8. E. 49. But this is not an Inflexible rule,
where the context makes it clear that tbe
salt was broogbt by or against him in his
representative character, although the word
"as" Is not employed for that purpose. In
Jennings v. Wright & Co.. 54 Ga. 637, a suit
was brought in the statutory short form
against the administrator of a named dece-
dent, bat the petition did not expressly state
that it was against him a* administrator. It
allied that the defendant was Indebted to
tbe i^alntlff on a note, of which a copy was
attached. Tbe copy annexed waa that ot a
Joint note of tbe decedent and another. It
was held diat the suit was against tbe de-
fendant, not Indlrldaally, but in bis rquresent-
atlre capacity. In the opinion, Bledcley. J.,
said: "Let the declaration and tbe copy
not^ in this case, be read together la a spirit
of candor, and Uiere is not one man in a
thousand who woald be likely to miannder-
stand them. To miss the meaning, the read-
er woald hare to be a man of nnich learning,
and one whom madi learning bath made
mad.*' In Ttnaley t. Lee, Bl Oa. 482, a de-
cree for money was rendered against a de-
fendant, with tbe words 'Vsxecator^ of a
Qwdfled person added to his nam& The
execution commanded that the numey be real-
ized of tbe property of the defendant, nam-
ing him, and adding tbe words "eucutor"
of a certain person, and nothing else appear-
ed. Such decree and execution were held
to be against the defendant as an Individual,
and not in his representative character. But
If it appears from the face of an execution
that It Is against an administrator, and to
be levied upon the property of the decedent,
It is valid, though the word "as" be omit-
ted. Fry T. Shebee, 55 Ga. 208 (11) ; Dozier
T. McWhorter. 117 Ga. 786, 46 S. E. 61. In
Anderson v. Foster, 105 Ga. 663, 32 &: E. 373,
suit was brought by Anderson, administrator
of A W. Foster, against F. C. Foster, execu-
tor of A. G. Foster, deceased, and against EL
W. Butler, execator of Joshua Hill. In be-
ginntng 0ie opinion, Mr. Justice Flah aald:
'Hils case, as the record showi^ wu txeated
In the trial below, by all tbe parties dwreto
and the Judge, as an action fgalnst F. C
Foster and B. W. -Butler as the axecuton^
respectively, of the wills of. A. G. Foster and
Joshua Hill, de(»ased. It was argned before
tbia court by both sides upon this theory.
Whatever, therefore, may have been the true
legal cbaracter of the petition, this court,
under the drcumstanoee, will consider it as
against the defendants in their representa-
tive capacities." Laverty v. Woodward, 16
Iowa, 1 ; Keyes t. Minneapolis ft St L. B.
Co., 36 Minn. 290, 80 N. W. 88a In BrasweU
T. Hicks, 106 Ga. 791, 82 S. B. 861, it was
held that where, In defense to an action
brought against one as an individual, he flies
an answer which practically, though not In
express terms, makes him in his character aa
administrator of a deceased person a defend-
ant to the actlim, and defends in the right
of his intestate's estate, the estate is con-
dnded by the judgment rendered In that ac-
tion. Lamar t. Lamar, 118 Ga. 684. 688. 688.
46 8. £. 498; Bmmett ft Co. v. Dekle^ 182
Ga. 698, 64 S. B. 682 ; Daniel v. Gum, 46 S.
W, 466; BusseU v. MaUon, 88 Cal. 269.
Tested by these principles, how stands tbla
case? A suit to recover land was filed
against Chichester and "W. M. Wadley, ex-
ecator of W. O. Wadley, deceased." Both de-
fendants answered. According to a stipula-
tion filed later by counsel in the Supreme
Court, a plea of prescription was filed by
"the defendant, W. M. Wadley, aa execator
of W. O. Wadley, deceased." He thus pat
tbe title of tbe estate in issue. If it was not
already ao^ Wbetber ha IntrocUiced evldenoe
to sustain fills plea la ioimaterlal. The case
having been lost fay the defendants in the
trial court. It was broufl^t to tbla court The
bUl of exceptlona stated that "W. M. Wadley,
as enentor <tf W. O. Wadl^, deoeased." and
Chichester excepted. The supersedeas bond
was Joined in by Wadlcv a> executor of die
decedokt He thos placed In issue the title
of the decedent, and litigated in the superior
court and In tbla court In bla rotreaentatlTe
capacity. He lost bis cane In both courts,
after a litigation extending over more than
six years. To allow blm now. In bis repre-
sentative capacity, to say that he la not
bound in that capacity, but only individually,
because in tbe original action the word "as"
waa not employed In describing the defendant
or praying process, would be to ascribe to
that word or its absence more potency than
we are willing to concede to it When the
former case was In this court, counsel for all
parties signed and filed the stipulation above
mentioned as a basis of procedure. It be-
came a part of the record. In the present
petition there is no allegation that their* con-
duct was vrrongfuL It is not an admission
in a case between different parties. It Is a
solemn agreement between these parties in a
SRAXERNAL lilFB A AOCIDEHT AS8*N T. EYAKS
916
plaintiff hM had bis day In court He moat
abide the result aa to the land.
[I] 2. If the Judgment, ao fkr as it la for
money, and the execution, are de bonis pro-
prllst and not de bonis teatatorla, this can be
met by affidavit of Illegality, and does not
require an Injonctlon. Donbtleaa sndi an
Irregnlarlty, if It exists, is curable Iqr amend-
ment Jennli^ t. Wr^t ft Oo., 64 Ga. S88
(8), sniua. The Intwlocntorr tnjnnctlon
was properly refused.
Judgment affirmed. All the JnsOcss ooa-
cur.
•Ver etlMr asNS sie SUM
W.. A. Thompson, of Atlsata, and Jnoi B.
Ii. Smith, o;C Macon, fbr idalntlfl In 'em». R.
li. Qamble and W. I* PhUlIpa. both of Lonls-
TiUe^ for dtf ottdants In wsor.
ETAN8, P. J. Tha Fraternal UU & Ao-
ddent AsBOdaUon, fonnerly known as the
Fraternal Relief Association, a oorporatlon
of the state of Virginia, Issned a benefit eer-
tiflcate to .WllUam J. Evans, a member of
the association, in the sum of $2,000, payable
to 8. C Evans, the member's fatbw, ujwn
satisfactory proof of the death of the mem-
ber while In good standing upon the books
of the association. William J. Bvans died,
and the beneficiary furnished proof of his
death to the association, whi<di refused to
pay the amount of the ceitlflcate. Thereupon
the beneficiary brought suit The associa-
tion set up the dtfense that the certificate
was issued upon the condition that the laws
and constitution of the association constitut-
ed a part thereof ; that by section 18 of the
general laws of the association no action
shall be maintained nor recovery had for any
claim arising under any certiflcate of mem-
bership after a lapse of one year from the
date of the member's accident or death, un-
less proceedings for such recovery shall be
commenced within one year from such acci-
dent or death, and a delay for a longer peri-
od shall be deemed and held a waiver and
conclusive evidence against the validity of
such claim, and the present action was not
commenced within a year from the member's
death; that in his application for member-
ship and for the benefit certificate W. J.
Bvans stated, In response to specific questions,
that no member of his family (wife or chil-
dren) bad ever suffered from consumption or
chronic cough, and that his wife was healthy,
and warranted the statements to be true;
that the statements were false, in that at
that time his wife was not healthy, but was
afflicted with consumption ; that by the terms
of the application and the certificate the
former was the basis of the latter and con-
stituted a part of the contract; that those
statements were made to induce the asso-
datton to accept the applicant as a member
and to accept the risk of issuing the certifi-
cate, and were material to the contract en-
tered into, and that the nature, character,
and extent of the risk were changed by the
variations of the facts from the statements ;
that under the laws of the association. If a
member should die after two years and be-
fore three years team the date of his member-
ship, the beneficiary's recovery would be lim-
ited to 80 per cent of the certldcate; and
that; as the member died within that period. -
no greater recovery could be had. By amend-
ment It was averred that Qie statements of
W. J. Bvans respecting the health of his wife
^ere made intentionally, falsely, and fraud-
ulently, for the purpose of deceiving the as-
' Digitized by Google
UM Oa. 284}
FBATERNAL lAWE A ACCIDENT ASS*N
T. EVANS et aL
(Snpreme Court of Georgia. July 18, 1013.)
(SvllaJnu th9 Court.)
1. IKSUBANCS a 818*)— AOTXOIT OH BSZUIIT
CEKTIFICATE— KVIDENCE.
civ. Code 1910, | 2471. proviaea that aU
life and fire insuraace policies issued upon the
life and property of persons within this state,
refierring to the application for insumncei or
the constitution, by-laws, or other rules of the
company, shall contain or bave attached a copy
of same, in order to authorise the Introduction
thereof in evidoioe, as part of the policy, or
as an independent contract. Civ. Code 1910, |
2860, provides that fraternal benefldary orders
or asBodatfons shall be governed by the provf-
slona of the Code relating to such orders or as-
sociations, and shall be exempt from the provi-
sions of the Insurance laws of this state. The
first section (2471) declares what shall consti-
tute the policy of iosurance, and Is a distinct
provision of the law of life and fire insnrance;
and the laat section has the effect to take from
its operation benefit certificates issued by frater-
nal beneficiary orders or assodations, as de-
fined in Civ. Code 1010. I 2860. It follows
ttiat, where a benefit certificate by a fraternal
asBodation refers to the application, constitu-
tion, and by-laws of the anodatlon as being a
part of the contract. In an action on such bene-
fit certificate, tbe application, constitution, and
laws of the association are receivable in evi-
dence as part of tbe contract of insurance.
[Ed. Note.— For other cases, see Insurance,
Cent. Dig. 8S 2003-2005; Dec Dig. | 81&*]
2. iTfsusARCi (t 818*)— Acnoif on BsNxm
CBKTiricATB— Evidence — Appucation.
Under an isaue of fraud in the procure-
ment of a benefit certificate from a fraternal
benefldary assodation, where the fraud Is al-
leged to consist In the applicant's false state-
ments, willfuUy and intentionally made in the
application, IndnriuK the issuance of the cer-
tificate, the application Is admissible in evi-
dence, independently of Civ. Code 1910, I 2809,
not as forming a part of the contract, nut as
tending to show Its fraudulent procurement
[Ed. Note. — For other cases, see Insurance
Cent Dig. H 200a-200S; Dec Dig; I 81&*]
EiTror from Superior Court, Jefforaon Coun-
ty,; B. T. Bawllngs, Jndge.
Action by W. D. Evans and others, adminis-
trators, against the Fraternal Ufe & Acd*
dent Association. Judgment for plalntlffB,
and defendant brings error. Bev^rsed.
916
78 SOUTHBASTKRM BSFORTBB
soclatlon u to tbe oondlfion of his wlfiB**
healthy and' tbej did detelve tbe anodatioB,
and that by this fiteud knd dectit he pro-
cnred tbe Isfniance of the beneflt oertiflcato.
A verdict was retnrned for the ^alntlfl, and
Che court refused a new trIaL
[1] 1. The defendaot offered In evidence Ita
original mlnnte book, contalnlg the record of
Its proceedings, Inclndlng Its constitution and
general laws and the constitution governing
all of Its lodges, the original application of
W. 3. Evans for m^berrtilp, and tbe tea-
timonr of Its superintendent and state coun-
sel that "we oi^nlze lodges throughout the
state for the beneSt of members of the Odd
Fellows, a secret order. We have ritual,
pass- word, grip, edgns, signals, and parapher-
nalia. We admit Odd Fellows, and no one
else. We have what are called subordinate
lodges located in places throughout the coun-
try. We have a supreme Ipdge or general
association." This evidence was repelled by
the court, on the ground that tbe evidence
was Incompetent, because the constitution,
by-laws, and rules were not contained In,
nor a copy thereof attached to. the beneflt
certificate sued on. The court predicated his
ruling upon Civil Code, { 2471, which la as
follows : "All life and fire Insurance policies
Issued upon the life and property of persons
within this state, whether lasued by compa-
nies organized under the laws of this state
or by foreign companies doing business In
this state, which contain any reference to tbe
application for Insurance, or the constitntlon,
by-laws, or other rules of the company, either
as forming part of the policy or contract be-
tween the parties thereto or having any bear-
ing on said contract, dial! oontaln* or have
attached to said polb^, ft correct copy of said
applicfttlonB signed by the applicant, and of
tbe by-laws referred to; and unless so at-
tached and accompanying the p(dlcy, no sncb
conititatlon or by-laws shall be received In
evidence either as part of the policy or as
«n independrait contract In any controversy
between the parUoi to or interested in tbe
said policy, nor shall such application or by-
laws be coDsUered a part of the policy or
contract between such parties."
The contention of the plaintiff in error la
that this section of the Code does not apply
to fraternal beneficiary orders or assoda-
ticnia, to which class it belongs, but that such
associations are expressly taken from the
operation of the insurance laws by virtue of
section 2869, which provides; "Such orders or
associations shall be governed by this section,
and shall be exempt from the provlslonB of
the Insurance laws of this state; and no law
bereafter passed shall apply to fraternal ben-
eficiary orders or associations unless it Is
expressly designated therein." One of the
objects in offering this evidence was to show
that the defendant corporation was a frater-
nal benefidai^^assoclatlpn, and not an Insur-
«nos company which came within the pur-
view of avn Code, I 2471. A fraternal ben-
eflclary association, ordw, or society is d^
fined by OlrU Ooda^ | 28M, to bo <*a corpora-
tion, sodet7. tff ToIuBtaiT aaaoclattea irtddi
has no capital stodc, but lo formed or orgaa-
Ised and carried on for the bmaAt ct its
members and their benefldarlea, and havins
a representative form of government and a
lodge system, with rltuallstle form of work
for tbe meeting of its lodges, chapters, conn-
dls, or other designated- subordinate bodies,
and the benefits, In so ranee, charl^, or relief
shall be payable by a grand or supreme body
of the same, excepting sick benefits, which
may also be paid by local or subordinate
bodies. Such grand or supr^e bodies may
be composed of its officers. Incorporators,
representatives elected by local, district or
grand bodies, past officers, and standing com-
mittees. Such orders or associations may
make a constitution, by-laws, rules, and r^-
ulatlons consistent with the existing laws of
the state, for the government of all under Its
aothorl^, for the manag«aent of its proper-
ties, and the doe and orderly oondiict of tta
affairs."
The ndected evidence tended to show that
the purpose and form cf organisation of the
defendant corporation was such as to classify
It as a fraternal association as thua define^*
The act of 1000 (embraced In the second title,
chapter 2, arL 0, | 7, of tbe Cirll Ood^
Including sections 2866 to 2877> declares
that such associations may provide for
the payment of benefits in case of deaOi,
idckness, dlsabDlty, or old age^ and. as w«
bare already indicated, Uiey are by section
2868 expressly exempted from the provisions
of tbe Insnranoe laws of tbe state. It la the
insurance law (CAtU Code, f 2471) irtiidi re-
quires the poll<7 to contain or have annexed
thraeto 010 constitntiott, by-laws, and abdi-
cation of the company issaing ii, A frater-
nal association may Issoe Its formal cer-
tificate, or the contract may be found in Its
constitution and by-la«s> Sodal Benevolent
Sodety r. Hidmes, 127 Ga. 687, B6 8. fl. 77S.
Tbe provisions of Givtl Csde^ 1 2471, are ap-
plicable to mutual co-<v)eratlve and assess-
ment 'Insnranoei componiea. Pnryear r.
B^rnun' Motnal Ins. Ass'n, 137 Oa. 080. 78
8. B. 8S1. Tbe Gvitfal AssonMy have dif-
ferentiated fraternal benefidary assodattons
from co-opoatiTe and assessment companies ;
the latter are classed as insurance companies
(ClvU Code. H 2412. 2400). while the former
are exiempt from the provisions of the in-
surance laws (CSvll Code, i 2869).
There is a well-defined difference between
an Insurance company which indemnifies
solely against loss, and fraternal beneficiary
societies for twieficlal and protective pur-
Itoses. The manifest purpose In the enact-
ment of Civil Code, { 2869, was to treat fra-
ternal benefit societies differently from Insur-
ance companies. The Code providon as to
.«»ectln» evidones
P£NTON T. HALL
917
tutlon, and by-lawB, when not contained In a
P0U17 of Insurance or attached thereto, not
being applicable to fraternal associations,
ttie application, constitution, and by-laws
were admissible In evidence as a part of the
contract, and material misstatements In the
application would prevent a recovery (Su-
preme Conclave v. Wood, 120 Ga. 328, .47
S. E. 940), and a failure to bring suit within
a reasonable contractual period would also
bar a recovery. Melson v. Phenix Ins. COq
97 Ga, 722, 25 S. E. 189.
[2] Independently of the provisions of Cflvll
Code, i 2809, the application for membership
and a benefit certificate were admissible on
the issue of fraud. Under such an issue it
was competent to show frand in the procure-
ment of the polic^r; and if the fraud con-
sisted in making false statements regarding
the health of the member's wife In the appli-
cation, the application would he admissible,
not as forming a part of the contract, bnt as
toiding to show a fraudlent procurement of
the contract Johnson v. Am. Natl. Ufe Ins.
00. . 134 Ga. 800, 68 8. D. 7S1. While it 1>
tme that In the dted ease the application
was rejected, nevertheless the verdict was
for the defendant, uid this court did not rule
ttiat the application was Inadmissible, bat
ttie nasoBiiig of the conrt was that it weald
have been competent evidence on this Issne.
Judgment zwerMd. All tta» JdiUcm oon-
tm.
a«> Oa. i3S)
PENTON ct aL V. HALU
HALL T. PENTON et sL
<8npr«me Conrt of Georgia. July 16^ 1013.)
(Bytlabua hy the OowrtJ
1. Chattel Mobtgagm (S 18*)— Taxiditt—
InCBEABS OF PBOPBBTT.
Where an owner of land and certain per-
sonalty thereoa agreed to sell them, took notes
from the purchaeerB, and entered into a writ-
ten contract with them, by one of the terms of
which it was agreed that "all increase of per-
sonaltj and improvements made by said par-
ties of the tecood part shall become and be the
property of said party of the first part ontO
the notes and obligations herein specified of
said parties of the second part are paid hi
fall," such agreement ooostitated an effort to
mortgage any increase in peraonalty which
might be made. Aa to personal property which
might be thereafter acquired by the purchasera
and moved upon the place, sodi a mortgage
was not valid.
[Ed. Note.— For other cases, see Chattel
Mortgages, Cent. Dig. JS 61-66; Dec. Dig. |
18.*]
2. Estoppel (| 71*)— Chattel Mobtgaqks—
FOBEOLOStraB— IlTTEBTBIfTION.
Although a third person may have stated
to one contemplating a sale of land and person-
alty Uiereon that certain personal property sit-
nated on another place belonged to the intend-
ed pnrchasers, yet where the parties- to the
sale recofuLEed that for ecrtain reasons the
persooaltr aitoated on the other proper^ could
not be given aa a aecnrlty 'at that time, and
die claase quoted in the first headnote was in-
■ ■ ■ ' ■ ■ .
UWVt stUr sases ms shd* tople and tssttoa NUKBBft
serted In the Instrument for the purpose of
giving to the scfler a mortgage on saeh prop-
erty, not presoitly, bnt at a later date, and
where. In a proceemng solely to foredose such
mortgage, a receiver was appointed, who took
poBBesslon of both lots of peraonaltr, his right
of poasesslon of the woperty which was not in-
cluded, in tke sale depended npon the vsUdi^
of the mortgage upon it; and, it being inv^d
to that extent, the person who made the repre-
Sratatlon mentioned above, and who was the
real owner of the.proper^, was .not estimped
from reclaiming it from the possession of the
receiver by meana of an intervention.
(a) No rallDg is made as to what effect saeh
representations might have had in some form
of action, dependent, not upon the validity of
the mortgage as to this property, bnt upon the
question of the general title of ue debtors.
rEd. Note.— For other cases, see Bstoppdt
Gent Dig. H 178^182; Dec Dig. | 71.*}
3. Chattel Mortgages (I, 284*)— Foeeclos-
1TBE— IlfTEBVKNTION— DlBECnON Or VEBSICT.
Dnder the pleadings and evidence, there
was no error in directing a verdict In favor of
the intervener.
[Ed. Note.— For other eases, see Chattel
Mortgages. Cent. Dig. { 578; Dea Dig. »2^.*]
Error from Superior Goart» ChatJiam
County; W. G. Charlton, Judge.
Equitable action by George H. Pcnton
against Leo G. Hall and others, wherela a
receiver was appointed and W. W. Hall
filed an IntmentloiL A verdict was direct-
ed for Interrener, and plalntUt and the re-
ceiver Mag error, and Interrener fllee a
crosB-blU of exceptlODB. Affirmed on main
bill of exceptlonB, and erofls-blll dlsmlsBed.
Geo^ H. Fenton agreed to sell to Leo O.
Hall, Robert a Hall« and Charles H. Rich-
ardson a tract of land need ai a dairy form,
and the personal proper^ situated npon it;
consisting of 2S cows, a horse* a wagon and
haniera, a baggy and harness, and certain
described cans, buckets, barrels, etc., for the
sum of $6,000. The parties entered into a
writtoi contract In regard to such saH
specifying that of the purchase price $100
was payable In cash, and tbat 78 notes for
fns each should be given for the balance,
maturing monthly, and one note for $S0,
maturing in 79 months, all bearing InteresL
It was agreed tbat the notes should be de-
livered to a named person to collect as they
should fall doe, and to apply the proceeds on
a loan of $4,500 made by another person to
Penton, and secured by a deed. After the
payment of such loan, any overplus was to
be paid to Penton. Upon payment In full of
the notes given by the purchasers, Penton
bound bimself to convey to them the prop-
erty above described, . Then occurred the fol-
lowing daose: "It is understood and agreed
that said parUea of the second part buy said
property upon tbe terms abbve mentioned,
and agree that they meet all of their obllga-
tlons promptly at maturity, and In tbe mean-
time win keep said property In good repair
and condltloa, will pay -all taxes and In-
' burfltnce upon the property, and wUl conduct
-^,4alTy farm tlwnonr and keep np said herd
iT^'^^, XHl* * Am. Dig. Ki7<He. Beriw
™ Digitized by
91S
78 S017THBASTBBM BBFOBTAB
(Qa.
of catOa to Om jweaent number ana Btandard;
and the aald parties of the second part abaU
be at UbertT to make any adTantageou trade
of the personalty tier^before deicrlbed,
provided as valuable property la boo|^
[brought?] on said fftrm tbroogii lald trade
as that which may be takm oC AU In-
crease In personalty and lmprorem«its made
by Bald parties of the second part shall be-
come and be the property of the said party
of the first part nutU the notes and obllga-
tlcms herein specified of said parties of the
Mccmd port are paid In fnlL" It was further
agreed that, upon failure of the purchasers to
comply with any of the conditions of the
contract, a default might be claimed, and
Penton might proceed to foreclose the agree-
ment
Penton filed an equitable petition against
the parchaaers, alleging various defaults, and
praying for Judgment; that the property
covered by the agreement be sold, and the
proceeds applied to the payment of the debt
dne to him ; that the purdiasero be enjoined
from removing or disposing of any part of the
personalty located niwn the land; that a
receiver be appointed; and for general re-
lief. It was alleged that at that time there
were 67 cows, several calves, 4 horses, aud
certain agrlcoltnral Implements on the place.
A receiver was appointed, W. W. Hall filed
his Intervention, claiming that certain de-,
scribed cows which had been sdzed by the
receiver belonged to blm, and praying that
they be delivered to him. The plaintiffs in
error contended that the intervener had
represented that these cows belonged to the
purchasers of the property from Penton be-
fore he made the sale, and that the clause
above quoted was Inserted In the instrument
so as to include them; they not being at the
time on ttie {dace which be sold.
As to the matdng of sndi a representation
there was some controversy. The evidence
showed that In ftict the intervener had
bought the CDvra from another pnson before
the sale» which was made by Penton to the
pnrdiaaers of the land and certain cattle
from him. The plaintiff, Penton, testified
that he offered to sell the dal^ farm to the
Intervener, bat the latter declined to buy;
that he said that "the boys" (the persons who
later pOKfliased fiiom Penton) wished to buy
<me ; that the Intervener told him that the
dairy business at the place where the cows
now la controversy were then located be-
longed to "the beys," and that the cattle be-
longed to them ; and that nothing was said
by the intervener as .to what would be done
with snch cattle; He also testified that one
of the three purchasers, who acted as the
spokesman for the others, said that the cattle
now in controversy belonged to them, and
that they would move such cattle from the
place vrtiere ' they were to the place which
'they -wen buying from Penton ; that, under
tbe«e repreeentatiouB, be made the agreement
with the purchasers, with the understanding
that the cattle would be moved over to Us
plaofc He testified further: "The reason
that I wanted to know if they were going to
be moved to my place was because I asked
the boys to give me fortber secorifr on the
purchase," and that the spokesnun of tbB
purchasers said that he had not quite lUUb.-
ed paying for the cattle^ that he owed a
couple of hundred dollars on them, and tbat
be would move tiiem to the place whldi they
were buying. The clause In regard to all
increase in personalty was put into the con-
tract to cover the cattle on the other farm,
"because they couldn't give them to me as
security until they were paid for."
The presiding Judge directed a verdict In
favor of Uie intervener. The plaintiff and
the recover moved for a new trial, which was
refused, and they excepted. The defendant
in error filed a cross-bill of exceptions,
complaining of the admission of certain
evidence.
Edward 8. ElUott, of Savannah, forplain-
tiffs in error. Thos. F. Walsh. Jr.. of Savan-
nah, for def mdants In oror.
LUMPKIN. J. (after stating the fhcts as
above). 11] The ease tarns npon the clause
of the agreement ttiat "aXk increase In per-
sonalty and Improvfianents made by said par-
ties of the second part shall become and be
the property of tb» said party of the first
part until the notes and obligations herein
spedfled of the said parUea of the second
part are paid in foU." It is not contended
that tbo cows daimed by the intervaier were
received In exchange for any of those which
wen on the place at the time it was sold,
or were bought to keep np the herd to the
same number, or tbat they were the natoral
increase of the cows sold, niey were cows
which wm on another place at the time the
contract was made, and were subsequently
moved to the place bought from the ^alntlff.
It was contended by counsel for the Inter-
vener that the clause in r^rd to the in-
crease referred only to the natural increase
of the cows sold. But we do not think this
is a proper construction. The expression, "all
Increase in personalty and Improvements
made by said parties of the second part,"
Included something more than calves which
might be borne by the cows already on the
place and included in the sale. Other per-
sonalty besides cows was sold, and this pro-
vision covered "all Increase In personalty,"
which included a wagon, buggy, cans, harness,
umbrellas, and other articles, which, thon^
unqnestionably personalty, are not capable of
having natural increase^ The language is not
fairly susceptible of that limited construction.
If we look to the evidence of the plaintiff,
he testified that the clause was Inserted so as
to give him additional security for the notes
of the purchasers of certain property from
him. Itwasprov^^^^^^ag^J^^^tai
KASHVIXiLE, a « ST. li. BT. T. HUBBUB
919
personalty BhoaM become the property of
Penton, the vendor, "until the notes and obU-
catlons herein specified of said parttes of the
•econd part are paid In fnlL" This form of
words, containing a provision that property
which had never belonged to the creditor
should be bis nntll the notes were paid, was
appropriate for the creation of a mor^ge.
Ward V. Lord, 100 Ga. 407, 28 S. E. 446;
Burcfchalter v. Planters* Loan & Savings
Bank, 100 Ga. 428, 432, 433, 28 S. B. 236;
Lubrollne OU Go. v. Athens Bank, 104 Ga.
376, ^380, 30 8. B. 409 ; Scott v. Hughes, 124
Ga. 1000, 53 S. E. 453. But, except In the
Instance provided for by statute, a mortgage
cannot be given on property to be thereafter
acquired. Civil Code. S 3256; Ga. Southern,
etc., Ry. Co. V. Barton, 101 Ga. 466, 28 S.
E. 842; Lubrollne Oil Co. t. Athens Bank,
supra ; Durant v. Dachesse D'Auzy, 107 Oa.
456, 33 S. E. 478.
[21 This was not a general description of
property, where parol proof could serve to
apply the description to the property. But
It was an eCFort to create a mortgage on
property which the parties recognized could
not then be mortgaged. The plaintiff testi-
fied In his own behalf that one of the pur-
chasers stated that he could not give the
plaintiff any security on those, cows, because
the title was not in him, but as soon as they
were paid for they would be Included ; thus
■bowing that the parties did not oonsldw
them as being then included.
It waa contmded that the Intervener was
flStOKWd from claiming title to the pn^pwty,
by reaaon of bla lepresentatlon that the cows
beltmged to the person with whom the plain-
tiff was fxmtwnplatinc making a tzade. In
addition to what taas be» said ahor^ it
muBt be borne In mind that UiU waa not a
proceeding against all -of the ivoperty of the
pordiascra, nor was the receiver appointed
for all of their property. The action was for
the purpose of foreclosing the written con-
tract of purchase, and the recover cmly had
the right to the possession of those things
wbidi fell within the contract, and whteh he
oould adze for that reason. It was an equit-
able foreclOBure, and, as to the cattle in con-
troversy, it was an effort to foreclose a
mortgage on property whidt m^t be ac-
quired after the- mortgage was givea We
have shown that it was invalid aa to such
property. The evidence proved that the iffop-
erty belonged to the Intervener, unless he
was prevented from claiming it by estoppel.
Assuming that he made the representation
stated by the plaintiff, this was not sufficient
to change the mortgage which was invalid
as to this property. Into a valid mortgage
upon It; nor was it snffldrait, in a proceed-
mg of the character of the present one, to
estop him from claiming that the property
was not subject to a Ilea thus sought to be
created -upon after-acQuired property.
•For otlwr mmt mh laim toplo ud mcUoh NUHBEt^
[S] Ae the recelver'B rl^t to the posseeiioa
of these cattle depended upon the validity of
the mortgage sought to be given npon them,
and we have held that sncii U»i was not
valid, it follows that he was not entitled to
hold them as against oAe who tact bad
Utie to them.
Judgment on main bill of exceptions affirm-
ed. Crosa-bUI of ezc^ons rtinmlBswd All
the Jnstioes concur.
OUOa. W)
NASHVILLE, a & ST. L. BT. T. HUBBLa
(Supreme Court of Georgia. July Ift,
(8vUalu9 Iff th« Court.)
1. Abatxuskt and Revival (f 12*}— Gsouhd
FOK ABATEUENr— OTUSB ACTION PEKDinO—
What Law Govbbns.
Where an action was brought In thli state
by a woman for a personal Injury alleged to have
been caused by the negligence of a railway com-
pany in Alabama, which action was removed to
the Circuit Court of the United States, and af&
er her death her administrator was made a par-
ty thereto, and where, after the death of the
original plaintiff, her admiolstrator institated
an action in the state court to recover damages
on account of her death caused bv the same In-
Jury, under Code Ala. 1907, § 2486, the i»enden-
cy of the former action did not famish ground
for abatement of the. latter.
(a) The tnjnry having occurred in Alabama,
and the suits miving been brooght in Georgia
(it not appearing where the death took place),
and the statute of Alabama having been tread-
ed as a basis for reoovary, the question of the
effect of the one action upw the other is to be
determined according to the law of that state.
[Ed. Note.— For other cases, see Abatement
and Revival, Cent Dig. H 67-91, M. 86^ 88;
Dec Dig. I 12. •] ^ *. ™.
2. Dbbcubbeb Pbopiblt Ovbbbuijbd.
The demnrrer waa without nwxlt, and there
was no error In overmllng It
Error from Superior Court, Dade Ooonty;
A. W. Fite, Judg&
Action by O, B. Hubble, administrator,
against tlie Nashville, Chattanooga ft St
Louis Railway. Judgment for plaintiff, and
defendant brings error. Affirmed.
See, also, 76 S. B. 1009.
Mary L. Hubble brought suit in this state
against the Nashville, Chattanooga & St
Louis Railway for a personal injury alleged
to have occurred In Alabama. The case was
ronoved to the Circuit Court of the United
States. She died, and her administrator, O.
B. Hnbble, was made a party in her stead.
Later the adminstrator brought suit In Dade
superior court for the homicide of his intes-
tate, alleging that the Injury on which the
first suit was predicated caused her death.
The defendant filed a plea in abatement, set-
ting out the pendency of the case In the
United States court The plaintiff then dis-
missed that case. The plea was overruled.
Defendants demurred to the petition. The
demurrer waa overruled, and the defendant
gjcepled.
a Aid. Dig- K^r-Mo> SwM ArBut'r InMas
^^pec -f- Digitized by Google
fB SOUrmOASTBIBN, BSPOKTBit
Vonat 4 FaTDC^ of C^ttanoogt, Tenn^ for
plaintiff In error. J. P. Jacoway and B. T.
Bam^ botti of Trenton, for defendant In
error.
liCMPKIK, J. <after atatlng tbe &etB as
above). [1] 1. The alleged tort was commit'
ted in. Alabama, and the law of tbat state
was pleaded aa a baa|a foi recoTery. If an
action Is brought In a state court, and re-
moved to the federal court, and while It Is
there pending another suit Is brought In the
state court for the same cause of action, a
plea in abatement will be sustained. Louis-
ville & Nashville Railroad Co. v. Newman,
132 aa. 623, 64 S. EL 641, 26 L. R. A. (N. S.)
968. It has been held by a decision render-
ad by two Judges that where an action Is
pending, and a second suit Is brought for the
same cause of action, and a plea in abate-
ment is filed, it cannot be met by dismissing
the first case. Singer v. Scott, 44 Oa. 659.
The question which we have to determine
la whether, under the law of Alabama, the
first and second suits were for the same
cause of action, so that the former would
furnish ground for plea In abatement, or a
Judgment therein for a plea In bar, to the
latter. On this subject the decisions are In
distressing oonfUct in Ta;4ou8 states, as will
be seen from Tiffany on Death by Wrongful
Act (2d Ed.) 11 43, 44. 73, 126-12& Bo far
aa we have been able to ascertain, the exact
point has not been decided in Alabama, and
we therefore tread upon somewhat unexplor-
ed ground In attempting to determine what
Che decision of the highest xonrt in that state
will be, when the question Is presented to It
But we have certain indicia from which ire
think we may fairly formulate an opinion
upon the subject; at least until that court
rihall have spok^
Section 2486 of the Code of Alabama of
1907 reads as follows: "A personal represen-
tative may maintain an action, and recover
such damages as the Jury may assess, for
the wrongful act, omission, or negligence of
any person or persons, or corporation, his or
their servants or agents, whereby the death
of his testator or intestate was caused. If
the testator or Intestate could have main-
tained an action for such wrongful act,
omission, or negligence, if it had not caused
death. Such action shall not abate by tbe
death of the defendant, but may be revived
against bis personal representative, and may
be maintained, though there has not been
prosecution, or conviction, or acquittal of the
defendant for the wrongful act, or omission,
or negligence; and the damages recovered
are not sabject to the payment of the debts
or liabilities of the testator or intestate, but
must be-dlatrlbuted according to the statute of
distributions. Such action must be brought
within two years from and after the death
of the testator or intestete." Tbe Supreme
Court of that state has held that the dam-
,^es recprerablfi under the atatate quoted
ftza ponitlTe In tbidr oataM and to prevent
homicides 1^ wrongful acta of nei^lgence.
Bnckalew v. Tennessee Coal, Inm & B. Co,
112 Ala. 14«, SO Sooth. 606; Blcbmond &
Danville B. B. Oo. v. FreemaUt 97 Ala. 2M,
11 South. 800. Also that evldenee of pecuni-
ary loss and mental suffcadng la not admla-
sLble^ In audi a caae^ Alabama Great So. B,
Cow T. Bnrgesa, 116 Ala. 609. 22 South. 913;
Louisville ft Nashville B. Ga v. Tegnw, 125
Ala. 693, 28 South. 6ia
By section 2496 ot the Code of ATaNima
of 1907 It is declared: "All actions on ooor
tracts, express or Implied, and all personal
actions, except for injuries to the reputa-
tion, survive in favor of and against the per-
sonal r^resentatives." If It be assumed
that this section provides for survival of the
action for a p^soual injury which results in
death after action has been brought for
damages by the injured party, in such an ac-
tion the damages recoverable are compen-
satory In character, and evidence of pecun-
iary loss and pain and suffering is admissible.
Moreover, as death terminates all exi>ectaD(7
of further life on this earth, it would seem
that, when an action by a person for an in-
Jury to him survives to his administrator,
the actual death would prevent the recovery
of damages based on tables of further ex-
pectancy of life. At any rate, here are two
suits, one of which Is a common-law action
for an injnry to the person (claimed under
the statute to survive to the administrator),
and in which compensatory damages can be
recovered, the other a purely statutory cause
of action, arising upon death, in which salt
punitive damages are recoverable. The evi-
dence to snstaln the one is not admls^ble In
the other. The recovery in one forms a part
of tbe estate in the hands of the administra-
tor, subject to the payment of the debts of
the deceased. In the other the administrator
is only a statutory plaintiff, and the damages
recovered are not subject to the payment of
the debts of the deceased, but must be dis-
tributed according to the statute of distribn-
tions. The heirs are the real ben'eflciarlea.
In Wynn, Adm'r, v. Tallapoosa County
Bank, 168 Ala. 4«9 (60), 68 South. 228, it
was held that section 2496, above quoted,
did not Include causes of action or rights
of action. Mayfield, J., distinguldied be-
tween an action and a cause or right of
action, as those terms are used in the English
common law, and said: "We have no statute
in this state which provides for the survival
of such causes of action against the iwrson-
al representetive. We have a few, which
either give a new right of action, or provide
for the survival of a cause of action Cor the
personal representative. Whetlier (3iia is a
new cause of action given, or the survival of
an old one, it la not necessary to be now de-
cided. We refer to the homicide statute and
the employer's liability act." As to the sur-
vival of a cause of action In Alabama, it vras
aald to be necessary, ^ ^^^jgf)M»
*
law. In KenpMy V. Datiti, 171 Ala. 009, tf5
Sontb. 164. Aim: Om. 225. It was beld
that the iaetioD avtboilaed by aecdoa 2480 oi
the Code of 1907 was iHrnlr statotDir. aa
no -spch light of acttod' existed at common
law; that We daimu^ oollected In an ac-
tion mdw the homicide act f»r the wrong-
fnl death of an Intestate rested exduslTely
tak Ort dtrtrlbntces 6f the eetate, and were
not assets subject to' admlniBtratJon, the
personal representative being the agent merer
Ir te collect and pay oveir; and tha^ ac-
cordingly, where cme liable to soidi a' aoit
compromised a claim tberefor and obtained a
release from the decedent's sole heir and
dlstrlbntee, it was a good defense to a suit
thereafter bronght by the admlnls^tor of
the decedent In Sloss-Sheffleld Steel & Iron
Co. V. MUbra, 178 Ala. 656 (8). 55 Soath. S90,
It was held that a plea in abatement was not
available nnless the judgmrait which would
be rendered in the prior action would be
conclusive between the parties and operate
as a bar to the second action.
It is not easy to perceive how a common-
law right of action by a man to recover com-
pensatory damages for injuring him Is the
same cause of action as a statutory right to
sue for punitive damages for hie homicide,
or bow the former can furnish ground for a
plea to abate the latter. The two are so
utterly different in origin, in right of recov-
ery, in evidence admissible, and in beueflcl-
arles, that it seems Illogical to hold them to
be Identical, though some courts, under cer-
tain Burvival statutes and statutes author-
izing suits for bomlcide, have held that the
one abated or barred the other, apparently In
some cases on the theory that, although on
their face legislative acts permitted two ac-
tions to be brought or maintained — one of
conunon-law origin and in wtdch there might
be a certain character of recovery, and the
other of purely statutory origin and with a
■different recovery for different beneficiaries
—the Legislature did not intend to do so. In
ether words, these courts hold that if leg-
islative acts provided for the survival of
.<aie action, and also authorized the bringing
of another, they did not Intend to allow two,
but only one.
It should be further noted that In certain
cases, where it was intended that one ac-
tion sounding In tort should bar another
growing out of the same transaction, the
statutes of Alabama bave so expressly stat-
ed. Thus by section 2482 of the Code of 1907
it is declared that an unmarried woman may
sue for her own seduction. Under section
2483 a father, or under certain circumstances
a mother, may sue for the seduction of a
daughtw; "but a suit by the dau^ter is
a bar to an action by the father or mother."
By section 2485 provision is made for a suit
for the death of a minor caused by wrongful
act, omission, or negligence. It is declared
that the father, or In certain instances the
mottaer, may mm, and that U both an dead.
9ZV
or U they dedine to mi^ tkfL to do to In
tlx montta from the deatti of the minor, Ifae
p&mnai npresttitatlve of the minor may
sne; "bat a salt by any om ot them for the
wnmgfot death of ttuf Mnor shall be s boz
to another acttonj elt^ under this section
or nnder the snoeeedlng section** (the genoral
section aiiHiotlilaf a personal nvresentatlTe
to 'maintain an action fat a wrongful act
caostng death). l?hls ttpress Btx^n^xm of
dnplicattbn of actions In certain cases WonUI
8e«i to Indicate a legtedatln latent not to
ezchide -two snlts where not so prohibited—
as a salt for a penonal Injury to the platan
tut. with snnrlval of the action to his ad-
ministrator, and a statutory acti<Hi for puni-
tive damages by an admlhlstrator f or ttw
benefit ^ dlstrlbntees.
The act of Congress commonly known as
the Employer's UabiUty Act of 1908 (Act
April 22. 1908. c. 149. 85 Stat 65 tU. B.
Gomp. St Snpp. 1911, p. -1822]), as amended
(Act April 6, 1910, C. 143, 36 Stat 291 [U. S.
Oomp. St Supp. 1911, p. 1320]), provides
that railroad companies engaged as common
carriers in interstate commerce "shall be
liable in damages to any person siifiFering in-
jury while he is employed by such carrier
In such commerce, or, in case of death of
such employe, ^to his or her personal rep-
resentative, for the benefit of the surviving
widow or husband and children of such em-
pIoy€, and, it non^ Qien of the next of kin
depen(].ent upon such employ^, for such In-
jury or death resulting in whole or in part
from the negligence," eto. In Michigan Cen-
tral Railroad Co. v. Vreeland, 227 U. S. C9,
at page 68. 33 Sup. Ct 192, 195 (67 L. Ed.
— ), Mr. Justice Lurtou, referring to the
clause in regard to death, said: "This cause
of action Is Independent of any cause of ac-
tion which the decedent had. and Includes
no damages which he might have recovered
for his injury if he had survived. It is one
beyond that which the deced^t had — one
proceeding upon altogether different princi-
ples." In Tiffany on Death by Wrongful
Act (2d Ed.) I 127. after referring to dif-
ferent decisions, the author says: "Upon
the ground tliat the two causes of action
arising under a survival act and under a
death act are separate, distinct, and inde-
pendent causes of action arising out of the
same wrongful or negligent act, the dam-
ages in the one case being limited to such
damages as the decedent himself might have
recovered, and In the other being the pe-
cuniary loss suffered by the persons entitled
to the benefit of the action, it has been log-
ically held in Maryland that a recovery in
one action Is not a bar to the odier and that
the two actions may be maintained concur-
rently. And such appears to be the rule in
Arkansas, Ohio, and Wisconsin."
Under the statute of this steto authoriz-
ing an action for the homicide of a husband
ot father, it was held In Southern Bell Tele-
pHono k Telegraph Go. v. Casein, lU Ga. 57&
Digitized by Google
NASHVILLE. O: A ST. L. Bf. v. HUBBUB
922
78 80DTHBASTBEN BStPOBTBH
86S.IlL881.B0X*B,A.ee4» Out when an
Injured person broni^t suit to recover dam-
age^ and settled with the wrongdoer there-
for, and discharged him from aU UaUUt7, U
be anbsequently died becanse of the Injury,
the aettlement prermted a recoTory br Us
wife or children. From this dedston two
of tike dx Judges rlgoronsly dissented. In
Spradlln v. Georgia Railway ft Blectrlc Oo.,
77 S. IL 799 (March 1, 191S), suit waa bronCfat
by an injured person tar damag», and Tq>on
his deaOi bis. administrator was made party
under the survival statute. After such
deatii, his widow brought suit against the
same defoidant, to recover for his homldde^
all^teg that he ^ed In consequence of the
Injuries which bad fornlsbed the basis of
bis suit The administrator lost his case^
and the Judgment was pleaded in bar to the
widows acOcm for the bonilcld& It was
bdd not to be a good plea. From this de-
cision two justices dissented. As Mr. Tif-
fany points out in bis work, the dedrions of
the courts on this subject may not be en-
tirety logical, but the writer entertains no
doubt of the soundness of the decision In the
Spradlln Oasa
Realising the delicacy of the task of con-
strulng the statutes of a sister state, in the
absence of direct adjndlcatlon on the point
of coBtroveny by (he Supreme Court of that
stat^ and In the presmce of the conflicting
decUdonB of other courts, we beUere that,
under a proper construction of the provi-
sions of the Alabama statutes aboVe men-
tioned, the suit brouj^t by the Injured wo>
man, to wlil<di her admlDietrator was made
a party after her death, did not furnish a
ground for a plea In abatement to the snb-
seguent action brought by the administrator
of the decedent oa. account of ber homicide.
[2] 2. There was no meMt In any of the
gnmnds ot the d«nurrer, and it was properly
overruled.
Judgment aJDrmed. All the Justices con-
cur.
aio Oa. m)
ElfORT et al. t. GRAND UNITEa> ORDER
OF ODD FELLOWS et aL
(Supreme Court of Georgia. July 21, 1918.)
(Byltalut T>y the Court.)
1. CoaPOBATiOHS (I 49*)— Nahb— Use or Snc-
lUB Nam bt Othbbs— "CJolobabu Ikra-
TIOH."
Under the evidence, the court did not err
in holding that the name of the defendants' or-
der was "snbstantially dmilar" to the name of
the plalntur^ ordw, and a "colorable Imitation"
thereot
[Ed. Note^For other eases, see Corporations,
CentDig. 1187; Dee.Dijri49.*]
2. COBPOBATIONS (i 49*)— NaKE— USK OT SlX-
LLAB NaUI bt OtHEBB— IhJTTNOTION.
There being evidence aathorizlng the court
to fled that the plalntiffii* order first existed In
this state, and bad been incorporated under the
laws of this state prior to the date upon wbicb
the defendants' order sought to omntM and
become incorporated, and that (so far as the
record disclosed) there was no ouer order of a
similar name ha^ng an ezlBtenoe and Incorpo-
ration prior to that of the plaintiSs in tbla
state, it was not error to grant the injoDction,
under the provisions of the act <d 1900, em-
bodied in Qt. Code 1910, | 1994.
[Ed. Note.— For other cases, see Corporations,
Cent. Dig. { 187; Dec. Dig. I 49.*]
8. Btatutbs a 140*) — Trru — Adopxiox ow
OoDB— BainEnoXAX. Absociatior&
Whether the act of 1909 (Laws 1909, p.
1S9) at the time of its passage was violative of
the Constitution of tbe state of Georgia (article
3, I 7, par. 8). which declares that "no law or
ordinance shall pass which refers to more than
one subject-matter, or contains matter different
from what is expressed in tbe title thereof,"
the defect was remedied by the subsequent adop-
tion of the Code of tbe state, containing aU the
provisions of tbe act referred to.
[Ed. Note.— For other cases, see Statatea,
Cent Dig. I 216; Dec. Dig. J 146*]
4. CoNsnrnnoNAL Law ({| 206, 211*)— Con-
FOBATIONS (8 49*)— I^aiTILKOBB AND lUCn-
HITIBS— EQUAX. PBOTBOTION— NAMSB.
The act in question is not violatiTe of
those parts of tbe Constitution of the United
States, contained In the fourteenth amendment,
which prohibit any state from making or enforc-
ing any law which abridges the privileges or
immumtiM of citizens of the United States, or
which has the effect of denying to any person
within the jurisdiction the equal protection of
tiie laws.
[Ei. Note.— For other cases, see Omstitution-
al Mw, Cent Dig. H 625-64& 678 ; Dea Dig.
» 206, 2U ;* Corpoiations, Gent Dig. | 137;
Dec. Dig. S 49.*j
Brror from Superior Court, BU)b County;
H. A. Mathews, Judge.
Action by the Grand United Order of Odd
Fellows and others against W. O. Emory
and others. Judgment for plaintiffs, and de-
fendants bring error. Affirmed.
The subcommittee of management of the
Grand United Order of Odd Fellows In Amer-
ica, a corporation under the laws of Pennsyl-
vania, and of the District Grand Lodge, No.
18, Grand United Order of Odd Fellows of
America, Jurisdiction of Georgia, a corpora-
tion under the laws of Georgia, hereinafter
referred to as the plaintiffs, brouc^t their
petition against W. O. Emory and others, al-
leging as follows: Tbe Grand United Order
of Odd Fellows In America is a fraternal,
social, benevolent, and charitable organisa-
tion existing in the state of Georgia, the same
having been organized as a benevolent and
friendly society In the state of New York In
tbe year 1843 or 1844, and having adopted,
at the time of Its organization, the name
Grand United Order of Odd Fellows In Amer-
ica, and ever since baring kept and promoted
said organization in and under said namsi
The order established Its first branch in tbe
state of Georgia In tbe year 1870, and has
ever since kept np and promoted Its organ-
ization by maintaining branches thereof and
by organizing numerous lodges, and It has
now a numerous membership. ThU order.
Grand United Order of Odd Fellows In
•For etlisr «u«s sse ■un* tople and ssetlon NUMBER in Dee. Dig. * Am. Dig. lg»^;:Me>
ilizeci^
XBIOBT T. OBAND UNITED
OBDSB or ODD FELLOWS 928
America, was Incorporated nnder tbm laws ot
the atate of PennaylTanta In tbe year 1880,
baving aa Its object tbe pnrposea aforemoi-
tloned. A Dlstnct Graiul Lodge of tbe order
was organized In tbe state of Qeoq^ In tbe
year 1882, and tbia baa been In oonUnuooB
existence tbroogtaont the state^ nstng the
name of said Order ot Odd B^owa with
tbe consent of the constitnted antbortOes of
the order. The branches of said Ordu of
Odd Follows organized and existing within
the state of Georgia, composing the District
Grand Lodge of said order In Georgia, itself
a branch of the first-named petitioner, be-
came Incorporated as a body politic in the
state of Georgia In the year 1902 under tbe
corporate name and title of the "District
Grand Lodge, No. 18, Grand United Order of
Odd Fellows of America, Jurisdiction of
Georgia." Petitioners are the duly constltat-
ed authorities for the maintenance and man-
agement of said Grand United Order of Odd
Fellows In America In the United States of
America and In the state of Georgia and all
the branches of said Order of Odd Fellows
within the atate of Georgia; tbe branches
being called lodges, and, where composed of
women, called Households of Rntb. The Or*
der of Odd Fellows is a secret organization,
baring seals, signs, passwords, emblems, and
insignia. Tb^ words "Odd Fellows" are the
distinctive words in the name of said order,
"which ever liave and do cardinally distin-
guish the name and style of said order and
of your petitioners from other fraternal or-
ders of a like klod In the United States of
America and In the state of Georgia," and
said order and petitioners have acquired a
proprietary right In said name, and have ex-
clnslre right as against the defendants to the
use of tbe name aforesaid and tbe words
"Odd Fellows" and the phrase "Order of
Odd Fellows," which form a part of the
name. The continued existence and success
of petitioners' order la largely dependent up-
on its name and repute, in which name it has
aciiulred property and established its reputa-
tion as a fraternal organization. Tbe defend-
ants were formerly members of petitioners*
Order of Odd Ftilows^ but are not now mem-
bers, having ceased to be such during the
year 1910, and they are now associating tbon-
adves together for tbe purpose of organizing
a like organization with that of tbe plalntlffa
under tbe name <tf "Andent Order of Odd
Fellows, Leeds Unity,** and are proceeding
to organize branches to be known as suborn
dlnate lodges of Odd Fellows and Households
of Butb. Tbe name and style of the organ-
ization proposed by tbe defendants and thdr
associates is substantially Identical with tbe
name and style of petitioners' order. The
prayer is that the defendants may be re-
strained and enjoined from organizing under
the proposed name and instituting subordi-
nate lodges, etc, and that they be further
restrained from representing themselves to
be Odd I^dlows or members of that oxder In
the state of Georgia, and be also restrain-
ed from infringing on the naitae of petltlon-
era and its emblems and Inidgnlar
At the Interlocntorr bearti^ the Judge
granted tbe Injunction as prayed for, to be
of force until &e verdict of a Jury upon final
trial. He found that the following facta
were either admitted or proved : Tbe plain-
tiffs are and have been tar a number of years
duly Incorporated, and their order has built
up in tbe United States and in Georgia,
among the colored people, a large member-
ship, and baa eatabUsbed an extensive or^
ganlzatlon for social, benevolent, and friend-
ly pnrpoaes, and also an Insurance business.
This order was identical or closely connected
wltb an order of the same name In England,
and was established by virtue of due au-
thorization of tbe English society. The de-
fendants are colored people, and are acting
under authorization of an order of the Odd
Fellows In England, independent of the Grand
United Order Odd Fellows, to wit. the An-
cient Order of Odd Fellows. Leeds Unity, and
unless prevented by some 1^1 or equitable
right of the plaintiffs, growing out of their
prior occupation of the field, the defendanta
have as much right to proceed with their or^
ganlzatlon as the plaintiffs had when they
proceeded to establish their lodges and ex-
tend their membership In this stat& The
defendants, shortly before the filing of this
suit, were all members of tbe plaintiffs* or-
der. They became dissatisfied with the man-
agement of the order, on account of allied
wrong, and of lU^al and oppreeslve conduct
of tbe order and Its officers ; and tbey Joined
In a movement (after receiving authority
from a r^lar English order of Odd Fellows
to organize and extend a brandi of this Eng-
lish order in Georgia) to denounce the man-
agement of the plaintiffs' order, etc. The
distinctive and popular name of the plain-
tiffs' order Is tbe "Order of Odd Fellows."
This is also a part of the name in and by
which Uie defendants are seeking to estab-
lish their orAer, and the words in the formal
designation of the defendants' order do not
make such a difference as would prevoit it
from being so similar to that of tbe plain-
tiffs as to cause confnslon of names and
work Injury to their order and business.
B. Douglas Feagln, Bobt L. Bemer, and
B. E. Hlnes, all of Macon, for plaintiffs In er-
nr. G. P. Goree and Bosser ft Brandon, all
of Atlanta, and John P. Boss, of Macon, for
defendants in wror.
BECK, 3. (after stating the fiicts aa
above.) [1] We are of the opinion that the
cotirt below correctly held that the distinc-
tive name of the plaintiff's order is "Order of
Odd Fellows,*' and that this is also the essen-
tial and distinctive part of the name In and
l)y Which tbe defendants are seeking to estab-
tbelr order, and that tbe otber words in
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78 SOUTHEASTB&M BEFO&TDB
tkQ fwinal dortgnatfon of tlie d^endvitB'
order do not make such a difference of des-
ignation as would prevent Its being *'a color-
able imitation" of the name of the plalntUTs
order. C30uslderlng the character and pur-
pose of the two organizations, the names are
"substantially similar." From the report of
the case of Creswill t. Knights of Pythias,
133 Ga. 837, 67 S. H 188, 134 Am. St. Bep. 231,
18 Ann. Caa 453, it appears that the Grand
Lodge of Knights of Pythias of Georgia and
others filed a [>etltIon to enjoin Creswill and
others from prosecuting an application to be
incorporated under the name "Grand Lodge
Knights of Pythias of North America, South
America, Burope, Asia, Africa, and Austra-
lia, Jurisdiction of Georgia"; one of the
(ronnds of the application for injunction
b^g that the name of the defendants was
a colorable imitation of the name of the plain-
tiff in that case. In the opinion rendered by
this court, reviewing the Judgment of the
court below granting the Injunction iffayed
for. it was said: "Counsel tor defendants
contend that the name they are seeking to
appropriate by incorporation is not substan-
tially the same or a colorable Imitation of
the plaintUTe name. They say they make the
name essentially different by adding the
names of the continents. North America,
South America, Europe, Asia, Africa, and
Anstraiia. We could not agree with this con-
tention of the defendants If the names of the
continents thus used as suffixes were em-
ployed In avwy Instanc* whm tba ordor Is
designated, 2or it la well establiabed by the
proof that the distinctive words In both or-
ders are the words, 'Enighta of Pythiae.*
At <me time In the history ot the plaintiff's
order, from the time of its incorporation
under the act of 1870 to the time of its In-
corporation by the special act of Congress of
1894, the Supreme Order was known as the
'Supreme Order Knlt^ts of PytUas of the
World.' The defendants, in specifying tb^r
field of operation, do not specify the entire
earth, but the main continents thereof. These
words denoting latltade of operation are not
distinctive, and they are not always added
in the use of the name. It is the use and
colorable or imitative character of the name
that controls, and the use made of the name
by the assodatioo alleged to have Infringed
is a question of tact tor the Jury. Foster,
Milburn ft Co. t. Blood Balm Co., 77 Ga. 216,
3 S. B. 284; Lies v. Daniel, 82 Ga. 272, 8 S. B.
432; Whitley Grocery Co. v. McCaw Mfg. Co.,
105 Ga. 839, 32 S. B. 113. The addition of the
word 'Artificial* by suffix to the nalne 'Carls-
bad Spmdel' does not prevent infringement;
"Carlsbad' being the distinguishing word. The
name 'National Folding Box & Paper Com-
pany' Is infringed by the name 'National
Folding Box Company Limited.' The imita-
tion need only be slight, if It attaches to what
is most salient* Johnson v. Bauer, 27 GL C.
A. 82 VeO. 062; McOann t. Anthony, 2L
Mo. App. 83 ; Saxlehner r. Eisner A Men del-
son Co.. 179 U. S. 10, 31. 21 Sup. Ct 7, 45 L.
Bd. 60; Paul on Trade-Marks, U 69, 168. 170,
188. The plaintiffs in error rely upon the
case of Supreme Lodge knights of Pythias
T. Improved Order Knights of Pythias. 113
Mich. 133, 71 N. W. 470. 38 L. R. A. 658, in
which it was held that these names are not so
similar as to cause one to be taken for the
other. We do not believe that this case is In
line with the trend of authorities on the
subject of similarity of names." We think
that what Is said In the Creswill Case, from
which the above anotatlon is taken, and in
the cases dted, is decisive of the question in
hand, and renders any more elaborate dia-
cossion unnecessary here. The dedaion in
the Creswill Case relative to this question
supports the ruling of the court below, hold-
ing that the name of the defendants* order
is substantially similar to the name of the
plalntifTs ordw, and Is a ooloraUa imitation
thereof.
[2] 2. Section 1098 of the Code reads as
follows: "No person or organization shall
assome, uae^ or adopt, or become incorporat-
ed under, or continue to use the name and
style or embl«ns ct any benevolent, frater-
nal, social, humane, or charitable organiza-
tion previously existing In this state, and
which has been incorporated under the laws
of this or any otJia state, er'of the United
Statei^ or a name and style or emblon so
nearly resembling the name and style of such
Incorporated organization as to be a color-
able tmltatlm thereof. Ii^ all cases where
two or more of such societies, aasodationB, or
corporations claim the right to the same name,
or to namwB mbstantially similar aa above
provided, the organization which was first
organized and used the name^ and first
became incorporated under the laws of the
United States or of any state of the Unkm,
whether Incorporated In tills state or not,
shaU be entitled in this state to the prtxa and
exclusive use of such name and the rights of
such societies, assodaUons, or incorporations,
and of their individual members shall be
fixed and determined accordingly.*' The
court was authorized to find from the evi-
dence that the plalntUTs order existed in this
state, and bad been incorporated under the
laws of this state prior to the date upon
which the defendants* order sought to oi^n-
ize and become incorporated, and that so far
as the record discloses there was no other
order of a similar name having a prior ex-
istence and incoiiraration to that of the plain-
tiffs in this state, and It followed that, under
the provisions of section 1994 of the Civil
Code, the plalntUb were MiUtled to to-
Junctive relief.
[3] 3. The court below evidently based its
decision upon the provisions of sections 1993
and 1904 of the Code, and did not pass upon
the question which, bat for that act, It
might have been neoessarr toJifieiae, ta wit;
Digitized by VjOOglC
BEABOASD AIB UNX BT. T. ASfDttSEWB
025
vbetba% oader the geneial law as to tbo
InfrlDgement of trade-mutes and trade-marks
and the laws relatlnc to^ unfair cofflpetltion
Ilk trade, tbe plalaUlb were wUtled to in-
action; and It la unnecessary for ns to
consider that question, in ?lew of the expraas
fffOTlsloiis of the two sections of the Code re-
ferred to. But it is recited In the biU of ex-
ceptions, that plaintitCs in error "except to
' 80 much of the opinion as holds that the
act of 1909 therein referred to was a legal
and valid law, and applicable and controlling
In the preset case, and that the same was
error, for the reason that said law, as con-
tended in the argument of defendants (plain-
tllfs in erro^) before the chancellor, was void
for the following reasons: (a) That said act
was violative of paragraph 8, S 7, art 3, of
the Constltutloo of Georgia, to wit: 'No law
or ordinance shall pass which refers to more
than one subject-matter, or contains matter
dlfTereDt from what Is expressed In the title
thereof.' " Whatever force such an objection
might have in case It had been urged in the
constitutionality of the act prior to the adop-
tion of the GivU Code of 1910, the objection
lost Its force completely upon the adoption of
the Code, as the provisions of the act of 1909
are embodied In the two sections of the Civil
Code above referred to and in section 258 of
the Penal Code. Central of Georgia By. Co.
V. State, 104 Ga. 831, 81 S. B. 531. 42 L. B.
A. 618; McFarland Donaldson, 116 Ga.
067. 41 S. E. 1000.
[4] 4. The act In question Is not violative
of those iwrte of ttie Constitntlon of tbe
United States, contained In the fourteenth
amendment, which prohUdt any state from
making or enfordi^ any law which abridges
the prtrflegefl <w immunities of (dtlsoiB of the
United States, or which has the effect of
denying to any person within the Jnxisdletfon
the equal protection of the laws.
Jndi;ment afflrmed. All the Justices eon-
ear.
aw 0*. iH)
BBABOAltD AIR LINID RY. t. ANDBBWS.
(Supreme Court of Oeorsia. Jaly 18, 1913.)
fSyUahut hv the Court.)
L Cabbibbs (8 234*)-~Btidencb Q 80*)—
Laws of Arothbb Statb— Ihjubt to Fas-
smosB— What Iiaw Oovsura
In an actloQ for damages Instituted in this
state by a passenger aralnst a common carrier,
on account of pergotial iojuriea caoaed by the
negligence of the defendsnt's lerv&Qts, where
tbe injury occurred in the state of Alabama,
the liability of tbe defendant will depend upon
the laws of the latter state ; and where no par-
ticular law of Alabama is pleaded or proved,
tbe presumption is that tbe common law pre-
Tslls there, and tbe case will be eonddexed as
ffovemed by the common law.
[Ed. Note. — For other cases, see Carriers,
Cent Dig. SS 966, 1263, 1538; Dea Dig. I
234:* Bridence, Cent Dig. f 101; Dec. D&. {
80.*]
•For ottar Mass set sasM topla sad MBttOB MUKBaft
2. Gabbiebs Of 234, 280. 320*)— NxouoKirox
— INJUBT TO PaSSXROBB— QUBSnOR ItW JtT-
BT— 'EXTBAOBOIIfABr CaBB."
The motion tor nottsait Was property fw^
ruled,
[Bd. Note.— For other cases, see Garriexs,
Cent Dig. M 965, 1085-1092. 1098-U03, 1105.
1106, 1109, 1117. 1118, 1126, H49, 1153, 1160.
1167. 1179, 1190. 1217. 1233, 1244, 1248, 1263,
1816-132S. 1538; Dee. I>ig. || 234. 280. 820.^
For other definitions, sse Words and Phiases^
VOL 3, p. 2626.]
3. Gabbxbbs (8 848*>— Ihjubt to FaaaBiraKB
— InsTBUcnoiTs.
The judge Charged the common-Iaw doc-
trine, which prevents a plaiutiff flrom reooverinc
if bj tbe exercise of ordinary care be could
have avoided tbe consequences to himself caus-
ed by tbe defendant's negligence; and the as-
signment of error which eomplaliMd of bis fiUI-
are so to do was without molt
[Bd. Nota—JTor other cases, see Carriers,
Cent Dig; M 1408-1406 ; DecTDlg. | 848.*]
4. Tbial (I 266*)-GABBnBS (| 234*)— Ikjdbt
TO PASSENOBR— IlfSIBUOnONB.
Tbe judge In effect also charged the com-
mon-law doctrine that tbe plaintis cannot re-
cover damages for an injury to himself, where
tb9 suae is done by his consent or is caused by
his own negligenceL If further instructioiu in
this regard bad been desired, there should haye
been an appropriate request
(a) So nnch of CMi Code 1910, I 2T81. as
relates to comparative n^llgence and diminu-
tion of damages is not a common-law doctrine,
and it was not erroneous to omit reference to it
In the charge.
[Bd Note.— -Fot otiiei eases, see Trial, Cent
Dig. » 628-641: Dec. X>i»X 2B6i* Carriers.
Cent big. 18 866^ 1268, K&6; Dee. Dig. 1
234.*]
6. EIxcsPTioKS TO iRvrBnonoits.
Other exceptions to the charge affind no
ground for a new trial.
6. Yebdiot Sustaikibd.
Tbe evidence authorized a finding for tile
plaintiff, sad the verdict was not excessive.
Error from Superior Court, Fulton Coun-
ty; Gea L. Bell, Judge.
Action by W. A. Andrews agnlnst the Sea-
board Air line Bailway. Judgmmt (br
plaintiff, and defendant brings error. Af-
firmed.
W. Q. Loving, of Atlanta, for plaintiff ha
error. Lawton Nalley, ol Atlanta, tor de-
toidant in error.
ATKINSON, J. OlilB was an action for
damages against t railroad company by a
passenger, where it was sought to recover on
account of personal Injuries resulting from
the tt^ligence of the defendant The plain-
tiff obtained a verdict for f660v The de-
fendant moved for a new trial, upon the
general grounds, and upon others which
complained: (a) Of the judge's refusal to
grant a nonsuit; (b) of his omls^on to
charge on spedfled subjects, and of one part
of tbe charge as delivered by him ; and (c)
that the verdict was excessive. The motion
tor iic^ denied, and error was as-
signed upon this judgment The case as
m. 4 Am. Dig. Kq-Mo. Sanss * Bep'r ladfliMs
Digitized by
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926
78 SO in'HB ASTERN SEPOBTBB
inad« 1^ tbe ptalndlf wu aabatentlallr u
taXLsnn:
On Janoary 38, 1911, between half past
2 and 8 o'clodc in tike afternAon. the^ainUff
pnrdtutMd a ticket In Blrmln^iani, AUu over
tbe line <tf defendant's railroad, from Blrm-
Ingliam to Piedmont, Ala. The defendanl^B
train was standing In the car shed in BIrm*
Ingham, and was doe to leave at 8 o'clodE.
When the plaintiff went to get on the train,
he waa directed by tlie gatekeeper where to
go. He' went as directed to the train, which
was in charge of the flagnum, who was
standing at the stqis directing passengers
into and off the trabi, and he was directed
by the flagman to enter a designated car.
which he did. He carried a vaUse In his
right hand, and walked down the aisle of
the car in quest at a seat "Whm abont
two>thlrd8 of the distance he stumbled orer
8 snlt case, valise, or some other obstruction
in the aisle, and struck his side on the arm
of a Beat Two ribs were brok^ and he was
totally disabled for five or six weeks, suffer-
ed physical pain, and incurred physician's
bills. He was a traveling salesman, earning
a salary of 9100 a month, and a certain per-
centage on sales made by him. The car was
not lighted at alL There were furnaces near
the car shed, which produced large quantities
of smoke in that vicinity ; other cars were
standing near by on a parallel tra(^, and the
day was dark and cloudy; all of which, in
addition to the fact that the train was un-
der the car shed, tended to darken the Inside
of the car which plaintiff entered. He could
not see or detect the obstruction In the aisle,
and did not know of its presence until he
came In contact with It There was a gener-
al custom, known to the plaintiff and the de-
fendant, for passengers to carry their hand
baggage into the car and place tt In the aisles
opposite th^r seats. Other passengers had
entered the car before the plaintiff, carrying
hand baggage of the character mentioned.
The facts relied on for recovery by the plain-
tiff, as stated above, were contested by the
defendant There was considerable evidence
to Bho>r that the car was not dark, that hand
baggage could readily be seoi when in the
aisle, and that the plalntlfl was not injured
at alL
[1] 1. The Injury occurred In Alabama,
and the liability of the defendant will de-
pend upon the law of that state. No special
law of Alabama was pleaded or proved, and
the presumption Is that the common law pre*
vails there. Sou. B. Co. v. Cunningham, 123
Oa. 00, 60 S. EL 979. The case, therefore,
must be considered as governed by the com-
mon law.
[2] 2. Stress is laid on the asdgnment of
error which complains of the refusal of the
Judge to grant a nonsuit At the time of the
injury the plaintiff was rlghttnlly on the de-
fendant's car as a passenger. Tbe defendant
was bound to exercise extraordinary care for
his safety. The trsln was a regular pa»emer
train, and extraordlnaiy ears wonld have te-
anired defendant -to enrdse tJiat flXtieiBe
care and cautUm which every prudent and
thoughtful parson would use with a like
train under Uke circumstances. Boo. B. Co.
T. Onnntngham, 128 Oa. 90 (M>. SO B. B.
079; HutcUnBon aa CarxlerB, | 899 et sag.
Failure to exercise such care relatlvdy to
a passenger would constltnte n^lgwcft.
What t&cta would suffice to show the ex-
ercise of such care is ordinarily a ques-
tion for the Jury. The facts of this case,
relatively to negligence of the defendant,
were not such as would take tbe case out
of the general rule. It could not be said,
as a matter of law, that a very thought-
ful and prudent person, engaged as a com-
mon carrier, knowing the custom of obatrnct-
ing the aisle (the only way of ingress and
egress to seats In the car) with valises
and other hand baKaga^ and the danger in-
cident thereto, would have directed his pas-
senger to enter the car at a time when than
wore no artificial lights and It was too dark
within for a passenger to readily detect ob-
structions before coming In contact with
them. If it were dark in the car, extraordi-
nary care would, at least, require that the
employ&s of the company should see to it
that the way was clear for the passenger to
take his seat l>efore directing him to enter,
or to provide some means to prevent his In-
Jury by falling over baggage, whlc^ nnder
the known custom, was likely to be placed
in the aisle. No similar case has been de-
cided by this court
Counsel for plaintiff In error cites the case
of Burns V. Pennsylvania R, Co., 233 Pa. 304,
82 Aa 246, Ann. Cas. 1913B, SIL On its
facts the case was somewhat similar, except
that there was no evidence of custom of
passengers known to defendant to deposit
their ba^age In the aisle, and the question
for decision was not ui>on the grant of a
nonsuit In the opinion It was said: "It is
argued that the evidence was not sufficient to
show n^ligence on the part of the appellant,
and that appellee was so clearly guilty of
contributory negligence as to require the
court to BO hold as a matter of law. We are
not prepared to accept these extreme views
of tiie case. We agree with the learned
court below that, both as to the negligence of
tbe defendant and the contributory negli-
gence of the plaintiff, the case was for the
Jniy.** This clearly shows that had the ques-
tion merely Involved a nonsuit, the plaintllfa
action would have been sustained. The Judg-
ment was reversed on other grounds. In the
further course of the opinion It was remain-
ed: *Vi:iiere Is no Pomaylvanla esse directly
in pcdnt, but the weight of authority dse-
whm seems to be that the employes of tbe
railroad company must have had actual no-
tice of the baggage being In the aisle, or
that it most have r^alned t^eresi anaiait
SEABOABD AIB LURB BT. T. ANDREWS
827
Length of tiiM to Rffect Oim with construc-
tive nottc& TUa means tbmt tbe baggage
must have ranalned In the aisle so long
as to bare bem discovered by the officers
In charge of the train If fbey had properly
performed their datles." In support of this,
the case of Stlmson t. Milwaukee B. COk*
75 WlSL 881. 44 N. W. 748, among others, Is
dted. Non^ however, except the Stlmson
Cassk was upon the qoestlou of nonsuit, and
the facts of that case dUtered from those
involved in the ease now under eonsldera*
tloa
There was no question of Inability upon
the part of the passenger to see the obstruc-
tion because of darkness In the car, or of
permission by the carrier, arldng from the
prevailing custom of the passengers, to place
their baggage in the aisle, presoited the
evidence. As will be seen In other divisions
of the opinion, the plalntifE could not recover
if bis own negligence was the proximate
cause of his Injury, or It was by his consent,
or, being due to the negllgeuce of the de-
fendant, the plaintiff could have avoided the
consequences to himself by the exercise of
ordinary care. But these matters of de-
fense arose also on the facts, and generally
they are for determination by the Jury. The
plaintiff knew of the custom to depodt hand
baggage In the aisles; but he testified that
It was dark, and he could not have seen such
baggage, by looking down the aisle, and did
not know that any baggage obstructed the
aisle until he came in contact with the parcel
over which he stumbled. Circumstancee of
this character do not show, as a matter of
law, the at»ence of ordinary care upon the
part of the plalntifC to avoid the consequenc-
es of defendant's negligence, or that his in-
Jury was caused by his consent, or that his
negligence was the proximate cause. The
evidence did not authorize any finding that
the iujury was inflicted by consent of the
plaintiff, but the negllgoice of plaintiff and
the want of ordinary care npon his part to
avoid the consequences of the defendant's
negligence were for decision by the Jury. It
follows that there was no error in doiytng
the motion fOr nonsuit
[3] 8. One assignment of error com^alns
of the omisBion of the Judge, without having
been request^ to tiharge the principle of
section 4428 of the OivU Code, declaring: "If
the idalntUC by ordinary care could have
avoided the consequences to liimself caused
by the defendant's negligence^ he Is not en-
titled to recover. But in other cases the de-
fondant la not relieved, although the plaio-
tifE may in some way have contributed to
tlie injury sustained." ^is provision em-
braces a doctrine of the common law (Hill
V. Callahan, 82 Ga. 109, 8 S. EL 730), and its
applicability to this case is due to the fact
that it is the common law, rather tiian the
tbct that in Georgia, since the adoption of
the Code^ it has the force of a statute. Bat
under this rule of the common law the a»-
sigmnent of error upon the alleged omission
to charge is without merit In one portion
of the charge the Judge Instructed the Jury:
"The law Imposes upon the plaintiff ttie du^
of exercising ordinary care to avoid being
injured." In another be informed than that
the plaintiff could not recover "if the idain-
tlff by the exercise of ordinary care could
have avoided the injury." It thus appears
that, in substance, so far as beneficial to
the defendant the Judge <diarged the doc-
trine which it la insisted should have been
charged. The charge harmonizes with the
reasoning in Macon, etc, R. Co. v. Johnson,
88 Ga. 409, where the conunon law was ap-
plied.
[4] 4. Another assignment of error com-
plains of the omlssioo of the Judge to charge
the principle of section 2781 of the Civil
Code, which declares: "No person shall re*
cover damages from a railroad company for
injury to himself or his ivoperty, where the
same is done by his consent or Is caused by
his own negligence. If the complainant and
the agenta of the company are both at fault
the former may recover; but the damages
shall be diminished by the Jury In proportion
to the amount of default attrlbntaUe to
him.'* The first part of this provision goes
to the right of the plaintiff to recover at all,
and prevents him from recovering If the in-
Jury was done by his consent or was caused
by his negligence — Uiat Is, if his negligence
was the proximate cause of the Injury. This
Is also a doctrine of the common law. See
Macon, etc., B. Go. v. Johnson, suiwa, and
MacoQ, etc, R. Co. v. Winn, 19 Ga. 440, in
which latter case there Is elaborate discus-
sion. The Judge Instructed the jury that "the
plaintiff must recover, if at all, upon the
spedflc acts of negligence set out In his peti-
tion; he cannot recover upon any other act
of negligence than those alleged to be the
acts of n^llgence which caused bis Injui^;
and you will be confined In your investiga-
tion. In determining the acts of negligence,
to those as laid in the petltfim." He also
instructed them that the plaintiff oould not
recanr if they should find that the "injury
was not the direct proximate result of the
defendant's negUgenca** This i^nly told
the Jury that a verdict for plaintiff could not
be based on any other act than neglteence
of defendant causing the injury, and that the
grounds of negligence would be limited to
those alleged In the petition. Ne^lgence of
defendant as tike proximate cause Is the an-
tltheds of negligence of the plaintiff or con-
sent of th» plaintiff to tlie Injury, An in-
telligent Jury would readily und^atand the
above restriction to negligence of defendant,
as a balds of recovery by plaintiff, to mean
that the bijury must have resulted from
plalntlfl'B consent or from his negligence. If
^rther instruction on that point had heax
^Qglred, an appropriate request should have
^een ^ part of the section
Digitized by Google
9d»
IB'SODTHBASTBtlM BBPOBHIB
Aula Wieb' tbe mibject of ooiiQiaraliTe nefiU^
lEtaioe, -Whltih does not'deCeat, but mer^ Af-
flicts Oie' amoimt tff , tlw recDrory. This nmeb
of Um Code Is not from tbe common law, bvt
Is of statutory origin (Bfacon. etc;, & Go.
JobnB<Hi, BnpnO ; "and, as ttie ease la to be
courtdered under tbe comnMm law, flie Judge
properly omitted to cbkrge. <m tbm sabject of
dlmlnutloii of damages. '
[I] 6, Error was also assigned upon the
following ciia^e, as being' Incomplete and
misleading: 'The pkdntUf sues for pain and
ButEering, for doctors' bills, and for lost time.
These are legitimate Items of damages If
tbe plaintiff la entitled to recover at all, he'
wonld be entiUed to recover for pain and
snlferlng endured by reason of the Injury."
But this, In the light of the entire charge, af-
fords no canse for the grant of a new trlaL
[I] 6. The evidence authorized a finding for
tbe plaintiff, and the amount fonnd was not
excessive.
Jud^ent affirmed. AH the Jnsdees con-
cur.
(UO Ga. 880)
HOLLOWAT et al. v. HOARD.
(Supreme Court of Oeorgia. June 18. 191S.)
(Syllahtu the OowtJ
1. Trial 296*) — In8Tbuction8 — Cubi by
OrnEB INSTBUCTIONS.
The court charged the jaiy as follow*:
"If a child hold ezciuBiTe possessioD of land
originally belonginc to the father for Beven
yean without the payment of rent, I said, the
law presumes that to be a gift, and the child has
the right under those drcumBtances to file her
suit to compel specific performance of the toI-
uptary agreement" This charge, Btanding
alone, would be objectionable as not aafficiently
stating tbe rule reiatfre to tiie presnmption of
gift created by seven years' possession with-
out payment of rent; but a reference to the
entire charge on the subject shows that the in-
structions of the court upon this subject were
Sroperly qualified, when what is set fortii above
t considered in connection with the language
ct the charge immediately precedli^ the ex-
cerpt complained of.
rEd. Note.— For other cases, see TriaLOoit
gj.^p TOS^nS. 716, 716, 'TiS; DecTlMc. |
2. Appkal and Erbob (I 1088*)— SUbuuiss
Ebbo»— Ihstbcction .
Although a charge may be somewhat con-
fusing and miBleadine, if it is apparent that
the confusion and misdirection of the charge
could only have the effect of placing a heavier
bardeu upon tbe plaintiff than the law imposes,
it affords no ground for a new trial at ue In-
stance of the defendant
[Ed, Note.— For other cases, see Appeal atad
fcSs •'] ^ ^(><>^-^^: I
8. Qnrra (i 60*)— Oms Inns Yitob— Bn-
nincK— Posssssion.
The consent of the wife, before the expir-
ation of the period of seven years after she
went into possession of the land In controversy
under an alleged parol gift, to tbe purchase
of a amall part of tbe tract of land by her
husband from her father, the alleged donor,
while a cireumatanee to be conaldered by the
jory together with other evidence Id tbe case.
ia not, u a matter of law, InoiHisMieni wlA tiia
claim of IdK wife that tfaeret was a gift by tbe
father, and that Bhe. liad not disdaimed title,
aiid that there had nbt been a claim of domin-
ion by the father, acknowledged by the donea.
[Ed. Note.— For other caBes,'see Gifts, Gent.
Dig- 1 101; Dee. Dig. i Ml*]
4. en-^a (I 61*) — GiTES Iirm Yzvos— la-
8ZBUQTI0HB.
Where, In Instructinff the Jury as to the ef-
fect of voluntary promises and agreements, and
tbe surrender of possession under audi prom-
ises and agreenientB, and tbe making of im-
provements on the lands, of which possession
is given on the faith of the agreement, tbe
court uses the language "substantial improve-
ments," instead of the expression "valuable im-
provements," even if this is an Inaccuracy. It
will not afford ground for tbtt grant of a new
trial, especially where in another portion of
the charge the court, referring to the same
subject, used the very langu^e ot the atatute.
[Ed. Note.^F« other casesL sso GUfts, Cent.
Dfc 1 102; D«a Dig. f 61.*]
& Girts (I 49*)— Gifts Iimn Vivos— Suffi-
ciency OP Possession.
Where it ia claimed by the allied donee
under tiie provisions of section 41ol ot th«
Civil Code that possessifm lias lie^ had her
for the statutory period, this allegatiou is sop-
ported by proof of possession by the donee
for a part of that period and by her tenapts for
the remainder of the period, evra though one
of the tenants was the father of the donea^
where it appears that the father actually paid
reata to the donee during the period of his
occupancy and recognised the donee as hia
landlord.
[Ed. Note^For other eases, see Gifts, Cent.
Dig. IS 95-100; Dee. Dig. t 49.*)
6. Gifts (i 48*>— Appiai. and ICbbob (H 208,
231*)— UBjBCTion Below— NacBssiTT—Sur-
FICXKNCT — Gina INTBB VlTOH — "IHOOHPB-
TBNT EVIDEHOB."
Testimony to the effect that the defendant
the alleged donor of certain landii, bad said, in
conversation with the witness a nhort time be-
fore buying the land in controversy, that he
had the money and wanted to buy a home for
both bis children (the alleged donee being one
of the children), and that he had asbed tiie ad-
vice of tbe witness in regard to this matter,
and that she bad advised him tit buy it and
give it to the child, and that he did buy it and
^ve it to the alleged donee, is not objection-
able on the ground that It Is Irrelftvant
(a) An objection to It on tbe ground that It
was incompetent is not sufficienuy apecific.
(b) The witness being tbe wife nf tbe alleged
donor, an objection to tbe testimony on the
ground that it was In tbe nature of confidential
communications between husband tind wife, and
therefore to be excluded under tlie provisions
of sectiop 5786 of the Civil Code, Is urged en-
tirely too late when urged for the first time in
the brief of counsel for plaintiff in error (cit-
ing 4 Words and Phrases, 3510).
[Ed. Note.— For other cases, see Gifts, Cent
Dfg. n 87-84; Dec Dig. i 48;* Appeal and
Error, Cent Dig. H 1278, iSBS-i^ 129%
1352: Dee. Dig. H 206^ 231.-* Trial, Cent IHg.
& 194.1
7. Vebdict Subtaiitbd.
There was sufficient evidence to support
the verdict
Error from Superior Court, Bntts County;
R. T. Sanl^ Jndgfc
Action by B^le Hoard against J. W. Hollo-
way and another. Judgment tar plaintiff,
and defendants bring error. AflSrmed.
•For other ouae m* same tepte and seottoa NVHBBR In Dee. Dig. a Am. Dig. ^f^;^^§*^^^f^f^f^
CM.)
020
< ttn. BeUo Erard- broD^t^ b«r -artfim
sgtUnst J. W. HoUoway and Bfl . Oole to
coret possession of certain lands described t&
ttie petldon and for spedflc performanoe. It
Is aHeged tn the petitton tbat tbe laodfl-dftt
icrtbed originally belotged to HoUowity,' who
iB the father of the plaintUT, that plalntlfE
relied for her rl^t of recoverj bpon eev^
years' paeseeslon without the paymeot of
rents, and without a claim of dominion by
the father or any disclaimer of title on her
part, and also npon a parol gift by the father,
and Taluable and snbstantial Improvements
placed npon the land by the donee and her
husband. The evidence waa conflicting upon
the material issues. It app^red from the
erldence for the plaintitT that the donee was
In possession of the land for about five years,
when her father and Cole, the other defend-
ant, went into peisseBflb)n of the land; .that
they were there as the tenants of the plain-
tiff ; tliat the father paid rent for two years,
only refusing to pay rent for the years 1900
and ISIO; that the plaintiff's possession of
the land began in 1900. The jury returned a
verdict In favor of the plaintiff. The defend-
ants made a motion for a new trial on vari-
ous grounds, and ap<» Its being oTermled
they excepted.
H. M. Fletchw, of Jackson, and O. M.
Duke, of FloVina, for plaintlfb in error. 0.
h. Redman and J. T. Moore, both ot Jack-
eon, for defendant in oror.
BECK, J. (after stating the facts u above).
El] Bxo^rtion is tak» to the fbAowIng charge
of Uke court: "If a child hold exelnrive poB>
session of land originally bel(mglng to the
fiither, fhr seven years, without the payment
of rent, I said, the law presumes that to be
a gift, and the child baa the right under
thoae clrcnmstances to ffle her suit to compel
spedflc performance of the-volantary agree-
ment." This dtiarge, standli^ alone, might
be objectionable, as being an InetHUplete state-
ment of the provisions of section 4151 of the
Code, which reads as follows: *7he exclusive
posseaslon by a child of lands belonging orig-
inally to the father, wtthout payment of rent,
for the space of seven years, shall create con<
dnsive presomptlOD of a gift, and convey title
to the dilld, unless there is evidence of a
loan, or of a claim of dominion by the father
acknowledged by the child, or of a disclaimer
of title on the part of the child." For in In-
structing the Jury 111 the language of the flrst
part of the above quoted section as to the
effect of exclusive possession by a child of
land originally belonging to the father, wlth-
fnit payment of rent, for the statutory pe-
riod, which makes the mere possession for
the stated period create the presumption of
a gift, the court should not omit the latter
part of the section as to the effect of evi-
dence of a loan, or of a claim of dominion by
the father acknowledged by the child, or of a
disclaimer of title on the part of tiw child.
78S.B^-«9
But an exaUlnattcm bf Hie charge 'U fids
case sho^rs that, while the court did :cbargc»
the rule as stated U the motion, the court
had, immediately before giving the <9iarge
complained of, stated fully the providons 6t
the section of the Code above quoted, and it
id only by separating that portion of the
charge set forth In the ground of the motion
referred to from the entire charge that It a^*
I>arently excludes the defenses set up. The
complete charge of the court npon the par-
ticular subject dealt with In that part of the
charge excepted to is as follows: "Now,
gentlemen, the law I have read means this:
That if the plaintiff In this case (Mrs. Hoard)
went into possession of this land, and she
was the danghtw of Uie defendant (Mr. Hol-
loway), if she had exduslve possession of the
laud without the payment of rent for the
space of seven years, the law presumes that
the fother gave the land to the child, and
that will be sufficient to authorize the Jury
to say that there was a gift, that it was the
intention of the father to give the land to
the child, and conveys the title to the child,
unless there la evidence of a loan of the land
to the child— that Is, that the father let the
child have tt aa a loan, that It was not his
Intwtlon to make a gift of It to her-^r un-
less it appears that the father still held do-
minion arer ttw land, which was acknowle^-
ed by the dilld, or unleas dnrlng that time
there was a disclaimer of the title to the
land on the part la the dilld. If a diild
hold exclusive possessicm of land, originally
belonging to the fatbor, for seven years with-
out the payment of rents, I said, the law pre-
Bumw ttiat to be a gift, aiid the cbOd has the
right nndv those drcumttances to file ber
suit to compel spedflc performance of the
Tolmtary agreement** The'cha^e, then, up-
on the subject of ssesnmptlon of a gift aris-
ing from seven years' possesaAcm, seems to
be unexceptionable.
[2] 2. The following clurge <tf the court
la also complained of: "If possescdon was glr-
en under the agreun«Dt, and the donee went
forward and made substantial Improvements
on the place in fiiitii of that gift, and the
child held exclusive possession of ttie land
origfnally belonging to the father, for the
space of seven years, the presumption of law
is that lb is a gift to the child, and conveys
the title to the child, unless there Is evi-
dence of a loan, or a claim of dominion by
the father acknowledged by the child, or of
a disclaimer of title on the part of the diild,
from the evidence in this case;" This excerpt
immediately follows that complained of In
the ground of the motion considered in the
forcing division of this opinion, and is to be
considered In connectitm with that portion of
the Instructions. While the partial blending
of sections 4634 and 4161 of the Code might
be misleading, and tor that reason the pro-
visions ot the two sections should be kept
,e|>ante and diatmct, '^^^.^s&^i^C
930
78 SOUTHBASTBBM BEPOBTBB
(Ga.
the idalittlff in error bere could have been in-
jured by the ap^rent confusion of the two
secttone, becanae the only effect of the bl«id-
Ing of the two aectlons aa It waa done In this
charge was to place a heaTler burden upon
the plaintiff than the law Imposes; for while
the plaintiff might bare recovezed In this
case on the ground that there was a gift of
the premises in controTersy and valuable Im-
I»rovement8 made on the land on the faith
of that gift, or because of the presumption
of a gift created by possestdon of the land
for seven years withnnt payment of rent, this
IMtrt of the court's instructions might have
been understood by the Jury to require that
the burden was upon the plaintiff to show
both that substantial improvemoits on the
land had been made on the faith of the gift
and also that the plaintiff had held exclusive
possi^on of the lands for the space of seven
years.
[8] 3. Before the completion of the period
of seven years* possession by the plaintiff,
the plaintiff's husband, with the knowledge
and consent of the plaintiff, or the plaintiff
herself, according to the testimony of another
witness, and at the Instance of her husband,
treated with the defendant for the purchase
of one acre of the 100 acr^ of land Involved
In this controversy, and It is claimed that
this constituted such an acknowledgment of
dominion In the defendant as to conclusively
prevent the creation of the presumption of
a gift by continuous possession (or seven
years without payment of rent We do not
think 80. We think it waa a drcumatance
to be considered by the Jury with the other
evidence in the case submitted upon the Issne
as to whether or not there waa a gift or a
prttumption of a gift It might have beem
that, altlura^ tiiere was no controversy as
to there hei^ a parol ^ft and contbtned pos-
sesalan for a period less Oian tiiat nec^sary
to create the conclusive presumption in favor
of die donee, the wrlttoi title being in the
dtfendant; the husband was dealrons of bar-
ing the perfect title to the one acre of land
which he sought to pnrchaae^ with written
evidence of hia title, and Uie wife, although
claiming' that there bad been a g^ to her,
was wllliiu; that the husband should have
that particular portl<m of the tract of land
and evidence of his title In writing, and for
this reason consented that her husband
should treat with her father with a view to
acquiring title directly from the father to
the one acre of land. Thia conduct upon the
part of the wife was not necessarily Incon-
sistent as a matter of law with her assertion
of such a gift to her as would be conclusive-
ly presumed after a possession of seven years
without the payment of rent
[4] 4. Complaint Is made that In instruct-
ing the Jury upon the subject of voluntary
promises and agreements, and the effect of
going into possession of the lands thereun-
der and maUnc the Improvonents on the
faith thereof, Qie court used the exprMrtos
*tab8tantlal Improvemmta," Instead of "nln-
able Improvements." While It would have
been better to use the exact language «t the
statate, Including the term "valuable,** In-
stead of "substantial," we do not think tltal
the variance betwerai the language of the
diarge and the language of the statute It-
self is a very material one, and. If it amounts
to an inaccuracy, that inaccuracy will not be
-cause for a new trial, especially where is
another portion of the charge the court, re-
ferring to the same subject, Instructed tbe
Jury that the improvements most be valuable.
[i] 6. Where it is chilmed by the alleged
donee, under the provisions of section 4151
of the Code, that possession has been bad by
her for the statutory period, this allegation
is supported by proof of possession by the
donee for a part of that period and 1^ her
tenants for the remainder of the period, even
though one of the tenanta was the father of
the donee, where it appears that the father
actually paid rents to the donee during the
period of his occupancy and recognised tlw
donee as his landlord.
[I] 6. The wife of HoUoway, the alleged
donor, during the trial testified as follows:
"I know of the c^ft that Mr. HoUoway made
of the 100 acres of land described In the peti-
tion in this case. He told me that he bad
the money and wanted to buy a home for
both his children. He wanted to give both
of them a home. He bought 100 acres of
land and gave it to tUs child, Sbs. Hoard,
the land in this petition, and she moved (m
it He gave it to her in 1900, I thli^ When
Mr. HoUoway gave Miss Belle the land, he
said be had some mon^ he wanted to in*
vest in land fbr onr children. He asked me
my advice abont giving this i^ece of land to
Belle, and of course I said It was best to set-
tle our children close to ns. He bought the
100 acres of land in c<mtniversy and gave it
to her. I was at home the lime he told me
this. Miss Belle waa not present When this
conversation took place that I say he gKTB
her the land. Miss Belle was not presoit It
was In 1900, and before he bought this land.
He asked my advice when he bought it I
said, 'Buy it, and give it to this child;' that
I wanted the children settled close around
us. He bought it and gave it to her, I think
he gave It to her in 1001. I was not present
when HoUoway had a conversation with
Miss Belle in regard to the land he gave her.
I didn't go over there."
The defendant made a motion to rule out
that evidence, on the ground that it was in-
competent and irrelevant ^e court over-
ruled the motion, and this was excepted to.
Clearly the evidence was not Irrelevant The
objection to it on the ground that It was
Incompetent Is not sufficiently spedflc; It is
entirely too vague to avail on appeal. See
Words and Phrases JadlciaUjti^Deflned,^ vol.
4, p. 8610. Digfeed by Google
ChL) CENTRAL OF aEOROIABT.OO.T.MAOOKHY. AUGHT 00. W.
And an objection to tbe testimony on tbe
groniKl that It was In the nature of confiden-
tial communications between husband and
wifs, and therefore to be ezcltided under
the proTlsiona of section 5^6 of the Oode, la
urged entirely too late^ when urged for the
first time in the brief of counsel for plaintiff
In error.
[7] 7. There was snffldent evidence to sap-
port the verdict
Judgment affirmed. All the Juatlcea con-
cur.
Plaintiff seddiv to reoordr from the de-
fendant the amount of a Judgment rendered
afEOlnst the plaintiff, and whidi the lattw
was compelled to pay, in fliTor of tiie widow
of one A O. Bflnor, in a suit broni^t by her
tta the honddde ct hw said husband; it be-
ing now alleged that the proximate canoe of
Minor's death was the negligence of the de-
fendant In the preaeut case. In the original
salt it was alleged that Minor, being In tbe
employment of the Central of Oeo^ia Ball-
way Company, was required to assist In coal-
ing an engine of that company at a coal
chnte in its yards; that he was directed to
go upon the trader of the engine and pall
down an apron, In order that the coal from
the Idn might be conveyed into the tendcsr ;
that the apnm, wbicn was of sheet metal,
was held In position by a steel cabl^ need
in raising and lowering the apron; that, when
Minor took hold of the ajmrn to Iowa It, the
cable attached thereto came In contact wltb
an electric light wire, urtiltih wire was listen-
ed to the coal chnte and from there carried
to a pole some distance off, npon which an
arc Ugbt was situated ; that when the cable
came in contact with this wire, which was
hearlly charged wltb electricity, the electric
current passed Into and through Minor's body,
so shocUng blm that he then and there died.
IQ her petition plalntifl alleged that the
Central of Georgia Railway Company was
guilty of negligeDce In the following particu-
lars : That the wire had been maintained in
that place where It was likely to come in con-
tact with the cable, and where it was likely
to BO charge the same with electricity, for a
great length of time, and that It was under
the entire control and management of the
said Central of Georgia Railway Company;
that the proximity of said wire to said cable,
and the danger of Its coming In contact with
the same, and the current of electricity pass-
ing from said wire into said cable and being
conveyed to said apron, was well known to
the said Central of Georgia Railway Compa-
ny, or could easily have been ascertained
by the exercise of ordinary care and diligence
on its part; that the danger to employes of
said company, in the use of said appliance,
could easily hare been discovered and guard-
ed against, had it used ordinary care and
diligence ; that the wire was originally plac>
ed in said position, unnecessarily and care-
lessly ; that it could have been placed in an-
other position, where it would have served
the purpose and not have come In contact
with said appliance; that the danger to the
lives of defendant's employes was Imminent
at all times, and this fact was well known to
defendant, or by the exercise of ordinary
care conld have been known. Before that
suit was tried the defendant, Central of
Georgia Railway Company, vouched the Ma-
con Railway 6e light Company into court to
defend the suit; the latter company having
*For othor cum im Min« toplo and mcUoh NUUBBH^^^pee* I>^S> ^ Kor-Hik SulM ft Rep'r IndexM
Digitized by Google
(140 Qa. 309}
CENTRAL OF GEORGIA RT. CO. V. MA-
CON BY. & UGHT CO.
(Si^reme Court of Georgia. July 18, 1918.)
(SyJlabus bv th« Court.)
1. Indemnity {% 13*)— Implied CoimucTS—
PEBSON PBIMASIZ.T LlABZJG.
The plaiQtiff*B petition showed that It had
been required under a judgment in a prior euit
to pay a certaio sum as damages for the homi-
cide of the plaintiffs husband, and that in that
suit it bad by notice duly served vouched in the
present defendant, and that the injuries which
resulted in the homicide were caused by wrong-
ful acts and neglisence upon tbe part of the
defendant, in wolch wrongful acts and negli-
gence the plaintiff had in no way participated,
and that it was not guUty of the same or like
neKligence as that of the defendant wbidi re-
aolted in tbe injury.
JffeM, that a right of action In Uie tHatntiir
was stated in the petition, and It was error for
the court to aastain a general demurrer thereto.
[Ed. Note.— For other cases, see Indemnity,
Cent. Dig. ii 29-35; Dec. Dig. | 13.*J
2. junouENT (1 570*) —Res Judicata— Ar-
nsHANCB or NoNsmT.
The fact that the pliUnOff bad formerly
brought suit for the same cause of action and
had Been nonsuited, which judgment of nonsuit
was affirmed upon appeal to the Court of Ap-
peals of this state, does not prevent the bring-
ing of the snli amin within six months from
the date of the affirmance of the judgment of
nonsuit. Civ. Code 1910, } 4381.
[Ed. Note.— For other cases, see Judgment,
Cent. Dig. » 1028-1034. 1036-1040; 1042-
1046, 1165; Dec Dig. | 670.*]
(AmiiUma,l B^Uabnt by XditorUt Staff.)
8. JuDOuiHT (I 707*)— Bxa Judxoata^Neoij-
OENCE.
That the petition in the action in which
judgment was obtained against plaintiff for the
death of an employ^ was based upon alleged
positive acts of negligence as well as failure
to inspect did not preclude plaintiff In its sub-
sequent action against another company, which
was guilty of the sole positive acts of negli-
gence causing the death, from showing that Its
uability in the prior suit was based entirely
upon Its failure to inspect, and that In fact it
was guilty of no positive acts of negligence.
[Ed. Note.— For other cases, see Judgment,
Gent Dig. { 1230; Dec Dig. } 70T.«]
Error from Superior Court, Bibb County;
W. H. Felton, Judg&
Action by the Central of Georgia Railway
Company against the Macon Railway & Ught
Company. Judgment for deffflidant, and
plaintiff brings error. Reversed.
932
,78 SOUTHEASTEBM RBPORTBB
«ncted tbe pole and the arc Ught and «traiig
the wire, aad owning the same. The Maoon
Railway & Light Oompany did not aptiear
and make defense. Upon the trial a verdict
VBS rendered against the Central of Georgia
Railway Company, and Judgment wtered
thereon, which that company had to pay.
The Oentral of Oeorgla Railway Company
thea filed snlt in the dty court of Macon
against the Macon Railway ft Light Compa-
ny to lecorer tlie amount It bad to pay In the
abovfr«tated case, which suit opon the trial
was nonsoited. Upon an>eal to the Court of
Appeals, the Judgment granting a nonsuit
was affirmed. Within six months after the
aflbmance of the Judgment the present suit
was brought by the same plaintiff against
the Macon Railway ft Light Company, being
filed in the superior court of Bibb county.
The auctions in this latter suit are suffi-
ciently set forth in the opinion, tlpon gen-
eral demurrer to the petition, the court be-
low dismissed the same, and plaintiff ex-
cepted.
R. C. Jordan, of Macon, for plalntlfF In er-
ror. Guerry, Hall & Robwts, of Macmi, for
defendant in error.
BECK, J. (after stating the facts as above).
[1] While It may be true that as a general
role one of two or more Joint tort-feasors has
no right of action over against those con-
nected with him in the tort for either con-
tribution or Indemnity, where he alone has
been compelled to satisfy the damages re-
sulting from the tort, yet in some cases one
who is liable as a tort-feasor, because he
has failed to ezerdae due diligence to dis-
cover a defect or danger in machinery, ap-
pliances, or place where the Injured person
Is required to work, and has been compelled
to pay damages for injuries growing out of
the tort, may 'have a right to recover over
against another whose negligence produced
or brought about the defect or dangnons
condition in the machinery, appliances, or
place, which defect was the proximate cause
of the Injury ; and the present case seems to
us to belong to the latter class. The plain tifP
charges that the defendant was negligent in
respect to certain acts upon the part of the
latter which was the proximate cause of the
death of Minor, for which Minor's widow re-
covered damages in the previous suit
It is chained in the petition that the plain-
tiff employed the defendant to erect and
maintain an are light near petitioner's coal
Chute tor the purpose of tnmlshing light to
its employes engaged In perfbrndng their
duties about the coal chuta The plaintiff
pointed out to the defendant the place where
it desired the light to be erected, but left
it Mth the defendant as to how Oie wires
should be strung in order to fumldi the arc
light with electricity; that the arc light and
the wires connected therewith were the sole
propwty of the defendant Petitioner was
entlrdy inexperienced' as to electricity and
In the matter of electrical appliances, and
had to rdy upon the skill and knowledge of
the defendant to so construct and insulate
its wires that there would be no danger to
the property of the petitioner or Its employes
while engaged about thdr wo^ It is nl^
leged In the petition that the defendant
strung its wires ccmnected with the lltfit
along the side of the coal ehnte in such ■
way that the steel cable used in operating
the "apron" which is used fbr coaling tbe
engine woold come la contact wltb tbm
electric wire while lowering and raialnc ttie
apron, and that the defendant oompany was
negligent in not property Insulating the wire
and in not keeping It Insulated, In fiiiUng to
guard and protect the wire, and In not so
placing the wire that it wonld hare beea tm-
possible for the cable operathag the "apron"
to come in contact wiUi It; that it was
negligent in falling to malce tta neoenary
Inspection, and that the d^endant n^ligent-
ly and improperly maintained and operated
its dectrlc ctrcnit, known as the are drcai^
to which BBld wire is connected and which
it formed a part thereof ; that it was malor
talned with a "ground" and allowed the
circuit to become "grounded"; tbat the
grounding of the circuit was not necessary
for the transmission and distribution of
electricity for lighting purposes, and that If
the circuit had not been grounded in Its
construction it would have been impossible
for any person coming In contact with tbe
wires thereof to have been injured by the
electric current conveyed by It. And it is
further charged that negligence upon the
part of the defendant In the respects herein-
above set forth was the proximate cause of
the homicide of B. O. Minor, for whose death
the plaintiff had been compelled In a former
suit to pay a large amount as damages.
[3] From this enumeration of tbe acts of
negligence upon the i>art of the defendant it
is clearly made to appear that the defendant
maintained its wires and the circuit with
which they were connected In a dangerous
condition, and that this construction of the
circuit and maintenance of It In a dangerous
condition was the principal and moving
cause resultliv In the Injury sustained to
the employe referred to above. The Improper
construction and pla<:lng of the wires, or
placing of them as they were without proper
Insulation, the grounding of the wires, when
considered in connection with the lAct that
the wires were placed In such dose proximity
to the "apron" that It would come in contact
with It while the latter was being operatedt
amounted to poBltlTe acts of misfeasance
relatively to any one who should receive in-
Jury In consequence of flie ne^lgott coo-
stmctlon of the circuit and Its wires and the
way In which It was maintained. Now, if
the railroad company was guilty of the same
wrong, or Bke wrong, If It paifioipated in the
Digitized by VjOOglC
Gtk.) CKNTBAIi OF aJEOnGlA BT^ 00. T. MACON RT. A LIGHT CO. 983
jiosltlve act of confltructlixK and malntB^inlng
tbe dangerous circuit and tbe wires constitut-
ing the same, th^ It would have no rlgbt of
Indemnity from the defendant, after IiaTlng
been required to pay damages; but under
the allegations of the i>etitlon — and these al-
legations are to be taken as true as against
the demurrer — tbe plaintiff was not guilt?
of any of these positive acts of wrongdoing
and negligence. And while it had been
successfully shown in the prior suit against
the plaintiff that it was guilty of such negU-
gence as rendered It liable, that liability may
have grown out of negligence which may
be described as of a negative <^racter —
negligence consisting in a failure to make
Inspection of the electric circuit and the
wires connected therewith. Such negligence
as this was sufficient to render It liable in
damages to its injured employ^ and the
mere, fact that tbe widow of an Injured em-
ployd recovered a verdict for his homicide
against this plaintiff in a former suit wber^
negligence of both kinds was chained — that
Is, negUgenoe which we have referred to as
poaittve acts of negligence, as well as negli*
fffiice consisting In omission to Inspect —
should not preclude this plaintiff from now
showing that Its UabiUtr In the other anit
was baaed entirtiy npcm tta failnfe to bupect,
and that no poaltiTe acts canaliig the Injnry
were proven agalnBt it; that it wae not as
ft matlar of fact a porttdpaHt In the posltiTe
acts of tbe original wnmgdoer, tbe Macon
Hallway A tilght Oompanyt accorOInc to tbe
aUegations of tUi pietltloii.
[2] While It Is tnie that bi the caee of
Cwtral of Oeoi^a Ballway Co. t. Maicon By.
& ueht Go« 9 oa. App. 928,na. VL inm,
the Judge dellTerlng the opinion In that case
usee language showing that the court was of
tbe opinion that tbe n^llgence of both the
plalntio: and the defendant was of the same
kind, and that they were mere Joint tort-
feasors, so that tliere could be no right to
Indemnity to tbe one who waa first held
liable, that is not an adjudication of the
issues in this rase. The only Issue in that
case to be decided was whether a nonsuit had
been properly granted. The conclusions
which we have announced above, as to the
liability over by one guilty of posiUve acts
which resulted in Injury, when another has
been held liable in the first Instance because
of a failure to exercise due diligence In the
matter of making Inspection, find support In
decisions by other courts.
Attention Is called to the case of Union
Stockyards Co, v. C, B. & Q. R. R. Co., 196
TT. S. 217, 25 Sup. Ot. 226, 49 L. Ed. 453, 2
Ann. Caa. 525. In that case the Qrcait Court
of Appeals certified the following question:
"Is a railroad company which delivers a car
in bad order to a terminal company, that is
under contract to deliver It to its ultimate
destination on Ita premises for a fixed com-
pensation to be paid to It by tbe railroad
company, liaUe to the terminal pompany for
the damages whl<^ the latter has been com-
pelled to pay to one of Its employes on ac-
count of Injnrles he sustained, while In tbe
customary discliarge of his dut? of operating
tJt}e car, by reason of the defect in it, in a
case In which the defect is discoverable ai>'
on reasonable Inspection?" Accompanying
the question, and for the purpose of Illustrat-
ing it, waa a statement of tbe facts aa fol-
lows: "The £)lalntlff. the Stockyards Com-
pany, is a corporation wlii<A owns stockyarda
at South Omaha, Neb., railroad tracks a>
purtenant thereto, and motive power to
operate cars for tbe purpose of switching
them to their ultimate destination In Ito
yards from a transfer track which connecte
its track with the railways of the defendant,
the Burlington Company. The Burlington
Company Is a railroad corporation engaged
In the buslneea of a common carrier of
freight and passengers. The defendant
places the cars destined tor points In the
plalntUTs yards on the transfer track ad*
jacent to the premises of tbe plalntUt, and
the latter hauls them to tbeir potaito ot
destination In Ita yards for a fixed compensa-
tion, which is paid to it by the defendant
The plaintiff receives no port of the duuve
to the slUpper for the transportation of the
cars; bnt tbe defendant «oiitcactB with the
shipper to d611rer tbe ears to their phices
ot ultimate destbuitbni In the plalntUTs
yards and reoelTas from tbe sUppur the com-
pensation theretor. Hie defendant delivered
to the plalntlit, upon (he tnuutter trade a
rafitlaerator car ot the Hammond PaoUng
Company, need by the defendant to transport
the meats of that company, to be delivered to
that company by tbe plaintiff In its ato<^-
yardiL Tbla car was in bad otder. In that the
nnt above the wheA upon the brake w» not
fastened to the staff, although it covered the
top of tbe staff and rested on the wheel as
though it was fimtened thereto, and this
defect was discoverable upon reasonable In-
spection. The plaintiff understood to deliver
the oar to the Hammond Company, and sent
Edward Goodwin, one of ite servants, upon
It for that purpose, who, by reason of this
defect, was thrown from the car and Injured
while he was in the discharge of his duty.
He sued the plaintiff and recovered a Judg-
ment In one of the district courts of Nebraska
for the damages which he sustelned by his
fall, on the ground that It was caused by the
negligence of the Stockyards Company In
the discharge of its duty of inspection to its
employe. This judgment was subsequently
affirmed by the Supreme CJourt of Nebraska
{Union Stockyards Co. v. Goodwin, 57 Neb.
138 [77 N. W. 357]), and was paid by the
plaintiff."
The Supreme Court of the United Stetea,
conceding for the sake of argnm^t that the
lojored employe coald have sued either eom-
P^ny or both of them, said : "llke^case th^
Digitized by LjOOgTC
934
78 SOUTHEASTBEN BEPOBTKB
(OS.
stands In this wise: Tbe railroad company
and tbe terminal company bave been guilty
of 8 like neglect of duty in falling to proper-
ly inspect tbe car before patting It in use
by those who might be injured thereby. We
do not perceive that, because tbe duty of
inspection was first required from tbe rail-
road company, tbe case Is thereby brought
witliin tbe class wtdch holds the one primari-
ly responsible, as tbe real cause of the in-
Jury, liable to another less culpable, who may
have been held to respond for damages for
the injury inflicted. It is not like tbe case
of the one who creates a nuisance in the pub-
lic streets, or who furnishes a defective dock,
or the case of tbe gas company, where it cre-
ated the condition of unsafety by its own
wrongful act, or tbe case of the defective
boiler, which blew out because it would not
stand the pressure warranted by the manu-
factorer. In all these cases the wrongful act
of the one held Anally liable created the
unsafe or dangerous condition from which
the Injury resulted. The prindpal and mov-
ing cause, resulting in the Injury sustained,
was tbe act of the first wrongdoer, and the
other has been held liable to third persona
for falling to discover or correct the defect
caused by tbe positive act of tbe other. In
the present case the negligence of the parties
has been of the same character. Both the
railroad company and the terminal company
failed by proper 'inspection to discover the
defective brake. The terminal company, be-
cause of Its fault, has been held liable to
one sustaining an injury thereby. We do
not think tbe case comes within that excep-
tional Class whidi permitB one wrongdoer
who bad been mulcted in damages to recova
Indemnity or contribution from another. For
the reason stated, tbe Question propounded
will be answered in tbe negative."
It wtU be observed that in tbe opinion in
tbe case from which the for^tdng quotation
is taken tbe Snpreme Oonrt of the United
States lecognlzed the doctrine that there
will be a final and ultimate liability and lia-
bility over in all cases where tbe wrongful
act of tbe one held finally liable was of a
positive and creattve nature, bringing about
the unsafe or dangerous cmdltlon from which
the injury resulted ; and that court makes a
distinction betwem negligence consisting in
omission or failure to make pn^r inspec*
tlon, and negligence in tbe performance of
posittTe or creative acts as where one cre-
ates or maintains the unaife or dangerous
condition causing the Injury. - It did hold in
the case which it was deall^ with tbat there
was no liability over, but based tbe holding
oa tbe ground "tbat tbe negligence of tbe
parties" was "of the same character. Both
the railroad company and tbe terminal com-
pany failed by proper Inspection to discover
the defective brake." And if, upon a trial
of this case, it should appear that tbe negli-
gence which resulted in the injury for which
the plaintiff was held liable in the first in-
stance was the result, not of posltiTe and
creative acts upon the part of the defendant
In the present case, but grew out of a failure
to inspect merely, and the duty of inspect-
ing was one resting upon this plalntlCF and
this defendant, then, both having been guilty
of the same or like negligence, there would
be no liability over, so as to make tbe com-
pany now sued indemnify ttie aae hdd lia-
ble in the first instance.
The doctrine of liability over on the part
of one who creates or maintains an unsafe
and dangerous condition to another one who
has been held liable primarily because neg;-
ligently allowing the dangerous conditions
to remain was recognized by this court in
tbe case of Western & Atlantic B. Go. v. dty
of Atlanta, 74 Ga. 774. From tbe report of
that case it appears that one Montgomery
had brought suit against the city of Atlanta
and recovered a Judgment for a certain
amount, which Judgment tbe dty bad had
to pay. Montgomery had been injured while
passing along one of tbe streets of tbe dty
and down certain steps, which steps tbe rail-
road bad negligently and wrongfully allowed
to be out of repair and in a defective and
dangerous condition, and It was In conse-
quence of this negligence upon the part (tf
the railroad company — the steps being at a
crossing of one of the streets ovor the trute
of tbe railroad — that Montgomery was injur-
ed and recovered the verdict and Judgment
already referred to. The city of Atlanta
vouched In the Western & Atlantic Ballroad
Company in tbe first suit, and, after baring
paid tbe Judgment recovered by Montgomery,
sued the railroad, and in tbis Ust suit recov-
ered ot tbe defendant the amount which they
had been held to be primarily liable for. The
railroad company brought the case to this
court for review, and in a decision affirming
the Judgment of the court below, and In tbe
course of tbe opinion, it was said: "first
Tbat a municipal corporation, having the
care and control of the streets, is bound to
see tbat they are kept safe for tbe passage
of persons and property. If tbis duty be
neglected, and one should be injured on ac-
count of such neglect, the corporation will
be liable for damages. • • • Second. If
the injury should occur In a street and on
account of defects in the same, and if tbe
street, at the point where the injury occur-
red, was used as a right of way of a rail*
road company, in such case the municipal
corporation would have a remedy over
against the railroad company for the amount
which it bad been compelled to pay, provldp
ed it be shown tbat the Injury resulted from
the negligent conduct of the agents of the
railroad company. In such case, the rail-
road company would be allowed to show tbat
it was under no obligation to keep the street
in safe condition where tbe injury occurred,
or tbat it was not the faulty iiie cattnad
company that thgiglieetdenVVatlpti^^
JDIPIRE UPE nra. 00. 1CA9QZ7
986
Qiat both the agenta of the railroad companj
and maDicUMil corporatloii were at fbult"
See, alBo, In thla connection, the caaes of
Washington Gaslight Go. r. Dlatriet of Co-
lomtda, m n. a 816; 16 Sop. Gt 564, 40
Im Ed. 71% Oceanic Steam Mav. Go. Gom-
panla TMnsatlantle EsiHuuda, 184 N. T. 461,
31 N. EL 987, 80 Am. St. Bepi 686, Gray t.
Boston OaaUght Co., U4 Mass. 149, 19 Am.
Rep. 824, and Boston Woven Hose Co. t.
Kendall, 178 Mass. 232, BO N. E. 6S7, 61 L.
R. A 781, 86 Am. St Rep. 478, which are
referred to In the case of Union Stockyards
Co. T. G., B. & Q. B. R. Co., supra.
We do not think that the plalntUfa case
should have been dismissed npon gmeral de-
murrer, but the case should be tried, and
the plaintiff be permitted to show. If it can.
by competent evidence, that tbe proximate
cause of the injury to the ^alntUTs employd
for which It has already been mulcted In
damages was the result of poslttve wrongful
acts and negligence upon the part of the de-
fendant In the Instant case, and that the
[dalutlff had not participated in these wrong-
ful acts and was not a mere l<dnt tort-feas-
or, In the sense that It had been guilty of
the same or Uke n^llgence with the defend-
ant which resulted in causing the fbtal In-
juries.
Judgment reversed. All the Justices con-
cur.
a« o«. 141)
EMPIRE LITE INS. CO. t. MASON et al.
(Supreme Oonrt of Georgia. June 14, 1913.)
(BylUbif hy th9 Court.)
1. Deuubbee to Complaint— Insuffioiewot.
The demarrer was without merit, and was
properly overruled.
2. EXECUTOBS AND AOUINISTBATOBB ({ 160*)—
Line iNsuBANCx PoucT— Assiqnmbnt—Ap-
PROTAL.
If an admiDifltratriz BBSigned at private
sale a policy of inanraDce- on the life of her
intestate, this was illegal; and the ordinary
of the county had no authority, either in term
time or vacation, to pass an ex parte order
approving such transfer, and thereby to render
It valid.
[Ed. Note.— For other cases, see Executors
and Administratora, Cent. Dig. | 637; Dec
Dig. S 160.»]
8. EXEOUTOBS AND ADMXNISTBATOBS 269.
375*) _ Cuncs — GouFBOiasi — iLLUoafc
Teanbfbe— Vac ATioN .
If a decedent left a policy of inaorance on
Us life, and his administratrix obtained an or-
der from the ordinary to allow her to "eom-
promlae" such policy as a disputed and doubt-
ful claim (under GIv. Code 1910, H 40M^
4006), it would sot be necessary to institute a
proceeding to set aside such order, so as to
attack a private transfer, which had previously
been fraudolently obtained from the adminis-
tratrix by the agent of the Insurance company,
in bis own name and for his ovra benefit.
(a) Such an order was not an adjudication of
B court of competent jurisdiction as to the va-
Udity of the private transfer which the agent
of the company bad previously procured by
*rDr other osms sm isnw topic and aectloa NUMBBi^^
' fraud to be made to Um bidMdnally ti7 tta
administratrix.
[Ed. Note,— For other cases, see Executors
and Administrators, Cent Dig. H 941. 109^
1629-1638; Dec. rflg. fiS 269r87K«]
4. INSUBANCK (I 694*)— LXR POLXOT — A«^
eiONlCXNT— FBAUD— NOTZOB.
Where the company recognlssd and did not
question the validity of the policy, which was
payable In Installments, and, before making
payments to its agent as traoaferee thereof,
or an assignee under him, knew of tiie necessi-
ty of a valid transfer from the administratrlz
of the deceased, and where it had knowledge of
the private transfer by such administratrix to
the agent of the company as an individual, and
of the ex parte order parporting to permit or
confirm a compromise of a disputed and doubt-
ful claim of the estate, when there was in fact
neither dispute nor doubt on the part of the
company, this was sufficient to put it upon in-
auiry, and to affect it with notice as to the title
laimed by its agent Individually, or one to
whom he assigned the policy, and if neverthe-
less the company continued to pay to such
assignee of its agent the installments doe on
such policy, it did so at Its periL
(a) Moreover, direct notice of the fraud per-
petrated by Its agent on the administratrix
was given to the company when only a few
installments bad been paid.
[Ed. Note.— For other cases, see Insurance,
Cent Dig. ^ 1455-1458, 1483, 1485; Dec Dig.
S 694.*]
6. Attobnbt and Client (1 101*) — Execu-
TOBs AND Administbatobs (| 168*)— Lm
FOLIOT—IIXEQAI, ASSIQNiam^EaiOFPBL—
AtTOBNETS— AUTHOBITT.
The fact that the administratrix put the
datm in the hands of an attorney to prosecuto,
and that, upon suggestion by the attorneys of
the company that he might enjoin farther pay^
ments, he replied that he did not see how he
could prevent payment of the installments by
the company, and that he later retired from
representing the administratrix, without having
brought any suit, whereupon she promptly em-
ployed other counsel, and proceedings were
properly begun, cannot be declared, as matter
of law, to have estopped her from proceeding
to set aside the transfer obtained from her by
fraud and recovering from the company the
amount due on the policy.
(a) An attorney who had a claim placed In
bis hands for the purpose of proceeding to set
aside a transfer of an insurance policy obtain-
ed by fraud of a third party, and to recover
from the company the amount due on the pol-
icy, which was payable in installments, and
who had brought no action, had no implied pow-
er to agree that a certain installment might be
paid by the company to the person who pro-
cured the transfer by fraud, in order not to em-
barrass him.
{Ed. Note.— For other cases, see Attorney
and Client, Cent Dig. |{ 20&-216: Dec Dig. |
101 ;* Executors and Administrators, Cent
Dig. Dig. S§ 644, 646; Dec. Dig. 1 168.*]
6. Insubancx (I 212*)— Lms PozjoT— iLUi-
QAL Assignment— Fbatjd,
Tuder the evidence contained In the rec-
ord, there was nothing In the contenHon that
the plaintiff entered into a scheme to defraud
the company.
[Ed. Note.— For other cases, see Insnrance,
Gent Dig. {§ 481, 482; Dec Dig. S 212.*]
7. Vebdict — Evidence- Motion roa New
Trial— Gboundb fob Retebsal.
The verdict against the company was right
and proper, under the evidence; and none of
the grounds of the motion for a new trial, made
\t, preseat any suffident reason for a re-
vei:^; ,
"^-^TMi. Dig. a Am. Dig. Key-No. Berlw 4 R«p'f iBduwi .
\» Digitized by VjTJOVTt.
'7S SOn^raEASTBBN 'BBPOBTIft
' Error from Snpertop OotiiC, Fulton Goiintr ;
W. D. EUls, Judgt
Action by Abble L. UaspD, as adtalnlstra-
trlx of the estate of A. J. M&^Di deceased,
(igalnBt the Empire Life Insurance Company
and oUiera Jndgmwt for plaintiff, and de-
fendant Insurance Company brings error.
Affirmed.
Abbie L Mason, as administratrix of the
estate of A. J. Mason, filed an eqnltable peti-
tion against the Elmpire Life Insurance Com-
pany, S. K. Jones, and Z. Whltehurst, alleg-
ing, In substance, as follows: On September
6, 1905, the company Issued to Mason an an-
nuity poller for 93,000, payable In sums of
$150 every three months for five years. In
190T they Issued to him another policy. All
pronlnms were paid on both policies, and
they were In force at the time of his death on
August 18, 1907, and were in his possession.
Jones,> the soliciting agent for the company,
who solicited and wrote both of the policies,
knew of their existence and maturity. A
few days after the death of Mason, Jones
called for the alleged purpose of preparing
proofs of death to be sent to the company.
He took the policy first mentioned, saying
that he desired to get certain dates from it,
and then said it was void for nonpayment of
premium. He manifested great friendship
for the family, and obtained one Under to
be appointed as temporary administrator.
The first Installment due on the policy thus
held by Jones was paid to Under, and was
delivered by him to Jones. The plalntlfl
quallfled as administratrix in October, 1907.
Jones, realizing that she would discover that
the policy waa being paid, stated to her that
he could get a thousand dollars out of it for
Jier without cost, and procured from her a
transfer of It Subsequently he informed b&i
that It was Impossible to obtain that amount,
r^iresented that it was doubtful If anything
could be collected on the policy, and urged
hor to accept $500 In cash, which she agreed
to do, relying on his representation. On
December 12, 1907, Jones; without her knovl-
edge^ transferred the policy to Whltehurst,
who collected Installmente falling doe after
ttiat date. On Jannary 4, 1908, Jones again
repeated his statement In regard to the in-
validity'.of the policy and Its doubtful collect-
ibility and procured her to sign a pet^tton to
the ordinary, which he bad caused to be pre-
pared, and which he represented was neces-
sary In order to enable blm to effect a settle*
ment with the company. She did not know
<tf the TalldUgr of the poller, or that pay*
ments were Mng made under It The petl-
tlon to the ordinary recited the doubtful and
contested character of the claim, and prayed
for anthorl^ to compromise and to ''carry
Into effect, with oflSdal a^tfOTal, the terms
of said oomi»omise already agreed upon with
the said Jones." The ordinary thereupon In
term time passed on order authorlalns the
adodnlstratrix to compromise the claim, "and
to carry into effect the negotiations of Be^
tlement and osslgnm^t heretofore made by
her with said Jones, subject to the order
and approval of the court" It was further
ordered that "when said settlement is finally
made, the said administratrix make official
report to this court of her actings and do-
ings." On March 24, 1908, she received by
mall a voucher from the company for $150,
being an installment due on the policy, and
also a rider to be attached to the policy.
She thus learned that Instead of the policy
being void and uncollectible as Jones had
represented, the company was paying it In
accordance with Ita terma Jones endeavored
to get her to return the check which bad
been sent to her. She employed an attorney,
who notified the company of the fraud whl(^
had been perpetrated upon her, and that
further payment should not be made to Jones
or Whltehurst Subsequently the attorney,
who had been employed by her to take ac-
tion, retired from repreeentlng her, and she
at once obtained other counsel, and filed this
petition for the purpose of canceling the
transfers of the policy and recovering the
amount of the poUcy, less the sum whltdk
was paid to her for the transfer. She prayed
a judgment against the company for the in-
stallments which it had already paid out and
for the amount still unpaid. She prayed a
judgment against Jones and Whltehurst for
the amounts received by them, with Interest,
after crediting the amount received by her
for the policy. She also prayed for can-
cellation.
The company admitted the Issuance of the
policy. It stated that It could neither admit
nor deny the allegations In regard to the
transactions between the plaintiff and Jones
for want of sufiiclent Information, but de-
nied any notice or knowledge of fraud per-
petrated on her. It admitted making the
payments on the policy, but stated that they
were made by reason of false representations
on the part of Jones. It alleged that the
payments made were with ample authority
from the plaintiff, and that the company
was protected both by the transfer and pow-
er of attorney signed by the admlnlatratilx,
and also by the order of the ordinary. It
alleged tiiat since the filing of the petition
It had received a letter from Jones, stating
that the policy now Involved had been re-
placed by another policy, but that Jones in-
duced the company to Issue the second policy
as additional Insurance upon the life of the
deceased, and retained policy now In oon-
trovmy* inducing the defendant to believe
that it was In fuU forca It also allesed
that the plaintiff had participated In an e^
fbrt to defraud Ou company, and after no-
tice of the fnud perpetrated on her by
Jones, It any, hod permitted the defendant
to make payments witiioat Intemqilion, and
waa thus estopped. It alleged that by rea-
Bon of the fraudulent conduct of Jones, It
had been induced to pay out^^lJBa andlt
prayed that JudgmfiititiM t:«aidiM) W&
987
Umi against Jonea and Wtaltebnrst fur tbat
amount, wltb interest.,
Whltehurst claimed to have taken tlie
transfer from Jones as a eecuritr for an In-
debtedness of tbe latter, that he acted in
good faith, and that he was protected both j
by the transfer and by the order of the conrt '
of ordinary. No answer of Jones appears in '
the record. {
The jury found in faror of the plaintlfF:
against the company, Jones, and Whltehnrat i
for $1,800 (the amount paid by the company ;
and received by the two latter defendants), |
with interest, less $500 (the amount paid by
Jones to the plaintiff for the transfer of the
policy) with Interest They also found In
favor of the plamtiff against the company
for the balance of the policy remaining un- {
paid, In accordance with the terms thereof.
They further found in favor of the company :
against Jones and Whltehurst for $1,U50, ',
with interest, being the total amount of In- ^
stallments which bad been paid out by the
company. I
The company moved for a new trial, wbldi
was overruled, and It excepted. It also as- ^
signed error on the orerruling of a demurrer '
filed by it Whitebutst made a separate |
motion for a new trial, and to the overmllng ,
thereof filed a separate bill of exceptions.
The other facts necessary to an understand-
ing of the dedalon are stated In the oplnloa
F. A. Hooper and H. H. Tnxner, both ot
Atlanta* for plaintiff In error. Vtamj, ■
Brewster, Howell & Heyman and Anderson, i
Felder, Bonntree ft WUson, all of AOanta, for
defendant In tfror.
LUMPKIN, 3. It app^rs from Jones'
own statement that he undertook to defraud
the Insurance company, whose agent he was,
by Iflsning and reporting a policy as new
bn^nesa, which be snb8equ«itly said was
really issued as a subsUtnte for the one in^
Tolved in this ease, thus gefrtlDg the commis-
sion on issuing a new policy, and further
that, after the death of the insured, be ob-
tained a tiansfer of this policy at a cheap
rate and, through himself or his assignee,
■ought to collect the full amount This he
nnblnshlngly set fortta In a letter to the com-
pany. He filed no answer to the diarge of
fraud. According to the eTidence, be un-
doubtedly swindled a confiding negro woman*
whom he Induced to believe that the policy
was not valid and would be contested, and
obtained -from her, as the administratrix of
the insured, a transfer to him, under the
guise of being a compromise, paying her
about one-sixth of the value of tbe policy.
But "the best laid schemes o* mice and mm
gang aft agley," and Jonea* double dealing
was discovered by the accident of the com-
pany's sliding an installmrat (the policy was
payable In installment^ directly to the ad-
ministratrix Instead of to Its agent The
plaintiff Instituted an equitable action to
cancel the transfen and to recover from tli^
company tb« amount of Uie policy, leoa what
she had received, and from the agent and hia
assignee the amounts which they had re-
ceived, after deducting what had been paid
to her for the policy, which they dotted to
accept in rescission. The verdict for the
plaintiff against the company was the Just
and proper result under ^he evidence, and no
good reason Is shown for getting it aside.
The assignee filed a separate motion for a
new trial, and it wiU be dealt with aeparate-
ly.
[11 1. There waa a d^urrer, but It was.
without merit, and was rightly overruled.
[2-4] 2-4. It was contended that the com-
pany relied on the transfer of the policy by
the plaintiff to Jones, and an order later ob-
tained from the ordinary, and that there was
nothing to put the company on notice of any
fraud. It admitted in its answer that until
after this suit was brought it considered the
policy good, and that it received a eapj of
the order of the ordinary. An administrator
must have authority in order to a^l the
property of the estate. CivU Code, | 4038.
There is no law which empowers an ordinary
to grant an ex parte order, ratifying m pre-
vious illegal transfer of an Insurance policy
on the life of the deceased, under a private
sale, by an administratrix, and thus to vali-
date it The order of the ordinary did not
purport <m Its face to authorize a sale, but
raiher a compromise of a doubtful or dis-
puted claim, under Civil Code, H 4004-4006.
While it used the words "compromise and
assign," and referred to approving "the set-
tlement so made," there was nothing to
"compromise" between Jonea as an individu-
al and tthe Administratrix. He obtained
from her by fraudulent representations a
transfer to blm, naming him also as her
attorney in fact, on October 12, 1907. In
January thereafter he procured, vrlth her
assent and In her name, an order to
allow a "compromise" and approve a "settle-
ment," and thus sought to make valid the il-
legal transfer, under the guise of a compro-
mise. The transaction carried on its face no-
tice of its illegality. The company must
have known that, If there 'was anything
about the poUcy to compromise, it was be-
tween the company and the policy holder,
and that it was no "compromise" for its
agent to buy the policy for himself at a small
amount and collect It in fulL Its letters In
the record show that it appreciated the fact
that the administratrix had no power to
make a private sale, and that there must be
a valid transfer, duly authorized; and It
knew what sort of authority there was.
It was contended that the Judgment of the
ordinary was binding. If the order should
be treated as an attempt to ratify and make
valid the previous Ul^al transfer, as above
stated, there la no such power In the ordina-
ry or bis court The tat^ that the court of
ordinary is one of general Jnriadlctlon as to
certain matten ^tm no power to pass any
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938
78 SOUTHEASTBRN BBPOBTIBB
sndi order. If thd order shonld be treated
u avthorlty for the administratrix to com-
promise a donbtful and contested dalm
asainst the company, Oils has never been
done. An antborltjr to compromise does not
bare to be revoked or set aside in order to
attack a prevloiu private transfer procured
by fraud.
[I] 5. It was argued tbat the plaintiff put
the matter In the handa of an attorney who,
In response to a suggestion of the company's
attorneys that he might eijoln the company
from making further payments, wrote a let-
ter stating that he did not see any way to
enjoin the company from so doing. No ac-
tion was pending. Sudi an opinion was not
an agreement^ within the scope of the general
power of an attorn^ to make, so as to bind
bis client The attorney bad no implied powr
er to consent to give away bis client's prop-
erty by agreeing that one Installment might
be paid to the person who had obtained the
transfer by fraud. In order not to embarrass
him. The company had been imt on notice
of Jones' fraudul(mt procedure. Tbe some-
what despondent view taken by tbe attorn^
first employed by tbo plaintiff did not oper-
ate as an estoppel on his client, or at least
cannot be declared to hare done so ai mat-
ter of law. When ahe was advlnd of his
opinion and unwillingness to proceed, she
promptly emplc^ed other connsd, who took
a more hopeful view and one more in accord
with the law. When the company had notice
of tbe facts, it acted at its pern. If there
was doubt, it could have filed a petition In
the nature of a bill of Interpleader. Merely
saggeetiDg an injunction would not relieve
it
[•] 9. It was dalmed that tiie plaintiff en-
tered into a scheme with tbe agent of the
company to defraud the latter. Clnt It does
not appear from the evidence how the com-
pany was to be defrauded. The applications
for the poUdes (the second showing on its
face that the other poIl(7 was of force and
not snperoedefO, the rec^ts for payments
of premlnms on tliis one, the deduction by
the company from the first payment made
after the deatii of the insured at an unpaid
premium, and Its entire conduct show con-
clusively tiuit the policy was valid and In
force. What fraud did the plaintifF under-
take to perpetrate upon it except to get mon-
ey to which she was entitled? Jones* lan-
guage, like his conduct, was not free fnnn
indirection. But fraud or attempted
fraud by the plaintiff was shown.
[7] 7. It is needless to take up separately
the grounds of tbe motion ft>r a new trial
filed by the company. Some of the charges,
especially as to collaterally attacking a Judg-
ment for frand, may not have been correct,
but none of them sbow any reason for a re-
versal, under the evidence.
Judgment affirmed. All tbe Justices con-
cur.
a« Oa. UO
WHITBHUBST KABOiS et aL
(Snpteme Oonrt of Georgia. Jane 14^
fSylialut ly the Court,}
1. ExBcnrroBS ard Adhznistbatois Of 1S8^
802, 868«)— PSBBOHAL PsonBTT — Sau —
Requisites.
Under the statute law this state an ad-
ministrator cannot sell the personal property
of bis intestate (annual crops excepted) with-
out first obtainlOK leave to sell from the ordi-
nar; and the sale must be public after due
advertisement A sale without an order of the
ordinarf is void, and passes no titie to the pur-
chaser or bis vendee.
(a) Nutting V. Thomason, 48 Ga. 84^ dia-
tinguisbed,
{Ed. Notcr-For other casei^ see Executors
and Administratois, Gent Dig. J| 634. 635,
646U. 1484-1487, 1488-14&4; Dea Dig. «
158,^62, 86&«]
2. EXBODTOBS ARD ADKTNXSTILATOBS ^ 171*)—
iKstiBAiTcx PoLioT— Assioinairas— Fbaitd
— Patkknt op Instaixments.
An administratrix sued to recover the
amount of a policy of life insurance payable in
installments to her intestate's administratois or
executors. It was alleged that she had been In-
duced by fraud to assign the policy, tbat ber
immediate assignee baa tranaferred It to an-
other, both transfers having been made wiUi-
ont obtaining leave to sell the p«>licy, and tiie
sale or transfer In each Instance having beoi
privately made, and that certain Instaltmento
due on tbe policy had been paid by the Inanr-
ance company to tbe second assignee. The in-
surance company and both assignees were par-
ties to the suit. On tbe trial it did not appear
that the second aasii^ee bad knowledge of the
fraud practiced by the first assignee ou the ad-
ministratrix, but did have notice that tbe trans-
fer was made without order of court B«UL
that tbe second assignee did not acquire a legal
title to the policy, on the ground tbat it was
not legally assigned, but that In tbe absence ot
any proof of toe insurance company's insolven-
cy or other equitable reason, the adminiatratiiz
could not recover against the second assignee
the amount of tbe Installments paid to him by
the insurance company.
[Ed. Note.— For other cases, see Executors
and Administrators, C!ent Dig. 11 649, 6S0;
DeCL Dig. 8 171.*] ^ ™.
S. iNSimAnoB (I 601*)— Patuekt d 84*)—
Mistake of Law— Becovebt.
Money paid through mistake of law, witii
fall knowledge of all the facts, cannot be recov^
ered back, unless it Is made to appear tbat the
person to whom it was paid cannot in good
conscience retain It
(a) An insurance conuiany issued a policy of
insurance payable In Installments. This pol-
icy was amdgned to a person as a result m a
fraud practiced upon the assignor, who was
the administratrix of tbe lusnred, tbe assign-
ment being made without authority of the court
of ordinary or public sale. The assignee of
the administratrix bought property from a third
[wrBon (who had knowledge of the fraud), and
gave therefor his purchase-money notes of the
same amounts and at the same maturities of
the Installments of the policy, and assigned the
policy as collateral security fbr the notes. Hm
insurance company, with full Icnowledge ot all
tbe facts, paid several installments due on the
policy to the second assignee, who apidied the
same in discharge of the purchase-money noto.
ITnder these circumstances the insurance com-
•Tor otbw cues mm same to^ sod swUen NUHBBR In Deo. IHg. k Am.
WHITEHUBST T. KASON
pany coaM no4 ncorer back the instaUmoits
paid to the second assii^nee.
[Ed. Note.— For other cases, we Insannee,
Gent Dis. H 1000, 1601: Dee. Die. 1 601;*
ParmeDt. Oeot Dig. H 267-^; Dab Dig. f
84.*]
4. Wbit of Ebbob— Qmsnona DETCBiaifBD.
Other points raised are decided on the writ
of error sued out by the tnmrance company.
Error from SnperloT Goort, Fulton Coun-
ty ; w. D. ElUs, Judge.
ActiOD by A. L. Maaon, u administratrix
of A. J. Mason, deceased, against tbe Empire
Life Insorance Comi)any and others. Judg-
ment for plalntUt» and defendant Whlt^urat
brings OTor. Reversed.
Anderson, Felder, Ronntree ft Wilson, of
Atlanta, for plaintiff In error. Twiggs &
Gasan, of Savannah, Dorsey, Brewster, How-
ell & Heyman and F. A. Hooper, all of At-
lanta, for defendant In error.
EVANS, P. J. This case Is a prong of Em-
pire LUe Insurance Company v. Mason, Ad-
mlnistratrlr. 78 8. E. 935, this day dedded.
The administratrix of Mason sued the In-
sorance company to recover an amount al-
leged to be due on a policy of insurance Is-
sued by the company on the life of her in-
testate, and joined In the suit as parties de-
fendant one Jones, the agent of the company,
who was allied to have fraudulently pro-
cured an assignment of the policy from her,
and Z. Wbltehurst, tbe assignee of Jones.
The jury found In favor of tbe plaintiff, and
tbe Insurance company and Wbltehurst made
separate motions for new trial, wlilcb t>eing
overruled, they sued out separate writs of
error. We are now considering that of
Wbiteburst.
1. The evidence authorized a finding that
Jones practiced a ftaud on tbe administra-
trix of Mason in procuring an assignment of
tbe policy to him, but there was no evidence
fihat Wbltehurst participated In the fraud.
The policy was payable to the administra-
tors or executors of A. J. Mason in quarterly
installments, and was assigned by the ad-
ministratrix of Mason to Jones, who assign-
ed it to Wbltehurst as collateral security for
a debt At that time no judgment had been
granted by the court of ordinary authorizing
a compromise with tbe company ratifying
the transfer to Jones. This statement Is
made In order to be historically accurate,
and not to intimate that such order was val-
id. Under these facts did tbe transfer of
the policy by Jones to Wbltehurst vest the
valid legal title thereto in Wbltehurst?
[1] In tbe various rulings to which excep-
tion Is taken, the trial judge held that If the
assignment to Jones was invalid, and did
not serve to vest title to the policy In him,
his transfer to Wbltehurst was likewise In-
valid. An admdnlstrator has no right, under
tbe statutes of this state, to sell the pr(^)erty
of his intestate (except annual crops) with-
out an order from the conrt ol ordinary
granting him leave to seU. At common law
an administrator conld sell personal prop-
erty ^ther at prirate or public sale; bat, as
was said 1^ Simmons, 0. J., In Poullla r.
Brown, 82 Oa. 412, 428, 8 a B. 1181, 11S2:
"Onr statute has <ibanged tbe common law,
and requires the executor or administrator
to ai^ly to the ordinary for leave to sell
(which afvlicatlon in the case of p^nonal
property shall be made at least 10 days be-
fore tbe order Is grantei^, and that adver-
tisement be made of the day and time of
sale. The Intention of the law of this state
seems to be that all sales of the property of
decedents shall be public, after full notice to
all parties Interested tliereln." It Is con-
tended, however, that a sale made without
an order of the court of ordinary is only
voidable, and that an innocent vendee from
a purchaser at an administrator's sale, made
without an order, takes a good Utle to the
property. This point was before tbe court
In Patterstm v. L«non, 60 Oa. 232, where It
was said: "We recognize the well-settled
rule that in order to dlveet the heirs at law
of their title an administrator's sale, the
administrator must bave authority to sell.
This is a sine qua non. Without it the sale
Is void. [Williams v, Peyton], 4 Wheat 77
[4 L. Ed. 518] ; Clements v. Henderson, 4 6a.
148. Under our law this authority Is tbe
Judgment and order of tbe ordinary having
jurisdiction of the administration, duly bad
and rendered. McDade t. Bnr6b, T Oa. 600
[60 Am. Dea 407]. It la also true tbat to
make a perfect sale to divest tbe Utle Vega'
larly, tbe adndnlstratoi must comply In full
with tbe iwovlslons ot the law as to the mode
of Bale. Worthy t. Johnson, 8 Ga. 286 [62
Am. Dec. 890; Id.], 10 Oa. 858 [64 Am. Dec
303]. But «1iU8t a sale wltbont authority la
void, a sale wlthont a strict compliance wlQi
the requirements of the law Is only voidable:
Evm an Innocent pnrdiaser gets nothing un-
der a void Bale; but If tbe sale be voidable
only. Innocent pnr^asers, those bavli^ no
notice, either actual or constructive, of the
Irregularity, are protected." Tbe holding In
this case has been codified as follows: "To
divest the title of the heir at law, tbe ad-
ministrator must bave authority to sell; If
there be irregularities, or If he foil to com-'
ply with the law as to the mode of sale, the
sale Is voidable, except as to Innocent pur-
chasers." Civil Code 1910, I 4089; This sec-
tion protects Innocent purchasers against
nothing except Irregularltlea in carrying out
a valid ordtf of the court of ordinary grant-'
Ing leave to s^ (Home t. Bodg^ 113 Ga.
231, 38 S. B. 708), and Is applicable to dioees
In action. Thompson v. Thompstm, 77 6a.
602. 8 S. E. 261.
Strong reliance Is made by the plaintiff In
error on the case of Nutting v. Thomason,
46 Ga. 84, as deciding that no order of tbe
•For outer cesM m*
seme topis sad aeeUoa NUUBtt^ m D*o. DlS- 4 Aai. Wg. K^-NOb amclm A Rap^
^ DiaHized by \^\J*
040
78 80UTHBA3TBRN RKPOBTrBB
qftOnnxj la- ngnifed Dor ttie uUft by an mA-
mlnistrator of Btodc of an Incorporated rail-
way company, and tbat a sate vtthoat aodi
ordisr- Is .only voidable uid that a tMna fide
pnrebaaer from the admUdatrator'B vsnde^
wlthoiit BOtlCb tliat the lale was made at
private aale and wlthont order, gets a good
title. Let na concede that at the time of the
transactloa Inquired of In that case that the
law did not nqnlre an admlnlstiator to ob-
tain leaTB to sell stock beftve making a sale
of It; certalidy tmder the Ood^ as constmed
In many dedBlona of this court made since
tb<3i« an order of the court (ft ordinary,
granting leave to sell the perswial and real
property of his Intestate by an administrator.
Is essential to the validity of the sale. More-
over, In tiiat case there had been successive
transfers of the stock on the books of the
company, new certificates Issued, and the
last purchaser vna not put on notice that the
stock he was buying was that whlcib was sold
by the administrator. In the hutant case
Whltehnrst had notice 'tnm the transfer of
the Insurance policy by Mason's adminis-
tratrix to Jones, accompanying the poUcy*
that the administratrix of Mascm was with-
out anthorl^ to transfer the policy to Jones,
tto that whether we hold the original trans-
fer to be absqlntely v<4d or only voidable,
Jones' asB^ment to Whltehnrst was in-
valid as against the admlalatratrlx, and she
was entitled, under the evidmce, to have it
cancded as ^eliminary to her recovery
against the Insurer on the policy. In viewot
this ooQcliulon the various rolinga of the
court In this regard were not prejudicial to
the plaintiff In error.
[2] 2. The plaintiff prayed judgment against
Whltehnrst for the Installments collected by
him, and a verdict was returned against
him, Jones, and the insuraiKe company for
such amounts. The petition sought to re-
cover the amount of the policy which had
been assigned by the administratrix to Jones
and by blm to Wbitehurst, less the amount
received from Jonea. Inasmuch as White-
burst was the assignee of Jones, to whom
the policy was assigned by the plaintiff,
It was necessary that these assignments be
vacated before the plaintiff eetabllsbed her
right to sue. He was properly made a par-
ty, but neither the pleadings nor evidence
authorized a recovery by the plaintiff against
him for the amount of the inatallmenta paid
by the corapanj to him.
[3] 3. The Insurance company pleaded that
if the plaintiff recovered a verdict against
it, it have Judgment over against White-
hurst for the amount of the inatallaents
wtilcb it had paid to him. The jury, fimnd
in tavor .of ttM insurance company on this
contention. The plaintiff in error Inslsta
that these paymetatu were voluntary, wlHi
knowledge of all the facts, and ao far as
Iie3s'«oiio»ned, there was no mlaplaced con-
fidence and no axtlflce^ dec^ptkn*. qr ftsvd-
QOsnt practice, and such payments cannot
be recovered back. It appeared that aft^
er Jones procured the transfer of the pol-
icy from the admlnlBtratxlx be pn^Kwad to
buy from Whltehnrst certain real estata A
trade was effected, Whlt^mist taking Jonetf
notes In amounta and at sudi maturities aa
to be paid off by Oie quarterly Uutallments
under the policy, and took a transfer of tiie
policy as collateral security. About thna
months after this tnuiBaction the plalntlir
discovered that Jones had perpetrated a
ftaud on ta«r, and promptly onployed coubt
sd, who notUled the Insurance company of
Che fraud of its agent Jones in procnrliv an
assignment of the policy to himself. Not-
withstanding this notice, the insurance oom-
pany continued to pay Whltehnrst the In-
stallments as they fell dne^ whiiA were ap-
plied to the discharge of Jones' noUs. Jonea
has alnce sold the real estate. Whitehurst
has a solvent Indorser on the unpaid notes
of Jones.
Our Code declares that "payments of taxes
or other claims, made through Ignorance of
the law, or where the facto are all known,
and there la no misplaced oonfldenoe and no
arUflce^ deception, or fraudulent practico
used by the other party, are deemed volun-
tary, and cannot be recovered back, nnless
made under an argent and Immedfate neoea-
sity thereftxr, or to release person or prop-
erty from attention, or to prevent an im-
mediate seizure of person or propo^." Civil
Code 1910, I 4317. In England and in some
other jurisdictions no distinction is made
between money paid In Ignorance of law and
under mistake of law. liord EUenborougb
went so far as to bfdd that money paid un^
der mistake of law with full knowledge of
the facts cannot be recovered, although it
is against conscience for the defendant to
retain It ; his lordship basing bis conclnston
on the ground that "every one must be taken
to be cognizant of the law, otherwise there
is no saying to what extent the excuse of
Ignorance might be taken." Bllble v. Lnmley,
2 East, 469.
This . question underwent daborate an-
aly^ in Culbreath v.. Culbreath, 7 Qa. 64,
50 Am. Dec. S76, and Nisbet, J., declined to
follow the rule announced In BlIMe v. Lum-
ley. In the Culbreath Case a decedent ^ed,
leaving neither wife nor children, and his
nearest of kin w«re seven surviving brothers
and sisters and t6e children of. a deceased
sister. The admtnlatrator in a family set-
tlement, and under a mlsaH>rehenslon of the
law, divided the estate equally between the
seven surviving brothers and sisters to the
exclnsioii of the children of a deceased sta-
ter. Subsequently Oiese children recovered
a judgment against' the administrator for
th^ share of the estate and the admin-
istrator BoeA two of the distributees to re- .
cover - the amount overpaid on account of
tMs mistake. The court differentiated pay-
mo^ inada la isnoranca of law from Ukmw
Digitized by Google
W MOBOAK T. BTATB • ? 9il
mads note afctak* of' law. and IkeU fliat
*^0D^ paid b7 mistake ot the law may be
recovered bade In an action tor pioney bad
and lectffed, where there Is full knowledge
of all the tacts; provided tbnt the mistake
Ifl clearly proven, knd the' defendant cannot^
In good conscience, retain IL" Oar Code
recognizes this distlnctlott to some ectent In
the section^ which declare that "mere ignor-
ance of the law on the part of the party him-
self, where the ftcts are all known, and there
Is no misplaced confidence, and no artifice or
deception ot fraadulent practice la used by
the other party either to Indncei the mistake
of law or to prevent its correction, will not
antborise the Intervention of eqolty." "An
honest mistake of the law as to the eCEect ot
an instmment on the part of boOi contract-
ing parties, when each mistake operates as
a gross Injustice to one, and gives an on*
conscknu advantage to the other, may be
relieved In equity." And that a "mistake of
law, If not brought abont by the other party,
is no ground for annulling a contract of sale.
Mistake of a material fact may» in eome
cases, justify a resdalai of the contract;
mere ignorance of an act will not" Givll-
Gode 1910, II 4076, 4ST6. and 4116. Judge
Nesblt took pains to badge In and Qualify
the role allowing a recovery of mon^ paid
aider mistake of law by requiring as Ih-
dl^nsable to* Its recovery, l^t the plain-
tiff show that ^ the defendant cannot In good
conscimce retain the mon^. ^e latloaalft
of the rule allowliv & reoovfary of mwey
paid with knowle^ of the facts, and under
a ndstake of law. Is that the plalntUf Is not
attempting to ttirow a loss upon any one.
If the plalntlfl's recovery would' lead to a
loss OE the part of the defmdant, then, the
parties being equally innocent, that fact of
Itself la svfilcient reason for denying ttie
right of recovery on the plaiiftlff's part
Keener op. Law of Quasi Contracts, 91S.
In tho Instant case Whltehurst aold prop-
erty to Jones and twik the policy as security.
The Installments collected Whltehurst
were applied to the payment of Joan' note.
Whltehurst did not participate In the fraud
which Jones practiced on the adndnlstratrix
ot the insured, in order to procure hw to
transfer the policy to Jonea He failed tu
get a title to the policy by virtue of the
teanafer to him becaiue the law doea not
aidhorlae an administrator to sell choses In
action without first obtaining leave to sell
team the ordinary, and then only at public
• outcry. When reduced to Its ultimate flKct%
the ease stands Chns: Jmes ftaudnlentiy
procured a transfer of the policy of Insumhce
to himself, wfalcb transfer was attonpted to
be made without an order ot ttie ordinary
and at ivlvate 8al& Wttbeut notice of the
actual teand, bat with notice that the trane-
feac was attnnpted to be aecompUdied by a sale
without order ot court and prlvatdy made;
WhltehuxBt In iht course oi business aoln
•VOTethWMUMMSHMti^aaaMollaaHincs^^
propwty to Jones, andTecatved part payment
in the InstaUmente ]^dd by the company, who
paid the installments with knowledge of all
the facts. Under such drcnmstances White-
burst paid value received to Jones for the
money reoelved from the Insurance company,
as payment on tiie policy, and be could re-
tain the payments In good conscience. Iq.
effect the transaction is the same as If the'
Insurance company paid the money to Jonec.
and Jones paid It to Whltdiurst Whlt^urst
has changed his status In rdlance on the
validity of the assignment of Jones to him,
and it would be Inequlteble to allow the tn-
snranoe company to recover the Installmente
voluntarily made by It wltii knowledge o£ all
the facta
The verdict rendered was qtedal In form.
It allowed a recovery by the administratrix
against the Insurance company, Jones, and
Whttriiurst, for tbe Installmente which had
been paid, less amount rec^ved from Jones,
a recovery by her against the Insurance com-
pany for the nnpald Installments, and a re-
covery by the Insurance company against
Wblt^urst fbr the Installments mid to him
by the bunrance company. As will be oeea
in the opinion in the case ot the Insurance
Co. V. Mason, A-dndnlatntrix, the verdict
against the inauranoe company In favor of
ttie administratrix diould stand. Butsomu^
of tite vwdlct aa gives a recovery £a favor ot
the administratrix against Whlt^ucst, and
in fhvor of the insurance ctnnpany agalnsi:
Whlttfiurs^ Is erroneous. A new trial Is noe
necessary, and direction Is gtvra to eliminate
the recoveries against Whit«hnnt
[4] 4. Some of the Instructions conqjilalned
of contained abstract principles of law not
strictly appnvrlato to tiie caso, but them
instructions were not of an^ a character as .
to be preludicUl to tiu ja»i»H«m in emt.
Other points made in tbe record are ruled in
the companion case of Bmptre life Ins. Co.
V. Mason, Adn^bdseratzix, and refwenoo !>>
made to that case.
Judgment reversed, wltZi direction. All the
Justic>is concur
MOBGAK V. STATB. (No. 4^724.)
(Oourt of Appeals of Qeoifla. July 23, UOSJ
(ByUaliu Iv the OowtJ
IifToxroiTnTo Lequobs (| -16*)— Id<SNsas—
PBosBounoif— Dbhubbeb to IiTDioiaaKT.
The indictment in this ease wss based up-
on section 7 of the general tax act of Aocust
16, 1909 (Laws 1909, p. 62; Ptd. Code 1^, I
983). to whidi a demnmT wai interposed, on
the CTDond that this act was nnconstltntional
for the reasona «tated in tbe d^nrrer. The
constitutional qaestlon thos made was certified
by thii court to the Snpreme Court for tastrue-
UOD, and tbat court inatmcts thii court that
to much ot tbe. act in question as seeks to im-
pose a plater tax where the Koods handled are
njanufactnred beyond tbe. limits of tbe state is
obnoxious to the uniformity dauae of article
7, 1 % pat. 1, of tbe GoastiCutiott of this state,
r^Mo. Di» a Aab.iMb Vm-V^ assfss fSep'riadiHs
^ Digitized by LiOOgle
n SOUTHnASTBBN BBPORTBB
(Ga.
and therefore ia roUL It follows from tbia de-
cliion of the Supreme Court that the trial
jodse erred in overruling the dcannirer to the
Indictment, end for this leaaon his jodgjnent
most be reversed.
[Ed. Note.— For other cases, see Intoxicating
IJQQors, Cent Dig. H 19, 20; Dee. Dig. « 16.*]
Error from Suiierior GOnr^ Olynn Gonntjr;
C B. Conyera, Judge,
J. H. Morgan was convicted of violating
General Tax Act, | 7 (PoL Code 1910, | 983),
requiring a license to be procured by whole-
sale dealers in near beer, etc. and brings
error. Case certified to Supreme Court, and
on opinion of Supreme Court (78 S. B. 807)
reversed.
A. D. Gale and H. F. Dunwody, both of
Brunswick, for plaintiff in error. 3. H.
Thomu, SoL Gen., of Jesnp, for the State.
BILL, 0. J. Jndgmoit revened
03 Oa. Am. 112)
PIETDBSON T. HARPBB. (No. 4,44a)
(Coort of Appeals of Geoi^ia. July 22, 1913.)
(8vUa^ the Court.}
1. VkTDOB A.JSU PUBCHABEB (§$ 146, 214*)—
Bond fob Tmx— EIXEOimoN of Deed —
Rights of Assionee.
The judge erred in directing the ver^ct
(a) The maker of a bond for title, wherein
the maker binds himself to execute a deed to
the obligee named in the bond upon the pay-
ment of certain notes therein referred to, is not
required to execute a deed in pursuance of his
bond until the bond is surrendered, or until It
ia shown that the bond is lost or destroyed or
is not in any event enforceable against him.
(b) The assignee of a bond for title acquires
all the rights and equities to which the assignor
was entitled thereunder,
[Bkl. Note;— For otiier eai^ ne_ Vendor and
*archaser. Cent Di,
Dec. Dig. U 146, 21'.
Piiic'^iH't.Ctot l^^^^i 276, 430, 442-448;
2. Vkitdos and Pubchasbb {f| 151, 214*)—
Bond fob Title— Bbeaoh—Defekbes.
One who has executed a bond for title, ob-
ligating himself to convey certain land therein
described to a named obligee or his assigns,
cannot, in the absence of an express stipulation
to that effect, or unless the bond has been sur-
rendered to him, convey the land to a person
other than the obligee or bis assigns without
breaching the bond ; and the fact that the bond
has been assigned by the obligee to a third per-
son will not relieve the obligor from any of the
liabilities resulting from the breach.
[Ed. Note.— For other cases, see Vendor and
Purchaser. Cent Die. SI 298-303. 436, 442-
448; Dec Dig. H 151, 214.*]
8. Verdob and Pubohaseb (I 214*)— Bond
FOB TrriA— BBEAOH— DEFENSEa
Where one who has executed a bond for
title to land, without requiring its surrender
and without inquMng whether It had been
transferred or destroyed, executes and delivers a
deed to 8 third person in disregard of the ob-
ligation assumed in the execution of the bond
for title, he is estopped to defend upon the
ground that the assignee of his ontstanding ob-
ligation knew of the eiecation of the deed, nn-
less^ can show in additkm that' the aaugnee
acquiesced in OT eouented to the execution of
the deed.
Ed. Note.— For other caaea, see Vendor aad
Purchaser. Cent Dig. 442, 448; l>e&
Dig. t 2li*]
EIrror from Oty Oonrt irf Odlla; fi. B. Ox-
ford, Jndga
Action by B. Peterson against Henry Har-
per. Judgment for defoidant, and plaintiff
brings error, Bereraed.
Newbwn & Me^s, ct Odlla, and V. W.
Dart; of Douglas, for plaintiff in enw. R.
3. Qnlncey and J. J. Walker, both ot OcUla,
for defendant In mac,
RUSSKLLv 3. PetersHL brongbt mlt
against Hoitr Harper for the breadi of a
bond for tUJa. Xhe court directed a verdict
in favor ot tbe defratdant; and tbe plaintiff
excepts.
According to the evidence^ tbe defendant
executed to Stone on July 25, 1908, the
bond for Utie wUcli appears in the record,
wtaer^ be obligated blms^ to convey to
Stone, npon tbe payment of two promissory
notes therein spedfled, tbe land tlier^ de-
scribed. Tbe two notes amounted to some-
thing over (300, The bond for title does
not contain a stipulatlott to tbe effect that
time is the essence of tbe contract or confer
power upon tbe holder of the notes to sell
the land ^tber at public or private sale.
The land was worth from «2,S00 to $3,000.
The defendant testified that be had no other
Intwest in the land than as security for tbe
debt evidenced by the notes. One of the
notes fell due January 1, 1909, and tbe other
January 1, 1910. On January 12, 1910^
neither note having been paid, Henry Harper,
the defendant, made to Ij. C. Harper a war-
ranty deed conveying tbe land covered by
tbe bond for tities. On December 20, 1910,
Stone, the b(^der of tbe bond for titl^ trans-
ferred tbe bond to tbe plaintiff, Peterson. It
also appeared in the evidence that on De-
cember 31, 1908, Stone executed a deed to
the land in question to Annie Harper. Stone
knew, before he transferred tbe bond for
title to Peterson, that the defendant bad al-
ready deeded the land to L. C. Harper, bnt
Peterson testified that he did not know thla,
and there is no testimony that Peterson ac-
tually knew this at tbe time be took tbe
assignment of the bond for titie from Stone.
Peterson was charged with constructive no-
tice, however, as it appears from the record
that tbe defendant's deed to Ij. 0. Harper
bad been recorded before Stone formally
assigned his bond for UUe to Peterson. •
The foregoing were tbe material facts de-
veloped npon the investigation in tbe court
below. Any apparent conflict In the testi-
mony related to minor matters is immaterial
to a consideration of the substantial ques-
tions presented. It appears also, without
contradiction, that, nearly a year before tbe
ftmnal ftsdg&ment of tbe bond for title tnm
#ltor«tte«asssM«a]Mtapl«aD4>MotloB MUHBSam Dts. Die. ftAn^ iHs.
PETERSON HARPER
948
Stone to Peterson, Peterson peid to Stone tbe
full consideration for his equity in tlie prem-
ise^ npon Ms promise to assign the bond for
titles which Stone did not have with him at
that time, and It was uncontradicted that the
dday in the execution of tbe as^gnment was
due wholly to Stone, whom Peterson fre-
qnently requested to formally execute the
assignment Of course this testimony does
not affect the rights of tbe parties (because
necessarily the assignment had to be In writ-
ing), but it does show that tbe assignment
was not fraudulent and was based upon
valuable consideration.
[1 , 2] Since it appears, without dispute,
that there was a breach of the bond in which
Harper obUgated himself to convey a cer-
tain tract of land to Stone or his aligns,
our inquiry must necessarily be confined to
ascertaining whether the reasons given by
Harper for actually disregarding his dbllga-
tlon are sufficient to relieve him from the
liability to which he was subjected prima
facie whenever the plalntlCT proved the ex-
ecution and assignment of the bond, and
that Harper, as obligor, had placed himself
In a position where he could not comply with
Its terms.
It was not necessary for Peterson to de-
mand that Harper comply with his obliga-
tion, for the evidence showed (as the decla-
ration had alleged) that the defendant had
put it out of his power, before tbe suit was
brought, to comply with such a demand.
Gibson V. Carreker, 82 Ga. S3, 54, 9 S. R 124.
The testimony as to the sale by Stone to
Mrs. Annie Harper cats no figure in the
case, because there is no evidence that Stone
evN assigned bia btaid for title to Mrs. Har-
per, or that he, In writing, conveyed to her
bis Interest in this land. Even if a written
instroment apart from the assignment and
transfer of the bond for title had been in-
troduced, it would not necessarily have re-
lieved Harper from liability to PetetBon,
becanse there la no evidence 0iat at the
time be executed the deed to Xi. OL Harper
he had any reason to believe that Ida bond
for title was not still otttstandlng (perhaps
In the hands of an innocent purchaser of
Stone's equitable Intraest), and he neither
inquired as to its whereabouts nor demanded
its surrender as a condition precedent to
tbe execution of this deed. He certainly
knew, at the time he executed the deed to
L. O. Harper, that he bad given a bond for
title to Stone, covering the same tract of
land. He knew that he ceroid not be required
to give a deed In pursuance of that bond
until It was surrendered or until it was sat-
isfactorily shown that he could not in any
event be liable In future upon the obligation.
The maker of a t>ond for titles, wherein
he binds himself to execute a deed to the
obligee named in the bond upon the payment
of certain notes therein referred to, Is not
required to execute a deed in pursuance of
his bond until the bond Is surrendered or
until it is shown that the bond is lost or
destroyed or Is not In any event enforceable
agalnat bim. Hardin v. Neal Loan ft Bank-
ing Co., 125 Ga. 820, 64 & E. 756. The de-
fendant seems to have recognized this prin-
dple, because there was testimony to the
effect that Stone, the bolder of the bond,
agreed that he should execute the deed. But
the Judge could not direct a verdict upon
this testimony, since it was contradicted by
Stone, and it was for the Jury to say what
was the truth as to this point The facts of
the instant case demonstrate the wisdom of
the ruling of the Supreme Court in the Har-
din Case, supra, because, were any other rule
adopted than tliat of requiring tbe maker
of a bond for title to be certain that that
obligation has been legally canceled and its
binding force avoided, many disasters in
daily commercial transactions would en8n&
A bond for tltler is not only the evidence that
the obligee therein named has an equitable
interest in some amount, in the pr^niseB
therein described, wbteh he can b61I or
pledge as security for debt, but dally many
tra&saetlops of this kind In fact occur. So
much so that the Legislature has seen fit to
provide for the recording of bonds for title;
and the courts have uniformly heM that Om
rights of the holders of a bond for title must
be regarded and respected by third persons,
as well as by the obligor of the bond. The
holder of a bond for title has an equitable
Interest in the land, which may be perfected
without the execution of a deed, by payment
of the purchase price In full, either by the
original obligee or by bis assignee. He can-
not be deprived of this equitable Interest
throng a sale of the land by the original
vendor, even if the purchase-money notes
are not paid promptly at maturity, unless It
be expressly so stipulated in the notes or the
bond itself. Buck v. Dnvall, 11 Oa. App.
863, 76 S. EL 1058. He can proceed against
a trespasser npon the premises, althou^ he
has not paid the purchase price in fall, and
evoi though his notes are past due. Prima
fbcie, at l^ist, one who, in dlsregud of a
bond for title. In vrhlch he has obligated him-
self to convey the prKuisefl therein described,
conveys than to another has breached bis
bond, and it devolves upon him to disclose
why he should be relieved tram Oils appar-
ent llabUity.
That the assignee of a txHid for title ac-
quires all the rights and equities to which the
assignor was entitled thereunder Is well set-
tled. Walker v. Maddox, 106 Ga. 263 (2), 31
S. E. 165; Bumey Tailoring Co. v. Cuzzort,
1B2 Ga. 862 VO, 66 S. E. 140. Therefore,
prima fade at least, upon the introduction of
the bond for title, with the assignment en-
tered thereon, Peterson was entitled to recov-
Ier it tbe Jury believed the testimony of Stone
that he did not consent for Huper to exe-
Digitized by VjOOglC
78 SOtrPHlAA&TBiBN BBlF^ltTEB
<tfite Oie deed to L. 0. Saii)er, and Oiit in
Met be had no Icliowledge of it
tsi Tbe evidence Is undisputed that Peter-
son bad no 'ftctnal knoTrledge, at the time of
the transfer by Stone of the bond for title,
tJiat Harper bad executed a deed to L. C.
Harper. It Is Insisted, bowerer, that Stone
did ibiow tliat Harper had execated and de-
livered this deed before Stone executed Ida
ftB^gnm«it to Peterson; ' and, as the assignee
of a bond oould get nothing more than his
asdgnor had, that aa Ston6 had notblng
Peterscm could get nothing under the bond
for title. We consider this argument as one
without force for tbe reason thal^ even if it
lud been shown that Peterson knew that
Harper had executed a deed to Xb C Harper
at the tune he porchased Stone's oqnitable
interest in the land and had' the bond for
title assigned to blm, bia right to recover
for the breach of Qie bond would not be de*
feated, nnlesa he further k^ew, or had reaacm
to know, that Stone had consented to the exe-
cutlon of the deed. Ditrlnslcallj- there is no
difference' between actual and ctmstructiTe
notice. The effect of each and both la to
show that tbe perscm whom it la aoui^t to
charge with notice had knowledge of a par-
tlculat fact When this notice la implied bj
i^Vt from cotaln conditions, it to called "oon-
strnctive notice" and dispenses with the ne-
cessity of proof of actual knowledge, whereas,
to Impute actual notice, the proof must show
that the party whom it Is sought to charge
with notice actually knew of the existence of
tbe fact or condition in question. One who
has voluntarily executed an obligatloix by
which he has assumed to execute title to an-
other to a certain tract of land described in
a bond, cannot be pernUtted to breach the
bond, merely, because the obligee (who for this
reason la the owner of an eaoltable interest
in the land), possibly knew that the maker of
the bond had breached it Of course, if tbe
obligor in the bond executed a deed, either
with tbe consent or assent of the obligee or
his assignee, this would be a perfect defense.
But It would never do to hold that tbe volun-
tary act of t^e obligee, In violating bis obliga-
tion, without the consent of the holder of the
bond for title, and perhaps even over .hfs
protest, would relieve the maker of the
bond for title merely because It was done In
the presence of the obligee. In such a case
knowledge is not the equivalent of either as-
sent or consent. If the jury, upon the trial
of the case, had bellevM that Stone consent-
ed for Harper to make the deed, and further
believed that Harper did not execute the
deed until he had taken proper means to as-
certain that the bond could never in future
subject him to liability, then it might be pos-
sible that Peterson could not recover. But,
In the absence of sa&i proot Harper would
be estopped ito set up, in defense of his ap-
point'breach of the bond, mere knowledge of
hla act in execn^g t^e deed, on tbe part ct
either Stone or his assignee. The proof
would have to show assent or consent in
addition to knowledge. For this reason,
where nothing more la diown than that tbe
obligee in the bond for title, or hla assignee,
had knowledge of the fact that the maker of
the bond had executed a deed in Tiolation at
his obligation, this proof aUme constitntea no
defense to the breach of the bond ; and it Is
immaterial Whether the knowledge is actual
or constrhctiTe.
AU actions for breadiea ot bonds for Utie
could be prevraited and defeated If the law-
were to tbe contrary, fbr then, if tbe maker
of a bond wished to avoid it, it would only be
necessary for him to put himself In the pres-
ence of the obligee, and, after calling bis at-
trition, to deliver to some third person In his
presence a deed which the maker of the bond
had previously executed, conveying to blm
the premises described in the bond.
"Wbere one who has executed a bond for
title to land, wlthont requhdiw Its snrren-
ier and without inquiring whether It has
been transferred or destroyed, executes and
delivers a deed to a third person, in disr^;ard
of the obUgaUon assumed In the execution
of the bond for title, he Is estopped to defend
upon the ground that Uie assignee of his out-
standing obligation knew of the execution <tf
the deed, unleas he can show in addition tbst
the assignee acquiesced in or consented to the
exectition of the deed.
Judgment reversed.
(U Gft. App: U4)
COLLINS T. AUGUSTA-AIKEN RT. &
ELECTRIC CORPORATION. (No. 4.837.)
(Court of AppeaJs o( Georgia. July 22, 1913.)
(ByUahua hy Court.)
1. Stbeet Railroaos (I 81*)— DuTX or Mo*
' ' TOBMAN.
It is the duty of tbe motorman of a strset nil'
way car in proiMslllng a ear thnn»h the public
streets to notice the prMcnee or pedestrians,
aod at all times to be watchful to see that the
way ie clear; and, where he has reason to ap-
prehend danger or should In the exercise of or-
dinary care become cognizant of danger, be
should regulate th^ speed of his car so that It
could be qulcUy stopped, should the occasion re>
Quir# it.
[Ed. Nete^For other eases, see Street RaD-
roiidB, Gent Dig. H 172-17T; Dec Dig. { 81.*}
2. Neouqbncb <S§ 80, 136*) — RioHt or Rx-
COVEBT— CONTRIBUTOBT NeOLIQENCB— QUB»-
TioN FOB Jtmy— Dismissal or Petition.
One cannot recover damages for the n^lt-
gence of another, tbe coneequences of which he
could have avoided by the exercise of ordinary
care after the negligence became apparent or
should have been reasonably apprehended. Gen-
erally ne^iganee Is a qnesdw of fiiet, to be de-
termined by the Joiy. A petition seeking to
recover damages on account of alleged negli-
gence Bhoald not be dismissed on the ground
that the i4alntllt coold by the exerdse of ptdi*
nary care have avoided, the eonsMueooes of the
n^gence alleged, unless the petition discloses
•For oUiw oaMB see ume tople and ssetlon NDHBBR la Dm. Dig. * Am. Dig. Ktr-Ne. Ssrles U«P'r Indeua
Digitized by VjOOglC
Qtt.) ooLuara T. AUfW^tA'Amm kt. a vcsaeBic cx>bpobation 945
facta damattdlat tach « omdnsiOD u a matter
of law.
fEd. Note.— For other cases, we Ne^gence,
Cent Dig. H 84. 86, 277-353 ; Dec ^ig. ii
80. 136.*]
Error from Clt7 Court of Richmond Coun-
ty; W. F. Eve, Judge.
Action by R. C. GolUus against the Angnsta-
Aikeo Railway & Electric Corporation. Judg-
ment for defendant, and plaintiff , brings er-
ror. Beversed.
Isaac S. Pe^les, Jr., and Thoa. V. Har-
rison, both of AngDsta, for plaintiff In error.
BoyUn Wright and Geo. T. Jaeksm, boOi ct
Angnata, for defendant in omr.
PO^ETLB, X The plalntUF bron^t his ao-
tion to recover ot the defoidant Mreet raS-
way company damages for aneged personal
injuries. The allegatlODfl of the petition
made substantially the following case: Broad
street Is one of the main public thoroughfares
In the dty of Augusta, running approximate-
ly east and west About 8 o*<aodc in the aft-
ernoon the plaintiff started to cross Broad
street from the south side thereof to watch
out for one of the defendant's street cars
going westward up Broad street When
about two feet from fbe track, and looking
eastward along Broad street to discorer the
approach of the car for which he was wat<^
ing, one of the defendant's cars came down
Broad street, going in an easterly direction,
and suddenly and .without any warning to
the plaintiff struck him, knocking Mm to the
ground, as a result of which he sustalued
serious injuries. He was In full view of the
motorman in charge of the car, and by the
exercise of ordinary dlUgeuce his presence
could have been discovered and warning giv-
en him of the approach of the car, but the
motorman failed to keep a lookout so as to
discover hla presence. The plaintiff was
without fault, and bis Injuries were the re-
sult of the defendant's negligence In falling
to discover his presence and give him warn-
ing of the approach of the car, and In fall-
ing to stop the car in order to avoid striking
him. By amendment It was alleged that Just
prior to the time when he was struck by
' the car the plaintiff looked up the track in
the direction from whence the car came a:nd
saw only one car, which passed him. He then
stepped near the track to look for the car
which was to come down the street westward.
It was raining, and he could not by the exer-
cise of ordinary diligence have discovered the
presence of the car that struck blm, which
was running at a high rate of speed and was
off its schedule, and he had no reason , to an-
ticipate Its presence on the track at the time.
He stood near the track for a minute before
be was struck, and was In full view of 'f:he
motorman, who knew and should have known
tda periL The court iBustalned an oral motion
to dismiss the petitltm as amended, on the
ground that it set fortb no cawe of itetiont
and the plaintiff excepted.
[1] 1. If the petition samdently diorses
actionable negligence as the proximate «raBe
of the Injury, the suit rtMndd not have' beoft
dtsml^d, unless it also alleges facta which
show that by the exercise 6f ordinary care
the irialntlff could have avoided the conae-
Quences of the defendant's negligoice. The
plaintiff was mrt a trespasser. TtM Aeteniant
had no exclnslTe r^t to nse the psbUc
street . If the plaintiff Iiad no right to be
where he was when the injury occurred, the
defendant was under no duty to antidpate bis
presence, and oonseqoently would be liable
to him only for the failure to exerdse ordi-
nary care after he had been ffiscovered in a
perilous situation. 'The employes in charge
of a car of a street railway company ore nn-
der the duty to ex^ntse ordinary care to dls-
coTtf pedestrians and others n^ng a street,
whether at a ttnet crossing or elsewhere, It
does not appear from the petition that the
plaintiff was at a street crossing, or that he
was at a lOace where the oars usually stopped
to take on passengers; but all this Is imi-
materiaL The plaintiff bad a right to cross
the street or to stand upon the street at any
p<^t on it The street railway company was
bound to know tttat he had this dght, and
was thwefore under the doty to be on die
lookout As was said lit Perry v. Macon
Con. 8t R E. Co., 101 Ga. 410, 29 8. E. 308:
"It Is undoubtedly the duty of the motorman,
in propelling a car through the public stteets.
to notice the presence of other vehides and
pedestrians ahead of his car, and at all times
be watchful to see that the way Is clear ; and
where he has reason 'to opprehend danger,
or should In the exercise of ordinary care be-
come cognizant of danger, he should regulate
the speed of his car so that It may be quick-
ly stopped should occasion require It" See,
also, Booth on Law of Street Railways, |
311 ; Cowart v. Savannah Electric Co., 6 Go.
App. 664, 63 S. B. 804. In Cordray v. Savan-
nah Electr^p Co., 5 Ga. App. 629, 63 S. E. 714,
this court said: "Except as to that portion
of the street used by the tracks of a street
car company, and the additional lateral space
necessary for the passage of its cars, pedes-
trians have rights to the use of streets of a
city which are equal to those of a street car ;
and failure to ring the bell or to give seme
other warning that a car which has stopped
is about to resume its Journey may be negli-
gence as to a pedestrian who is either passing
In the street or has stopped in a position
where It Is probable that he may be injured
unless he Is advised of the approach of the
car."
It bdng aUeged that the plaintiff was in
full view of the defendant's motorman who
negligently foiled to keep on the lookout to
discover the plaintiffs XHresence, or, If his
p^es^ce was discovered, failed to i^ve any
•nr otii»r CUM 8M BBM toplo a&d aaoUoa NUMBBB l^^^/P^f. a Am. Dls. B«r-No. 8wM 4 R«B;r Ind«xM
78S.IB.-60
Digitized by
Google
946
78 80UTBBASTBRN BBPOBTEB
warning of tlie an;»roac3i of tbe car, tbe petl-
tion sofilciently charges negligence to with-
stand a motion to diamlss. By way of de-
fense tbe company la entitled to the benefit
of tbe rule that g^wally "if a pwson be seen
upon tbe trac^b; who la apparently capable of
taking care of blmaelf, the motorman may
aBsnme that he will leave the tra^ before
tbe car reaches him; and this presumption
may be indulged so long as the danger of In-
jDilng him does not become imminent, but
no longer." Ferry t. Macon Oon. St B. B,
Oo., saiwa. But there is nothing In tbe al<
legations of the petition whlcb authorized the
court to apply tbla principle in the defend-
ants &Tor, and bold as a mattw at law that
upon its application tbe plaintiff was not
^titled to recover. Whether the plalntifTs
position was such as to authorize the motor-
man to assume that be could and would leave
his perilous position, and whetber the motors
man was negligent in falling to give bim
warning of the aroroacb of the car, were
anestlona of fact, to be settled by the Jozy.
[2] 2. The fact that one who sued another
for damages resulting from ne^lgence could
by the exerelse of ordinary care hare avoid-
ed the eonseQuences of such negllgooce Is a
matter of defensa As to whetiier it should
be afBrmatlvely pleaded in order to enable
the defendant to take advantage of It, see
Savannah Blectrlc Oo. v. Lackens, 12 Oa.
App; 765, 79 S. B. 53; Atlantic Coast Line
B. G0.T. 0ant7, 12 Ga. App. 411, 77 S. B. 669.
But even though tbe ^ense may be raised
under a general denial of an allegation tbat
the plaintiff was free &om fault, a petition
will not be dismissed on the ground that the
plaintiff could by tbe exercise of ordinary
care have avoided tbe consequmees of tbe
negligence alleged, unless the petition affirm-
atively discloses focte from which such a
conclusion would be required. If a pedes-
trian enters upon a portion (Xf the highway
devoted primarily to vehicles, the environment
may require him to exercise greater care for
his own protection than if he remained on
the sidewalk. William Bensel Construction
Go. T. Homer, 2 Ga. App^ 868, 68 S. B. 489.
But the mere fact tbat be does use a portion
of the highway primarily intended for ve-
hicles does not as a matter of law convict
him of such negligence as would altogether
dtfeat a recovery for damages resulting
fivm tbe negligence of the driver of a vehicle
along the highway. The duty to exercise or-
dinary care to avoid the consequences of
another's negligence does not arise until the
negligence becomes operative, and Is appar-
ent, or the circumstances are such that an
ordinarily pradent person would have reason
to apprehend Its existence. Western & At-
lantic B. Co. v. Ferguson, 113 Ga. 708,
89 S. SI. 306. 64 L. B. A. 802; Savannah
Blectrlc Go. v. Lackens, supra.
Questions of negligence are peculiarly for
the Jury. It Is rare that the court can say
as a matter of law tbat a given state of
facts dunands a finding tbat the persMi wme
guilty of such negllgmce aa would aatbor-
Ize a recovery of damages ^»lnst him, or
of such n^lgence as would dtfeat a recov-
ery of damages on account of n^llgence of
another person. It Is equally difficult for
the court to bold as a matter of law that one
party was gnilty of a greater quantum of
negligence than another where the Injury
results from the concurrent n^ligeuce of
both. In most cases it is for the jury to
compere the negligence of the respective
parties and determine which preponderates.
From the exhaustive and well-prepared brief
of counsel for defendant In error, it Is ap-
Iiarent that tbe trial Judge dismissed tbe
petition mainly upon the ground tbat tbe
plaintiff Qonld by ttie exercise of ordinary
care have avoided the consequences ot tbe
defendant's negligence and that his injury
was attributable to bla failure to oerdae
due care for his own safety. We think this
issue should not have been resolved against
the plaintiff aa a mattN* of law, bat rather
that tbe question should have been submitted
to the Jury, to be determined by them as an
issue of fact Let It be conceded tbat the
plaintiff was negligent In taking the position
near the defwdant company's track along
which a car was likely to move at any mo-
ment In this position ordinary care would
require bim to look out for cars, and goieral-
ly to exercise such diligence as an or^narily
prudent person should exercise under tbe
like circumstancea and in a like dtuaticm.
But this duty did not reUeve the eomimny
of its obligation to exercise ordinary care to
be (m tbe lookout tta the plaintiff, and to
take such precautions as ordinary prudaica
would dictate, to prevmt injury to him.
Bvoi if it be conceded undw the allegation
of the petition that both the plaintiff and
tbe defendant were n^Ugeut In falling to
exercise the duty which the law Imposed
upon them respectively, tbe court could not
say as a matter of law tiiat the plaintiff's
injuries were due solely to bis foUure to ex-
ercise ordinary care rather than to the de-
fendant's ne^igence.
But tbe plaintiff alleges that he was on
tbe lookout; that the car was off adiedule,
and that he had no reason to antltdpate the
defendant's pres«Ke on the trade; that at
the time the motorman was running at a
high and n^llgent rate of speed. He says
that the motorman cduld have seoi bim.
and that his failure to do so was negligence.
It Is true it is alleged that It was raining,
end that the plaintiff could not see the car.
This may likewise be a good reason why the
defendant's motorman could not see the
plaintiff. But, taking the allegations of the
petition all together. It cannot be said that
the plaintiff has alleged facts from which It
must be determined as a matter of law that
the motorman could not see him. This vnis
a question for the jury. If the motorman
ought to have seen the pl^t^^^|^^uld
BISHOP T. OBOBGIA NAT. BANK
947
bare Men talm, and negllgoitly strack lUm
with the street car and Injured Mm, the
phOntiff would be entitled to recover, unless
the Jury should find that fae himself was
lad:hig In dlUsence, and by the exercise of
ordinary eare eonld hare avoided the ctmse-
quences of the dtf endant^s negUgenee after
It became apparent to him, or while he was
in a position where ordinary care roQulred
him to apprtiiend the exlstoioe itf mxeb
negllgenca
Judsmmt revtfsed.
(U Ga. App. SS)
BISHOP et ftl. V. OEORGIA NAT. BANE.
(No. 4.421.)
(Court of Appeals of Georgia. Jaly 8, 1918.)
(BylJalma by the Court.)
1. Evidence (| ^*)— Paboi. BviDEHca or
SUBKTTSHIP.
After giving proper notice to a defendant
sued with him, one who is in reality a surety
only, but who is sued as principal, upon a con-
tract upon the face of which the fact of surety-
ship does not appear, may, upon proper notice
to the defendant sued with him as indorser,
sustain by parol evidence his plea of suretyship,
establishiiur or tending to show the true rela-
tionship of the parties to the contract.
[Ed. Note.— For other cases, see Evidence,
Cent Dig. U 1957-1965; Dec. Dig. } 423.*]
2. Pbihcipal and Subbtt (S 45*)— Subktt-
SniP— ClBOUMSTANTIAL EVIDENCE.
Upon the trial of the issue as to the precise
relationship occupied by the signers of the con-
tract in sodi a case, the truth as to the real
relation of the parties to the contract and to
each other can M disclosed by circumstances as
well as by direct proof. Qenerally the determi-
nation of this Issue would depend wholly upon
such eirenmstancea as the comparatiTe inter-
est of the parties in the aubject-inatter, the as-
certainment of which party derived benefit from
the circumstance, or any other reason which
might originally have iodaced either or both of
the parties at issue to sign the contract There
was DO error in the admission of evidence.
[Ed. Note.— For other cases, see Principal and
Suretr. Cent Dig. 8 22 ; Dee. Dig. i 45.*]
8. TtttAT. (J 295*)— iNBTEUCnONS.
A fragmentary excerpt from the charge of
the court, isolated from its context u)&7 he
amenable to criticism, yet when this fragment is
replaced in its proper setting, and the iastruc-
tion upon the subject to which it is applicable
is viewed as a whole, every semblance of error
therein may be dissolved and disappear.
[Ed. Note.— For other cases, see Trial, Gent
Dig. H 703-717; Dec. Dig. { 29&*]
4. TBiAt. (S 25S*)— lNBTBiTcnoN»— Neobssitt
OF Request.
In the absence of an appropriate request
It Is not error for the trial jadge to omit spe-
cific reference to oartleiilar points or phases of
the evidence confirmatory of the contentions of
either of the parties. Before the judge is requir-
ed to direct the attention of the jury to a mat-
ter of fact which a party may deem to be mate-
rial, thooffa only collaterally Involved, a mlinff
upon its materiality most he invoked.
[Ed. Note.— For other cases, see TrlaL Cent
Dig. ii 027-641; Dec. Dig. i 256.*]
■ Brror from CUy Oonrt of Athens; H. S.
West, Jndfe.
•riw etiMr oases mm asms tople sad ssotlon NVMBBR l^^p^- ^a- ^
Aetlon by tiie Qeorgla National Bank
against W. H. Bishop and another. Judg-
ment for i^lntlff, and Bishop brings error.
Affirmed.
Green & Michael and W. L. Erwin, all of
Athens, for plaintiff In error. Cobb ft Br-
win and T. S. Mell, all of Athens, for de-
fendant In error.
RUSSELL, J. The Geoi^a National Bank
sued Brown aa principal and Bishop as sure-
ty, upon a promissory note for $2,188 end In-
terest and attorney's fees. It appears from
the record that Brown signed the note and
Bishop Indorsed It upon the bank. Neither
of the defendants contested the right of the
plaintiff to recover. The only Issue in the
case was as to the relation of the parties, the
primary and secondary liability of the respec-
,tive defendants to the plaintiff. Brown
pleaded that although be was presumptively
the principal, by reason of the fact that be
was ostensibly the maker of the note, in re-
ality the original obllgadon was Bishop's,
and that he (Brown) signed only as a matter
of accommodation, to enable Bishop to bor-
row the sum of money for which the note
was originally given. Brown supported this
plea by proof. On the other hand, Bishop
testified In the most emphatic manner that
be signed the note simply as sure^ for
Brown. This Issue seems to have been fairly
submitted to the Jury by the trial judge;
and, since a verdict in favor of either of the
parties would have been authorized, we have
DO disposition to disturb the dlscretlw of
the trial Judge, nor have we Jurisdiction to
set aside the verdict, unless the flndli^ was
induced by or dependant upon error In tlu
trlsL
[1 ] 1. As the Judge very correctly instruct-
ed the Jury that Brown was preaumi^vely
the maker of the note and Bishop waa only
an Indorser, the lorm at the note made a
prima fiide case in favor of Bishop, and the
burden of proof was on Brown to show tiiat,
while he appeared to be the maker of the
note, he waa in tact only a surety. Brown's
right to file (he plea upon which be relied is
not disputed, and cannot be questioned, l^-
der the provisions of section 3556 of the
GlvUCode, "If thefactof suretyship doea not
appear on the * * * contract. It may be
proved by parol, ^ther before or after the
Judgmwt (the auditor not being delayed In
his remedy by such collateral issue between
the principal and the surety). If before Judg-
ment the surety shall give notloe to the prin-
cipal oC hla Intention to make such proof
The fact of snretyeddp does not appear on
the face of the note, and Brown gave Biahop
the proper notice and filed a plea properly
raising the t^ue, as required by the ruling
of the Supreme Oourt In Carlton v. White,
99 Qa. 886, 27 B. B. 704, It was then pei^
mis^ble for Brown to sustain hla ^ea by
Dig. K«r-N0fj^ffe^lS@l@gle
948'
18 fiODTBBAfiTBBN BWFOIH'm -
parol evidence. See, In flils connection, Bncfe
7. Bank of State of Georgia, 104 Ga. MO, 30
8. E. 872 ; Whitley v. Hudson, 114 Ga. 860,
40 B. E. 838; Trammell t. Swift & Co., 121
CMl 780, 49 S. EL T89 ; Shank t. Bank, ate^
124 Ga. 509, S2 S. S. 621 ; Camp t. Simmons.
<t2 Ga. 73 ; Canthen v. Bank, etc., 69 Ga. 733 ;
Underwood t. Bass & Heard, 1 Ga. App.
028, 07 S. E. 953.
[2] 2. In the first, aeoond, third, fourth,
fifth, and sixth grounds of the amended mo-
tion for a new trial Bishop complains of the
admission of certain testimony over the ob-
jection that It was Immaterial and wholly
Irrelevant to the Issue, to wit, what was the
true relationship of Brown and Bishop to the
note In the suit? And he Insists tliat the er-
ror was prejudicial because It tended to In-
ject an Impertinent Issue into the case, and
draw attention away from the real Issue.
While It la true, as held in Shank v. Bank,
snpra, that the mere failure of consideration
cannot change the relationship of the several
parties to a note, neverthelras we think that
where there Is no dispute as to the consider-
ation ot the note, the determlnntlon of the
question as to who rec^ved the consideration
(if one of the parties received all of it) might
aid the jury In deciding which was the more
reasonable of two statements directly In con-
flict as to the understanding of the parties at
the time of the execution of the note. Of
course, the real Issue between the parties In
this case was whether the debt evidenced by
the note wari In fact Bishop's debt, and eo
understood to be by all of the parties at
the time the note was given, or whether It
wms Brown's debt with Bishop as surety, as
It isveared to b& In order to ascotaln the
truth in an Issue of this kind, where the
tmtli most be discovered by matters extrln-
sle of tlie contract, any pertinent circum<
fltance whldi may trad to illustrate the rea-
sonableness of the testimony of either ot the
parties or corroborate material facts sought
to be disproved. Is admissible. In such a
case error Is more apt to be committed by too
strict an adherence to the technical rules of
evldeooe than by allowing a reasonable latl-
tnde In the Investigation. Generally, In cases
■of thia kind, the real truth is known mly by
0» parties, of whom la setidng to evade
primary Uabllity and shift it to die other.
The pdnt is rar^ susoepttble of direct proot
The Issue most be determined by drenniBtaa-
tiol eTid»ca It would be ertm to ezclnde
41117- drcnmstance whlcb conld throw U^t
on the transactlen, or In a case of direct
•conflict, such as this, would enable tile Jnry
to decide wUdi party to believe.
tTpon an Issue such as that now b^re ns,
tbe comparatiTe Interest of the parties In the
eobject-mattec, whldi party derived benefit
from tbe transaction, or any faet iiiAA
womd Ulnstimte -what originally Indnced ^
ther or both of tbe parties to sign tbe omi'
itrad^ is a mattar pertlsoit to tiie Investlga-
tton. Tbe fttct that Bishop (naranteed- the'
automobile track involved in tUs case mlgtit
be immaterial If the Jury took a certain fimw
of tbe evidence, and yet the fact that BUhop
had agreed to guarantee it 0f he did guaran-
tee It), or else Biown was not to buy It, tends
strongly to corroborate Brown's statemeot
that he had, with Bishop's acquleeomc^ de-
clined to buy it. and that be signed the note
as maker at the suggestion of the bank and
of Bishop, with the express agreement that
Bishop, and not himself, was to pay the
note. It is undisputed that Bishop received
the money which was the consideration ot the
note, and for that reason the conslderatlou.
In the sense In which that term Is ordinarily
used, is not Involved. The purpose of the tes-
timony to which objection was made was to
show why the note was given, to whom the
benefit accrued, that Brown had no Interest in
the proceeds of the note, and that the loan
was made entirely for the benefit of Blsbop.
In a certain sense the consideration was not
involved; that is to say, as between the
plaintiff and the defendants tbere was no
issue as to the consideration, but as between
the two defendants In the case consideration
was Involved. See Underwood v. Bass, supra.
There was no error In overruling the obje(s
tions to tbe evidence.
[3] 3. An examination of the record plain-
ly shows that there Is no merit In the excep-
tion that the court expressed an opinion that
the car should make a certain demonstration.
In charging the Jury that "there has been
certain evidence allowed to go to you In re-
gard to tbe guaranty of this car In question,
as to certain demonstration this car should
nave made." The words "as to certain dem-
onstration this car should have made" were
qualified by the words "there has been cer-
tain evidence allowed to go to you." The
court did not attempt to declare whether this
evidence was true or untru& The context
shows the absence of anything which can he
construed as leaning toward an intimation.
A fragmentary excerpt from a charge, Isolat-
ed from its context, may be amenable to
crlttdBm; bat, when this fragment Is replaC'
ed la Its proper setting, and the Instractlon
upon the subject to which it is applicable
is viewed as a whole, ev^ semblance of er-
ror tbereln may be dlasolTed and dlsannar.
[4] 4. In tbe motiMt for a new trial it Is
Insisted that tiie court wred In failing to
charge tbe Jury tiiat they ml^t consider
that, by constantly renewlns tbe original note
and signing die renewals as principal. Brown
had waived bis ri^ht to dalm that he wu
only a surety on the not& In the absmce of
an aivropriate reqaeet; it is not error fior
the trial Judge to omit Bpedfle r^eiuce to
particular points or phases of the vTiSaace,
confirmatory of tbe contentions of dther of
the partlea.-- Befbre t3ie Jndge la reqnlied to
direct the attention of the Jury to a nu^tw
of fac^ whl^ though loly/'^nllatittr^^
Digitized by VjOOy
AUGUSTA BT. « XUEOtBIO o6. BBAaiiBS
§49
volved, a partr may ' deem to be material, a
rallng by the court upon Its materiality mast
be first Invoked.
Judsment afl9rmed>
(U Gil. App. 849)
AUGUSTA RT. ft BLBOTBIO CO. t. BEA-
GLES. (No. 4,67&}
(Court of ApxieaU of Geozgia. June 26. 1813.)
ArVKAL AND EBBOS (H 999, 1000*)— BkJKlTBIO-
xrr (i U*H-IiiJinaBa nou Bkboisio Cna-
BXHT— PaasnHPnoNs— BuKDiN or Pboof—
Bks Ipsa Loquitub.
The cODtrolling gueetions in this case were
perplexing problemg of fact ; the law applicable
to ttiMe queBtiona was fully, clearly, and cor-
rect!; presented in tbe charge of the court : and
this court cannot say that the solution by the
jury was not supported by evidence or that the
trial judge committed any material error in tbe
admission of testimony. The record showv no
reason for another triaL
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. M 1068. 10«», 3912-3921,
3923, 3924, 41jt8-4157, 4166: Dec. Dig. H 999.
1050;* Electricity, Cent. Die. | U; Dec Dig.
i 1».*]
I^r from City Court of Bletamond Goan-
ty; Wm. F. Ere, Jodge.
Action by O. W. Beaglee against tbib An-
gusta Railway ft ESectrtc Company. Judg-
m«it for plaintUT, and defendant brings er-
ror. Affirmed.
Tbe Augusta Railway ft Electric Company,
plaintiff in error, la a Georgia corporation
engaged in tbe manufacture of electricity,
whicb It supplies for bire to tbe Inbabitanta
and manufacturing plants of Augusta, In tbe
state of Georgia, and Nortb Augusta, in
South Carolina. The Induatrlal Lumber
Company Is a corporation located In Nortb
Augusta, S. C, and tbe Augusta fiallway &
Electric Company fnrnisbea to it electric
power both for llghtlDg and for motor puz^
poses. The electric company carries 2,300
TOlts on its primary wlrra, which voltage Is
cut down to 220 volts for motor power In
the lumber company's idant and 110 volts
for lights in tbe plant The plaintiff in tbe
court below was employed by the lumber
company in Its plant as a machinist and
saw flier, and while engaged In his didies as
such on December 1010, was called by tiie
general manager to fix a light in the plant,
which was out of order. In compliance with
this order, the plaintiff went to reiwir the
defective light and, while in the act of tam-
ing It. on, received a severe ahoA from an
electric current, which caused Injartes for
which he eongbt to. recover damages. His
petition alleged that the electric company was
negligent in the following particulars : First;
that It pennitted a high and ^aageroua volt>
age to be transmitted to the secondary wtree
In said plant, roiderlns It dangerous f or hisi
to handle said lights, and that be was mat
aware of tbe existence of tlils dangerous
condition ; ' second, that It permitted its
transforms, connecting Its primary wire
with the secondary wire entering the plant,
to become and remain oat of repair, without
snffldeni Insulation and in a' bnmt-oat or
punctured condition, bo that the electricity
escaped therefrom and became grounded and
liable to be communicated to persona using
the electric light lamps on the secondary
wire'; third; that the defendant left said
primary and secondary wires at the traae-
former uninsulated and hanging near enough
together to come in contact outside tbe
transformer, and thus to transmit the full
current to the secondary wire, upon which
was attached said electric lamp, so that con-
nection with tbe primary wire caused tbe
circuit to be complete, and tbe secondary
wire to become charged with the full cur-
rent of the primary wire, a voltage of more
than 1,000 volts, or a voltage greatly In ex-
cess of 110 volts, the proper amount for said
secondary wire.
Tbe defendant relied upon the following de-
fense: (1) That the injury complained of
was the result of the plaintiff's own negli-
gence ; (2) that tbe piaintUT, by tbe exercise
of ordinary care and diligence, could have
avoided tb<e couseQuences of tbe alleged neg-
ligence; (3) that, If otherwise, tbe alleged
Injury was tbe result of an accident pure and
simple, for which tbe defendant is In no wise
responsible,; (4)' that the defendant and its
servants at the time and place of tbe alleg-
ed injury were In the exercise of all ordinary
care and diligence; (5) that the plaintiff at
tbe time and place of the alleged Injury was
himself guilty of contributory negligence,
which, combining and concurring with the
alleged uegllgrace of the defendant, oontiibiit-
ed to the Injury as a proximate cause tbere-
otf. and without It the injury would not have
occurred, in that tbe plaintiff, being employed
by the lumber company to look after and
keep In rcipair the electric lighting wlrcB and
apidlances in said boUdlnc negligently fail-
ed to do so and n^igently undertook to take
hold of and handle with hla naked band on
electric lighting wire and aiq^lances which
he knew-to be, or In the esendse ot ordinary
care should have known to he, la a defMtlve
and dangerous condition and carrying a dan-
gerous coRut and voltage bf ^ electzkdtr,
liable to shock and serloudy- InJore uaj one
handling tiie same, and without ttie excr-
else of ordinary care to protect ii«w»iT»*f
asalnat the aama Tlu Jury found a ver-
dict for |S,000 in favor of tbe plaintiff, And
d^endanta moUen Air a oew ti9al was orer^
ruled, and it brlnga- error. The 'motion 'for
a new trial was based upou the nsnal general
{prounds and apedal asstgnmentsiof etror di-
rected to certain alleged urors in sioetpts
from tike charge and in tbe aidmtesiea of tea-
timffpy.-
•FereUMT
•M seme tople and SMtlon NUMBRH ia^;^ pH. * Am. Dla. Key-^to. 9f^3@>dglC
950
78 SOUTHBASTVBN BEPOBTBB
(Qa.
Boyktn Wright and Gea T. Jackson, both
of Anfasta, tea plaintiff ta error. Isaac S.
Pedilu,. Jr., and T. F. Harrison, both of Ao-
gnsta, for defendant In error.
HILL, O. J. (after stating the &ctB as
above). 1. As to the general grounds. It may
be stated that the evidence Is in some conflict
as to the exact cause ot the plaintiff's injuries.
Unqnestlonably he received a severe sboclE
from an electric current when be attempted
to turn on an electric light in the lumber
company's plant But the electric company
insists that the mere fact that he did receive
this shock is not snfflclent to raise an in-
ference ot negligence against it, under the
doctrine of res ipsa loquitur, in any of the
ways alleged in the petition ; and it Is Insisted
that his injuries could well have resulted
from some defect of the lamp socket or In the
interior wiring for which the electric com-
pany was in no way responsible, or that tb^
ml^t have resulted from the plaintiff's own
negligence, because it was shown by tes-
timony of the highest expert Character, and
by an actnal demonstration In the courtroom
on tlie trial of the cas^; that be could have re-
cdved the Injuries by grasping a defective
light socket through which no more than 110
volts were passing; tliat the evidence shows
that the plaintiff stood upon the damp earth
or brick floor when he took hold of the socket
ot the light for the purpose of turning the
Ul^t on; and that, standing on such damp
eartb or brick floor, even a current of 110
volts would have b^n sufficient to give bim
the shock he received. There was evidence
that the light socket was defective, and that
by reascm of this defect tar which the lum-
ber company and not the electric company
was responsibly the cnrroit ot electricity
passed ont into the plalntifC There was evi-
dence also which toided to support the theory
of the petition on the question of n^^gence.
There was positive evidence that the primary
and secondary wires had been permitted to
come In contact with each other outside tjl the
Idant or the transformer, and by this contact
title full current carried by the i«lmary wires
bad been transmitted to the secondary wires
and on Into the plant It was also shown by
the evidfflce for Qie plaintiff that it would
have required from 400 to 1,000 volts of elec-
trical current to produce the effect on the
plaintiff wl)idi was caused by the shock he
received, niese tJieories of the evidence pre-
sented pwplexlng proUens, which were for
the exdnsive solntton of the. Jury, and this
court cannot legally say that the soluticm
which a Jury lias made of a [woblem thus
presukted is Inconect where it is supported
any evidence or by reasonable deductions
from the eridenca
Tbtn were only two ways so far as ttie
evidoice discloses, by which the plaintiff
could have been Injured by the shock from
the electric current He received it by taking
hold of a detMtive It^t socket Inside the
building tbrongh whicfa no more Uiaii 110
volts of electricity were passing; and which
was rendered dangerous because he was at
that time standing on the damp earth or
brick floor; or by xeasui of a contact ot tbe
primary wires with the secondary wires,
which transmitted into the building the blgti
voltage from tbe primary wires, he reortved
this high voltage while turning on this light.
Thwe was evidence in support of botb theo-
ries, and it was for Vbe Jury to say wbSeb the-
ory waa the tmth. It has bem held by
authority that, where the plaintiff shows that
he has received a shock £rom a hlgli and dan-
gerous voltage; ttie law raises a inwm^tion
ot iiegUgane against tbe dectrlc company
furnishing the electricity, and ttie bnrd^ la
th» upon the electric company to negative
the preaumptton. Brown v. Boison Elec. Co.,
90 Md. 400. 45 AtL 162, 46 U B. A. 745. 78 Am.
St Bep, 4^ and cases cited. It cannot be said
that the company In Um presoit Instance
carried this burden snccessfully where it <mly
presented a theory as to what may have
caused the shock and the Injuries to the plain-
tiff. It should have gime further and shown
that this was the only way in which the In-
juries conld have beea received, and shonld
have fully rebutted the evidence in behalf of
the plaintiff, whldi tukded to ^ove the alle-
gations of negligence agidnst tbe company,
and that this negligence caused tbe shock and
its consequent injuries. The learned trial
Judge instructed the Jury very favorably on
behalf of the defendant company. He
charged that tiie defendant would not be
liable for any Injury that was rec^ved from
defective appliances or wires inside of tbe
plant, but that the electric company was
only responsible for the condition of the wires
outside of the lumber idant And he instruct-
ed the Jury that this cause of action arose
In Sonth Carolina, where, under the law, the
plaintiff would have no right to recover If be
was guilty of any contributory negligence
however slight
Another contention ot the plaintiff in error
which is ni^ed with a great deal of earnest-
ness 1b that the evidence shows that the
plaintiff himself was an electrical engineer;
that his duty was, among other things, to
look after the Interior wiring and fix any
wires that might be out of shape, and that,
in pursuance of this very duty and for this
very reason, he was sent to the light which
was reported out of order; that he occupied,
r^Uvely to the lights and interior wiring,
the same position as trouble finder of an
electric company, and that as such he as-
sumed the risks of the trouble he was sent
to find and remedy; that in endeavoring
to fix the light he acted with full knowledge
that somethli^ was wrong; that he took
absolutely no precaution for his own safety,
and he did not cut off the current but negli-
gently grasped the lamp ao<Aet in his naked
hands while standing on a damp floor. The
evidwce did not show that the plaintiff was
Digitized byN^\70VI\^
951
an expert electrldan. Be was called npon
oocaalonally to fix tbe wires in a medianlcal
way, but, where there was any electrical or
dangerous work to do, a more expert elec-
trician was called upon to do It In other
words, the evidence was not of snch charac-
ter as would show that the plaintiff was the
expert Inspector whose dnty It was to find
out defects In the electrical appliances of
his master and remedy snch defects. Bat
these were questions for tbe jury. It Is
deemed unnecessary to discuss further the
general grounds of the motion. An examina-
tion of tbe very able and exhaustive charge
of tbe trial judge shows that all the con-
trationa of the defendant were fully and
clearly given to the jury in a manner favor-
able to these contentions. All of these con-
tentions were issuable under the facts, and,
having been fully and favorably given to the
jury, their solution by the jury must be condd-
ered as conclusive. This brli^ us to tbe con-
sideration of the special grounds of error
assigned In tbe motion for a new trial.
The sixth and seventh grounds of the
amended motion for a new trial except to
the admission of testimony, over the objec-
tion of defendant, that the lightning arrester
had fallen from the pole In the vicinity of the
lumber company's plant, where the injury
is allied to have occurred, and that the
wire that goes In the top of the arrester was
out and dangling, after the arrester Itself
had fallen to the ground. The objection
to tliis evidence was that the petition con-
tained no allegation of negligence in having
a defectlTe lightning arrests. The judge
instructed the jury that there could be no re-
covery for damages resulting from a defec-
tive lightning arrester and stated that this
testimony was admitted solely for the pur-
pose ot showing (if it did show) how the
primary and secondary wires came in con-
tact. This condition of the wires in con-
nection with the lightning arrester may have
been considered by the jury as the cause
fOT the contact of the primary with the sec-
ondary wires, thns permitting the trans-
mission of tbe high voltage from the primary
to tbe secondary wires in tbe plant of tbe
lumber company and causing the shock when
the plalntier turned the fixture and received
this high voltage of electricity. We think
this condition of the wires outside the plant
was clearly admissible for the purpose of
showing at least all the circumstances con-
stituting what might be called the res gests
of the transaction, although this condition
might not have been fully covered by the al-
legations of the petition. Palmer Brick Co.
T. Chenall, U9 Ga. 837, 47 S. B. 329. But
this same teatlmony was admitted without
objection by the defendant when it was
defendant*8 objection, the error was cured
by the Introduction of the eubseguent testi-
mony without objection. Certainly it would
not constitute reversible error. Becker t.
Shaw, 120 Oa. 1003, 48 S. EL 408. But, as
we before stated, this evidence. It seems to
us, was clearly admissible for the purpose
of showing how the primary and secondary
wires came together and as illustrative of the
means by which the excessive current was
transmitted from the piimary to tbe sec-
ondary wires.
The other grounds of the motion for a
new trial consist of exceptions to excerpts
from tbe charge of the court We have ex-
amined the excerpts in connection with the
general charge and we fail to find any ma-
terial error. Indeed, we are impressed with
tbe idea that the charge as a whole was a
very fair and able presentation of all the is-
sues In the case and of the law applicable
thereto, and that the defendant has had a fair
trial, and no reason is shown why the ver-
dict in behalf of the plalnttfl should be dis-
turbed by this court
Judgmoit affirmed.
(» 8. c. 2R>
Ho;iN T. CONWAY, a ft w. B. ca
{Supreme Oonrt of South Carolina. July 10,
1918.)
Baxzooaos (I 400*)— INJUBT TO PxBeoir on
TbAOK— NsOZJOKlCOB-^imiOIBlTOT OF BVI-
DBNCB.
In an action for injariea to plaintiff while
walking along e railroad tx&A constantly used
by tbe general public, by being struck by a
train running backwards, evidence held suffi-
cient to go to the Jurv on the issues of defend-
ant's negugence and pjatetUTs oontrlbntory neg-
ligence.
{E^. Note.— For other cssea, see Bollroada,
Cent Dig. SI 1365-1381; Dec Dig. | 40a*]
Watts, J., dissenting.
Appeal from Common Pleaa drcnit Court
of Borry County; 6. W. Bagsdale, Special
Judge.
Actions for damages by N. B. Horn against
the Conway, Coast ft Western Ballroad Com-
pany. From a Judgment In £aTor of plaintiff,
defendant appeals. Affirmed.
C P. Quattlebaum and L. B. Singleton,
both of Conway, and F. L. Wlllcox, of Flor-
ence^ for appellant H. H. Woodward, of
Conway, for respondent ■
GARY, a J. This is an action for dam-
ages, alleged to have been sustained by the
plaintiff through the wrongful acts of the de-
fendant The allegations of the complaint
material to the questions involved, are as
follows: "(1) That for a distance of about
one mile from its depot at Conway, towards
brought out on a cross-examination of anoth- j Myrtle Beach, the railroad of the defendant
er witness introduced by the plaintiff, and i runs parallel with and near to the Wacca-
therefor^ even if there was error in admit- 1 maw river, and very close to large factories
ting such testimony the first time over the ' and lumber plants, employing a large uuml)er
•ror etlMr CMas iMsaiM t«pIo sad Motion NVHBBR la Dee. Dig. a Am. Dig. Ker-Nd^^MMiA^EkpMdid^lC
968
SOtrpHE ASTERN BBPQ^IIB ^
•( lunda^ ftQd havlw tenanto' booBes aUmg
and tlmoBfc Immediately adjotslns the defend-
ant's aald tnuik and rlgbt of way; tbiit a
larse and femnnentlTe tr^ht bndnaBS is
tnmaacted by defo^ant with and by means
of hM factoT&ea and plants ; tbat Impassable
swasnps and creeks are close to tbis portion
of defendant's track on both slde^ and espe>
dally on the side away from the said rivw,
and the said trade and rUcht ot way of tiu
defendant Is tte only practleable and oouTOt*
lent way in which pedestrians may reach
said fiictorlea and plants and the bouses
along said track, or to pass between the said
town of Con^ray and a sectlim of the county
lylnc between tbat p<dnt and Uyrtle Beach;
that for a long namber of years past the em-
ployes €t the said factories and jdanta, and
the pabUc goierally, have beoi ndng daily
the portltHi of delttidanM track and ri^t <^
way abore rellerred to, f w tbe purpose of go-
ing to and returning timn thdr work, or
buslaeSB, at the said plants and fsctories,
and in pasdng through, to, and from otbw
points In said county, all of whidi baa twen,
not only with the foil knowledge of the de-
fendant, its agents, serrants, and employes,
but with Its and their encouragement, con-
sent, and invitation, and acquiescence; tbat
this portion of defendant's trade and right of
Way passes through a very popnlons section,
where people are constantly passing, and were
passing at the dates Imdnafter mentioned,
and tor a long number of years beftore, and
erer since said dat^ the defendant allowing
the pdbllc to use a footway on eadi side of
its track throughout the portion of Its track
and right of way above mentioned, with Its
full knowledge, consent, and acqnlescence,
and without any warning, protest, or notice
of any kind on Its part (2) Th&t some noise
is produced at all times along the said way,
by means of the machinery and operations in
said factories and plants, sufficient to con-
fuse pedestrians aa to tbe ordinary noise of
an approaching train, anless tbe whistle is
blown or the bell Is rung to give warning of
the approach of defendant's train, which fact
was well known to the defendant, Its serv-
ants, agents, and employes, but was not so
well known to the plaintiff, at tbe time of
his injury hereinafter stated. (3) That on tbe
ear^ morning of the 13th day of July, A. D.
1911, while the plaintiff was passing along
tbe defendant's track and right of way, near
the said factories and plants, on his way from
Conway to one of them, the defendant will-
fully, recklessly, wantonly, and in a grossly
negligent manner, and without regard to the
rights of humanity, without blowing the
whistle or ringing tbe bell, and without giving
any notice or warning of its approach what-
ever, in open daylight, in plain view of plain-
tiff for a half mile or more, without keep-
ing any lookout, ran a train of flat cars, at-
tached to a locomotlT^ backwards up behind
the plalntll^ at a great nite itf cpeed, and
bit tbe ^atntlfl with said cars a severe and
terrible blow in the back and legs, whereby
he was thrown from the path, and sustalzied
very painful, agonizing, and permanent in-
juries." The defendant denied all the allega-
tions of the complain^ ezo^ its corporate
existence, and set up the defense of contribu-
tory n^^Ogence on the part of the plalntlg.
At the condusion of all tbe testimony, the de-
fendantTs attonuvp made a motion tar the
dlrectlou of a TerdOct, on 12ie ground tbat
there was no testimony tending to show neg-
ligence on the part of the defendant and on
the furtbor ground that the plaintiff was
guilty of contributory negligence. His honor,
the presiding Judge, granted tbe motion aa to
the cause of action for punitive damages, bat
refused It as to the cause ot acttim tat actual
damages. Tbe Jury rendered a verdict In
favor of the plaintiff for fTOO, and the de-
fendant ai^ealed.
The excevtions raise practically but two
questions^ to wit: Was tliers any testimony
tending to sustain tbe allegations of negli-
gence? And did the testimony show that tbe
plaiimff mui guilty of contributoiy neSU-
genceT
N. BL Horn, tbe plaintiff, testified as fol-
lows:
"Q. When did that acddent occur that la
mentlimed la the eonvlaint? A. July 13,
1911. Q. DescEibe bow it happ^ied. A. I
was waUdng on the sidewalk on the side of
the railroad, wbldi Is a wery plain path cm
eadi side of the track, and was going along
there — Q. What caused tbe plain pathT A.
Whwe people walked frequoitly. Q. State
how it happened to you? A. I was going
along and right against the mill— Q. Was
It pretty near oKxMite Oils plant? A. Yes,
sir; pretty near opposite^ and I heard some-
body hollering, and I tur&ed my head and saw
the train, and as I turned my head and saw
it. It struck me. I didn't have time to st^
or move any way. Q. How long before they
hollered did you turn? A. I turned as quick
as I could, and It stmdE me on my rlgbt hip.
Q. Now, was that engine exhausting; did
you hear It exhaust? A. No, sir; 1 think It
was mnnlng very easily. Q. Why? A. I
think it was a little downgrade. Q. Did you
hear It Mow? A. No, sir; it didn't blow; If
it had blown I would have heard it Q. Did
It ring the bell? A. No. sir. Q. Was tbat
plant In operation? A. Tes, sir. Q. How
much noise did that make? A. It would
make right smart noise, but not enough to
drown tbe noise of a wlilstle or bell close to
you. Q. Now. Mr. Horn, explain what kind
of use the public made, if any, of that tirack
there. How long have yon known that place?
A. I have known It about four years. I have
known it longer than that, but I have not
been passing along on It. to know the pnbllc
used it, only something like three or four
years. Q. State how frequetatly the public
oSed it A. Z worked at theXipnway Ifimber
Digitized by LjOOglC
&0)
K8
CWniMttiy, I reAoD Bom^ng Uke time yean
ago, or four, and boarded over ttiere at tbe
old Kanawha plant Q. la titatanoOker plant
on the railroad? A. Tee, air; It comes to
the railroad. Q. How fiv from this pUtnt
where yon were injnied? A. It to aomethlni
Uke a lialf <Hr tbree-qoarten at a ndle. I
boarded with Mr. Oralnger, and In passing I
wonld see lota of people I didn't know ; every
day in pandDg I wonld see people trarding
the road. Q. Did they travtii it erery day?
A. Yes, sir; some days X wonld see as hlg^
as 25 walking along the road, and other days
I would see them passing. Q. Did the bands
of these plants use It? A. Tes; they used
It freqnently. Q. Did tbey use it every day?
A. Tes ; the hands that worked over here at
the Wood Prodnct Mill used it every day,
twice a day, going and comtaig. Q. Was
there any notice or protest made aa to the
use of that part of the track? A. No,
only at the bridge. Q. There was a notice
at the bridge? A. Yes, sir; this: This
bridge Is no thoroughfare. Keep off bridge.*
Q. That is the bridge at Conway? A. Yea,
sir. Q. Conld anybody see yon from Con-
way, if yon were standing on the bridge at
Conway, and loi^dng towards tbe place where
you were injured ; conld they see yon on tbe
track? A. Yes, sir. Q. Did the train come
op behind you? A. Yes, sir. Q. What other
ways are there to go or come from that di-
rection, from those plants? Do people live
in the section of the connty over there? A.
Yee, sir ; some live over there, and some live
at the old Kanawha plant, and some at the
Red HilL Q. Do the farmers over there use
that track in passing into town? A. Yes;
those at Red Hill do. Q. Frequently? A.
Yes, sir. Q. What other way could they go?
A. No other except by going around by the fer-
ry above there. Q. A long way ont of the way 7
A. Tea, slr^ I suppose three or four miles
ont of the way. Q. How about a boat on the
liver? A. They conld come down the river
on a boat. Q. Did the railroad do any busi-
ness with these plants? A. Tes, sir; thej
haul lightwood for tfaMo. Q. Was there any
obetmction ic that patlii bow did yon bap-
pen to Bte|> npon the tratic? A. There was
aome Iron lying down here. Q. Bxplaln how
that came about A. There was some Iron
lying down there^ and to fce^ trom walk-
ing on tbe Iron, t stuped npni tbe ties to
get by. Tbe train bad changed aebadnle ; the
last acoonnt I bad of it it bad been going
over there in tbe afternoon, and I was not ex-
pecting tbe train. Q. You say there was a
pile of railroad Iron? A. Yea; sir; where
they bad torn np the old track and put heavy
Iron down. Q. Conld yon pass on tbe off side
of It? A. Ya ; there was nothing orer there.
Q. Could yon have passed on the off side of
the iron? A. Next to the ditch? Q. Yes.
A. Not very well ; It was grown up In bush-
es, and I wonld have had to go down In tbe
edge of Oe ditdt Q. Can Ton bear weUf
M Yes, Btr; Q. Ton are hot baird at bearing'?
A.- Vo,' atr."
W. H. Crisp, a witness for the plabtflff,
tbns testified :
"Q. Were yon working at a platt w4iere
yon conld see to Conway? A. Yee, air.
Q. Wbat did yon see? A. I Saw him
step up on the end 6f the ties, about the
time the engine came to him. Q. Did It strike
him about the time he stepped up there?
A. Yes, sir. Q. IMd that accident happen
Immediately opposite that plant? A. About
12 or 16 feet south of tbe 'hog.' Q. What did
he st^ upon the track for? A I don't know.
Q. Was there anything to show what he
did it for? A I didn't see it He had plen-
ty of room between the ties and the railroad ;
about 18 Inches, If not more than that, be-
tween the end of the ties and the riiilroad
Iron, where they had taken It ont and thrown
It to one side. Q. Just as the engtoe got op>
posite the Chemical Works, Mr. Horn, who
np to that time had been walking on the path
on the sonth side, stepped np on the track?
A. Yes, sir. Q. How far did that engine
stop from Mr. Horn? A Not over an eagine
length. Q. Was the 'hog' running on this
occasion? A. Yes, air. Q. Isn't tt a fact
that the 'hog* makes cooslderable noise when
it is In operation? A. Yes, sir."
P. H. Sasser, the conductor on tbe train
when the plaintiff was Injured, tostlfled In
behalf of the defendant, as follows :
"Q. Where were you on that occasion?
A. I was sitting In the cab of the engine,
on the fireman's seat <J. How was that en-
gine equipped as to a pilot? A. It bad a
pilot on both ends, one on the tender, and one
at the front Q. How far could your engine
be seen from the point that Mr. Horn was
first observed by you? A. Three^uarters of
a mile. Q. What was the first you saw of
Mr. Horn that morning? A. I raw blm walk-
ing by the side of tbe track. Q. Bow fiir
was the Kanawha plant, beyond the point
where Mr. Horn was struck? A. Probably •
half a mile or three-quarters. Q. Abont how
test was this train mnnlng? A. Eight or
ten miles an hour, or It might not have been
that fast After gettli^ the signal, we stopped
probably In the l^igth of tbe engine^ or a
little fnrttier Oian tbat Q. Were than any
cars in front of the engine as it was then
running? A. No, sir ; nodiing bnt ■ an en-
gine; we were handling a light engine. Q.
What was tbe first notice yon had that Mr.
Horn bad got up on tbe track? A. I saw the
signal of' tbe flrauaa and flagman; tbey
threw tbelr bands np and hollered, 'Stop.'
Q. How far did it take to stop the engine?
A. I don't think tbe .engine went over twice
Its length. Q. Were tiiere any obstmctlona
there, such aa would, in your opinion, lead a
reasonable man to suppose, that one walk-
ing along there was going to cross without
Iapy warning? A. No, dr; Jnst a string of
The tra^ had been relald and the
Digitized by Google
904
18 SODTHBASTUIN RBFOBTBB
mis were stnldied ovt afi along there. Q.
Ii It or not a taet that this pathway la used
for tike oonTenloioe ct the people who
happen to lire in that eecttoi, or have
work over there, and not by the public
at large? A. I goeaa to; some of the poblle
people may use It."
Croafrexamlnatlon :
"Q. Didn't you treqnently see people on
the tia^ where Mr, Horn was hnrtT A.
Yes; and always looking out for them. Q.
Did yon ring the bell or let him know yon
were coming with an engine? A. There was
nothing to rl^g the bell for; there was no
obatmction on the track. Q. Ton remember
the iron at the track where he was Injured;
yon knew it was there? A. Tea; I knew It
was there. Q. Ton didn't blow Uie whistle?
A. If he had been on the track, I wonld hare
blown the whistle. Q. Ton saw him walking
on the side of the track? A. Tes air."
Redirect examination:
*'Q. Was it only at this point where Mr.
Horn stepped np on the track that the iron
was lying? A. No, tAr ; the iron was all the
way on the ground there.
"The Court : How far were you from him
when yon first saw him? A. I saw him 200
or 800 yards of us, and then I saw him about
60 yards, and when I saw him he was about
4 feet clear from the track."
Henry Baldwin, the engineer, testlfled as
fallows :
"Q. Were yon running at any more than
your customary speed? A. We were running
slower than anywhere else. Q. Were you
running as you usually do on that road? A.
Yes, sir ; always take precautions along ther&
Q. Was there anything to obstruct Mr. Horn
from being seen? A. Nothing in the world.
Q. Had you seen him at all? A. I had seen
people down the road, as Is an everyday
occurence about that plant They were
walking along by the tra(ft, and sometimes
people walk ahead of yon on the road, and
they turn out before you get to them. I saw
people in the road before I left Ckinway. Q.
How fiir were yon from where Mr. Horn was
struck before you stopped? A. When I
■topped the engine and Jumped off, the back
pilot of the eni^ne was just a little past him.
Frcon the time the word waa given me, I
ttilnk I stopped the en^ne In its length and a
half. I know I skidded the drivers."
George Clark, the fliu;man, tbns testified :
"Q. What was the first yon saw of Mr.
Homt A. On the atte of the track, walking
along. Q. Was Uiere anything nnusnal, to
see people walking altmg there? A. No, air.
Q. When did yon first see that Mr. Horn was
gidiig into a place of danger? A. Just
about S or 10 feet before we got to him he
■t^med right up on the tntik. Q. What did
joa do when he did that? A. I threw np
my hand and signed the engineer down and
hollered."
The facts in Sanders v. Bailway, 90 & a
881, 73 S. B. 866, were very iAmUar to ttion
in the present caae^ In that case than waa
testimony to the effect that the plalntUT waa
injured while walking in a well-beaten path
alongdde of defendant's track, at a i^ace
where the public had hem accustomed
to walk for many years, without objectioii
on the part of the railway company; tliat the
train which struck blm was running back-
wards at a rate from 12 to 20 miles an
hour, through a populous section of the city
of Cbarleaton, where men, women, and cbil-
dren were constantly passing and repassing
upon defendant's right of way, and upon and
near its tracks ; that the train ran upon him
from behind, without giving any signal or
warning of its approa<A. In that case the
court said : "We think this testimony made
out a prima fade case for plaintiff. From
it the Jury might reasonably have inferred
that the use of Its right of way by the public
was known to and acquiesced in by the de-
fendant, and therefore that plaintiff was a
licensee and entitled to ordinary care on the
part of defendant to prevent injury to him ;
and, also, from the frequency of the use by
the general public, that defendant should
have anticipated the presence of persons on
or near its track at that place, and should
have ezerdsed due care to prevent injury to
them. • • * We think his honor erred,
also, in holding that plaintiff was guilty of
negligence in walking too close to the track,
where there was room enough for him to
walk at a safe distance from it The testi-
mony was that he was walking in a well-de-
fined path. From this the jury might have
inferred that the path had been used by many
[>eople before, and that in walking where
many others had gone before plaintiff was
exercising ordinary care. In Lamb's Case [86
S. a log, 67 S. E. 960, 138 Am. St Rep. 1030],
the court said : 'In the cases dted (that is,
the Jones Case [61 S. C. 6C6, 39 S. E. 7581
and the cases following it), it was entirely
consistent with reason to say that it was not
negligence per se for a person to walk on the
right of way expecting to step off on the ap-
proach of a train.' '* Even a cursory glance
at the forgoing testimony will show clearly
that the present Is a much stronger case than
that of Sanders v. Bailway. 90 S. C. S31, 73
S. B. 366.
I do not deem It necessary to cite other
authorities to show that there was negligeaoe
on the part of the defendant, and that the is-
sue as to contributory n^Eligenoe waa properly
submitted to the jury.
Judgment afitemed.
HTDBIOK and FBASBB, JJ., concur.
WAITS, J. (dissenting. TtiUs was an ac-
tilou for damages alleged to have resulted
from personal injuries sustained by plaintiff
respondent by reason of being struck by a
train of defendant appellantj^mmux^(tLj&.
8.0
HOBN OOKWAT, d * W. B. 00.
066
ly IS, 1011. Tb9 case wai tried before Spe-
cial Judge O. W. Bagsdale and a jury at Oc-
tober twD^ 1912; and reBolted In a Terdict
for |700 In fiiTor of plalntUt; after enfarr ot
jndt^nent an>ellant a^ieala, and aaks rerer-
sal by dx exceptions.
Tbe flivt czcqrtlon complalna of error In
not directing a verdict for the defendant
on Om ground tbat all of tbe testlniDny tends
to Bbow that the injuries to the plaintiff *e-
ralted, not from any negjlgenoe opon the
part of tbe railroad company, tmt by reason
of i^lnturs own negllgenco; ' tbat accord-
ing to all'of tbe testimony. Including tiiat of
the plaintlfl, tfalntfff stepped on tbe railroad
tradt immediately In front of a moving train,
wlthopt looking or listing, or taking any
otbo: precaution to ascertain whetb» or not
the train was ai^voacbing, being at tbat
time surrounded by noise wbtdi prevented
his bearing tbe approach of tbe train, and
for these reasons bis Injuries were soUly due
to his own negligence.
^e second excqitlon complains of error
in not directing a verdict on fte ground that;
even If it is conceded Oiat the defendant was
n^igent, the proof of eontrilratory n^U-
gence on tbe part of the plaintlfl was so
complete tbat only one conclnslini could be
arrived at, to wit the ptalntUTs contributory
n^Cligence was the iwoximate cause of his
injury, wlUunit vrtildi su<^ injury would not
have resnlted. It anMars from tbe record
that bis bmior. In refuting to direct a ver-
diet for defendant, directed the Jury tbat
there was do testimony In the case from
which wlllfulneas mli^t be Inferred. We
think these exceptions should be snstalned,
and that his honor was in error in not di-
recting a verdict for the defendant appel-
lant Tbe evidence shows that the appellant
opuated a railroad, a portion of which ex-
tends from Conway across Waocamaw river,
In the direction of Alantlc Ocean, to Myrtle
Beach. Reepondent was Injured by locomo-
tive of appellant about half a mile from
Conway. Near the point at which he was
Injured there was a plant known as tbe Wood
Products Plant Between one-half to three-
fonrtha of a mile beyond the Wood Products
Plant traveling from Conway, was the Kan-
awha Lumber Plant The railroad tracks
between Conway and the point at which
plaintiff was Injured crosses a drawbridge
over Waccamaw river, and anoflier long
trestle. At each of these trestles was a sign
maintained by the railroad, warning people
not to use the trestle. Plaintlfl lived about
two miles from Conway, on the opposite
side of the river from the place where he was
injured, and on this occasion was traveling
In the direction of Kanawha Plant He knew
that the trains run over this track four times
a day. On this occasion be used the trestles
In defiance of the warning on the signboards
not to use them. It does not appear in evi-
dence what object be had in view, or what
fawlnesB he was on in traiellng towards tt^^
Kanawha Plant at Oie time of his lidUT*
The evidence shows that the railroad track
was perfectly straight from Conway to the
point at which he was Injured, and if be
had looked he could have seen the locomotive
at any point betwem Oonway and that point
The Injury was received betwem 8 and 10
o'clock in the daytime. Tbe Injury was re-
odved almost opposite the Wood Products
Plant where the machinery made a con-
alderable noise In running while grinding up
Ughtwood. The evidence shows at the time
of the injury that the looomotlve by which
plaintlfl was Injured was equlnwd with « pi-
lot at each end ; left Conway between 8 and
9 o'clock in the morning, on st^edule time,
as a regular schedule train. In tbe direction
of Bfyrtle Beach; that day was clear; tbat
the engineer was at his regular post and con-
ductor was in the cab of the oiglneer, on the
fireman's seat; tbat tba fireman and fiapnan
were sitting <m tender at tbe front end of
the locomotive, as It was running, for tbe
purpose of looking out according to the
rules. Tbe looomotlve was running at a slow
rate of speed, owing to the fact that a good
many people were working around tbe Wood
Products Plant irikwe lAere was consider-
able notsfe When the locomotive^ by which
plaintlfl was Injured, left Oonway idalntlfl
was walking In the direction of ICyrfle Bea<di,
on the right of way of railroad, on tbe south
side of the track, and had he remained here
would not have been Injured. It be had look-
ed at all, Immediately bef&re be stepped on
the tra<^ thoe was notbli^ to prevent bis
seeing the locomotive ai^iroaching. But be-
ing on tSie rii^t of way, and not on tbe rail-
road track, when the locomotive had about
reached him he stei^ied up on the tratA im-
medlatdy in front of it about 12 or IS feet
south of the "bog," tbea being operated at
tbe Wood Products Plant As he striped on
the railroad track the brakeman and fireman
gave tbe alarm, which was heard by a by-
stander at some distance, but failed to at-
tract plaintiff's attention. Plaintiff foiled
to heed the warning when given, and, having
failed to exercise ordinary care or precaution
for his safety, he was struck and knocked In
the ditch alongside tbe track. The evidence
shows thera was pl^ty of room between
the ties piled on the right of way and the
track for him to walk without getting on
the track. The evidence shows conclusively
to my mind that the plaintifrs Injury was
due solely to his own carelessness and negli-
gence in not exercising the slightest degree
of care or taking any precaution for his safe-
ty. He had crossed two trestles In defiance
of notice; tbat no one was permitted to do
so. He was not going from one town to an-
other town; he was not attempting to go
from one public road to another public road.
•I^e place was not a populous community,
but 0^ contrary, does not seem to have
settled at all, or any one living on the
\ jtfUfoad. There was absolutely not a jot m
Digitized by VjOOglC
(s.a
tittle of erldenoe to xawrei t2ie asaumptioB tihmt
the right of way and railroad track of the
defendant at the loeatloaln gaestion had been
dedicated to the pubUc oae, and that the
plaintiff, or any one else, had acquired the
Ucenw to 80 use It The nndl&pnted evidence
in this case shows that the defendant exer-
cised more than ordinary good care at the
place of injury ; the track was clear. There
was no obstmctioD In the rlew. The train
was running at a moderate speed. The evi-
dence shows that the conductor and the
engineer were looking ont; two employes,
In addition to this, were Btationed in front
of the locomotlTe^ as it was then running,
and these two gave at the first opportunity
ample warning of his danger, ^e plalntUf,
on the contrary, negle<Aed to look or exercise
any care and precaution whatsoever to avoid
the danger. By looking be could have seen
the locomotive; by listening he could have
lieard the moving of the locomotive, or warn-
ing given by the two employes of the defend-
ant The evidence shows that he did not
even exercise slight care. He was not travel-
ing at such a place as Bira. Jones was In
the case of Jones v. By. Go., 61 S. a 656.
39 S. EL 768. Nor does the case of Carter v.
Railroad, 938.0829,70 8. BL962,fltthi8
case.
in the Jones Case the auction and proof
showed she lived in a populous section of
Anderson, and she was injured at a place
where the general public liad been accustom-
ed to walk for many years, and where men,
women, and children had been accustomed
to walk. In the Carter Case the evidence
showed that the public generally for over 20
years had walked the railroad between two
small towns, and that the deceased was deaf
and dumb. There ta no proof In this case of
any infirmity on the part of ttie plalnUtT.
either as to hearing or seeing. Thme was no
proof in this case sufficient to show that £he
public had acquired by uninterrupted use
for the statutory period, and th^re was no
evidence at all that any one had used the
track previously for, a crossing at the point
where plaintiff got on the railroad track and
was Injured. As was said by this court In
the case of Gable Piano Company v. South-
ern Railroad Co.. 94 S.-C. 143, 77 S. E. 868:
"The law imposes upon every capable person
the duty of observing due care for his own
safety when about to cross a railroad tra<^
which necessarily Involves the exercise of his
senses. And while it Is ordinarily a ques-
tion of fiict for the jury to say whether, un-
der the drcnmstanees of the particular case,
the trav^er did exercise such care, when the
facts are nndlaputed and susceptible of only
one inference, it becomes a question of law
for the court Zelgler v. Railroad, 5 S. Gl
221; Edwards v. Railway, 63 S. a 271 [41
8. B. 458]; Bamberg v. Railway, 72 S. a
889 [61 S. EX 988]; Osteen v. Railway, 76
S. G. 378 [67 S. a 196] ; Drawdy v. Railway,
78 S. O. 879 {68 S. BL 960] ; Griakell t. Rail-
way. 81 S. 0. 193 [62 8. a 206]." In the case
at bar the plaintiff was injured, not at a
public crossing, as was the case In Cable
Piano Company, supra, but on a railroad
track, not at s public crosi^g but by his
stepping on the track in front of an ap-
proaching locomotive without exercising the
slightest care for his protection by the ex-
ercise of his senses. By the u^^se of fala
senses of sight or hearing the Injury wdold
have been prevented. The plaintiff did not
look or listen for the train before stepping
on the track. He failed to observe its ap-
proach ; he disregarded the warnings of the
employes in the engine, and the only infer-
ence that can be drawn from the evidence
is that his own negligence was the sole cause
of his injury. There Is no proof that the
injury was in any manner due to any action-
able negligence on the part of the def^dant
railroad. The railroad company, as the evi-
dence shows, did its full duty; It kept a
reasonable lookout It gave warning of the
approaching of the train, and ordinary care
under the drcomstances of the case to avoid
injury to the plaintiff. "One going on or
near a railroad track is bound at bis peril
to make diligent uses of his senses of alght
and hearing in order to detect the approach
of trains, and a disregard of such dn^, and
a stepping on the track without looking or
listening, would be n^ligence ; and. If plain-
tiff bad reason to believe that trains mii^t
be approaching, the fact that he was an em-
ploye did not release him from the aeceaslty
of exerdsiag reasonable care . under the dr-
Gom stances for his own safety, and that hb
had no right to rely wholly on the rallroall
company to protect him from passing trains.
IlUnf48 Cent B. Oo. v. Ndson, Itfay 39, 1913,
203 Fed. 967.**
In my view of the case the Judgment
should be reversed, and compSalnt disndaaed,
as motiiAi to direct for d^endant Aould
have been allowed, and It Is unnecessary to
consider the other e:»eptiona, and for tbesa
reasons I dissent
(96 3. 0. ZW)
HAXES V. 80TITHERN POWER CO. et sL
{Supreme Ceort of South OaroUaa. July 14,
1913.)
1. EuccTBicrrr (1 19*)— Danoxboub PaKmsBS
— Injuries to Childbxn— LiABmrr.
Where an dectric power company erected
a tranifonaer on the property of a manufac-
turing corporation, and the keys to the build-
ing were in poBsesBion of its employes, while
the agents of the power company worked in
the building a day, following whi<m a window,
with moirotected wires heavily charged within
five or aiz iDdies, was left open, and children
constaDtly played near the window, and one of
die children was injured by coming in oontsct
with the wires, there was snfficient evidence of
the negligence of the company and the corpora-
•For atliw omm wm mub* tople and NoUon NUHBBa la Dea. Dls- a Am. XHg. K«r-Na. Bt
. Digitized by
8.0)
BATS8 aOUTHERN POWXR 00.
^7
tioa to reqotre mbmliB^n of their UabOit? for
the injuries to the jary.
[Ed. Note.— For other caseB, see Blectrlcitr,
Cent. Dig. S U ; Dec. Dig. { 10.*]
2. NSOLIOBROl (S 32*)— Daaokboos PmnHBS
— LlCENBEBS.
Where an owner of pramisM gtru perais-
•lon to children to enter thereon to attend
■chooL the permisdon most be limited before
the cbudren become trespassers.
[Ed. Note.— For other cases, see Negllgenee,
Gent Dig. H 42-44; Dec. Di^. I S2.*}
8. NxaxJOEncK Q 21*)— DiJvaxBOva PKnasBS
— LuBiLrrr.
One who estabUBhe* a dangwona agencr
where peoide are likdr to be found moat
guard it
[Ed. Note.— For other cases, see Negligence,
Gent Dig. B 89-88; Dec. Dig. S 25.*]
4. NEOUOEifCK (I 189*) — Dangerous Pbdc-
iSEs— Actions— I iratsucTioNB.
An instruction tn an action to recover for
injuries, based on the theory that defendant es-
tablished a dangeroas BReocr without guarding
it which refers to "social duty and the ordi-
nary offices of hamanitf" instead of the law,
is not prejudicial to defendant since the law re-
quires the same thing.
[Bd. Note.— For other cases, see Negligence,'
Cent Dig. H 371-3T7; Dec. Dig. }
& Bixcmorrr H 16*)— Danoebous Pbehis-
E8— Pebsonai. Injubies— Pboxxilate Cause.
Where one maintained live wires within
five or six inohes of an open window while
diUdren were constantly plvi°8 near the win-
dow, the oegUgent failure to guard the wires
was the proximate cause of an Injory to a dkOd
coming in contact with them.
[Bd. Note.— For odier eases, see Blectrldty,
Oeat Dig. I »; Dee. Die lie.*]
9. NBauoBiTOi (1 1S<(*)— DAHonooB Psnas-
E8 — AiTBAorrn lo Ohiuibbh— Qussnoir
rOB JlTBT.
Whether the maintenance of heavily charg-
ed electric wires within five or six inches of an
open window, near which children constantly
played, was tiie maintenance of a nnlaance at-
tractive to children, so as to create a liability
for injuries to a child coming In contact wiui
a wire, heW, nnder the evidence, for the jory.
[Bd. Note.— For otiier cases, see Negligence,
Cent Dig. H 277-868; Dee. Dig. 1 18§.*3
7. NBWOxnoi (ft 28*)— Danqiboiib FsKim-
»— AlTBAOnVS TO ORILDaBN.
One who maintains on his premises entice-
ments to children thereby impliedlv Invites
tiiem to inspect, and an infant enticed to eome
m the presilaes ia not a treapaaier, and the
owner is not exempt from the dntr of exerd^
ing ordinary care to avoid Injuring him.
[Ed. Note.— For other cases, see Negligence,
Cent Dig. H SS, 84, 129; Dec. Dig. S 28.*]
Appeal from Common Pleas drcnlt Court
ot York Coonty; T. S. Seaae, Judge.
Action by Walker Hayes, by bis goardiau
ad litem, T. W. Huey, against the Southern
Power Company and another. From a judg-
ment for plalntlflCf defendants aiMWl. Af-
firmed.
T. F. M<a)ow, of Torkrllle. H. a Millar, of
CSiarlotte, N. C, J. B. McDonald, of Wlnns-
boro, and Osborne ft Cocfce. of Oliarlotte, N.
GL, Cor appellants. Dunlap ft Dunlap, of
Bock Bill, and 8. XL UcFadden, of Chester,
for respondent
FBASBB, J[. Hie «ppellajitB tbus state
their case; * . .
"This was an action tn the court of com-
mon pleas for York county, 8. G., to recover
the sum of $30,000 damages for all^^ in-
juries to plaintiff, a mllnor, by coming in con-
tact wlUi electric wires in a transforms
bouse, located on the property of the de-
fendant the Manchester Mills.
"it Is alleged In the complaint that the
defendant Southern Power Company is a cor-
poration engaged In famishing electricity to
various industries and, among othen^ to the
Manchester Cotton MlUs. That the said
Southern Poww Conwany bnll^ or bad bnilt
with the permlssloo and oonsent of the Man-
cheeter Cotton MUls, the transformer bouse
in qnestlon nndtt an agreement to fomlsb
electrie power to said oolton mUts. Ibe spe-
dflc and puticnlar allegations of nei^lgraos
alleged to bare been the proximate cause of
the i^lnttflfs Injorles are found In tbe nlntta
pan^nraiA of the complaint; and they charge
Oie defendants with sqneate, jo&nt, or «od-
cnrroit negligence, Carelessnein, recklessness,
and wantonness tn ttie fblldwlng pardcnlan,
to wit:
"(a) In erecting and allowing to be erected
the said transformer bouse, and installing
therein dangerous machinery, appliances, ap-
paratus, and electric wires, hea-vtly diarged
witli electricity, and In not providing safe
and proper means to protect the public and
said in&nt from the dangers tllereof; and
the said defendant Southern Poww Com-
pany, its agents and servants, knowing that
in and around said house children of tender
years and ignorant of the dangers of said
machinery, apparatus, appliances, and elec-
tric wires, and b^g accustomed, did vis-
it and play, being attracted to said bouse
by the said appliances hereinbefore allied;
the said defendant Southern Power Company
left the doors and windows of said house
open and unprotected, thereby giving said
children and this Infant opportunity to be
subjected to said dangerous machinery, ap-
paratus, etc., heretofore alleged ; and the
Manchester Cotton Mills, Its agents, servants,
and officers, knew, or ought to have known,
that said doors and windows were open and
unprotected, and knew tbat the said house
contained dangerous ma<Ainery, apparatus,
ete., heretofore alleged, and that there were
children of tender years, including said in-
fant, attending said public school, and that
said dilldren, including the said Infant, fre-
quently visited and played around and near
said bouse, with the knowledge and acqtil-
escence of botti of said defendants.
"(b) That the said house and the said dan-
ger, apparatus, appliances, etc, heretofore al-
leged, were under the cmtrot and manage
meat of the defendants, Southern Power
Company and' the Manchester Cotton MUls,
the said transformer bouse and the said
«V«r othsr eases sss seme to^ aad seeUmMDMBaE m Des. Dig. a Am. Dla. Kv'*<t)^1^d^f*^^'^9$ LC
958
78 SODTHEASTDBN BBFOBTBB
CB.a
■dioolbouw tm tbe property of Oie dBCaWbnt
the Mancheeter Cotton Mills, and tbe agents,
servants, and officers, of the said the Man-
chester Cotton Mills, constantly need said
bonse tn getting tbe tiectrldty to drive and
operate Its said machinery."
The answer of the defendant tbe Mxa-
c-beBter Cotton Ullls consists of: (a) A de-
nial of the material allegations of tbe com-
plaint; (b) that plaintiff's Injuries were
cansed by bis act and nefl^Jgence; and
<c) that he was a trespasser on the premises
of the defendant
"The answer of the defendant Sontbem
Power Company contains similar def^isea
The case was tried at tbe November, 1912,
term of tbe court for Tork county, before
Judge Thomas 8. Sease and a jury. At the
close of the. testimony for the plalntlfE, the
atfSndants made a motion for a nonsuit
• • • This motion was overruled by tbe
presiding Judge. At tbe close of all of the
testimony, defendants made a motion for the
direction of a verdict in their favor, upon
tbe grounds. * * * This motion was al-
so refused by the presiding Judge. After
hearing tbe charge of the presiding Judge,
the Jury found a separate verdict against
each of the defendants tor the sum of {4,-
166.67. The defendants thereupon made a
motion for a new trial whldi was also re-
fused by the presiding Judga Thereafter
Judgment on the separate verdicts was en-
tered agaliAt each of the defendants. Due
notice of appeal was served. • • •
"Argoment
"The following facts appear to be undis-
puted In this case: That the plaintiff was
severely burned and injured by coming In
contact with tbe electric wires In the trans-
former honse, located on the property of tbe
defendant tbe Manchester Mills. At what
time this transformer was built It does not
(dearly aK)ear from the testimony. It ap-
pears that the plaintiff, a little boy, nine
years of age^ lived on the property of the
Manchester Mills and for several months
had been attending school In a building near
tbe transformer house. During the recess
bours the children were accustomed to play
In the neighborhood of the transformer
bouse, sometimes at one place and sometimes
at another. It appears that the Manchest^
Mills were principally In control of the trans-
former bouse^ although the agents and serv-
ants of defendant iSouthem Power Company
occasionally visited It for the purpose of
making necessary repairs in the electrical
apparatus. The transformer bouse Itself Is
a brick building, having a door and three
windows. Across tbe windows are slats
about 2^ inches wide nailed on at Intervals
of about 2 or 3 inches. Tbe windows each
had 2 sashes with 6 lights in each sash, of
about 10 by 12 Inches each. The electric
power wires were located In this house, near
one ct the windows, about 6 or 6 feet from
tbe ground. These windows were located
too high fbr the plaintiff to come In contact
with the wires when standing on the ground.
"Tbe plaintiff and other children had been
warned not to go near the transformer bouae
on account of tbe dangw connected therewltb.
"There were two panes of glass out of tlie
lower sash of the window where the power
wires were located, but this fact bad no con-
nection with the injury to plaintiff, aa the
windows were raised, and hence the broken
panes of glass were not within reach.
"On the day plaintiff received bis injuries,
he, with two or three other small boys, at
the noon recess, went to the transformer
house, and when first seen after his injury
bad bis knee In the window and was hanging
out by his hand. His hand was through
the window touching the wires. ' In his own
account of how he received the injury, tbe
plaintiff stated that tbe other little boys
bad told blm If he touched the wire It would
make him Jump and dance.
"As shown by the testimony, therefore, it
was necessary that the plaintiff should climb
up In the window, place his hand between
tbe slat and under the window, before he
could touch tbe wires or come in contact
with them. This seems to be the only man-
ner in which his Injury could have been re-
ceived, according to the nndlsputed testimony.
"The exceptions raise five Issues of law for
the determination of this court to wit:
"(1) That there was error on the part of
bis honor In refusing to grant a nonsuit as
to both defendants, and especially as to the
defendant Southern Power Company.
"(2) That there was error on tbe part of
his honor In refusing to allow defendants to
introduce certain testimony.
"(3) That there was error on the part of
bis honor in refusing to direct a verdict in
favor of both defendants, and especially as to
the defendant Sontbem Power Con^auy.**
"(4) Tbe anartlott as to an attractive nui-
sance.
"(5) Tbe duty to protect trespassing chil-
dren from Injury from dangerous agendea."
[1] 1. The second issue Is withdrawn tn tbe
argument The first and third cover the same
ground and present really only one issue, to
wit: Was there evidence of negligence, and
was there evidence of negligence as to both
defendants? Appellants claim that there Is
certainly no evidence of negligence as to tbe
appellant tbe Southern Power Company. The
appellants have made common cause in this
court and both maintain that position, and
yet the appellant the Manchester Cotton
Mills In its answer "alleges that the trans-
former bouse mentioned in the complaint was
erected by Its codefendant Southern Power
Conqiany, and was at the time of the plain-
tiff's Injury under Its exclusive control and
managemwt" However tbat may be, there
was evUlence to show that the transformer
house was on tbe property of the Manchester
Cotton Mills, and It there received Its power,
and that keys were In tbe noaBesslon of its
employ^; that tbeD%w»lft)>aLj^(Mwni
HATES T, SOUTHERN POWBB QO.
969
Power Company bad accoss to the building
and worked in tbere one wlude day; and
that the day after that the window was
open and that Its employes constantly entered
it on corporate bajrineu.
The nei^ligence^ U any, waa the open win-
dow wiOi nmtrc^sct^ wires duurged with
electricity within flre or elx inches of the
open window. The nndlspnted testimony was
tiiat the Children constantly played near the
window. Home base was qnlte near. There
was a dlspate as to whether the plaintiff
had erw been warned or not The teachw
did not claim to have warned the plaintiff
abont the deadly wires bat about the house.
The bouse, or the nearby pole, was home
base used dally by little cbtldren from 0 to 12
years of tga. There was no fence or stake
or line to mark the boundary line that must
not be crossed. All the buildings were loeat
ed on the property of the Han<AeBtOT Ck>tton
Mills.
[t] 2. There Is no dispute Uiat the plain-
tiff had the right to enter upon the property
to attend school. If the permis^don was lim-
ited, thai the llmlte must be defined befiore
the licensee becomes a trespasser.
[3. 4] It is hard^ necessary to dte author-
ity to show that, If a man establishes a dan-
gerous agency where people are likely to be
found. It must be guarded. If his honor re-
ferred to "social duty and the ordinary
ofSces of humanity" Instead of the law of the
state, the appellant cannot complain If the
state law required the same thing, and it
does.
[5] 3. The appellant claims that, eren If
there was negligence, still the negligence was
not the proximate cause, because there was
an Intervening canse when the plaintiff took
hold of the wire, and without that the Injury
would not have occurred. The authorities
dted are not binding, nor are they good law.
A live wire stretched across the schoolhouse
door would do no harm unless the plaintiff
bad supplied the intervening cause of coning
in contact with it The Jury In this case
have vindicated their intelligence and free-
dom from passion when they found only actu-
al damages for Inadvertence. They seemed
to hare come to the conclusion that all par-
ties who were (dialled with the high and re-
sponsible duty of protecting their little chil-
dren from BO dangerous a thing as an un-
diminished and unprotected current and Its
deadly and dreadful consequences were sim-
ply asleep at their posts and did not willfully
sacrifice this plaintiff to sordid gain.
[fl] 4. Whether this was an attractlTe nui-
sance or no was a question for the Jury.
There was evidence that the plaintiff liad
been told that, if he would take hold of the
wires, he would see things that were Interest-
ing to see, and the Jury might have Inferred
from that that the open window presented an
attractive nuisance.
[7] s. The twelfth and thirteenth excep.
(ions are as follows:
"(12) Becanse his honor erred In dialing
the defendantif third request, which was as
f<^ws: The Jury Is charged that to main-
tain upon one's property enticements to the
Ignorant and unwary la tantamount to an in-
vitation to visit and Inspect and enjoy, and la
sndi eases the obllgatlm to endeavor to pro-
tect from the dangers of the seductive instru-
ment or place follows as Justly as though the
Invltatlcm had been express.' The error
bting: (a) That sodi Charge was not applica-
ble to any of the testimony In the case; (b)
that such charge was a charge on the facts
in violation of the Constitution of this state,
inasmudi ss It Instructed the Jury as to the
weight of the testimony and as to what In-
ference should be drawn from the facts Stat*
ed in such request to diarge.
"dS) Because his honor erred In charging
the Jury as follows: 'It is true an infant may
be a trespasser (that Is, an infant of tender
years) in a technical sense when It goes
where It has no ri^tfnl permission or au-
thority to be, but the same mle does not ap-
lOy to infants as to adult trespassers. An
infant non sul Juris cannot be such a tres-
passer as would exempt any one from the
duty of exercising ordinary care to avoid
doing him an Injury.' And In this connection
I desire to read a few paragraphs from an-
other case by the Supreme Court of the state,
and that Is as follows: Under the caption of
'Liability for Injuries to Children,' the author
in 1 Thompson on Negligence, | 1026, thus
speaks In strenuous language of the doctrine
that liability extends only to wanton Injuries:
'One doctrine under this head is that, if a
child trespass upon the premises of the de-
fendant and is Injured In consequence of
something that befalls him while so trespass-
ing, he cannot recover damages unless the
Injury wae wantonly Inflicted or was dne to
the reckless, careless conduct of the defend-
ant* That is quoted from the eminent, dis-
tinguished author. The Supreme Court says :
This cruel and wicked doctrine, unworthy of
a civilized Jurisprudence, pnts property above
humanity, leaves entirely out of view the
tender years and infirmity of understanding
of the child, indeed his liability to be a tres-
passer in sound legal theory, and visits upon
him the consequences of his trespass Just as
though he were an adult and exonerates the
person upon whose property he Is a trespasser
from any duty towards him which they would
not owe under the same drcumstancee toward
an adult* Quoting from this same dedadon :
'Children, wherever they go, must be expected
to act upon childish Instincts and impulses,
and others who are chargeable with a duty
of care and caution towards them must calcu-
late upon this and take precautions accord-
ingly. If they leave exposed to the observa-
tion of children anything which wonld be
^gjapUng to them, and which, in their Imma-
tnte Judgment, might naturally suppose that
I iLav were at Ub^y to handle or play with,
eS ***** taken'—
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''18 fiOtfFBEtABXTON ■ WrOSfSSBBt •
mid
tbe vnot being: (9i) Tbttt mtSh diarge wai
wA a oirrect statement eif th* law u to In-
fant treBpastera, Inasmndi as tba defendajat^
wyoM be exempt from nablUl? to an Infant
tresinsKr In tbe same mannw and to tbe
same 'Mtent as tbey wonU to aAott tree-
pasBers, If tb^ were not gnilty of n^igene^
and tile Injury to tbe Infant trespaasor was
tbe result of bis own act (b) That It was
error to read to tbe jury. In tbe drenmatanc-
ea, extracts from a decision of tbe Sutvreme
Court wbereln was quoted tbe opinion of tbe
antbor of Thompson on Negligence, because
snch quotation from Thompson on Negligence
was obiter dictum and at most was quoted by
the Supreme Court in said case more by way
of Illustration than as a binding authority
upon the issue raised in that case, which
arose upon demurrer to the complaint there-
in, (c) That it was error to state to tbe jury
that the Supreme Court in said case had
characterized the law as laid down by many
text-writers and announced by many of tbe
courts of tbla country as a 'cruel and wicked
doctrine unworthy of civilized Jurisprodraice'
and 'puts property above humanity,' as this
Court had never delivered any snch utterance,
and the language used was that of a text*
writer, and as used In tbe case In Question
was obiter dictum."
These exceptions cannot be sustained. The
<^rges were taken from tbe case of Franks
V. Southern Cotton Oil Co., 78 S. C. 10, 68
S. B. 960, 12 L. R. A. (N. S.) 468, and this
court cites tbese authorities with approval.
The fourteenth exception complains of er-
ror in refusing a new trial. What has al-
ready been said covers tbls exception, and it
is overruled.
The Judgment appealed from is affirmed.
OART. a and HTDBIOK and WATTS,
J J. eoncuv;
(9B 8. a 221]
HURST T. J, D. CRAIG XtTRNITURB CO.
et aL
(Supremo Court of Sontb Carolina. July 14,
1918.)
1. WrriTEssKS (S 159*)— TaARaAonoit with
Decbdent.
In an action by tbe owner of a store bnlld-
ing a«ainst a former tenant and a purchaser
twm such tenant of a half interest in tbe bnsi*
nesi carried on in sucb store, for damages for
the removal of alleged fixtures, evidence as to
iriietber, when tbe purchasing defendant bought
tbe Interest ia the business, tbe tenant's man-
ager, since deceased, represented tbe fixtures
as being a part of tbe haslness was not admis-
Bible, under Code Qv. Proc 1912, { 438, relat-
ing to testimony as to transactiona with a per-
son since deceased.
[Ed. Mote.— For other cases, see Witnesses,
Oent^]^|| 629, 664, 666-469, 671-682; Dec
2. TauL (1 194*)— iNSTBconoNS— WmoMT of
Btidknob.
An instruction, ebarginf tlwt a certafai
WDid bad a certain meaning in a particular
conneet^oa, when the en^ence as to wbether
it did was eonfllctlBg, was properly reused aa
Invadijtg the provbic; of the jury.
[Ed. Note.--For .other caaea, aee Trial, Cent.
Dig. i§ 413. 436, 439-441, 446-454, 4S6-460;
Dec. Kg. i 194.*i
8. FlXTUBES (l 1*)^NATTJBB— "FIXTUBK."
A *4ztore" Is an article which was orig*
tnally a diattel, Iwt which became a part of
realty by pbyiical annexation thereto, liy ona
having an mtereat in the realty.
[Kd. Note.— For other cases, see Fixtures,
Cent Dig. tl 1. 6; Dec. Dig. { I.*
For other definitions, see Words and Fhraa-
es, VOL 3, pp. 2831-2846; toL 8. p^ 70S4.]
4. FrxTuan <i KI*)— Dbxsbiqhatioh ov Ma-
TDBS.
The determination of whether property
constituteB a fixture is a mixed question of law
and fact.
[Bd. ' NotSr-FoT etiier cases, see Fixtorea,
Cent Dig. 81 67-79; Dec. Dig. | 85.*]
6^ FrxTuaas d 4*)— Tbst— Intshtioh.
While the court should define a fixture in
an action involving the question, whether an ar-
ticle is considered as a fixture dependi largely
upon tbe Intention of tbe parties.
[Bd. Note^For- other casm, see Ftxtores*
Cent. Dig. Si 3. 6; Dee. Dig. | 4.*]
6. Appeal Ann EanoB (| 216*)— PBcnraa-
TioN Below.
Appellant defendant cannot complain of the
snbmisaion of a certain item of damages alleged
to the Jury, on the ground that tbe allegaticma
with reference thereto were not soatained by
evidence, where there was no request to the
jury to 80 instruct.
[Ed. Note.— For other cases, aee Appeal and
Error, Dec Dig. | 216.*]
Ai^eal from Common Pleas Circuit Court
of Sumter County; T. H. Spain, Judge.
Action by Fannie B. Hurst against the J.
D. Craig Furniture Company and others.
From a Judgment for plaintUI, defendants
appeal Affirmed.
Tbe following are the exo^tUms to the
rulings of tbe tilal court:
"(1) Because bis taonor erred. It Is respect-
fully submitted. In excluding tbe testimony
of R. F. Haynawortb, one of tbe defendants,
aa to a conTersatlon bad between talm and
J. D. Craig, from wbom R. F. Haynswortb
purchased a one-half Interest In said busl-
ness, as to tbe fixtnrea Involved In this suit,
on the ground that the said testimony was
Incompetent under section 488 of the Code,
whereas, his honw should have allowed the
defendant and witness, R. F. HaynaworUi, to
testl^ as to the conversation with J. D.
Craig, as tbe same was competent under
section 438 of the Code, and relerant to the
Issues in tbla case, and said testimony was
material, and probably would have changed
the result of the said case.
"(2) Because bla honor erred. It la respect-
fully submitted, in refusing to allow the de-
fendant and witness, R. F. Haynswortb, to
answer tbe question, ruling that tbe same
was incompetent under section 400 of the
Code, as follows: 'Q. At the time you pnr>
chased it, did he represent tbese fixtures as
being a part at the Imatness?' tbe error
•Tor oth«r eaais ass asms topie aAd loetioa NUMBBR la Dm. Dig. * Am. Dig. StfrtHed
HUBSt J. Pi CKAja rOBNlTDRE OO.
Mng tHAt J. D. Cnig, owntng tb» boalDeBa
out of wtil(4i this suit arose, told a one-balf
Interest to'tbls witness, and bis npreaenta-
tiona at sncb time were material' to tills
cause, and tbe plaintiff barliv tone- into
Bald conversatloii, and, baving beoi asm-
Ined in regard to said transaction or conumi-
nieatlon, and evMence m to the same havliig
been glren on the trial in bebalf of the plain-
tiff, that tben the testimony was competent
under section 488 of tbe Code, and tbe wit-
ness should bare beoi allowed to answer
tbe same, and if the answer bad been al-
lowed, tbe same would probaUjr bave long-
ed the resnlt of tiUs trial.
"(S) That his honor erred, it la rdspeetfUIly
submitted, In refnsii^ to allow R. F. Haynih
wortb, one of Oie defendants and witness, to
testis as to any conversation with J. D.
Craig concents bis purchase of one-half in-
terest in tbe budness from the said J. D.
Craiib out of which this suit arose, and hold-
ing that an Budi conrersatlon was incompe*
tent under section 488 of the Code, whereas
his honor should have allowed the witness R.
F. Haynsworth to testify as to the said
conversation, transaction, and agreement
with the said J.. D. Craig; the plaintiff. baT<
ing gone into the same, testified as to said
conrersatlon and transaction, and testimony
baring been c^ered on behalf of tbe jdaln-
ttff as to such conrersatlon or transaction,
and therefore the witness should bare been
allowed to testify as to tbe 8am&
"(4) Because his honor erred, it is respect-
fully submitted, in charging tiie jury as fol-
lows: 'Now, as to that awning, that Is a
Question of foct for you to determine wheth-
er the word "awning" Includes the frame
and the covering, or just the covering;' the
error being that his honor should have charg-
ed tbe Jury that tbe word 'awning,' as psed
In stock taking, Included the frame^ and, the
stock taking being In writing, It was the
duty of the court to construe the same.
"(5) Because his honor erred, It Is respect-
fully submitted. In not charging the jury
that all of tbe chattel property referred to
In the complaint were trade fixtures, and as
such were removable by the tenant within
the term of bis lease.
"(6) Because bis honor erred. It Is respect-
fully submitted, in leaving to the jury the
determination of tbe class of property re-
ferred to in tbe complaint, but should bare
held that the same were trade fixtures,
wblch, under the evidence^ were removable
by the tenant at any time within tbe term
of bis lease, and therefore tbe tmant was
not liable for removing the same.
"<7) Because bis bonor err.ed, it is reiqject-
fnlly submitted. In charging the jury as fol-
lows: Ifow. you must take into conalderatloxk
what was the Intmtlon— ^hat was the Inteti^
tlon of the parties? Did thegr Intend, wh«v
tlMy^thcse flatnrsa were fixed to tbe r^rr \ ou the gronna tlwt there was uo tastir
ty, to use tliem tor tha parpotB of oaim^^ \ t^\.« ibowlnx ibat tba dafiendanta wen In
on their trade, or was it for ttks pmrtase.ot
becoming a cimrenlence to the land?. * * *
Now, that Is a questttm of fact for you to
detecmlne, whether these are flxtares under
the- law as I charge you, or whether they are
not fixtures ;' the error being that his honor
should bare charged the Jury that all ot this
PTi^erty were trade fixtures, removaUe bf
the tenant during tbe term of his lease.
"(8) Because his bonor erred, tt Is respect
folly submitted. In not dlractii^ a rerdlot
for the def^idants. on tbe ground that aU
of tbe chattels were, from their nature, trade
Axtures, removable 1^ the tenant, wbo pot
them in within the term of tbe lease.
"(9) Because Us bomtr erred, It is sseoect-
fnlly submitted, fn not directing a rerdiot
except as to the actual value of the awning
frames, thore being no testimony that any
of the property was other than trade fixtures
put Into the building by the tenant for the
purpose of Its business, and therefore re-
movable by It durtaig the term, and there-
fore tbe defendants could not be held Hable
for tbe ralue of the fixtures, same being tbe
property of tbe defemdant J. D. Craig Furni-
ture Gompanyi and they baring the rfg^it
under the law of this state to rvmovft the
samsw
"(10) Because his bonor erred. It Is respec^
fully submitted, in not directing a verdict as
to punitira damages, tiiere being no erridenee
sufficient to sustain an action tor punlttre
damages, the defendants merely baring re-
mored certain trade fixtures belonging to It
without In any ^ay damaging or injuring the
propOT^ of tbe pl^Uff, and therefore there
was no testimony on wUch to base puntttre
damages in this action.
"(11) Because his bonor erred. It is respect-
fully submitted, In not granting a new trial
on the ground that the chattels out of wWch
tbls action arose were, from tbelr nature,
trade fixtures, and removable by the tenant
who put them In during the term.
"(12) Because his honor erred, It Is respect-
fully submitted, in not setting aside the ver-
dict and granting a new trial on the ground
that there was no testimony to sustain puni-
tive damages, and no testimony to sustain
any actual damages; the property being re-
moved being tbe property of tbe defendant
J. D. Craig Furniture Company.
(13) Because bis bonor erred, It la re-
qc«ctfolly submitted, in not directing a ver-
dict as to the allegation as to painting out
the sign of the defendant J. D. Craig Furni-
ture Company from the outside of tbe store
building of the plaintiff, as the same was a
trade .fixture, and remoraUe by tbe tenant
during the terra, and tbe toiant bad a right
to oblUerato Ita tiado-nsme so painted on ttw
•tore bulUUui.
••(14) Because hla honor ma&, li to
lUviVly sulHDltted, In not granting a new
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78 SOUTBSASTBIBN BBPORTiBB
(S.a
any my liable for the painting ont of the
sign on the ontside of the store building, as
the sign was a trade-name of the J. D. Craig
Famltore Company, and the sign, after be-
ing placed upon the said building, became a
trade flzture, and remoTable by the tenant
dating its term, and the mere attempt to re-
move the same was no ground opon which to
base a cause of action.
"(IS) Because his honor erred, it Is re-
spectfully submitted, in allowing the jury to
consider the question of the stable door or
gate, the error being that the evidence having
shown that the gate or door of ttie stable had
fallen from its support by reason of the
natural wear and tear of its use. that then
these defendants were not liable for the
same having fallen off the hinges, and there-
fore there was nothing actionable in the
gate having fallen oB Its hinges from ordi-
nary use, wear, and tear."
Lee & Moiae, of Sumter, for appellants.
L. D. Jenninga, of Sumter, for respondent
GABY, 01 J. The following statement ap-
pears In the record: "This action was com-
menced by the service of the summons and
complaint on the 12th day of February, 1912.
The plaintUT was the owner of a store build-
ing in Sumter, 8. C, and same liad been
rented to the J. D. Craig Furniture Company;
the term expiring December 31, 1911. Dur-
ing the tenancy J. D. Craig Furniture Com*
pany bad placed within said store building
for its own use some electric light wiring
upon the wall and ceiling, and had painted
its firm name and sign on the upper southern
comer of the outside of the southern wall of
the store (building. The plaintiff also claimed
to own the awning frame in front of the
stor^ horse trough in the yard, and two shop
drawera The plaintift on the trial admitted
that the defendant J. D. Craig Furniture
Company had placed the electric wiring in
the store, but claimed that same belonged to
her, and also the other proper^ mentioned.
Before the end of the tenancy the defend-
ant J. D. Craig Furniture Company removed
the awning frame, electric wiring, and horse
trough, and attempted to paint ont the sign
of this defendant on the outside of the store
building. They were prevented from painting
out the sten by the act of the plalnUff and
her agent The defendants denied having
taken the shop drawers, and stated they knew
nothing about them. The action was brought
to recover $10,000 actual and punitive dam-
ages for the removal of the awning frame,
electric wiring, shop drawers, and horae
trough, and tearing down of the stable door,
and for painting out the sign on the outside
of the building, and alleged misconduct of
.def^dants in removing same. The defend-
ant J. D. Craig Furniture Company claimed
it bad a rlgbt to remove this property, on the
grotmd that the same beloiuEed to it except
the shop drawers, which they knew nothing
about and they also claimed that they bad
a right to paint out the sign on the outside of
the building, as it was their wrporate name
and business sign, and it was put up merely
for the purpose of advertising. The defend-
ants claimed that the articles removed were
merely trade fixtures, and that they had the
right to remove the same during their ten-
ancy ; that the stable door fell down from
ordinary wear and tear. The plaintiff con-
tended that the property could not be re-
moved, as they were not trade liztures, but
the property of the plaintiff. The Jury re-
turned a verdict for $100 actual damages and
$940 punitive damages, which was reduced.
On motion for a new trial Judge Spain grant-
ed a new trial nisi, unless the plaintiff remit
all punitive damages over $500, which was
done, and Judgment entered in due course for
$600." The defendants appealed upon ex-
ceptions, which will be reported.
[I] First second, and third exceptions.
These exceptions seem to have been taken
under misapprehension, as It does not appear
from the record that his honor the presiding
Judge excluded the testimony menUoned in
the exceptions. Furthermore, the testimony
was clearly Inadmissible under section 438 of
the Code of Procedure (1912).
[2] Fourth exception: The presiding Ju<^
could not have charged the Jury, as con-
tended by the appellants, without Invading
their province, for the reason that the tes-
timony upon that question was. conflicting.
[8] Fifth, sixth, seventh, eighth, and ninth
exceptions. In the case of Padgett v. Cleve-
land, 33 S. C. 339, 11 S. B. 1069, this court
recognized the following as a correct defini-
tion of a fixture: "A fixture la an article
which was a chattel, but by being physically
annexed to the realty by one having an in-
terest in the soil becomea a part and parcel
of it" In that case the court quotes with ap-
proval the following words of a distinguished
Judge: "It is difficult to define the term, and
there is inextricable confusion, both in the
text-books and the adjudged cases, as to what
is such annexation of chattels to realty as to
make them part and parcel, and pass by a
conveyance of the realty. Any attempt to
reconcile the authorities on the subject would
be futile, and to review them would be an
endless task." In Evans v. McLucas, 16 S. C.
70, the rule is thus stated: "As a general
role, all things ♦ • • annexed to the
land become a part of It but to this there are
exceptions; as, where there is a manifest
Intention to use the alleged fixtures in some
employment ffistlnct from that of the occupier
of real estate, or where the chatty has .been
annexed for the purpose of carrying on trade*
It is not In general, considered as part of
the realty." Mr. Justice McOowan, who de-
livered the opinion of the court In the case of
Padgett V. Cleveland, 83 S. a 339, 11 a B.
1069, lues this language: "We tldulc, liow-
ever, the general statement may be satbly
made that in the later caaei ^ere has been a
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decided relaxation as to tbe original nile of
the common law, wblch subjected everytblng
affixed to the freehold to the law goTerning
the freehold, and that this modem relaxation
has be«i effected chiefly In favor of trade.
* • • Besides, this confasion. In the law,
* * * and whether an article of personal
property has been so annexed to the soil as
to make it a permanent fixture snd as such
not movable. Is always a mixed gaestloa of
law and fact" In Hughes v. Shingle Co.,
51 S. a 1. 28 8. B. 2, the court quotes with
approval Uie following statement of the role:
"Where a structure is placed upon land, not
to promote the convenient use of the land, but
to be used for some temporary purpose, ex-
terz»l to the land, and the land is used only
as a foundation, because some foundation ts
necessary tor the buBlness, then the structure
and its belongings are not fixtures."
[4, 1] The great confusion in regard to the
law of fixture has arisen from the effort to
construe that as a fixture in one case because
It was BO regarded in other cases. A fixture
involves a mixed question of law and fact.
It Is Incumbent on the court to define a
fixture, but whether it ts such In a particular
Instance depends upon the facts of that case,
unless the facts are susceptible of but one
Inference. In modem titues the question
whether the article Is to be regarded as a
fixture depends generally upon the intention
of the i>arUes In the particular case. Test-
ed by those principles, the exception must be
overruled.
Tenth and twelfth exceptions. We do not
deem It necessarr to quote the testimony to
show that these exceptions cannot be sustain-
ed.
Eleventh exception. What has already
been said disposes of this exception.
Thirteenth and fourteenth exceptions.
There was testimony tending to sustain the
allegations of the complaint as to the man-
ner in which the defendant attempted to
erase the sign, by tbe ret^less use of paint
[1} Fifteenth exception. The record does
not disclose the fact that the presiding
Judge was requested to instruct tbe jury
that they could not consider this element of
damages, on tbe ground that there was a
failure of testimony to sustain the ftUegatl(»is
of the complaint in this leapect
Judgment affirmed.
HTDBIOK and WATTS, 33^ eonenr.
FBASBBp disqualified.
SOUTH CAROUNA ft W. BT. T. BLUSN.
(Supreme Court of South Oandlna. June 0,
1918.)
1. JuBT <| 85*)— Trial bt Jubt— CoNDBinf a-
TION PROCEEDIHaS— COUBT OF RECOBO.
Under Const art. 9, M 20, 21, requiring
oompeosation for property taken for public use
to be ascertained' by A Jniy Of 12 . msn' In ft
cotirt of record as abaU be prescribed by court;
Civ. Code 1912, i 3292 et seq., relating to con-
demnation proceedings and providing that the
clerk shall call a jury, and further providing
in section 3296 that either party may an;>eai
from the verdict of the Jury to the circuit court,
and, if the court sliall b« satisfied ot the rea-
sonable sufficiency of the grounds, an issue
shaU be ordered, and the amount of! compensa-
tion shall be submitted to a jury in open court,
is violative of the constltutioBal right to a jury
Id a court of record, since eondenmation jpro-
ceedings, being a special statutory proceeding,
tbe jury provided by the act, is not a Jury u
a court of record, and no absolute right to IV>
peal from such jury is given.
[Ed. Note.— For other cases, see Jury, Cent
Dig. H 286-241 ; Dec Dig. S SB.*]
2. CowariTUTioNAL I*aw <{ 43*) — VAUnirr
OT STATUTB— ESTOFPSI..
One who voluntarily proceeds under a stat-
ute and claims benefits taiereby conferred is es-
topped to question Its constitntionality to avoid
its burdens.
[Ed. Note. — For other cases, see Constitution-
al Law. Cent Dig. IS 79, 80, 84r^; Dec £»»
8 43.*]
3. CowffrmmoNAi. I*aw (| 43*>— VAUtonr urn
Statute— Estoppel — Condemnation Peo-
ceedinqb.
Where a railroad, wishine to condemn land,
must proceed under Olv. Code 1912. | 8292 et
seq.. It does not by proceeding thereunder estop
itself from ettacklng the act as oncoostitution-
al as to that portion which fails to allow an
appeal in all cases from the clerk's jury; the
invalidity of that portion not deatrortag the
scheme ot the act
[Ed. Note.— For other cases, see ConstiCta-
tional Law. Cent Dig. H 79, 80, 84r-99; Dea
Dig. f 43.*]
Fraser, J., dissenting.
Appeal fnm Common Pleas Circuit Gonrt
of Lee Connty ; H. F. Rice, Judge.
Condemnation proceedings by the South
Carolina ft Western Railway against John H.
Ellen. From a Jn^;ment in favor of plain-
tiff, defendant ai^eals. Affirmed.
M. Ix Smith, of Camden, and J. B. Mc-
Lauchlln, of Columbia, for appellant Thos.
H. Tatom, of Blshopville, for respondent
HYDRICE, J. Sections 20 and 21 of ar^
tide 9 of the Constitution are as follows :
"Sea 20. No right of way shall be appro-
priated to the use of any corporation until
full compensation therefor shall be first made
to the owner or secured by a deposit of
money, irrespective of any benefit from any
improvement proposed by such corporation,
which compensation shall be ascertained by
a Jury of twelve men. In a court of record,
as shall be prescribed by law.
"Sec. 21. The General Assembly shall en-
force the provisions of tUs article by appro-
priate legislation."
Tbe Civil Code (section 3292 et seq.) au-
thorizes the condemnation of rights of way
for railroads, and prescribes, in detail, the
manner In which It shall be done, and In
which the compensation to the landowner
therefor shall be ascertained. It is sufficient
for the purpose of the present inquiry to
•nr ethw OSHS wm same tepte and seeUoa NUUBBR \q pec Dig. * Ank Dig. Kay-He. Berlis ft Bep'r ladwea
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say tbat tvUw' the paidlles do not agree, And
It becomes necessary to resort to condemna-
tion, the corporation shall petition the Judge
of tite circuit, who shall order the petition
filed In the clerk's office, and the clerk shall
thereupon Impanel a Jury to ascertain the
amount of compensation. Section 3296 pro-
Tldea, In sabstance, that either party may
appeal from the verdict of the Jury to the
circuit court, and, "if the court »haU fie »at-
iafted of the reaaonable autfloiency of the
grovndM,^ an issue shall be ordered and the
question of the amount of compensation shall
be submitted to a Jury In open court
The railway company Instituted this pro-
ceeding to condemn a right of way over de-
fendant's land, and hare the amount of com-
pensation therefor ascertained. From the
verdict of the Jury Impaneled by the clerk,
the company appealed to the circuit court,
and demanded that the amount of compen-
sation should be ascertained by a Jury in
that court The court was not satisfied of
the sufficiency of the grounds of appeal, but
held, nevertheless, that the company had the
right, under the section of the Constitution
above quoted, to have the compensation as-
certained by a Jury of 12 men In a court of
record, and, holding that the Jury Impaneled
by the clerk was not such a Jury, ordered the
issue set down for trial In the circuit court
T^e court held, also, that the company, hav-
ing pursued the only method by which it
could obtain the right of way, and have the
compensation to be paid therefor assessed,
was not estopped from attacking, as uncon-
stittttlonal and void, the provision of section
829^ above quoted, which requires that the
court shall be satisfied of the sufficiency of
the grounds of appeal as a condition preced-
ent to the right of trial by Jury In open
court The appeal challenges these rulings.
The first question to be determined is
whether the condemnation proceeding la 4n
the drcnit court, or Is merely a spedal stat-
utory proceeding, with right of appeal to the
circuit court ; for, If the proceeding Is in the
drcnit court, the requirement of the Consti-
tntlon that ttie compensation shall be ascer-
tained by a Jury of 12 men in a court of
record has tteen satisfied; otherwise, if It Is
not
{1] Condemnation of rights of way was un-
known to the common law. Its origin Is
Btfttutory. It Is therefore generally regarded
by BngUsh and American conrta as a special
■tatntory proceeding. Numerous expressions
in the oplniona this court, and the result
of its dedsions, show oonclnsivelT that we
bare heretofore regarded It as a ai>edal stat-
utory proceeding, not In the conrt, until
brought there by appeaL Upon no other by*
potbesls can the dedaiona of this court be
harmonized.
In Railway Oo. Sldlebnber, 88 8. a 808,
IT 8. B. 24, tlie company denied the right of
tlw landowner to oompenaation fbr a right of
way ovw Ua land* and brought an action to
enjoin proceedings instituted by Mm. nnder
the statute, to have his compensation ascer-
tained. The dreoit court dismlBsed the ac-
tion, holding that the rights of the parties
could be settled in the protseedinge thvm-
aelvea. This court reversed the ruling, and
Ittld that the.atatnte provides only the man-
ner In which the right of way shall be taken
and the mode by wtdch the amount of com-
pensation shall be ascertained, and that the
Issue as to the rifiht to compensation must be
determined In an action brought for that
purpose That ruling has been fnUowed ever
since.
In Water Co. r. Nnnamaker, 73 8. 0. 060,
53 S. E. 096, the action was for the same
purpose. The court said : "When the rl^t
to Institute condemnation proceedings is con-
tested, the proper remedy is to bdng an uc-
tlon in the court of common pleas In order
that the court may, in the exerdse of its
chancery powers, determine sndi right Rail-
way V. Rldlehnber, 88 8. C. 308. 17 S. B. 24;
Cureton Railway, SO 8. C. 371 [37 8. E.
014]; Glover v. Remley, 62 & a S2, 80 8. B.
780; Ralhroad v. Burton, 68 & a 848, 41
8. B. 461; raiey v. Union Station Co., 67
8. C. 84 [49 8. B. 140] ; Railway t. Reynolds.
60 S. G. 481, 48 & B. 476. These cases show
that such action must be regarded as inde-
pendent, and not andllary to the condemna-
tion proceedings." On petition for rehearing
In response to appdllanf a contention that the
court had overlooked the distinction betweoi
ancillary and Independent suits, the court
said: *^e appellant also quotes the lan-
guage ot Mt, Justice Bradley, In Wood, 112,
in irtddi, aftw stating he was unable to find
any precedent for a bill for injunction to
stay proceedings In the same court, says:
'I cannot see any necessity for It If any
drcnmstances exist which iwider it improp-
er or inequitable to carry on proceedings in
tliis conrt, they can always be brought to
the attention of the court by motion or peti-
tion in the suit I shall direct the bill as
such to be dismissed, but allow It to stand
as a petition In the several suits eoi^t to
be suspended. Supposing the matter to he
properly brought before the court on petitl<Hi
and motion thereon, the question arises
whether the proceedings In this conrt on^t
to be stayed.* ConoeMno that fkeee primat-
pies would prevail if the action herein and
the condemnation prooeedinoe were 4n the
same oow% theif are not appUoalfle, far the
reoton' that thie action waa . commanoe4 in
the court of oommon pleas, while the oon-
demnation proeoedinffa ware inatituted in •
ipeofal ataiutorp tribunal from wMtA an ap-
peal map be tejipe» to the conrt of eommon
pleas." (Italics added.) This case is direct-
ly In point, and senns to be condosivfl of
the question.
If the statntoiy proceedings wen in the
court the court would not entertain a sep-
arate action to enJMn them, for the conrt has
oontrol of any actioik procwWIIngpenfflng
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MB
Hi^eln. In mcb cases the remedy is by a
motlOD in tke omue. Ins. Co. t. Mobley, 90
8. a 662, 73 S. E. 1032.
That the parties are giTen the tfght to ap-
peal to the circuit court ehows clearly that
the Legtalatnre did «ot regard the proceed-
ing as one In the court It would be some-
what anomalous to allow an appeal to a
court from a proceeding In that court
The authorities are practically agreed
that when a constitution or statute speaks
of a Jury, without qualifying words, it means
a common-law Jury of 12 men, presided over
by a court But as statutes In some states
provide for "a Jury of view," or "a Jury of
appraisers," etc., in condemnation proceed-
ings, no ^ubt the framers of our Constitu-
tion, desiring to make plain their intention
that| in this state the parties to such proceed-
ings should have the right to the final de-
cision of a commou-law Jury, undertook
to do so by qualifying the word "Jury," by
adding that it should consist of "twelve
men," and sJt 'In a court of record," which,
of course, carries with it the Idea that it
■hall be presided over and instruct^ by a
Judge.
In Archer r. Board ot Levee Inspectors
^ O} 128 Fed. 12S, the court held unconstl-
tntloual a statute of Arkansas which pro-
vided that on the complaint of any person
aggrieved by the running ot a levee through
Us land the slmlff 'of the county sfaonld
Bommon a Jury of six landownm who
■honld assess the damages, and whose de-
dtfon dionld be final. The itrovlsion of the
Constitution of Arkansas on the subject was
is substance the same as that of oui> Gonstl-
tntlon, and almost In the same words. It
read as follows: "No property, nor tight of
way, diall be appropriated to tiie use of
any corporation until full compensation
therefor shall be first made to the owner. In
moncQT, or first secured to him by a deposit
of mon^, which compensatloA, Irrespective
of any benefit from any improvemeut pro-
posed by such corporation, shall be ascer-
tained by a Jury of twelve men. In a court
of competCTt Jurisdiction, as shall be pre-
scribed by law."
The reasoning of the court Is so dear and
steong that we anote from the opinion at
length:
"But It is urged that this act provides for
the assessment of damages by a Jury. It Is
true the act does call the persons who are to
assess the damages a Jury; but it provides
for only six Jurors, when the constitutional
provision requires a Jury of twelve. It Is un-
necessary to determine. whether. If that wei«
the only defect in the act the court conld
not disregard the provision limiting the Jury
to alx, and have the Issues tried by a Jury
of twelv& But is the sheriffs Jury provided
for by that act a Jury within the meaning
of the constitutional provision? A trial by
JWT* u defined by the Suprme. Court of tli^
United States In Its latest ^>lnlon, -lB a» fol-
lows: * "Trial by Jury," in the primary and
usual sense of the term at the conunon l&w
and In the American CtHistitutlons, is not
merely a trial by a Jury of twelve men be-
fore an officer vested with anthorlty ta eauae
them to be summoned and impaneled, to ad-
minister oaths to them and to the. constable
in charge, and to enter Judgment and Iseoe
execution on th^r verdict; but It Is a trial
by a Jury of tw^ve men in the presence and
under the superintendence of a Jn(^ em-
powered to instruct them on the law and to
advise them on the &cts, and, except on ac-
qnlttal of a criminal charge, to set aside
tb^ verdict if; lu his ophilon. It Is against
the law or the evidence. This proposition
has been so generally admitted and so sel-
dom contested that there has been little oc-
casion for its distinct assertion.' Capital
Traction Co. t. Hot 1T4 U. S. 1, 38, lA Bop.
Gt 680, 586, 48 Ed. 878. VerdT calOag
It a Jury does not make it sol The daUM of
the sherUra jniy, as defined bF the act, am
merely those of commlsslonera. XlMxe Is no
provision for a saperinteDdenos tfy a Judge.
No one is authorised to instruct them on the
law, to advise them on the Caota, or to set
aside tiielr verdict if it Is aiplmt the law
and evidence. How is the sbeiilTs Jury to
knoif what Items axe to be considered by
them aa elements of damage? No provlsltnt
made hy the act for any one to lastmet
tliem as to the law, nor is any one antlioilsed
to set aside their verdict, even if it Aoold
appear eondosivdy that tbe verdict was
the rasnlt of prejudice, passion, parttallty,
or mJseonstmctlon of the law. It may be
oonceded that a proceeding before such a
body Is not violative of a constitutional pro-
vision requiring a trial by a Jury, If an ap-
peal can be takoi from the decision of that
body to a couH of record, where a trial de
novo may be had by a ctmstltutional Jury of
12 men, under the superUttendeace of a
•Judge. But the act not only falls to provide
for an appeal, but expressly declares tha(
the finding of the sberlflfs Jury 'shall be final
in the premises.' This section of the act la
therefore clearly in confilct with the Con-
stitution of the State."
Appellant relies upon the remarks of the
late Chief Justice Mclver In Railroad Co. v.
.Railroad Co., 67 S. C. 322, 36 S. E. 653, but
concedes that they were obiter. Properly
understood, however, the argument of the
learned Judge supports restxmdfflfifs con-
tention. In that case the dreult court was
satisfied of the sufficiency of the grounds of
appeal. There was therefore no room for the
contention that the defendant who ai^tealed
from the verdict of tJae de rt:*s- Jury* had the
right to a trial by Jury In open court, with-
out regard to whether he had satisfied the
court of the aufflciracy of his grounds of ap-
peal or not But the contention there was
^jat tkuB whole statute was unoonstltutlonal
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906
7S BOUTHUASTBBN BBPOBTBB
(8.a
and voM, bacaoM the Jniy trial thereiD pro-
Tided ftur was not a Jury trial "In a court
of lecotd," as reqnlred by the Constltntion.
In rasponse to that contoitlon, the learned
Chief Justice proceeded to show that the
Btatnte prescribed certain preliminary steps,
which, if compiled with, will enable the par-
ties to obtain a Jury trial "In a conrt of
ivooTdt" whteh Batlsftes the GonsUtutlon,
as wo shall presently show. The Chief Jus-
tice said: "It win thus be seen that the
statute makes emSx prorislons as will secure
to eUher party every right guaranteed to
Urn by the Constitution, provided he com-
plies with the proTlsifHis 'prescribed by law*
for mub purposes. * * * If a party,
through his own neglect or omlsBlon, falls
to (Attain In a case Uke this, or, indeed, in
any otiier cas^ a right of trial by Jury In
opoi court; or any other rtght guaranteed
to him by the Constltntion, by neglectlt« to
pursue the mode prescribed by law for that
purpose, It Is not ttie ftinlt of the law, but
tin fanlt is his own." In that case, it was
the defendant's own fault that It failed to
get a Juiy trial in open court, because It did
not serve its grounds of appeal.
That Chief Justice McXver did not have ta
mind in his discussion of the question raised
In that case the same point we are now con-
sidering Is dearly shown by bis remarks In
the subsequent case of Railroad Co. r. John-
son, S8 S. a S60, 86 S. & 919, which was an
Bn>eal from an order submitting the Issue
of compensation to a Jury to the circuit
court After showing why this court would
not review the ruling of the circuit court
that It was satisfied of the sufficiency of the
grounds of appeal, he said: "Indeed, wa may
say, though the point has not been raised In
this case, and therefore is not properly be-
fore us for decision, that It at least doubt-
ful whether, under the provisions of section
20 of article 9 of tlie present Constitution a
person who has taken an appeal to the cir-
cuit court in the manner prescribed by the
statute In a case like this can be denied the
right to have the Issue of the amonnt of com-
pensation which should be allowed him
tried 'by a Jury of 12 men. In a court of rec-
ord, as shall be prescribed by law.'"
If the L^lslatare had provided no rifi^t
of appeal, would the proceedings have satis-
fied the constitutional requirement? Can it
be supposed that the framers of the Consti-
tution intended that a matter which was
deemed so valuable and Important as to be
made the subject of a constitutional gnar-
ant7 ehould be Anally decided by a jury
circumstanced as the clerk's Jury ordinarily
Is? It is usually composed of men who are
ignorant of law and the rules of evidence,
and without experience in I^al procedure.
Th^ have no power to punish for uwatempt
of their proceeding wMdi may, therefore,
be affected by irregularltlea which would
utterlar vittata a trial by Jury In any court
There is no way by which ttie jury can be
protected firom improper Influences. . There
may, and often do, arise nice questions of
law as to the elements of Just compenaatioii
and special damages, and as to Uie rdevancy
and competency of erldmcfe 'Left to tliem-
selves Id the dedslon of such questions,
grave Injustice might result These are
mentioned merely as considerations ten ding
to show that the framers of the Constitution
did not Intend that their verdict should be
flnaL On the other hand, perhaps In a con-
siderable majority of the cases, the nuitter of
ascertaining the compensation Is simple and
a satisfactory conclusion may be reached
merely by viewing the land, and their verdict
is satisfactory to all concerned.
This leads to the consideration of the sug-
gestion that. If the clerk's Jury is not a Jury
in a court of record, then its work Is a nul-
lity. By no means. It Is a convenient and
often satisfactory step In the proceedings
which, If pursued according to the statute,
will ultimately result in a trial by Jury in
open court. If either party desires It More-
over, the verdict Is prima fode correct end
furnishes a basis upon which the compensa-
tion may be secured by a deposit of money,
and thereby prevent needless delay In the
progress of the work. "An act is not un-
constitutional which provides for an assess-
ment of damages In condemnation proceed-
ings In the flrst Instance by commissionera^
viewers, or appraisers, where a right of ap-
peal is secured to a court where a Jury trial
may be had ; and this rule applies even where
a Jury trial in such proceedings Is ezjKressly
guaranteed by the Gonstltatton, but the ap-
peal must be allowed to a court where
the Jniy of 12 can be had." 24 Cya 195; 8
A. ft B. Ene. L. (2d Ed.) 9S1; Faust v. Bai-
ley, 0 Bleb. 107; Gregory v. Bhoden, 24 8.
G.90.
The same authorities hold tliat if the guar-
anteed right is not allowed in the first in-
stance, but only on appeal, neither the right
of appeal nor the right of Jury trial on ap-
peal must be hampered or fettered by unrea-
sonable restrictions. Reasonable restrictions,
such as the requirement that notice and
grounds of appeal shall be given within a
specified time, are permissible, because they
are usual and necessary to due and orderly
procedure, and the parties can certainly com-
ply wlCh them, and If they fail to obtain the
right guaranteed to them, as said by Chief
Justice Mclver In R. Co. v. R. Co., supra. It
will be their own fault and not the fault of
the law. But a provision which makes the
enjoyment of the right depend upon the Judg-
ment or discretion of the Judge Is unreasm-
able, because it may result In depriving the
parties of the right tBtthout fauU on ihetr
part. Therefore It ao burdens tin rii^t as
to destroy the fall force and dfect of On
guatantr. It follows that tbs oonditlea Im-
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SOUTH CABOUIU. A W. RT. w.-WJES
967
posed tbe jrtwtnte is vlolatlTe of tbe 0<hi-
Stltutlon.
[1, 1] We next consider whether the com-
pany la estopped, because it instituted the
proceeding under tbe statate, from taking
the position that tbe condition in question is
Told. The company does not contend that
the statute is wboU; Toid. Its contention Is
merely that a single and separable part of It
to T<dd, which is not inconsistent with the
main purpose and scheme of the act There
Is thfflefore nothing in that position which,
according to any principle of the law of
estoppel or of Justice, should work an es-
toppeL The general principle that one who
Tolnntaiily proceeds under a statute and
claims ben^ts thereby omferred will not be
heard to a^eetion Its oonstitutlouality to
avoid Its burdens to conceded, and Its sound-
ness to not questioned. And as corporations
hare no right to exerdse the power of emi-
nent domain, except as It may be granted
than by the state, in the absence of oon-
stltntlonal restrictions, the Legislature may
Impose upon Uie ezerdse of tbe riglit by
them just such conditions as It may see fit.
Tbe corporation may acc^ the privtlege
with, the conditions imposed, or not at all;
but it will not be allowed to accept the prlv-
lleges and reject the conditions. Qano t.
Minneaptdls, etc, B. Cb., 114 Iowa, 713, 87 N.
W. 714, 66 K B. A. 268, 89 Am. SL Rep. 893.
But that iwinciple to not ajrplicable In this
case, because the framers of the Constitution
expressed the intention that the privilege of
condemnation should be accompanied by the
right to bare the compensation ascertained
by a Jury In a court of record. The granting
of tbe right to trial by jury In a court of
record to Imposed by the CoDStitution as a
condition or restriction upon the power of
the Legislature to grant the privilege of con-
demnation. In other words, tbe privilege
cannot be granted, unless the right to secur-
ed. The one must accompany the other.
The makers of the Constitution knew that
the privilege of exercising the power of em-
inent domain depended upon the legtolatlve
will and action. They knew, also, that that
right had for many years been granted, and
would, of necessi^, be granted In future for
the development of the state's resources. In
the face of that knowledge, the language of
section 20, above, carries both a prohlbitlMi
and a command to the Le^lature, to wit:
You shall not grant to any corporation the
right to appropriate any right of way, until
full comprausation therefor shall be first made
to the owner, or secured by a deposit of mon-
ey; and that compensation shall be ascer-
tained by a Jury of 12 men in a court of rec-
ord, as shall be prescribed by law. The stat-
ute albffds the cmly means irtiereby compen-
satbm for righta of way can be ascwtalned.
If the parties cannot agree. Tbto court has
held that, where the rlgbt to omdemn or tb^
tight to compewwtion is not dlsimted, Qx^
mode of ascertaining tbe compensation pre-
scribed by the statute to exclusive. Glover v.
Bemeley, 62 S. C. S2, 39 S. B. 780. Thto be-
ing so, it to clear that, if a party who pro-
ceeds under tbe statute to estopped to say
that the condition in question to void, the
r^ht guaranteed to accompany the privilege,
when granted, to denied without a remedy,
contrary to the ancient boast of the law.
Tbe Bugg^tlon that the provision for trial .
by Jury was Intended for the benefit of the
landowntt only to not supported by the lan-
guage used in the Oonstltation, nor by any
sound reasim that has been advanced. But,
even in that view of the case, suppose tbe
landowner were to Institute proceedings un-
der the statute to ascertain hto compensation,
and he to limited to that method in those
cases where it to exdnslve, would he, too, be
estopped? If not, upon what principle could
a different rule be applied? Would not the
Application of a different rule in case of hto
attack upon tfie validity of the provision in
question be a violation of that provision of
the Constitution which guarantees to all eiti-
sens the equal protection of the laws?
The question of estoppel to not concluded
by the decision in Power Oo. v. Williams, 86
S. 0. 179, 67 S. B. 1S6. In that casc^ ^ ds-
ctolon to rested ui>on two grounds: d) That
which to here invoked, to wit, that the com-
pany was estopped to attack the constltution-
ality of the provision in question, because it
had Instituted the proceeding under the stat-
ute ; (2) because tbe point had not been pre-
sented to or decided by the circuit court.
This court has held in numerous cases that
questions not presented to or decided by the
circuit court are not properly before this
court on appeal. It follows, therefore, that
when tbto court held that the record did not
show that the circuit court had been request-
ed to rule upon the question, any remarks by
ttiis court upon the question Itself were obi-
ter, because the question was not properly be-
fore the court. The same to true of tbe re-
marks in Railroad Co. v. Ballroad Co., 67 S.
C. 317, 35 S. B. 663, dted in Power Co. v.
Williams.
Afiarmed.
GARY, C. J., and WOODS and WATTS,
JJ., and ERNEST GARY, GAGE, DB VORB,
SHIPP, 8EASE, and SPAIN, Circuit Judges,
concur. PRINCfit and FRANK B. GABY,
Circuit Judges, concur in the result
rRASBB, J. (dissenting). Thto to a pro-
ceeding by tlie appellant for cond«nnatlon
of the land of tbe respondent The compa-
ny, reaulring the right of way over the land
of the respondait, procured the necessary
order under tbe statute for a Jury to assess
the compensation. The .Jury assessed the
value and iBxed the compensation at 98,600.
■ffxo'B^ thto assessment the railroad company
g^pyeatoA to the tiicuit court, ai4 demanded
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968
T8 80 Ul'tiUASTBBN BSPORTBB
a mat In c^nb court to Teasaess the eompen-
satlon. TUfr ctrcnlt judge beld that he was
not "^tlafled of the reasonable sufDdency
of -the grouudB," but granted an order for
an Issue to be tried In open court on the
ground that the company was entitled to
have the issue tried In oj/ea court, under t&e
Oonstttutton. From this Judgment the owner
appealed on several uceptlons and states
Us questions as follows:
Does the statute regulating the con-
demnation of rights of way provide such a
method of assessment of damages for the ap-
propriation of a right of way by a corpora-
tion, as wUl fully meet the requirements of
section 20, art 9, of the Constitution, which
provides that such 'comp^aatlon shall be as-
certained by a Jury of IS men, In a court
of record, as shall be prescribed by law'?
In other words. In the language of Mr. Chief
Justice Mclver In Railroad Co. v. Railroad
Co., 57 8. C. 324 [35 8. E. 556], does the stat>
ute 'secure to either party every right guar^
anteed to him by the Constitution'?
'*<2) Is section 3296, In so far as It makes
the right of appeal from the verdict of a
condemnation Jury dependent upon the de-
termination of 'tilie reasonable sufficiency of
the grounds' of appeal by the presiding Judge
as a preliminary matter, contrary to the pro-
visions of section 20, art 9, of the Gonstlta-
tlon?
"(3) Is the respondent estopped from as-
serting the right, if It exists, to snbmit the
question of compensation to a Jury In the
court of common pleas, having Invoked, at
every stage of the proceedings, the condem-
nation statute?
"(4) If such right exists. Independently of
the statute of condemnation, should it be as-
serted by a proceeding under the statute, or
In the court of common pleas ab Initio?"
There are two provisions of the Gonstltn'
tlon that must be considered.
ArUde 1, I 17, provides: • • Prl-
vate property shall not be takoi for private
use without the consent of the owner. Nor
for public use without Just compensation be-
ing first made therefor." Article 9, | 20:
**No right of way shall be appropriated to
the use oi any corporation until full compen-
sation thnefor shall be ]lr«< made to the
owner or secured by a d^slt of mon^, If-
respective of any benefit from any Improre-
ment proposed by swA corporation, which
compaisatlon shall be ascertained by a Jury
of 12 men, In a court of record, as shall
be prescribed by law." It will be seen that
Oie first provision Is In the **Declaratlon of
Rights," where the moot sacred and Inallen*
able rU^ts of the tvlvata etticen are secured
to falDL The second provlaltm Is made under
tiie bead '^rporatlons," and la In restratnt
of corporate power.
If the verdict of ttie Jury "not In ofim
conrt" does not ascertain the compensation,
then the deposit of the amount of their ver-
dict can confer vpMi tHe ndltttild no right
to proceed with the taking of Qie pn^iert^ oC
the "owner" until the compensation la flrH
pfdd or deposited. These provisions are man-
datory. If this method of ascertaining the
compoisatlon provided by' statute doea not
comply with the eottstttuttehal ino^don, then
it Is nnconstfttttlonal and all the cowt can
do is to so declare and dismiss the proceed-
ings. This question this conrt need not de-
cide in this case, because the appellant by
taking these proceedings has waived its con-
stitutional r^ht to object It has been fa^d
in this state that the constitutional right of
the "owner" to prevent the appropriation of
the right of way "tmtU full compensation
therefor shall be first made to him or se-
cured by a deposit of money*' may be waived
by the owner. See Terdler T. Railroad Co.,
15 S. 0. 483.
The atta<A Is necessarily on the assess-
ment "not in open court" Before the appel-
lant can claim as a matter -of right a reas-
sessment, it must be held that the compensa-
tion has not been ascertained, paid, or de-
posited. If the compensation has not been
ascertained in a court of record by a Jury of
12 men, it is because the verdict is a nullity.
There is nothing in the case from which con-
sent to entry before compensation can be
presumed.
Railroad Co. v. Railroad Co., D7 S. a 322,
35 S. E. 565: "The respondent by participate
Ing in the proceedings prescribed by the sta^
ute, without protest or objection op to the
time of the hearing before this court whldi
Is only invested with Jurisdiction to review
the action of the circuit courts and by ac-
tually basing Its application for the order ap- .
pealed from upon the provisions of the stat-
Qte, which It now claims Is unconstitutional,
Is estopped from raising the question of the
constitutionality of the statute, the benefits
of whidi It has availed itself of. If the po-
sition now taken, by respondent be tenable^
then as it aeons to us, its proper conrm
would have been to entirely Ignore the stat-
tit^ which. If unconstitutional, was a nulli-
ty, and bring Hs action against the appel-
lant for ft trespass In Intruding upon Its
property without lawful authority. But it
certainly cannot be pennltted to avail itasHt
of the b«iefit of the statute and at the same
time claim that It la nnconstitutlona], null
and Told." fiee^ also. Power Oo. v. WlUlama,
Kf 8; a 1TB, 87 8. B. 186. Here the respond-
eat took the proceedings itnder a statate that
It now dabna Is unconstitutional. 'WhUe it
Is not absolutely necessary to decide the eon-
stitutionallty of this stated yet it Is very
desirable to do so, and tlie question folrly
arises ttom the record. In my Jud^ent the
statute Is constitutional and for the very ez-
cellent reasons stated by Mr. Oblef Justice
Mclver In Railroad Oo. t. Railroad Ca, su-
pra. 97 S. O. at pages 332-824, 86 8. B. at page
06S: ''But la the atacute vKomtitntiVUftll
Digitized by
B.Cd
SOUTH 0AROU3SA '* W. »T. ja^tKN
99Q
In the first plaee, It. wiU be obawred tibat tbe
provlriona of tbe present Constitution 1«
Identical with that contained In the Constltu-
tton of 1668. | 2, art 12. and It Is yery
strange that In none of the nnmerous eases
of this kind which arose while tbe Ck)natitn'
tlon of 1868 was In foree was this question
presented to this court for decision. True,
this la not con^slTe; but. in view of the
iQtellltcent, learned, Tlgllant, and able bar
of which this state can boast, the fact that
ttiis question has nerer before been raised
is entiUed to some weight Let ns, therefore^
examine for a moment whether the statute
under which these proceedings were taken Is
in violation of the OonstUntitm. The point
made seems to be that the Constitntion re-
quires that the amount of the compensa-
tion 'shall be ascertained by a jury of 12
men in a court of record as shall he pre-
scribed, hj law,' whereas, tbe cont^tion Is
that the statute contemplated a proceeding
by which tbe amount of compensation may be
ascertained by a Jury of 12 men, not in a
court of record. Now, what are the provi-
Bions of the statute? By section 1744 of the
Bev. Stat tbe first step required to be tak-
en is an application, 'by petition to tbe Judge
of the drcult wherein such lands are situat-
ed, for the impaneling of a Jury to ascer-
tain the amount which shall be paid as
JuBt compoksatlon for the right of way re-
quired.' The next step is that the said Judge
shall ordOT the said petition to be filed in
the ofBce of the clerk of the oonrt of ctfm-
mdn pleas, and shall order the said clerk
to impanel a Jnry of 12 to ascertalzt the com-
pensation. The uext step la that said clerk
sliall Impanel a Jnry of 12 persons In the
manner prescribed by' ^e statute. Then, In
section 1746, It 18 provided ttuA the jury so
Impaneled, after b^Uig, sworn faithfully and
Impartially to determine the qneatlon of com-
pensation submitted to them, shall proceed
to Inspect the premises, and to take testi-
mony and ascertain the amount to which the
owner Is entitled for the use of his land,
and render their verdict In writing for the
same. Then follows section 1747, copied
above, securing a right of appeal from such
verdict to the circuit court, and prescribing
the manner in which such appeal shall be
taken, by which the questlop of the amount
of comi>ensatLon may b^ submitted 'to a Jnry
In open court' Then by section 1753 it la pro-
vided that all proceedings In relation to tlu
condemnation of lands for the right of way
'shall be filed in the office of the clerk of the
court of common pleas for the county in
which such proceedings were bad, and shall
be there of record' It will thus be seen
that the statute makes such provisions as
will secure to either pact? every right guar-
anteed to him by the Constitution, provided,
lie oomplles with tfie proirlsloDs 'prescribed,
tor Jaw' for Bocfa pniposes. . We can scarce-
ly heUen that tbe point made that tbft
word 'shall' In the constitutional provision,
'as diall be prescribed by Jaw,', implies that
there must be legislation after the adoption
of the present Constitution prescribing the
mode of proceedii^ to be adopted in order
. to secure a trial 'by- a Jury of 12 men in
a court of record,' can be seriously insleted
upon, especially in view of the provision In
the first subdivision of section 11 of article
17, of the present Constitution, 'that all laws
In force In this state at the time of the adop-
tion of this Constitution, not inconsistent
therewith, and constitutional when enacted,
shall remain In full force until altered or
repealed bj tbe Qeneral Assembly or cpqjiire
by th^ own limitation.' iDven, Uier^oieb
If tbe oonstltatlonal ipiestlon were properly
before na, we would be obUged to- say tiiat
there was at least grave doubt wfaetlur tlie
statute waa in violaUon «f the Constitntion,
and the rule in anch caaea la weU settled that
the constltntlouaUl7 of the statute should be
sustained."
But it Is stated that thla may glTe the
owner a right Qiat la doiled to the condemn-
ing corporation and violates tbe eqnal rights
guaranteed to litigants; Is it unconstitutlon*
al to allow the defmdant more challenges in
the court of general sessions than is allowed
to the state or to provide that a verdict of
not guilty is final If in favor of the defend-
ant and not final If in favor of the state?
To say that la criminal cases It Is different
is no answer. In criminal eases them Is a
difference because the state is a party and
the state may and does waive its right to
equality.
Here It Is sold the resp(mdent is a privatcf
corporation, and as Such Is entitled to equal
r^ta. The corporatUm has a dual capad^.
It la to some extent public and to some ex-
tent private. In condonnatlon proceedliw
it must stand Its public, and not its pri-
vate rights. As a private oorporatlon it can
take not a foot land witboat tiie "ooft-
smf* of the owner. Condemnation proceed-
ings are baaed on the want of ootumt.
The property Is taken under flie atattfs
right of eminent domain, and is in theory, at
least a taUng by the statei VHien, there-
fore, the corporation undertakes to take tb«
property of the owner In the right of the
state, it must accept the right with all the
limitations the state has seen fit to Impose
upon itself. There would be no equality if
the condemning corporation were allowed all
the rights that is granted to it by tbe state,
as the right of the state, and all the rights
of a private citizen. In condemnation pro-
ceedings the respond^t stands solely npcm
the rights of the state to condemn private
property for public use after fiompamtUm
has first been paid, or dQNMdted.
. The above answen ,aU the. guaationa pnqp-
erly before this court
For these reaaona I dtasent. — .
Digitized byVjOOQl
78 SOUTHBASTKBN BBFOBTBB
(8.C.
MATHBSON t. BIABION OOJJITSt LUUBBB
CO.
■(Sapreme Court of Sontb Carolina. JfcSj 14,
1913. On Petition for Behearloft
Aug. 1, 1913.)
Logs ahd Loqqxno (| 8*) — Timbzb Dkbd —
OoHSTBTJonoN— "Tux"— "Pbb Annum."
Under a timber deed proTiding that the
grantee should have ten years to cat and re-
move the timber and ten years thereafter "by
payment of 6 per cent per annum upon the
purcfaaBe price, vritbin the next ten years or
till said timber has been removed," the grantee
had no right to the timber remaining on the
land after the first ten-year period where it
had paid no Interest; the word "till" implying
contiDued action, and the words "per annum"
meaning by the year, and hence the only way
to keep alive the second ten-year term being
by the payment of the prescribed interest by
the year and not merely at any time during
such term.
[Ed. Note,— For other cases, see Logs and
Logging, Cent. Dig. {{ 6-12; Dec. Dig.) 8.*
For otlier definitions, see Words and Phras-
^^oL 0, pp. 52134. 5285; voL 8, pp. 6871,
Appeal from Common Fleas Circuit Court
of Uarlboro County; J. A. McOnllough. Spe-
cial Judge.
Action by O. D. Matbeson against the
Marion County Lumber Company. From
Judgment for plaintiff, defendant appeal&
Affirmed.
Townsend ft Bogers, Of Bennettsvllle, and
M. G. Woods, of Marlon, for appellant.
SteTODBoii, Steraison & Prince of Bennettft*
vUlo, for respondent
FRASER, J. Ths appellant makes th» Hol-
lowing very dear statement of Ms case: "On
December 12, 188S. A. X Matheson ooawyeA
to Cape Fear Lumber Company the timber
<m certain lands. The deed of oonveyanco
contained the following provlalon : TheOiMpe
Fear Lnmber Company shall have ten years
from the SOth of September, A. D. 1898, to
cut and remove said timber, and If at the end
of Uiat time tbc^ have not removed said tUur
ba, then by paymttit of 6 per cent, per an<
num upon the said purchase j^lce. within the
next ten years or till said timber has been re-
moved, they can have any and may take ten
years longer to remove said timb^.'
. *'0n August 24, 1011, the plaintiff, O. D.
Uatbeson, successor In title of A. J. Matbe-
son, brou^t tills actton against Marion Conn-
ty LumbOT Company, the successor In title
of Gape Fear Lumbar Company, for the re-
moval of a cloud upon his title, ailing:
That nether the Gape Fear Lumber Com-
pany nor Its successors and assigns nor the
d^ttndant exercised the ri^ts noder said
deed to cut and remove said timber, or any
of the other rights granted' therein, upon the
tracts owned by the plaintiff, or upon the
other tracts nientl<»ied In said deed during
Urn ttme limited; nor did th^ procure an ex-
tmslon of said term doring-tts currency at
an, and all rights which are purported to
have beoi conveyed In said deed have det«^
mined and the said timber and easements
have reverted and are now the property of
the plaintiff.'
•The defendant demurred to the comxklaint
«i the ^onnd that it did not state facts sof-
fldent to cooBtltute a came of action in that
it appeared from the teoe of the oomplalnt
that tSie time limit of the grant had not ex-
{Ared. ms honor, Jos. A. McOoHongh, qieelal
Judge presldlns at the fitil term of the court
of common pleas for Marlboro county, onx^
ruled the demurrer, and the case now comes
before this court on the exceptions set fortli
In the record to the decree of his howw.
**Argument
"In reaching a conclusion as to the proper
construction of the grant i}efore the court,
we first desire to call the attention of the
court to the fact that the principles an-
nounced by ttie court In Flagler v. Lumber
Corporation, ^ S. C. 328, 71 S. E. 849, and
the other cases construing grants with word-
ing similar to the wording of the grant in the
Flagler Case, have no application whatever
to the case bow under consideration, and the
principle for which we now contend In no
wise conflicts with the principles already an-
nounced by the court in such cases. The
question the court is now called upon to
answer is when the Interest money should be
paid under the words: The Cape Fear Lum-
ber Company shall have ten years from the
SOth of Septonber. A. D. 188^ to cut and re-
move said timber, and if at the end of that
time th^ have not removed MA tlmb«, then
by the payment of 6 cent per annum up-
on s^ purchase price, within the n^ ten
years^ or tlU said tlmba has been removed,'
etc."
AppeDant Is correct In Us contention that
the Intention of the parties as expressed in
the instrument govoms and that the province
of the. court does not extend to the reforma-
tion of improvident contracts but to the en-
foroemttit of sncb contracts as the parties
have mode. It must be remembered that the
whole instrument must be considered, and,
except in rare Instances, one clause must not
dominate the whole. If ttie rule was differ-
ent, the amiellant has not and has never had
any ri^^t to the timber ItselfL Htm grant Is,
"timber ways, rights of ways, and easements."
Tluoe is no grant of the tlmbw itself in the
granting clause and only when the instrument
is considered M a whole and its intention lib-
erally constmed is then a conveyance <d the
timber. The appellant claims that it has ten
years after the exiArailon of the original
term in wbiCh to pay the interest, or the
court must disregard the words "within the
next ten years." In otha words, appellant
claims that it can pay intwest at the rate of 6
per cmt per onmun.at any time within tm
years from the date of the exi^fatlon of Us
•For ethir vnm am sum topte and Notion NDMBBR m Dm. Dls, ft Am.
BPBJNKLB r, BIG- SANDT OOAIa ft COKE 00.
m
ordinal term, and tbat ^rtends the term for
an additional term of ten years. If the con-
tract had aald "at the rate of 6 per cmtnm
per annum," another question would fte pre-
sented. The contract does not my that It
says: '^oi by the payment of 6 per oent per
annum • • • within ten years or till
■aid timber has been removed." It is not
claimed that the right to revive the contract
extended beyond the additional ten years,
yet if the removal waa within the ten years,
then the payment of Interest was "tUl" re-
moral. *vnU" carries with It the Idea of con-
tinued action, so that, If the removal was
within the ten years, there must have been
oontlnnons payments of interest ot the tic^t
to revive was gone. If the payment of the
Interest was not made within ten years, the
right waa gone. So that the only way to
keep the second term alive waa by the pay-
ment of 0 pw cent pw annum, according to
the contract The demurrer admits tbat It
has not been done. "Per annum" means "by
the year," BapaliJe & Xawrence^ Law Die-
tlonary. Now substitute tbe meaning and we
have: "The Cape Fear Lumber company shall
have ten years from the SOtb of September,
A. D. 1896, to cut and remove said timber,
and. If at die end of tbat time they have not
removed said timber, tiien by the payment of
6 per cent by the year upon said purchase
price, within tbe next ten years or till said
timber has been removed," etc So we see
that the contract ttiat these people made for
thonselves Is a contract that requires a pay-
mmt of Interest by the year In order to keep
alive the extended ttme.
The Judgment overruling the, demurrer is
rastained.
ETDBICE and WATTS, 33^ concur.
QABT, 0. concurs In result
On Petition for Behearlng.
PER CURIAM. After a careful eonsldera-
tton of the matters both of law and fact set
ftnrth In the written petition, this court Is sat-
isfied that it has not overlooked any mate-
rial matttf of law or fact It Is therefore
ordored tbat the petition be and the same
is her^y refused and that the stay of the
remittitur heretofore ordered be revoked.
<n W. Ta. IBS)
SPRINKLB, Sheriff, v. BIQ 8ANDT GOAL ft
COKS) GO.
(Supreme Court of Appeals of West Yirgliiia.
AprU 29, 1813. Rebearing Denied
June 80, 1913.)
(BvUalMa bf tike Court J
L Hama Aim Sbjivaiit (i 168*)— Dunr to
IHBTBUOT AHD WABK— AOTIOVABLB NCQU-
QBNCE. . .
It is sctioBable negUgence to employ a
mtator-and ^ace him to work at a dangeron*
employment withoat InstmctiDg Idfn as to the
dangers and bow to avcdd them.
[Ed. Note. — For other cases, see Master and
Servant Cent Dig. 11 S14r^7; Dec. Dig. I
168.*]
2. Mastib and Ssbvant (| 265*)— Mimobs—
Appbbciatioh or Darobb— Pksuhftion.
A minor, over 14 years of age, is presom-
ed to have snffident capacity to appredate the
ordinary dangers attending his employment
But the presnmptlon msy be rebutted by proof
of want of capMlty.
[Bd. Note.^For other eases, see lUster and
Servant, Gent Dig. H STl-WB, 865; Dee. Dig.
S 265.*]
3. EviDENCB (S 478*)— Qpinion BviniKcn—
Ikjobt to MiiroB.
Opinions d nonexpert witnesses, based up-
on frequent observaticms of, and conversations
with, a person extending over a period of sev-
eral months, are admlsdble to prove want of
capacity.
[Bd. Note.— For other cases, see Qvidraee,
Gent Dig. H 2242-2244; Dea Dig. { 47a*]
4. HAOrBB ANn Bsbtaiit (I 80%*) — Um
Boss— AOSNT OF MASIEB.
A mine boss, authorized by the mine oper-
ator to employ men and assign them to work-
ing places, is pro tanto the agent of such op-
erator.
[Kd. Note. — For other cases, see Master and
Servant Cent Dig. | S68; Dec Dig. | 8B%.*]
5. Masteb Aifn Sebvakt (| 151*)— Injubt to
MiNOB— Actio NABUE Neolioencb.
A coal mining company, by permitting Its
mining boas to employ men repeatedly and- as-
sign them to pUees of work, thereby makes
him Its agent for that purpose; and, if sucb
agent employs an infant, who does not appre-
date the dangers of bis employment, and fails
to instract him concerning tbe dangers and how
to avoid them. It is negugence for which the
company Is liable.
tBd. Note.— For other eases, see Master end
Servant Gent Dig. 1 296; Dee. Dlg^ 1 HO.*]
6. Masteb and Sbbtaht (| 161*) MlNon!
BlfPLOTft — DUTT OF MABIO — AOEIOHABLB
Nbglioence.
To see tbat sn infant semnt has sofll-
dent cepadty to understand tbe dangers of his
employment, and to properly instruct him In
regard thereto, is the master's nonassignable
duty, tbe failare to perform which consututes
negligence for which the master is liable.
lEd. Note.— -For other cases, see Master and
Servant, Cent I^. f 298; Dec. Dig. | 161.*]
(Addttional SyOabm BditorM Btaff.)
7. NeOLIGENCB (S 122* )— COHTBlgUTOBT NXO-
UOEnOE— BUBDEN OF PBOOF.
Contributory ue^gence Is a defense which
the defendant must prove if it does not appear
from facts and drcnmstances proven by plain-
tiff.
[Ed. Note.— For other cases, see Negligence,
Cent Dig. II 221-223, 229-234; DecIHg. 1
122.*]
Error to Circuit Court McDowell Oonnty,
Action by B. T. Sprinkle, Sheriff, etc,
against the Big Sandy Coal & Coke Company.
Judgment for plaintilf, and defendant teings
error. Affirmed.
Anderson, Stnther ft "Brngam and Btokes'
ft Sale, all of Welch, fior gHalntUt in ertor.
Strotber, Taylor ft Taylor, of Wtfdk, and
Bits ft Rits, of Blotfleia, flsr deCMidant In
error.
•For otbsr casss se* same te^ ted seetfea NlOlfflftR la Dec Die * Am. Dig. Kv-Mg^^ff^ l9^'^9'<iP$9°^C
7S S0DTHBA8TBBN MPOBTDB
(W.Va.
WILLIAMS, X Action by tbe admliilstra-
tor of Alexander Turner, deceased, to recov-
er dama^ for his unlawful death, alleged to
have been caused by the negligence of defend-
ant Verdict and jndsment for plaiutia for
91(^000, and defendant obtained this writ of
error.
Deceased, tL boy 15 years old, was employ-
ed,' with his father's knowledge and consent,
as trapper in defendant's coal mine In one
of the side entries in which the ears were
drawn by mules. His fatiiar also worked in
the same mine Shortly before the fatal ao-
cid«it the father made a trip to ^rginla and'
left his boy In charge of Mr. Abe Short, the
mine boss, who, the fattier testifles, prom*
ised to take as good care of him as be would
of his own boy. While the father was away
the hoy quit work for three or four days.
When he returned to resume work, Abe Short
was away att^dlng court, and A. C. Wil-
liams, assistant mine boss, was filling his
place. Williams thought the boy had quit
work, and had employed anotiier boy to trap
at the place where deceased had been trap-
ping, but he needed a trapper In the main en-
trance and employed the boy, and put him to
work there. He had been at work only
about three hours until he was killed. Tbe
cars are operated in the main entry with
electric motors. No one saw Just how the
hoy was killed. Mr. Williams was on the
motor, to which wwe attached 17 loaded
cars, and teaOfies that he saw the boy hold-
ing the doOT open and standing in a stooidag
posltloQ.
It was not known (hat he was killed until
Ow motonuBn disoovered, by the action of his
motor, that -something had gone wrong witit
his train. He stt^ped, went back to make
an ezamioatlon, and found that two cars
wwe off the track, and that deceased's body
was under one of them. There is evidence
tending to prove that bis body had been
dragged from near the door to a point about
180 or 200 feet from it When the train was
stopped, the hindmost car was 150 or 160
feet from the door, and tbe car off the track
nearest to the door was about 180 feet from
it The first appearance, near the track, In-
dicating that a car had left It, was about 160
feet from tbe door. It thus appears that the
trip had gone some 20 or 80 feet after the
first car had left the track. It also appears
that the boy was not killed by an electric
8ho<^, because ttw wire was on the opposite
side of tbe cars from him. His sweater and
shirt were found pulled off his body knd
tnrned tnatde out Whether he was killed
at the door, and his body thereafter dragged
until it got under tbe car, causing Its de>
raUaien^ ov Us ^'Ifftb^ng oaii^t on ionw
part of tbtf car aod he was dragged and
kUIed by the derailment of the car, does not
appear. The evidence, howew, la sufltekent
to warrant Uw Jury In eonelnding that fa*
met his death in one or tbe other of Utosa
ways.
That the work of trapping where the bay
was killed was more dangerous than la the
side raitry where he had previously tran>ed
Is also proven. The space between the cars
and tlie wall of coal in the main entry was
much narrower. A -wttnees who measured
It testifles that It was only 22 indies from
tb» rail te the wnu, and Uiat tbe body of
the car, including the brake, extended beycmd
the rail 12 or IS Inches. It also ai^ieara
mat the brake, <»i the side of the cars whera
the boy had to be to perform fats work, ex-
tended heyond tfae body of the car 8 or 4
indies. Hie trip of can was of greater
length, and therefore more danger of a car
leavliv the track than there was In the side
entry. The boy's father testifles that he
trapped, at the place where the fatal acci-
dent occurred, for half a day when tiie
ular trapper was away, and found It to be
a dangraons place. He says there was not
room to stand with safety and hold the door
open while the trip was passing, and that.
00 the approach of the motor, he would prop
the door open and then take refuge In a z»-
cess in the wall, about 100 feet away. Mr.
Williams testifies that most other trappers
who had worked there would do the same
thing. But he says that some .of them
"were pretty reckless; didn't care if they
stayed at the door, and I suppose this boy
had seen theih In going to his work, and he
Just done as they did."
Defendant offered no evidence and submit-
ted Its case upon a demurrer to plalndff*8
evidence
Three acta are averred in the declaration
as constituting actionable negligence: (1)
That defendant failed to furnish plaintiff's
intestate a reasonably safe place to which to
work ; (2) that It negligently took him from
the place where his father had consented
that he shoald work, and put him to work at
a more dangerous place; &) that he was
only 15 years old, and possessed less capaci-
ty than boys of that age ordinarily possess,
and was put to work at a dangerous em-
ployment without being Instructed as to how
to avoid the dangers Incident thereto.
As to the first, the statute (section 11, c
15H, Code 1006) makes it the duty of the
mine boss to "keep a careful watch over the
ventilating apparatus and the alrwaya, tra«-
eiinff urov*," etc. It was his duty to see that
the entry was made of .proper width for tfae
safety of the mines. Becent decisions of
this cbor^ oonstndng ^t statote, settle the
question that the operator is not liable for
Injuries resulting from tfae failure of the
mine boss to perform duties retinlred of him
by the vtatate. Wniiams t. Thacker Ooal *
Coke Go., 44 W: Ta^ D90, 30 & B. 107, 40 Ll
B. A. S12; E(anUa«hfi Coal ft Coke Oo. 64
W. Va. 887;ie2 S. A dM; Brallay, Adn'r,
r. Tidewater final ftOofce Go.,^ W. VajSTBk
■■Digi'tized by VjOOQIC
SPBINKXA SIG SANDT COAL « OOKB 00.
ee S. n.'684, 40 Ii. B. a. (N. S.) 1101, Ift Ann.
Gas. 510; Davla v. Habscot Coal A Coke Co.,
69 W. Va. 741. 72 S. EL 1030; ana HelUel t.
Finer Ooal A Coko Gd.» 70 W. Va. 78 8.
S. 280l
[1] The second and tblrd counts are suf-
ficient, and may be considered togetber. Tbe
law makes it tlw dnty of tbe master to warn
his infant servant of the dangers attendli^
Ills emplf^ment, and to instruct blm how to
aT<^d them, nnless he already fnlly under-
stands them; . or, nnleaa they bm bo simple
and obvious tbat it can be fiilrly presumed
that one of his age, possesdng ordinary
capacity, fully appreciated them. Ewing t.
Lanark Fuel Co., 60 W. Va. 726, 65 S. B.
200, 29 li. B. A. (N. S.) 487; Shaw T. Basel-
AUas Ca, 70 W. Va. 676, 74 S. B. 9ia
Deceased had never trapped In the main
entry before, nor Is there any evidence that
he was told tbat It was narrower and more
dangerous than the side entry In which he
bad trapped. It Is not proven that the
dangers of the place were explained to bim
in such a way as to enable him to compre-
hend them. He was simply told to keep out
of the way of tbe trip. Mr. Williams says,
"I cautioned htm, to keep in the dear as
much as possible of the trip." Perhaps he
thought the boy bad had experience as a
trapper, and knew how to keep out of
danger. But he was confronted with new
and greater dangers than he bad been ac-
cnstomed to. It does not follow that, because
he had bad experience in trapping at another
place, he fully appreciated all the dangers of
the new place.
Counsel for defendant insist, however, that
It Is proven, by the father's own testimony
that the boy was fully Informed of the dan-
gers of trapping In the main entry. In-
structions are for tbe purpose of Information;
and, if he was already fully advised and
cautioned, further Instructions were not
necessary. He would then be regarded as
having assumed tbe risk, for tbe doctrine of
assumption of risk applies as well to an In-
fant as to an adult It is only necessary that
he should appreciate the danger in order to
apply the rule. 1 Labatt on Master and
Servant, { 291. True, the father does testii^.
that be told his boy that It was dangerous
In the main entry, and told him not to work
there. But he does not say that he explained
to bim wby, or in what particular, it was
dangerous, or that he showed him how to
avoid the dangera. Simply USUng blm that
It was dangerous is not enough. It required
Instruction, explanation. He does say that
he showed blm how to ke^ away from the
wlrei^ in going .In and out, but the wires were
not tbe proximate cause of his death. He
also Bays that th«y wanted hla boy to trap
in the malD entry, and he wonld not conaatt
to it; that he tvappcd ther« for a half diqr
Mmselt an#. leazaicd tbat It waa danferwiB.
{!] Being over the «ge of 14 yean^ it !■
preeoraed iliat deceased had aoffldent capaci-
ty to cfMnprehend, and did eomprdiend, all
tbe indlnary riaka attendant upon bia raaploy-
ment WUklnaon v. Goal Co., 64 W. Ytu 93,
61 8. B. 875k 20 U B. A. (N. 8.) 831, and
Bwing T. Lanark Fuel Oo., nqna.
[t] This pieaumptkHi may be rebutted by
proof tlut be did not, in fiict, have flia
capacity ordinarily poaaesaed by boys of hia
age, to understand and avoid dangers. Two
or three witnesses who had known the boy
intimately tot eight or nine months, teatt^
tha^ in their opinions, he bad less capadtr
than waa ordinarily' ponacDsod by boya of )da
age. Oneof tbmsaya: "Heaeemedtobeaw-
fnl slow In understanding anything you would
tsii bim." TtAr opinions were based opoa
observations of and conversations with the bor
extending over a period of several months.
Some of them saw him nearly every day dmv
ing tbat time. That furnished a snffldent ba-
sis on which to rest their opinions. Hla capao-
Ity was a matter of w^ich ordinary witnesaea
could judge. It waa not a matter calling tat
expert testimony. Opinions of ordinary wlt>
neasea, baaed upon acquaintance and observa-
tion, la admtaslUe, and the Jury were the
Judgea of its value. Freeman v. Freeman,
76 S. B. 657; Laplante v. Warren Cotton
Mills, 165 Mass. 487, 43 N. E. 2M; Keyser v.
Chicago, etc.. By. Ca, 66 Mlcfa. 800, S3 N. W.
868. The Jury were Justified in believing,
from tbe testimony In the case, that deceased
possessed less capacity than boys of his
age generally have.
[4, t] It Is Insisted by counsel for defend-
ant that it is not liable because they say It Is
not proven that Williams had authority to
employ the boy. That he was «uployed and
pot to wotk In tbe main entry by A. C. WU*
llama, assistant mine boss, is fully proven.
If Williams had authority to employ servants
and assign them work In the mine, defendant
is liable, if such act is negligence, for he did
not act as statutory mine boss In so doing,
but was performing a duty of the master.
It is not proven by direct evidence that he
did have such authority. But It may be
inferred from facts proven. Ewlng v. Lanark
Fuel Co., supra ; Union Pacific By. Co. v.
Fort, 17 Wall. 663. 21 K Bd. 739. Being a
corporation, defendant was obliged to carry
on Its operations through agents. It is not
to be supposed that a directors' meeting was
necessary to employ men and assign them
work. Borne individual must have been in-
vested with that power. It is proven that
Mr. Short, tbe mine boss, had employed both
the boy and his father, and bad promised tlie
fatber to let the boy work at a particular
place and not elsewhere ; that Hr. Short w«s
not about wben the boy returned to the
mine after being off three or four daya, and
that A. C. tVllliams, assistant mine bwa, waa
then In chatge of tbe mine; tliat be em^oyed
deceased and assigned htm to trap In tbe
msdn entry, and that be priM.tbes^i
' -■ ■ - ■ Digitized by VjiOOQlC
974.
T8 80UTBBASTBRN BBPQitTEB
employed anotber 'bojrto trap where deceased
had been trapping. In view of these un-
omtroTerted beta, title Juxy could propo^
Infer Uiat Wllllama was the agent of de-
fendant, and acted for it in eanployfaw de>
ceased and aaslgnlnf him a place to work-
[I] Uke the duty to famish reasonaUy eafe
appliances, It la the master^ nonassignable
dnt7, espedally to his Infant serrants, to
Instruct them In regard to the dangers In-
cident to their wnvio^tsxt If WUlUuns
failed to perform that duty, snd the jnry
wen satl^led by the evidnoe that such fiMl-
nre was the proximate cause of the boy's
death, tben defendant la liaM&
[7] Contributory negligence Is a defOise,
and must be proved by defendant, If It does
not appear from fitcts and drcamstances
proven by plaintiff. Defendant offered no
proof, and the Jury certainly had a right to
conclude that deceased was not guilty of
n^llgence.
The Instructions, given at the request of
pUlntifl, are conslstait with the law as
herein expressed; and It was not error to
refuse defoidant's Instructions which the
court did refuse. We think the Instructions
given fairly presented the law of the case to
the jury, and deem it anueceasaxy to dis-
cuss than seriatim.
The Judgment is afOxmed.
<n.w. va. w)
OAETBB T. STOWERS at aL
(Supreme Court of Appeals of West Tirginla.
June 24, 1918.)
tBfVajHU by ike Court.)
1. Mum OTP COBPOBATIOITS (J 48*) — C01£-
VZSSIOIT FOBM OF GoVESmiENT— IMnOI AS
TO POLmCAX, Obganizations.
Hie charter of the dty of BInefield, pro-
viding for commission biputiian goveniment,
does not guarantee the extsteDce of established
political organisations, nor prednde the forma-
tion of new ones.
[Bd. Note^For other caaea, aee ManldpaJ
Corporations, Cent Dig. U m, 128. 13l>-183;
DecTpig. I 48.*1
2. BuEonons (fr 180*)— Pabtt Oboanizatioh
— AmuATioNs or votsbs.
Totera raa; beloQc to one political organi-
satloD for uatioDal and state parpoaes and an-
other for municipal parpoaes.
[Ed. Note.— For other caaea, see Blectlons,
Cent Dig. IS 151-165. 157; Dec Dig. | 180.*]
8. BUOnONS (f 180*)~TOTKBB — Pabtz Am-
nUATlOIT.
In an deetlon under sdd charter, a voter
may vote for the regular candidate of the Re-
{>nblican party, nominated by convention, and
or the candidate of the Independent Republi-
can party, nominated by petition, they being on
separate tickets on the same ballot sheet, not-
withstanding the letter filed an affidavit saying
he was a member of the Republican party,
dalmed allegiance thereto, and had been nomi-
nated by petition.
[Bd Note.— For other cases, see ETectfoos,
Cent Dig. H 161-156, 157 ; Dec Dig. ! 180.*]
4. BLBcnotrs (1 180*) Baixots — UoDK or
VOTIKO.
Under said charter, authorizing any politi-
cal party to nominate twice as many candi-
dates for offices aa can be elected to represent
it in offices of the class for which they are
nominated, a voter may validly vote for all the
candidates on bis ticket and Is not bound to
vote for only part of the candidates tm his tiidk-
et for a given office and tike balance on some
other ticket
[Ed. Note.— For other cases, see Elections,
Cent Dig. ii 161-166, 157; Dec Dig. 1 180.^
Petition 1^ Bl B. Garter against 8. Franler
Stowm and others. Writ awarded.
Sanders & Crockett and John R. Dillard.
all of Bluefield, for petitioner. Ross ft
Kahle, of Bluefield, Vinson & Tbompson.
of Huntington, and D. M. Basley, of Blue-
field, for resirandents.
POFFENBARGER, P. At an election held
In the dty of Bluefield on the 6th day of Hay,
1913, for the election of city officers, under
its cbarter providing for said dty a commis-
sion form of government, Carter was the
nominee of the Republican party for member
of the t>oard of affairs, J. B. Shumate of the
Democratic party, J, R. Johnson of the Pro-
gressive party, Henry A. Lilly of the Inde-
pendent Republican party, and A. Lynch of
the Independent Democratic party ; the first
three of whom were regularly nominated by
conventions of their respective parties, and
the last two by petitions filed In accordance
with the statute. As a result of the canvass
of the votes, made on the 13th day of May,
1818, Carter bad 927 votes. Shumate 925,
Lynch 816, Lilly 762, and Johnson 239. An
Carter and Shumate were the two candidates
having the highest number of votes, both
were elected to membership In the board of
affairs, bnt, in order to determine which of
them should be mayor, it became necessary
to ascertain finally wtiich of them bad the
highest number of votes. Accordingly Shu-
mate, believing himself to have received the
greater numl)er of valid votes, demanded a
recount, which resulted In a finding of 918
votes for blm and 909 for Garter. This re-
sult was accomplished, in part, by rejecting
25 votes cast for Carter on ballots marked for
Carter and Lilly, the regular Republican nom-
inee and the nominee for the Independent
Republican party, and by rejecting 10 votes
cast for Shnmat« on ballots marked for Shu-
mate and Lynch, the regular Democratic
nominee and the nominee of the bidependent
Democratic party. This action was baaed up-
on the view that Carter and Lilly were both
B^mblloans and Shumate and Lynch both
Democrats, and tliweCore not entitled to the
vote of any p^son oh 'the aune ballot. In
other words, the canvassen wwe of the oito-
lon that no votor could vote tor both Caxta:
and Lilly beeanse they were BmaUlcans,
nor lor both' Shumate and X^rndi beeanse
they Were Demoorats. The charted was con-
•For otbw aasas ■•• ssbm tople aad seettoa NVUBBR la Dee. Dls. A Am. Dig. |lf^f^^^f^^^(9<
OABTBB T. BTOWXBfl
s trued u InliibltlBg tbe voter from voting
for two candidates representing tbe same
political party, and ballots prepared In viola-
tion of this supposed limitation were treated
as void for all purposes.
[1] We have Just decided. In the case of
Peyton t. Holley et al., 78 S. E. 666, not yet
officially reported, tliat a charter adopting
a commission form of government for a city
was not intended to secure the existence or
continue the maintenance of the pplltical
parties in existence at the time of Its adop-
tion, nor to prevent the formation of new
political parties by dlssatiafled members of
old ones. We have also decided that a new
party may be organized under the name of
an old one, qualified by some dlstingalshlng
word, such as "Independent"
[2] The distinction between party afflUa-
tl(m for national and state political purposes
and party affiliation for municipal purposes,
has also been marked. A voter may belong
to one party for ^tional and state purposes
and another for municipal purposes. All this,
however, Is subject to the limitation of hon-
esty and sincerity of purpose In the organiza-
tion of such new party. And our conclusions
in that case have not been changed in any
manner by the argument anbmltted ujKm 0ie
hearing of this one.
In the matter of par^ nominations and
recognition of political parties, these charters
adopt the general state law. The Bluefleld
charter provides In sectltuk 10 thereof as fol-
lows; "Candidates to be voted for at any
municipal election for members of the board
of aCTairs and members of the coontll, may
be nmainated by oouTention, prlrnai^ or petl-
tl<»i, In the nuumor and under the provisions
now or hereafter prescribed by state laws re-
lating thereto." These laws prescribe the
mode and manner of obtaining and holding
ft status as a political party and securing
representation upon ballots as such to be used
In elections. Since they are adopted for the
imrposee of commission government and elec-
ttons under charters providing for such
government, the ascertainment of the exis-
tence of a political party or oi^anlzatlon
and Its character Is governed by the same
rales as are applied Sa ascertaining the exis-
tence and eharacter of political parties fbr all
ofbsx purposes, and when It has been ascer-
tained and the existence of the party estab-
lished, Its rights in respect to representation
In mnnl<dpal offices are governed by the pro*
visions of the charter.
(S, 4] The petition by Ote lUlng of wUch
Ully was nominated, signed by numenms
votm, declared him to be tlie representative
of the Independent BepuhUcan party. By
Tiitns of this petition be obtained a ^ace on
tbe official ballot as a candidate wda the
party name adopted In the petition. Comply-
ing with a requirement of the charter, he
filed with the dty auditor an affidavit, dated
April 1^ 191^ saying he was a member of
the Bepubllcan party an4 claimed allegiance
thereto, and had been nominated for member
of the board of aftalrs by petition duly filed.
No petition nominating him other than the
one mentioned was filed. None nominating
him as a candidate of the Bepubllcan party
could have been filed, for that party nomi-
nated by convention, and did not nominate
him. In an affidavit filed at the hearing of
this cas^ he says he has always affiliated
with the Bepubllcan party, did not partici-
pate In the Bepubllcan Convention, was after-
ward Induced to run Independent and as a
Bepubllcan, was nominated as such by peti-
tion, filed an affidavit declaring himself a
Bepubllcan, and would have represented tbe
Bepubllcan party, If he had been elected.
He assigns as his reason for uonpartlclpatlon
in the convention his inability conscientiously
to support the man he knew would be nomi-
nated. This state of facts is relied upon as
proving he was a candidate of the regular
Bepubllcan party, notwithstanding his can-
didacy as the representative of a rival or-
ganization having a different candidate. He
was unquestionably the nominee of persons
opposed to the election of the regular Bepub-
llcan nominee. These two organizations must
have represented different measures or pol-
icies of city government They organized un-
der a separate and distinct party name and
nominated a candidate. Obviously there was
no collusion between them, for they were vig-
orous antagonists. Lilly's affidavits man-
ifestly mean no more than that he affiliates
with the Bepubllcan party in national and
state politics. Tbe petition by which he was
nominated fixed his status as a candidate
for tbe purposes of the election In question,
no coUudon or fraud having been shown, and
voters could legally vote for both him and
Carter, under the Interpretation of the cbar-
ter as to a HodCation upon the rlg^t of voters
assumed by the board of affairs to exist
And there Is another avenue by whicb tbe
same oondusloo can be reached. The ques-
tion presented differs from the raie Involved
in Peyton t. Bolley et aL Here botii candi-
dates are elected, and tbe votes In question
are eonddered only upon an inquiry as to
which ot them shaU be mayor by virtue of
his redpieney of the lai^r number of rotes.
Tbe hoard of afflalrs deducted from tbe total
vote received by Carter 26 votes on the as-
sumption that tbe voters In casting tbem bad
voted for two B^bUcans for the office of
member of board of affairs, instead of me
Bepubllcan and me Democrat; <nr one Be-
publlcan and a candidate of some other
party. These ballots were treated as void
and not countable for any person, because the
charter, it Is argued, does not permit a
person to rote for two canditotes of tbe
same political party. ^Diere is no such ex-
press Inhibition in it For all Uiat a^mta
in Its t^ms, a voter may vote for two can-
dldates of the same political party, and It
Digitized by Google
permita a 'political party to nominate two
candidates tor eacb office It is entitled to fill
as a winning party in the election. Tbe argu-
ment assumes obligatton on tbe part of a roter
to rote tor a candidate for tbat particular of-
fice on each of two tidEets, because two of-
fice^ and only two, were to be filled by the
election of two men from different political
parties. The statate contemplates party
r^reaentation, and permits any poUtieal
party to nominate twice as. many candidates
OS then are offices which It can fill. This
provision may be designed to set party
against party as well as candidate against
canAdate. If a Bepnblicaii Is permitted to
Tote tor two RepnbUcan candidates and his
vote can be counted, that gires his party an
advantage over any other rival party, with-
out deciding as between the two candidates
of his own party, and he may wish to vote for
two candidates of bis own party In order
to obtain that advantage, to the end that
his party may prevail over Its rival In the
election. In so doing he may leave tbe uolU
ter of choice between tbe candidates of bis
party to be settled by other voters who bare
preferences as between them. In other words,
the Legislature may have intended to afford
opportunity to the voter to vote for only one
candidate, and the voters of each political
organization to settle among themselves the
election of an officer from among their
number, while the voters of other political
oiganlzations express their preference as
between men of their party. At any rate,
tbe L^islature has not expressed any Inten-
tiou to require a voter to vote for only one
candidate of his party. If such Intention is to
b« tound In tbe statute, it is matter of im-
plication. Ttiere are two offices to be filled in
this instance, and though only onft Re^ub-
Ucau or one Democrat, as the case may be^
can be elected to one of these offices, the
contest goes beyond the Individuals who are
candidates to rivalry between the political
organizations, and, if tbe voter sees fit to
vote for two men of his own party, his vote
so cast sustains his par^ against other
political organizatiMis, without expression of
preference between candidates of the party,
and is theretore not wholly lost It has an
effect notwithstanding the InaMlity of hia
party to put two of its members into tbe of-
fice. If tills be the true eonstmction of tbe
statute the 2S votes deducted from Garter's
total of ballots cast tor him wa% valid and
countable tor him, though it be conceded that
lAUj was a Repnbllcaa
Shall we insert this Inhibition or limita-
tion in tbe statute as having been neoesearflj
ImpUedf It ts not necessary to the maizir-
tenanoe of bimrtlsan administration. That
Is contn^ed by the rule governing seleetlon
of the officers from the candidates, after tbe
election and others providing tor division of
patronage or appointive offices between the
prevailing parties. The rl£ht of members of
a party to vote tor two of Its candidates at
the same time mi^ be a valuable <me. and
highly necessary to ttie maintenance of party
representation In office, as has been shown.
The Legislature omitted this Inhibition. Why
did It do sot Presumptive because Qiat
body detfned tt unnecessary fbr the accom-
pllahment of the purpose of the act If we
Insert It as something Implied, we must find
It is esamtial to the achievement of the
legislative purpose, for only necessary Im-
I^catlona can be adopted, ts It nec^sary?
Not at all, tor the reason already Indicated.
Under certain conditions, Its tendency would
be to defeat the legislative purpose^ rather
than advance It
MIU^BIB, 3^ aheeiib
78 southoasthhn ^seo&Tsa
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soBXBTBOlr Sr.imTKBir umoir'TSEaaBAPH oo.
977
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BOBICBTSON T. WESTERN UiaON TEI.-
BGBAPH GO.
OSaprcoiB Oovrt of Soath CaroUu. Jum 13,
1918. On Fetitfon for Behoar-
liiC Aug. 2, IfllS.)
1. TlLBOBAPHB AND TKtBPHOmS (| 78*>—
Teleqbau — Delat — Waives or OnxoK
HOUBS— QUESTION FOB JXTBT.
In an action againit a telegnph eompany
for delay in ddiveriiis a tBlogram, where the
defense waa that the menage was sent after
office hours at the place of aeliverr, held, an-
der the evidence, to be a goestion for the jar;
wbetiier It bad waived tba right Co Inaiat npoB
these ofltee honn by habltnall; dleregardinc
them.
[Ed. Note.— For other cases, see Telegraphs
and Telephones, Cent Dig. i T6 ; I>ec. Dig. %
7a*]
2. 'ta.BGBAPHS AND TBLXPHOMBS <| 4S*)—
AaENT—ScoFB or Euplotubht.
Though a telegraph agent violates loBtnic-
tioQS in receiving and transmitting telegrams
after office hours, yet, In so doing he is acting
wltUn the scope of his employment, and his
acts bind the company.
[Ed. Note.— For other cakea, see Telegraphs
and Telephones, Cent Dig. 1 30; Dec Dig. S
48.*]
5. APPBAI. and EBBOB it 1000*)— HABlfLKBS
Bbbob— ADinaszoir or EnnifcB.
In an action agaiaat a telegraph eompany
for delay In delivenng a telegram, and its de-
fense was that it was received after office hours,
thongb it was error to admit evidence as to the
reasonableness of the hours, It was bannlesa,
wlnre the issae was not whether they were rear
■onable, but wbetber they had been waived by
habitual disregard of them.
[Ed. Note.— For other cases, see Appeal and
&ror. Cent. Dig. |f 1068, 1069, 4lBa-4157,
4166; Dee. Dig. I U)60.*]
4. Appeal Ain> Ebsob (S 1004*)— Bbtibw—
. BxoBsaivB Vebdiot.
A verdict will not be set aside by the ap-
pellate court because excessive, unless it is so
excessive aa ito manifest caprficiousness or
band.
{Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. H 3944-3947; Dee. Dig. {
1004.*]
6. Tbleobaphb ard Tblxphoreb a 71*>— Ac*
TTON— Mbntai. BumBlira—DAiuau Nor
EXOBSSITB. •
A verdict for $370 against a tel^rnipb
company for delay In deliverit^ a telegram to
a wife, relating to the stckness ot her husband,
is not 80 exoesslTa bb to show ciwrklouiiieBa or
fraud.
[Ed. Note.— For otiier casea. see Telenapba
and Tetephooes, Cent. Dig. S 74; Dec; iMg. 1
71.*]
On Rehearing.
6. TbuobXphb ahd TxLEPHoms a 88*>—
Telbobah — IteLAT — OBnoB Hoiwi —
Waives.
Where the office hours of a telegraph sta-
tion were fixed by the rules at the ci»npany
from 8 a. m.. to 6 p. m., tbe company cannot
escape liability for delay In delivering a mes-
sage received after office noun, If it had bablto-
alJy disregarded the office boars.
[Ed. Note.— For other cases, aee Tetegimphs
and Telephones, Cent Dig. | S3; Dec. Dig. i
S8.*l
T. Tbuoraphs abd Txlbfhoitbs (I 74*)—
Tbleokaic— OmcB Houbs- iNsmvcnoff.
Where, In aa action against a telegraph
eom^any for delay in deUveruig a melsagc, Ihe
eoort chwnd plaintiffs roqacBt "tiial^ Cbon^
the telegraph company had a. regulation that its
office should close at a certain hour, yet it may
bind itself to deUver after ■ closihg time, by
agreement, aa there was no evid«ice of an
agreement it was erm to refuse defendant's
request to cha^ that tliaie was no evidenco of
sucb an agreement
[Ed. Note.— For otlier eases, see Telenaphs
and Telephimes, Cent Dig. | 77; Dec Dig. f
74.*]
8. AppeaX. and EBBOB (11066*)— Tbcbobam—
Delay- InBTBUonON-^AxuLESs EBBCfK.
In an action against a telegraph company
fbr delay in delivering a message, though It was
error to charge that, even though tbe company
bad a regulation that its office should close at
a certain hour, yet, it could bind itself to de-
liver, after closing time, by agreement it was
harmless, as there was evidence tending to show
a general waiver of the office -hours, and as the
court stated in connection with the charge that
the burden was on plaintiff to sbow such sn
agreement
[Ed. Note.— For other cases, see Appeal and
Drror, Cent Dig. { 4220; Dec. Dig. f 1066.*]
Appeal from Common Pleas Clrcolt Conrt
of Eklgefleld Cotinty; S. W. O. Shipp, Jndgft
*rro be ofBcially reported.'*
Action by Mrs. SalUe Robertson against
the Western Dnlon Telegraph Company.
From a Judgment in favor of ptalntUT, de-
fendant appeals. Affirmed.
Jobn Qary Evana. of Spartanburg, and N.
O. BraoB, of Edgefield, for appellant Thur-
mond & NicholBon, of Edgefield, for respond-
ent
QART, C. J. This Is an action for dam-
ages, alleged to have beeA sustained by the
plaintiff, tbrougfa tbe' negligence of tbe
defendant, In falling to deUver a tel^ram
within a reasonable time.
The plaintiff and her husband lived at
Ninety-Six, S. C, and worked in tbe factory.
The husband went to Edgefield, 8. C, on a
bicycle, to visit his sister Mrs. Kate Walts,
and be<temlng suddenly in, sent the foUowli^
telegram to his wife on the 17th of Joly,
1910: "I am sick; we will be home to-
morrow on train." He failed to arrive at
home on the 18th of July, and his wife, on
that day sent to him the following messaga:
"When will yon be home?" And In reply
thereto, Mrs. Kate Waits (In whose care the
telegram was addressed) on tbe ISdi ot
Jnly, 1910, at 6 o'clock p. m., delivered to
tbe defendant, for transmlBsion the follow-
ing telegram: "Jerry Is on way on bicycle;
left at ten." The said telegram was not
delivered to the plslntlft onttl the next day
at 10 o'clock a. m., Jnly 19. 190.0, and as tbe
resnlt of the failure to dctUver the last^n^
ttoned telegram, the plaintiff all^^es tbat aba
suffered mental angidsh from 7 o*oloc3c p. m.
of 18tb July. 1010, until 10 o'clock p. m. of
that day wb^ her husband, Jerry Bobertaout
xMnmed home. The defendant latavosed
the defmaa- that Its offlc»- bonm at Ninety-
Six for receiving and transmittiiig messages
were from 8 o'dodt in tbe morning until
*Por otber cshs
7SS.B.-e2
lee same tophi ud'seetloa NbufiB^ In Dec. Dig. * Am. Die. K«r-l^.^Swi^^ft ^ {J^^C
9»
T8 BCyOZBBAJBEBBir BBDPOBEKB
6 o'cltKA In the erenlng, ttiat tbe message
was not deUvered for transmission until the
office boors at ^Inety-Slx had closed, and
that the same was not received at said office^
nntU next morning when it was promptly
delivered. The jury rendered a reidict In
favor of the plaintiff for f376k and the plain-
tiff appealed, upon exceptions whidi will be
reported.
t1] The flxst qnestion that will be eon-
sldered'la whether there was any testimony
tending to show that the defen^nt waived
thc) right to insist upon the D/Oaa hoars, men-
tloned in the defense.
■ Q. M. Wilson* a witness for the defendant,
and who was its agent at Ntnety-SIz at the
time hereinbefore mentioned, thns testified:
**Q. Ton say your office hours were from 8
to 9? A. Tee, sir. Q. But as a matter ot
faet^ did yon not make it a cnstom to reeetve
and deliver messages aftw that time? A. If
any one wonld come along, we would do It;
we vronld not do It for any one else. Q. As
a matter of fact, if you wlU examine one of
those ttiegnuns )>ien, yon will see that it was
received at TdS, and sent at 7:16, and yon
stated that yon all were in the haUt of Te>
ceivinc uMl delivering messages after that
time?
**Mr. Evans: He never said Oiat
"Mr. Nicholson ; I am askiztf him.
"Q. Now, frankly, were yon all not In ttie
habit of receiving and sending messages af>
ter 6 o'clock? A. Any time we were in the
■office we would do it ; I would ; I have sent
them at 4 o'clock in the morning. Q. And
you state that at that time you were in the
habit of receiving and delivering telegrams
for people after 6 o'clock? A. We wonld do
it
"^Mr. Evans: Q. State whether or not the
mere fact that yon occasionally transmitted
or received a telegram, state whether or not
that was In your official capacity as affecting
your office hours? A. No, Blr. Q. It did not?
A. No» Sir.
"Mr. Nlt^olson: That is a matter for the
Jury.
"The Conrt: Let hbn state what Us roles
were.
"^Mr. Evans: Q. What were the rules that
you- observed as to the opening and closing
of your office for Western Union business?
A, From 8 a. m. until 6 p. m. Q. Were those
rules promulgated by the company and ob-
served by yon? A. it Is the Id-hour law that
fixes it Q. They are not allowed to work
longer tban 10 hours? A. Ten hours and not
over 16. Q. That is fixed by law? A. That
Is what they told us. Q. And everything that
yon did after that was tfmply out of your
own good heart) A. Yes. sir. Q. And an act
of fanmanlty on yonr part? A. Yes, sir.
Q.^ If yOn were In yonr office^ after the office
was dosed for bnriness, and .yonr door was
closed, and some one came to you with a
death metago, whet would yon do? A. X
would send it Q. Ton wonld try your best
to send it? A. Tes, lAr. Q. Would yon Htliik
yoQ were doing wrtmg, or wonld yon think
yon were acting as hnmanity would dletate^
to any one?
"Mr. Nicholson: We object to that
"Mr. Evans: , What yon wonld do wonld
not be reauired of tbe company, bat as an
act of hnmanlty?
"Mr. Thnmumdi TtaiU Is a mattv ot
opinion.
"Ib» Oonrt: He can say wfaeUm or not
the rules of the company required him to
doit
"The Conrt: He has already said that the
rules of the company did not require him to
do i^ but that he would send them.
"Mr. Bvans: Counsel omnes In and tries to
show habitoal custom; they diarge that It
was haMtoal ; I am askiiq; the witness these
questions so that counsel can see whether be
is leadtiME the wltaew
"The Court: He knows whetlier he did it
In obedience to the rales of the company, or
whether be did it on bis own responsibility.
"Mr. Evans: Q. WoiUd yon do It merely
as an aocommodatton? A. Yes, ste. Q. And
was not required by tlie company? A. They
could not force me. Q. When you sent them
after that, In what capacity were you acting?
A. In my own capadiy. Q. And out ot
your own good heart, as any proper man
would do? A. I was ttylnf to use common
sense.
"Mr. Nicholson: We object to that; and
my friend knows it is not oompetoit")
It will thus be seen that there was suflS-
clent testimony to require the submission of
the case to the jury upon this question, un-
less it should be held that the defendant
was not liable for the acts of ita agent la
receiving and delivering messages after the
regular officei hours.
[2] The agent was unquestionably anting
within the scope of his employment There-
fore, 'even if his acta were In violation ot
tbe telegraph company's instructions, this
would not absolve it from liability. Reyn-
olds V. Wltte, 13 8. a 6, 36 Am. Hep. 678;
Rucker v. Smoke, 37 S. O. 377, 16 S. B. 40,
34 Am. St Rep. 758; Hutchinson v. Real
Estate Co., 65 S. O. 76, 43 S. B. 295; Mit-
chell V. Leech, 68 8. a 418, 48 S. E. 290.
66 L. B. A. 723, 104 Am. St Bep.'811: Wil-
liams T. Tolbert, 76 8. O. 211, 66 a E. 908 ;
Brown v. Telephone ft Telegraph Co., 82 S.
C. 173, 63 8. E. 744.
[S] The next question to be determined Is
whether his honor the presiding judge erred
in allowing the plaintiff to introduce testi-
mony as to the reasonableness of the office
hours at Edgefield. In the first place, the
circuit judge ruled that the question of rea-
sonableness must be determined, with refer-
ence to the office hours at Ninety-Six, and
not at Odgdeld; and in tbe second vHmeot
vnsk It tJun was vmr. It was not pr^ndi-
Digitized by LjOOgLC
8.<U
BOBEBTSOK t. WXSTSBK
UNION TSXiEOBAFH 00.
979
dal, as the Tltal qaestlon wu not wbetiier
the office hours were reasonablo^ but wheth-
er they were waived.
The next asslgDment at error relates to
the refusal of the circuit judge to charge
the defendant's request that there was no
evidence that the suffering of the plaintiff
was the direct and proximate result ot the
defendant's negligence. The exceptions rais-
ing this question most be oTermled, as the
record shows that there was testimony tend-
ing to prove such t&ct
[4, fi] The last question for consideration
is whether there was error on the part of
the presiding judge, in refusing to set aside
the verdict on the gronnd that it was exces-
sive. That Is not a question for this court,
unless the verdict was so excessive as to
manifest caprlciousness or frand, which does
not appear In this case.
These conclusions practically dispose of
all the questions raised hy the enieptions.
Judgment affirmed.
HYDBIOK. WATTS, and FBASEB, JJ^
ooncnr.
On Petition for Rehearing.
FEB CURIAM. This Is a petition for a
rehearing upon two grounds, which will be
considered In regular order.
[6] First ground. The defendant In Its
answer Interposed the following as a de-
fense: "That the office hours of the defend-
ant company at Nlnety-Slx for the conduct
of business are from 8 o'clock In the morn-
ing until 6 o'clock in the evening, and If
any delay occi^red In the delivery of the
message complained of, it was by reason of
the feet that said message was not offered
for transmisfdon until after the office at
Ninety-Six had closed, and the same was
not recdved at Nlnety-Slx until next morn-
ing, and was promptly delivered." The alio,
gallon as to the office hours at Ninety-Six
was pnt in Issue, without a formal denial.
The plaintiff Introduced testimony for the
purpose of showing that the defendant's of-
fice hours had been changed by waivliig its
right to insist upon them, on numerons occa-
Blons prior to the time when the message
herein was deUvered for transmission. The
operator at Nlnety-Slx thus testified: "Q.
Now, frankly, were you all not In the habit
of sending messages after 8 o'clock? A. Any
time we were In the office we would do It ; I
would ; I have sent them at 4 o'clock In the
morning. Q. And yoa state that at that
time, yon were in the habit of receiving
and delivering tel^rrams for people after S
o'clock? A. We would do It" If the office
hours at Ninety-Six were thus- charged, then
the defendant conld not escape Uablltty hy
Bihowlng '^ftt the office «t Nlnety-Slx was
^dosed at the tlaae the message was filed In
■BdgefleUE for tnuumlflston ; tiut Out td».
inun Mver isached NlnetyoSlz antn 8
&<AoA Toesday; morning;' ibB.t- tt» pndls.
puted testimony shows that the agent at
Edgefield stated to Mr. Ouzts, the sender of
the message, that the office hours at Nlnety-
Slx were from 8 o'clock a. m. until 6 o'clock
p. m., and that the message would have to
lie over In Augusta, Ga., the relay office."
It seems to as, that appellant's counsel has
misconceived the object for which the testi-
mony was Introduced, It was not for the
purpose of showing waiver, in tMa particu-
lar cage, but that the office hours had been
previoutlt/ changed, in so far as the general
public were concerned, by habitually disre-
garding them. The verdict shows that this
fact was established to the satisfaction of
the jury. This ground cannot be sustained.
[1,1] Second ground. This ground is based
upon the assumption that the court failed to
consider the fifth and eighth exceptions. It
is true these exceptions were not considered
specifically, but the court in concluding its
opinion said: "These conclusions practical-
ly dispose of ail tlie questions raised by the
exceptions."
Tbe fifth exception was as follows: "In
that his honor erred In charging the fourth
request of plaintitr. to wit: 'If a telegraph com-
pany have a regulation that one or more of its
offices shall close at a certain hour, yet It
may bind Itself to deliver, after closing
time, by agreement'— the error being that
there was no obligation, and no evidence
tending to show an agreement on the part of
tlie defendant to deliver the message after
office hours, and the charge was responsive
to no Issue of law or fact in the case, and
was prejudicial to defendant'* In charging
the said request his honor the presiding
judge said: '*0f course, I do not mean to ex-
press any opinion as to whether there was
any agreement t if there was an agraement,
you will have to find It from the testimony ;
if there is no evidence of any agreement,
then that wonid not apply.**
The eighth exception was as follows: 'In
that his honor erred In refusing to diarge
the ninth request of the defendant, to wit:
'I charge yon that there Is no evidence of
any agreement, on the part of the telegraph
company, to deliver the telegram sued npon
in this case' — the error being that said re*
quest contained a correct principle of law
applicable to the case, and the fitllnre to
charge It was preju^clal to the rights - of
defendant"
In regard to the ninth request his honor
the presiding judge said:
'^ow, as to the ninth request, they ask
me to tell the jury that there is no evidence
on a certain point I' do not remember wliat
the testimony was t I cannot keep It all in
my mind.
"Mr. Brani: Is that the one as to ttie
igreementf Tbe Conrt; Tes, sir.
Mr. Brans: That is inst in reply to tbdr
leqnest, and there was no such agreement.
*'Mr. NIcbolsoii; . Ws sabvlt there was
gae^ an agimnsBt. ^ ■
■ - Digitized by VJfOOglC
18 SOtTTHBAB^TEBM WSBOKXBtt CB. C>
"The Coart; I wUl decline tbis ninth re-
<inrat, because that Is a qiustlon for tiie Jary*
I win tell the Jury, when It oomee to the
■qbestlon of an 'agre^ent to deliver the mes-
sage oat ot office hours, It Is Incumbent on
the plaintiff to show that there has been snch
an agreement, and nnlese the plaintiff shows
by the iffeponderance of the testimony
that there was snch an agreement, then yon
wtll have to ignore It; If yon do not find
Any eirldence of a special agreement to de-
liver It oat of the office hours, Just disregard
-that ; and If you find that the telegram was
received outside of office hours, the com-
pany Is not bound to deliver It, except in of-
iSce hours, unless the company made a spe-
cial agreement to deliver it after office
liours, or unless the company had waived
tiie requirements as to office hours."
While there was no evidence of a special
agreement as to this telegram, and the cir-
cuit Judge erred in not so charging, yet we
■are satisfied that the eiror was not preju-
dif^l, for the reason that, as we have shown,
there was testimony ten^g to show a gm-
■eral waiver of the office hours. Tn view of
tblB fact, and the explicit instructions above
i]uoted, to the effect that the burden was on
ihe plaintiff to prove such agreemeht, and
that If she had failed to do so, or there was
iu» evidence of It, the Jury most disregard
that contention, we are satisfied that the
•error was harmless.
It Is the judgment of this court that Oie
petition be dismissed, and the order hereto*
fore granted staying the remltUtnr be re*
voked. Fetltton dismissed.
<K a. O. S8S)
BleDAIOEL T. GRBSamLLB-GAROUMA
POWER CO.
(Supreme Oourt of Bouth Carolina. July 22,
1913.)
Watkbs and Watxb CouBSsa ITC^y-DAua
— PI.OWAOI— lilABIUTT.
Under the statute euthoridnc the constrae-
iion by a power oompany of a dam across the
Saluda river, a pMTSoa whose land was not ia-
Jared by the coostructloa of the dam but which
was BUDsequently overflowed, doe to the dam
collecting sand and mud in the channel, could
recover uie damages thereby sustained, whether
■or not the dam was negligently constructed.
TEd. Note. — For other cases, see Waters and
Water Courses, Cent Dig. fif 237-243; Dec.
Dig. I 176.»]
Appeal from Common Pleas drcolt Coort
■of Pickens County; S. W. O. Shlpp, Jud^
Ajction by Luvlc^ D. McDanlel against the
QreenvUle-CaroUna Power Company. .From
■a jodgment suBtalning a demurrer and dl»
missing the complaint, plaintiff appeals. Be-
TMsed and remanded for new tOai.
Ansel ft Harris, of Qreen^^ for appel*
tant Haynsworth & Haynswortti, of Green-
ville. Carey ft Oar^. vt Pickens, and B. S.
OaAranie, of Bpart«nbtng, for reqpoBdent
WAITS, J. mils aetloa wias bnmgM to
recover damages. The complaint allecs*
that In 1907 the defendant power company
erected bctobb Salada river a dam, which
Obstmcted the natnral fiow of Mnd end wa-
ter In tbe cbann^, causing &e diannei to
flU Willi sand and mud, hnd dras causing flie
plalntifl appellantfs land lying above Qie dam
to be overflowed with mu0, and sand, anfl
water. Ther6 Is no allegati<ni that the dam
was wrongfully at aetS^geaOy constnictea.
The respmident Interposed- a demurrer to Uie
complaint on the ground that the same did
not state ftiets aaffideat to constitute a eanae
of action, **la that the defendant was author-
ized by the siatates of this state to construct
the dam in question across Saluda river,
which Is navigable at said point, and Inas-
much as the complaint does not charge that
the said dam was negligently constmcted.**
His honor, Judge Sblpp, sustained the de-
murrer and dismissed the complaint, and
from this order appellant appeals, and by 11
exceptions questions the correctness of this
ruling.
The first three exceptions question the cor-
rectness In holding tliat the acta of the L^-
Islature of this state make Saluda river a
navigable stream. These exceptions are
overruled, as the acts of the Legislature de-
clare Saluda river to be a navigable stream
as far up as HcElhaney ford (Act Dec 16,
1797. 6 St at Large, p. 822), and it Is con-
ceded that McElhaney's ford Is several mllea
above the land alleged to be damaged. The
other exceptions raise tbe question that the
building of the dam. even under authority
of the Legislature, did not eicuse or exempt
It from liability for damages to riparian
landowners above tbe dam for injuries done
to their land by reason of the erection of the
dam. and that the Ijegislatare only had the
power over the stream to allow dams and
locks built for navigation purposes, and that
the respondent is a private corporation, en-
gaged In the business of generating electric
power for sale, and liable for all damagea
done to lands above It which naturally flow
from the erection of the dam. even tbou^i
the act of the Leglslatuie anthorlElng the
building of the dam did not provide tor Bad&
compenaatton.
We think tliese esoepUons should be wa^
taiaed. TbB Lei^sWnra had tbe authority
to authorize aad allow the respondent to
build the dun in question acron Saluda riv
w, which had beoi declared to be a naviga-
ble stream; but it had no right to give them
the power to build tbe dam and exenipt frna
liability to any laBdowners on tlie Btreain,
rtther above or below tbe dam, fliat ml^
suffer any Injury -to ttelr property by reasc^
of the wecthm of ike dam, erw fbm^ by
aatausity of the etatb nwy coold «iily be
permitted to put the dam serosa the river,
and* If by so doing they Inlored any land^
•Vor othsr essss sm smm tepto and ssoUon NUMBER in Dm. Dig. * Am. Die.'
ICADANIEIi' T. OBXiamZiLE-CABOLINA POWER 00.
981
omen on ilie afirauu; ibey sfaoilld be ngolred
to lesiMuid In damages'fttr saCh Injur- It
In the erection of the dam ' they - ezerdsed
the highest degree of eare, and vreie in no
maimer n^llgent, and conducted It In the
numt Bkinfid manner, yet, If by the building
and maintenance of the dam Oiey 'lbJnrioitalT
affect Oi^r nei^bon, fbey are liable In dam*
agee. In oOier wonto, the I^e^latore bad
13ie right to grant pmnlsslon to erect tbe
dam, and respondent had the Tii^t to boUd
and maintain the dam, yet. If by m> d(dng
fliey Injnre landowners on the, stream, and
the erection and maintenance of the dam la
the direct and proximate cause of the injury
to the landowners, th^ must pay damage;
otherwise it would deprive proper^ holdm
of their property and tafce It from them with-
out compensation, and would be unlawful,
unjust, and contrary, not only to all law, but
all reason and Justice. It may be tiiat wh«i
a dam is first built that It will not injurious-
ly affect laind some distance from it, and tax
a long time there win be no cause for than
to complain, but when the pond, made by the
dam, fills with mud. sand, trash, and other
tilings, causes overflows and injury to lands,
then tbe parties injured hare a cause of ac-
tion, if the buUdlng and maintenance of the
dam Is the direct and proxlmato cause of
their injury.
The complainant In this case alleges that
the water from this dam backed up on ber
lands, and overflowed them with water, mud,
sand, and oth^ deleterious deposits. The
complaint states a good cause of action. Tbe
fact that respondent's act in buUdlng tbe
dam was sanctioned by tiie state, and It did
It under authority of -law, and committed no
fault In the erection of Ite dam, does not re-
lieve It, If by so doing It Injittes or dest)n>ys
other people's property without compensatliv
them. I know of no law that will permit a
corporation or an ofllcer thereof even though
he Is authorized by thO' state, to take the
property of an Individual for any purpose
whatsoever, however beneSdal It may be to
the public or an individual without eompoi-
satlon; such pretended authority would be
void and could afford no protection to any
one. If the appellant has been injured aa a
natural result by the erection and operation
of this dam, and the operation of the same Is
the direct and proximate cause of Injury to
her land, then she Is entitled to such dam-
ages as would compensate her for such in-
Jury. My views are that It does not make
any difference whether Saluda! river la nav-
igable or not, as the same rule of damages
follows, as laid down In Ward 'v. Ford, 68
8. a 660, 86 8. B. 916,- and White v. Manf.
Oo., 60 S. & 265, 86 8. a 4S6. ^^Uetn the
dam la anestlom was exected, the waters from
the pond iQ no manner affected appellaut's
land. She was at that time In -no majmer
afEeeted, and could hot iforeaee ttat later sttft
woold'solfer ^nAg^ aad.foCtluit teatoxi
could not dunand compensation for She tben
suffered no Injury, and any dalm made
would have been conjectural and speculative
on her part; - but when she suffered Injury
from the erection and operation of the dam
In question, then, and not nntii then, did a
cause of action accrue to her. and not until
tiien was she In a position to maintain an
acticn. Any action brought by her until
her righte were injuriously affected, or her
rights invaded, would have- been inenuture,
and she woidd have had no status In court.
*'Tlu Legtslature has no power under the
OonstStntion to make over to any individual
or corporatirai any tight save those of tUe
public; without securing a Just compensa-
tSon." Les T. Ponbroke Iron Co., BT lf& 481,
2 Am. R^. 64.
*^e r^te of a rlpariab proprietw on a
navigable stream are substantlaU^ the same
as tiiose attaching to riparian ownership on
8 wmnavi^ble water course, ezccs>t that In
some respects they are enlarged hy the great-
er slse and capacity of the stream, and that
there are some additional privileges con-
nected with ite navigable diaractn. Such
an owner has the tlgbt of aecess to tiie nav-
igable part of the stream trooi the front of
Ms lot, and provided he does not Impede or
obstruct navigation to buUd private wharves,
landings, or piers, or use the wafer of the
stream for any phrposes." 40 560,
TateS v. unwaukee, 10 Wall, 40T, 19 Bd.
984.
"White a dam in a navigable stream, if an-*
thorized by the act of the Legislature, can-
not be Indicted as a pubHc nuisance for ob-
structing the stream, still the act is no pro-
tection against Injuries to a private owner."
8 Amer, and Bog. B. Law, 704.
"In the case of a private stream, no one
would doubt the right of an Injured owner
to maintain an action for the damages suf-
fered by him by reason of a change In the
current But one has no more right to In-
jure another with tbe watfer of a navigable
stream than with that of a nonnavlgable,
private stream." Fulmer v. Williams, 122
Pa. 191. 15 AtL T26, 1 Lb B. A. 003, 9 Am.
8t Bep. 88.
"The right ut the stete to Improve the
Stream as a highway and for the purpwe of
aiding ite navigation Is suiSerior to the rlgfate
of the riparian owners. It may take and di-
rect absolutely and withoat compensation
BO much of the water of the stream as may
be required to Imin'ove Its navigation.- But
that Is the limit of Ite right" Green ftay
Co., V. Kaukauna W. P. C5o., SO Wls; ST^
61 N. W. 1121, 68 N. W. 1010, 28 L. R. A.
448. 48 Am. Bt Bep. 937.
It was held In State v. Columbia, 27 8: OL
•149, ^ 8. B. C8, that the riimrfan proprietor
had tiUe to the son covered by the stream
as tax as the center xyt the stream, subject
to the right of the' pnUHc to of the
gtmuD tat JzaojVoxtatliHi} (u,. v-Wnra7i|
*^ Digitized byXjOOgle
989
T8 SOtlTHBASTIlRN BEPOBTBIt
(aa
whm watt streams are UTlsable or may be
made bo by tbe removal ot obatraetUma.
To allow tbe reepondent to escape paying
compeotiation to the appellant, U appellant
has been injured as ehe alleges In her com-
plaint, would nalllTy and wipe out article 1,
S 17. of the Constitution of 189S. We have
no doubt that the respondenti shoald be
liable for all damages, If any, caused by tbe
building of said dam, even though they were
authorized to bidld. We think that the or-
der appealed from shoald be reversed. We
are of the opinion that the complaint al-
leges a wrongful trespass tipon the lands of
the appellant and invasion of her rights.
The court of common pleas has jarisdlction
to try such cases, and even where condem-
nation la the prop« procedure, it Is tiled in
that court, and an order must be first ob<
talned from the resident <dicnlt judge, and
from tbe fln^ finding appeal may be had to
court of oommoa pleaa. We see no reason
why the Issues as made In this ease cann.ot
be triad In the court of common pleas, as in
other cases of trenMss and damages. The
appellant alleges she has been damaged for
the wrongful lUTasion of her property rights
by the rewondent, and demands danaagea as
compeniBatfMi. The respondent denies that
she is entlUed to compensatiou. The Issues
aa made are simple and should be disposed
of in tbe pourt of common pleas, wlthont bar-
ing to iweort to tbe statute provided for con-
demnation proceedings. Appellant's counsel
at tbe bearing stated that they did not care
whether they had to seek damages under
the cuidenmatton statute, or proceed in tbe
case, as made out by tbe pleadings in the
court of common pleas. This court Is of the
opinion tiiat even if appellant could hare
pursued tbe course granted by the statute In
condemnation proceedings that remedy was
not exclusive in this case^ and appellant not
necessarily limited to that remedy.
The Judgment Is reversed, and case re-
manded for new trial.
OART, a J., and HYDBICE, J., concnr.
FRASER, J. I concur in the result. The
act of incorporation gives a right of action
for injury, not for negUgence. The defend-
ant cannot escape liability by pleading its
own wrong in falling to condemn.
HTDRIOK, J. The sole question made by
the demurrer, and, ther^ore^ the only ques-
tion properly before this court is, whether
the- complaint failed to state a cause of ac-
tion tn JDalUng to allege Uiat def aidant's dam
was urgently conatmcted. The complaint
was not damomble for that reason, because
tbe act ftutbwlslng the ooustructlott ct the
llam Imposes npon tbe corporation liability
for davMgea caused thereby to riparian own-
ers. Tme^ sndi ilabUlty Is not im|)osed In
express terms, bat it is by a neoeasazy Im-
plication; If not, why was the power of con-
demnation conferred upon the corporation?
And why was the express provision inserted
In the act that any landowners should have
the rig^t to sue for and recover, even after
condemnatltm, such damages as might there-
after accme whidi were not considered or
contemplated by tbe appraisers in condemna-
tlott proceedings? No doubt the Legislature
had in mind tbe possibiUty, nnd^ the well-
known natural law of zmuolDg waters, that
damages might accrue many yeara after tbe
building of the dam, by the d^KWlt of aedi-
ment in Oie bed of tbe stream and tbe ooDr
sequent raising thereof which could not be
foreseen with reasonaMe certainty at ttie
time of condemnation. Therefore, notwith-
standing tbe authority to build the dam con-
ferred npon the defendant by the statute^ the
plsintlfC la entitled to compensation fw any
damage to her land caused by the dam.
It is unnecessary, therefore^ to decide In
this case, the other questions discussed In
tbo opinitm, and, as they are questions of
some gravi^, and, aa they have not hereto-
fore been decided by this court, I prefer to
reserve my opinion.
The defendant should not bo allowed to
shift ground and contend here— a point not
raised or decided on circuit — ^that the coop-
plaint is demurrable because the remedy by
condmnnatioD, afforded by tbe statute, la ex-
(dusive.
For these reasons, I concur only In re-
versing the order sustaining tbe demurrw.
. (H a 0. MK)
Dk W. ALDBRMAN ft SONS OO. T.
Mcknight.
(Supieme Ooort vt South Osndlna. July IB,
1918.)
1. Ykndob and Pubohaseb d 131*>— Scin-
OIBNCT OF YEHDOB'S TCTLB.
A grant 80 years old to H., which covered
part of land contracted to be sold, and which
the vendor could not satlsfaetorily connect with
her chain of title, was not such a defect as Jus-
tified the parcbaser'a refusal to accept tbe title,
where tbe vendor and those under whom she
claimed bad been in posBesslon for 40 or 60
yeara without any claim being set up adverse to
her or to other owners of land covered in part
by such grant, and there was no one claiming
land in the n^hborhood by tbe name of H. or
claiming through or under persons of that
name, and the vendor had paid taxes on part
of tbe land for more than 20 yeara and on tbe
rest for almost 20 yeara, and had a receipt from
the tax QoUector acknowled^ng full redemp-
tion of the land for back taxes.
[Ed. Note. — For other cases, see Vendor and
Purchaser, Ont Dig. | 247; Dec Dig. { 131.*1
2. AovKBsa PossxssiON (1 104*)— Tax Sale—
REOEirPTIOW— Epfbct.
Where property tn the possession ot de-
fradant was advertised for sale tor taxes, as
land not regolarly on the tax books, and^^ npon
payment of taxes by defendant, tbe sberiif, who
was acting for the state, gave a receipt ac-
fcaowledging full redempuon of the land' ff r
back taxes and restoring It to. the tax dujdicatc
«Tor «tM e<b«s sW SuSa to»le aad inctlon' NUHBta U Dm. DV » AwL ZMg. K«r-No. 8sf^
Digitized by Vj
D. W. ALDBBUAH * SOKB 00. T. KoKNiaHT
983
for the taxes for the fonowing flsc&I year, thU
wM a. relinqaiahmeiit by the itate of any claim
that it might have, and a grant from the state
would be presumed.
[Ed. Not&— For other caaea, see AdTeme Poa-
aeMion. Gent Dig. H 686-002; Dee. Dig. |
KM.*]
3, ADVKsn Poanaaioir a 101*>— PiumcP-
noR or Graat.
Twenty jreara* open and notoiioos poaaea-
aion with tlia payment of taxes raises a pra-
•nmption of * grant bmn the statew
[Ed. Note.— For other cases, see Adrene Pos-
seasion. Gent Dig. K M5-«02; Dae. Difr 1
104.*]
4. AdVEBSS POBSBSSZON (S 40*)— ElLBUBllTfl 01
TiTLK BY ADVBBSB POSSESSION.
Ten years' open, notorious, advarse, and
azdndn ■ poaaeaslon ripens into a tiue aa
against parties other than the state.
[Ed. Mote.— For other cases, see Adverse Pos-
session. Cent Dig. H 148-1^ ; Dec. Dig. 40.*]
6. Adverse Posbbssioh Q 16*}— Ohauotbb
or Possession.
The law is not as strict as to what con-
stitoteo adverse possession of op«i, wild, nn-
fenced, and nneultivated lands or lands not ca-
pable of cultivation as with regard to land ca-
pable of cultivation and so aituated as to Iw
capabi* of having the bluest acts of posaes-
aion aardsed wiu regard to them ; acta of ad-
verse possession or ownership with regard to
wild, open, unfenced land not capable of cnl-
tivation Mug only required to be exerdsed in
such war as u consistent with the ose to whidi
the Isod may be pat, and as the situation of
the property admits of withoot actual residence
or occupancy.
- tEd. Note.-~For other cases, see Adverse Pos-
session, Gent Dig. H .82-60; Dec Dig. i la*]
& ADVEBSE P0B8K88Z0ir (| 16*)— GBAUOIXB
or PoBssaaiON.
Where swamp lands were incapable of cul-
tlvatioD and cotild not well be Qsed except for
pastnrage, fishing, and timber pnrpoaes, their
nse for snch porpooeo was soffidoit as UTorse
possession.
[Ed. Note.— For other cases, see Adverse Poa-
sesGioQ, Cent Dig. If 82^; Dec Dig. | 1&*]
7. JUDOHENT (I 707*) — GOROLUBITBNBSB —
PABTIKa CONCI.TTDBD.
In a anit for spedfle peiformanca involv-
ing the vendor's title and boondaries, no finding
coold be made that wonld bind the rights of
adjoining owners not parties to tiie suit
[Ed. Note.—For other cases, see Judgment
Cent Dig. S 1230; Dec Dig. | 707.*]
8. SPEOinO PSBPOBMAHOI (| ISl*)— DUFtmBD
Where in a suit for specific performance of
a contract for the sale of land for a specified
price per acre, which provided that the pur-
diaan shonid talw and nay for all the land that
tba vendor had good title to» where it appeared
that a amall triangla was claimed by au ad-
joining owner not a party to the action, the
acreage of snch triangle wonld be exdaded
witiiont prajodice to tba righta of the vendor or
the adidnlng ownor therein.
[Ed. Note— For other eases, see Specific Per-
formance, Cent Dig. |S 426-430; Dec IMg. I
9. OotTSTS (f 344*)— Bbvxkw— QvBmoira or
Fact.
Where in a suit for spedfic iterformanca
the real issue submitted to the referee involved
the title to the land in controversy, his findings
of facts were not reviewable by the Snprune
Conrt
[Ed. Note.— For other caaes, aee Courts, Gent
D^ II 7S8* 734. 737-T40; Dec Dig. I 244.*]
Appeal from Common Pleas dreolt Odurt
of Clarendon County ; B. B. Oopes* Jndse.
Action by the D. W. Aldoman ft Sou
Company against Sarah A. McKnlgbt Judg-
ment tot defandant, and tflalntUC appeala.
Affirmed.
See. also. 74 a B. 1108.
The report of J. S. Leeesne, as special
referee, was as follows:
"Pursuant to an order of court, referring
to me as special referee, to take testimony
and report 'my conclusion of both law and
fact In this action, I beg leave to report to
the court that I have held a reference, in-
cluding hearings, on three different days, at
which were present the attorneys for the
plaintiff and the defendant, and have taken
a great deal of testimony, both oral and docu-
mentary, which I respectfully herewith sab-
mit as part of my report
"On the 5th of November, 1910, Mrs. S. A.
HcKntght, the defendant, executed and de-
livered to the Manning Realty & Insurance
Company, a corporation, her certain con-
tract of agreement obllf^tlng to convey to
the Manning Real^ & Insurance Company,
upon certain terms mentioned in the con-
tract, her Black River Swamp lands adjoin-
ing, or as part of, ber plantation about two
miles from the town of Manning. That con-
tract contained the following stipulations:
That Manning Realty & Insurance Company
has bought said land for the sum of $12.60
per acre cash, of which $250 has been paid
this day, and the remainder la to be paid as
soon as the titles can be abstracted, and ttie
land surveyed, and acreage ascertained, and
deeds made The Manning Realty & Insur*
ance Company or its aligns shall take and
pay for all of the land that Mrs. 8. A. Mc-
Knigbt has good title to, and same shall be
conveyed, to It or its assigns by good and
Buffldent deed, with covenants of warranty
and free from all incumbrances — the number
of acres to be ascertained by a survey by two
surveyors, one appointed by the said Mrs.
S. A. Mc^l^t and paid tor by her. and
the other appointed and paid for by the raid
Manning Realty ft. Insurance Company.* Sub-
sequently the Manning Real^ ft Insurance
Company transferred and assigned its con-
tract to D. W. Alderman ft Sons Company,
the plaintiffs herein.
"A contention arose between tbe plaintiff
and the d^endant as to the vallffitar of the
title to swne of the swamp land Inrolved,
and tbo plaintiff brings this acticm, dalming
that the titles to only a portion of Mrs. Mc-
Knighf s swamp land, that Is to say, the por-
tion lyli^ In tin swamp nearest the hill and
adjoli^ng her uplands, being something less
than 200 acres, is good and marketable and
that the tiUe to a portion Claimed by bw
and lying farthest In the Bwamjt,' going to the
center of the same, is not good and marlce^
able, tSie plaintiff alleging in substance tliat
Dig. Kw.%^|^ij^ ^'U^^e
•r«r eUMT eases sas same taple and seetlaB NVHBBlt 1* *
981
7i SOIJTHSIASTERN ^pPOIVFER
be to ready to take over and pay for, and
comiUy with th« contract aa to tbat portton
of ttie land to wMch she has good titles.
Then were also some allegations In the com-
plaint to the effect that the defendant was
withholding from the plaintiff certain Infor-
mattoQ affecting her source of tltJe, the plain-
tiff asking that the defendant be required to
disclose her source of title to all of her
awamp land In order Qiat the court might
pass upon the. same, and require both par-
ttee to carry out the terms of their contract
However, In tihe course of the reference, the
defendant seems to bare produced whatever
land papers she bad, and *to have disclosed
whatever information she was In possession
of comcernlug the titles to her swamp land,
and Uds point not being urged In the refer-
ence I apio^end there Is no tortber con-
troversy on this qnestton, and tbat tbe en-
tire case Is fnUy before me.
"The defendant put in her answer denying
all of tbe allegations ot the coniplatnt Incon:
aistent with tbe allegations and admlsalonB
which are set forth in her answer, and al-
leged that she is tbe owner In fee of 8r
098>/i» acres of swamp land, lying, being,
and sttnate In the connty of Glarendoa,
bounded on tbe north by lands of De Lane,
D. M. Hudnal, W. B. Brown, W. H. Col^ and
D. M. Bradbam, tbe center of Blade Biver
Swamp being the line ; bounded on tlie east
by lands of B. W. Alderman and Sons Com-
pany an4 A. P. Bui^ess; bounded on tbe
south by lands of the defendant; bounded on
jtbe west by Levi and Alsbroofe ; , the said
swamp land being more fuUy delineated on
a plat made by B. H. Gantey and a J. Smith,
surveyors, dated January 7, 1911. The de-
fendant further alleged that she bad been
In opoi, exclusive notorious, and adverse
possession of tbe said swamp land for more
than 20 years, paying tbe taxes thereon and
claiming the same as her own against all tbe
world. She admitted the execution of the
contract on tbe 6tb of November, 1910, as set
out in tbe complaint, and alleges that she is
ready and willing to execute to the. plaintiff
her warranty deed conveying unto it the
above-described tract of land in fee, upon
tbe plaintiff complying with the terms of the
contract; but 'that she, the defendant, is
not willing to convey only a portion of the
land covered by her contract and not all of
it The defendant further aaks that she be
adjudged by tbe court to be the ownw of
tbe above-described tract of swamp land, and
that upon her executing her warranty deed,
conveying said tract of land unto the plain-
tiff, that it be required to pay over to her the
amount dtie under Oie eonttact as set forth In
tbe complaint
"Under the contract above mentioned, the
.plaintiff and the defendant appointed Mr. B.
J. Smith and Mr. B. M. Cantey. two very
competent surv^ors, to asontaln the nnnd)er
of acrea of awamp land Involved, and as a
result of tills survey the surveyors have made
up a large plat, signed by them, under date
of January 7^ 1911, offered In evidence as Ex-
hibit A. 0^ plat, which will hereafter be
referred to and known as the Cantey-Smlth
plat, is elaborately made, and shows all the
ctmtentions iO. the i^aintiff and tbe defendant,
and will necessarily play an important part
in tbe settling of this controversy.. This plat
purports to show In dotted lines various old
grants and plats covering portions of the Me-
Knight swamp lands, which have been intro-
duced in evidence; some of these old plats
ahd grants being so old tiiat it is hard to
link them with any accuracy In tbe chain of
ttUe to the lands which they purport to cover.
"Referring to the Cantey-Smlth plat; ttie
plaintiff contends tbat tbe defendant bas a
good and marketable title to only tlut por-
tion of swamp land wbACb Uee on the sontb-
em edge of the swamp, and which lies south
of the dotted line T, A, O. H, I, tnd that it Is
willing to take over and pay for tbe mmp
lands lying south of tUs line,, but that it
is not wUUng to taks over and pay tot tbat
portion of the swamp land lying north of the
line just above Indicated; the same golnff to
the enter of the swamp. On the otii« band,
the defendant ccmtends that she Is the abso-
lute owner and In possesston of all the
swamp land lying between tbe bills, or her
uplands, and nmniag In the swamp to the
practical center thereof, indicated by heavy
black line on the Cant^-Smlth plat as Una
from D to B, and that the plainttft should be
required to take ovw, under the terms ol tbe
contract, her entb« swamp boldings, rannlng
into this heavy Mack Une D. E, ewninUng
an ^rea containing S98.2 acres.
"This case, ordinarily, Is one to be passed
upon by a Jury, and while it is proverbially
a saying that It ia^ uncertain what a petit
jury will conclude In finding a verdict, yet
X believe it Is an easy presumption as to
what the verdict of a petit Jury would be In
this particular case, with the same llgbte be-
fore the Jury tliat are now before me. I am
satisfled that a Jnry would come to the con-
clusion that U the defendant were required
to make over and convey to the plaintiff only
that portion of her swamp lands to which
the plaintiff admits she has good tiUe, that is
to say, the strip of swamp land lying adJacCTt
to the hiU and south of the line P, A, O, B,
I, that this would be tantamount to saying
Uiat the defendant has no tiUe to that por-
tion of the swamp lying between the line F,
A, G, H, I, and the center of the swamp, and
that, this portion of land in tbe middle of the
swamp beins fit for practically nothing ex-
cept the purposes for which it is now being
bought, tbat la to say, for timber purposes,
and b^g tiins Isolated in the middle of the
swamp, it would be practically valueless, and
she could then scarcely induce other por-
chai^erg to entertain the idea of purcbaslng
the said .lands. Under that coition of af-
' Digitized by OOg IC
8. CI
D. W. SONS 00. -tJ OCidCKiaHT
fairs, I benere a pettt jvxy would And tltat
tlte defendant does own, and Jbae been in
peneesion of, and bas a maiftetaUe title to.
tiie swamp lands wbMi Blw oootenda tbat abe
owns, tltat Is to say, Into the awanv mm far
as the center of the same.
^"Bnt while Utese facts are teae, and white
I heUeve thla 1»wiiat a Juxr would find under
tfie given stMe of olzeiuasbuiCflB, and while It
la my pnrpOM to flod practically what I be-
Herb woOld be the Tordiet oi a Jury in (his
oaa^ yet I caimot attord to reit my findings
iqDon the raaaons mentioned lUwre, and there-
by svbjeet niy findings to ttie ctittetadi of be*
Ing based upon policy or expediency. I am'
of the opinion from all ot the erldeMe ad-
duced at Oie bearings that the dMtandaut la
entttled to. not in the mlnnteat detail, hat
auhstantlally to wbat^ cantsskds for.
"The defendant Is in pooooMlon of bar
swamp landi^ alomg wiOi the eplands ad)A<-
oent thereto, under deeds v^falch she obtained
fMnn bar father,, the late W. S. Oarpentov
who hae bam dead for 23 years or more.
Nomerovs deeds and oonreyancee have been
introdneed in erldenea showinc Aalbk at tlUe
taSA how tbe land cam* Into Ona late W. B.
Carpenter and Into. the defendant. hftneU;
but Z do not appr^cod thtre 1m any vkeelal
contention orer theae facta, as the main que*-
tlon aeSDM to be, How far do the lands of the
defendant aztoid Into the swamp? The tea-
dmoiv of the defendant and of tufc buiAMnd,
wbo have resided on the idaoe fOr more than
20 years, is that the late W. B. Carpenter
claimed the center of tiie swanv as his Una ;
tttat he ex^dsed acts of ownership and pos-
■ea^ott on theae lands before fala deaOi, bj
eidtiog timber thereftom for j^ntatlon pnr-
poeea, by selling timber from the lands, by
fishing on the same, and otherwise using the
said swamp lands as was the custom of per-
sons who owned lands situated upon tbe
swamps and extending into and comprising a
portion of tbe swanqt itself. Tbe testimony al-
so la that ainoe the death of the lateW. R.
Carpenter the defendant continued in posses-
siiHk up to the present time, and has eonttnued
to exercise acts of ownership, and that during
aU of theee many years she has never heard
of any claim or contentiott on the part of
landownera on the oi^Kwlte aide <a tbe swamp
disputing or controTertfng in any way her
claim of ownership.
[1] "The plaintiff Introduced In OTldence a
copy of a plat attached to a grant to 1|000
acres of land granted to James SI. Harrln on
fi^bruary 23, 1S18. and marked Exhibit Ia
On. the Caotey-Smlth plat the surveyors have
attempted and possibly with some accuracy
to lay down and Indicate, shown by blue
lines, what lands are covered by this Harvin
grant in 1818. The plaintlfr contrads that
this old grant to Jamea B, Harrln operates a
cloud or defect upon the swamp lands whic&
Mrs. McKoight claims to own, since It is not
satlafactorUy explained In the chain of title
how this laud ever passed out of Jasies Ji.
Harrln or his hdre. It Is true tbali..this old
Harvin grant, as Indicated by the eurreyors
on the. Cantey*Smlth plat and shown under
the bine Uneik does cover. practicaUy all of
the swamp landa claimed by Bfrs. McEnlght,
and does cover nearly sU of the swanq> at
that particular place, even going over and in-
eluding the lands claimed and In possesion
of parties on the opposite side of the swamp.
Bot notwithstanding the fact that,neltber tbe
plaintiff nor the defendant have been able to
link up or dispose of this old Hairvln grant
abst^utely and fully from the standpoint <tf
a. thoroughly connected and well linked up
chain of title, yet I am not disposed to attach
any serious importance to this old Harvin
graiU, and for the following reasons: l^la
old Harvin grant dates back to 1818, vow
more than 90 years ago, Oo Deeding that the
snrveyars on the Oantsy-Smlth plat have ao-
corately indicated under the blue lines the
ar«s covered by the Harvin grant, thla shows
that some «f the lands, which the plalntiflT
concedes that Uie defendant has good title
to^ ave also cowed by this idd Harvin grant
The testimony at tbe defendant Is that she
has been in possessUm and paying taxes for
more than 20 years, and that her father be-
fore her, and from whc«n Ae acaulred owner-
ship and possession^ had for many years, In
fact as far back as she can remember, been
in possession of this swamp lapd, even the
portion on the sooth side of tbe center of the
swamp which purports to be covered by the
Harrln gEant, and ttiat during all these
years no one has made any claim against her
under tbe Harvin grant or otherwise, nor
baa she ever heard of any parties claiming
uoder the old Harvin grant, eLther against
hersdf or otber parties on the opposite' side
of the swamp who are in inesessloo of
swamp lands Included under the Harvin
grant, lust like her own lands. The tsstl-
mony further is by the defendant tbat she
does not know of any parties claiming any
land in tbat neighborhood by tbe name oi
Harvin, or any other parties claiming through
or under them, and this fact, together with
the fact that she and her grantor have been
In possession for. the past 40 or 50 years,
without any claim being set up adverse to
hers, and coupled stlU further with the fact
of the proceedlDg which I shall hereinafter
mention, commenced by the state for the sale
for taxes of a portion of this swamp land, it
seems to me creates a legal and well-founded
presumption that there are no parties by the
name of Harvin, or no parties claiming under
the old Harvin grant, who hare or could set
up any claim to the swamp lands In question
In such a way as to materially affect the title
of the defendant to her swamp lands.
*^e defendant introduced In evidence a
plat made by J.uniUs E. Scott, surveyor, on
February 22, 1890, In which the surveyor
gt&ted tLat he had made a reaurvey of the
Digitized by Google
986
76 SQDTHBASTBBM BBPOBTBB
aerenl tracta of land fit the defendant; gnld-
ed by (dd BnireyB of tbe aame^ and fonnd
tliat tbe Weral parcels of iux land contain-
ed 1,026 acres. On this plat the surveyor
ahowa the northern boundary w back line In
the swamp to be the practical centor of the
swamp, ftDd Vbe d^endant contends that ahe
baa been clBlming all of the lands covered
under that plat, and has been paying taxes
on the same,
[2] '^me time about the year 1881 the
state of Sooth Carolina, through the inking
fund commission, and under act of the liegiB-
latnre was anrveylng up and advertlsiiig for
■ale all of the lands In the state which were
not or supposed not to be, regularly m the
tax books, and advertlBed for sale 192 acres
of land In Black Blver Swamp ; the same be-
ing a portion of the lands claimed by the de-
f^dant and covered under the Scott plat
above mentioned. As a result of this adveiv
tlsement, the defendant went to the aherlfl
of Clarendon county, who seems to have been
acting for and on behalf of the state through
and under the sinking fund commission, and
paid the taxes on the 192 acres, upon which
It appears that the taxes were not then being
paid, and received a receipt which I will set
out In full, as follows:
" 'Manning, S. C, January 2nd, 1892.
" 'Received of Mrs. Sarah A. McKnight thir-
ty-two 64-100 dollars being seventeen cts.
per acre on one hundred and ninety-two
acres of swamp land in Manning Town ship
— advertised as unknown lands for taxes for
year 1889-90. Mrs. McKnight having tities
to said land, but not having it on tax books
as required by law. This is acknowledged
as full redemption of said land for ba(& tax-
es and restores the same to the tax dupli-
cate for taxes fiscal year 1890-91. $32.64.
Dan'l J. Bradham, Sheriff Clarendon County.'
"This 192 acres which the defendant was
allowed to redeem from the state and pay
the taxes on, together with the number of
acres that -she had been paying taxes on
previous to that time, coupled together, make
up the 1,026 acres shown uiwn the Scott plat
of 1890, and which the defendant says she
has been paying taxes on ever since that
time. In fact the testimony of the defendant
is that she has been in possession of all the
lands covered under the Scott plat ever since
the death of her father, now more than 20
years, and does not concede that she was
ever out of possession of It The fact that
she paid to the state $^94 as taxes in 1892
does not seem to me in any way to weaken
her title, but that rather this fact, coupled
with the fact that she and her grantor having
been In possession for many years prior to
that time, strengthens her title, and the re-
cent which the state gave her must be taken
as a rellnoulshment by the state of any
claim that it may have had upon the land
whatever; and that the state thereafter had
no dalm whatever, e^ept for the payment of
her taxes in the future, and under this state-
ment of facts It seems to me that a gmnt
tnHD the state must be absolutely presumed.
[1, 4] "It is a weU-settled and statutory
provLrion of law that 20 years* i^ten and no-
torious possession with the paymut of taxes
presumes a gxant from the state; and that
10 years' opw, notorious adverasb and eocdn-
sive possession ripens Into a title as against
outside parties. Under the testimony and
under the presumptive grant on the part of
the state, it seuna to me that the defendant
cornea fully under the requirements of the
law and has a title to the land to the prac-
tical center of the swamp.
[B, I] "On the question of adverse poaaea
sion my conce4;>tion of the law Is that the law
Is not as strict or as Jealous as to what con-
stitutes acts of adverse possession with re-
gard to open, wild, nnfenced, and unculti-
vated lands, or lands that are not capable of
cultivation, as it would be with regard to
lands that are capable of cultivation, or
which are situated In some time capable of
havii« the highest acts of possession ener-
cised with regard to them ; but that acts of
adverse possession, or acts of ownership, with
regard to open, wild, unfraced lands, lands
not capable of cultivation, are only required
to be exercised in such way and In such
manner as Is consistent with the use to which
the lands may be put and the situation of the
property admits of without actual restdence
or occupancy. The lands in question are ail
located in the heart of Black River Swamp :
they are uncapable of cultivation, and cannot
well be used for any purposes except for
pasturage and fishing and for timber pur-
poses, and the testimony is that they have
been used by the defendant and her grantor
for more than 20 years in this manner and
for these purposes. It seems to me that the
facts, as well as the law, affecting this con-
troversy are fully covered In the case ot
Uwls V. Pope, 86 S. a 286, 68 S, a 680.
"The dotted line B to C on the Cant^-
Smith plat was put down by the surveyors
as Indicating the black line or northern line
on the Scott plat, and which Is presumed to
have been located by Surveyor Scott as the
center of the swamp. The defendant con-
tends that she has been in possession of and
paying taxes on the land in the swamp as far
as this dotted line B to C. There Is some
slight discrepancy between the surveyor^
that Is to say, Surveyor Scott on the one
hand and Snrv^rs Gantey and Smith on
the other hand, as to what is the line of the
exact center of the swamp. Surveyors Oantey
and Smith locating the center of the swamp
as being represented on the heavy black line
D to B; This slight discrepancy or differ-
ence between the sorv^ors Is a reasonable
one un^ the drcumstances, tiiat Is to say.
In locaUng the crater of a lai^, wide, and
boggy swamp, the Scott center line and the
Oantey-Bmlth centw line cnmring eachotho-.
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D. W. ALDIERMAH A SOKS 00. T. MeKNIGHT
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but aot rarylng In any wide or Important
particular. For tbe purpose of this action,
and as set out in the answer of the defend-
ant, the defendant, as I understood It, does
not contend tenaciously for the Scott line as
being the absolute center of the swamp ; but
is willing for the center of the swamp to be
located and established on the line D, B, as
fixed by Surveyors Cantey and Smith. Tak-
ing tbe western end of this Cantey-Smlth
center line D, E, that Is to say, where the
same affects the northwestern portion of the
defendant's swamp land, the Cantey-Smith
center line falls slightly south of the Scott
center line, and therefore concedes to the
landowner on the opposite side of the swamp
(that landowner being to us unknown In this
action) a narrow strip which the defendant
has been claiming and paying taxes on, so
that there can be no trouble arising with
that unknown landowner on the other side
of the swamp If we adopt the Cant^-Smlth
eeater line as tbe northwestern bonndary of
d^eadant'a land* or as affedlng that portion
of her awamp^ running from west to east un-
til we reach the tract located on the Cautey-
Smltli plat indicated as lands of W. H. O0I&
[7] "Of course in det^mtaiing tlie rights
of the parties in this action there can be
no finding that would bind the rights of oth-
er parties or other landowners on the oppo-
site side of the swamih nnless ttioy were
brought tn and made parties to tMi action.
It does not appear that W. H. Cole, or any
party under him, or any one else as Hie
owner of the tract ot land indicated on the
Oantey-Smith plat aa W. H. Cole, had been
brought Into this action, and therefore we
cannot do anjthing that wonid affect tbe
ri^ta of the owner of tbat tract of land.
Howew, the teadmony of Surveyor Smith,
who was a witness for the plaintiff. -Is that
when he or Mr. Cantey made the surrey,
and located tbe line D to B as being the
center of the swamp, they had with tb»m.
In making this survey, a plat to the W. H.
Cole ,tract of land, made in 1910t, and that
the southern boundary of the W. H. Cole
tract; as represented on that plat, is the
same and colncictes with that portion of the
line D, B, on tbe Gant^-Smith plat, which
Is put down as being at that point the cen-
ter of the swamp, and the dividing line be-
tween the lands of tbe defendant and the
lands of W. H. Cole. Mr. Smith Is a compe-
tent surveyor of long experience and testi-
fied that he was familiar with Blade Blver
lands and has done a consideraUe amount
of surveying tn the swamp, and was familiar
with the lands of parties In that vicinity.
80 that by adopting tbe Cantey-Smlth line
D, E, the same being the center of the
swamp, as the dividing line between tbe
lands of the defendant and the owner of the
W. H. Cole tract, it will not affect the W.
H. Cole tract of land, and the Cantey-Smltlt
ceoUx line S>, Bi, can well and safely
adopted from the western end thereof nm-
nlng east aa far as the southeastern comer
of the W. H. Cole tract, tbat Is to say, to a
point which I have marked on the plat for
the purpose of accurate location by the let-
ter X in red ink. The letters X, P, Q, M,
placed upon the plat in red Ink. were not
made by the surveyors, but have been put
on the plat by me for the purpose of Intelli-
gent discussion and more accurate location of
lines and areas.
"I therefore find, as a matter of fact, that
the northern boundary of the defendant. Mrs.
S. A. McKnlght, Indicated on the Cantey-
Smlth plat, is a heavy black line, put down
as tbe center of tbe swamp, beginning at the
letter D at ttie northwestern corner of tbe
tract, and running east (slightly south <tf
ea^) down to and as far as the red lettter
P, which I have Indicated on the Cantey-
Smlth plat
[U "But in finding tbe correct line on the
eastern side of the tract some sUi^t compli-
cation arises. It will be noted tbat as to tbe
land covered by the trlan^e included in tbe
red letters P, Q, M, there'ls an overlap, and
that this triangle appears to be also claimed,
or covered in a tract on tbe OHwalte tfde of
tbe swamp and pnt down on the Oant^-
Sndth plat in tbe name of Kadhain. It la
not known who the owner la of Qiis tract
indicated as Bradham, nor has any one been
brought in as a party to the action as the
owner of tliat tract of land, llierefore I
am not warranted in making any findings
tbat win affect tbe rights of tbe mmer of
this tract marked Bradham, and the little
triangle Indicated by the red lettws and the
lines P, Q, M, is excluded from my findings
for the defendant In this action, Mttiont prej-
udice aa to the rights of either the defend-
ant or the rMl owna of the Bradham tract
I do not known how ioany acrea are Indnded
In this small triangle but tbe acreage ap-
pears to be small, and I recommend that the
same snrveyors, Messrs. Cantey and Smith,
be called upon to compute tbe area or acre-
age comprised In tiUs triangle P, Q, M, and
that the same be deducted from the 398>/io
acres contended for by the defendant
"I therefore conclude from all the testi-
mony and facts before me, and from what I
conceive to be the correct law governing the
case, that Mrs. Sarah A. McKnigbt. the de-
fendant is the owner and in possraston of,
and has a good and marketable title to, all
of the Black River Swamp land adjacent to
her home place, lying north of the uplands,
and extending In as far as the practical
center of the swamp; the northern edge of
the said swamp land being Indicated by a
line on the Cantey-Smlth plat beginning at
the western oad at the letter D, and running
the heavy black line to tbe red letter X;
thence continuing the said line to the red
letter P ; thaice continuing southwest on the
dotted Une to tbe red letter M ; thence con-
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78 ^pDTHBASTBKK- REPOROW
tloulng sUghtlT Bouth of east on JJbe heavy
black Une to tbe corner Indicated on the
Cantey-Smith plat by a holly tree.
"With respect to the western and eastern
lines of defendant's tract, I also find that
. the western line, as Indicated on the Cantey-
Smith plat, begins at a "big poplar" at the
southwestern comer of the swamp land, run-
ning north the heavy blade line to the let-
ter D; and that the eBstem line of the
swamp land, as Indicated on said plat, be-
gins at the southeastern comer, joining the
A. P. Burgess land, at tb9 "State XIII N M.**
and mnalng north along tbe heavy black line
to the hoUy tree.
"And I recommend that the contract be
carried out between the plalntiEf and the de-
fendant with T^ard.to the area or acreage
Included within the lines and boundaries
that I have found.
*'A11 of which Is respectfully submitted."
Obatlton Dn Itant, of Manning, tox appel-
lant Davis ft WelAbe^, of Manning, for
vespondent
GARY, O. J. The facts In this case are
thus stated In the decree of Ms honor, the
circuit Judge:
"The defendant In this action entered into
a contract with plaintiff, assignor, to eell to
It sll of her swamp land to which she bad
a |ood title at $12.50 per acre, the number
of acres to be aecertalDed by two snrveyors.
and waa paid (200 In cash. Upon the surv^
being made, the plalntUf contended Che de*
fendant had a good and marketable title to
only about 236 acres of swamp land, whereas
the plat made up by the surveyors showed
an area of acres, practically within
the lines claimed by the defendants. The
plaintiff then brought this action, alleging
Its wllllngneas to comply with Its contract,
and asking that the defendant be required
to convey, as required by its contract The
defendant answered, alleging that sh^ was
the owner of 3089/ 19 acres of swamp land,
which she was ready and wUIlng to convey
by her warranty deed to plaintiff; but that
she was unwilling to convey a part and not
all of the swamp land to which she had a
good title.
'^e real issue then submitted to the r^-
eree was whether the defendant had a good
and marketable title to all the land claimed
by her, as shown upon the plat of the two
snrv^ors, and the referee held several refer-
ences and made a full and exbanstlTe report,
in whleh he fonnd that the defendant was
the owner of practically all the land daimed
by her and shown upon the plat of the tar*
Teyors, and recommended that upon the snr-
veyora ascertainliv Oie mimber of acres
within a small triangle, and deduetli^ that
from the 898»/io acres, that the parties per-
form the contract with respect to the bal-
ance.
"The matter came on before me npon excep-
tions by the i^alntlff to this report and after
hearing argument thereon I took the matter
under advisement, and upon a careful read-
ing of the testimony and consideration of the
whole case I find that the referee is ri^t in
all of his findings and conclusions: that the
defendant is the owner of, and in possession
of, and has a good and marketable title to,
all the Blat^ Elver Swamp land adjacent to
her home place, lying north of the uplands,
and extending in as far as the practical cen-
ter of the swami>. • • • "
[I] The plaintiff appealed upon exceptions,
several of which are based npon alleged er-
rors In findings of fact, which are not subject
to review by this court, as the real issue sub-
mitted to tiie referee Involved the title to
the land in cfrntrorersy. AU the other ex-
ceptions are overruled, for the reasons stated
by the special referee, whose report was con-
firmed in all respects by his honor, the drcait
Judge.
jiQdgmeDt affirmed.
WATTS, HTDBXCK, and FRASBR, JJ^
concnr.
CKS. cxny
BISGHQFF et aL T. ATLANTIO BBALTT
CORPORATION.
(Supreme Court of South Carolina. July 24,
1913.)
L WlLM (I 533*)— CONSTRTTcnOH— TaKIWO
Pbh Sirarns ob Pbe CAPrrA.
The testator gave all of his teal and per-
sonal properlar to bis wife for life and aftw her
death to be divided equally between their chil-
dren, share and share alike, and provided in
the following claaee that, if any of the children
should die and not leave any Iseoe living. Us
or her sba|« should be •qaall; divifled between
the children "then living^ or their issue ; the
iflsne, If any, to receive thtlt parents' share.
Beld, ttiat the provision that the issne were to
receive their parrats' share referred solely to
the manner of distributioii, and was intended to
indicate that the share or a child dying with-
out issue should be divided between the diildren
titen living and tbe issne ttf those then dead,
per stirpes and not per .capita.
[Bd. Note— -For other cases, see WSIm, Cent.
Dig. I U4T ; Bee. Dig. i 6S3.«]
2. Wills (S 645*)— eoNSTBucnow— Luota-
TTON OVEB ON DKATH OF DiVIBEB DttHO
WrrHouT Isstnt— "Thkit.'*
Construiiur sudb will in conneetiaa with
Code 1912, 8 3061, providing that, when an ea-
tete shall be limited to take effect on the death
of any person withoat Issne, eucb words shall
not be .construed to mean an Indefinite failure
ct Issa^ bnt a failure at tike tUae txt the death
of such pen^n, the dilldren took a fee defeasi-
ble on their death at any time without Issue
living at the time of the death, slnoe "then"
means "et that time," referring to a time speci-
fied, either past or future, and has no power to
itself fix a time, hut stmplr refers to a time al-
ready fixed, and in such will referred to the
time of the deatii of such child.
[Bd. Note.— For other cases, see Wills. Cent
d|^.^IS U71-U7e, 1810-m8; DecTDlg. |
For other definltlonstsee Words and nnaaea,
voL 8, pp. 6841-6M6, 781B.1
Fraser, J., dissenting.
•Tor ether gmm same tepie sod ■Mtlon NUHBBB la Deo. DMb a Am. Dig.
BISCHOFT T. ATTiANnc '• KEALTT - OOl^BATIOK
Ap|>eal from Coquimid Pleas Clronlt Ooort
of Oharlwton CoDUtr: 3- W. Dq Vore, Jndga
CoDtroTCTsy submitted wltboat action be-
tween Albert Blechoff and otbera and tbe
Atlantic Realty Corporation. Judgment tor
pteintlltiB, and defendant appeala. Bmned.
Tbe win taxTolTcd was as toUowi:
HCbe State of South OaroUna
"In the name of God, Amen.
•% Albert Biscfaoff. of the clt7 of Oharlea-
ton, 8. C. and state aforesaid, being of sound
mind and memory, and considering the uncer-
tainty of this frail and transitory life, do
therefore ordain, publish and de<^re this to
be my last will and testament in the follow-
ing manner.
"Item 1st I will and direct that my funer-
al exposes, and all my other just debts be
paid immediately after my death, or as soon
thereafter as it can conTenlently be done,
without making any 'nnnecessary sacilflces
for that purpose.
"Item 2nd. All the rest and residue of my
real estate and personal property whatsoever,
I give and bequeath unto my beloved wife,
Anna Martha BlschoCt ; that Is to say, to en-
Joy the income thereof, after tax. Insurance
and repairing of buildings is paid, during her
natural life, for her and her children support
and for the education of our beloved chil-
dren, and after her death the whole real es-
tate and personal property, to be equally di-
vided between our beloved children, share
and share alike, viz.: Anna Matllde, Alber-
tlne, now married to John Godfrled Steenken
In Brooklyn, Julia Wllhelmlne, Martha Caro-
line, Anna .Matilda Sophia, Carl William,
John GodMed, and also If we should have
any more bom after this my last will and
testament is made, all shall share alike.
"Item Srd. In case any of our children
should die, and not leaving any Issue Uvlng
then Us or her share or part, shall be equal-
ly divided, between our children then living,
or tbelr Issue share and share alike, the issue
If any are entitled and receive the parent
part
"Item 4th. It Is my will that my executrix
and executor hereinafter named keep togeth-
er my real estate, and rent or lease the same
to the best advantage, and use the same or
the net proceeds as hereinabove stipulated.
"Item 0th. It Is my will In case my dear
wife, the said Anna Martha Blschoff, should
be dissatisfied with the written stipulation
of disposition of my estate, she shall have
tte full power and right to waive and relin-
quish her claim stipulated herein, and when
that is done to have her full claim to her
dower In or to said property according to the
statute and regulation and law of the state
of South Carolina, which the Judge of the
probate will then decide in Charleston, S. C.
"Item 6th. It is my will that my executrix
and execntoT shall Invest my personal proper-
ty in real estate, bond or mortage, or other
tood necnri^, according to their own best
I
Judgment, excepting household fturnltiv^ mj
dear wife has the full right and poww to-
do with It as she may like best
"Item 7th. I nominate, ctm^itute and ap-
point my dear wife, Anna Martha Bls<AoS,
my ocecntilx, and Jobn Oodfried Steenk^
my executor, of this my last will and testa-
taait, in witness whereof I have hereunto set
my hand and seal at Charlestmi, S. 0^ April
(25th) twratT-flfth CL873) eighteen hundred
and sevent7-thre&
"Albert Blschoff. [Lu S.]
"Signed, sealed and delivered In onr pree-
ence and at his particular request and in the
presence of each other in the year and month
above mentioned, have signed our names as
witnesses thereta
"0. UUenthal.
"O. Tiedeman.
"John C. Ttedeman."
Nat&us ft BtnUer, of Gharieeton, for up-
pellant George r. T<m l^lnlts and FlckeR
ft Brckmann, all of Charleston, for napaaAr
ents.
GABT, G. 3. This Is a controversy wltiiont
action, under sections 413 and 414 of the
Code of Procedure, for the purpose of deter-
mining whether the plaintiff b, who entered
into an agreement with the defeu^mt to sell
the land described In the complaint, have
such a marketable title as the defendant is
bound to accept
[1.2] Albert Blschoff departed this Ufa,
leaving of force his last will and testam«it,
the second and third Items of which are as
follows :
"Item 2nd. All the rest and residue of my
real estate and personal property whatso-
ever, I give and bequeath unto my beloved
wife, Anna Martha Blschoff, that is to say,
* • • during her natural life, • • •
and after her death the whole real and per-
sonal property, to be divided equally be-
tween my beloved children, share and share
alike, via.: [Naming them.]"
"Item 3rd. In case any of our children
should die, and not leaving any Issue living
then his or her share or part, shall be equally
divided, .between our children then living,
or their issue share and share alike, the issue
If any are entitled and rec^ve the parent
part"
The question submitted to the court was:
"Whether or not, under the terms of said
will, the testator Intended the first clause in
Item third to mean In case any of his chil-
dren should die at or prior to tbe time of the
death of the life tenant, or whether or not he
Intended the said clause in said Item to pro-
Vide in case any of his children should die
at any time and not leaving Issue, etc., and
whether or not, under the terms of said will,
the plaintiffs in this case (who snrvlTed fhd
life tenant) have a fee-simple title."
His honor, the presiding Judge, in ctmclnd*
\Bg Us decree thas ruled: *TaUi& there- ,
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fore, the will u a irtiole, and endeaTorlnK
to make all portions of same consistently
harmonize, I think it was the intention of
the testator in item third to provide for the
contingency of any of his children dying
prior to the time of distribution, to wit,
the death of the life tenant, and I >o hold."
The defendant appealed, and said ocmcln-
fllon is assigned as error.
Section S551, Code of Laws (X9tZ), and
known as the act of 1853, is as follows:
"Whenever * • • in any will of a testa-
tor, hereafter dying, an Mtate, either in real
or personal property, shall be limited to take
effect on the death ot any person witliout
beirs fft the body, or issue, or issne of the
body, or other equivalent words, snch words
Bball not be construed to mean an Indefinite
failure of issue, but a failure at the time of
the death of such person."
The words "the Issue If any are entitled
and receive the parent part," refer solely to
the manner of dlstfrlbutlon, and were intended
to indicate that the share of a child dying
without Issue should be divided between the
testator's dilldren then living and the Issne
of testator'a children then dead, per stirpes
and not capita.
The third section ot the wlU must be read
as it tbB proTlaions of section 3561, Code of
Jaws CL812), woe Incorporated in It; which
wonld then read aa follows: "In case any
of onr chUdren siionld die^ and not leaTlng
any Isaoe Uvlng kt the time ot tbe death
of sncb person, tbra bis or her sbare or part,
shall be equally divided between our children
then living, or their issue, share and ahare
aUk^ tbe share of a child dying witboat issue
living at tbe time <tf tbe death of such per-
son, to be divided between the testator's
children then living, and the Issne of the
testator'a cfaHdrra then dead, per stirpes and
not per capita.** Hie court tbns construed
tbe word *then," in Mangnm r. Fiester, 16
S. 0. 816 : "The word, as an adverb, means
•at that tlm^' referring to a time specified,
dthfir past or future. It has no power in
itself to fix a tim& It simply refers to a time
already fixed. Xbe question here 1% What
time do the words 'dying without issue' nn<
qnalifledly fix? Do they fix an Indeflnito
period whoi there shall be no Issue, or do
they fix a d^nite period, to wit, the death
of W. B. Griffin T They must have been used
with reference to one or the other, and,
having been thus used, the adverb then fol-
lowing them would refer to the one or the
other as their proper construction might In-
dicate as the time Intended. To assume
that the use of the word would, In itself, fix
a certain time and then refer to It would be
giving it a double significance, of which it
is not susceptible." The only reasonable
construction of the word "then" in the
third clause of the will Is that it had refer-
ence to the words "dying without Issue liv*
ing at the time of the death of such person^"
thus precluding the IOm that tt bad ref-
erence to dying without Issoe in tbe Ufetboie
of the life tenant
The leading case upon which the respond-
ents rely Is Tidal v. Verdler, Speers, Eq. 402,
in which the devise was as follows: "I give,
devise and bequeath unto my beloved wife,
Sarah Bennett, the use of all and singular
my estate, both real and personal, whatso-
ever and wheresoever, during her natural
life ; and after the death of my beloved wife.
Sarah Bennett, I leave to my nephew, James
Felix Vldal, the whole of my estate, both
real and personal ; but in case of the death
of my nephew, James Felix Vldal, without
his leaving a lawfully begotten child, or ctill-
dren then and in that case, the whole, both
real and personal, be divided among the rest
of my nephews and nieces, share and share
alike. And be it further understood, that in
case of the death of my nephew, James Felix
Vlddl. leaving a lawfully be^otien child, or
children, then and In that case, the whole
property, both real and personal, shall be
divided between them, share and share alike.**
The last sentence thereof is what spedally
distinguishes that case from the one now un-
der consideratton.
The case of Vldal Terdier, Speers, IDq.
402, was thus explained by OianceUor Har-
per, who wrote the opinion in that case, tn
Tates w. Mltehell, I Blch. Eq. 265: *miat
case was decided mi tids i^dple: That,
when a testator, living In ranalnder after an
estate for Ufo, uses one set of expressions
denoting that the remainderman is to take an
absolnte estate, and another set of escpm-
Blons limiting blm to an esUte for life, with
remainder to his issue, and a limitation over
in the event of not having Issue, this aiwr-
ent r^ngnaucy may be reconciled by re-
stricting the dying without Issue to the life-
time of the tenant for life, thus permitting
every part of , the win to have Ite proper
effect. If be dies during the lifetime of the
tenant for life, leaving issue, the issue will
take as purchasers under the will, if wUbr
ont Issn^ tbe llmitatimi ovec will have ef-
fect; but If he sarvives die tenant' for life
the estate is absolnte. Snch Is in every case
a reasonable and probable intention ; and In
that case there were circumstances to satisfy
me very fully that such was the actual In-
tention."
He then proceeds as follows to show the
difference In the case then under consider-
ation and that of Vldal v. Verdiw, Speers,
Eq. 402: "But this has nothing to do with
the case before us, though In another and
peculiar sense, different from that in which
the words are used in Vidal v. Verdler; the
devisee in one event Is said to be restricted
by the terms of tbe will to a life estate.
It enters into the very definition of an ex-
ecutory devise; that a fee simple or ab-
solute estate may be given, with a provision i
that it shall det^mlne and go oror on a i
Digitized by Google
BISOHOFP T. JLTULTUnC
IIBAI«TT OORrORATION
future contln^ncy — mbst commonly, the con-
tingency of dying wltbont leiiTlng Issue; and
this la wbat Is -verj clear In the present in-
stance. Tlie testator dsvises to bis children,
their heirs, executors, administrators, and
assigns forever.' He gives an absolute estate,
and an absolute estate only; though, to be
sure, it may be said that In one event It
turns out to be no more than a life estate.
In a sense still somewhat different, every
man may be said to have only a life eetate In
any of his property. In the pretent cote, if
the devisee had left istue, hit eitate would
have been abtolute to that he might di$po»e
of it at hia pleasure to hit ittue or any one
elte. In Vidal v. Verdier, on anp other con-
ttrw^ion than that which v>at adoptedf he
covtd have had an absolute estate <» no
event tohatever." (Italics added.)
In MarshaU v. Marshall. 42 S. O. 436, 20
S. 'B. 298, the court had under consideration
the will of John Marshall, which contained
these clauses: ***Srd. I leave to my beloved
wife her lifetime the plantation whereon I
now reside.' • * * 'eth. I give to my be-
loved sons Wm. K, and John W. Itfarshall
at the death of my wife the residue of my
land being the plantation whereon I now
live commencing at the Hickory comer men-
tioned In Robert's track to extent of my land
boundary west of the Potter road, the same
to be eanally divided between them, giving
Jdtm the side next W. W. Bell's with these
considerations, that each one pay to me or
my executor the sum of sixteen dolhirs
yearly conunendng on the first of Jan> 18tt,
for the siQtport of myself and wife during
my lifetime and the lifetime of my wife
should she outlive me they refusing to com-
ply with said terms forfeit so much out of
the said lands so given th^ and by tludr
compliance I give said parcels of land to
them and their h^ forever.' • « «
'llth. Should my son Jchn W. Marshall die
leaving no children to Inherit the land left
him by me at hla death It Is my dedre and
I leave It as my will that the parcel of land
BO left him by me be sold and tiie proceeds
be equally divided between my son San^uel
and my three daughters Mar7> Susan and
Sarah or their heirs.' "
Chitf Justice Uclver, who delivered the
oi^nlon of the court, thus states Che question
then under discussion: *^e practical in>
qnlry is whether the testator Intended, by
the words whidi he has used In the eleventh
clause of his will, that the fee prevloiuly
given to John W. Marshall by the sixth
clause of the will should be defeated by his
death without diUdroi during tin lifetime
of the widow, or by his death without chil-
dren at any time when that event should oc-
cur; for both parties concede, and the dr-
cnit judge so holds, that John took a fee
defeasible upon the haivenlng of one or the
other of said contingencies."
He then proceeds as follows to comment on
the casM ot Tidal r. Verdier. 1 apeera, Sq.
402, and Tates v. BfiteheU, 1 Bldi. Sq. 266:
"In Yates v. Mitchell, 1 Rich. Eq. 260, the
testator gave one moiety of the annual In*
come of his estate to his wife for life, and
the other m<dety to his children during the
life of his wife, and then provided that after
the death of his wife his estate should
go to hia chUdien In fee, 'and should any
of my said children die (trlthont leaving
lawfiUly begotten issue, Uvlng at the time
of his, her, or their death, then Uie share or
shares in my estate of sucli dllld or children,
so dying as aforesaid, shall go to the sur-
vivor or survivors of my said dUldren, and
to the issue of such of my said children aa
may have previously died.' It was contend-
ed that npcm the death ot the widow the
estate of a dilld who survtved her became
absolute, and the case of Vidal v. Verdier,
supra, was relied upon to support that view;
but the court held that that case did not ap-
ply, and upon the death of any of the cbll-
dr«o, at any time, without issue, the share
of ^e child so dying would go over to the
survivors. It serans to us that Tates v.
Mitchell IB much more like the present oue
than Vidal v. Verdier."
After quoting the language of Chancellor
Harper In Yates v. Mitchell. 1 Rich. Eq. 266,
explanatory of Vidal v. Verdier. Speers, Eq.
402. be then says: **It is very obvious that
the case of Vidal v. Verdier thus explained
cannot control the present case. For here
there are not two sets of expressions, one
denoting that John "W. Marshall was to take
an absolute eetate. and the other limiting
him to an estate for life, with remainder to
his Issue, and a limitation over upon fttilnre
of issue. On the contrary, It la clear that
John W. Marshall by the sixth clause took
an estate In fee simple, after which there
could be no remainder to his issue; but by
the operation of the eleventh clause such fee
became defeasible upon his death without
children, whenever that event might happen.
Carson v. Kennerly, 8 Rldi. Eq. 269; Thom-
son V. Peake. 38 S. C. 440 [17 S. B. 725].
The case of Blum v. Evans, 10 8. O. 66. rest-
ing mainly, if not oitlrely. upon Tidal v.
Verdier. need not be considered."
In the case of Mangum v. Piester, 16 S. O.
816, Chief Justice Simpson, who delivered
the opinion of the court, used the following
words, attes quoting the explanatory lan-
guage <tf Chancer Harper, in Tates t.
Mitchdl, 1 Bleb. Bq. 266, in regard to the
doctrine announced In Tidal v. Terdler,
Speen, Bq. 402: "But he said, further, that
this had nothing to do with the case he was
then discosslnK because in that case there
was not a double set of expressions, indicat-
ing different estates convey^!, as In Tidal
T. Terdler."
These autborlttes clearly establish the
doctrine that nhless there are two sets of ex-
pressions, cme denoting that the remainder-
man is to take an absolute «stat^~and an^
Digitized by VjOOQ
99S
V mSOtTDBBlASTDBN BBFQBTSB.
otbbT (tf ttzpreBsloDs' Umttiiig blm to an
estate for Ufe toftft rentalndar to Mi
and a llmltatiba over In the event of hla not
baring Issne, tbe rale announced In Tidal
V. y wdler, Speere, Bg. 402, cannot be Bocceee-
fally invoked, as it was only intended to be
aivlled when there was a necessity to lecon-
Qllft the apparent repugnancy by ^reetrieting
the dying wlthont Issue to the lifetime of
tta0 tenant for ItOft, .and thereby permitting
evwy part of the will to have Its prapa
effect
In the case of Vtdal v. Verdier, S peers,
Elq* 402, James Felix Vidal was given an ab>
solute estate after the death of the life ten-
ant It was BUbsecLnenUy provided that, if
be died without leaving a lawfully begotten
child or cUldrea, then and in that case the
wb<de property, botii real and personal, be di-
vided among the rest of hia nephews and
nieces, sluire and share alike. So far no val-
id objection could be nrged to the provisions
of the will, as it la not an inconsUtency, but
only an Instance -ot that which commonly
arlaea when an exeoitory devise or a oontln-
gent or aobstittntional limitation la created.
A different principle, hmrevet, prevall9 when
there is a repugnancy between those pro-
visions giving a fae In the flrat instancy and
those subsequent provlslotta whldi deetr^ It,
or cut it down to a life estate. ' The wlU snb-
oeanently protvided titiat, In caae ct the deat3i
of James F^ix Vldal, leaving a lawfully be-
gotten diUd oc children, then and In Qiat
case the whole psopertT-, both real and per^
•onal, was to be divided between them, share
and share alike. It will thus be seen that if
be died without issue the property was to go
to others, and tbat If he died leaving a dtll4
or chUdren Uie property was to go to Uiem.
Therefore it was certain that be could not
In either event enjoy more than a life es-
tate. It was with a view of reconciling this
repugnancy that the court in tbat case re-
strlcted the dying without issne to the life-
time of the tenant for life.
In the case of Marshall v. Harsbal), ^ 8.
0. 436, 20 S. £}. 298, the will did not provide
that the property should go to the issue of
John W. Marshall, and this Is the. distlnr
gnlshlng feature between that ciase and Vidat
V. Tidier. The case under consideration
comes within the doctrine announced in Mar-
shall V. Marshall, snpra.
We proceed Ustly to consider the case of
Blum V. Evans, 10 S. a 66, in which the pro-
visions of the will were as follows : "I give
to my beloved wife my entire estate, real and
personal, during her lifetime, under the con-
trol and management of John Horlbeck and
G. W. Dingle, as trustees, substltntlona to be
made by the court and approved of by the
parties interested. I wish my wife to enjoy
tjils estate during her life ; at her death to
go to my daughter, Enuna Julia, Should my
daughter die without Issue, I wish my entire
estate to be divided eanaUy among tbe Horl-
becks (my wife's fiunily) and the Bloau (axr
family), one-half to the Horlbecka, ooe-half to
the Blums." It will thus be seen that tbe
&eta were siaillar to those in Marshall v.
Bfarsball, 42 S. C. 436, 20 S. E. S98. and
not to those in Tidal v. Terdier, Speera,
Eq. 402, in: this Important particular, to
wit: Ttiat If the testator^ daughter, ^n-
ma .Julia, to whom he gave an abaolabe
estate in the first instance, had isane ttving
at the time of her death the property was not
to go to ««c% i»»%e. There was no express
words conferring audi right upon tiie Issue,
nor was tiiat a case in which they could take
by implication. Shaw v. Erwlit, 41 S. GL
200, 19 a B. 400. The doctrine annoonoed
in Tidal T. Terdier was therefore incorrectly
applied in Blum v. Evans.
While, as already stated, the facts in the
last-mentioned case were similar to those In
Marshall v. Marshall, and entitled tike par-
ties to idmilar rdlef. tb oonduaioDs were
different We must therefore r^rd tbe cue
of Blum T. Brans as practically orermled
Marshall t. ManbaU, which was m latw
case.
Jo^ment Teversed.
HTDBIGE and WATTS, 7J.. eoncor.
BHABBR, 7. (dissenting). I camu>t coneor
In the <9lnIon of the nnjorl^ of the court
in this case, and would not do so unless I
felt implied hy Indisputable antbority. I
tUnfc that tbe drcnlt decree ought to be
afDrmed tqwn the authorltlea and for tbe
reasons therein stated.
It would not be profitable to compare ttio
cases and review fiiem alL While it Is tme ^
that certain words have recrived Judicial con- *
stmcUon, yet it Is a rule ^cb Is appUcable
to tbe oonstmctlon of every will tlut tbe in-
tention of the testator shall govern. I know
that the word 'intention** is a term of art,
and signifies the meaning of the words there
used, and does not refer to the purpose wbl^
the testator may have had in his mind. . Ap-
plying this fundamental rule of construcUon,
the question la, What estate Is given to the
children of Mr. Blschoff In his wlllf Without
attemptlDg to cite the will in full, which win
appear In the case, and to which reference
can easily he made, we find that he provided
in the first clause of his will for the payment
of his funeral expenses and Just debts. In
the second clause of his will he gives all of
his property to his wife, not merely to his
wife, but to the individual, Anna Martha.
She is to hold the property during her natu-
ral Ufe for her and "our" children's support,
and for the education of our beloved chil-
dren, and after her death the whole real es-
tate and personal property to be equally di-
vided between our beloved children, share
and share alike. The children do not take as
a class, but be names them, Anna Matilda^
AlberUne^ Julie WUhdndne^ Martha Oarollnab
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aO> BIBOHOIT:T.'AniAirQCKBAIiTTODBPOItATI(»r MS
Anna Matilda Gophio. Carl WUUam. John
Godfried, aod ttten he provides iu general
terms for any other cUldren who might
thereafter be born. Up to that point the chil-
dren unquestionably take a fee in remainder.
Unfortunately he adds Item 3. In which he
says: "In case any of our children should
die, and not leaving any issue living then
bis or her share or part, shall be equally
divided, between our children then living,
or their issue share and share alUie, the Is-
Bue If any are entitled and receive the par-
ent part" Item 4 provided that the es-
tate shall be kept together. Item 6 provides
that If the wife, Anna Martha, should be
dlnatlafled with the provision he iifid made
for her she could then, at her option, take
her share under the statute. Item 6 pro-
vides that the executrix and executor "shall
invest my personal property In real estate,
bond or mortgage, or other good security,
according to their own best Judgment" If
there is anything clear in this will, it is that
Mr. Blschoff loved the persons named, and,
with the highest sense of conjugal and pa-
rental love, attempted to provide for the spe-
dflc objects of his bounty, and be calls them
by name.
The opinion of the majority of this court
while not depriving the widow of her ad-
vantage, almost absolutely destroys the in-
terests of the children. The children, it Is
held, take a fee defeasible upon their dying
without issue. The issue of the children take
a tee. Mr. Blschoffl provided that the In-
ctnne from his estate shall be used for the
education and support of his children. The
unknown grandchildren take the property
itself. The children whom Jie knew by name
and loved will be entitled to their bare sup-
port after tbej have recelTed their education.
They axe entitled to their support aod noth-
ing more until the day of their death. The
estate can never vest in tlum, can never be
subject to their control, and mton the Jndit-
ment of the executor or executrix as to what
is a reasonable amount for tiietr support they
must depend.
The clrcait decree mlaqtuoted section S.
It does not say: "In caae our cUldren should
die not leaving isBue"; it aaya; "In case our
children should die and not leaving issue."
Our f^dren will die, every one of them.
There is no contUigent? about tliat There
IMS a contingencT aa to irtiether our chil-
dren, all or any of them,, would die before Qie
life tenant
It seems to me that as the time tor dis-
tribution Is fixed at the time itf the death of
tibe life tenant, and there are no teatricdons
upon titidr taking those who take take a
fee. It is conceded that the worfl "then"
refers to the time fixed. The only Uine fixed
in the whole «4U is the time of the death of
the wife. Now snbsUtnte for laie word
«^en" the fixed time we have: If any of our
diUdrai be dead, at the time of the deatb of
78 8^-68
my wife, the Isauet if any. sbaV take; if
there be no Issue of a predeceased child, then
those who survive my wife shall take, the
Issue of a deceased child to represent the
present What estate shall they take? The
will is silent and the statute says a fee. By
this construction the issue of children take
now in fee simply while the children, the
Immediate objects of Ills bountgr, take a fee
defeasible.
So entirely free is this testator from a
foolish pride to keeping up a family estate
to descend from generatlcm to geaieration that
in Item 4 he gives power to the executrix
and executor to r^t or lease the real estate
and use the same or the net proceeds as here-
inabove stU>iiIated. That Is to say, if it tw-
comes necessary for the education and sup-
port of the persons named to use the corpus
Itselt It shall be used.
It will be further observed that. Mr. Bla-
choff says tcAo shall take, not how the^
shall taka He limits the estate of the wife
to a life estate. There Is nothlngHn this will
wbich Is Inconsistent with a fee in those who
shall take at the death of the life tenant
and under the statute that makes a fee.
-It will be observed further that Mr. Bls-
choff refers to money, and can It be that he
Intended that his cbildroi should have any-
thing but a fee In the money? And yet there
la DO distinction between money and land,
and as they take the money they, take the
land. But th^ do not take the money or
the land.
Item 4 provides (subsequent to item 3, ani
controlling it) that hla executrix And etecu
tor "hereinafter named" shall keep togethei
his real estate and rent or lease the same to
the best advantage, and use the same or the
net proceeds as hereinabove stipulated, that
is, for the education and support of the chil-
dren.
Item 6 provides that the executrix and ex-
ecutor shall invest bis personal property in
real estate bonds and mortgages, or other
good securities, according to their own best
Judgment Now If the children named are
to take a fee defeasible, then the money must
be kept togetber until tbe last Child is dead;
jio, not until tbe last child is dead; the la-
me of decsBstfd CbUdren take dicir sharei as
Ubi^ parents dlflt and take it in fee.
There is no provision in the will ft>r par-
tial settlements as eadi child dies and tbe
unknown issue. comes into. Ms own,. and tbe
whole will sbowB that n6 sn^ thing is con-
templated. The ptoperij is put In f^rge
of tbe executrix and executor, not in tbe
hands of trustees. The appointment Of a
trustee might have Indicated that BIr. Bis-
cholf ctoitemplated an indefinite period of
holding; but when he conferred tbe duty up-
on bis exeentrix and executor he sbowri, and
the vriU showed, that Mr. BlschoflT apprebend-
ed that the time between hla death and that
bC Us wife woold not be long, andfttausfora
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9M
18 80UTUB1ASTXIBN BBFOBTBB
tbe time of ^trlbatton and tbe time of vest-
ing of the estate would be short, and appoint-
ed those to manage his estate, who in contem*
plation of law should hold for but a ebort
time.
Even if item 3 must be construed to cut
down a fee simple to a fee defeasible, items
4 and 6, subsequent items, which show that
an early division is contemplated, ought to
control the disastrous consequences of sec-
tion S.
It seems to me that, upon reading the
will as a whole, It is very manifest that Mlt.
Blscboft Intended that his wife should hare
tbe use of all of his property during ber life,
and that the mother love would prompt her
to do Just what he said could be dooe — ^nse
the property that had been his for tbe edu-
cation and support of his wife and children,
and then at her death those children named
and such others as might be entitled should
take the estate, and should take it so that it
might be of some use to them, and treat bis
BODS and daughters like men and women,
and not keep them as perpetual wards of
chancery and rectulre them at all times dur-
ing their lives to apply to the courts for per-
mission to sell and reinvest every cent
of tbelr property.
For these reasons I dissent
(9b S. C. S39)
BOOK T. NORTHWESTERN R. GO. OT
SOUTH OABOLINA.
(Smvsme Court of South GanUlna. July 80*
1913.)
AusnDHKNT or PucAonraB— AKBwn.
- In a proceeding to restrain defendant rail-
road company from excavating on plaintiff's
land, defendant held, by an evenly divided
court, entitled to amend its auswer.
Hydrick and Fraser, JJ., dissenting.
Appeal from Common Pleas Circuit Court
of Sumter County ; J. S. Wilson, Judge.
Action by Julia V. Beck against the North-
western Railroad Company of South Caro-
lina. From an order allowing defendant to
amend its answer, plaintiff appeals. Af-
firmed.
L. D. Jennings and R. D. Bpps, both of
Sumter, for appellant Lee & Molse and Pur-
dy ft Bland, all of Sumter, for respondent
OART, O. J. This is an appeal from an
order allowing tbe defendant to amend its an-
swer In certain particulars.
The exceptions raise two questions, the
first of which is whether his honor, the
circuit Judge, had the power to allow tbe
amendments. Tbe case of Taylor v. Railroad,
81 S. a 674, €2 S. E. 1113, which has been
affirmed In numerous subsequent cases, is
conclusive of this question, and shows that
the exceptions nloing tbla question mmot
be sustained.
Tbe next questloit Is i^efher Qiere was
an abuse of discretion. The appellant bas
failed to satisfy this court that there was
error In this respect, and the exc^tioiis
raising this question are also oTerraled.
Appeal dismissed.
WATTS, J. I concur only in the result
in tbe opinion of tbe CHIEF JUSTICE, for
the reason that I am loath to disturb the
action of th6 circuit Judge la the exercise of
his discretion, unless there Is abuse, and I
cannot say there Is. Now, as to what effect
the amendment allowed will have, in view of
the decision of this court in Abbott v. Lumber
Co., 93 S. C 181. 70 S. B. 140, It Is at tUs
time cnnecessary to consider.
FRASER, J. I cannot concur in the opin-
ion of the CHIEF JUSTICE. The plaintiff
claims to own a tract of land through wbldi
the defendant is operating a railroad, and
that the railroad company is making excava-
tions on the land along the railroad and
carrying away the soil, that the land belongs
to the plaintiff, and she Is damped thereby.
She denumds damages, and asks for an In-
junction. The suit commenced In Joly, l&ia
Judge KConmlnger Issued a restraining order.
The case shows that tbe defendant made a
motion before Judge WUson on tbe 26th of
July, 191(^ to dissolve the restraining order,
and It was granted.
The case shows that "during the ai^nment
on this motion one of tbe points made by one
of tbe attorneys for the defendant was that
tbe ad!endant company was well able to re-
spond in damages, and therefore the re-
straining order sbonld be dissolved.** Tbe
answer of the defendant was sworn to on the
6tta of August, 1910. Tbe answer admitted
the acts complained of and Jnstifled under
claim of right In October, 1912, the defend-
ant applied to Judge WUson fw, and ob-
tained, an order allowing It to amend its
answer, setting up the defense of "Indqwnd-
ent contractors." From this order, this ap-
peal is taken.
I think this an>eal ought to be sttstalned.
and the order appealed from be reversed,
for the following reasons:
1. Amendments are ordinarily within tbe
discretion of the circuit Judge, but there are
limits. The defendant Claimed to own the
land and Justified under a claim of rigbt
It admitted that it was making the excava-
tions and that it was using the dirt for its
own purposes, and asked the court to allow
it to continue. If they were doing this
through Williams & Co., then under Abbott
V. Sumter Lumber Company, 93 S. C. 131, 76
S. E. 146, Williams & Co. were not independ-
ent contractors, but servants, and defendant
is responsible for tbelr acts. The amend-
ment was either necessary or unavailing.
2. The case shows that Judge Memminger
8.01
9»
oTAer was vacated. *l>ai4ii( the argament
on this motion, one ot the points made by
one of the attorneys for the defendant was
that the defendant company was well aMe to
respond In damages, and therefore the re-
straining order should be dissolved." It
seems to me that when a defendant comes
Into court, admits the acts, justifies by a
claim of right, and induces the court to allow
it to continue to do the things complained ot,
claiming that it Is well able to respond in dam-
ages, an amendment setting up the d^ense of
independent contractors ought not to be al-
lowed. Certainly not, unless there Is a clear
showlug that the Independent contractors are
also amply able to respond in damans and
that they are within the Jurisdiction of the
court The defendant Is asking a faTor, not
demanding a right The defendant knew In
August, 1910, when it framed Its answer, all
the facta about the independent contractor
that it knew In October, 1912, when It se-
enred the order allowing the amendment. Of
course, the high character of the parties In
this case negatives a design to do what Is
wrong ; but this case is a precedent, and it is
easy to see what abuses may creep Into the
administration of Justice in this state if this
amendment la allowed. A person or corpora-
tion "well able to respond in damages" can
look over the state and take whatever prop-
erty It please If stopped in the taking, It
says: Tes; I took it It is mine, but I
am well able to respond In damag^k" The
court withholds its hand. It takes the bal-
ance The litigation Is contlnned for years,
until it has gotten all It wants, and tben shall
It be allowed to amend and say: "I am not
Uable, and never was."
I do not tblnk the amendment should be
allowed.
HYDBIOE; J., concurs.
(H 8. a 40)
STATE T. MALLOT,
(Supreme Court of South Carolina. April 7,
1913.)
1. CoKHirnmoNAi, Law (| 197*)— "Ek Post
Facto Law"— Obhural I^oislation.
Aq "ex post facto law," as applied to ctim-
Inal legislation, ia one wbich in its operation,
makes that criminal wbich was not so at the
time the act was performed, or which increases
the punishment, or which. In relation to the
offense or Its consequences, alters the situation
of a party to bit disadvantage. It includes ev-
ery law whldi makes an act done before the
passing of the law, and which was innocent
when done, criminal, and punishes such act:
every law wbich aggravates a crime or makes
it greater tbao it was when committed ; eveiy
law which dianges the punishmrat and inflicts
a greater panlshment than tne law annexed to
the crime when committed ; and every law that
alters the legal rules of evidence, and receives
leas or different testimony than the law required
at the time of the commission of the i^Eenae, ia
order to oonrlct the offender. It doss not la^
*Wm other casts wmm Utpla and — otlM NUMBg^
dude, hawever, laws that moIHIIlr the rigors of
the criminal law to the prisoners benefit
[Ed. Note. — For other cases, see Constitution-
al Law, Cent. Dig. | 550 ; Dec. Dig. § 1S>7.*
For other definitions, see Words and Phrases,
vol 3, pp. 2527-2533; vol. 8, p. 7057.]
2. CoNsriTUTionAi, Law (8 203*)— Ex Post
Facto Law — Cbiuinal Legislation —
Change of Pokishment.
The punishment prescribed by law for an
offense at the time it was committed cannot be
changed by subsequent legislation, unless the
change is advantageous to the priBoner.
[Ed. Note.— For other cases, see Constitution-
al Law, Cent Dig. H 68^«90; Dec. Dig. f
8. CoNBTiTunoKAi, LAW (| 203*>— Ex Post
Facto Law — Cbiuinai. Leoislation —
Chahob of Punishment — Place of In-
FLioTZON— Details.
Act 1912 (27 St. at Large, p. 702), chang-
ing the punishment for murder in the first de-
f:ree from hanging to electrocution, and cbang-
ng the place whgre the execution should be con-
ducted and the number of witnesses iMrmltted
or . required, was not disadvantageous to one
convicted of sncb offense for an act performed
prior to the enactment of the law ; and there-
fore. In so far as it applied to him, was not
objectionable as an ex post facto law.
[Sd. Note.— For other cases, see Oonstitn-
tional Law, Cent. Dig. {| 584-690: Dec. Dig.
S 203.«1
4. CaiuinAL Law (| 1192*)— Apfxai/— Dboi-
siON on FoBicea Affkal — Law or thi
Case.
Rulings of the Supreme Court on ezcep*
dons on a prior appeal, refnsing to sustain ac-
cused's challenze to the array ot the grand jury
and to quash the Indictment on the ground that
it had been found by an illegal grand jury, and
overruling accused's challenge to the array as
drawn from lists Illegally made up, etc., con-
stitute the law of the case on retrial.
[Ed. Note. — For other oases, see Criminal
Law, Cent Dig. H 3231-3240, 3243 ; Dec. Dig.
81102.*]
5. CsiiniTAi. I4AW (I 1059*)— Appeal— ExoBP-
TioNB— Grounds of Objection.
An exception to a ruling on the admission
of evidence, falling to state the grounds of ob-
JectioD, will not be reviewed.
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. { 2071; Dec. Dig. S 1059.*]
«. CaiMiNAL Law (SS 763, 764*)— Tbeal-Ik-
ffTBUCnONS.
An instruction that the opinion of experts
is like any other testimony tn the case, and
must be weighed by the jury as other facts are
considered, u not objectionable as a charge on
the facts and an invasion of the province of
the Jury, since It should be construed as mean-
ing that If the Jury believed the testimony of
an expert, thej[ should not disregard it merely
because the witness was testifying as an ex-
pert
[Ed. Note. — For other cases, see Criminal
Law, Cent Dig. U 1731-1748, 1752, 1768,
1770 ; Dec Dig. H 763, 764.*]
7. C^naNAL Law (| 7dl*)-TBZAL— Insttbuo-
TZONS.
An instruction that the free and voluntary
confession of one accused of crime is competent
evidence to be considered by the jury In deter-
mining the person's guilt or innocence is not
objectionable as agsnmliv that a confession has
been made, ,elnce the charge is general, and
should be understood as if It had been preceded
by the word "if."
(Bd. Note.— For other cases, see Criminal
tiw, Gent Dl«. U 1781, 1738rn6*-17«4, 177L
^g^ ; Dee. Dig, j 761.*1 ^
iHg. ft Am. XXg. Kn-Mou 8«lss * Itm*r Indaxas
Digitized by
Gbogie
9M
18 SOIJTHBASTBBN BBTOBTEB
m-o-
i. CsnaifAC Xaw 824*)— IiinsncTXOHB—
Rkqubsts— NKcnanrr.
Accused could not object to the oourt'i
failure to charge od manslaugbter, wbere be
failed to present a request for such charge.
lEd. Note.— For other coses, see Crimm&l
^^^Oent. Dig. U 1986-2004; Dee. Dig. 1
Woods, J., disaeotiiv.
Appeal from General Sessions Circuit
Court at Marlboro County; 1. H. Spaln^
Judge.
"To be offldally reported."
Joe Malloy was coavlcted of murder and
sentenced to death by electrocution, and be
appeals. Affirmed and remanded.
The following are tbe ezMptlona referred
to In tbe opinion:
"(1) Tbe court erred In overmUng the dial-
loige to tbe anray of the grand Jury and in
hokUng that it was a legal grand jury, when
It was drawn tnaa a list not made up ac-
cording to hiw, aa shown by tbe admitted
fiuta set out in the pleaf and th^ deprived
Uia defendant of bis right to bo tried on a
dnly found by a legal grand Jnry, In tIo-
latton of the Constitution of the United
States and of this state.
**(^ The court erred In refusing to quash
the indictment on the ground that it was
found by an illegal grand Jury, and thereby
deprired defendant of tbe right, given him by
tlie Constitution of this state and of the
United Statte, to be tried on a valid indict-
ment found by a le^l grand Jury.
"0) The court erred in overruling tbe chal-
loige to the array of tbe Jury as being ille-
gally drawn from lists Illegally made op, and
thereby he deprived defendant of his right,
guaranteed by the Oonstltution of this state
and of the United States, to be tried by a
Jury of liis peen^ locally drawn and im-
paneled.
"(4) The court erred In overruling the plea
In bar to the infliction of tbe death penalty
electrocution and the motion In arrest of
Judgment, for the reason that when tbe crime
was charged to have been committed the pen-
alty was death by hanging, whereas, the pen-
alty of death by electrocution was snbstitnt-
ed by the act of February IT, 1912 [27 St.
at Large, p. 702], and was ex post facto as
to him; and the Imposition of the sentence
was in violation of the Gonstltatlon of tbe
United States and of this state, prohibiting
the passage of ex post facto laws.
"(S) Tbe court erred in allowing the. wit-
ness Stephen Toms, over the obJectlOD of
defendant's counsel, to state that he bad told
tbe same story to one Collins before he told
the same In Mr, Evans* office; tbe same be-
ing an effort to corrobcHVte the witness by
tlie fact that he had made the same state-
ment elsewhere, and being Incompetent and
prejudicial and self-serving.
"(6) 1310 court arred in charging ttiat 'the
opinion of experto Is Ulte any other testi-
mony in tbe cas^ and must be weighed by
the Jnry as oOur facts hre eonslderwl.* It
being a charge on the facts, and an inva-
sion of the province of the Jury, whose sole
province Is to weigh the evidence; and the
court cannot direct it aa to the method of
weighing any kind of evidence.
"(7) The court erred In charging the Jury
that 'the free and voluntary ooufeaslon of
one accused of crime Is competent evidence
to be considered by tbe Jury in the deter-
mination of bis guilt or innocence,* the same
being prejudicial, in that there had been
proven alleged oonfesslon of the defradant,
and the charge tended to impress the Jury
tliat such alleged confessions were made,
whereas, they were disputed; and the com-
petency of evidence la passed upon when it
la admitted, and its use should not be com-
mented upon in the charge^ the same being a
charge on the facts.
"(8) The court erred in not charging the
law of manslaughter, as there were circum-
stances which might have indicated a case of
manslaughter, -and the same iboald bare
been dedaed to tbe Jnry.
"(9) The court erred In holding the Jurors
competent who had formed and expressed
an opinion trom the evidence given at the
coroner's inquest, when it was likely that
the evidence would be the same on the trial,
and In not excluding them for that reason.
"(10) The court erred in standing aside
the Juror R. B. Crosland. when the only
charge was that he had been by mistake
bound as a witness for the defense.*'
Stevenson, Stev^ison St Prince, of Beih
netttville, for appeUant J. Monroe l^eu%
SoL, of DarUnstoo, far the SUte.
GARY, C. J. The defendant was indicted
and tried In July, 1912, for tbe murder of
Prentiss Moore, on the 24th of Kovember,
1910, and the Jury rendered a verdict of
guilty, whereupon the court sentenced him
to be electrocuted on the 0th of August, 1912,
In the manner provided by the act approved
the 17th of February, 1912 (27 St at Large,
p. 702), which wUl be Incorporated in the
report of the case, together with section 946
of the Criminal C!ode of 1912, Which pre-
scribes the manner In which a person irtiaU
be hanged. The defendant appealed I4xm ex-
ceptions, which will be reported.
The first question that will be considered
is whether tbe said act which changed the
punishment for murder from death by hang-
ing to death by electrocution was unconsti-
tutional, on the ground that it was an ex
post facto law as to him. Section 109, Crim-
inal Code of 1002, is as follows: "Whoever
Is guilty of murder shall suffer the punish-
ment ot death: Provided, however, that in
each case where the prisoner la found guilty
of murder, the Jury may find a special ver-
dict recommending him or her to the mercy
of the court, whereupon the pnnlidunent shall
be reduced to imprisonment lo ttie peniten-
tiary with bard labor during the whole life-
•Ite othsv flssss SM SSin tepia'auA'Metloit miHBBIt in Dm. Dig. ft Am. Dig. K«ii*itel B^MiftJeqf^^atlsxes
8.0>
8TAtB T.
MALLOT
time ot ttke prisoner.** Prior to tbe act of
1912 tbe mode of execntlon. wben the prlsoH-
er was seuteaced for murder, wfts by baoff-
iDg.
[1] In 000107*8 GonstituUonal limltatlous,
pages 319, 820, tbe author quotes wltb ap-
proval, tbe following language of Chase, J.,
In tbe leading caee of Calder t. Bull, 8 Dall.
(Pa.) 386,lLi]Gd.648,astoex post facto
laws: "I will state what laws I consider ex
post facto, witMn tbe words and tbe Intent
of tbe prohibition: First, every law that
makes tn action done before the passing of
tbe law, and which was Umocoit when done,
erlminal, and punldies each action ; second,
every law that acgravateB a crime, or mahea
it greater than it was wben committed;
tbird, every law that ^nges tbe punish*
ment, and inflicts a greater punishment than
tbe law annexed to the crime, when commit-
ted; fourth, every law that alters the legal
rales of evidence, and receives less^ or differ-
ent^ testlnumy than the law required at the
time of the commission of tbe offense, In or*
der to convict tbe offender. Ail these and
similar laws are manifestly unjust and op-
pressive. • • • But I do not consider
any law ex post facto, within the prohibition,
that moUlfles tbe Klgor of the crlmtiial law;
bat only those tliat create, or aggravate, the
crimes or increase tbe punlshmmt. or diange
the rules of evidence, ' for the purpose of
conviction.'* The last sentesce is quoted
wltb approval, in Btate v. Richardson, 47 8.
aie6^26S.]D.2aO, 85L.ILA.23&
In tbe c^ ot Krtng v. Mlssoorl, 107 C. S.
221. 2 Sup. Ot 448, 27 I4 Ed. S06, it was h^
that any law is an ex post facto law, within
the meaning of tbe Oonstitution, passed aft-
er tbe commission of a crime charged against
a defendant, which in relation to that offense
ftlters the Bltnati<m ot tbe party to his disad-
vantage; and np one can be criminally pun-
istaed, eiroept in accordance wltb tbe law of
force wben the offense was committed. In
that case tlie court quoted with approval,
Uie following Iwgnage from tbe case of Har-
tang V. People^ 22 N. T. 85: "It is highly
mobablei tbat tt was tbe intentiim of tlie
LHUfllatare to extend favor rather than In-
creaeed sevetltT, tomrds the convict and
others in her sitiiation ; and it Js quite likely
tbatt bad tb^ been consolted. th^ would
have preferred tbe appUcaOon of this law to
their cases rather than that which exlated
wben they committed tbe offenses of which
they are convicted. But the case cannot be
detwmined upon sncb eonsidtfmtiona. No one
can be criminally, punished in this country,
SMMpt ooQordfmr to a taw prtaoraed for hi$
ffotfemmmt before the imputed offenee wa*
oommttted) and vs^iM^ eaieteA «s a law at
Ihet time. It would be useless to speculate
upon the question whether this would be ao
iip<a the rsMon of tbe thing, and aeoordliw
to the spirit of our 1^1 institntl(m% t>e>
cause tbe rule exists in the form of an ex*
press written preempt, the binding JfofCf of
which no one disputes. No state iball pass
any ex post facto law is the mandate of the
Constitution of the tinited States." Tbe
court also quoted with approval the follow-
ing language of Mr. Justice Washington, lu
United States v. Hall, 2 Wash. C. a 368.
Fed. Cas. No. 15,280: "An ex post facto law
is one which in Its operation makes that
criminal or penal which was not so at the
time tbe action was performed, or which In-
creases tbe punishment, or, in ekort, tehidi
relation to the offenee, or ite oonsegnencea
attere ike ettvation of a party, to Ait dlfod-
voMtage."
In Murphy v. Commonwealth^ 1T2 Mass.
204, 62 N. EL 605, 4S L. B. A. 154, 70 Am.
at Rep. 266, it is said: "Hie objection to ex
post facto legislation consists In the uncer-
tainty which would be Introduced thereby in-
to legislation of a criminal or penal dmiv
acter, and the Injustloe of punishing an act
which was not punishable when done, or of
punishing it in a different manner than that
in wbldi it was punishable when done. But
not all retroactive legislation is unconstitu-
tional as being ex post facta The question
in eadi cate Is whetber It will Increase tbe
penalty, or operate to deprive a party of sub-
etnotlal rlghtai or privll^res to which be was
entitled * * * when the offense was oonr
mltted, or, In short In relation to tbe of-
fouie and Its cooseqnmces, will alter tbe
situation of a i^arty to bis dlsadvantiute."*
Seev nhK). notes to tbe oaee of Rooney v.
North Dakota, 196 D. B. 819. 36 Sup. Ot
264, 49 Ii. Bd. 494, repwrted in 3 Ann. Cas. 76.
A statute wbirit merely regulates the miin-
ner in whi<fli tbe «cecntion shall be ogoduefr*
ed, by prescribing tbe time asd manner of
the execntlon and tiie number and dwrecter
of the witneseen, Is not ex post facto, though
It appUes to offeneeo committed beliNre ita
ttiactment Hdlden v. Minnesota, 187 U. 8.
483. 11 Sup. Ot 148. M U Ed. 784.
*'Dxa obJeetlMk titmt tbe latter law required
the e^eutton of Uie eentwce of death to take
place within the limits of the penltentji^
rather lAitn In tbe county Jail, as provided in
the prevlons statute, is witbont merit How-
ever materia tbe ^os of ccmftnement may
be in case OIC Mnne crimes not Involving life,
tbe place of necntion, when tbe punishment
la deatb, within tbe limits of the state Is
of BO practical consequence to tbe crinlaal.
On such a matter be is not entitled to be
heard." Boonay v. North Dakota. 196 U. S.
ai9, 25 SnP. Ct 264, 49 I*. Bd. 4M. 8 Ann.
Cas. 76.
[2j ^nw foregoing anthoritieB stutatn the
proposition that tbe punishment proaoribed
by law for an offoiae at tbe time it was cttn-
mitted cannot be changed by subsequent leg-
islation, unless the diaage is advantageous
to the prisoner.
[>} Tbe aiwellant^a attorneys al«^ed that
tlw apt of W2 waa unmnstUntloDal, by rea-
son,of the fact that the place of exeeution,
998
TC SOnTHBASTBlBN BOFORTBB
reqolred by tha act of 1912 were changed to
the dls8dT«ntage of the defeodant The
foregoing aotJioritles alao show that these
obJecUons are untenable. In the language
of Mr. Gooley In his excellent work entitled
Constitutional Limitations, 322: "We have
no doubt the privileges the respondent claims
were designed and created solely aa incidents
of the severe punishment to which his offense
formerly subjected him, and not as Incidents
of the offense." In this respect the statute
Is analogous to those which relate to penal
administration or prison discipline, and is
not unconstitutional, even though the effect
may be to enhance the severity of the con-
finement. Murphy V. Commonwealth, 172
Mass. 264, 62 N. B. 60S, 43 L. R. A. 154, 70
Am. St Bep. 266.
We now come to the pivotal question,
whether the act of 1912, changing the punish-
ment for murder from death by hanging to
death by electrocution, shows that Its tend-
ency la to ameliorate the pimlshment by
hanging.
In the case of In re Eemmler, 136 U. S
436, 10 Sup. Ct 930, 34 L. Ed. 619, the court
had under consideration the question wheth-
er the New York statute, providing tliat
"punishment of death must. In every case,
be inflicted by causing to pass through the
body of the convict a current of electricity
of sufficient Intensity to cause death," was
obnoxious to the provision of the Constitu-
tion prohibiting the infllctioQ of cruel and
nnoBiial punislmirat The first st^ which
led to the enactmoit of the law in tliat state
was the message of the Oovemor, In which
he said: **The present mode of executing
criminals by hanging has come down to us
from the dark ages, and It may well be ques-
tioned whethOT the science of the present
day cannot prorlde a means for taking the
life of such as are condemned to die in a
less barbarous manner. I commend this
suggestion to the consideration of the Legis-
lature." The LeglslatuFBi accordlngjly ap-
pofnted a commission to Investigate and re-
port *tbe most humane and practical metiiod
known to modem science of carrying Into
efEeet the smtence of death in capital cases."
TUb commission rvportod in ftivor of execn-
tloD 1^ electridty. ^Tfaey also reported a
inrwosed bUl, which was enacted. Mr. Ohlef
Jnatice Fuller, In delivering Ow opinion of
die court, (said: "PnnlahmoitB are cmel
irtien th^ InTolve tortnre or a lingering
death; but the pnnlshment of deaUi la not
cruel within the meaning of that word as
used In the Oonetitntion. It Implies Uiere
somettUng Inhnman and barbarooa— some-
thing more than ttao mere extinguishment
of llfis. The courts of New Tork hdd that
the mode adopted in tills instance might be
said to be unuBO^ because It was new, bnt
that It eoald not be assumed to be cmelt In
the light of that common knowledge whieh
has stamped certain punishments aa au<!b;
that It was for the Legislature to say in
what manner sentence oi death should be
executed; that this act was passed in the
effort to devise a more humane method of
readiing the result; that the courts were
bound to presume that the Legislature was
possessed of the facts upon which It took ac-
tion; and tiiat by evidence aliunde the stat-
ute that iH'esumption could not be over-
thrown. They went further, and expressed
the opinion that upon the evidence the L^-
islature had attained by the act the object
had In view in its passage. * • • Treat-
ing it as involving an adjudication that the
statute was not repugnant to the federal
Constitution, that conclusion was so plainly
right that we should not be Justified in allow-
ing the writ, upon the ground that error
might have supervened therein. • * •
The enactment of this statute was. In It-
self, within the legitimate sphere of the leg-
islative power of the state, and in the ob-
servance of those general rules prescribed
by our systems of Jurisprudence; and the
Legislature of the state of New loik de-
termined that it did not iufllct cruel and un-
usual punishment, and Its courts have sus-
tained that determination. We cannot per-
ceive that the state has thereby abridged tlie
privileges or immunities of the petitioner, or
derived him of due process of law. In or-
der to reverse the Judgment of the highest
court of the state of New York, we should
be compelled to hold that It had committed *
an error so gross as to amount, in law, to
a denial by the state of due proc^ of law
to one accused of crime, or of some rlglit se-
cured to him by the Constitution of the
United States. We have no hesitation In say-
ing that this we cannot do, upon the recwd
before us." The writ of error was acoord-
ingly denied.
It is true the provision of the United
States Constitution now under conslderatitm
was not before the court in that case, but
the decision clearly shows that the court
regarded electrocution as a more humane
method of punishment than that by hanging.
It would have been surprising If the court
had reached any other conclusion, after con-
sidering the manner in which an execution
by hangliv is conducted. The rope around
tiie prlsouOT's neck must be of the proper
length, and so adjusted that when he drops
from the scaffold tils neA will be broken,
tiius deslToylng the structural formatiott
of the body. But suppose the rope la not of
tile proper ImgUt, or the noose Is not propw-
ly adjusted, tiien there are Instances on rec-
ord where the heed was comidetely severed
from the body, when tiie convtcA dro^ied
from tile seaffiald. ThtM are also numerous
Instancee where the neck was not broken,
and the convict died of strangnhitlon, after
several minutes of consciousness. We mere-
ly mention the agoi^ which must have beea
suffered durii^ strangulation as indicated by
tile bulging eyes, and draw the curtain over
such a picture. Suffice tt t0~^u7 that this
Digitized by VjOOQIC
8.<U
STATB T.
HALLOT
999
coart Is saUafled tbat electrocution is a more
bumane method of ezecatloa ttian by bang-
ing. The exception raising this qneBtion Is
therefore overruled.
[4] The ruling of the court upon the form-
er appeal in this case shows that the first,
second, and third exertions cannot be sns-
tained.
The fourth exception baa already been
considered.
[f] There are two reasons why the fifth
exception cannot be sustained. In the first
place, the grounds of objection were not
stated ; and, in the second place, it has not
been made to appear that the rights of the
defendant were thereby prejudiced.
[I] The sixth exception Is OTerruled, for
the reason that his honor the presiding Judge
simply meant to tell them that If they be-
lleved the testimony of an expert, they were
not to disregard it merely because the wit-
ness was testifying as an expert
[7] The seventh exception cannot be sus-
tained for the reason that the remark of
the presiding Jndge was general, and was to
be understood as If it had been preceded by
the word "If."
[I] The eighth exception is orerruled for
the reason that the defendant failed Co pre-
sent a request to charge the proposition for
which he now contends.
The ninth and tenth exceptions cannot be
sustained for the reason that the record falls
to show an abnse of discretion, on the part
of the presidtog Judge, In ruling upon the
competency of the jurors therein mentioned.
It Is the Judgment of this court that the
Judgment of the circuit court be affirmed,
and that the case be remanded to the cir-
cnlt court for the purpose of harlng another
day assigned for carrying into execution the
sentence of the court
HZDBICK, WATTS, and FBASBB, JJ.,
concur. WOODS. J,, dlssente.
WOODS, J. (dlflsentlns). Barly In the
morning of Novemba 24, 191<^ Guy Rogers,
a yontb about 17 years, and bis friend,
Frentisa Moor^ several years younger, left
the tuunea of their parents in Bennetts ville
for a morning's hunt, with tlie expectation of
returning in time tor dinner. Upon their
fallnn to return, the community united in a
loi^ and harrowing seareh, wbicix reaulted
in finding the bodies of both the bc^a In a
dltdi sAont 1,100 yards from the house of the
defendant Prentiss Moore was UUed by a
gunshot wound In the back near the shoulder
blade. The facta that the shot were some-
what ecattered, and that there were no pow-
der bums. Indicated that the shot was fired
at least a UtUe distance oS. While the
wound was necessarily fatal, some minutes
might have Intervraed before death. The
gunshot which killed Guy Rogers seems to
have entered, in almost a solid mass, in front
near the left nlcpH making powder marks
on the body, and leaving the gun wad stick-
ing to the wound. Death must have been al-
most iDstantaneous. The body of Ouy Bogers
was lying In the ditch, and that of Prentiss
Moore leaning against the side of the ditch.
The one double-barrel shotgun which the boys
had was lying on the side of the ditch, and
near by was an empty shell. The defendant
was Indicted and tried for the murder of
Prentiss Moore, and this appeal Is from his
conviction and sentence to death.
I concur in the reasoning and the conidu-
sions of the OUim' JUSTICE as to aU ttie
exceptions except the fifth.
The case of the state depended on some cir-
cumstances alleged to be unfavorable to the
defendant but mainly on the testimony of
Charlotte Easterling and Stephen Toms, both
negroes, as to confessions to them by the
defendant that he had billed the boys. The
witness Charlotte Easterllng, as was agreed
on all sides, was utterly discredited by her
numerous contradictions of herself. These
contradictions culminated in her testifying
at the trial to a confession of the defendant,
and then confessing In private to the solici-
tor, and on the stand, that no confession bad
been made to her. The witness Stephen
Toms then testified to confessions made to
him, and was allowed to bolster up his state-
ment by stating that at a cataln time and
place be had told one Collins of the defendr
anf s confession. This testimomy was (Nearly
Incompetent (State v. Thomas, 3 Strob. 269;
State T. Scott, 15 S. a 434; State T. Gil-
liam, 66 S. a 41A, 45 8. B. 6; State t. Mc-
Danlel. 68 S. G. 804, 47 & E. 884. 102 Am. St
Rep. 661), and I am convinced that It was
also prejadlclal, especially in view of the
fact that the defendant Introduced testimoBy
tending strong to show that Toms was a
professional witness, having a bad reputation
for veradQr*
It seema to me tlut careful consideration
of the evidence Is convlnelnc -that the tragedy
was one of deep mystery, r^ulrlng on flie
part of Uie Jury most careful and anxlons
consideration of every particle of evidence
before they could reach a verdict Tliey had
to answer these serious questlms : Were the
boys murdered and thrown Into the ditch, or
was the trage^ due to an unusual and un-
explainable accident? Was thoe any snffl-
cient motive for the defendant to commit
such a dreadful and monstrous crime? Were
the circumstances proved by credible testi-
mony Meeting the defendant not consistent
with bis Innocence? Were the confessions
attributed to defendant really made by him,
or were the witnesses who testified to them
shown to be unworthy of belief 7 It cannot
be doubted tliat the testimony as to the con-
fessions was the strongest adduced against
the defendant; and when the character of
the witnesses from which this testimony
came Is considered, the conctusloa seems Ir-
resistible that it was the right of the def^iKI:
ant to have excluded alf^ fii^&)6{)»dMM& ^
£000
T8 B0DTB9A8TSBN BHTOBTUB
mpny fls to flie eonflBBMoiu Imputed to him,
and denied by him. which may bare contrib-
uted to tbe verdict This court has set Iti
face against technical objections to testi-
mony and api>eals depending on errors which
do not affect the merits. But I am forced
to the conclusion that in a case bo full of
mystery. Justice requires that no material
testimony set down by the law as incompe-
tent should be admitted to affect the concla-
alon of the Jury.
For this reason, I think the Judgment
should be reversed, and the cause remanded
for a new trial.
^ 8, c. 40)
STATE v. BETHUNH.
(Snpreme CJonrt of Soatb Carolina. Uay IS,
1»18.)
Appea) from Qeoeral Sessions Circuit Court
of Clarendon County ; S. W. G. ShlM>, Judge.
Willie Bethune was convicted of murder in
die first degree, and sentenced to death by elec-
trocution, and he appeale. Affirmed.
See. also. 93 S. CT 196, 76 8. B. 2S1.
Jobn H. Clifton, of -Sumter, for appellant.
P. H. Sttdl, SoL. of Kipgstree. for the State.
WOODS, J. The defendant, WUUe Bethune,
was convicted of murder and sentenced to
death by electrocution. He appeals on tbe
ground that at the time of the commisEiion of
the crime, and at the time of liis trial, the pen-
alty for murder was death by hanging, and
tfaat the statute providing for the infliction of
the death penalty by electrocution is ex post
facto and unconstitutional as to him. The
question was decided against the contention of
appellant by the qpiuion and judgment of tiie
Court in State v. Joe Malloy, 78 S. E. 995. re-
cently filed.
It IB therefore the Judgment of the court that
the Judgment of the coart of general sesalona be
afflnned. and the canae remanded to that court
so that a new day may be set tox the eaeeo-
tion ot the sentence.
Affirmed.
GART. O. J„ and HTDRICK and WATTS,
JJ^ concor. FBASER» disgaalified.
(11 W. Ta. sn)
BOWTEB T. OONTINBNTAIi OASUAI/FY
CO.
(Supreme Court of Appeals of West Virgbila.
April 22. 1913. Behearing Denied
June 80, 1*18.)
(BfUmlnu «W Ooart)
L Imnjsuros (} IKL*)— Oonrsaar-AFFtioA-
TIOH.
To make the application for a policy of in-
surance in an accident and health insurance
company organised under the laws of a state
other than this and doing business here oontain-
ing warranties part of the contract of insur-
ance, it must be attached to the policy. Mere
reference to it in the policy and adoption there-
of In terms do not snlBce.
[Bd. Note—For other easM, eeo Insursnce,
Genft. Dig. H S06-8U; De&Dlg. | USl.*]
3: ImnBANOB H 151*) — Ooimaei— AeBn-
vnrrs Odtsidb Pouot.
In the absence of statotory prescription of
.the forms of contracts of Insurance, such ref-
erence and adoption wooM make Oie apptfeatlon
part of the policy) h«t teetfon 82 «f ehairtei
34 of the Code 1906, as Revised, amended and
re-enacted by chapter 77 of the Acts of 1907
(serial section 1107a, Ann. Code Supp. 1909),
and sections 16 and 69 of said chapter, requir-
ing pc^des of insurance fully and plainly to
sec forth the contracts between the parties
thereto, exclude therefrom all conditions, agree-
ments, and warranties not expressed in the pol-
icies themselves or papers attached thereto.
[E)d. Note. — For other cases, see Insurance.
Cent. Dig. SS 308-311; Dec Dig. | 16L*)
8. iNsnunciB (f 666*)— Acntm on Pouor-^
ADUIBStBILITT OF EVIOENCV— AFFXJCATION.
Though inadmissible, by reason of such
statutory provisions, to prove a statement
therein as a part of the contract, the applica-
tion for the policy containing a false atatement
is admissible as part of the evidence of &aad
In the procurement of the policy.
[Ed, Note. — For other cases, see Insurance,
Cent. Dig. SI 1677-1681, 1682-1685 ; Dec. Dig.
f 655.*]
4. iKgtJBANM (! 640*)— AOnON OH POLICT—
Plbadino and Pmof.
Fraud in the procurement of the issuance
of a policy of insurance not under seal need
not be specially pleaded. Bvideuee tiiereof is
admissible under the genersl issue.
[E<d. Note.— For other cases, see Insniance.
Cent. Dig. H 1654, ]i600-161% 1614-1824;
Dec. Dig. I 640.*1
6. APFEAL AHD filBBOB (f: 1056*) — H^BMTfyff
Ebror— Exclusion or Evidenck.
It is not erroneouB to reject relevant and
material, but incomplete and insufficient, evi-
dence of a defense, in the absence of disdo*
sure of purpose and intent to supplement it
with additional evidence teoding to estaUiidi
the elements of the defense tibe proffered evi-
dence does not tend to prove.
[Ed. Note^For other cases, see Appeal and
Error, Cent Dig. H 4187-4193, 4207; Dee.
Dig. I 1056.*]
Error to Circuit Court, Meroer County.
Action by Ella Bowyer against tbe Conti-
nental Casualty Company. Jadgmmt for
plaintiff, and defendant brlngB arm. At-
firmed.
Sanders ft Crockett, of Bluefleld, Manton
Maverick and M. P. Oomellns, both of C9ii'
cago, UL, and L. J. Holland, of Bluefleld. for
plaintiff in error. Frendi ft Baaley, of Blue-
field, ftr defttodantln error.
POFraNBABGBBt P. On flile writ of
error to a indgaaent against It ftir the warn of
92,186, the Continental Casualty Company
oomplalns i^lnclpally of tbe rcAiaal of the
coort to pwndt it to rOly In evldttioo npon a
false •tauaueat made in the application for
the poXUf at inonnuice m a breacb oi a
warranty of the policy, and also of the re-
fbsal of the court to pnrmlt the introdactlon
of the AivUcfttlon u proof <tf 0ie fialBe sUte-
meat therein as evidence of a fraadnlent
representation indodng the tssnaace of the
policy; the tzial oonrt having reftued to
permit thle evidence to go la open the first
theory of defense^ bwe stated, hecanm the
statement was found neither on the face of
the policy nor In any papw attadied thereto,
and also to permit it to go in vpon tiie second
•>te ethsr eaSM sas ssms to^ sad seetloa iraunaB la Dss. sis. a Asa. Dig . f^nl^
BOWYKH T. OONTIlttlNTAli OAdUAUST 00.
tSnarj, becaiue ftavd In the procaremtfit of
tiie policy liad not bera qwdally tfleftded and
tbe fiaets offered in evidence were wbolly In-
Bnffl<^t to eetabll^ the (And, If It had been
pleaded.
[1, t] Hie objection to tiie offered evidence
aa proof of a warranty In the policy and
breach thereof rests upon the statnte pre-
scribing and regulating the business of life
and accident Insnranee oompanieS) and par-
tlcnlarly section 62 ot chapter 34 of the Code,
as revised, amended, and re-enacted by diap-
ter 77 of the Acts of 1907 (section 1107a, Ann.
Code Sopp. 1009), read and Interpreted In the
light of other inrovl^ona of tbe statute, regu-
lating the business of Insnranee companies.
This section relates to the bnsiness of foreign
Insnranee companies othnr than flre or life.
neceuurQy Including in its terms aeddent in-
snranee companies. It provides that "such
companies or associations shall place on the
face of Its policy or certificate the agreements
with the assured*" Section 15 of the Acts
of 1907, relating to the business of life in-
surance companies, contains this provision:
"Nor BhaU any such company or agent there-
of make any contract of Insurance or agree-
ment as to such contract other than as plain-
ly expressed in the Issued policy thereon.**
Section 62 provides that foreign insurance
companies other than flre or life "shall be
governed by tbe laws of this state relating
the admission o^ foreign flre Insurance com-
pftnies doing business In this state," except
In certain enumerated pairticulars. Section
69, relating to fire Insurance companies, says:
"In all policies of insurance issued against
loss by flre, made by companies chartered by
or dolug business In this state, no Condition
shall be valid unless stated In the body of the
policy or attached thereto." The policy sued
on was an accident policy, giving indemnity
for loss of life by accident, and tbe Insurer
was a corporation organized under the laws
of the state of Indiana.
Tbe application for tbe policy containing
the alleged false statement and warranty of
Its tmth was not attached to the policy, but
the latter paper declared the warranties and
agreements contained In it and payment of
the premium to be the consideration for the
insurance and the application for the policy to
be a part thereof. Tbe words of this provi-
sion are: "Tbe application herefor and any
paymaster's order given to provide for the
payment of premium are hereby made a part
hereof." These provisions make the appli-
cation a part of tbe policy by reference and
adoption only. The policy does not on Its face,
or by any paper attached thereto, show the
warranties and agreements. On the consnm-
matlon of the Insnranee agreement tbe policy
went into the hands of the insured, and the
application therefor was retained by the In-
snrer, and filed witi? Its papers to which tbe
Insured had no access. The purpose of stat-
utes, of Uils kind, a^ 4ec^rad br the opnrU
in other states, Is to reqolio the contntct to
be so formed as to enable the Inanved or as-
sured at all times to have before him the
covenants and agreements which he Is re-
quired to otwerva or perform and relieve him
from tbe burden of relying 'upon his recol-
lection of the terms of his contract Ufe
Ass'D Mnsser, 120 Pa. 884^ 14 Atl. 155; Ute
Ins. Oa T. Kelly, U4 FML 268, 62 a a A.
164; Zlnunerman v. Accident Ins. Cou, 207
Pa. 472, 66 Aa 1006. Objections to such
statutes on the ground of alleged invalldi^
have beon ovomled by the courts and their
oiuistltntlonaUty afllrmed. lits Ass'n t. Mns-
ser, lao Pa. 384, 14 Aa 1S5; Oonsldlno r.
Life In& OOh iSB Mass. 462, 48 N. B. flOl.
Being remedial In nature, they are liberally
cuutnied by tbe courts for the ^ectuatlon
ot th^r obvious purpose. Though tbe statnte
of which tbe Massachusetts law is a part
designated only certain Unds of life insur-
ance by name, not all of them, it has been
construed as requiring the attachment of the
applicatloD to policies of all kinds of Ufe
insurance. Oonsldlne v. Life Ins. Co., dted;
Nugent V. Life AssX 172 Maes. 278. 62 N. B.
440. The Kentucky statute relates In terms
only to assessment companies, but, read in
connection with another statute, applying to
eld line companies and requiring them to
state the contract plainly in the policy, it
has. been Interpreted as requiring attachment
of tbe application to the policies pf old line
companies. Life Ina Co. v, Myers, JjO^ Ky.
372,, 5» S. W. SO; Life Ins. Society v. Px^r-
year. 100 Ky. 381, 50 S. W. 15. The low^
statute Is held to apply to mutual companies,
though not found In tbe chapter relating to
them. Corson t. Insurance Ass'n, 115 l9wa,
486, 88 N. W. 1086. Read in tbe light of the
spirit of these dedslous, our statute undoubt-
edly requires tbe application to be attached
to the policy, to enable tbe Insured to resort
to it at any time for Information as to the
terms of his contract. Under common-law
principles, tbe words of reference and adop-
tion found In tbe policy would make the ap-
plication a part of it, but these statutory pro-
visions, prescribing tbe form of contracts of
Insurance, clearly within tbe limits of legis-
lative power, declare as a matter of public
policy that, all the essential elements relating
to tbe contract must appear in one paper,
tbe policy, or that paper and the others
attached thereto, to tbe end ttiat tbe in-
sured, as well as the Insurer, may at any
time know the terms and provisions of
the contract Obviously mere reference In
the policy to tbe application, containing por-
tions of the contract and constructive adop-
tion thereof, do not amount to a compliance
with this requirement, and tbe court properly
refused to permit tbe Introduction of the ap-
plicatlOD for the purpose of proving a war^
ranty not stated o;i'th^ face of the policy or
in any paper attached thereto.
t<] ^nioii^ tn^dmlssihle to prove state*
Digitized by Google
1002
18 SOUTHEASTBBN BBPOBTBB
(W.Va.
meats at tiie Insured as a warranty or part
of the policy, because not attached to It, the
application was admissible, together with
other evidence, to prove fraud in the procure-
ment of the policy. A false statement made in
the application for a policy is none the less
false because made therein; and, If It is an
element or fact In a scheme of fraud to pro-
cure the Issuance of a policy, tmder circum-
stances under which It would not be issued
if the insurer had been advised of the true
situation, it stands upon the same footing as
if made in any other paper or way. Life Ins.
C!o. V. Logan, 9 Ga. App. 503, 71 S. B. 742;
Johnson t. Ins. Co., 134 Ga. 802. 68 8. B. 731;
Ufe Ins. Go. T. Hill, 6 Ga. Appi 657, 70 S. S.
186.
[4] Nor was It necessary to plead fraudu-
lent iffocurement specially. Fraud, if estab-
lished, would be a full and complete, not
merely a partial, defense; and, as the policy
was not nbder seal, proof of fraud In the
procurement thereof was admissible under
the general issue on common-law p^iKdplee.
The dedslons assertlof the contrary are not
In harmony with onra It Is undoubtedly a
oommon-law defense. Ifyllna t. Engine &
Thresher Co., 70 W. Ya. STd, 74 S. B. 728 ;
and Prmtt t. Bank, 66 W. Va. 184, 60 S. B.
2S1, 18S Am. St Rep. 101ft, See, also, Fisher
T. Bmrdett, 21 W. Va. 826. At common law it
was provable under the general issue In debt
and assnmpslt 4 Mln. Inst 770, 702, 798; 1
Bob. Prac. (old) p. 210; 2 Saunders PL ft Ev.
top p. 28, mar. p. 626. Hie allowance of a
^>eclal plea In the nature of a plea of set-off
by diapter 126, Code, does not preclude proof
under the general Issue. Sterling Organ Co.
V. House, 25 W. Va. 64; 4 Mln. Inst 792 to
788. The purpose of that statute is to make
the fraud or other matter of the plea the
basis of a cross-action and allow a recovery
by the defendant from the plaintiff of an ex-
cess la favor of the former. It is an
enabling statute, enlarging, not restricting,
defendant's rights, and fraud may still be
proved under the general issue as a mere
matter of defense.
The false statement was that the assured
had never claimed or received any accident
or health Insurance benefits. It was first
made in the application for the original pol-
icy, dated August 14, 1909, and again in the
application for renewal of the policy, dated
August 14, 1910. Holding a health policy
in the Travelers' Insurance Company, Bow-
yer, the insured, had made application for
Indemnity thereunder on the 12th day of
April, 1905, on account of illness and Inca-
pacity to work by reason of la grippe and
pleurisy, and on the 4th day of May, 1905,
had received by way of such Indemnity f20.
These facts only were offered as evidence to
prove fraud In the procurement of the policy
sued on, if. Indeed, it was offered for such
purpose; It having been tendered primarily
to prove the statemoit as a pait of the pol-
icy and warranty of the trutb thereof, so as
to make it material and binding as a part of
the contract It does not appear whether. If
a truthful answer bad been made to the ques-
tion as to prior receipt of accident or health
benefits, the company would have Issued the
policy. Nor does It appear that the assured
at the date of the application was suffering
from any chronic or incurable disease. Nor
does it appear that in the procurement of
benefits under the policy in the Travelers'
Insurance Company he pert>etrated any fraud.
Nor is there anything to Indicate bis recol-
lection at the date of the application of the
receipt of benefits under a former policy. For
all that appears, the false statement was an
Innocent mistake It requires more than a
mere false statement to prove fraud. It
must have been made with intent to mislead
and deceive, and the injured party must have
relied upon it This evidence was wholly
Insufficieut to snsteln the Issue of fraud.
Medley v. Insurance Co., 55 W. Va. 342, 47
S. E. 101, 2 Ann. Cas. 99. There was no of-
fer of additional evidence nor any represen-
tation to the court that the defendant if
permitted to put in evidence this false state-
ment would supplement It with additional
evidence^ sufficient to estebllsh fraudulent pro-
curement of the policy. The trial court may
properly exclude evidence constituting do
defense. Walker v. Strosnlder, 67 W. Va. 39,
67 & B. 1087, 21 Ann. Gas. 1; Easy Pay-
ment Co. T. Parsons, 62 W. 7a. 26, B7 8. B.
253.
[6] Even though the action of the court
in refusing to permit this evidence to be of-
fered be regarded as technically erroneous,
the error ought not to Justify reversal, for
fraud as a matter or ground of defense was
not clearly and plainly brought to the at-
tention of the trial court The evidence was
offered for an entirely different purpose, and
the record shows no suggestion or intimation
to the court of Intent on the part of the de-
fendant to rely upon It as proof of fraud in
the procurement of the policy. Nor, as has
been stated, was there an IntLoaatlon to the
court of the possession of additional evidence
of fraud.
Ella Bowyer, wife of Jordan H. Bowyer,
the assured, was the beneficiary named in
the policy, and the real Issue arising out of
the evidence admitted was whether the death
of the insured had been occasioned by ex-
ternal, violent and purely accldentel means
and independently of all other causes, In con-
formity with a condition of the policy. The
death of the insured was due to rupture of
the bladder. At least such was the cause,
in the opinion of physicians testifying as ex-
perts, disclosed by the result of an autopsy.
They further expressed the opinion that the
rupture bad been caused by external vio-
lence. Both the wife and the mother-in-law
of the tnsnlred testified to his Injury by a fall
In Us room, coincident with the inception
of the bladder trouble from j^di lie JUed.
Digitized by VjOOglC
XiUMPKIK T. OBEENUSA.
1003
TestUytns fnrthsr, tbey ny he wu In good
health befne he fell. Both say there was
on his abdomen after the fall a red rough
plac^ IndlicattTe of peieosslon m violent
contact with some object Their theory la
that he etumbled over a coal acnttle, and fell
on or against a bed. To meet the case thus
made, the defendant set up the theory of
death from disease rather than vlolenoeL No
eridotce was adduced Jn support of this
theory except a letter from Mra Bowyer, the
benefldary, to the d^mdant company, dated
the day after the accident, saying: '*Tbl8 is
to let yon know that Jordan H. Bowyev baa
bem (ddE) & on bed fbr several days also
his wife and not able to write yon beforft
Please send blank." This Is nothing more
than a written statement, contradictory of
the testimony of the writer and tbe other
witness, her mother. Only a few days be-
fore the date thereof, the writer had been de-
livered of a child, and was on her sitk bed
at Uie time of tbe accident to her husband.
This circumstance la r^ed npom in argument
as one accounting for Inaccoracy of stete-
Bient in the letter. The letter does not prove
a case of illness from disease, resulting in
the death of the insured. As matter of im-
peachment of the testimony of the writer it
was admissible, but its value was a question
for the Jury. Clearly Qie rlg^it of recovery
depends upon the credibility of these two
witnesses, and that is peculiarly a question
f6r jury determination. We are unable to
say the verdict la cjontrary to the evidence.
Porcelvlng no error In the rulings of tbe
trial court, we affirm the Judgment
a40 OA. Sff)
SROCHI T. VBNTBBBS.
(SapfWM Court of Owrgia. July 19* 1918.)
(Syttttlnw the Court.)
L Affcaz. and Gbrob (S 977*)— Rsview.
The first ground of the amendment to the
motion for & new trial, complaining of the ad*
mUmioD of certain testimonr, is not approved
by . the tilal Judge, and consequently will not
be considered by this court.
[Ed. Note.— For other cases, see Appeal and
BrroK Cent Dig. H 8800-3866; Dec. Dw. |
977.*I
2. New Tbiai. (| 99*)--NKWLr Discovebki)
BVIDENCK.
Considering the scope of the evidence on
the trial and tbe character of the same, the
court did not err in overrullog the ground of
the motion based upon newly discovered evi-
dence. Under the showing made, tbe court
might well have held that doe diligence was
not used to procure this evidence on the trial;
and, besides, the evidence was not of such a
character as to show that it would probably
produce a different result upou another trial.
Young V. State, 66 Ga. 403; Berry v. State.
10 Ga. 811.
[Ed. Note.— For other cases, see New Trial,
Cent Dig. II 201. 207; Dec; IMg. | 99.*]
8. SurnciEnoT of EviDEnoi.
The evidaee authorised the verdict
Bhror from Superior Court, Fulton Coun-
ty; J. T. Pendleton, Judge.
Action between Morris Srodil and C. P.
Ventrees. From the Judgment, Srochl brings
error. Affirmed.
Lewis W. Thomas, of Atlanta, for plain-
tiff in error. Hewlett & Dennis, of Atlanta,
for defendant In error.
BECK, J, Judgment affirmed.
JnstioBB concnr.
AU the
a«oa. «oi
McLENDON BROS. & LOCKRIDOB T.
IfEADOR.
(Supreme Court of Georgia. July 19^ 1018.)
(aytUthut »v the OimrtJ
DzEEOTED Verdict.
The evidence introduced upon the trial
demanded a verdict in favor of the defendant,
and the court did not err In directing a ver-
dict in Us favor.
EJrror from Superior Court Fnltcm Coun-
ty; J. T. Pendleton, Judge.
Action by McLendon Bros. & Lo<^ridge
against F. T. Header. Judgment for defend-
ant, and plalntlfT brings error. Affirmed.
Jas. L. Sey, of Atlanta, for plalntUE In ei^
tor. J. H. Portw, of Atlanta, for defoid-
ant in error.
FISH, C J. Judgment affirmed. All the
Justices concur.
a* Os* "4)
liUMPKIN V. GREBNLBA.
(Suprenae Court of Georgia. July 18, 1813.)
(ByUahMt by tile CourU
Vendor and Pubchaseb (| 812*) — Aonon
ON Purchase- Mo NIT Notes— Accelebation
or Matdbitt.
A vendor of land received from die vendee
a series of notes, maturing at successive month-
ly intervals, each note payable to the vendor
or bearer, and contaiulng a stipulation that
time was of the essence of the contract, and
"that if any two of said notes become due and
remain unpaid at any one time, then all the
remaining unpaid notes shall be considered as
due and collectible, and the right of action
thereon shall, at tbe option of the holder here-
of, at once accrue" ; the vendor executing his
hood obligating him to make title to the land to
tbe vendee upon the payment of the notes. Tbe
vendor transferred four of the notes without
indorsement. Tlie vendee defaulted in tbe pay-
ment of two notes, one of which was held by
the vendor and the other by the transferee.
Whereupon the vendor claimed that such de-
fault entitled him to ezerdse his option of de-
claring all the notes held by him to be due,
and accordingly bi-ought suit upon them. Seld^
that the suit was premature as to the unma-
tured notes.
[Ed. Note.— For othw cases, see Vendor and
Purchaser, Cent Dig. | 917; De& Dig. | S12.*]
Error from Superior Cotfrt, Fulton County ;
Geo. L. B«ai, Judge.
•Vor otlMr OWNS bm same tapto and seeUoa NVMBSR in Deo. Dig. a Am.
lOOi
T8 SQUTHBASTBEN BOPOBXBB
(Oft.
Action b7 BL S. lAimpktn against Qeorge
O. Greenlea. Judgment for defendant, and
plaintiff brln^ orror. Affirmed.
Qreen, Tllson & MeElim^, of Atlanta, tot
plaintiff In error. OroTei C Mlddlebrooks
and W. R. Tlchenor, botb of Attanta, for de-
fendant In error.
EVANS, P. J. B. S. Lumpkin sold to
George C. Qreenlea a lot of land, executing to
Mm a bond to make title upon the payment
of a series of 104 notes due in montlily In-
8taUm«nt8, numbered from 1 to 104. The
notes were payable to Lumpkin or bearer,
and each contained the following stipulation:
"It is hereby expressly agreed that time is
of tli6 essence of this contract, and that If
any two of said notes become due and remain
unpaid at any one time, then all of the re-
maining unpaid notes shall be considered as
due and collectible, and the right of action
thetebn shall, at the option of the bolder here-
of, at once accme." Lumpkin delivered four
of theae notes, Nob. 8 to 6, IntduslTe, to a
real estate agent without indorsement, in
paymoit of 'his services In negotiating the
sale; When note No. 1 matured it was paid
by Qreenlea. Whea note No. 2 matured it
was not paid. When note Ma^ 8 (wbliA was
the flrat of the notaa held by the real estate
agoit) it was not paid. ThereupoD Ln>4>kln
gave GreeiUea wrtttra notice that be exer-
daed. the option contained In each of the
notes and declared them all doe, and Insti-
tuted suit to recover im all the notes firom 2
to 104i incluslTe, except the notes which had
been delivered to the real estate agent The
anestlon made by the record Is whether the
Idalntlfre rait was pranaturely bron^t on
aU the notes sued on.exc^ No, 2.
It is competent for the maker of a series
of promissory notes maturing monthly
throngfa several years to provide that, in
caw defiinlt Is made In the payment of any
one or more of them at maturity, time being
of the essence of the contract, the attire
srales shall become dve and collectible at
once. Stocking v. Houry, 128 Ga. 414, 67 S.
Bl. 704. The provision for the acceleration of
the maturity of all of the purchase-money
notes by the default of two of them Is for
the benefit of the vendor and is to be con-
sidered as a part of his security. Where land
is sold, and the vendor takes from the vendee
notes for the purchase money, payable to
himself or bearer, and executes to the vendee
a bond for tttl^ a transfer of the notes with-
out indoraement or giwranty and without any
transfer of title to the land to the transferee
operates as a payment of the purchase mon-
ey, and the vendee's equity becomes complete,
and the vendor ceases to hold any Interest in
the lind. The debt erldenoed ^ the notes
transferred In such case loses Its quality as
a purchase-money debt, and the tranaferee
becomes an ordinary creditor of the vendee.
Tompkins v. Williams. 19 Gib SW; ICcOxecer
V. HatUUs, 32 6a. 417 : N«al v. Murphy, 60
Ga. 389; Carhart v. Revlere, 78 Ga. 173, 1
S. B. 222; Hunt v. Harbar, 80 Ga. 746, 6 8.
B. 696; Adams v. Cauthen. 113 Ga. U66, 38
S. £. 479. If only a part of the purchaae-
money notes be transferred without indorse-
ment or coaveyanoe of the land, tliat part of
the purchase money Is taken from the opera-
tion of the contract of purcbasa Relatively
to the vendor, the transfer by bUn ondu
such circumstances is to be treated as a pay-
ment of so much of the debt as la reprooontod
by the transferred notes. It Is no longer the
concern of the vendor whether the notes axe
paid by the vendee, and he cannot take ad-
vantage of the vendee's default in their pay-
ment in accelerating the maturity of hla own
notes; under a providon which was Intended
as a security for the collection of the por-
chtLBe money.
The provision for the acceleration of the
maturity of the principal Is incorporated in
each of the notes. That privilege is gtvoi to
the holder of the notes. When LnmpUn
transferred fcmr of the notes to tlie real es-
tate agent, he was no longer the holder of
those notes. The fgent may have granted
an indulgenee or extmdon of payment to the
maker, or it may be that the maker bad a
pleadable setpoff against the agent to tbe
amount of the notes held by blm. If the
agoit postjKMied the time of matuxlty ef tbe
notes held Un, there would be no defanlt
or failure to pay at matdrity tbe note so
held by Mm. In the ease of Scott v. Udddl,
98 Ga. 2S, 26 S. B. sas. the prlncipat of a
promissory note was maAa payable a nnmbor
of years after Its dat^ with a stipulation in
the note for the annual paymoit of the in-
terest; the' fwntnct to pay Interest being
severable from that to pay the prlncftial.
The payee of the note aasl«ned in writing to
anotbei the principal, reserving to himself
the interest, with the right to collect tbe
same, Tbe note contained a stipulation that
the principal shonld become due Instanter on
SO days* default in the payment of any In-
terest installment The transfer of the prin-
cipal of the note occurred before any default
in the payment of interest The payee of the
note extended the time of the payment of the
interest, and, after the date stipulated in the
note for the payment of interest had passed,
Buit was brought by the assignee of the prin-
cipal of the note in advance of the time fixed
In tile note Itself for the payment of the
principal In case there was no default in Uie
payment of Interest; and it was held that
the maker's fallttfe to pay the Interest at the
time stipulated In the note did not operate to
accelerate the maturity ot the principal of tbe
note.
We think the principle of this case con-
clusive of the question in hand. Tbe transfer
by Lumpktn,.to the real estate agent will be
treated mm a payment of so mw^ of tbe jnu^
Digitized by LjOOglC
DBAL T, riNOH
1005
dUM del^ aa It T^rfmted by the transfer-
red notes; and it Is Immaterial, with refer-
ence to dm acceleration of the maturity of
aU tbe notes, wbetber the maker defaulted
In tile payment of tbe transferred notes or
not
Judgment affirmed. All tbe JnMtces coo^
cnr, exc^ LUMPKIN, dl««aaUfled.
a«) Oa. SG3)
AUGUSTA REAL ESTATE CO. y. NIXON.
(Supreme Court of Georgia. Jul; 19, 1918.)
(BvUabut h9 Ote Court.}
1. Tbzai. (S SBl^— lN8itti7onoM— iBsm—
PlXADINGS.
In a suit br a real estate broker to recover
commissioDS, wuere it iB alleged in the petitloD
tbat at the time of the breach of alleged bro-
kerage contract there had been no revocatieB
of the brokerage agenej, but tbat the same
was in full force and operatioa, and this al-
legation is denied in the defendant's answer. It
is not error to refuse a written request to
diarge that "there ia bo plea of revocatioB filed
in tnla case, and that kind of defense is not
before you for coDsideratioo." It was not neo-
essar; for the plaintiff to allege that the agen-
cy had not been revoked ; but having- allured it,
and the defendant havint duiled this . allega-
tion, and both sides having introduced evidence
upon the issue thus made, it was proper to sub-
mit it to tbe jury. ' -
, [Ed. Note— For other cases, see Trial, Cent.
I^ig. 1! S87-^; Dec Dig. 1 251.*]
2. StimciEnoT or Evidbkcb— iNsrhocrioHB.
Tbe oxcnpts from the cbmge to which ex>
ceptioa is tshen were not open to the critlcivn
that the^ contained an eXpresAlon of opinion
on the facta of the case, or inaccurately pre-
sented the law. prepohdeifance of the evi-
denee was with tbe verdict, which has the Ap-
proval of the coart, and no sufficient reason is
made to appear that it ebould be vaeated.
Error from Superior Court, Richmond
County; H. C. Hammond, Judga
Action by the Augusta Real Estate Com-
pany against Q. H. Nixon. Judgment for
defendaut. and plaintiff brings error. Af-
firmed.
Wm. H. Fleming, of Augusta, for pl^n-
tiff In error. 0. H. & R. S. Gohoi, of <An-
gusta, for defendant In error.
EVANS, P. J. Judgment affirmed. AU the
Jnstlees concur.
040 Go. M»)
DEAIi et aL v. FINCH et al.
(Supreme Court of Georgia. July IS, 1913.)
(SyOaiut h» the OouH.)
Dnans (S 114*) — Pbopbbtt Convbtkd — Db-
BOBIPTION.
Where one sold to another a parcel of
land, and executed and delivered a deed de-
scribing it am "coDtainiog 100 acres more or
lesB," and tbe vendee went into possesaton and
discovered later that it twntained iesa than
loo acres, aad, contending that she Iwught bj
the acre, and not by the tract, employed a snr-
veyw, who surveyed and marked out of the
vendor's land adjoining the tract conveyed,
without the consoit of or notice to the vender,
a sufficient number of acres to make up the
difference, and no possession is shown ' in tbe
vendee, or acquiescence by the vendor in tbe
Une thus run, snd where snbsequentiy the ven-
dee sold the land and executed and delivered a
deed to F., describing in the language of the
first deed as "containing 100 acres more or
low," and the original vendor cleared the land
surveyed and marked out by his vwdee, and
cultivated it after that time for four years be-
fore die present suit was brought, the original
vendee obtained no title to the additionsl Uud
surv^ed and marked out br her, nor did the
vendee.
[Ed. Note.— Pov other oases, sea Deeds. Gent.
Dig. SI S16-822, 826-3297388; DeoTlMg. |
Error from Snperlor Court,' BnUodi Oonn-
ty; a T. SawUnes, Judga
Action by J. C. Deal and Webb Donaldson
against W. 8. Finch and otbera. Judgment
for defesidanta, and plaintUfs bring uvor.
Reversed.
J. G. Deal and Webb Donaldsoii brongbt
their petition agninst W. S. FIncb, W. W.
Parish, Justice of th6 peace, and M. M. Pen-
nington, constable, for Ibjnnction aQd other
relief. The plea^nge and evidence sbifa^
substantially tbe toOoyrtng: In 1690 Deal,
one of the plaintiffs, s^d a<id conveyed by
deed to his sister, Mrs. Annie Strouse, a cer-
tain tract of land in BuUoch oounty, describ-
ed in tbe deed u "containing one hundred
(100) acres more or Iesa" At tbe time of
this sale Deal owned two adjacent tracts of
land, iuiown as tbe Hardee tract, cont^i^iig
ab9ut 987 acres, and tbe Bell places conti^-
log about 80 acres. The sale to Mrs. Stronse
embraced all of the Bell piaoe and In addi-
tion a small portion was to be cut off of the
Hardee tract. A survey was made by n sur-
veyor emi^oyed by Deal, and Mrs. Stronae's
husband was present when the line was run.
No question seems to bave 't>een raised by
Mrs. Strouse from the time of tbe execution
of tbe deed to her In 1892 until 1896, after
she had bargained to sell the land to Finch,
and at which time she had a survey made,
without notice to Deal, which showed a
shortage in. the number of acres. No offer
to rescind the trade appears to have been
made by Mrs. Strouse, nor any claim of an
apportionment in the price of the land for
the numbK of acres falling short. Neither
Mrs. Strouse nor Finch, her grantee, so far
as the record shows, at any time since the
survey of the line by Mrs. Strouse, had ac-
tual possession of tbe land in controversy.
In tbe meantime Deal bad cleared the- tim-
ber from a portion of the land, and his ten-
ant was cultivating the same. In 1909 Fincb,
the grantee of Mrs. Strouse, demanded rent
from Donaldson, the tenant of Deal, and, on
the refusal of Donaldson to pay him- rent,
sued out a distress warrant against bim.
Donaldson filed a counter affidavit to the dis-
tress warrant, in which he denied owing
any rent to Finch, and alleged that Finch
'For etbw cases us suns toplo and Mcthm NUlfBBR In Dm. Dig.. 4 An. Dig- Ksy-No. Seriw A Ssp'r
Digitized by VLii
1006
78 SOUTHEASTERN BBPORTER
bad DO title to the l&nd. but that Deal, his
landlord, was the owner. Deal and Donald-
son then flled the present petition, alleging
that the sole question involved In the trial
of the distress warrant was one Involving
the title to the land, and that the Justice's
Court had no Jurisdiction to determine that
issue, or to award the plaintiffs full and ade-
quate relief. Deal further allied that the
claim of title bj Finch coustLtuted a cloud
upon his title to the land, and that, uhless
the question of title was settled, his tenants
would from year to year continue to be an-
noyed and harassed by the foreclosure of
distress warrants against them by Finch.
The prayer of the petition was Umt the de-
fendants be enjoined from further prosecut-
ing the distress warrant, and that title to
the land in controversy be adjudged to be In
Deal, etc. The Jury returned a verdict for
the defendant, upon which the court entered
a decree adjudi^ng the title to the land In
controversy to be in the defendant Finch.
Deal made a motion for a new trial, wtalcb
being overruled, he accepted.
Bfbnnen & Booth, of Statesboro, for plain-
tiffs in error. H. B. Strange, of Statesbon^
for defendants in error.
HIDL^ J. (after stating the ^cts as above).
This case involved the title to a parcel of
land. It appears from the record that the
plaintiff Deal owned two tracts of land, one
known as the "Hardee tract" and the other
as the "Bell place." He sold the Bell place,
and a portion of the Hardee tract adjoining,
to his sister, Mrs. Strouse, and executed and
delfvered to her a deed describing the land,
in which it was stated that It "contained
100 acres more or less." &frs. Strouse in
turn conveyed a tract of land to the defend-
ant Finch, describing it as "containing 100
acres more or less." The plaintiff's conten-
tion was that he sold and conveyed to Mrs.
Strouse the Bell place and a certain portion
of the Hardee place, all of which he and Mrs.
Strouse estimated to contain about 100 acres,
and that the land was sold by the tract, and
not by the acre. The contention of~ the de-
fendant Finch was that the plaintiff sold to
Mrs. Strouse 100 acres of land, which consist-
ed of the Bell place and enough of the Har-
dee tract to make the 100 acres, that the pur-
pose of the deed be'made to Mrs. Strouse was
to convey 100 acres, and that the words
"more or less" were inserted In thie deed from
the plaintiff to Mrs. Strouse by the clerk who
prepared the deed; he saying at the time
that it was customary to put such words in
deeds. After the deed from the plaintiff to
Mrs. Strouse was executed and delivered,
Mrs. Strouse contended that the land de-
scribed In the deed to her from the plaintiff
did not contain 100 acres, and had a survey-
or to run off a sufficiency of the Hardee tract
of land to make 100 acres, llnd to mark a line
indicating the additional land she claimed to
make up the deficiency. This survey was
made, and the line run and marked, wlthont
the knowledge or consent of the plaintiff.
Afterwards Deal had a portion of the land so
surveyed and marked off cleared, and culti-
vated it for about four years before this snit
was instituted. He never did anything to-
wards ratifying the action of Mrs. Strouse
in having the additional land surveyed and
marked off, so far as the record discloses,
but, on the contrary, cleared and cultivated
the land for several years after this without
Interference. It is not clear whether Mrs.
Stronse, In the deed made by her to the de-
fendant Finch, Included such additional part
of the Hardee place; but, granting tSiRt she
did, the defendant under such deed did not
get a good title to it as against Deal, and
therefore the evidence did not authorise a
verdict In behalf of the defendant Indeed,
under the record aa It now stands, it would
not liave been Improper for the court to have
directed a verdict in tRvor of the platntUbt.
The court erred In refusing to grant the mo-
tion for a new trial.
Judgment reversed. All the Jiutlces con-
cur.
(Ltt oa. m>
UNITED CIOAB STORES 00. v.McKKNZIBL
McKBNZIB V. UNITED OIGAB STORES CO.
(Supreme Court of Geo^cia. July 18» 1913.)
1. liAHDIABD AND TEHANT (S 288*)— I«ABB~
GoNBTBDcnoN— Question job JtntT.
A lease contract provided that the lessee
should pay the lesaor for a certain storeroom
and basement the yearly rent of $i,B0O in equal
monthly J400 payments in advance, on the first
day of each month darinx the term of five
years. It was also provided that the lessor
^'aUow a rebate of $100.00 per month for the
first year under this cootraet, same to cover
such iniprovementa or to be otherwise applied
8B lessee may desire, and same is to be deduct-
ed from the monthly rentaL" The lessee paid
$300 per month for the first 12 months, but
refused to pay the $100 per month, or $1,200
for the year, or to make any 'improvements"
upon the leased premises amoantlQg to $100
per month, or $1,200 per ye.ar. The lesaor
broasht suit, at the expiration of the first 12
moQtlis, against the lessee for the $1^200 not
paid by the latter, and also asked for an ac-
counting. A demurrer to the petition was filed
on the ground, among others, that the plaintiff
could not recover, becanse the lessee under
the contract had the right to an unconditional
reduction of tlie rental, during the first 12
months, of $100 per month, wltiiout reference
to any "improvements" made on the leased
premisea by the leasee. Held, that the court
did Dot err in overruling the demurrer,
(a) The contract is ambiguous with reference
to allowing a rebate of $100 per month for the
first year; and it is a question for the jury to
say, nnder competent evidence, what tibe inten-
tion of tiie parties to the contract was.
[Ed. Note.— For other cases, see lAndlord
and Tenant, Cent Dig. H 40, 010-M4; Dec.
Dig. { 233.»1
«For otber cssas samt to^e and swtton NtlHBBR In Dec. Dig. A Am, !blg. Key-No. 8erMi^^«B'rUI«M
DigHized by VjOOQ It
Oa4
2. Landlord akd Tenant ({ 233*)— Puud-
iNQ (I 18*>— Lbase—Constbuctxon — Ques-
tion FOB JUBY— AnSWKB.
The court cUd oot err in other mlinn
made on demurrer, bm set oot In the Mcond cB>
vision of the opinioD.
(Ed. Note.— For other cases, see Landlord
aDd Tenant, Cent D^-. H_940-O44; Dee. Dig. |
W'\ iS^ft^ Oent bif. 11 89, M; &e.
Brror from Superior Gonr^ Fnltoa Oooi^
ty ; J. T. Pendleton, Judge
Action by George M. McEenzIe against the
United Cigar Stores Company. Judgment for
plaintiff, and defendant brings error and
plaintiff files cross-bill. Affirmed on both
bills of exceptions.
Ifoore ft Pomenv, of Atlanta, tor plaintiff
in error. Smith ft Hastings, of Atlanta, for
defendant in error.
HILL, J. McEenzie broagbt snlt against
the United Cigar Stores Comimny on a lease
contract between McKenzie as landlord and
the cigar company as tenant, to recover the
sum of 11,200 as part of the rent of a cer-
tain storehouse in the city of Atlanta, for
the first 12. months. By the terms of the con-
tract the defendant was to pay the plaintiff
¥400 per month for a period of five years,
"paying the yearly rent of ^,800 payable In
equal monthly ^00 payments in advance on
tbe first day of eacb and every month dnrlng
the term," with the privilege of canceling
the lease at the expiration of the first 12
months. The contract contained the follow-
ing clanse: "Lessor allows a rebate of $100.00
per month for the first year under this con-
tract, same to cover such Improvements or
to be otherwise applied as lessee may de*
sire, and same is to be deducted from the
monthly rental.** The defendant paid the
plaintiff 9800 per month for the first 12
months, bnt refused to pay the additional
9100 per month, 1^ ocmtmtion being that the
language in the lease contract quoted above
gave it the right not to pay the $100 to the
idaintiff, but that It could "apply" the same
as it saw proper, either to "Improvements"
on the leased property, or "otherwise" to its
own use, at its option. The plaintif^ on the
contrary, In^ta that the true meaning of the
contract Is that the defendant had the privi-
lege of making Improvements on the property
to the amount of $100 per month, and, if It
should do BO, this amoont was to be deducted
from the monthly rental of $400 a month for
the first 12 months, bat in no event was the
rental to be reduced unless "Improvements"
were made. The defendant filed general and
special demurrers to the petition, and the
plaintiff filed general and special demurrers to
the answer. The court overruled both gen-
eral demurrers, and sustained some, and
overruled other grounds of the special demur-
rers, both to the petition and the answer.
WOT
The defendant filed the main bill of excep-
tions, and the plaintiff sued out a cross-blU
of exceptions; each party complaining of
the rulings which were adverse to him.
[111. We think the whole case turns upon
the proper construction to be given the por-
tion of the lease contract quoted above. It
was Insisted on the part of the plaintiff that
the contract meant that the $100 rebate was
to be used in "Improvements" to the building,
or otherwise to be applied to the property in
substantially a similar manner as improve-
ments. It was further Insisted that the "re-
tiate" was not a mere reduction In the rent,
so as to become the property of the lessee,
but was an allowance to the defendant for
the purpose of Improvements to be made by
It on the leased premises, and was for no
other purpose. The plaintiff asked for an
accounting between the parties as to what
improvements had been made by the defend-
ant under the contract, and what amn was
due the plaintiff after deducting the value of
the Improvements, if any. On the other
hand, it was contended by the defendant that,
the contract of rental, as shown by the coi>:
tract Itself, was really to be but $300 per
month, and that the rebate was an uncondi-
tional reduction of the amount of the rent,
for the first 12 months of the life of the
contract, and that no "improvements" were
in contemplation of the parties, and, also, If
It be held that the contract ia ambiguous,
that the "trade fixtures," which were placed
In the store for the purpose of condnctlnc
the bnsliiess in connection with the use of
the premises, should be taken into considera-
tion 1b connection wltb the rebate, and the
defendant should be allowed a reduction for
whatever sum was expended for trade fix-
tures, which Is alleged to be about $1,200 or
over. Great stress is laid by the defendant
upon the word "otherwise," as nsed In the
contract It Is argued that if the word has
any meaning at all In connection with this
particular contract, it cannot mean anything
of the same ziature and (diaracter as "im-
^rements"; that It must mean that tite
money must be applied In some other way,
•*to be otherwise applied as lessee may de-
sire" and that this language gives the de-
fendant the option to apply the money as it
may desire, and titiat it has "desired" to ap-
ply this money to a reduction of the rental,
and consequently to Its own use. Thus It
will be seen that the real question is as to the
meaning of the contract and the Intention of
the parties thereto, and whether its meaning
is BO doubtful and vague as to make It am-,
L)lguous, and to call for parol evidence In
order to arrive at Its true meaning and the
intention of the parties at the time of its ex-
ecution. From an Inspection of the contract,
It is clear that the clause under considera-
tion Is ambiguous, and that i>arol evidence
Is admissible to explain the real intention of
UNITBD dOAB STORES CO. T. MoKENZIB
■VW odMr UMS Ma asm* toplo aad aMtioa NUKBSB la Dao. Dig. * Aa. Dlf. K«r-Ho. 8erl«i ft B«« taatxmi
Digitized by VjOOglC
1008:
IS BOtJTHBASTBBN aEPOBTEB
tli« pftrtlas, mt Chftt tlia Jury, on the trial,
may determine the facta from tbe evidence.
In tbls view, the court did not err in over-
mUng the demnirer to the i>etltion.
[2] 2, In its ODBvet to the petition the de-
fendant averred, among other things, that,
should there be any ambiguity with refe^
ence to the contract (which the defendant de-
nied), "a reasonable and legal constrnctlon
thereof Is to the effect that trade fixtures
should be tak«i into accounting in conslder-
«ti<m of the $100 rebate; this defendant
says that trade fixtures and other Improve-
ments on s&ld property amounted to more
than the sum of $1,200." The plaintiff de-
murred Bpeclally to this paragraph of the
answer, "in ao far as the same alleges that
tmde flxtores should be talcen into accoant*
Ing, for tJu reason that the same states a
condusion ef the pleadn. • • * And
for ttio tatthac reason that same Is vagae
and Indefinite, In that it does not all^ wliat
trade fixtures are referred to, and the Iton-
Ized TOlne' ttaereot nor does It all^ whether
said trade fixtures were removed or allowed
to remain In the plalutlfTs building. Plain-
tiff also demurs qiedelly to the following
words In paragtaph 14 of def«idanfs an-
swer, namdy, 'tradto flztnrea and ot2ier Im-
provements,' because the same Is vague and
in^flnlte, and falls to allege what Improve-
ments, and tbe separate And Itemized cost
tliereof." The court snstalhed, these demur-
rers in so far aa thejr refer to the defendant's
afl^tlons as vague and indefinite, but ov^
ruled the demurrer to the allegation that Its
trade. fixtures should properly be taken into
tbe accounting. To so much of the court's
judgment as sustained the plalntlfTs demur-
rer to the answer as being vague and In-
definite, the defendant excepted; and to so
much of the order as overruled the plain-
tlfiTs demurrer to the defendant's allegation
that the trade fixtures should be properly
taken Into the accounting, the plaintiff ex-
cepted. Properly understood, we think the
court, correctly disposed of this demurrer.
The ^ect oC the court's order was to hold
that the defendant could aver that the trade
fixtures placed In the leased premises by the
lessee were a proper subject of accounting
between the parties to tbe contract, but that
the Items had not been properly set out and
pleaded in the instant case. Having held
that the contract is ambiguous, It is for tbe
jury to say, under sufflciently definite plead-
ings and under the evidence, whether trade
fixtures are embraced within tbe meaning of
the words "such improvements," "or to l)e
otherwise applied," etc, as contemplated by
the parties to the contract
It is unnecessary to consider each of the
numerous special demurrers separately, some
^ wtdch were ov«ruled and some sustained
by tlie court The rulings of the court on
the'other questions raised by the demurrers
were generaUy in accord with the rulings
here made.
ja^gment affinned on both bUls of exc^
tlons. AH the Justices concur.
a« Gs. t»)
PRATEB V. PRATER.
(Supreme Court of Georgia. Joly 18, 1913.)
fSpUahiu l9 the 0<mt^
BxoEFTXONs, Bill of (| 66*)— TEsmcATioit.
The Supreme Court is without jurisdiction
to pass upon the merits of snv bm of excep-
tioDs. the recitals of faet in which are not dnv
certified to be true. Nnyard v. Stete, 126 Go.
635, 55 S. E. 498 ; Cade v. Dn Bose, 125 Ga.
832, 54 S. B. 607; Grant T. Derrick, UN) Oa.
43, 60 8. E. 157.
[Ed. Note.— For other cases, see Exceptions.
BUI of, Cent Dig. » 04-06Tl)ec Dig. | 66.^
Error from Superior Court, Fnlbm OouD*
ty; Geo. L. Bell. Judge.
Action - t>etween E. L. Prater and Jessie
Prater. From Uie judgment, BL L. Prater
brings error. IMsmlssed.
Thos. B. Brown and a G. Battle, botii of
Atlanta* for plaintiff In error. Tfaoa H.
Scott, oC Atlanta, for defendant in error. ■
ATKm^ON. J. Writ of error dlsmlaped.
All tbe Jqstices concur.
OLOUD et ol. V. FORD.
(Supreme Court of Georgia. July 19, IBIS.)
^ (ByUahi^ by ihe OouriJ
BXTIKW ON AFPBAL.
No errors of law are alleged to have been
committed upon the trial of the case, and there
was sofflcient aTidwee to support the verdict
Error from Superior Oonrt, Fnttoa Goon-
ty; W. D. EUls, Judge.
Action between Narcissns Glond and oth-
ers and BL A. Ford, adntfnistratrix. From
the judgment, the parties first mentioned
bring error. Afllrmed.
Lowndes- Calhoun, of Atlanta, for plaln-
tiffa in error. C. W. Smith and M. A. Hale,
both of Atlanta, for defendant in error.
BECK, J. Judgment afllrmed. All the
Justices concur.
(140 Oa. MB)
GEORGIA QRANITB Oa AUSTIN.
(Supreme Court of Georgia. July 19, ISIS.)
Review aa Appk&i..
There was no merit In the (Ejections to
the rulings of the court upon the admissibility
of evidence. And though it may have been
doubtful, under tbe allegatio&s of die petition,
whether tbe diarge In cflEard to future pain
and BV|fferins, was proper, li^ view of the evi-
dence and toe amount found by the jury, this
win not Yeguire tiie grant of a new triaL
Error from Superior Cour^ Fulton Coun-
ty; Geo. lU Bell, Judge. '
^#or other cum bm aune toplg and section NUUBBR ia iSScTDls. A'Am.'Dl<.'key-No,
Digitized
WOODWARD T. EFTAltB!
1009
Action by Ostwrne Austin against tbe Geor-
gia Granite Company. Jadgmmt for plain-
tiff, and defendant brings error. Affirmed.
Candler, Tbomson & Hirscb, of Atlanta,
for plaintiff in error. Frank Ij. Haralson
and B. J. Jordan, botb of Atlanta, for de*
fendaiit In error.
PER OUBIAU. JwdgnrHmt ■fflrmerti All
tbe Jvrtlces ooDCur.
(UD o*. tSS)
a O. CAMPBELL COAL GO. WHITE
ct aL
(Supteme 'Court of Georgia. Joljr 18^ 1918.)
(BwUabut bv the Court.)
1. MtJHIOIPAL COBFORATIOnS ({ 80B*) — On-
BTBUCTZOH OF STBin— IHJVST TO PinCB-
TBiAN — Liability.
In an action to recover damagee, brought
against a mnniclpal corporation and two pri-
vate cotpmtloiu, the petition alleged : A cer-
tain eompauy was andertalUng to construct and
bad constructed a bonse at a certain place on
one of tbe public streets of tbe dty, and In so
doiag bad placed in tbe street a Ume box, a
mortar box, and a pile of sand and brick. The
other defendant company furnlBhed tbe ma-
terial, the lime box, and tbe mortar box, and
tbe sand -and brick, and placed them in tbe
itreet An ordinance of the municipalitT au-
tborized an; person or persons actually build-
ing, or about to build or repair any building,
to collect and lay Ae necessary material there-
for iu the street adjoining tbe place of con-
struction, and td have tbe privilege of usiDg
one-half of the sidewalk and oue-balC tbe width
of the street adjoining, under certain conditions.
One of these was that "tbe owner or proprietor
of sucb material" shall cause lights to be placed
vgaa the obstraction at night This was not
done, and all of tbe defendants knew such fact,
and all of tbem neglected and Called to provide
the necessary ligtits. "All of said defendants
Were the owners or proprietors of said material
In said street" They knew, or ought to hiive
known, that the material was dangerons in tbe
street without having a light or lamp placed
npim it By reason of the failure to perform
tiie doty imposed by the ordinance, the person
passing along tbe street In tbe plaintiffs auto-
mobile, without fault on bis psjt, ran against
the obstruction, causing damages to tbe ma-
chine. Held, that as against a general demur-
rer this made a case against the corporation
alleged to bare furnished and placed tbe ma-
terial in tbe street and to have been one of the
owners thereof, and there was no error in re-
fusing to dismiss the petition against such cor-
poration on general demurrer. Wilson v.
White, 71 Ga. 606, 61 Am. Bep. 26U.
[Ed. Note.— For other cases, see Municipal
Corporations, Cent Dig. i| 1688-1694; Uec.
Dig. I
3. DeHUBEBB PbWBSLX OVKBBtJUD.
The special grounds o( demorrer were
properly ovwmlsd.
Error from Snperior Oonrt; Fulton Coun-
ty; Geo. Ll Bell, Judg&
. Action, by H. H. White and others against
the B, O. Campbell Coal . Company. .Judg-
fQent, for plalntUEv, and defendant biloiBB er-
ror. Affirmed.
Bobt 0. & Pbfiip H. Alston, of Atlanta,
for plaintiff In error. Lawton Nalley, J. It.
Mayson, W. t>. ElUs, - Jr., and Mayaon ft
J<Anaon, aU 9t Atite&ta, for deCendants In
error.
HILLv J. Jndgmeqt afllsmed. AU tbe
Jvstlces eoBeiiA
(U Ga. App. IM)
WOODWABD V. STATE (No. 4,849.)
(Court of Appeals of Georgia. July 22, 1913.)
fSi^Ubua by the Court.)
Cbihinal Law (li 17^ 274*) — Piu or
GUU.TT — Bl«BX TO WxTHnSAW— FOBKa
Jeovaedt,
Where a plea of guilty has been entered
and judgment has not been prooounced, the ac-
cused bas the right to wimdraw the plea of
Silty and enter a plea of not guilty. The
:tB in the instant case presented no exception
to the rul& and did not authorise the refusal by
the trial Judge to permit the aoensed to easr-
cise this statutory right
[Ed. Note. — For other cases, see Criminal
Law, Cent Dig. H 325. 632, OaS; Dec. Dig. |S
179, 274.*]
Pottle, J., dissenting.
Error from 8ap^4or Oonc^ Fnlton Oonn-
ty ; W. E. Thomas, Jadge.
P. Woodward entered a plea of guilty ttt
gaming, and from the trial indsa'a refusal
to allow him to wittadraw sucb pies, he brliiCB
emw. Beveeaedt
Flalntifl In error wM taiOlctta for gaming.
On arraignment he filed a plea of not guilty.
After the evidence for the state bad been in-
trodnced, his attorn^ asked permission from
the court to withdraw the plea of not guilty
and to enter a plea of guilty. He was al-
lowed to do this; and after having entered
the plea of guilty, the attorney for the accused
asl£Cd the court to postpone sentence until
a subsequent day named. The request was
granted. On the day upon which sentence
was to be imposed, which was the last day
of court, the accused, when called up for
sentence, moved to the court to be permitted
to withdraw his plea of guilty and to enter a
plea of not guilty. It appears that all the
witnesses for tbe prosecution had been dis-
charged, and that the witnesses upon whose
testimony the state relied to make out the
case resided beyond the Jurisdiction of the
state. Under tUs state of facts the tria^
Judge refused to allow the accused to with-
draw his plea of guilty.. The writ of error
challenges tbe correctness of this judgment.
John S. McClelland and J. E. McClelland,
both of Atlanta, for plfilntlff In error. Hugh
M- Dorsey, SoL GeiK of Atlaata, for the
Statfc
HILL, C. 3- (after stating the facts as
above)., The Penal Code of 1910, | 971, de-
clares that any thUe before Judgment is pro-
) nounced tbe prisoner may withdraw a plea
•ntt etSM Hkm ses salas tUglk ia4 ■teNoB NOMBVa to Deo. Dig. A Abk Dlgi Kw4<a asilas4h fW^Jodtua
78 S.B.p-64 Digitized by V^OOQ l'
1010
78 SOUTHQASTBBN BBFOBTEB
of gollty and plead not guilty. In Oriflan t.
SUte, 12 Ga. App. , 77 S. E. 1080, In con-
struing tlila section. It is held tliat before
sentence is pronounced upon the prisoner, he
has a. right to withdraw bis plea of guilty,
but that after sentence is pronounced, It ceas-
es to be a right of the prisoner and then may
be allowed in the discretion of the presiding
Judge. The majority of this court are of the
opinion that the facts of tbls case do not
constitute any exception to the rule as an-
nounced In the Griffin Case, supra. The
right wUch the statute gives to the prison-
er to withdraw his plea of guilty before Judg-
ment iB pronounced is without quallQcatlon.
If, however, the trial Judge should be satis-
fied that the prisoner Is endeavoring to perpe-
trate a fraud upon the court by first plead-
Ina; not guilty and then withdrawing that
plea and then pleading guilty, and then again
withdrawing the latter plea and again plead-
ii^ not guilty, for the purpose of delaying his
trial, or of taking advantage of the fact that
the Juries for the term had been discharged
and the witnesses for the state had been ex-
cused, the Judge would be Justified In not al-
lowing the prisoner to exercise this right,
but this would require very clear and strong
proof of misconduct on the part of the pris-
oner or Ms counsel. The mere fact that
If the prisoner Is allowed to withdraw his
plea of gulltyi his case could not be tried at
the then term, or that the state's witnesses
had been discharged, and that the case would
hare to be continued, would not be sufficient
to deprive the prisoner of this statutory
right. It should further appear that this sit-
uation t^d been brought about designedly by
the prisoner for the purpose of misleading or
deceiving the court in the manner indicated.
The record does not show that this was the
purpose of the prisoner or fala counsel, and
it will not be assumed that such was the pur-
pose^ The prisoner had only entered a plea
of guilty one time, and counsel had asked
that sentence be postponed, presumably for
the purpose of allowing him to procure excul-
patory statements or affidavits in behalf of
his client While the record does not show
the fact, yet it is fair to presume that be-
tween the entering of the plea of guilty and
the day for Imposition of sentence, the at-
torney for the prisoner, or the prisoner him-
self, may have discovered evidence In his
favor. It Is not the purpose of the law to In-
Tlta pleas of guilty by persons charged with
crime, but rather is It the purpose of the law
to guarantee to all persons charged with
crime a trial by a Jury. Before depriving a
man of bla liberty or his property trial Judges
would prefer to hear all the evidence, and to
taave the support of a verdict of a Jury upon
that svidenoe, rather than to impose sentence
based upon ideas of guilty.
it has been suKCsted bj teamed counsel
for defendant in error that if the accused,
ondtt the fiicts in the presoit case, were al-
lowed to withdraw his plea of guilty and en-
ter a plea of not guilty, he might on a sub-
sequent trial set up the first trial, when bis
case was partly investigated- by the Jury, as
former Jeopardy. We do not concur in this
opinion. On the first trial the accused
voluntarily withdrew his plea of not guilty.
In other words, tils case was withdrawn
from the consideration of the Jury by hla
request, and not by any action of tlie court.
There Is no principle of the law of former
Jeopardy which would permit an accused to
set up his own voluntary act in withdrawing
his case from the consideration of the Jury
and pleading guilty, and subsequently with-
drawing the latter plea aqd again pleading
not guilty, as a bar to a second trial. The
withdrawal of the case from the Jury In
compliance with the request of the accused
was equivalent to the declaration of a mis-
trial by consent, and a- second trial resulting
from this voluntary conduct of ^e accused
would be equivalent. In legal effect, to a new
trial granted at bis own request Under the
construction which this court placed upon
section 971 of the Penal Code in the Griffin
Case, supra, the majority of this court is
clearly of the ojdnlon that the accused had
the right since the sentence of the court had
not been pronounced against him, to with-
draw his plea of guilty and enter a plea of
not guilty.
Judgment reversed.
POTTLB, J. (dlssenttng). In the absence
of a statute to the contrary; a prisoner has
no absolute right to withdraw his plea, either
before or after sentence Section 971 of the
Penal Code Is declaratory of the common
law in so far as It allows the Judge, in the
exercise of sound discretion, to permit the
plea to be withdrawn after sentence, and in
derogation of the common law in so far as it
gives the prisoner the absolute right tc| with-
draw the plea before sentence Is pronounced.
No such state of facts as the present record
discloses was presented In Griffin v. State.
12 Ga. App. — , 77 a E. 1080. There the pris-
oner pleaded guilty on arraignment and was
permitted, under the showing made, to with-
draw his plea even after sentence. The sec-
tion of the Code above cited provides: "Up-
on the arraignment of a prisoner, the indicts
ment sliall be read to him, and he shall be
required to answer whether he Is guilty or
not guilty of the offense charged In the in-
dictment, which answer or plea shall be
made orally by the prisoner, or his counsel
And If he shall plead 'Guilty,' such plea shall
be immediately recorded on the minutes of
the court by the clerk, together with the ar-
raignment; and the court shall pronounce
upon such prisoner the Judgment of the law,
in. the same manner as If he had been con-
victed of the) offense by the verdict of a Jury ;
but st any time before Judgment Is ptth
nounced, the prisoner may withdraw the plea
of *OnUty,* and plead 'Not guUty,* and sncb
fonntr plea shall not bs fivea.ln svidsDcs
Digitized by VjOOglC
Cla.) WOODWABD T. STATS
against him on his Mai** TUo matter how
often tried, nor how often the plea be with-
drawn, the prisoner la entitled to be arraign-
ed but once. Atkins t. State, 69 Ga. 596, 598.
If, upon arraignment, the prisoner elect to
Join Issue with the state, and the trial com-
mences, he cannot as a matter of right with-
draw bis plea of not guilty and have the case
withdrawn from the jury. His right to do
so rests In the sound legal discretion of the
court, because the statute gives him no such
right and the common-law rule Is appli-
cable; If upon arraignment, Instead of
Joining issne ^th the state, the prisoner ad-
mits the facts, set forth in the indictment and
enters a plea of guilty, he may, at any time
before sentence la pronounced, as a matter of
right, without assigning any reason for so
doing, withdraw his plea of guilty and go to
trial. Griffin v. State, supra. When called
upon to plead he answers guilty or not guilty,
or stands mute, in which last event the
court pleads not gnilty for him. If he pleads
gnllty, he can withdraw that plea, as matter
of right before sentence; if he pleads not
guilty and the trial begins, he cannot without
the court's consent withdraw that plea. A
plea of not guilty la a denial of guilt, and
an election to have the qnestion of guilt or
Innocence determined by the tribunal desig-
nated by the law to find the facts. So far
as his absolute rights are concerned, an
election to Join Issue when once made Is final,
and the record Is closed so fftr as the plead-
ing Is concerned. The court may. In the
exercise of a sound discretion, permit the
record to be opened, and the plea withdrawn
and a plea of guilty entered, and this may
be done at any time before verdict After a
plea of not guilty Is once entered, the whole
matter from that time afterward rests In
the discretion of the court. In the in^rent
case the plaintiff In error moved the court to
permit him to withdraw the idea of not
gnilty, upon the ground that he desired to
enter a plea of gnllty and have sentence
pronounced upon him. The court granted
his motion. The plea of not guilty was
withdrawn, and the Jury was discharged.
As a further matter of grace, upon tlie
prisoner's own motion, the court postponed
the pronouncement of sentence until the
last day of the court, for the purpose of al-
lowing die prisoner to present fiicts wbldi
might go In mitigation ot the punishment to
be Imposed. After having taken advantage
of this indulgence, and after the witnesses
fior the state had dispersed and gone beyond
the Jurisdiction of the court, he proposed to
withdraw his idea of gnllty and have the
case postponed for another term. Of course,
if be had a right to do this, the right ought
to have heea accorded, let the consequences be
what they may. But, In my opinion, he had
no sncb right The law required him to plead
on arraignment He did plead. The present
situation has arisen, not because of any right
I'Oll
which the law gave him, but because of the
exercise of the court's discretion in his favor.
That part of section 971 which gives the
prisoner the absolute right to withdraw bis
plea of guilty before sentence must be con-
strued to mean the plea of guilty to wblch
the statute has reference ; that Is to say, the
plea of guUty entered upon arraignment It
was never contemplated that the prisoner
could exercise the right of withdrawal ad
Inflnitum, merely because sentence had not
been pronounced. There is nothing in the
statute which expressly limits the prisoner's
right to one withdrawal. If the view of the
majority be correct the only llmltetlon upon
this right is that sentence should not have
been pronounced, and the prisoner may play
battledore and shuttlecock with the court
until Judgment is actually pronounced npon
him. In my opinion, after the prisoner has
been accorded the right to withdraw the plea
which he has entered on arraignment wheth-
er It be a plea of guiltr or a plea of not
guilty, his right to withdraw a second plea
is a matter addressed to the sound legal dis-
cretion of the court If this view of the law
is correct It must be conceded that the court
did not abuse Its discretion In the present
case in refusing to permit the prisoner to
withdraw his plea of gnllty. No r«ison
whatever was assigned by him for the ex-
ercise of the court's discretion in his favor,
and the situation which has been brought
about npon his own motion and by his own
request rendered it proper to refuse to ex-
tend to him any further favor. I cannot
bring my mind to believe that the law will
permit a prisoner thus to trifle with the
court and the orderly and regular administra-
tion of Justice. If be cannot plead former
Jeopardy, It Is only because he has wajved
his right so to do by consenth^ for the case
to be wlUidrawn from the Jnry. Nolan t.
Stete, BS Ga. 521, 21 Am. Rep. 281 ; 1 Bishop,
New (Mm. Proc. { 821. His proposition was.
In effect, that if the court would allow him
to withdraw his plea of not guilty, ha wonld
consent for the Jury to be discharged; and
if Uie court wonld grant him Indulgence for
two or three days, he would then appear and
receive sentence under his plea of gnllty. The
conrt accepted his proposition, and ,he ought
to be required to abide by his part of the agree-
mrait The majority concedes that If the
prisoner brought about the situation design-
edly for the purpose of deceiving the court
and procuring a posQ»nement of the trial,
the court might refuse to altow the plea to
be withdrawn. This concession is to my
mind wholly inconsistent with the principle
of law announced' by the court namely, that
the prisoner bad an abaplnte ilgh( to . with-
draw his plea of guilty at any time before
sentence. If he had this right, the reason
for its exercise is not a matter with which
the court has any concern. If this llmlte-
tlon npon his right Is sound, then, in jprl^
Digitized by VjOUV IC
78 SOOTHBASTBBN BBPOBTEB
tvlidon, even nnder tlw conrt^s vlev of tin
law, tile Judgment ought to be afflarmed. The
fttcto are such aa Justly to give rise to the
Inference that the prisoner was merely trif-
ling with the court, and had adopted this
method of securing postponement. He said
not a word, and offered not the slightest
evidence, to rebut this Inference by show-
ing that since the withdrawal of his plea of
not guilty he had discovered new facts which
would entitle him to an acquUtaL To allow
him to take advantage of a situation which
he himself had brought about, embarrass the
state, which may not be able again to pro-
cure the attendance of the witnesses resid-
ing In another state; and thus probably bring
about a miscarriage of Justice, Is wholly at
variance with my conception of the law. Up-
on the clearest principles, the prisoner has
by his own consent, waived his r^ht to be
again put on trial, and was properly sentenc-
ed under his plea of guilty.
For these reasons, I am compelled to dis-
sent from the Judgment rendered by the aaa-
JorMT. ^^^^
<IS Oft. App. IBX)
WABD T. THOMPSON. (No. 4,496.)
<C!oiirt of Appeals of Georgia. Aug. 11, 1018.)
(Bv^abvt bw the Court J
1. EVIDBNCK (I 420*) — PaBOL — BlIXS AMD
Notes.
While the consideration of a promissory
ttots may generally be inquired into, yet where
it appears that the terms of a mutual contract
S'e explicitly stated, parol evidence Is Inadmis-
ble to ingraft nptn the contract edditibnal
conditions inconstatnt with those therein ex-
plicitly stated.
[Bd. Note.--For other casea, see Evidence.
Cent Dig. H 1728, 1795, 1800, 1804, 1810,
1821, 19^1944 ; Dec Dig. | 420.*]
2. BviDMCB (I 445*)— MoDinoAiioir— Pabol
AQBEEUEKT.
A note which stipulates that It is given for
a domestic pump, which is to be delivered
within 30 dsys from the date thereof, and fur-
ther provides that the note is to be void only
upon condition that the pnmp company refuses
to deliver the pomp as above specified, and for
no other cause whatsoever, cannot be affected
by a subsequent agreement of an agent of the
pomp company (who, so far as appears from
the record, was not anthoriied to make this
eubseguent agreement) to the effect that. If the
purchaser struck quicksand he would not be
required to take toe pump or pay the note.
Espedally Is this true where It appears that
the pomp was delivered according to the con-
tract upon the land of the defendant, within
the spetafied time, and no effort was made to
Install the pomp. Nor coidd the note be af-
fected by a parM agreement that the pnmp was
to be Installed free of diarge and water pipe*
run into the purchaser's Utdien.
IBA. Not&r—For otiier cases, see BMdenee,
Gent Dig. U 2052-2065; Dee/ Dig. | 44B.*}
& Action on Noxn.
The Judgment for the plaintiff was author-
ised by the sTldenee, and there was no error
In refusing a new trial.
Error from Sope^r Ooort, Grsene Gbiia'
ty ; Jaa. B. Park, Jtidga.
Action by W. G. llwmpaon acabut Ivenon
Ward. Judgment for phUntlfl; and defstdr
ant brings error. Affirmed.
BC. O. Few, of Madison, for plaintiff In
error. Mtddlebrooks ft Burms and Willlford
ft Lambart, aU ot Uadlaim, for d^endui*
in error.
BUSSDU^ J* Jndgnent aOmnd.
(13 Gs. App. in)
WILLIAMS V. STATE. (No. 4.917.)
(Court of Appeals of Qec»via. Aug. 12, 1918.)
(Syllabvt By the Oouri.)
1. CaiMiNAr, La,w ({ 1077*)— AppkaIt-Aiti-
DAviT IN PoHif A Pauperis.
As it appears from the record that the
plaintiff in error filed a proper affidavit in for-
ma pauperis, the motion to dismiss the writ of
error is denied.
[Ed. Note.— For other cases, see Criminal
T«w, Cent. Dig. fS 2718, 2719; Dec; Dig. f
1077.*]
2. CanciiVAL Law <S 588*)— OoifTnnlANc»-
QBODNDa.
The court did not err in overruling the
motion for continuance, since it does not ap-
pear that any effort had been made to procure
the attendance Of the absent witness, either by
subpoena or otherwise.
[Sdl Note.-— For otber- cases, see Criminal
Law. Cent. Dig. H 1336-1841; Dee. Dig. I
898.*]
3. iNTOXICATIIfO KiIQUOKB (| 2S6*)— PBOSBOIT-
TioN— BviiHBNcn or Sale.
The evidence was suffident to anthoriso
the verdict of guilty. The witness saw the de-
fendant accept from another person a quarter
and a half dollar in money, and saw tae de-
fendant get a idnt of whisky out of a carton
in a comer of the warehouse and hand it to
the person who bad paid htm the money.
This, with the additional circumstance that the
witness (who waa the town marshal) Imme-
diately examined the carton and found therein
four or five plots of whisky, and the fact that
the carton was addressed in the name of the
defendant, was sufficient to authorise t^e Jury
to infer that, in accepting the money and haad-
iag the whisky in retnm, the dtfendant waa
consummating a sale.
[Ed. Note.— For other cases, see Intoxicating
Liquors, Cent Dig. H 800-322; Dec. DigTl
236.*]
4k Gbivinai. Law (| 1129*) — Apfiai.— -As-
BiGNUBNT or Erbos— ^Sufttcienot.
The asdgnment of error addressed to the
diarge of the court as a whole, upon the ground
diat "the chaige was too meager for the jury
to understand uieir duty In the light of the law,
and that the charge not cover the issue
made by the evidence," Is too vague end Indef-
inite to present anything for the consideration
of this court.
[Ed. Note.— For other cases, see Criminal
Law, Gent Dig. U 2964-4964; Dee. Dig |
im*]
6. CsnoNAL liAw n 789*)— iNawKinORa—
Riasonablk Doubt.
The hismiction of the court, that *^e de-
gree of proof necessary Is that the facts and
drcunatanees submitted to your consideration
must be sufficient to satisfy your minds and
ooQsdences l»eyond a reasonable doubt that the
defendant is gQllty.'* suffidtiotly presented to
the Jury tiie doetnae of reasonable doubt as
*9w otkw UMB sss ssme tople sad Mctlon NUMBBR In Deo. Die A Am. Die.
suBiuEKcnr t. auonmujs supflt oo.
1013
applied to the eTi^ence anbinltted in tbe caae.
There ia no assignment of error based upon tbe
CToand that tbe court failed to instruct tbe
mtj that, where drcumstantial evidence alone
u rdled npoa, the evidence most be eoffident
to ezdude ever; other reaeonable hypotheaie
than tiiat ot the defendant*! guilt.
[Ed. Note.— For other caeee, see Ciiminal
Law, Gent. Dig. 11 184ft-184&. 18M,
1804-im, I960, 1967; De& Dig. } 780.*]
C Vmdici JlKo Dbnui. qw New Tbial 8n«-
The evidence authorized the verdict, and
tiiere was no error in refnslng a new triaL
Error from Snperior Court, Worth Ooun-
tj; Frank Park, Judge.
Carey Williams was convicted of violating
tbe prt^bltorr law, and brings wror. Af-
firmed.
PaytoD & Nottingham, of Sylvester, tot
plaintiff Id error. R. CL Bell, Sol. Qen., of
Cairo, for tbe Statie.
RUSSELL, J. Judgment ftfflrmeO.
OS Oa. Ayp. mi
HILL v. STATE. (No. 4,900}
(Oourt of Appeals of Georgia. Aug. U, 1913.)
(Sifttabiu J>v Court.)
1. CfiiiaNAi, Law (| 762*)— Ikstbuctiohb—
EzPREsaioiT or- Opmoir.
Tbe obiectioo made to an excerpt from the
charge of tne court, on the ground that It was
an ezpiession of opinion as to what had been
proved by the state, is not well foimded. The
trial Judge fully anid fairly stated tbe conten-
ttona of both the state and the accused, without
the filigbtest intimation or utpresaion of any
opinion as to which contentions had been es-
tablished by the evidence.
[Ed. Note.— BV>r other eases, see Crimiitai
Law, Cent Dig. tt 1731, ITfiO. 17B4. 1768.
1759, 1769 ; Dec. Dig. f m*]
2. Vebdict ScerAimD.
No other error of law was complained of,
and tbe verdict is supported the evidence.
Error from Superior Cout^ Sai^ Counfy;
W. O. Worrlll, Jndga
Draaa Hill was convicted of crime, and
brings error. Affirmed.
H. M. Calhoun, of Arlington, for plaintifl
in error. B. T. Castellow, SoL Gen., of Cnth-
bert, and R. B. Arnold, of Atlanta, tot tbe
State.
HTLLs CL J. Ju^ment afflrmed.
08 oa. App. 171)
HUDSON DBITBR. (No. 4JB79.)
(Court of Appeals of Geor^a. Aug: 12, 1918.)
(BvUchtu H Oe Oourl.)
APPKAL AlfD ESBOB (| 979*)— DlBOBniOnAET
Rvuhq^Gbantino New Tb^ai..
'In this case error is assigned npoa the
judgment of tbe trial court in gtantlDg a new
trial. It is tbe first grant of a new trial) and
since a verdict in favor of the plaintiff was not
demanded by the evidence, the diecretlon of tbe
trial judge will not be controlled. 'The first
grant of a new trial will not be diaturfaad no-
less both law and focts require the verdict" Civ-
il Code 1910, 1 8204; Wright v. Garland, 137
Oa. 80, 72 & £. 399 ; Zom v. U^n Banking
& Trust Co.. 137 Ga. 464, 73 S. E. 652.
[IDd. Noto^For otber cases, see Appeal and
Error. Cent. Dig. H 3871-^73. 3877; Dee.
Dig. i 979.»]
Error from City Court of CarroUton; Jamee
Beall, Judge.
Action by Mrs. Jim Hudson against Berry
Driver. A new trial was granted after judg-
ment for plalntUT, and plalntlft brings error.
Affirmed.
Newell k Fleldeit of Ganonton, fior plafn-
tiff in error. Leon Hood, of CattoUton, for
defendant In oror. .
RUSSELL^ J. Judgment afBrmed.
dSOa, App.l8n
SUBBBNGX T. qLENNTILLE SUPPLt 00.
(No. 4,973.)
(Court of Appeals of Georgia. Aug: 11^ 191S.)
(SvUibvt by tike Oourt.)
1. Elbction or Reicidies (8 8*)— Emcrr.
The defendant In tbe lower court in his
plea, alleged that he had previously filed and
that there was then pendii^c an action iu tro-
ver for the recovery of the cotton fer the eon-
raraioa of which he sought to recoup damages
as against tbe suit brought by tibs plaintiff Up-
on his note. The defendant was concluded vj
his election, and the co^rt did not err in strik*
Ing the plea, even If it was liot an attempt to
set off damage arising from a tort committed
by the plaintiS as against a suit upon the coa-
tract ^'Where one has an option either to af-
firm or to disaffirm a sale, • * * and exer-
cises this option, he Is bound by his election."
Kennedy v. Manry, 6 Ga. App. 816, 66 S. E.
29. Tbe defendant s election to proceed in tro*
ver was eoodusive, and eonstltHted an absolute
bar to the maintenance of tbe defense be sought
to set op. Rowe v. Sam Welchselbanm Co., S
Ga. App. 504, 60 S. E. 27S.
[Ed. Note.— £'or other cases, see Election of
Remedies, Cent Dig. IS 3, 4 ; Dea Dig. { 3.*]
2. APPtAL AND EBBOB (| 854*)— JUDOIOSIIT—
INCOBBBCT Reason.
A correct judgment will not be reversed,
even if tbe reason etated tor its rendition is
incorrect or insufficient
[Ed. Note.— For other cases, see Appeal and
Error. Gent Dig. M 3403. 8404, 3498-3424,
3427-8430; Dec. IHg. | 36^.*}
Error from City Court of Beldsvllle; B. O.
Collins, Judge.
Action by the OlennvIUe Supply Company
against H. S. Sarrency. Judgment for plaln-
tur, and defendant brlnga error. Affirmed.
Way ft Bnrkhalter, of Xteldsvllle, for plain-
tiff In error. C. li. Cowart, of GlennvlUe, for
defCeadant in erzor.
RUSSSILL, J. Jndgniest affirmed.
•Foe ether oasai see seme topte and ssrtUn NUMBBft 1b Dee. Dig. 4 Am. Dig. Key-He. Series ft Bep'r tlidesee
'Digitized by Google
1014
TO S0T7THBASTBBN BBPOBTBB
tarn.
08 Oa. App. 181)
WATSON T. STATE. (No. 6,035.)
(Ooort of Appeals of Georgia. Aug. 12, 1918.)
(SfUabiu by the Court.)
1. Gbiminjul Law 1160*)— Affsu— Etx-
DBNO&
The credibility of witoeseea Ib a matter
ezclnsiTely for tbe jary, and, od the trial of a
criminal case (Id which there is do complaiot of
errors of law), when a witoeBs teedfies positive-
ly to all of toe facts eswQtial to constitute the
oSenM chanced, thii court cannot interfere
with tbe Terdict, no matter how many witnesses
may have testified to the contrary, or how
many circnmstances may have been adduced
t«[idinK to disprove the testimony of the single
witness. Ghatman t. State, 8 Oa. App. 812,
70 S. Bk 188 ; Jolly t. Stat^ 6 Oa. App. 464,
68 8. E. 620; Barber t. Stat^ S Ga. App. 698,
60 S. E. 2SS.
[Ed. Note.— For other case^ see Criminal
law, Gent Dig. H 8074-80^; Dee. Dig. 1
luse.*]
2. Gbihikal Law Q 7^*)— CasDiBiLnT or
WrrNEBass— Pbotihob of Jubt.
There is no limitation to the power of the
jury to credit a witness, unless the facts testi-
fied to by him be inherently at variance with
tbe common knowledge and experience of man-
kind. A witness impeached for general bad
character, or for contradictory statementa ont
of court may be restored to credit Giv. Code
1910. I 6884.
[Ed. Note.— For other ease*, tee Criminal
Law. Cent Dig. H 1098^^8, 17M-1721;
Dec. Dig. I 742.*]
Brror from City Court of Giiffln; J. J.
Flynt, Judge.
Urale Walson was conTieted of crime, and
brings error. Affirmed.
W. H. Comior, of Oriffin, for plalotlfC in
error. Wm. H. Beck, SoL, of OrlfflOf tm tbe
State.
BUS8BLL, J. Jndgmuit affirmed.
08 Qa. App. U2) '~
BANKS T. STATE. (No. 6.040.)
(Court of Appeals of Georgia. Aug. 12, 1013.)
(SfUahiu If «h« Court.)
1. Sanction of Cebtiobabi.
The judge of the superior court did not err
in refusing to sanction the certiorari.
2. Cbiminal liAW (I 1169*)— Affkait-Bti-
DKNCE.
The evidence as to the identity of the ac-
cused was sufficient to authorize the jury to
find that he was the person who sold the intox-
icating liquors, although a lai%e number of wit-
uesses testified that another, and not he, was
the seller. Wataon v. State, supra, this day de-
cided.
[Ed. Note.— For other cases, see Criminal
Law, Cent Dig. U 8074^8083; Dec. Dig. «
1160.*1
3. Cbeuinal I«aw JI. 814*)— iKsiBUonoira—
Circumstantial Btxdbnce,
The testimony as to the identit? of the ac-
cused was positive and direct, and hence the
trial judge did not err in omitting to charge
the jury on the law applicable to their ocMnid-
eratloD of drcumstantial eridence.
[Ed. Note.— For other cases, see Criminal
Uw, Cent. Dig. U 1821, 1833, 1839, 1860, 1865,
1883, 1890. 192^, 1979-1086. 1987 ; Dec Dig.
I 814.*]
Error from Superior Court, Fulton Gbnotr ;
J. T. Pendleton, Judge.
Walter Banks was convicted of vlolatixig
tbe prohibitory law, and from a refusal of
tbe superior court to sanction a certiorari be
brings error. Affirmed.
Tbos. B. Brown and Tbos. J. Lewis, botii
of Atlanta, for plalntlfr In error. Hugh M.
Dorsey. SoL Goi., Lowry Arnold, and Bdwnrd
a Hill, aU of Atlanta, for the State;
BUSSELX^ J. Jndgmoit affirmed.
(IS Gs. A9P. UO)
WBATHEBB7 v. STATE. (No. 6,026.)
(Court of Appeals of Ooor^ Aug. 11, 1918.)
fSyUaliut by the OourtJ
1, Gbiuihal Law (1 828*)— Instbuctioh —
clbcuhstaktial evidbncb.
The verdict does not depend solely upon
circumstantial evidence, a coofesston having
been shown ; and, in the absence of a timely
written request, the trial judge did not err in
failing to ^ve in charge tbe law of circumstan-
tial evidence, as contained in Penal Code 1010,
i lOia Benton T. State, 0 Ga. App. 422. 71
8. E. 498: Holt T. State, 7 Oa. App. 777w S.
B. 279.
[Ed. Noto.— For oUier cases, see Criminal
I«w, Cent Dig. | 2007; Dec. Dig. { 82a*]
2. DSKZAi. OF Nbw Tbial Afpbotbd.
No error of law being asdgned, except as
indicated above, and the verdict being support-
ed by tbe evidence, the judgment refomg a
new trial Is affirmio.
Error from Superior Court, Floyd County ;
Price Edwards, Judge.
John Weatberby was convicted of crime,
and brings error. AfBrmM-
Eubanks & Mebane, of Borne, for plaintiff
in error. W. H. Bnnls, SoL Gen., of Borne,
for the State.
HILI4 a J. Affirmed.
(U Ga. App. M)
OBANOR T. SOUTHERN BT. CO.
(No. 4,818.)
(Court of Appeals of Georgia. June 25, 1013.
On Behearing, July 16, 1918.)
(SvtMu* by th0 Court,}
L Affbai. and Erbob (1 1042*) — Habhlbss
EbROB— STBIKING MaTTEBS FBOU PBTmON.
Where, in a suit for damages, the jury re-
turns a verdict finding in effect that the de-
fendant was not guilty of negligence, and a mo-
tion for a new trial, filed by the plaintiff, is
overruled, if the latter jodgment u affirmed,
the striking of certain items of damage from
the petition, even If erroneous. Is immaterial.
[Ed. Note.— For other eases, see AivmI and
Error, Cent Dig. H 4U0-4114; Dec. Dig. i
1042.']
2. Cabbiebs (I 218*) — Cabbiaqb or Lxvx
Stock— LiitiTATiON of LuBiLrnr.
A common carrier of live stock cannot con
tract against liability caused by its own neg-
Ugenoe; but it may make reasonable stipule-
*Per other eaass ■•• same topie and seoUoa NUHBBR la Dec Dig. A Am.
GRAKOB SOUTHERN BT. Oa
1015
tions In refereDC« to matters which are merely
inddental to the transportatioQ of the animals,
such as loading and imloading and caring for
the stock. If such a contract is made, the ship-
per cannot recover for anj damage which re-
sults from his own failure to comply with his
eng&{:ement In view of the allegations of the
petition in the present case* it was competent
for the defendant to plead a contract of tha
natnra abora Indicated.
TEA. Note.— For other cases, see Gartiera,
Cent. Dig. » 674-686^ 827, 928r08&-M9: Dec.
Dig. s 2ia*]
3. Cabbiebb (I 180*)— OonnxcTiNo Gabbibbs
— LnOTATION or IdABIUTT — INTBB8TATB
Shipuent.
Where goods are transported over the
lines of several carriers nnder a contract with
the initial carrier for delivei? at destination,
each succeeding carrier is the agent of the
first carrier, and as such, if sued for the loss
of or damage to the goods, is entitled to the
benefit of any contractual exemption which the
initial carrier would have been allowed to plead
had he been sned for the failure to transport
safely. This role ia applicable to carriers in
interstate aa well as intrastate commerce.
[Ed. Noter-For other cases, see Carriers,
Cent Dig. H 815-828; Dec Dig. { 180.*]
4. CutBUCBs d 218*) — Gabbxaob or lAn
Stock — LniiTATiOH or Lubilitt — Hkp*
BURN Act.
There Is nothing In the act of Congress
known as the Hepburn act (Act Jane 28, 1806. c
3591, S4 SUt. 5S4 W. S. Gomp. St Supp. 1911,
p. 1288]) or in the Garmack amendment to that
act which prohibits a carrier of live stock from
stipulating against liability resoltfng from the
failure ct the aUpper to accompany -and care
for the stock, or from entering into any otiier
reasonable stipulation which does not amount
to a contractual exemption from liability on
account of the carrier's negUgenoe.
[Ed. Note.— For other eases. Me Carriers,
Gent Dig. K 674-686, 927, 828, 9S8-d48; Dn.
Dig. I 2ia^
6. Appkal and Eebob (| lOSO*)— Habklisb
Ebbob— ADWSnON OF Etidknce.
Under the evidence the real issoe was
whether the defendant had improperly fed and
watered tbe live stock; and therefore the con*
tract of affreightment which required the ship-
per to accompany and feed and water the stock
was not material, but its adndssion in evi-
dence did not result In injury to the plaintiff.
[Ed. Note.— For other eases, see Appeal and
Error, Cent Dig. §| 1068, 1068. 4168-4157;
Dec Dig. I lOfiO.*}
6. GABBms (I 218*) — Gabbiaoc or Lin
SrocK— LntiTATioN or Liabilitt— Dutt or
SHIPPEB 10 ACCOMPANT STOCK.
If tbe provision in tbe contract of af-
frel^tment requiring the carrier to furnish the
shipper free passage for himself or agent, in
order to enable bim to accompany the stock,
was valid and binding upon the parties, it was
the duty of the shipper to apply for traospor-
tatlon. Having failed to request tiiat a pass
be Issaed to Itlm in accordance with the terma
of the contract, he cannot oi^e, as an excuse
for failing to accompany the stock, t^e failure
of the carrier to issue the transportation.
[Ed. Note.— For other cases, see Carriers,
Cent Dig. H 674^^. 827, 928, 933-049; Dtc
Dig. I 2f8.*J
7. Evidence (| 48*>--Tbiai. (J 105*)— Judi-
OEAZ. NoncE— Best BTiDsiroB— OBJSonoNs.
The evidence demanded a finding that the
contract of affreightment was issued to the
plaintiff in consideration of a. reduced rate of
freight.
[Ed. Note.— For otb-r cs^es. see Evidence.
Cent Dig. I 70; Dec Dig. | 48;* Trial, Cent
Dig. H 260-266; Dec Dig. | 10&*]
8. SufnoiXNOT or Bvidbnce.
The evldenee anthorixed the verdict, and
there was no error in overruling the motion
for a new trial.
(Additional SyUahw 1$ Editorial 8taf.)
9. CABBIERS (§ 229*) — INJUBIES TO litVB
Stock— Blehkntb or Dahaok.
In an action for injuries to live stock In
which defendant pleaded a stipulation of the
contract of shipment requiring the plaintiff to
accompany tbe stock, which he failed to do,
ElalDtiff could not recover, as an element of
is damages, traveling expenses Incurred in
coming to a distant city to ascertain tiie condi-
tion of the stock while they were In the hands
of the carrier.
[Ed. Note. — For other cases, see Carriers,
Cent Dig. » 930, 963, 964; Dec Dig. 8 228. •]
10. Carbibrs (S 227*) — Carbiaqe or Live
Stock- Neqi-igenob or Oabbieb— Puiad*
no.
Though petition In an action by a shipper
of live stock alleged that defendant carrier
failed to take proper care of the stock and
failed to water the same properly, allegations
of tbe answer setting up a contract of af-
freightment, regnlrinz plaintiff to accompany
and feed and water the stock, vas not irrele-
vant to the issue.
[Ed. Note.— For other cases, see Carriers.
Gent Dig. H 232. 963-966; Dec Dig- f 227.^
11. CoUMEBCE <| 8*)— iNTEBffTAtl COMnBOB
—What Law Ootebnb.
In determining the rights and liabilities of
the parties to a contract stipulating for tbe
carriage of goods in interstate commerce, the
acts of Congress and tbe decisions of tbe feder-
al courts construing them are controlling.
[Ed. Note.— For other cases, see Gommerce,
Gent Dig. | 6; Dec Dig. { &*]
IZ Cabbiebs (S 211*) — Cabbiaqk or Lira
Stock— Duty to Feed and Water Stock.
In the absence of a contract, the carrier
is required to feed and water live stock.
[Ed. Note.— For other cases, see Carriers,
Cent Dig. §f 926-928; Dec Dig. f 211.*]
13. Carbiebs 211*) — Gabriaob op Live
Stock— Duty to Feed and Wateb Stock.
Though the contract for tbe shipment of
stock requires the shipper to accompany and
feed the same, if the carrier undertakes to per-
form this duty it is bound to exercise care in
doing so.
[Ed. Note.— For other cases, see Carriers,
Gent Dig. K 826-928; Dec Dig. 8 211.*)
14. GusTOitB AND Usages (8 17*) — Vabtihg
Terms of Expbess Contracts.
If a stipulation in a contract of shipment
requiring the carrier to furnish a pass was
valid and binding, no previous practice or cus-
tom could relieve it from the obligation.
[Ed. Note.— For other eases, aee Customs
and Usages, Cent Dig. | 84; Dec Dig. | 17.*]
Error from Clt7 Conrt of Atlanta; "B. U.
Bold, Judge
Action by John Granor against Uie South-
ern Railway Gompaigr. From a Judgment
for defendant, plalntlfl twings error. Af-
firmed.
•rer otber eases see same and seetlon HVMBB^ in Dee. Dig. * AA. Dig. Key^N^.
1016'
78 BOUTHEASTBBM BBFORTSB
(Ga.
A. H. DaTlfl, of AtUinta, for plaintiff in tx-
ror. McDanlel & Black and E. A. Neely, all
of AQantB, for de^enduit in error.
VOTXLBt 3, Tbe tfalntUE sued the rail-
way oonqMuiy for damagea on account of in-
Jnrlea to certain lire stock in a car wUcb
waa deliyered to the Atlantic Coast Line
Railroad Oonipany In Deland, Fla., conatgned
to Howell Station, Ga., for transportation by
tbe Atlantic Coast line and conneetlnt rall-
roada to Atlanta, Ga. Tbe car of atoA waa
delivered by tbe Initial carrior to the South-
em Ballwar Gnnpany at JackaonTllleb Via.*
for transportation to Atlanta. The conalgoee
at Howell Station waa plalntUPa agut In
and abont the recesitton and caring for the
stock after arrinL The contract made with
the initial canlu bound it to carry tiie stock
to JaduonTllle aad ddlver it to a connecting
oander; and the defendant oompany received
the stodE at Jacksmnllle and tu^ertook to
transport the same with due diligence to the
place of destination. Delivery was made by
ttie d^endant to the cfmslgnee on April 28,
1910, bnt the stock were in very bad condi-
tion, being ran down, jaded, and sick. One
horse and one mule died on Apill 30th, and
another horse continued sick and died a week
or ten days after orrlvaL The defendant
was immediately notified of the condition of
the stock and had them examined by a veter-
inarian. While in tranQMrtatlon from Jack-
sonvlile to Atlanta, the stock were entirely
under the control and care of the defendant;
the plain tiCf having no agent with the stock
and having no arrangement or agreement
with the -defendant that he or his agent
should accompany the same. The plaintiff
alleges that the stock were sound and In
good condition when delivered to tbe defend-
ant; that the defendant failed to take prop-
^ care of the same and furnished them with
insufficient food, did not water the stock
properly and sufficiently, and gave them Im-
pure water to drink which poisoned them;
that by reason of tbe defendant's negligence
It became necessary for tbe plaintiff to come
to Atlanta and look after the care and treat-
ment of the stock; that, in order to cure
them and put them In a salable condition, he
incurred certain necessary Items of expenae,
such as railroad tare, board, and feed for
the stock and treatment by a veterinarian.
In addition to these items of damages, the
plaintiff lost the value of three bead of stock
which died and certain sums on account of
deterioration In value of otbers. Upon de-
murrer the court struck from the petition
the claim for . damages on account of the
plaintiff's railroad fare and expenses.
The defendant answered, denying all al-
l^tlons tt negligence. By amendment tbe
defendant pleaded that tbe shipment of live
std^k waa made onder a through contract
of afbe^tment between the idalntlff and tb«
Atlantic <Jpaat 1^ Railroad Company ta
consideration of a reduced mtsi. Tbia eoa
tract provided that, In consideration of the
reduced rate and of a free pass Issued to
the owner or his ageot, the owner released
all tbe carriers from risk of injury to tbe
animals in conBe(iuence of their Inherent
nature or resulting from any material used
by the owner for feed of the stock and cer-
tain other causes. Tbe contract farther stip-
ulated that tbe owner should feed, vrater,
and attend to tbe stock at bis own expense
and risk while In -the railroad atock yards
awaiting shipment, or at a transfer point, or
while unloaded for any purpose; also that
tbe owner should ride upon tbe freight train
upon which tbe stock was transported; that
the value of each horse or head of sto<^ did
not exceed $76 ; that notice In writing of any
claim for damages should be given to the
carrier before the stock were moved from tbe
place of destination ; and that. If It was nec-
essary for the stock to be transported over
the line of any other carrier or carriers to
the point of destination, delivery might be
maue to such other carrier for transporta-
tion upon such terms and conditions as It
might be willing to accept, provided that tbe
terms and conditions of the contract made
with the Initial carrier should inure to the
benefit of such other carrier, but that no
carrier should be liable for the negligence
of any other carrier. This amendm«it was
objected to by tbe plaintiff upon the follow-
ing grounds: <1) That It did not snfiictently
appear that tbe defendant railway company
accepted tbe shipment upon the terms and
conditions of tbe -contract made with the
tultlal carrier; (2) tbat no facts were al-
leged which would bring the defendant un-
der any of the exceptions or exemptions
from liability stipulated in the contract ;
that it did not appear from the amend-
ment bow or why the terms of the contract
inured to tbe benefit of the defendant; (4)
there was no allegation that tiie plaintiff had
been furnished with a free passage, and tbe
terms of the contract In reference to this
matter and tbe requirement that the owner
accompany the stocA were Irrelevant, there
being no claim of liability except from Im-
proper feeding and watering; (0) there waa
no allegation that the fallnre of the owner
to accompany the stock and feed and water
them was the proximate cause of tbe dam-
age ; (6)' no sufllclent reason is shown why
the terms or conditions of the contract made
with the Initial carrier Inured to the benefit
of the defendant, and die burden of proving
that tbe atock were transported by tbe de-
fendant under the terms of such a contract
was upon tbe defendant The court allowed
the amendment, and the defendant exc^ited
pendente lite. The trial resulted In a ver-
dict in favor . of the defendas^t Plaintiff's
motion for a new trial was overruled, fuA
he excepted, assigning error npon the Judg-
ment striking oertalti Items of damage from
bis petition, upon tbe aUanano «f. tlw
Digitized by LjOOglC
1017
amendment offered bj tbe defendaat, and
upon the oTemiUng ct ttia mottoa for a new
CrlaL
[1] 1. Since the JniT found for the defoid-
ant and we have reached the eondusion
that the evldaice anthoiUed the finding that
tbe detendant was not negligent, and that
Qie Judgment ovemUIng the motion for a
new trial ahonld be affirmed, the lullng of
the court In atriUng from the plalntUTa pe-
tition certain Itema of damage which he
claims the right to recover becomes Imma-
terlaL
[I] Tbe conrt was clearly right, under the
tacts alleged, in rollcg thkt tbe plaintiff
was not entitled to recover traveling expenses
Incurred in coming to Atlanta to ascertain
the condition of tbe live stock. This was not
a legitimate Item of damage recoverable
from tbe defendant on account of Its breacb
of doty In falling to deliver the live stock
safely at the point of destination.
[2] 2. A carrier of live stock is a common
carrier, but, on account of the nature of tbe
goods to be transported, tbe carrier Is per-
mitted to make a special contract impofdng
certain obllgations upon the shipper and ex-
empting tbe carrier from liability for damages
for loss or Injuries not resulting from tbe
negligence of tbe carrier. Public policy for-
bids a carrier to contract against liability
caused by Its own negligence, but It does not
prevent the carrier from contracting wltb
the shipper for tbe performance of certain
acta which may facilitate tbe safe transporta-
tion of tbe goods. The duty of tbe carrier
is to transport safely. Its failure to perform
tills duty la n^Ugence from which liability
arises. But in carrying live stock there are
certain things necessary to be done apart
from the transportation of tbe animals, such
as loading and unloading, feeding, and water-
ing. They mast be secure from escape ; they
must be protected from beat and suSocatloo
and overcrowding. In tbe absence of such
a contract, it would be the duty of the car-
rier to do everything essential for the pro-
tection and safe delivery of tbe anlmaU.
But reasonable, stipulations in a contract of
affreightment are binding on tbe shipper if
they do not amount to a stipulation against
liability for negligence of tbe carrier. See
Hutchinson on Carriers, | 419 ; Lonlsville &
Nashville Railroad Go. v. Tharpe, 11 Ga. App.
465, 76 S. S. 677; Weaver v. Southern By.
Co., to Oa. App. 84, 70 S. a 222; a. c 11 Oa.
App. 865, 75 S. B. 447; New EMgland Steam-
ship Go. V. Paige. 108 Ga. 2^6. 33 S. K. 060;
Southern By. Co. v. Adama, U5 Oa. 70{^ 42
B. B. 35.
{II] The petition having alleged that the
defendant failed to take proper care of the
stock and ^ed to water the sibock propef ly.
It was competent for the defendant to plead
a contract of aflrdghtmefrt which reanlred
the ownw to accompany and feed and watAr
them bimseif. Th» contract was sot t_
relevant as ideadlng,- ev«a,lf It oould be Mid
to be loaiqpllcable to the ftuits. as shown by
the proof.
[S] 3. It Is contended that the burden was
on the defendant to show that the special
contract Inured to its bene^t and that no
facts sufficient to carry this burden are plead-
ed in the amended answer. WheDe goods are
to be transported by mora than one carrier
and the initial carrier makes a contract to
deliver at destination, the connecting car-
riers are agents of the initial carrier and en-
titled to the' benefit of any contractual ex-
emption vihkitt the Initial carrier would have
beea allowed tp plead had it been sued for
its failure to transport safoly. The rale is
otherwise where the initial carrier contracts
to convey only to the end of its own line and
there to deliver to a succeeding carrier en
route. In such a case the initial carrier has
no interest in the farther tran^rtation of
tbe goods after they are delivered to the suc-
ceeding carrier, unless there is something in
the contract, or a statute, which sUpulatea
to the contrary. 1 Hutchinson on Carrlere^
8 472. It has been expressly held by the
Supreme Court of the United States that, in
tbe case of an interstate shipment, any lim-
itation of liability in a contract made with
tbe initial carrier, which is valid as to snob
carrier, inures to the benefit of the succeed-
ing carriers. Kansas City Southern By. Co.
V. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L.
Ed. — , In the present case it appears
that the Atlantic Coast Une Railroad Com-
pany contracted to deliver the goods at des-
tination ; and, under the decision just cited.
every valid stipulation In tbe contract of af-
freightment bound not only the parties to
tbe contract but was binding upon and Innred
to the benefit of tbe succeeding carriers. In
addition to this, the contract Itself expressly
provided that the terms and conditions of
the contract should Inure to the benefit of all
connecting carriers unless otherwise stipu-
lated In the contract.
[4] 4. It is argued, however, that under
the Hepburn act and the Carmack amend-
ment a carrier of goods In interstate com-
merce is not permitted to exempt Itself from
liability by stipulations requiring tbe shipper
to accompany the stock and feed and water
them, and requiring notice of any claim for
damages to be given before the stock are re-
moved from the place of destination, and fix-
ing an agreed value to be recovered In case
of loss, and similar stipulations. Counsel
correctly contend that the act of Congress
supersedes all regulations and laws of the
states upon tbe subject-matter dealt with in
the act Adams filxpress Go. v. Croninger,
826 U. S. 401, 83 Sup. Ct .l48, (t7 L. Ed. — ;
Kansas City Southern Ry. Ca v. Carl, npra ;
Southern Padflc Go. r. Granahaw. tf Oa. App.
678, 63 S. B. 865.
In dstermining the rights and Ilabili-
ItiM (4 the partlea ta the omtract atlpnlat*
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78 SOUTHSUJSTEBK RSFOBTBB
(Ga.
Ing for the carriage of gooda In Interstate
commerce, the acts of Congress and the deci-
sions of the United States constrnlng them
are controlling. Under those acts a carrier
cannot stipulate against liability resulting
in whole or In part from its own negligence.
Adams Express Co. t. Cronluger, supra. In
that case it was held that. In conslderatioo
of the reduced late, an interstate carrier
might limit the amount recoverable by the
shipper to an agreed value. The Carmack
amendment to the Hepburn act provided that
any common carrier receiving property for
transportation from a point In one state to
a point in another state shall issue a bill of
lading therefor and shall be liable to the
lawful holder thereof for any loss or damage
caused by It or any of the succeeding car-
rlera over whose line the property might
pass, and that "no contract, receipt, rule, or
regulation shall exempt such common car-
rler, railroad, or transportation company
from the liability hereby imposed." Recent
decisions of the Supreme Court of the United
States make It plain that, while under the
act of Congress a carrier cannot stipulate
against Its own negligence, It may enforce
reasonable stipulations In a contract of af-
freightment which are not designed to ex-
empt it from the consequence of Its own neg-
lect There Is nothing in the act of Con-
gress, as construed by the Supreme Court of
the United States, which would prohibit a
carrier of live stock from entering into a
fiilr and reasonable agreement with a ship-
per vrlth reference to the care of the stock
while being transported and as to things In-
cidental to the transportation of the ani-
mals, but necessary to be done on account of
the nature and the character of the goods
b^ng transported.
[12] In the absence of contract, the carrier
would be bomid to feed and water the stock.
He may by ctmtract bind the shipper to per-
form thla service, and for any Injury or
damage resulting from the failure of the
shipper to comply with his part of the con-
tract the carrier would not be liable. Weav-
er T. Soutliem By. Co., supra. As to this
matter there Is no difference between Inter-
state and Intrastate shipments.
[S] S. Under the evidence Qie real lasne
was as to whether the stock had been improp-
erly fed and watered by the defendant's em*
ployAa.
[13] Under Its contract the carrier was not
bound to feed and water the stock at all,
but, If It nndertook to do It was, of
course boond to exercise doe care to see
that the stock wwe not glvoi poisoned water
or Impure food. LonlsviUe ft Nashville Rail-
road Ca T. Tharpe, 11 Oa. App. 405, &
B. 677. It appeared, from the evidence, that
the carrier did feed and water Qie stock,
The Jury found that it was not guilty of any
n^llgence in reference to the character of
food and water furnished the stock, and
there was ample evidence to Justify this
finding. In view of the foct that the car-
rier undertook to water and feed the stock
and did not rely upon the stipulation in the
contract requiring the shipper to accompany
and care for the stock, this provision in the
contract became irrelevant; but Its adml»-
Blon in evidence resnlted in no harm to the
plaintiff..
[6] 6. In view of the issue upon which the
case turned, it was really not material wheth-
er the plaintiff accompanied the stock or not
The plaintiff proposed to prove that be did
not demand of the carrier a free pass to ac-
company the s^ock because it had been the
practice of the railroads in this section of
the country to refuse to give a pass to ship-
pers of live stock and It was not their cus-
tom to do it
[14] If the stipulation In the contract re-
quiring the carrier to furnish a pass was
valid and binding, no previous practice or
custom could relieve It from this obligation.
It was the duty of the plaintiff to apply for
transportation as stipulated in the contract,
and. If the carrier tailed to furnish It the
shipper's failure to accompany and care for
the stock might be excused. The evidence
falls to show that the carrier refused to fur-
nish the transportation or that any applica-
tion waa made to it by the plaintiff for a
free pass aa sttpnlated in the contraet Geor-
gia Bailroad Go. v. Beid, 01 Ga. 377, 17 &
E. 934.
[7] 7. "OourtB wUl not take Judicial cog-
nizance of Uie schedule of rates filed by a
carrier with the Interstate Commerce Com-
nilsston and published as required by the
acts of Congress." Hartwell By. Go. t.
Eldd, 10 Ga. App. 771, 74 S. E. 810. The con-
tract recites tiiat the rate therein fixed was
less than the maximum rate which the carrier
was allowed to diarge. and that the redue-
tiim In the rate constituted the considera-
tion for the contact There was afflrmatlTe
testtmony by one of the defendant's agents
that the rate charged the plaintiff was less
than the maximum which the carrier was
allowed to cha^ under Its schedule filed
with and approved by the Interstate Com-
merce Commission. There was no objection
to this testimony on the ground that there
was higher and better evidence; and the
finding that the rate charged the plaintiff
was In fact less than the maximum allowed
was demanded.
8. The foregoing deals with all of the ma-
terial questions raised by the record. The
evidence fully authorized the verdict and
there was no error In overruUng die motion
for a new trial
Judgment afflxmed.
On Beheazlng.
The plaintiff in error challenges the cor-
rectneas of the court's constmcdon of,tbe
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OU ArhAVmO COAST ZJNB B. 00. T. TH0MAj9VII«LB LIYB STOCK 00. 1019
contnieC of affreightment and of tbe ruling
nnnoimoed In tbe third dtvislim of tbe opin-
ion. It Is contended tbnt tbe amtnct of cu-
riage under wblch tbe lire stock was trans-
ported was one merely to transport to tbe
end of tbe line of tbe ree^Tlng- carrier and
there to deliver to the defendant company.
This oonstmctlon of the contract Is bssed
upon tbe recital In the record that a contract
of shipment was introdnced in evidence ac-
knowledging the receipt of the car of live
stock from the Atlantic Coast I^e Bailroad
Company, consigned to Howell, Ga., **to be
delivered to such carrier, whose line may be
considered a part of the route to destination ;
it being understood that the responsibility of
tbe Atlantic Coast Line Railroad shall cease
at Bald station when delivered." The At-
lantic Coast I/lne Railroad Company received
the car of live stock for shipment to Howell,
Oa., over Its own line and the lines of such
other carriers as were necessary to complete
the shipment. By the express terms of the
Hepburn act as amended, when the Atlantic
Coast Line Railroad Company delivered ite
recdpt for the live stock, it became liable for
any loss or damage caused by it or by any
other carrier to wblcb tbe live ttxxA was
delivered, or over ^ose Une the property
might pass. It could not by contract exempt
itself from UaUllty thus imposed. Oonse-
qoently tbe Atlantic Coast Line Bailroad
Company became bound, when it received the
goods, to see that tbey were safely delivered
at destloatlon. The recdtal in the contract,
to the effect that its responsibility should
cease on delivery of tbe goods to the Sonth-
en Railway Company at Jacksonville, was
absolutely noil and void. Tbe contract into
which the initial carrier entered became, un-
der the terms of the act of Congress, a
through contract. Moreover, the contract it-
self recited that, In consideration of the
transportation of the stock at the reduced
rate of $69.76 per car, tbe shipper agreed to
release the carrier from liability for certain
acts not amounting to negligence. The rate
thus fixed was a through rate to destination,
which the initial carrier could collect It is
apparent, therefore, from the very language
of the contract itself that the company un-
dertook to transport to destination and was
entitled to be paid therefor. Of course, in
so doing it was compelled to use tbe agency
of certain connecting carriers, but It was
bound to the same extent as If tbe goods bad
been transported over its own line from the
point where It was rec^ved to destination.
We are satisfied that tbe contract of affreight-
ment was properly construed In tbe original
oidnion, and nothing has been presented In
the motion for a rehearing to require any
change In or modification ot the Jodgia^t
rendered.
Rehearing denied.
(Uaa.App.lflD
ATLANTIC COAST LINB B. GO. T. TBOM-
ABTILLK LITE STOCK 00.
(No. 4.866.)
(Court of Appeals ot Georgia. July IS, IOIS.1
(SvUabua by tht Oowrt.)
1. Cabbikbs (I 177*)->AonoM Against Coh-
IfSCTINQ CABBIEB— HePBUBN ACT.
Tbere is nothiDg in the act of CongreBa
known as the Hepburn act (Act June 29, 1906,
c. 3591, 34 Stat 584 l\J. 8. Comp. St. Supp.
1911, p. 1288]), as amended by the Garmack
amendment, which will prohiUt a shipper of
goods in interstate commerce orer the lines of
several carriers from bringing saiL under the
Srovisions of section 2762 of the Civil Code of
910, against the last carrier who received the
goods as "in good order" for damages Bustained
on account of loss of or damage to the goods.
[Ed. Note.— For other cases, see Carriers,
Cent Dig. H 776-789. 781-8&; Dec. I>ig. |.
177.*]
2. Cabbubs (I 186*)— CouuEBci (| 8*)— Bx-
CLUSIVE RlQULATIONB— HSPBUBM ACT.
The purpose of the act of Congress refer-
red to in tbe preceding headnote was to Sz the
liability of interstate carriers and in bo doing
to put an end to the diversity of regulation un-
der state laws on the subject. The act of
Congress is paramount upon tbe subject -vrith
which it purports to deal and supersedes all
state laws upon the same subject. It follows
that, where suit is brought for loss of or dam-
age to goods transported In interstate com-
merce, the rule of liability as prescribed by the
federal act is applicable whether the suit be
brought against the initial carrier or against
one of the succeeding carriers.
lEd. Mote.— For other cases, see Carriers,
Cent Dig. | 790: Dec Ug. 1^;* Commerce,
Cent. Dig. | 6; Dec. Dig. f 8.*]
3. Cabbiebb (S 185*) — Dauaqes to Imxa-
BTATE SHIPUKNT— FbBSDIIPTION AND PSOor.
Where suit is brought against a connect-
ing carrier in interstate commerce for damage
to goods delivered to it by the preceding carrier,
a prima focie case is made for tbe plaintiff by
proof of the reception of the goods by the de-
fendant and of their delivery in a damaged con-
dition. Upon sucA) proof tlie presumption aris-
es that tbe goods were damaged in consequence
of the negligence of the carrier sued. There is
nothing in the act of Congress fixing the lia-
bility of interstate carriers for loss of or dam-
age to goods whi<di would relieve them from
this common-law presumption. Whether in
such a suit, upon proof that the defendant re-
ceipted for the goods as "in good order." the
shipper would, under the provisions of the act
of Congress, be entitled to the benefit of the
conclunve inesumptton arising under the pro-
visions of section 2752 of the Civil Code of 1910
is not decided, since there was no proof in the
present case that the defendant actually receiv-
ed the goods as "in good order."
[Ed. Note.— For other casen. see Carriers,
Cent. Dig. B 836-850; Dec. Dig. f 186.*]
4. Cabbiebs ^185*>— Dauaos to Interotatb
ShIPUXN'T— PBBSCliraON AMD PBOOF— RE-
BUTTAL.
The common-law presumption against the
carrier is rebuttable, and, where a connecting
carrier is sued for damage to goods upon the
theory tiiat the goods were injured by Reason
of improper and negligent handling of the train,
the presumption arising from proof of the re-
ception of the goods by the defendant and of
^elr deliver; in a damaged condition is com*
pletd?' rebutted by aifirmative proof by the de-
•For oUmt cast ssme topte and ssetloa NUigi^^^^^^p^ THS> * Kej->1<^ SatiM A Bep'r ImduM
Digitized by
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18 SOUTHBASTBRN REPOBTSSt ■
fendftnt that it wai not nOtr of lui^aice in
the manner in vUdi t£e train wu handled,
and Uiat the injai? mnet luve zemlted from
■ome cause for which tbe initial carrier and
its agents were exempted from liability under
the contract of aCreishtmtDt. In tbe present
eaae tlie evidence demanded a finding in favor
of the defendant; and it wu error to award a
judgment In favor of the plaintiff.
[Ed. Note.— For other cases, see Carriers,
Cent. Dig. H 835-850; Dec. Dig. { 185.*]
Brror from City Cooit of ThomasrlUe;
W. H. Hammond, Judge.
Actlm by the Tbomasvllle fAre Stock
Company against the Atlantic Coast Line
Railroad Company. Judgment for plaintiff,
and defendant brings error. Reversed.
J. H. Sferrill, of ThomasvUle, and Benset
A Branch and Russell Snow, all of Quitman,
for plaintiff In error. Fondren Mitchell, of
•ThomasTlllfl^ for defendant In error.
PtXPTLB, J. The plaintiff made a Uirou^
contract of affreightment with the Loularllle
A MaehTlUe Railroad Company to transport
a car of live atoclE from a atatlon In the state
of IDlnoia to Tbomagrllle, Oa., orer the line
ot the contracting company and Its connect-
ing carrlara. The last carrier was the At-
lantic Coast Line RaUroad Company, which
dellrered the stocK at destination, (hie of
the horses In the shipment was bruised and
injured, as a result of wblcb It died, and the
plaintiff brought suit against the Atlantic
Coast Iiine Railroad Company, as the last
connectli^ carrier which received the live
stock as "In good order." The petition al-
leged that the Injury and subsequent death
of the horse was due to the careless and neg-
ligent handling of the car by the defendant
company; that, when tbe car left the initial
point of shipment, the stock were In perfect
condition and were so accepted by the Initial
carrier. The contract of affreightment was
In the usual form and exempted the car-
riers from liability resulting from various
causes other than negligence in transporta-
tion. Amongst other things the carrier was
exempted from liability on account of In-
juries received by the animals in conse-
qnence of being vicious or of unruly propensi-
ties, and provided that the shipper would
furnish at his own expense such bedding and
other suitable appliances In tbe car as
would enable the animals to stand securely on
their feet The case waa submitted to the
jndge without the intervention of a jury.
There was no proof that tbe defendant had
received tbe freight as "In good order." The
plaintiff rested his case upon proof of de-
livery to the Initial carrier In good order
and the Injury to the horse while being trans-
ported from the initial point of shipment in
Illinois to destlnatlcm at ThomasvUlet Oa.
The evidence for the defendant showed that
tbe contract of affreightment was made In
oDoslderatloik of a redoced rate of fright
It also offoed ttke testimony of tbe conduc-
tor and other persons who had handled tbe
shipment after delivery to the defendant that
tbe defendant was not guUty of any negU-
gence in reference to the manner In which
the train was handled, and Oiat the stock
were transported In tlie nsnal manner and
without negligence on tbe part of tbe de-
foidant. The trial Jndge entered Judgm^t
for the plaintiff, and tbe defendant excepted.
[1] L In the blU of exc^ons it Is recited
that counsel tor the plaintiff stated in hla
place that the suit was brought under tbe
provisions of section 2^ of tbe CivU Code
against the last connecting carrier which
received tbe ahlpment "In good order.** Tb«
point la made that, as the sblj^ent was made
in interstate commerce, suit could not be main-
tained under tbe above-mentioned section of
the Code against the last carrier, but abonld
have been brought against the initial eairlw,
under the i^vlslons of the act of Gongresa
known as the H^bom act and the Caxnadc
amoudmait to that act The act of Oongreaa
was, under ctmaideratlon 1^ this court In tlw
case of the Sontbem Pacific Go. t. Crmshaw,
6 Cla. AppL ffrs, 6S S. B. 86Gb It waa tben
held that: "While tbe federal atatate fixing
tbe liability of the Initial carrier to tlw
boldv of the Mil ot lading exj^reaaly
sorvea In favor of the ahlpper or owner of
tbe goods all runedles and rlghti of action
otherwise e»i»tinft yet, where the terms of
the statute are directly awUcable, th^ be-
come tbe paramount law on the subject, and
all sUte laws to the contrary are pro tantA
superseded.** In discussing tbe question
Judge Powell, speaking for the court, said:
"In fine, the enactment, so for as it is appli-
cable to tbe preset case. Is merely a declara-
tion by Congress, the lawmaking power bar-
ing paramount Jurisdiction of that subject,
that as to interstate shipments all contracts
tending to vary the carrier's common-law
liability of responsibility to d^tination aa a
tbrbagh bill of lading shall be void. Its ef-
fect is not to give tbe shipper directly and im-
mediately any new right but to cut off from
the carrier a defense it otherwise would liave,
to take away from It a means of avoiding
what otherwise would be only a prima fade
liability.*' It was further noted In the opin-
ion In that case that tbe Hepburn act was
declaratory of tbe common law, In so far
as it Imposed liability upon the Initial carrier
result^g from his acceptance of tbe shipment
for through carriage, and derogatory of the
common law, in so far as it enacted that the
carrier could not exempt himself from the
liability imposed by the act by any contract,
receipt, rule, or regulation. In fine, it was
held in that decision that as to all transac-
tions covered by tbe act It was tbe law para-
mount binding upon the states and supersed-
ing all state statutes dealing with the same
subject-matter.
■Subsequently to the deetBlon of tbls court
*tat etlMr ua« mm mom tople sad MMltoa NUHBBft In Dm. Dig. * Am. Dig. K«r-No. BufSti
Digitized by VJ
e*.) ATLAMTIO CX>ASt UKS iU 00. ▼.
THOUASVILLB LITE STOCK 00. 1021
In Southern Padflo Go. t. Gicsu^w, mpra,
the case of A4aina Expreu Go. v. Oroninger,
226 U. S. 83 Sup. Ot 148, 57 L. Ed. ,
was decided by the Supreme Court of the
rnited States. In that dedaion the court
took occasion to approve the following lan-
guage of this court In the Crenshaw Oaw,
In which this court undertook to set forth
•ome of the reasons which bron^t about the
passage of the national law and made it
paramount: "Some states allowed carriers
to exempt themsolvee from all or a part of
the coDunon-law liability by rule, regulation,
or contract; others did not ; the federal courts
sitting In the various states were follow-
ing the local rule, a carrier being held liable
td one court when under the same state of
facts he would be exempt from liability in
another ; hence this branch of Interstate com-
merce was beli^ subjected to sodi a dlvend.^
of legislative and judicial holding that It was
practically imposalble for a shipper engaged
In a business that extended beyond the con-
fines of his own state, or for a carrier whose
lines were extoisiTe, to know without con-
siderable Investigation and trouble, and even
then oftentimes with but little certain^,
what would be the carrier's actual respon-
sibility as to goods delivered to It f6r trans-
portation from one state to another. The
congressional action baa made an end to this
diversity, for the national law Is paramount
and supersedes all state laws as to the rights
and liabilities and exemptions created by
such transaction. This was doubtless the
purpose of Uie law; and this purpose wIU
be etfectaated, and not impaired or destroyed,
by the state court's obeying and enferciDg
the provislona of the federal lAatnte where
applicable to the fact In such cases as shall
come before them."
The precise ruling made in the Gronlnger
Case was that while, under the provisions of
the act of Cougress, the carrier could not
exempt himself from n^ligence, yet he
might, by a fair and reasonable axemptloii,
limit the amount recoverable by the sh^pp^r
to an agreed value made Cor the pnijiqBe of
obtaining a reduced rateot frdght Indlanw-
•Ing generally the subject of the effect of the
act of Congress, Mr. Justice Lurton, who
delivered the opinion of the court, used the
following language: "That the legislation
supersedes all tiie regulations and policies of
a particular state upon the same subject
results from its general cbfuracter. It em-
braces the subject of the liability <a the
carriw under a bill of lading whldi lie mtut
issue and limits his power to exempt ^^n^^sfflf
by mle, regalation, or contract Almost
every detail of the subject Is covned so com-
pletely that tliere can be no rational doubt
bat that Congress intended to take pMsesslon
ot the subject and supersede all state regula-
tion with reference to it Only the silence of
Congress auOiorlzed the exercise of the policy
power of the state upon the subject of suqi^
contracts. Bat, when Congress acted In such
a way as to manifest a purpose to exercise
its conceded authority, the regulating power
of the state ceased to exist Northern Pacific
By. v. State of Waehlngton, 222 U. S. 870
[82 Sup. Ct 160, 66 U Ed. 237] ; Southern
Railway t. B«Id, 222 U. S. 424 [32 Sup. Ct
140, S6 I/. IDd. 257]; Mondou v. Railroad, 22&
U. S. 1 [32 Sup. Ct 160, 66 U Ed. 827. 38 U
B. A. (N. S.) 44]. To hold that the liability
therein declared may be increased or dimin-
ished by local regulation or local views of
public policy will eithn make the provision
less than supreme or Indicate that Congress
has not shown a purpose to take possession
of the subject The first would be unthink-
able and the latter would be to revert to the
uncertainties and diversities of rulings which
led to the amendment The duty to Issue a
bill of lading and the liability thereby assum-
ed are covered In full, and, though there Is
no referoioe to the effect upon state regula-
tion, it Is evident that Congress Intoided to
adopt a uniform rule and relieve such con-
tracts from the diverse regulation to wbldi
they bad been tberetirfore subject"
The question is whether the act of Con-
gress, as Interpreted by the Supreme Court of
the United States, so far supersedes all state
legislation as to prohibit a shipper who
has been injured by loss of or damage to
goods carried in Interstate commerce, from
proceeding directly against one of the con-
necting carriers which ^ther actually or
presumptively received the goods "as in good
order." Indeed, the act Itself contains a
provision that nothing In it "shall deprlTe
any bold^ of such receipt or bill of lading
of any remedy or right of action which he
has under existing law." Here is an express
dedaraUon by Congress, preserving to the
shipper all remedies existing under state
laws; and this, of course, must mean all
remedies which are not in conflict with that
prescribed by the national act The act par-
ports to regulate the carriage of goods in
interstate commerce and to fix the liability
of the carrlor In case of the loss of or damage
to the goods, but It does not Interfere with
«r abrogate any remedy whldi Oie ibtsfpet
has under state law. Section 2752 of our
Civil Code authorizing salt against the last
carrier recdvlng goods "as in good order"
is not, as applied to shipments from beyond
the stat^ h. regulation of Interstate com-
merce so as to be repugnant to the commerce
clanse of the Constitution of the United
States. Kavnnans^ & Go. r. Southern By.
Co.. 120 Ga. 62, 47 S. 0. 626, 1 Ann. Gas. 705.
The statute Is designed merely to make it
more certain that railroad companies will
perform the daty, resting upon them as public
carriers, to use the utmost care and diligence
In the transportation of goods. There Is no
provision In the act of Congress that suit
against the Initial carrier shall, be the . ex-
clusive remedy for the offended ^pper ; nor
Digitized by Google
1022
78 SO UTUUASTSIRN BBFOBTBB
(Ga.
Is OXBTB anything In that act that either
expressly or by necessary ImpllcaOon would
prohibit the shipper from proceeding against
one of the initial carrier's agents who had
damaged the goods while being transported
over its line. Under the law of this state,
the initial carrier who makes a through con-
tract of affreightment may be sued for fall-
are to deliver at destination; or the initial
carrier's agent, a connecting carrier, may be
sued for any injury or damage which occurs
to the goods while being transported over
the latter's line. The act of Congress pro-
vides merely for suit against the initial
carrier and does not take away the right of
the shipper to proceed in a proper case
against a connecting carrier.
2. A through contract of afFr^ghtment
made by one carrier to transport to destina-
tion over the lines of several carriers is
binding upon all of the succeeding carriers
to the same extent as It is upon the initial
carrier. In such a case the connecting carri-
ers are merely the agents of the initial carri-
er, and, when sued, are entitled to the benefit
of any contractoal exemption which the ini-
tial carrier would have been allowed to plead
bad be been sued for the failure to trans-
port safely. Cranor v. Southern Ry. Co., 78
S. B. 1014.
[2] The act of Congress was designed to
put an end to diversity of regulations and
ruling by the state authorities upon the ques-
tion of liability of an interstate carrier for Its
failure to transport goods In accordance with
its contract. The provisions of the act,
where applicable, should be applied as well
where the suit is against the initial carrier's
agent as where brought directly against the
initial carrier. So that a suit under our
statute against the last connecting carrier
In no wise destroys the harmony wtiich was
intended to be brought about by the act of
Congress. If the goods are shipped In inter-
state commerce, then the act of Congress
applies without reference to which carrier
the shipper elects to proceed against to re-
cover any damages which he has sustained.
If he elects to proceed against the last con-
necting carrier, the latter can plead any con-
tractual exemption which the initial carrier
might be entitled to rely on. And as to this
matter tbe federal act and the decisions of
th9 Supreme Court of the United States
construing it are binding upon tbe state
courts, without reference to tbe carrier who
may be proceeded against for any damage
wfaidi may have been sustained. The act of
Congress created no new remedy. The shipper
could always sue the Initial carrier, but the
federal act was designed simply to fix the
liability ot tbe carrier of goods in interstate
commerce and make the rule of liability uni-
form throughout the several states. As to
this matter the act of Congress Is paramount
and tbe dectelons of the federal Supreme
Court are ■ controlling. For example the
court! of Uils state have always htid tbat
a mwe statament of value of goods delivered
to a carrier for transportation, although the
shipper received a reduced rate of freight, is
a mere arbitrary preadjustment of damages
and not blnVling upon Uie shipper, and that
he could recover the full value of the goods
lost by the carrier. In tbe absence of a bona
fide agreement in reference to value. In the
act of Congress, as construed by the Supreme
Court of the United States in the Adams
Express Company Case, supra, and In sever-
al later decisions, such a 8ttpulatl<m in a
contract of affreightment is binding upon the
shlpiier. As to this and similar matters
affecting the question of liability of an inter-
state carrier, the decisions of the Supreme
Court of the United States must be regarded
as controlling.
[3] 3. There Is neither allegation nor proof
tbat the defendant company actually re-
ceived the live stock as "in good order." Up-
on proof of the reception of the goods by it
for transportation and delivery at destination
in a damaged condition, a presumption arose
that the injury to the stodc was tbe result
of the defendant's n^llgence. If the suit la
predicated upon the carrler'a common-law
obllgatloD to transport safely, the defendant
is presumed to liaTe received the goods In
good order ; but this presumption Is not con-
cluslve and may be rebutted, and the carrier
may be relieved of Its ^fect by proof that It
was not in fact negligent If the carrier ac-
tually receipted for Uie goods as *in good
ordor,** this presumption of negligence be-
comes conclusive on proof of Injury to the
stock. Hartwell Ry. Go. v. Kldd, 10 Ga. App.
771, 74 S. E. 310. It is argued that. If the
provisions of the act of Congress are appli-
cable, there is no presumption against the
carrier. There was no proof in the present
case that tbe defendant actually receipted
for tbe goods as "in good order" ; and hence
It Is unnecessary to inquire whether, If this
had been done, tbe shipper would, under the
act of Congress, be entitled to the benefit
of the conclusive presumption arising under
the state statute. There is certainly nothing
In the act of Congress which was designed
to relieve the carrier of the presumpUon of
the common law. Under that act, as well
as under the state law, tbe shipper makes
out a prima fade case by proof of delivery
in good order and the subsequent loss of or
damage to tbe goods, and the burden of
proving that It was guilty of no negligence,
and that damages resulted from some act for
which it was not liable under the law, or
under some contractual exemption lawfully
made by the shli^er, is upon the defendant.
[4] 4. The plaintiff elected to sue the last
carrier. It relied upon proof that tbe goods
were received by the carrier, and tliat one of
the horses was delivered by It In a damaged
condition. This raised a presumption against
the defendant, and. If nothing more had ap<
peared, would bave Authorized a recwery
Digitized by VjOOglC
BNIDXB A WBIOHT T. SALTER
1023
In beliBlf of the plaintiff. But the defendant
completely rebntted the presnmption which
arose against It npon the prima fade case
made by the plalntifl. The negligence relied
on In ttie petttiim was the improper handling
of the car upm whidt the injnted horse was
being transported. Proof of flu reception
of the horse by the defendant and of Its de-
livery In a damaged condition raised a pre-
sumption that the defendant was negligent
as alleged In the petition. But this presumj^-
tlon was rebutted by the testimony for the
defendant, which completely exculpated the
defendant from any charge of negligence In
handling the train and demanded a finding
that the injury to the horse was due to
some cause for which, under (he contract
of affreightment made with the initial car-
rier, it and its agents were exempted from
liability.
Upon the merits the case Is controlled by
the decision of this court In Georgia South-
ern Ry. Co. T. Greer. 2 Ga. App. 616, 58 S. E.
782, where It was held that : "Where it ap-
pears that the cars in which the stock was
carried were suitable, that the track was
in good condition, that the equipments and
appUaneea of the train were adequate, and
that there was no fault or negligence in any
respect on the part of the carrier in handling
the stock, or In the running and management
of the train, or In the exercise by the serv-
ants of the carrier of that degree of care de-
manded by the terms of its contract and re-
quired by the natore of the stock, any pre-
sumpUon of negligence would be fully rebut-
ted, and the carrier would not be liable for
loss or damage to the stock vrtiUe in trans-
portatioQ."
The defendant was liable only for the con-
sequences of Its own negligence, and, as the
evidence demanded a finding that it was not
uegl^ent as alleged in the petition, no recov-
ery could be had against it. If the suit bad
been brought against the initial carrier, it
would have been liable not only for Its own
negligence but for the negligence of its
agents, the succeeding carriers. Having
elected to sue the last connecting carrier up-
on the theory that Its negligence caused the
damage, the plaintiff must take the conse-
quences of proof by the defendant that it
exercised due care and diligence In handling
the stock after they were delivered to It.
The evidence demanded a finding In favor of
the defendant, and the court erred In award-
ing Judgment in favor ot the plaintiff.
Judgment reretsed.
OS Oa. App. 170)
BEAD T. BTATD. (No. S,04(D
(Court of Appeals of (Seoigla. Aug. 11. 1818^)
Dbitiai. ot Naw Tuai..
The evidence, althoa^ weak, was snfficieB*.
to satisfy the jury, and, as no error of law ^
•Tot oUitr omm m* wme topia and Motion NUU^^'
complained of, the 'Ja^pBMit rsfnrtng a new
trial must be affirmea.
Error from Superior Court, Fulton Coun-
ty; Ij. S. Boan, Judge.
Herbert Bead was convicted of ciim^ and
brings error. Affirmed.
S. C. Crane, of Atlanta, for plaintiff in er-
ror. Hugh M. 'Dorsey, Sol. Gen., and Ei A.
Stephens, both of Atlanta, for the State.
HlUi. 0. J. Afllrmed.
(U Gs. App. 154)
AIiPINE SAFE & LOCK CO. v. W. B. PAB^
SONS ft BRO. (No. 4,741.)
(Court of Appeals of Geo^ia. Aug. U, IdX^)
fSylUtbiu by the Court.)
1. Saus (f 288*)— Acnon bt Skllxb— Di-
ntNSB— Bbbaoh or Wabbantt.
In case of an express warranty that the
property sold is of a particular kind and qual-
ity, the purchaser has the right to rely on the
warranty, and may plead total or partial fail-
ure of consideration on account of defects dis-
covered after acceptance, even though they
would have been dlscovend by an examination
before delivery. Cook t. rinch, 117 Ga. 541,
44 S. B. 96.
[Ed. Note.~For other cases, aee Sales, Gent
Dig. SS 817-823; Dec^ Dig. S 288.*]
2. Sales ({ 288*)— Acrrxov bt SBLum— Di-
FBHSB.
The giving of a note for the purchase
price will not estop the buyer from pleading
failure of coosidemtion, although the note was
given after the discovery of the defects, where
the seller promised to repair the defects and
failed to do so. Moultrie Bepair Co. v. Hill,
120 Ga. 731, 48 S. E. 143 ; Bobson v. Weath-
erly Lbr. Co., 12 Ga. Am. — 78 S. E. 010 ;
Burr V. Atlanta Paper 00., 2 Qa. App. SSt, 68
S. B. 873.
[Ed. Note.— For other cases, see Sales, Oent
Dig. SI 817-823 ; Dec. Dig. S 288.*]
3. VBBniCT SPSTAINED.
The verdict for the defendant was sup-
ported by the evidence, and no error of law is
complained of.
Error from City Court of Statesboro; H.
B. Strange, Judge.
Action by the Alpine Safe ft Lock Company
against W. B. Parsons ft Bro. Judgment for
defendants, and plaintiff brings error. Af-
firmed.
Bemer Proctor and Homer 0. Parfeex; both
of Statesboro, for plaintiff in error.
HIIA OL J. Judgment affirmed.
(U Oa. App. 157)
SNIDER ft WBIGHT v. SAI/TBB. (No.
4,792.)
(Court of Appeals of Georgia. Aug. U. 1913.)
(SvlUbiu »y the Court J
Appial and Ebbob (8 9S6*)— DiacBxnoHABT
RnuKo— GBANTHfo New Teiai,.
A case went to the trial calendar under
the local rule, and while on that calendar the
, attorney far the defendant obtained from tlie
'^pM. Dls. * Am. Dig. Ksr-Ne. SerUs ft Rep'r Indms
Digitiz'ed by Google
T8 SOUTHEAflTWBN EIBPOBTBH
<0a.
S residing Jnda* • Imtc of ftbaence. wUdi, on-
Bf the rale, had the effect of cheeking or sne-
pendinr tbe trial of the case antU the ezpfra-
tlm ox th* leave of absence, and nntO after
the giving of due notice to hare the case re-
nune its place on the trial calendar. During
the ahsence of the attorney for the defendant
under his leave, the attorney for the plaintiff,
'without notice to tbe absent attorney or his
client, bad the case called for trial and ob-
tained a verdict for the plaintiff. On the re-
tom of the attorney for tbe defendant after
the expiration of his leave of absence, he for
the first time discovered these facts. Xt was
then too late to file a regular motion for a
new trial. Ihiring the term of the court at
whidi tbe verdict was rendered and judgment
entered, but beyond the time limit for the filing
of a regular motion for a new trial, the de-
fendant filed a motion in the nature of an ex-
traordinary motion for a new trial, setting out
the forejroing facta, and asking that the verdict
and judgment be set aside and a new trial
granted. Held, that tbe discretion of the trial
court in entertaining the motion for a new
trial on extraordinary groaads and In gxantlng
a new trial will not be distttrlwd.
[Bd. Note.— For other cases, see Aptwal and
Error, Cent. Dig. f| SSIO^ 8891; Dee. Dig.
I 956.*] ^
Error &om Superior Gotui; Fnlton Ooan-
ty; W. D. Snus, Judge.
Acticm by Snldw & Wtlgbt agafaiat Annie
Saltor. A iuOg^amt fotr lOalntm waa set
aside, and a new trial granted; and plalntUfS
bring error. Affirmed.
Stheridge & Etheridge, B. H. Harris, and
Alvln Ridiarda, all of Atlanta, for plain-
tiffs in error. Mayson & Johnson, of Atlaur
ta, for defandant In error.
HZLIk CL X Judgment afflrnnd.
(U Oa. App. US)
BBOTTGHTON t. JOS. LAZABI70 Oa
(No. 4,563.)
(Oonrt of Appeals of Georgia. Aug. 11, 1EK18.)
fSyllahUM hv the Court.}
1. Principal and Subett (S 35*) — Biixs
AND Notes 40S*>»OONBtDKBATXOff— Bub-
nxR or Proof.
Tbe decision Id thla case is controlled by
tiia ruling of thla court In Lacey v. Hutcbln-
•ott. 0 Ga. App. 666, 64 S. B. 100, and Smith v.
mghtawvr, S Ga. App. 197, 68 S. £. 688. The
aoCes were.nnoonditional eontiaets under seaL
They recited a consideration, and this pat up-
on the defendant the burden of proving that
they were without consideration, which she
failed to carry. . It appeared from the undisput-
ed evidence that the defendant became a sure-
ty, and that indulgence was extended to her
principal. This was sufficient consideration for
the contract of snretyahip.
fEdi Note.— For other eases, see Principal
and Surety, Cent Dig. | 68: Dec Dig. | SO:*
BilU and Notes, Cent. Dig. H 16^1662;
Dec. Dig. I 498.^
2. Peinoipai. Ann Stranr <| 41*)— Lusmnrr
of Scbbtt— Bianrs or Ceeditob.
A creditor is not affected by the acta of
the principal or (tf any other person than the
creditor himself, by which one is Induced te
become a surety, even though the acts of auch
third parties be fraudulent Nor are the rights
of the creditor affected by the conditions or
agreements which may Infinence one to become
a sqrsty for the principal debtor.
[Ed. Note. — For other cases, see Principal
gd ^Surety, Cent. Dig. H 7&-81; Dec. Dig. f
8. PBlNCrPAL APTD Sdbbtt (| 41*)— Liabiu-
TT of Subett— Riohtb or Gbbditob.
Tbe evidence failed to abow that the plain-
tiffs had any knowledge of the agreements or
conditions by virtue of which the defendant
was Induced to become a surety antil after
they bad accepted the notes. The eommoaica-
tion with an agent of the plaintiffs, to which
tbe defendant testified, appears, without con-
tradiction, to have taken place in August, while
the plaintiffs accepted the notes on the previ-
ous Jaly 24th.
[Ed. Note.— For other easest see Prinapal
and Surety, Cent Dig. H 78-81; Dec. Dig. 1
41.*]
Error from City Oonrt ot UoBas; flbdKA
Graham, Jndge.
Action by tbe Jos. Laaams Cranpany
against Mrs. M. P. Brooghton. Jodgmoit for
plaintiff, and defendant btings error. Af-
Ormed.
W. B. Smith, of HcRae, and Wboten &
Griffin, of Eastman, for plaintiff In error.
John R. li. Smith, of Macon, and Max K
McBae, of McBae, for defendant In error.
RUSSELL, J. The evidence demanded the
verdict, and there was no wror la refusing
a new trial.
Judgment afBrmed.
*Porotfe«ri
I sea BBKo tspfs aad saottoa NUlf BBR la Dae. Dig. 4 Am. Dig. Key-No. Serlts ft ftep'r IndssM
Digitized by Google
OTBBOS T. BXTHBA.'
1026
<w8.a.«m
OIBSON T. BETHKA st aL
(Sapnnu Coort of South OaroUiUL Jnlj
■ 19130
1. JtiTHxmra (I l89*)-^Oninm DnAVU—
DucBsnON or Ooubi.
A mortgagee, vbo was made a defendant In
• foreclosure autt, asked to have Ita inort«:ag«B
foreclosed; bnt its answer was not served on the
mortgagor. Judgment foreclosing the mtfftgages
WM rendered on default On motion the court
Tacated the judgment in part, and ordered that
the answer be serred on the mortgagor. Held,
that it was for the trial court to determine
whether there was any real controveray, and
whether the mortgagor had "her day in court,"
without going into Uie merits, and, if it decided
both questions in the affirmatlTe, it could open
the d«Eaalt, and its diacretioa woidd not be dla-
torbed.
[Ed. Note.— For other casc^ see Judgment.
Cent Dig. IS 265-268; Dec Dig. | 139.*]
2. Pleading 332*)— Answeb ob CROsa-Cou-
pi^NT— Sesvicb oh Codefbndant.
A defendant is not required to serre its an-
swer on its cod^ndant where the relief asked
arises out of the facts uleged in the complaint;
but. when the answer asks affirmative relief
against a codefendant, it must be served, or the
judgment rendered thereon maj be set aside^
[Ed. Note.'-Tor other cases, see Pleading;
Gent Dig. H 1008-1010; Dec Dig. | 332.*]
8. MOBTOAOn a 681*>— FoaiGLOBinB--OPBZT-
IMC DBFAULT— OPBUTIOn ASD BlTBOI— AT-
tobnbt'b Fees.
Where a judgment foreclosing a mortgage
was vacated, the court rightly held that the at-
torney's fee of the mortgagee a attorney was not
due at the time of the order of vacation ; attor-
ney's fees being at most in the discretion of the
court.
[Ed. Note.— For oOier cases, see MorUcages.
Cent Dig. H 2UH. leOfr-lOTO; Dec Dig. |
681.*]
Appeal from Oommon Pleas <Hrcalt Oourt
of Marlon County; 8. W. O. Sblpp, Judge.
Action by Rebecca A. Gibson, as guardian
of George H. Hyman, and others against
Florence A. Bethea and tiie Bank of Marlon.
From an order setting aside a Judgment in
fiiTor of the defendant, Bank <^ Marlon,
against Iti codefendant, Florence A. Betfaea,
'defend^t Bank of ICarlon appeals. Af-
firmed.
L. D. LIde, of Marion, for appellant
George E. Dargan and Jamea R. Coggihall,
botb of Darlington, for respondent
FRASER, J. [1 ] The following statement
of facts appear in the "case'*: "This action
was brought by the plalntifC to foreclose a
mortgage giren to her by ttie defendant
Florence A. Bethea. Bank of Marion was
made a party defendant, because It held two
mortgages on the premises given by Its co-
defendant Florence A. Bethea. One of these
mortgages had been given to Atlantic Nation-
al Bank, and anbseanently was assigned to
Bank of Marion* and there la no controTer«y
as to this mortgage. On April 10, 1911, ^
decree for forecloaore was granted. On
December 27, 1011, notloe was given 'Iq^
*ror oth^ eases as* same tople and HoUoa KClc^
788.S1.-6B
ence A. Betbea, ttaroogjh bar attorneys, tbat
she would move on the first day of the next
term ot th(| coort of common pleas for
Marlon county to yacate and set aside the
aald decree, and that she woiild tuove on
January 4, 1912, for an order staying the pro-
ceedings until the motion to vacate the judg-
ment could be heard. Judge Shipp granted
an order staying the proceedmgs, and the
motion to vacate the Jndgm^t was to have
been heard at the next term of court ; but,
by agreement of counsel, it was taken vp at
chambers on June 27, 1912. On September
27, 1912, Ju<^ Shipp passed an order ad-
judging that the decree herdn. In so far as
it relates to the note and mortgage made
Floroice A. Bethea and her husband, P. Y.
Bethea, to Bank of MartoUi be vacated and
set asld^ and that Bank of Marlon be re-
gal red to serve upon the said Florence A.
Bethea Its answer in this case. Bank of
Marlon gave doe notice of appeal trom this
order, and the case comes before this court
upon the exertions set forth In the record."
The defendant Baxik of Marlon did not
serve its answer on its codefendant, Mrs.
Bethea, although Its answer asked for the
foreclosure of its two mortgages. Mrs.
Bethea admits the plaintlfl's mortgi^ and
one of the defendant's mortgages, bnt denies
the other. Judge Shipp opened the default
as to the disputed mortgage From this or>
der. Bank of Marlon appealed.
It will not be necessary to consider the
exceptions separately. They aU question the
right of the judge to open Uie default and
modify the judgment and are all overruled.
It was a matter of discretion. It appeared
from the idiowing made before him that
there was a real issue between Mrs. Bethea
and Bank of MarloiL It was not his prov-
ince to determine the facts upon the showing^
but to determine whether there was a real
controversy or not, and wliether she had
had "her day In court** He found tbat
thwe was a controveray. This is indlspat-
able. He found that she has not had her
day in court She has not
[2] It Is said that defendants are not re
quired to serve their answer on their code-
fendants when the relief granted arises out
of the facts alleged in the complaint Tbat
is true; but when they have an answer In
which aCBrmative relief Is asked against the
codefendant, and do not serve the answer on
the defendant, they axe liable to have the
judgn^t set aside.
[3] Having held that, the order was within
the discretion of the circuit judge, and that
there was no abuse of discretion, no other
question raualns, except to say that he was
also r^t in holding that the attorney's f«e
was not due at the time of the order, Tb»
tecent case of Coley v. Coley, 94 S. G. page
gg3, 77 B. E. 49, shows that an attom^'s fOe
^ q£ 10 per cent 18 not a matter of course,
'p^XMg.aan.Dlt.Ktr-MaBNlMARap'rlndaaH
Digitized by
Google
1026
78 80UTUnA.STB)RN BBPpBTBB
«Ten tboQgh proTlded for In tbe note and
mortgage.
. The order appealed from Is affirmed.
GABT, a J.t concord.
HXDBIO^ J. The role In eqnltr la> ttiat
the coort can adjust equltiee between de-
fendants, when they arise oat at allegations
In ttw. complali^ aiqqiiorted by proot Bat
wben one defendant seeks afllnnatlTe relief
against another, which does not bo arise, he
most serve a cross-answer, stating the facts
out of which the relief which be prays for
arises. The complaint alleges that Bank of
Uarlon "claims a Um npon said premises
prior to plalntUTs lien, by virtue of certain
mortgages on said premises, one of which
said mortgages • • • was assigned and
transferred to Bank of Uarion by the Atlan-
tic Matloial Bank." This saffldently alleges
tbAt said bank held at least two mortgages
over the premises to warrant the conrt in
giving Judgment thereon, In the absence ot
any defense. Parties should not be allowed
to trlSe with tbe court by falling to answer
and defend under such an allegation, and,
whm Judgm^t Is given against them, seek
to set it asidb
I concur In affirming ttie order appealed
from, because this motion was based upon
other groands which warranted the coort in
granting it. '
WATTS, J., concurs.
(K S. C. S47)
SMXLY et al. v. COLLETON GTPBBS3 GO.
(Sapreme Court of South Carolina. July 30,
IfllS.)
L Trespass (| 67*)— Nomsuit— Cibcuhbtan-
TZAL ETIDCNOI.
In an action for trespass, where all tbe cir-
comBtances, considered as a whole, showed that
the plaintiff was in posseaaion, a nonsuit was
properly refused, even though no one of the cir<
cumstancei wag snfBcient.
[Bd. Note.— For other cases, see Trespass,
Cent. Dig. f 160; Dec. Dig. S 67.*]
2. Tbksfass (I 67«) — Question fob Jubt —
PossESsioiT or Plaintiff.
In an action for trespass, it was a question
for the jury whether the plaintiflPs possession
was continuous, or In the nature of repeated
trespssBea.
[Ed. Note.— For otiier cases, see Trespass,
Cent Dig. I XCSO; Dec. Dig. | e7.«l
8. VlNDbB AHD PtJBCBASBB (| 24S*) — BOHA
FiDB PnBflHABIBB— BlOOBDft— MaIUBB OT DI^
ISRSB.
In trespass, the defense of innocent pur-
chaser fbr value, under the recording acts, pre-
sents a and not an equitable, issue.
[Ed. Note.— For other cases, see Vendor and
Porchaser, Cent. Dig. S 612 : Dec Dig. | 24S.*]
4. Tendob and Pubohaseb (I 231*)— Bona
Fms Pubchasbbs — Bboobds— Pebsons Ar-
RCIXD.
The defense of innocent purchaser for value,
oader the recording acts, does not appiy m an
action for trespass, i^ere tte partlss do Bot
claim from a common source of title.
[Ed. Note.— For other cases, see Vendor and
Purchaser, Cent Dig. H 48,60^ 487, C18-089;
Dec Dig, I 28L*]
Appeal from Common Pleas CSrcolt Oonrt
of Colleton County ; G^rge B. Prince, Judge.
Action by C. M. Smyly and others against
the Colleton Cypress Company. -Judgment
for plainttltB, and defoidant appeals;. Af-
firmed.
Howell & Grober, of Walterboro, for ap-
pellant H. B. Padgett and Padgett, Lemacfes
ft Moorer, all of Waltarboro, for respondents.
GABT, C. J. This is an action of qnare
clausum fregit, to recover actual and punitive
damages for trespasses, alleged to have been
committed on 448 acres of swamp lands, of
which the plaintiffs alleged that they were in
possession, and were the owners in fee The
defendant denied, generally, the allegations
of the complaint and set up as a defense that
It was a porchaser for valnabld consideration
without notice, actual or constructive: At
the close of the plaintiffs' testimony, the de-
fendant made a motion for a nonsuit on the
ground that Uie plaintiff totally failed to
prove actual possession of tbe proi>erty In
dispute, and on the further ground that they
failed to prove legal title to the said property.
His honor the presiding jodge refused the
motion, on the ground that, although the
plaintllfs had failed to show titie In them-
selves, nevertheless there was testimony tend-
ing to prove that they were In possession of
the property at the time of the allied tres-
passes. The jury rendered a verdict in favor
of tbe plaintiffs, for HOOD, whereupon the
defendant made a motion for a new trial,
which was also refused. The defendant then
appealed.
[1j The flrat question that will be con-
sidered ts whether there was any testimony
tending to sliow that tbe plaintiffs were In
possession of tbe lands at tbe time of tbe
alleged trespasses. The plaintiffs relied npon
a number of fiicts and circamstanees, and.
while no parttcalar one Is soffldait to show
that they were In possessirai of the lands at
the time mentioned, nerothelesB, when the
facts are considered as a whole^ they satisfy
us that the nonsuit was iHni>erly refased.
Hie role Is thds stated In fiallroad r. Part-
low, 14 Blch. 237: "It may be that ira ons at
the facts vronld, of Itsd^ warrant the In-
ference atad yet wbffi taken together, they
may piodace b^ef, which Is tbe object of all
evidence." In Greenl. Br. f Ola, it is said:
"It is not necessary tSiat the evidence sboald
bear direct]^ apon tbe Issna It la admissible
if it t»ds to prove the Isso^ or constttutes
a Unk In ttie chain of imx^ alttaoogh alone It
might not josti^ a verdict In accordance
with it"
[2] It was pecoHarly a question to be de*
termined by the jury whether the possession
•Far otbw. eMw ms suae tople and sMUon NUMBHB in Dm. Dig. a Am. Dig.
IfEROK T. UEKOK
lOST
of tlw plalntUh mm coattnnotM. or In the
nature of repeated treepaBsee.
We bare not dlscoBsed the testimony In de-
tail, as it would unnecessarily prolong the
opinion, and subserve no useful purpose.
The next question that will be considered
la whether there was error on the part of
his honor the presiding Judge, In ruling that
the doctrine of innocent purchaser tor ralue
without notice has no application, where peo-
ple claim from different sources.
[a] The defense of purchaser for value
wlthont notice, when it arises out of the re-
cording acts, presents a legal issue to be de-
termined by the Jury. Gr^ory t. Ducker, 81
S. O. 141, 9 S. B. 780 ; Hodges t. Kohn, 67
& G. 69, 45 S. E. 102; 2 Pom. Eq. Jur. { 736.
[4] But whether considered in its le^ or
equitable aspect, It Is not applicable to this
case, for the reason that, as stated by his
honor the presiding judge, the plaintiffs and
defendant do not claim from a common source
of titles The rule Is thus stated In 2 Pool
Eq. Jur. I 658: "It Is not every subsequent
purchaser who comes within the purview of
the statute. Hie mere fact that subsequently
to the r^lstwlng of a deed of certain prem-
Isec a third person purchases the same prem-
ises from any source of title, from any gran-
tor wlntsoevw claiming to own than, does
not render the purchaser necessarily charge-
able with notice of the prior recorded con-
veyance. Tbe mil subsequent purchaser,
who Is charged with notice of the record of
a convince is one who datms nnder the
same grantor from the same source of titles.
If two titles to the same land are distinct
and conflicting, the superiority between
them depends, not upon their being record-
ed, but upon their Intrinsic merits. It is
a settled doctrine, therefore, that a record Is
only a constructive notice to subsequent pur-
chasers deriving title from the same gran-
tor." In section 735 of the same volume, It
is also said: "This section will d^l with
the equitable doctrine of bona fide purchase,
for a valuable consideration and without no-
tice; The doctrine in its original form was
purely equitable. Questions of priority can-
not, as has already been stated, arise between
successive adverse estates, which are purely
legal, and therefore cannot, Independentiy of
statutory permission, come before courts of
law for settlement ; such estates must stand
or fall upon their' own intrinsic merits and
validity. ▲ contest concerning priority or
precedence, properly so called, can only ex-
ist where one of two claimants holds a l^al,
and the other an equitable, title or when
both hold equitable tiUes, and must therefore
belong to the original Jurisdiction of equity.
Courts of equity do not have Jurisdiction of
suits brought merely to establish one purely
1^1 title against another and conflicting
legal titlfc" The principle was announced
in Martin v. Quattlebaum, 3 McCord, 205,
that a deed to laad !■ not iffectM In any
way by not being recorded, except as to sub-
sequent purchasers from the same grantor,
the court concluding its opinion as follows:
"The law never meant anything so absurd as
to say that U a man sold his land and made
a tiUe for it, whldi should not be recorded,
that such title should be destroyed by an-
other making a tiUe to the same land and
having it duly recorded." This doctrine was
afllrmed in Youngblood v. Keadle, 1 Strob.
121. In that case Mr. Justice Wardlaw dis-
sented, on the ground that the act of 1698 (2
St. at Large, p. 137), which was then under
consideration, did not limit Its application
to those cases in which the parties claimed
from a common source of tltie. He, however,
thus succinctly stated the general object of
the recording acts: "A registry is designed
for public information, ahd It can be searched
only by indexes referring to names. Mo
search would usually disclose conveyances,
made by unknown third persons, of the same
property which has been mortgaged or sold
by an instrument whose validity Is under in-
vestigation; and often the conveyance of a
third person, if found, althoui^ containing
the same property, might not afford the
means of tudentiflcation." See, also, Rich-
ardson V. Atlantic Coast Lumber Corporation,
93 8. C. 254. 70 8. m 371.
The cases are in accord with the general
doctrine elsewhere In 39 Cyc. 1721, we flnd
the following: **It la Bometimes said that the
record of a conveyance which is entitled to
be recorded Is constructive notice to all the
world. Bat this la too broad and unqualified
an enunciation of the doctrine. It la con-
structive notice <mly to those who ate boimd
to search for It, subsequent purchasers clalin-
Ing under the sajme grantor, or through am
who Is the common source of title." At page
1728 the same author says: "The record of
an Instrument not In the chain of title
through which Uie purdiasw claims la not
constructive notice to the purchaser ; the rec-
ord being notice only to those who claim un-
der or though the same grantor.**
Judgmoit affirmed.
HTDBICK, WATTS, and FBA8BB, JJ«
concur.
BfEBCK et al. T. MERCK et aL
(Supreme Court of South Carolina. July 29,
1913.)
1. Dkedb (H 53, 66*)— Actxok—Dkuvebt —
quibtion vok jobt.
In an action by the helra of BI. to recover,
as his heirs, land, evidence held sufficient to war-
rant submitting to the jury the Issue whether
there was a complete execution and delivery of a
deed to the land by H. before his death.
. [Ed. Mote.— For ottier cases, see Deeds, Cent.
Dig. H 127, 633 ; Dec Dig. 8S 53, 6«."J
•For ottier cmm sm ume toplo end mcUoq NUMBft^ \a Dec Dlf. A Am. Dtf . KBr-I|^ ^arl^^ft ^3'Cjt^f^?TC
im
78 SOTTCHfiAJS'TfCBN RB]?ORTBIB
S. APFUI. AUK SiMMB <M 218*>-OBJBCnaR
Bklow— KicxsaiTT.
Althongh it wai error to sabmit to the jury
the issue whether plaintifib were estopped to
deny the delivery of a deed to defendant's grantor
because of a waivfr of this defense by defend-
ant this was waived as a ground of appeal by
plaintiffs' foiling to aOl the court's attentioa to
such error.
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. Sf 1148, 1165. 1304-1306 ; Dec
Dig. i 213.*]
3. EsTOPPKL (i 110*) — BsToi;PBi. IN Pais —
PUBADINO.
In an action by the heirs of M. to recover,
as his heirs, land, the defense Uiat the heirs
were estopped to deny the delivery of a deed by
U. because M. made a deed complete on its face,
and left it where the grantee named therein could
easily take it, thereby inducing defendant to ac-
cept bim aa the real owner of 'the land, is estop-
pel in pais, and need not be specially pleaded.
[Ed. Note.-— For other cases, see Estoppel,
Cent Dig. J 800 ; Dec. Dig. S HO.*]
4. Vendor and Pubchaseb (( 240») — Bona
EiDB PoECHASKB— Pleading.
A defense of bona fide purchaser without
notice is an equitable defense, and must be spe-
cially pleaded.
[Ed. Note.— For other cases, see Vendor and
Pordiaaer, Cent Die H 601, 602; Dec. Dlff. {
S4a*]
Appeal from Common Pleas Circuit Court
of Pickens County ; B. W. Memnalnger,
Judge.
Action by Daniel M. Merck and others
against Lawrence C. Merck and others.
From a Judgment on a verdict for defendant
W. B. Mann, plaintiffs appeal; Affirmed.
Cothran, Dean ft Cothran, of Greenville,
and J. B. Breazeale and JuUus B. Bogge,
both of Anderson, for appellanta Jamet P.
Care7t oC Pidcen% 'for respondent
QABT, O. J. THIS la the third appeal here-
in; the first l8 reported In 8S S. O. 829, 66
8. B. A47, 187 Am. 8t Bep. 81B. and the sec-
ond In 88 S. a 847, 71 8. B. 969, Ann. Cas.
1913A,937.
The following statemeat appears In the rec-
ord: *Tbis Is an action Instltnted In the
court M common pleas for Picikau connty on
Deeonber 22, 1906, tj the plalntm as h^
at law, children ct one Blnma Merck, for the
partition of a cwtaln tract of land in Pickens
county, described in tiie complaint, which
formerly belonged to Blnmer Merck, now de-
ceased. TbB defendants Lawrence G. Merck,
son of Blnmer Merck, and Ella Burton, B.
Stewart and K. Stewart, children of Farthena
Stewart, a predeceased daughter of Blumer
Merck, were made parties def^dant as ten-
ants in common with the plaintiff. None of
them answered the complaint The defend-
ant W. B. Mann answered the complaint, de-
nying title in the plaintifFs, and setting up a
claim of title in fee in himself. The case
was tried before Hon. B, W, Memminger, pre-
siding judge, at .Pickens, March term, 1912.
The 1^1 issues of title were submitted to a
Jury, the Jury found a verdict In favor of the
•VW other OBBM
defendant W. B. Ifann that he ma entitled
to the possession of the land in dispute, aiid
thereupon the preeldlng Judge signed an or-
der, conflrmlng the verdict of the Jury and
dismissing the complaint Upon this decree
and verdict judgment was duly entered up by
the said defendant W. B. Menu against the
plaintiffs, from which the plaintUts above
named have appealed to this court"
The opinions on the former appeals, eive*
dally the first, state the facta in detail.
[1] There are four excepttoiu. bnt It will
not be necessary to coosider then soriatim,
as the appellants' attMneys have discnased
them under two heads, the first of which la
as follows: "Is the testimony offered by the
defendant Mann, upon the subject of the exe-
cution and delivery of the deed from Blumer
Merck to L. C. Merck, of such character aa
to constitute some evidence of the complete
execution and deliv^ of the deed, and so
entitled the defendant Mann to have the Issue
of complete execution and delivery submitted
to the Jury?"
During the trial which resulted In the sec-
ond appeal (89 S. O. 347, 71 S. B. 969, Ann.
Cas. 1913A, 937), this court; after sustaining
the ruling of his honor the circuit Judge that
M. F. Hester was not a competent witness,
to prove the execution of the deed from
Blumer Merdc to L. C. Merck, on the ground
that he was disqualified under section 400
(now 438) of the Code, proceeded as follows:
"The defendant Mann was in this plight:
Mrs. L. C. Merck, one of the persons whose
names were subscribed as witnesses to the
alleged deed from Blumer Merck to L. C.
Merck, vras hostile, and upon being put on
the stand, testified In effect that the deed
was not delivered. The other witness Hester
was excluded because disqnalifled by interest
Under these conditions the defendant Mann
had a right to introduce other testimony
taidlng to prove the Kcecution of the deed;
the evidence of the handwriting of the wit-
hesaea, of the grantor's acknowledgment of
the validity of the deed after Its execution,
and of any facts tending to show that tlte
deed bad been executed was clearly admia-
Bible. Land titles would be very Insecure If
th^ should fall whenever the subscribing
witnesses might deny that they witnessed the
execution of a deed, or might become for any
cause incompetent to testis to its execution.
It is true in proving a deed the snbscriUng
witnesses must be produced, or tb^ absence
accounted for, but manlfratiy the title can-
not be made to depend entir^ on their tes-
timony. Whenever the witnesses are dead or
inaccestdble, or have become incapadtated, or
deny the execution in their presence, or for
any cause are unable or nn willing to prove the
execution, then other evidence may be Intro-
dnced. This is a principle of general recogni-
tion (citing authorities). On this principle
the court erred also In holding that the ad-
I ssow tople and section NUHBBR In Deo. XUs. * Am. Dig. Key-No. 8eri«s.ft Rep'r ladezes
Digitized by VjOOglC
ttOadco of' Bliuii«r Merck tliat be bad om-
▼«red ttatt lands to bis «m L. O. )f erck was
not admlasible aa erldcsice of tbe ezecntion
of tbe deed, bat only to dtow tbe.<diaracter ot
tbe poaaoaaioa Sncb admlsBton, togetber
wltb teBtJmonr aa to tbe. bandwrltbig of tbe
grantoc, «iid of tbe wttaoaaea, aa to tbe in-
d^endent poaseBdim and cnntzol of tbe lands
by tbe giante^ and aa to tbe recording of tbe
deed, were all admissible, either to support
tbe teatliDwiy of tbe mbacribing witnesaes
tbat tbe deed bad been exeentad, or in sidwtl-
totion of tbe testixnony of tbe snbecrlbing
witneaaes If tbat testimony* wltbout tanlt of
tbe party In interest, was not avallabls^ or
was adTerse. * * * Aa tbe case ia to -go
back for a new trial, we refrain from any
dlacDadon or exprasalon of (^dnlon as to tbe
facta, fnrtber than to say tbat we tblnfc there
vaa a scintilla of evidence for tbe eonsldera-
tLoa of tbe Jury on tbe issue of estoH>el."
Hbm an)eUants' attorneys, tboa sommarlM
iOke testimony Introduced the defendant,
for the parpoee of proving the ezecntion and
dsllTsry of tbe deed from Blumer Merck to
Jj. C. Herek: "The handwriting of M. F.
Heater and that of LUde Merck, whose s^*
natures appear aa snbscribing witnesses, we
* will aasnme has been proved. Tbe handwrit-
ing of M. F. Hester in tbe aignatare of
Blumer Merck, by bis mark, we will assume
has been proved. Four wttnesees testtfled
tbat at different times they had heard Blumer
Merck say, after tbe date of the deed, that
be bad deeded the land to U C. Merck. The
fact that the deed was recorded In tbe R. M.
O. office of Pickens county on December 10,
1904, nearly three years after its date. That
after the death of Blumer Merck, L. C Merck
was in xwasesslon of the land! claiming title
thereto nnder said deed, and conveyed same
to M. F. Hester, besides having exercised
other acts of ownership, such as cultivating
the land, mortgaging it, and returning it for
taxation, all within the brief period of from
May to September, 1905." The testimony
tending to establish said facts was admissible
under the niiing of the coqrt, which we have
just quoted; and if his honor the presiding
judge had undertaken to determine its force
and effect he would have invaded the pror-
Ince of the Jury.
The second question discussed by the ap-
pellants' attorneys, is as follows: "Did tbe
presiding Judge err in submitting to the Jury
the Issue of estoppel, based upon the alleged
n^ligence of Blumer Merck, In making a
deed complete on its face, lacking only de-
livery to make It a good conveyance, and then
leaving it where tbe grantee named In tbe
paper could easily take It, thus Inducing oth-
ers to accept him as 13ie real owner of the
land, and instructing the Jury that upon the
solution of said Issue his title would be good,
even If tbe deed of Blumer Merck had never
been delivered?"
Tbe appellants* attorn^ oiHitaid Uiat
defendant was not entitled to tbe benefit, of
this doctrine, for the following reasons, which
constitute their spedflcatlons of error, in this
particular: "This d^ense Is based upon the
doctrine ot estoppel, wblc^ In torn is based
upon the plea of purchaser for value without
notlceb botb of which defenses and pleas were
expressly In open court repudiated and waiv-
ed by oounsd for tbe defendant Mann. Un-
der tbe pleadings, testimony, and admission
ot connsel, the question of Blumer Merck^
negUgeuce, as affecting the issue of the de-
livery of the deed, was not an issue In tbe
caaeu"
On tbe tlrst appeal (88 S. a 829; eff 8. ID.
847, 137 Am. St 81S), the court Dsed tbls
language: "(tai tbe question of dellTmy, the
plalntltCs anbmitted tbe following request:
'Bven if properly executed, the deed does not
have effect aa adeednnlesaitbediown tbat It
was dnly deliTered Blumer Merdc to !«. (1
Merck, or to some one for blm. If Blumer
Merck never parted with or intended to part
wlUk Qie possession of tbe deed ; if be retain-
ed poasesaion of it, placed it away with bis
papm and never deUrered it to L. & Mer^
or to any one tm him ; if while it was in Blu-
mer Merck's posaesaAon it was surreptitious-
ly taken away from his place of safe-keeping
without his knowledge or consent and placed
on reoordr-I diarge you tbat nnder these dr-
cumstances the law declares tbat tbe deed ^las
not been delivered and is therefore invalid.'
This is correct as a general statement of the
law (citing authorities). Counsel for defend-
ant now insists, however, the request was
properly refused, because it left out of view
the question of estoppel from n^lig^ce.
His arguntent is that Blumer Merck and his
heirs might have beea estopi>ed from dlspat-
Ing Mann's title by negligence on bis part in
making a deed complete on its face, and
laddng only delivery to make It a good con-
veyance, and then leaving it where the gran-
tee, named in tbe paper, could easily take It,
and thus induce others to accept him as tbe
real owner of the land, and that therefore
Mann's title might be good even if the deed
of Blumer Merck had never been delivered.
Nelthra ttie requests nor the charge of the
circuit Judge indicate that the issue of negli-
gence was made on the trial, and it may be
unfair to appellants to say it should have
been incorporated in this request. But It was
earnestly pressed in the argument that the
Issue of negligence was made on the trial as
arising out of tbe evidence. That b^ng so,
the request above quoted was not sound with
tbe request of negligence left out of view."
It wlU thus be seen tbat the exceptions
raising tbls qoestton cannot be sustained, un-
less there was waiver of the right to insist
upon estoppel in this respect We, therefore,
proceed to tbe consideration of the question
whether the defendant waived such right
After stating the principles announced In
tbe former decision In this case, his huaor
Digitized by Google
1080
18 B0UTHBA8TBBN BBPOBTBB
OLC.
the presldinK judge thna charged the Jury as
to theuDdedded laBoes then before the court :
"Now It appears to this court that, after all
these appeals, and with the record as we
have it before us ik>w, there are no great
legal complications abont this matter, and,
after the statement of counsel for the defend-
ant Mann here. In open court, that they are
not contending for nor relying on these ab-
struse doctrines of equitable estoppel as such,
or purchaser fOr value without notice, that
the issues are very clearly narrowed down.
Elrst Was the alleged deed from Blumer
Merck to Lawrence Merck executed and de-
llTered in compliance with law? If not,
Mann loses. Second. If It was so executed
and delivered, was It obtained by fraud? If
so, Mann loses; otherwise be wins. And
tUrd. If executed, has its delivery been
shown by such evidence of carelessness, on
the part of Blumer Merck, as would prevent
the parties claiming that nondelivery has not
beai shown? Now as to this last point, on
the question of carelessness, I charge you,
and dispose of that question, by citing and
diarglng you the law upon the point as laid
down in the first appeal, as follows (reading
same). I simply add the element of careless-
ness to the charge, as refused there by Judge
Elugh, which makes It according to the de-
cision a correct declaration of the law on that
point. I simply add to the refused request.
So you see I charge you that as the law,
adding to it that you have the right to take
into consideration, upon the question of de-
livery, that matter of negligence as laid down
there, and say whetbw or not there was a
delivery."*
The plaintlffa' ninth request was as fol-
lows: "The defendant W. B. Mann is not ea-
titled upon this Issne to assume the position,
of a bona fide purchaser for value without
notice, for the reasons: (a) Such defense
must be pleaded, and it has not been done in
this case, (b) It Is essential to the plea of
bona fide purchaser for value without notice
that tte defendant shall have paid in full
the purchase price. The defendant admits
that he purchased the land for ^,000, paid
¥1,200 cash, and gave his note, secured by
mortgage, for $4,800, no part of which has
been paid, except a small portion of interest,
(c) At most, the defendant would only be en-
titled to that plea pro tanto, and that on
the equity stde of this case." The following
indorsement thereon shows why it was not
charged: "Cary don't claim it" See 83 S.
C. &S9, 6& S. B. 347, 137 Am. St Rep. 816.
The (drcutt Judge made similar Indorsements,
on other reqoests, relative to the plea of pur-
chaser for valuable consideration without
notice^
The plaintllfs' fifth request was as follows:
"If the Jury believe from the evidence, that
after signing the alleged deed Blumer Merck
never parted or intended to part with the
possession of the deed, and never Intended
that it should take effect as a deed nntU
after his death; that he retained possession
of the deed, placed it away with his papm,
and never delivered it to K a Merck, nor
to any one for him ; that while the deed was
in possession of Blumer oienA, it was snrr^
tltionsly taken away from his place of safe-
keying, without his knowledge or consent,
and placed on record — I say, if you b^eve
these facts to have been established by the
evidence, then I charge you that under these
circumstances the law declares that the deed
was never delivered, and is Invalid." After
reading It to the Jury, his honor said: '"niat,
of course, I charge you, as a more detelled
explanation, but take tibiat 4n connection
with that matter I explained to you of negli-
gence. These requests don't go quite far
enough. Tou have to add that element to
them, to make them a complete statement of
the law."
The presiding Judge also charged the Jury
as follows: "If, however, you decide these
Issues In his favor — that is, decide In favor
of the execution and delivery of the deed —
you will proceed to the Inquiry, as to wheth-
er or not it was obtained by fraud. Yon
have heard the reply read, as to what fraud
the heirs claim against the deed, that there
was a combination between these people to
obtain this deed from the old man, and that
that was carried out, and that therefore the
deed is void on that account, and they charge
Mann with being cognizant of this fraud;
but his counsel, as I stated, declared that
on this point they rely upon what they
claim is the absolute failure to show tend
In the original transaction, and are not rest-
Ing upon a datnit Uiat it yon found fraud,
Mann would still have a good title, as being
a purchaser without knowledge or notice of
the alleged fraud, and this simplifies the
issue very much for yon, and Is something
of which the plalntlflb cannot complain."
From the forcing It appears that the
defendant did not Intend to waive bis right
to insist upon the doctrine ct estowel, aris-
ing ont of the negligmoe of Blumer Merck,
nor did the circuit Judge so understand him.
[2] Furthermore, when the presiding Judge
stated "that the Issues are very clearly nar-
rowed down" to the three which he mentioned,
one of which was, "If executed, has Its deliv-
ery beoi shown by su(^ evidence of careless-
ness, on the part of Blumer Merck, as would
prevent the parties claiming that nond^very
has not bera shown?" It was the duty of
plaintiffs* counsel to call such supposed error
in stating the issues to the attention of the
court, In case It was Intended to r^ upon
it as a ground of appeal; otherwise 8n<^
objection was waived.
[3, 4] The circuit Judge drew a distinction
betwera the plea of purchaser for valuable
consideration without notice and estoppd by
negligence; and, while he held that the issue
as to estoppel by n^llgence was then before
the court, be ateOp^f^^^^^iO^tdgiieant
UaSB ▼. ATI«AMTIO
OQABT LINE K.00.
•mi
did not tnslBt apon tbe Idea of purduaer
for valoable consldfflaaon without notice.
Tbe autborltles sbow that tliero Is a weU<
recognized distinction between such Issues.
The rifht of the defendant to ttOj upon
Uie nagUgenoe of Blnmer Horde, whereby
other were Indnced to become purchasers
of the land, falls under the head of estoppel
In pals, which need not be ideaded.
Tb» rule is thus stated In Scarborough t.
Woo^, Si & a 829, 82 a B. 406: **It Is
not neceosazy ta this state to plead eetof/pel
(Utes T. Addison, 27 & a 2SS» S B. SL 214);
and therefore the defendant had tl» r^t,
undn his goieral doilal, to introduce erl-
doee (tf estoppel, and on such eridmce hare
the Issue of estoppel submitted to Uie jury."
WhUfl on the other hand, "The defense of
bona flde purchase without notice is an equi-
table d^nse^ must be set out in the answer,
and must be raataJned by party who erects
it as a shield.'' Lupo t. True, 16 S. a 687.
In the recent case of SuUivan t, Hoore, 84
8. a 426, 6B & S. 108, 66 8. E. 661, which
was also an action to recorer the possession
of land, the court tikus stated the rule: "The
appellant's first contoitlon Is that the Issue
of estoppel Is equitable In its nature, and
therefore should hare been tried by the
court, and not submitted to the Jury on the
Issue of l^al title. The position is not ten-
able The rule Is thus stated In Drezel
V. Bemey, 122 U. 8. 241 [7 Sup. Ot 1200,
30 li. Ed. 1219]: 'Estoppels of this character,
as distinguished from estoppels by record or
by deed, are called equitable estoppels. It
Is not meant thereby that they are recogniz-
able only In courts of equity, for they are
commonly enforced In actions at law, as
was fully shown In Dlckerson t. Colgrove,
100 U. S. 678 [25 L. Ed. 6181. But It does
not follow because equitable estoppels may
originate legal, as distinguished from equi-
table, rights that It may not be necessary in
particular cases to resort to a court of
equity, In order to make them arallable. All
that can properly be said Is that, in order to
Justify a resort to a court of equity, it
is necessary to show some ground of equity
other than the estoppel Itself, whereby the
iwrty entitled to the benefit of It Is prevented
from making it available In a court of law.
In other words, the case must be one where
the forms of law are used to defeat tbat
which in equity constitutes the right. Such
a case is one for equitable interposition.'
The right to prove against the plalntitP es-
tcqppel by conduct as a defense to an action
to recover possession of land was recognized
In Marines v. Goblet, SI S. O. 163 [9 S. E.
803, 17 Am. St Kep. 22], on the authority
ot Lessee of Tarrant v. Turj, 1 Bay, 24L''
Judgment affirmed
HTDBIOE, WATTSk and niASlDB, JJ,^
concur.
(9S 8. a
MIUS T. ATLANTIC COAST LINB B. 00.
et al.
(Supreme Court of Sooth Caroliaa. July 4*
1018. Bebearing Denied Aug. 0, 19180
Mabteb aho Sbbvaitt (81 286, 289*)— Ikjubt
TO SaavAirr— MuouoBNCB — Cohtbibutobt
NxoLiGuiOB--QuiiBnons roB Jubt.
In an aetlou for the death of a car inspector,
killed at a pobllc crossing by an en^ne and ten-
der running backwards, evidence held sufficient
to warrant ■ubmitting to the jury tbe question
Pettier the accident was caused by m negli*
gence of the deceased, or by the negligence of
the railroad company.
[Ed. Note.— For other cases, eee Master and
Serrant, Cent. Dig- H 1001, 1006, 1008, 1010-
1016, 1017-1033, 1036-1042, 1044. 10«B-I060,
1089, 1090^ 1092-1132 ; Dec Dig. || 286. 289.*J
Appeal from Common Pleas Circuit Court
of Richland County; T. BL Spain. Judge.
Action by lizzie M Mima, administratrix,
against the Atlantic Gout Line Railroad
Company and another. From a Judgment
granting a nonsuit, idalnUff anwala Re-
versed and remanded.
Nelson, Nelson & Gettys, of Columbia, and
John EL Clifton, of Sumter, for appellant
Barron, Moore, Barron & McKay, of Colum-
bia, P. A. Wlllcox, of Florence, and Luclan
W. McLemor^ of Sumter, for respondents.
GARY, C J. This is an action by the plain-
tiff, as administratrix of John J. Mims' es-
tate, to recover damages against the defend-
ants, for the benefit of herself and children,
on account of the death of her husband, al-
leged to have been caused by the ^Int and
concurrent negligence and recklessness of tbe
defendants.
The allegations of the complaint, material
to the questions under consideration, are set
forth in the fourth, fifth, and sixth para-
graphs thereof, which are as follows:
"Fourth. That the defoidant S. B. Divine
Is a citizen of tbe state of South Candina,
who was at the times hereinafter mentioned
a servant and emptU^fi ot the defoidant At-
lantic Coast Line Ballroad Company, being
engineer, engaged In running an engine of
the deCmdant; used for swltdilng and other
purposes on defendants yard at said Sumter.
"Fifth. On information and belief that on
ot about tbe 19th day of December, 1910^
while plaintiff's intestate was crossing Har-
vln street, a piU>llc street of the said dty ot
Sumter, defendant Atlantic Coast Line Rail-
road Company carelessly, negUgentlyt reck-
lessly, willfully, and wantonly ran badt-
wards one of Its engines and toidei; on one
of Its tra^ across said Harvin street, at an
execesslve and reckless rate of speed, and in
violation of Its own rules and regulations as
to speed, and without having any one on the
rear ot said engine or tendw to keep a look,
out In the direction In which said engine and
, tender were being run, and In violation of Its
«nr ottMT ossis SM suae toyto sad sMUra
NTTHB^^^Psk Dig. * Am. Dig. Key-He. Bari«a ft-S«P*r Ind«B«
* Digitized by LiOOgle
108&
T8 SOUTHHASTBBN BBPOBTEB
own rules, and wltbont blowing the wblstle
or ringing the bell of said engine, and with-
out giving any signal or warning whatsoever
et Its approach, as required by law, although,
where the tracks of said defendant croae said
Harvln street, la a public crossing in said
dty of Sumter, and carelessly, negligently,
recklessly, wUlfnlly, and wantonly ran Into
and over pUlntilTs Intestate, crashing him
beneath the wheels of said tender and caus-
ing hla death.
"Sixth. On Information and belief, that the
defendant Atlantic Coast Line Railroad Com-
pany knew, or should have known, that its
codefendant, C. B. Divine, was a careless
and reckless engineer, nevertheless it care-
lessly, negligently, recklessly, willfully, and
wantonly retained the said S. 6. Divine^ In
its employ, as switch engineer, In and about
Its yards at said Sumter, S. 0."
The defendants denied the all^atlons of
negligence and recklessness, and set up con-
tributory negligence on the part of John J.
Mima, as a defense. At the close of all the
testimony his honor the presiding judge
granted an order of nonsuit, on the ground
"that the only Inference to be drawn from
the evidence la that the plaintiff's Intestate
John J. Mlms, was guilty of gross neglUcence,
which contrlbnted to his injury, as a proxi-
mate cause thereofL" The appellant's excep-
tions assign error In said ruling.
There was testimony tending to show that
tbe deceased was a car Inspector at the
time of his death, and was in the employ-
memt of the defendant company, In Its ^rd
at Snmter, 8. O. ; that one of bis dntlee was
to inspect all trains upon their arrival in tbe
yard; that at the time of bis death be was
ffOng across the yard and tra<^, diagonally
from a train wblcb was already in the yard
to one i^lcb had Just arrived, for the pur-
pose of inspecting It ; that in going from one
to title othOT it waa necessary tor him to
croas HarvlD atreet, a mneh traveled place,
and one of tiie main thoronf^fares of the
dty ; that while be was thus discharging his
duty he was killed by collision with a
switch engine, within a few feet of Harvln
street; that the engine was running back-
wards without a full shifting crew and with-
out any one on the t>ack of the tender to keep
a lookout, at a rate of speed from IS to 20
miles an hour, which was reckless, and ex-
ceeded the rate of 10 miles an hour pre-
scribed by the rules of the company; that
no signal was given except the blow of the
whistle, after Mlms was struck by the en-
gine; and when considered In its entirety,
there was reasonable grounds for the Jury
to draw from the testimony the inference
flkat Mlms did not know the engine was ap-
proadiing until it was within a few feet of
him, as his back waa turned in that direction.
In fine, there was testimony tending to prove
every material allegation of the complaint
that was pot in laaasu After the Introdno-
tlon of testimony by the'plalntiff, for the pur-
pose of establiahlDg the facts Just mentloued,
the defendants offered evidence contradictory
thereof, for the purpose of showing that they
were not guilty of negligence or recklessnesa,
and to sustain their defense that the plain-
tiff's Intestate waa guilty of contributory n^-
ligence. If the Jury believed the testimony
offered by the plaintiff, and it was unquee-
tlonably susceptible of the inference that the
injury was tluB direct and proximate result
of negllgOKe or recklessness on the part ot
the defendants, and not of gross negligence
on the part of the plaintifE, wUle^ on tbe
other band, if they beUeved the teatimoair
Introduced in belialf of tbe defttidanta,
olttdinff that which coiOradieted the moiAmoe
offered l» behalf of the plaMtff, then it was
susceptible at the Inference that the Injury
reaulted directly and proximately from the
gross negligence of John J. Bflms. It was,
however, for the Jury, not only to deter-
mine wbether they believed the whole or any
part of the testimony Introduced by either
party, but also to draw the inference there-
from.
The defendants seem to attach much Im-
portance to the testimony of L. L Parrott,
then clerk of the conrt, who t^tlfled that he
heard some one ask John J. Mima, immediate-
ly after the injury: "My Ood, John, how did
this thing happen?" and that Mlms replied:
"I thought I could make it," or, "I thought
I could cross," or some expression of that
kind. We do not, however, attach the same
importance to It, on account of tbe subae-
Quent testimony of tills witness.
The record shows that tbe following totik
place subsequmtly: Mr. Parrott, recalled:
Mr. Ollfton: "Q. In Uie statemoit yon made
as coming from Mr. Mlms, you say that there
Is no absolnte degree of certainty whether
he r^erred to bla idiysical condition, or
aUltty to get across the track ; yon can say
which he r^erred to? Whether he was In
such physical condition that he was unable
to get across the track, or had time to get
across? A. What I heard on the grounds,
what the person said with reference to his
physical condition. Impressed my mind with
the fact that it waa oa acoonnt of his lAyal-
cal ccmdition."
It appears from the testimony, tlwt Mima
was not then In good health physically, and
the statement of the witness is that the
remarks made by Mints had refraence to bis
physical condition, and not to the qnestltm
whether be had time to get across on account
of the proximity of tbe train. Hla honor the
presiding Jndge based his ruling on the case
of Drawdy v. Railway, 78 S. O. 3X6, 68 S. B.
980, which he held to be conclusive of the
present case. Upon comparison of the tacts
in the two cases, It will be found that they
are materially different
It la the JudgnH^,5^,^$^<cfi«90^^
UiuaUJt BOUTHEBN BT..OQtir
order of tba dreult court be set aside, and
tbe cmae mnanded to tbat court for a new
trial.
HYDBIOK, WATTS, and FBAB8R. JJ.,
concur.
Appeal from Common Pleas C^rcolt Court
of Tork County; T. S. Sease, Judge.
. Action by Samuel T. Maglll against the
Southern Railway Company and another.
Judgment for the plaintiff, and defendants
appeal AMrmed.
The requested cbarffes given by tbo eoart
as modified, to which the ^ghth, ninth, and
tenth expeptlona refer, were aB fiollows:
"(^ Tbe lav doea not Inqtose npon rail-
road oompanlea the duty of keqilnf a look-
out) for trespaaawa upon Its cars or tra<±B,
and It Is tJ» law tlut a niUroad oompany la
not bound to asannie, or even expect tbat
trespassers wUl Intrude themselves into dan-
gerous places on their trains or tntfts, and
Is thwefore under no leeal obUgatlon to pro-
Tlds for tlieir safety by warning them of tb«
danger of their willful and reckless acts.
Any otbor doctrine would Impose an un-
natural car* and responsibility npon rail-
roads. Tliey are organised for wise pnrposee,
and alurald reqMmd to the dn^ iSnef owe tbe
public ; bat to impose upon tlmn the bordoi
oi a quasi gnardlansbip of all trespaasers.
Infant or otherwise, who go npon their tracks,
or Intrude vpoa Ouix cars, not intended for
pfiBsengers to occupy, would be extending the
rule too Car.
"I charge yon tluit, gentlemen, in coonec-
tlon with what I have already charged yon,
read you out of the book in tbe oase of Tnc*
ker against the railroad. Tbat la, tliat an
inflant non Bui Juris cannot be aoeh a tzee-
passa u would exempt any one from the
duty of exercising ordinary car« to avoid
Ooint It an Injary. And In this comieetlon 1
deabre to read to yon a few requests, to (^large
In another case, and worded better than I
can word it at tUa time. I charge yon that
whm the owner or occnpler of Itrounds
brings or artificially creates something there*
on, which from its nature Is especially at-
tractive to children and which at the same
time is dan^rous to them, be is bound, in
the exercise of social duty and the ordinary
offices of humanity, to take reasonable pains
to see that each dangerous things are so
guarded that children will not be Injured by
coming In contact with them. Ooing back
to the defendant's requests to charge:
"(S) An Infant under the age of 7 years is
not capable of contributory negUgence, and
an infant under the age of 14 years is pre-
sumed to be Incapable of contributory negli-
gence. No matter what may be the age of a
child or Infant, it may be a trespasser npon
the tracks or cars of a railroad company in
the same manner that an adnlt person would
become a trespasser. A child Incapable,
reason of tender age, of exerdedng discretion
or of being guUty of contributory negUgence
may become a trespasser upon a railroad
track or railroad cars upon the same state of
tacts tliat would impress that character npon
I e. pCTBon of legal discretion. Id the case of
Bsms toplo aad SMttOB HUt^^^'^ijai.iHg. a Am. Die. Kar^ltf; Mm * Bw'r IndWMs
OS 8. C. KM)
UAGHiL t. SOTJTHEBN BT. go. et al.
(Supreme Oout of South CazoUna. July 28^
1013.)
L EvnwROX <| 128*) — Baa Ge8T«— Sxixs-
• UNTO or InjuasD Pebsok.
A declaration by a boy, who had been in-
jured by a train, made to a witness immediatdy
apon his arriviU at the scene of tbe accident,
which was half a minnte attar he beard a brake-
man call that they had nm over a man, was
admissible as part of the res gestte.
[Ed. Note.— For other cases, see Evidence,
Gent Dig. H 861-868 ; Dec. Dig. 1 128.*]
2. BvinBNCE (8 123*) — Res QmtM — Srani-
mifn or Ikjubbd Pbksok.
Tbe declaration was not inadmissible be*
cause tbe boy was then daaed and shocked, aince
that woaM affect the credence to be given it, not
Its admlBsibUlty.
[Ed. Note.— For other cases, see BrMeBOSt
Osnt Dig. H8!a-868; Dec Dig. 1 128.*]
S. BVIDEIVCB (S ES9%*)->SUBJBCTS OT ExmR
TsBTiifonT— Opbbatioii or Bailboaos.
A witness, who testified that he had ran as
> a trainman on a switch engine, and had made
experiments on ttie morning the in jaries were re-
ceived, can testify, as an expert, that freight
cars, other than those which caused the injury,
projected oat over the ends of the cross-ties.
[Ed. Note^For other eases, see Evidence
Cent. Dig. II £050-2852: Dec/Dig. | 6^i^
4. Railboads (i 400*)— Injubibb to Pibbor
NeaB TBACK--PBOVItTCB OT JUBT.
In an action for injuries to a boy nine years
old, struck by cars while playing on a pile of
cross-ties near a side track, and on a pathway
commonly used by the public, where there was
evidence tending to support the atlegattons of
the complaint, It was for the Jury to detennine
whether the company was negligent, and wheth-
er they owed any du^ to tbe boy.
[Ed. Note.— For other cases, see Railroads,
Gent Dig. H 1865-1881; Dec Dig. | 400.*]
5. Trial (| 241*) — iNSTRtrcnons — RBAOzif o
Adthobitibb to Jubt,
In an action for injuries to a nine year old
boy, who was playing on a pile of cross-tiea plac-
ed along tbe railroad track, on a pathway ordi-
narily used by the public, it was not error for
the court to modify a charge requested by the
railroad company as to its duty toward, a tres-
passer, by reading to the jury from a previous
case a quotation from a text-book, in which the
doctrine that a railroad company Is not liable
for injaries to a child who trespasses upon its
track, except for willful Injury, was charac-
terised as a *'eniel and wicked doctrine, un-
worthy of a civilized jurisprudence, and one
which pnt property above humanity."
[Ed. Note.— For other cases, see Trial. OenL
Dig. H 662,663; Dec DigTlS*!.*]
6. TBIU, (I 241*)-lN|ffBDOnOin-RXOBT vo
EXPLAIlf.
In giving a sound charge upon the law, tbe
eoart has a right to explain it fuUy in his own
language, or by decisions of the ooort, in order
to convey the correct idea of tbe law of the case
. [Bd. For other casaa, ssa Trial. OsT*'
I>fc.H 562,063; Dec Dig. 1 241.*]
*yor othes flssii ess
Digitized by
Google
18 SOUTHBAfiTlDRN BEPOBTBB
«n Injnrr to a trespasser on tbe cars or
tracks of a railroad, bis age is immaterial on
the qnestl(ni of the dcctoidant's negligence.
Infancy does not affect the relation as tres-
passer.
1 charge yon that, but also wish to read to
yon a decision of the Supreme Cktart of this
state: Under the caption, "Uabillty for In-
juries to Children,** the aathor in Thompson
on NegUgence, sectton 1026, thus speaks In
strennoiis language of the doctrine that lia-
bility extends only to wanton Injuries' — and
I am reading this in connection with the
third request by the def^dant, becanse this
is from our own Sqpreme Court This is
what Thompson saya: 'One doctrine under
tUB head is that if a diild treq>aas upon the
premises of the defendant, and Is Injured In
consequence of something that befalls him
while trespassing^ he cannot reeorar unless
the injury waB wantonly Inflicted, or was due
to die reckless, careless conduct of the de-
fendant.* Tbit author also goes on and aays^
and It Is quoted with approval in Franks t.
Cotton Oil Company, 78 S. a, page 18: 'This
cruel and wldced doctrine^ unworthy of a
dvlUzed jurlsprudenoe puts propoty aboTe
humanity, leaves entlx^ out of view tbe
tender years and infirmity of understahdiiuc
of the child. Indeed his inability to be a
trespasser in sound l^al theoiy, and Tisits
nptm him tbn consequences of bis trespass
just as though he were an adult and exon^
erates the pomm npcm whose property he Is
a trespassor frran any duty towards him
whldi fbey would not owe under the same
drcnmstances towards an adult* **
B. L. Abney, of Columbia, and McDonald
A McDonald, of Wlnnsboro, for appellanta
Thos. F. HcDow. of Zorkville, for respond-
ent
WATTS, J. This was an acUon In the
court of common pleaa for Xork connty tor
$20,000 damages for all^^ personal In-
juries to the plalntUt; received while on or
near the track ct the d^endant Southern
BaHway Company. The case was heard by
Judge Sease and a jury at the November
term of the court for said county, in 1912,
and resulted in favor of the plaintiff for |8,-
000. At the close of xdalntUTs testimony a
motion was made and granted by the court
to direct a verdict for the defendant as to
the cause of action for punitive damages set
out in the complaint At the close of all
testimony, the defendants asked the court to
direct a verdict in their favor on two'
groui^: 0) That there vras no evld&ice
tending to show a breach of any duty that
the defteidants owed to the plaintiff, and
that there vras therefore no evidence of neg-
ligence on their part which was the proxi-
mate cause of his injuries; (2) upon the
ground tiiat the plaintiff was a trespasser
upon one of the cars of the d^endant and
that tbm was no avidoiGe of a breach of
any duty on the part of the defendsati^ owed,
to the plaintiff. This motion was refassC
After verdict was rendered a mottos for m
new trial was made and refused. DefenA-
ants, after entry of judgment, ^ipeal and
all^ error by 12 exceptions. At the hear^
ing In this court aiV<elIantB* connsd an-
nounced that they abandoned eac^itfons 2
and S.
[1, 2] Exceptions 1, 4, and S aHege that his
honor was in error In admitting, ova- defoid-
ant's objection. In permitting plaintlffl*s wit-
nesses to testify as to certain matters; ex-
ception 1, In permitting witness Mt^inch to
t»tify as to statements made by plaintiff
as to how he received the injuries, as such
statements were not part of the res gestn,
and the plaintiff was not at that time in a
condition to make an intelligent statement
being dazed and shocked. As to exception 1,
in allowing McNinch, the uncle of tbe i^aln-
tlff, to detail the statement, made by tbe
plaintiff, immediately after he rec^ved the
Injury, we see no error In this, as we think
It was admissible as part of the res gesta;.
As was said In the case (State v. Arnold,
47S.a0,24S.&. 926.68 Am. St Rep. 867),
the court held admissible as res gestrn the
statement: " 'Charlie shot me to death,* made
by a man shot to a doorway of a house, from
which he staggered some SO yards and fell:
tbe utterances being made a few minutes
aftv the shoottog, to the first person who
reached him to response to his cries for belpw
The dedaratlons here to question were made
probably • * * withto 200 or SOO feet
of the place of tbe shooting. These drcnm-
stoncea of time and place do not alone neces-
sarily XHcevent a declaration from b^g part
of the res gestn^ but tb^ are factors, with
other drcmnstancea, to determlidng wh^Iier
the declaratkois woe tbe wontaneons nttw-
anoes of the mind, under the Immeffiate tofln-
ences ot the transacticm.** The court, to
the same case, further says: "Questions of
this kind must be very largely left to the
sound judicial discretion of the trial judges
who Is oomp6Ued to view all of the dream-
stances to leadilng his .oonduslon, and thla
court will not reverse his ruling unless It
clearly appears, from undisputed drcumstonc-
es to evldoice^ that the testimony ought to
have beM. admitted or rejected, as tbe case
may btt," *^ tbe nature of the case, there
can be no hard and tost rule as to the pre-
cise time near an occumaice within which
dedlaraUons explanatory thereof must be
made, to wder to be admissible. The gen-
eral rule is tbat the dedaratitms must be
Bubstontially contemporaneous with the liti-
gated transaction, and be the Instinctive^
spontaneous utterances of the mind xmAet the
active toflnences of ttie transaction, the
drcumstancea precludtog the Idea that the
utterances are the result of refiectlon, m de-
signed to make false or self-serving dedara-
tions." Stoto T. McDanlel. 68 S. a 810,
« «• '«*p,^edtrGhS§l?^
S.Q)
MAaiUJ r. SOUTHERN RT. 0(X
"Thla court has wreral ttmee held that the
declaration need not be made colnddoit with
the injary, but near about It, so nearly that
it Is not likely that the declaration could be
manufactured." WUllams t. Southern Rail-
way Go, 68 S. a 373. 47 S. B. 707. See, also,
Shelton t. Soathem Railway Co., 80 S. 0.
102, 103. 07 8. S. 890. 901, wherein the
court says: "The testimony on tbe part of
the plaintiff was that the second car from
the engine was the first to Jump the track,
and that the engine ran on about three-quar-
ters of a mile before it stopped; the engineer
said he stopped within 150 or 200 yards, and
when the engineer ran his engine back to the
wreck, he said to the conductor: 'Gap, we
have played hell.' Error is imputed to the
Judge in admitting the declaration of the
engineer, on the ground that it was too long
after tbe accident to be admitted as part of
the res geatee." Tbe court quotes from tbe
case of State r. McDanlel, and says: "While
the length of the time between the wreck and
the making of the declaration In this case
was such as to raise some doubt as to its ad-
mlssibUlty, it was not such a clear case as
would warrant the holding that the testi-
mony was not within the rule."
When this evidence was admitted McNIndi,
the witness, testified that he had been in his
ofiBce looking after some business* had chang-
ed his clothes, put on 0TeraU% and was
standing in the porch of the store, and was
hailed, turned and saw a brckeman, of the
railroad of this train, running, and the brake-
man bollwed: " 'Oaptaln. for God's sake fet
a doctor here quick I We have killed a man,
or cut a man's 1^ off.' I followed In a mo-
ment otter sending to St. Mill for a doctor."
In answer to the question, "You got up there
as quickly as you could?" he aaid, "Tesk sir; I
was there indde a half a minute. I couldn't
have been longer; as soon as I could run
thue, as hard as I could go." "IHd he make
a statement as soon as you got there? Tes,
sir; Just as soon as I got down on my knees
by him. Oh, Z guess It was a few seconds."
As to that part, which complains that whm
statement was made by. plaintiff he was
dazed and shocked, the evidence was admis-
sible, and what fierce and effect and cre-
dence the Jury gave to it was tor the Jury
alone, but in answer to a question by his
honor, as to whether the statement made by
plaintiff wBa sensible and coheroit, or ram-
bling the witness's answw was: "It was as
IntdUgent as could ba. There is no question
about It" nils exception Is overmled.
EbKCpttons 2 and 8 wwe abandoned at the
bearing at the cas& Ou^ttlon 4 alleges er-
ror In allowing plalntUTs witness Berry Hill
to testify aa to tbe «zlstsnee of a rule of the
company, forbiatUng employes -to lOace ob-
structions near the track. This exception
Is OTermled for the reason fliat later In the
trial the rule was Inonght oat In ezamlna-
ttonof oneof the defendant's witnesses, B. I*
Busies, and for this reason the exeeptlQQ
cannot be sustained. Hyland t. Telephone
Co., 70 S. C 815. 49 S. EL 879; Young T. Mo-
Nell. 78 S. C. 143. 69 S. E. 986.
[3] Exception 6 Is as follows: "Because
his honor erred in permitting the plaintiff,
over the objection of defendants, to prove
by their witness Wl H. Howard that freight
cars, other than those that are alleged to
have Injured the plaintiff, projected out over
the ends of the cross-ties; the error being
that it was incompetent to prove what the
size or length of other cars might have been,
or bow far their ends would project over the
ends of cross-ties, as It was not shown that
they were of the same width or size as the
one that Injured the plaintiff as alleged in
the complaint" By reference to the testi-
mony of Howard It will be seen that he had
run as a train hand, and on switch engine,
and witness had made experiments on the
morning that the injuries occurred; that
be was called as an expert witness, and
testified suffldenUy to show that he was an
expert, and was entitied to give an opinion,
and his testimony was not contradicted by
any of the train crew, who were on the train
at the time of plaintiff's Injury, and who
were present at the trial of this case; This
exception Is overruled.
[4] Exceptions 6 and 7 allege error on the
part of bis honor in not directing a verdict
for tbe defendants on the grounds stated, and
depend entirely upon the question wliether
or not tiiere was any evid«ice tending to
show negligence on the part of the defiend-
ants, which was tbe proximate cause of tike
plaintiff's Injury. The spedflcations of neg-
ligence are that the defendant railway com-
pany negligently, and in violation at Its own.
rule, placed in the pathway commonly used
by the residents of the village In going to
and from the village Including inwlting trips
to the defendants' passenger station, and that
the defendants knew, or should have known,
that this pathway was in constant use— placed
In the pathway, and In close proximity to the
ends of the cross-ties of said track, a large
number at cross-ties, piled up Irri^larly,
and negligently failed to require them to t»
removed; that notwithstanding defendanti^
knowledge that diUdreoi of very tender years
were frequently upon said idle of cross-ties,
and notwithstanding defendants knew of. the
Ktoilons situation of tbe plaintiff, or by the
exerdse of due care could have known It,
they failed to warn the plaintiff, and took no
means or jirecantion to save said plaintiff
from the Injuries snfliered by hlra; that de-
fendants failed to keep watch and look out
on front of moving train of can so as to
prevent injury to any person along the path- '
way, and particularly to prevent any injury
to cldldren of tendw years, who, with knowl-
edge and consent of d^bndants, were aoeos-
tomed to ttavri along the pathway, and to be
uptm the cross-ties; that irtiile the plaintllt
a child of tender years, was on tbe pile of
cioss-tles the defendants rocklessl^^^
165«
18 BOQTH&unraaftM BBPoavstt
gently nm said can on tbe side track at an
ecGesslve and dangerous rate of speed.
We do not think bis honor was in error In
submitting the case to the Jury for their de-
termination as more tbeHi one Inference could
be drawn from the evidence la the case.
There was some evidence in the case that the
pathway was commoD)y used, and that the
cross-ties were put where they were In viola-
tion of tiie defendant company's rule, and
that children were accustomed to play there,
and that the employes of the company ftilled
to keep a proper lookout, and that the train
came in at a high rate of speed, and that
the shifting was done in too short a time, as
they were In a hurry to go two miles to get on
a side track, and make way for the passen-
ger train. There was some evidence of a
loose door, in one of the cars, swinging.
There was some evidence that the plaintin
might have been Injured by the loose swing-
ing door projecting out, as cars came around
the curve at the rate of speed testified to, or
by a rod projecting under the car, the car
step on the end of the car, which projected
out, or the car Itself projecting over. It was
for the Jury to determine, under all of the
facts and (drcumstances of this case, as
testified to, whether the defendant owed the
plaintiff any duty, or whether they were
guilty of any actionable negligence. The
owner of the land over which the railroad
runs has the right to use it In any way not
Inconsistent with the right of the railroad
company. Harman v. Railroad Co., 72 S. C.
228, Bl S. B. 689.
The evidence in this case shows that the
railroad was a side track going to an indus-
trial plant, and that the path was constantly
used by the residents of the vicinity. The
evldraice further shows that McNlnch, the
uncle of the plalntllF, owned the Industrial
plant in question, and ttiat Charles MagUl,
the father of the plaintiff, has charge of the
brick mill there; that plalnUff Uved with his
fftther, and he and other children, as well
as the emidoyes of the Indnsttlal plant, used
th^ pathway in question in going to schiool,
to the station, and village^ end tibs itatta had
been so used since the erection of bride mill,
over 10 years. It was held in Goodwin t.
Railroad, 82 S. a 321, 64 S. B. 242, that the
rights of the owner of an Industrial plant and
of its eniploy€s ovw the ground along which
a Bide tn<ik to the industrial plant ran
were mnCh greater tban over the r^ht of
way of a railroad company along the main
line. Where the pnbllc has constantly used
a pathway along a lallroad track, the rail*
road company ow«9 the duty to be on the
lookout for them and. not injure them. If
sncbi persons are. not trespassers, but licen-
see^ In such cfuen It la the d«ty of the xail-
road company to expect persons near tiie
bndc, and keep a lookout for them. Jones
T. Railway, 61 S. G. 656. d9 S. R. 7S8;
SfcKeown V. Railway, 68 S. C. 483, 47 S. E.
718; Matthews v. Railroad Co., 67 S- C. 510,
46 8. E. 335, 66 L. R. A. 286; Sanders v.
Railway Co., 90 S. C. 331, 73 S. E. 356. "The
duty of a locomotive engineer and fireman to
keep a vigilant lookout ahead for the sake of
passengers, as well as those who may be
helpless on the track. Is urgent, end the fail-
ure to keep a lookout may be evidence of
recklessness or' wantonness." Wilson v.
Southern Ry., 93 S. C. 17, 75 8, B. 1014.
These exceptions are overruled.
[fi] The eighth, ninth, tenth, and eleventh
Impute error to the circuit Judge in his
(*arge to the Jury. As to the eighth excep-
tion, an examination of the charge as a whole
will show that his honor did charge the re-
quest, as asked for by appellant, but he read
from the case of Franks v. Southern Cotton
Oil Co., 78 S. C, 15. 58 S. B. 960, 12 U B. A.
(N. S.) 468, the language quoted and ap-
proved by the court in that case In connection
with this request; and, while we are not
prepared to say that a pile of cross-ties Is
per se attractive to children as a place to
play, the evidence as to this particular place,
and how it was used by them, was competent
to go to the Jury, and his honor committed no
prejudldal error In quoting from the Franks
Case, supra. In connection with app^ant's
request to dbarge; and this exception is over-
ruled.
Exceptions 9 and 10 complain of error In
modifying defendant's third and fourth re-
quests. What is said In overruling the eighth
exception disposes of these exceptions also,
and they are overruled.
[I] The eleventh exception Is overruled, as
bis honor charged that lawfully and cor-
rectly, not only as to what duty the defend-
ant owed to a trespasser, but likewise
charged what it owed as a duty to a Ucoisee.
He charged the requests, and carefully ex-
plained what the law was In connection with
the decisions of this court. It is the duty of
the Judge to give the law to the jury, and in
charging a sound proposition of law be lias
a right to explain fully, and make clear in
his own langnage, or the decisions of the
court; what the law of Uie case really Is, and
what Idea the request intends to convey of
the law of the case.
The twelfth exception is overruled, for the
reasons set oat in. overrulli^ exertions 6
and 7; as this exception practically ndses the
same question as these exceptlonit
Jndgmrait aflbine.d.
0AR7, a and BXPBICK and FRASEB,
JJ., concur.
Digitized by
Google
loar
(Ks. cm
mUULBD «t tL r. DIUiABD tt aL
(Supreme Goort of South GbioUiul June 10,
1913.)
Wnxs (I — LntiTATnnr Ovn— Cordi-
The ezpreniott. "it not liTins In the pro-
vision of the will of one baTins chudreo by two
wives, the three youDgest bv his eecond wife,
XiviDg pKHMTt; to her for life, it at her death
to be sold and equally divided between "my
th»e youngest children, if JlvinCi if not UvlDg.
then to go Dack to my estate," has reference to
tiie youngest cbildran oollectively, lo that the
limitation over doei not beeoma <ventiTe If any
of tiiem are living.
[Ed. Mote.— For other cases, see Wills, Gent.
Dig. SS 1165-1168, 1177, 1802-1309; Dec Dig.
I 542.*}
Appeal from Common Pleas Circuit Court
of Greenville County ; J. W. De Vore, Jndge.
Action by G. M. Dlllard and others against
U. F. Dlllard, individually and as executor
of M. G. Dillar^ deceased* and otbers. From
an adverse decree, plalntUEs appeaL Affirmed.
The circuit decree U:
"M. G. Dlllard, of Greenville count?, jdled in
February, 1876- He bad been married twice.
By the first marriage be bad nine children,
and by the second marriage he bad three
children, to wit: H. U DUlard, Susie DU-
lard (now Elmore), and J. D. Dlllard. The
last mentioned died several years ago, leav-
ing a widow and several children, to wit:
Manning Dlllard, Bessie Dlllard (now Smith),
Troy DiUard, Wm. DlUard. and Herbert Dll-
lard. The testator's widow, Susan Dlllard,
died several months before the commencement
of ttaia action. M. Q. Dlllard left a will by
which h^ gave to Ua wiffl^ Susan Dlllard,
the home tract of land, containing 300 acres,
mora or leas, and certain household furni-
ture^ and other personal property 'dnrlng her
natural life and widowhood in lieu of all
dalaos of dower and all other dalms Iv my
estate; and at her death, or mjirriane, all of
the ahove«ienti<»ied proper^ should be sold
and equally divided between my three young-
est children. If Uvlng, If not living, t^en to
go back to my estate* The controversy be*
tween the plaintiffs and the defendants re-
lates to that share In the home place to which
J. D. Dlllard would have been «i titled, had
he lived. The plaintiffs contend that by the
terms of the will this share reverted to the
estate and passed under the seventh clause.
"The testator's purpose, as disclosed by
the win, most prevail, even thoui^ it involve
the rejection or addition of words, or th^
restraint from th^ usual meanlitg. Clark
T. Clark, 19 & a 802. It is clear that the
first objects of the testator's bounty, so tsr
as concmis the property involved in the first
tiause of the will, woe his wife, Susan DU-
lard, and her tliree minor dUIdren. The limi-
tstion over In favor of the children the
first marriage was to take effect only In cast
_ the ^iree yQvncest diUdren were not ttvin^,
' The executor was directed to sen the land for
Ver other okMs see
tbe purpose- of ffivlsloD UMA^ '&e younc^t
chUdren; but the limitation over was vt- the
land Itsdf, and not of the proceeds of the land*
or a share in such proceeds. Clearly, these
provlstmis wwe altasnatlTe in tMr character.
On the falling in of the life eflfeate, one or
the othw was to take effect. If the. three
youngest ehUdrtti wtte living, the land was
to be sold and divided among them; if they
were not living, Oie land was to go baift to
the estate and be divided among the childroi
of the first marriage. The contingency qpiu
which the first limitation was to tall and the'
limitation over wss to arise was the death of.
the youngest set of <^ldren at the falling
Id of the life estate. The espreeslon If not
llvinfl^ clearly has reference to the youngest
cbildi^ collective^, and not Individually.
The Und-tatlon over is upon their death. ' The
testator dealt with the two sets of ctUldr^
as constituting two classes, or with the young-
er set collectively. The estate given to the
younger set of chUdren was to be defeated
only In case they were not Uvlng; that is,
only In case none of them were living. Stew-
art V. Sheffield, IB Best, 626; Kersh v.
Tongue, 7 Rich. Kq. 100; Schaffer v. KetteU,
14 Allen (llasa.) Q28. The limitation over
was to take effect «tt -the death of the three
youngest children. It was not intended to
become operative while any of these younger
children were living. Shanks v. Mills, 20 S.
C. 858; SeabTOQk r. Mlkelt, (Tbeves, Eq. 80.
"It follows, from what has been stated,
that the limitation over has not taken effect,
and that the plaintiffs can claim nothing un-
der his wllL H. L. Dlllard and Snide Ehnore,
the survivors of the three youngeeC chtldren,
have by thdr answer consented that any In-
terest which they may have in the share
which would have gone to J. D. Dlllard, had
he lived, be vested In his widow and tiidldren.'
It is accordingly so decreed, and it Is de-
dared by the judgment of this court that
sncb Interest which they, the said H. L. Dll-
lard and Susie Elmore, may have In the
share which would have gone to J. D. Dlllard,
be, and the same is hereby, vested In the
widow and children of the said J. D. DUlard.
In view of what has just been said, it would
be idle to discuss the question as to whether
under the limitations of the win the share
of J. D. DUlard passed to his reiftwentattves
or to the survivors of the class dalgnated as
the three youngeet chUdren.
"It Is therefore ordered and decreed that
the widow and chUdren of J. D. DlUard take
among tiiem: tiie one-ttdrd interest In the pro-
ceeds of the sale of said lands ; that la; hnto
the widow, Ifinnle DUlard, an Interest equal
to one-tfalrd, and the remaining two-thirds
to be equally divided among tlie children, to
wit, Uaqning DUlard, Bessie Sihith, a*roy
DlUard, Vfm. DlUard, an<l Herbert It la
further ordered that the plaintiffs pay the
cost of this i^oceedlng."
SUM tepie sad ssettoa KVUSS^^ID^ Dig. A Am. Dig: Kn-NOb Bsrlse httfipf ladszM
^ ' oogle
Digitized by
1089
78 BOUTHSASTBRM BBPOBTBB
(S-C
HcCnlloagh, IfartU * BlTthe^ ot Qreen-
TUle^ for appeUantB. Hajnaworth ft Hayna-
wortb, of OreaDTllleb for acpelleM.
HYDBIOK, J. Tbe OecTM of tbe circuit
court ia afflrmefl, for tho rwsona tbereln
ateted.
(M a a UD
STATS T. MATTIBON.
(Snprama Oonrt of Sootli Carolina. Jona 11,
wia.)
L HoHZOXDS a 2M*) — SsLr-DBraNSX — Iir-
■nucnoiiBL
In a proHcatkm fw morder, It waa eriof
to charge that the burden waa on tiw defendant
to establish his plea of self-defenie by a pre-
ponderance of the proof.
[Ei. Note.— For other cases, see Homicide,
Gent Dig. H 507-609 ; Dec Dig. | 244.*]
2. GsnaNAi. I<&w (I ll^S*)— APFBair-OBjfxo-
TXOnS IN LOWBB COUBT.
The error in so charging was so patent that
defendant waived his right to rely upon it on
appeal by not calling the lower coart's atten-
tion to it
[£)d. Note. — For other cases, see Criminal
Iaw. Cent Dig. 1 2646 ; Dec. Dig. i lOas.*]
Appeal from General SeBstons Circuit
Court of Anderson County.
Jim Ifiittlaon was convicted of maaslani^-
tor, and be appeali* Aflrmed.
Martin, Qreoie ft Barte^ of Anderaon, for
appellant P. A. Bonliam» of Greenville for
tbe 8Ut&
QAUT, Gl J. The defendant waa Indicted
for murder, and upon hia trial the Jury ren-
dered tbe following verdict: "Onflt? of man-
slaughter, with recommendation to mercy."
From the sentence Imposed upon him, he
a]n>aaled upon the following ezc^Uon: "It
la respectfully aabmitted that his honor, the
presiding Judge, erred In charging the jury
as follows: 'Mr. Foreman, on tbe Issue of
self-defense, If you entertain a reasonable
doubt as to where lies tbe greater weight ot
the testimony, the plea aa an afflmnatlTe plea
falls, and it Is not established, because It
must be eatablished by the greater weight of
tbe evidence ; and If you are in doubt as to
where lies the greater weight of the evidence,
then It baa not been established. But It,
after considering the wbole case, after con-
sidering all the evidence adduced on tbe
main Issues, the main facts pat in Issue by
tbe allegatlotts of the Indlctmoit and the
general plea of not gull^, and after con-
sidering all tbe evidence adduced in support
of tbe Issues thus raised, and the issue of
self-defense, after conaldering all the testi-
mony in the whole case, yon entertain a rea-
sonable doubt that the party Is guilty* give
him tbe benefit of that doubt, and write a
fardlct of not guilty*' The error consists In
Imposing ujwn defendant a greater burden of
proof; and In zeqnlring vc blm a svanter.
quantum of evidence^ than the law requlrea,
with respect to bis plea of aelf-defenae.**
His taonor, the praridLog Judge, charged
the Jury aa followa, la regard to tbe plea nt
self-defense: "Where one UUa another In
the oerclae ot self-defense, that la an «z-
cosable bomldde, and la not nnlawfnl.
When may one plead aelf-defei^ and what
is tbe nature of ttut lOeaT It la an affinna-
tlve defense^ and tbe harden of establlahlng
It by the greatw vdght of the evldmoe la
on him who aeti it np^ Whenever one at-
tempts the taking of tbe Ufe of bis fUlow
man, or whenever It Is proven to flie satis-
faction of tbe Jury beyond a reasonable doubt
that one baa taken tbe life of bis feUow
man, and he seeks In either case to be ex-
cused on the ground of aelf-defense, he must
be prepared to prove, and be must prove by
the greater weight ot the evidence ordinarily,
these four propositions: • • • The Ques-
tion Is: Haa tbe defendant by bis special
plea, hla afDrmatlve defisnse in tbfa case, sat-
isfied yen by tbe greater we^t of the evi-
dence that it was necessary, or apparently
necessary, to take the life ot tbe deceased?
* * * I said something about the greater
weight of the evidence awhile ago. Sometimes
that expression Is mtsnnderstood by Jurors. I
do not mean by that, Mr. Foreman, the greater
number of witnesses testifying to any given
fact, because one man may by hla superior
observation and his accuracy of observation,
by bis higher character, put more into one
statement than a dozen others with less ac-
curacy of observation, with less character,
would make in a dozen statements. When'
I say greater weight of evidence, Mr. Fore-
man, I mean the greater amount of truth,
when It comes to one or a dozen witnesses, or
whether gathered from this witness or that,
and It is the honest conclusion of the Jury
as to what the truth Is after considering all
the tesUmony adduced. * * * If you are
not satisfied beyond a reasonable doubt that
he Is either guilty of murder or manslaugh-
ter, find him not guilty. Or if you are sat-
isfied by the greater weight of the evidence
that he has made good his plea of self-de-
fense, find him not. guilty," thus giving him
the benefit ot all reasonable doubts on the
entire cas&
[1] 1. When the charge Is considered In
Its entirety, the only reasonable constructloQ
of It Is that his honor, the presiding ludge,
simply meant to Instruct thtf Jurors that If
as reasonable men they reached the conclu-
sion that the plea ot self-defense was sna-
talned by the preponderance of the evidence,
they should acquit the defendant, but that;
if there was not a preponderance of the evi-
dence In Its favor, then the d^endant waa
not entitled to an 'ftcqulttal on such ground.
[2] 2. Fartbennore, the error was so pat-
&it that it might be successfully contended -
•For iMftw cMw iMUm^ topU n/A MOtlcm NUMBBH Dto. Dig. a An. Dig. K«r-|M% Sert^s*^
.N.CL) llOODT A MOBOAK ODXXOWHSX KIKINa A' BEDUOTIOK OO. 1039
tbat the defoidant waived tbe right to rely
upon it «s a ground of appeal bj falling to
call attention to It
Judgment affirmed.
(S6 8. c. U8)
STILL T. CREEOH.
8AMB T. BDGELLB.
(Sapreme Court of South Carolina. Aug. %
1913.)
Wnxs (I 614*)— ConsTBUonoir— Lira Ebtate.
Ttttator deTised and bequeathed all bis
property to hla wife doriog her life, and, at her
death, whatever remained to hfi adopted daugh-
ter, and. at her death, to the lawful heirs of her
body. Held, that the adopted daughter took
only a life estate and not a fee eonditioiial, and
that the hein of bar body IMng at her death
took as purchaseis.
[Ed. Note.— For other cases, see Wills, Cent
Dig. if 1893~U16; Dec Dig. { 614.*]
leaser, J., dlssentlnf.
Appeal from Common Pleas Otrcnlt Court
of Baimwell Coontsr ; B. F. Bice, Judge,
Two actions by Flor«ice Still against Har-
lan Creech and against laabtile 0. Edgelle,
wbicSi, by consult, were beard together.
From ju^ment in favor of plaintlfl^ de-
fendants appeal Affirmed.
J. A Wlllla and J. O. Patterson, both of
Barnwell, for appellants B. C. Holman and
B. Bf. Darlington, both of Barnwell, for re-
spondent
GABY, O. J. These two acttona were
brought to recover possession of the tracts
of land described in the respective complaints,
and, by consent, were beard together. The
appeal Is from the decree of his honor the clr-
colt jadge conatmlug the will of Andrew Lee.
From the agreed statement of facts it
appears: That Andrew Lee died in 1878,
leaving of force his last will and testament,
which was as follows: **I give and beqneath
unto my beloved wife, Anna Lee (after pay-
ment of my just debts), all my estate both
real and personal of whatever kind or nature,
during her natural life, and at her death
whatever may remain at that time, I give
and bequeath unto Laura Sanders (my adopt-
ed daughter) daughter of William S. San-
ders, during her natural life, and at her
death to the lawful heirs of her body, share
and share alike, but should she die leaving
no such issue alive at her death, then to go
to her brothers and sisters and the survivors
of them. And the property so bequeathed,
la not to be subject to the debts or contract of
any husband, she may have or intermarry
with. But to be and remain for her sole and
separate use and behoof." That Laura San-
ders iutermarrled with one SUnson, and
died in December. 1903, leaving a son, who
died Intestate and unmarried, and a daughter,
Florence, the plaintiff herein, who intermar-
ried with one Still, and she and her children
were at the time these actions were coD)"
menced, and are' now, the only Burvlving
issue of the said Laura Sanders. That Anna
Lee, widow of the testator, died prior to the
death of Laura Sanders. That Laura San-
ders and some of her brothers and sisters
were living at the time of the execution of
the said will, and several of her brothers and
sisters were living at the tixae of her death.
That the lands described in the complaint
were alienated by Laura Sanders after the
birth, and during the Ufetime of issue bom
to her.
His honor the circuit judge In construing
the will held that Laura Sanders took only
a life estate, and that the heirs of her body
living at the time of her death took as pur-
chasers, and not In fee conditionaL The ex-
ceptions assign error In said ruling. The
ruling of the circuit Judge la sustained by the
case of McCorkle v. Black, 7 Rich. Eq. 407,
which is cited with approval in Williams v.
Klbler. 10 S. C. 414. Mendenhall v. Mower,
16 S. C. 303; Powers v. BuHwlnkle, 33 S, O.
203, 11 S. E. 971; Gadsden t. Desportes. 39
S. C. 131, 17 S. E. 706; Selman t. Robertson,
46 S. C. 262, 24 9. E. 187; Davenport v.
Eskew, 69 S. C. 292, 48 S. E. 223, 104 Am. St
Rep. 798 ; Guy v. Osbom^ 91 S. a 291, 74 S.
E. 617.
Judgment affirmed.
HTDRICK and WATTS, JJ., concur.
ERASER, J. I dissent I think Laura
Sanders took a fee conditional, and, the con-
dition being fulfilled, her deed conveyed the
fea '
on N. a w)
MOODT & MOBOAN T. CULLOWHBB MIN-
ING A BBDUOnON 00.
(Snprems Oonrt of Nortii CazoUna. Hay 28;
1918.)
Appeal from Superior Court, Jackson Coun-
ty: Ferguson, Judge.
Action by Moody & Morgan against the Cul-
lowhee Mining & Reduction Company. Judg-
ment for plaindfb, and defendant apiieals. Af-
firmed.
See, also, 78 8. IL T17.
<X C Cowan, of Webster, for appellant
Walter EI. Moore and All^ & Buchanan, all of
Webster, and S. Brown Shepherd, of Raleigh,
for appellees.
CLARE, a J. The plalntifFs claim damagM
by reason of defendanrs failure to give them
tbe hauling contracted fqr; the plaintlfrs hav-
ing gone to considerable expense to equip them-
selves with teams for the work. There are nu-
merous exceptions, but tbe controverted matten
are substantially as to the facts, and these
were pnraerly submitted to the jury,
Ibe defendant earnestly oontUMed diat diera
was not sufficient evidence or data from which
the jury could find, with any certainty, the
amount of damages sustained by the pl^ntiffs
In consequrace of the breach of contract, U the
jury should find, as they did, Uiat ocmtract
was broken by the defendant and tliat Uie
plaintiiCs were ready and wimng to perfonn
1 thdr part of the contract But upon examlna-
■ror ethw eases sss ssms topic sad ssetton NC^^^l in * Am. Dig. Ksy-^jte. gwliis ft lUp'r ladSMs
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n 80UTHBJASTBIBN BUSOBTltB'
ttoQ of the evidence we flbd lofficient to "go to
the juT upon all the Uenes sabmitted. After
fnll oonaideration <^ the record and tbe excep-
tloBi, and tbe very fall brief filed by couosei
for tbe defendant, we think the case has been
fairly tried, and that the defoidant baa no
caoae to complain of error in any of the partic-
olan aasignaa.
No orror.
(162 N. C. 626)
UNNEY T. MINTS et al
(Supreme Conrt of North Carolina. May 7,
1813.)
Appeal from Saperior Court, Alexander Coun-
ty; Lyon, Judge.
Special proceeding by W. O. Linney acalnst
W, D. Mtntz and another to establish a ooun-
dary line. From a jodgment establishing tbe
line, defendants appeal. Affirmed.
J. L. Gwaltney, of TaylorsviUe. and W. A.
Self, of Hickorv, for appelUnts. F. A. Linney,
of Boone, J. H. Burke, of Taylors vllle, and U
C. Caldwell, of Statesville, for appellee.
PE}R CUBIAM. This was a spedal proceed-
ing, started before the clerk ci Alexander bu-
Grtor court, to establish the boundary lines
tween tiie plaintlft and the defendants, and
heard on appeal by I^on, Judge, and a Jury at
the fall term, 1912, of said court, upon the fol-
lowing issue: "Is the line from black 4 to
blade B Cbe true dividiDg line between the plain-
tiff and the defendant?"
We are of opinion that tbe qneatton at issue
is one of fact, and that it bai been determined
by the finding of the Jury.
Upon a renew of the Moord, m find no er-
ror.
<1S2 N. C. S28)
HOPKINS et al. v. CRISP et al.
(Supreme Court of North Carolina. May 28,
1913.)
Appeal from Superior Court, Cherokee Coun-
ty: Ldue, Judge.
Actltm by W. R. Hopkins and others against
J. M. Crisp and others. Judgment for plain-
tltts, and defendants appeal. Affirmed.
Civil action tried upon this issue: (1) "Is
the land claimed by plaintiffis, tract No. 1,949,
located as shown on the plat, and as contended
by plafntiffsr Anawer: ^^Tes."
A. D. Raby, J. N. Moody, and R. L. Phillips,
all of Robbihsrille, fot appellanU. M. W. Bell
and J. H. Dillard, both of Murphv, and Zebn-
lon Weaver, of Asheville, for appellees.
PER CURIAM. We have examined the rec-
ord In this case, and considered the several as-
signments of error, and we find no reversible
error. The controversy appears to be almost
exclusively one of bet, and we think 'tb» court
properly pren&ted it to the Jury.
No error.
(n W. Va. 648)
BROWN T. BROWN et aL
(Snpxtma Court of Appeals of West VlrglBla.
June a«. 1913.)
(BvBabiu »v tAa OomtJ
L Appeal and Bsbos ({ 47*)— Appkixatx
jDBISDIOTIOI^AUoaifT IM CONTBOVBBST.
Upon an inquiry as to whether the amount
Involved In a pecnniary controversy la snfflcient
to confer appellate jurisdiction, the amoont of
the claim asserted on the one ride and denied
on the other, .not the validity thereof, is tbe
criterion, unless Uie daim is (Aviouaty pretoi-
tious and made merely to confw jurisdiction.
[Ed. Note.— For other cases, see Appeal and
Error, Gent. Dig. H 202-225 ; Dec. Dig. | 47.*]
2. GXSCUTOBS AND ADlONXSnUXOBS Q 120*>—
COSXECUTOBS— POWBES OV ADlUKXBXBATcn
De Bonis Nov.
One of two or more coeicecntors, who has
given a new bond and retained his position aft-
er the resignation of the others, has tbe status
of an administrator de bonis uon administratis,
and can sue his former associate only for lenlr
ly uoadministered assets remaining in nis
hands, or in respect to transactions betweoi
themselves. He cannot maintain a bill to suv
charge and falsify ex parte settlements made by
the retired executor, nor charge him as for a
devastavit
[Ed. Note.— For otiier cases, sse Ezecntots
and Administrators, Cent DlS' K 485-492;
Dec. Dig. I m.*l
& EXBOTTOBS ARD AlUniflSTkATOEBjl ISO*)—
ADUINI8TBAT0B8 DB BOHIE NoH— UHADlOir-
Z8TEBE0 Assets.
Property converted or altered by an execu-
tor or administrator from the state or condition
in which the testate or intestate left it is re-
garded in law and equity as having been ad-
ministered, even though such eonveni<m or al-
teration be an appropriation of the property hy
the personal representative to Us own use or
amount to a devastavit
[Ed. Note.— For other cases, see Executors
and Administrators, Cent Dig. H 485-481!;
Dec. Dig. I 120. •!
4. EXECUTOBS AND Aduinistbatobs (| 120*)
— ADiaNISTBATOBS DB BoNIS NON— UNAD-
uimistbbbo Assets.
The limitation upon the rights and powers
of administrators de boots uon here mentioned
has not been abrogated nor changed by the pro-
visions of section 1 of chapter 118 or sections
25 to 82 of chapter 87 of Oide 1906.
[Ed. Note.— For other cases, see Executors
and Administrators, Out. Dlk M 48S-492;
Dec Dig. S iaO.*3
Ai^ieal fnuB Oireoit Oonr^ Plaasanti
County.
Suit by E. W. Brown, executor, against G.
U Brown and others. From a decree for
defendant^ pUlntlff avpe«l& Aflirmed.
Wm. Beard, of Paikerftbarg, for appellant
dtarlefl h. Brown, of Ravenswood, and
Oharles a. Hogr, of Morgantovn, tot appd-
lees.
POFFENBAROEfi, P. The decree com-
plained of on this appeal, diamisslns the
original and first amended bills on pleas In
abatement' for nonjoinder and mfaijoinder,
and sustaining a demurrer to a second
amended' bill, disposes of Htlgation com-
menced in Jackson county January, 190^
and ending In Pleasants county In 191L
Charging failure on the part of CSiarles 1^
Brown, the active ooe of three ooexecators
of tbe wm of Anna H. Brown, deceased, to
account for and pay over to the plaintiff,
E^raim W. Brown, a succeeding oir snr-
Tlvlng executor, all of t)ie (estate whidi Wd
codie Into bis bands and bad not been dis-
bursed or distributed to the parties entitled
tiiereto Ifi tbe course of administration. Ibe
•For otber eaiSs ass same topis aaft aaechtt bi Dee. XHc * Am. Dir Kay-Ho. SsrfsaA.1^'' Indsaa
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BBOWir BBOWJT
1041
bill spedfled ceztatn asaeta of the e«t«to wltta
which the executors had not baen diaiiped
In any of the three ex parte ■etUements
made by them, and denied the. TaUdlty of
certain dlsbaraeuientB for which credit had
been takoi, and songlit correction of the al-
lied errors in the settlemente^ and a de-
cree for considerable soma of numey allseed
to be due and owing from the defendant as
late executor of the will.
The testatrix had designated as the execu-
tors of her will A. B. Wells, Joseph H.
Brown, B. W. Brown, and Charles L. Brown,
the last three of whom Qaallfled and took
upon themselves the execution of the will.
According to the allegations of the bill,
Charles L. Brown really had charge of the
estate. For some reason not disclosed, he
filed his iKtltlon in the county court of
Jackson county on the 9th day of Febmary,
1899, onder the provisions of section 1 of
diapter 118 of the Code, praying to be per-
mitted to resign. On this petition a sum-
mons or rale was Issned, requiring all in-
terested parties to appear at the April term
of the court and show cause. If any they
oonld, why he should not be permitted to re-
s^n. At that term, it appeared that he had
submitted his accounts to one of the com-
mlssloQers of the court, and the hearing of
the matter was conttpued until the comple-
tion of the report On the 24th day of &Iay,
1899, an order was entered redtlng comple-
tion and filing of the report and certain ex-
ceptions thereto by B. W. Brown, one of the
executors, for failure to show from what
source two items charged In the account, one
for $1,228.48 and the other for $3,000.48, had
been derived. In response to this, C. U
Brown tendered and filed his affldavit, show-
ing on what accounts Uie money had. been
collected, whereupon the court overruled the
exception and approved and confirmed the
report The order then recites tbat C. L.
Brown had fully settled his account accord-
ing to law and accounted for all funds and
assets In his hands administered as well as
nnadmlnlstered, and accepted his resignation,
to become effective on the. appointment and
Qualification of his successor. This having
been done and a new and additional , bond
required of the remaining executors in the
penalty of $40,000, Joseph H. Brown tender-
ed and fi^ a paper, stating his desire not
to serve longer as one of the execators.
Thereupon a rale wu awarded against him
and E. W. Brown to show cause, at the next
term of the court, why they should not be
required to execute a new and additional
bond as executors. On the 16th day ot Au-
gust, 1899, E. W. Brown tendered the re-
quired bond, which the comrt approved. The
order approving It also acc^;>ted the previous-
ly tendered resignation of Josieph H. Brown
and he and Charles Ll Brown were ordered
to *'tam over and ddlvw to the said Bph-
ralm W. Brown, sole execntor of Anna H,
Brown, deceased, all the property and aaset^
78S.1C-66
belonging to tike wtate aC Anna H. Bzmrn,
deceased."
The three settlements, as made np by the
coounlstionef and confirmed by the court,
show a partial administration of the estate
amoonting to something more than $24,000,
and B. W. Brown, as sole executor of the
will, reo^pted to Charles L. Brown and Jo-
sei^ H. Brown, as late execntors thereof, for
certain notes and other securities, unadmln-
Isteced assets, amounting to several thousand
dollars. This receipt bears date November 8,
1899, and recites the existence of real estate,
constituting part of the assets, appraised at
$6,000. These assets were delivered over in
obedience to the decree of the drcolt court
of Jackson county, made some time In the
year 1899, In a suit brought by E^phralm W.
Brown, as sole executor of the will, against
O. L. Brown and J. H. Brown, as late execu-
tors thereof. In that suit the proceedings
In the county court relating to the resigna-
tion of Charles U Brown and J. H. Brown,
and the giving of a new bond by Ephralm W
Brown, were exhibited, and, upon considera-
tion thereof, the court was of opinion tbat
the defendants and each of them had been
discharged as such executors, and BL W.
Brown was the sole executor of the will and
entitled to the assets of the estate, and the
otA&t so recited. Accordingly, it was ad-
judged, ordwed, and decreed that the de-
fefidants turn over to the said plaintiff, R
W. Brown, as sole execntor of the estate of
Anna H. Brown, deceased, all assets of thA
estate remaining In their hands to be admin-
istered, without any specification of such as-
sets, and that the suit be dismissed without
prejudice to any party as to any proceedings
they might thereafter desire to take in re-
lation to any of the matters concerning said
estate or the administration thereof.
Deeming the order of the C9unty court in-
effectual to terminate the powers of Joseph
H. Brown as exe<^tor, because of noncompli-
ance with the requirements of section 1 of
chapter 118 of the Code, he not having filed
his petition and given notice and made the
settiements thereby required, and the decree
Just referred to as inconclusive as to the
status of Joseph H. Brown, because of thi*
reservation or saving clause embodied there
in, pleas In abatement to the original and
first amended bill setting up the nonjoinder
of Joseph H. Brown as plaintiff, and, Eph-
ralm W. Brown having been made a part}
defendant as late executor, misjoinder as to '
him was also set up in abatement Othet
matters of abatemoit pleaded relate to pro-
cess and servloe thereof. Some of these
pleas, particularly the latter, were sustained
by orders entered in tiie circuit court ot
Jackson county. The others were sustained
by the circuit court of Pleasants county to
which the cause was removed on account of
^le disqualification of the Judge of the dr-
cttlt court of Jackson county as to the piu>
jjcutacaae.
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1042
78 SOUTHBASTBBN' BBPOBTBB
(W.V».
The second ftmended bill was filed in the
drcnlt court of Pleasants county making
Joseph H. Brown a party defendant as ex-
ecutor, he havlnK refused to Join In the bill
as plalntur. To this bill, pleas in abatement
set up the fatlnre to Join Joseph H. Brown as
plaintiff, and also Irr^ularltles as to pro-
cess, all of which pleas as to the second
amended bill, were rejected. O. I* Brown
and Joseph H. Brown then interposed their
sereral demurrers to the second amended
bill, both of which were sustained and the
bin dismissed.
[1] In support of a motion to dismiss the
appeal, the brief contains a calculation and
argument, .based upon the facts set forth in
the Wl and exhibits, the purpose of which
is to show the amount InTolved Is below the
amtellate Jurisdiction of this court, not more
than flOO. The bill alleges the appraised
TOlne of the estate to have been $81,523.07
in 1896, and matcee the three ex parte settle-
ments exhibits, showing disbursements whli^,
together with the assets tnmed over by O. L.
Brown to E. W. Brown, ^eeed the amount of
the a^ralsonent hy something over $4,000,
after deducting from the disbursements all
items described In the bill as improper cred-
its. In this war, tile appellee endeaTored to
show, upon the ^cts set forth In the bill tt-
seU» tltat he has accounted for considerably
more money than is alleged to luTe gone
into Ills bahds, Uid that there la In fftct noth-
ing due from him. This position 1> vntm-
able for the following reasons: The bill
charges misapproprlatlfm of the proceeds of
railroad bonds amounting to aereral flurasand
dollars as well as some other items. Tliese
soma, tt assets at all, may be administered
assets, within the meaning of the law and
tlie plalntur may not be entitled to recover
them, bat Che bill nerertheless daims them.
Conceding them to be administered assets
or wasted assets fbr which ttiere ma at
common law liability only to the beneficiaries
of the will, rls^t In the sacceedlng executor
to demand them tnm his predecessor is
predicated upon the statute which, it is ar-
gued, has changed the role at conunon law
in this restpect. Among the assets turned
over to the tdalntlff, there is a note executed
by 0. L. Brown payable to the executors of
the will of Anna H. Brown for the sum of
13,000. Although tlie bill contains no specif-
ic prayer for a decree for the amount of this
note, it Is argued that such relief may be had
nnd^ the prayer for general relief. These
contentions and claims on behalf of the
plaintiff In error may not be well founded
as regards the merits of the bill, but they
are suffldent to create a controTersy which
Involves much more than the Jurisdictional
amount
[I, 31 Fairly construed, the bill charges the
defendant as for a devastavit In the capacity
of executor. In so far as the assets sought
by It have been disposed of, they are admin-
istered assets. Such of them as are alleged
to hare been converted by the d^endant to
his own use are regarded In law as admin-
istered. Th^ do not remain In his hands
actually or constructively in the state in
whldb he found them as executor. In other
words, their character has been changed, and
he does not admit that they belong to the
estate. If there Is a liability, or. If the acts
complained of amount to a devastavit, the
liability Is not one for unadmlnistered assets.
Coleman v. ATMurdo, 5 Band. (Va.) 61; Mc-
Creery v. Bank, 65 W. Va. 663, 47 S, B. 890;
Gottberg v. Bank, 26 Abb. N. G. 60, 13 N. T.
Supp. 841; Jones v. Clark, 26 Grat (Va.)
642; Hartson v. Eld&i, 68 N. J. Bq. 478, 44
AtL 166. Such assets are not recoverable
by an administrator de bonis non. They do
not in any sense b^ong to his administration,
but to the former or preceding one. He is
not In any sense liable for them, unless they
actually come into his hands, nor has he
any right to recover them. McCreery v.
Bank, cited; Coleman v. M'Mordo, dted;
Veach V. Bice, 131 U. S. 203, 9 Bupk OL 730,
83 L. Bd. 168. nils proposition is so well
settled as to require ndthor dlscussira nor
dtaliou of authority. Bight of action as to
them is in the legatees or other beneficiaries
of the wUL
But It is said B. W. Brown is not an ad-
ministrator de bonis noot and that he holds
his title under the original v)pointment, no
change having been made therein tixcept to
require a new bond of hlin. Tedinically be
may not be an administrator de bonis non,
but'on principle he most be treated and re-
garded as standing In the same sltuadon.
So far as ttie estste has beat disposed of by
O. li. Brown as executor, it hss been admin-
istered, and the residue remains unadmlnis-
tered. This works as complete a severance as
if C U Brown had beoi sole executor and
had resigned, or, being a coexecntor had
died. If one of two or more eoaeentora,
acting singly and alone, disposes of any por^
ticoi of the estate, his act is as complete,
full, and effectual as if his companions had
Joined In tt Williams, Bx'rs, H 818, 819.
The conclusion stated in Veach v. Rlc^ 131
TJ. 8. 293, 9 Sup. Gt 730, 33 L. Ed. 163, and
the Georgia statute construed in that case,
simply declares the logical results of com-
mon-law principles, and the statote may be
regarded as merely declaratory of the com-
mon law.
[4] This rule is not changed by the provi-
sions of section 1 of diapter 118 of the Code.
That statote deals merdy with the mattw of
redgnation and conditions requisite thereto.
The account Is not taken as the basis <tf a
decree or Judgment, for the court la not
authorized to enter any decree or pronounce
any Judgment, or enter any order as the
basis for a decree or Judgment The stotute
merely prescribes what the administrator
must do as a condition to the acceptance of
his resignation. It does not authorize an
acceptance of the reslgnatlaD untU the p^er
9UDKINS T. OHIU
1043
hu been oomiAea irlfh. If Ite fldnduy
tail* after having made the Bettlement and
cUedcwed wbat remains due to tbe estate to
torn It over to snCh person as tbe court may
onter, Qie restgnatilon cannot be accesited. he
ronalns Uable tax bla bond and In respect to
Us administration. Tbls conclusion involv-
es nothing more than tba reading of the
statute in the light of Ita parposa
SeetioDs 25 and 32 and others of chapter
87 have no relation to the subject They
deal with the aettlanents of Mndaries with-
out any reference to resignation, removal, or
succession. When an eziatlDg fidndarr has
made bis settlement and it appears that any-
thing is due from him, the court may order
It paid to the persons entitled thereto, and
any person Interested may bring a suit in
chancery In the circuit court of the county
to compel compliance with tbe order. Tbls
creates no new interest or rights. An ad-
ministrator de bonis non has no Interest In,
or title to assets administered, in the legal
sense, of the preceding administrator or ex-
ecutor. He is not a person Interested within
the meaning of the statnte.
The observation of Judge Snyder in Gil-
mer T. Baker. 24 W. Va. 72, to the effect that
the common-law rule as to the rights of an
administrator de bonis non Is subject to
certain modifications and exceptions in
courts of equity, Is not to be taken as going
to the extent of abolishing the rnle. What
is meant by the observatloa Is very clearly
shown by the opinion In the following terms:
"The right and duty of an administrator de
bonis non to administer the fund now in
question was determined by the appellate
court on the appeal of Hopkins. The court
in Its mandate directed a part of this fund
to be paid over to said administrator to be
administered by him." The statute adverted
to by him in a later portion of the opinion
is substantially embodied In section 24 of
chapter 87 of the Code. Its purpose Is to
enable a personal representative who has
resigned or been removed, or the personal
representative of a deceased executor or ad-
ministrator, to discbarge himself by the pay-
ment to the administrator de bonis non,
if he sees fit to do so, or if any person In-
terested desires it to be done; but the pro-
visions of this statute extend only to securi-
ties for money, loaned or invested, standing
In the name <tf a deceased fiduciary, or one
whose powers have been revoked, and not
yet .transferred to his successor. It confers
upon the successor no right to surcbai^ and
ftJidfy the accounts of his predecessor or
demand admlnistraed assets.
Ii: the plalntiir has any right to recover
the amount due on tiie $8,000 note, hereinbe-
fore referred to, the remedy at law is both
available and fully adequata Althoos^ ex-
ecuted at a time when 0. I^ Brown, B. W.
Brown, and Jos^h H. Brown were coexec-
utori^ It to not payable to tluan by name,
bat to Uie ezecnton of the estate of Anna
H. Brown generally. Being admitted assets
of the estate, since it was turned over as
part thereof by C L. Brown to B. W. Brown,
and Ob Xb Brown bdng no lon^ an exec*
utor of the will, It would not be necessary
for him to Join as plaintiff In an action there-
on, miis is tbe <dear result of the assurap*
tion that the note was part of tiie assets of
the estata If it is not, and is merely the
evidence of a mlsapproprlatlra, or devasta-
vit on tbe part of CX L. Brown, as is Intlnuit-
ed in the bill, then there is no right of re*
covery at all in the plaintiff. These ob-
servations are not to be taken as expressing
any decision as to tbe status of tbe fund
r^resented by said note, but only as saying
the allegations respecting It are not snffldent
to sustain tbe bill.
These conclnslons, respecting the demur-
rers to the second amended bill, render it
unnecessary to enter upon any inquiry as
to the correctness of the rulings upon the
pleas In abatement.
For the reasons stated, tbe decree com-
plained of will be affirmed.
(73 w. Va. <U}
HUDKINS .et aL t. CRIM et al.
(Supreme Court of Appeals of West Ylr^nla.
Feb. 4, 1913. Rehearins De-
nied June 30, 1913.)
fSvltalut hp the Court.)
1. MoBTOAGKS (S 82*)— Nature aito Requi-
sites—A bsolutk Deed as Mobtoaoe.
Whether a deed, absolute or conditional on
Its face, is, in fact, a mortgage, or a mere se-
curity for the payment of money. Is a question
of intent, largely determinable by the situation
of ttie parties and tbe anrroimding facto and cir^
cumstaoces.
[Ed. Note.— For other cases, see Mortgages,
Cent Dig. ({ 60-66. 8MM; Dee. Dig. | S2.*j
2. MOBTOAOBS (I 88*)— AB80I.U1C DKID AS
MoBTGAOB— Evidence.
Ab the proof of eguitahle title must be
clear, mere conflicting oral testimony is gener-
ally insufficient to establish it. In addition,
there should be facte and circumstances making
out an equity in the grantor outside of, and be-
yond, the oral testimony and independent of tiie
deed.
[Ed. Note.— For other cases, see Mortgages,
Cent Dig. iS 108-111; Dec Dig. { 8&*]
3. MoBTOAOVS (I 82*)— Natube and RiQtri-
82TB»— Absoluts Deed as Mortgage— Re-
UNQUISaUENT OP EQUITT OP REDEMPTION.
If tbe transaction was originally a security
for the payment of money, it will be regarded
and treated in equity as a mortgage, and tbe
maxim, "0nce a mortgage always a mortgage,"
applies, and it wIU remain such unless chained
by a new contract upon an adequate consid-
eration, BO reasonable and fair as to relieve it
of any luaplclon of unconBcievtions advantage.
Ordinarily subsequent writings, not shown to
rest upon a valuable conaideration, admitting a
different relation or conv^ing the equity of re-
demption, do not change It
[Ed. Note.— For other cases, see Mortgages,
Cent Dig. SI 60-66, 84-04; Dec. Dig. { 32*]
•Tor other cmm ms sum tople and sseUoa NTTHBB^ s«e. DI9. a Asu pig. K«y-N(^
78 BOIT^AlaTBBK BBFOBTBS
4. Veajjdjslesit CoNVETJUion d iT*j— TBAire-
AonoHB INVAUD ~ Vtan or FUtrDUURT
Acn&
A purchase of property by a married wo-
man bona fide lu its iaception does not lose its
character as such hy the snbsequent condact of
the boBband Intended to 'defrand his creditors.
[Ed. Note.— F<» other cases, lee Fraudulent
ConTflyances, Cent Dig. { 2S; Dec. Dig. | 17.*]
6. JUDOMBNT (S 678*)— GonCLUSIVERBSS— Pkb>
SONS CONOLDDED— PaiVIES.
A privy in ratate is not bound by a judg-
ment or decree recovered aeainst him from
whom he derived bis estate, after be derived it.
merely because of such privity.
[Ed. Note.— For other cases, see Judgment,
Cent. Dig. 1195-1199, 1221; Dec. Dig. i
67a*]
a BouiTDABiEa (S 43*)-^Tn)OMENT— Location
OF BOUNDABT.
A decree dismissing a bill to redeem a
mortgage in a cause in which the pleadings
make no definite issue as to the location of the
boundary tines, but In which evidence was ad-
duced to identic them upon the ground, is not
an adjudication as to the location thereof.
[Ed. Note.— For other cases, see Boundaries,
Cent Dig. I 208 ; Dec Dig. S 43.*]
1. MOBTGAQES (I 616*)— REDEMPTION— ACTION
TO Redbeu— Offbb to do Equity.
The plaintiff in a hill to redeem from a
mortgage must manifest wUlingnesa to do equi-
ty b7 e. tender of the amount due to the mort-
gagee or by an averment of willingness to have
the same paid out of the proceeds of the land.
[Ed. Note.— For other cases, see Mortgages,
Cent Dig. » 1833-1814 ; Dec Dig. S 616.*]
Appeal from Circuit Court, Barbonr County,
Bill In equity by Mary J. Hndkina and an-
other against E. H. Crim and others for an
iDjQnction and to compel the conveyance of
a tract of land. From a decree rejecting
plaintiffs' claim of equitable title, adjudicat-
ing the title in defendants, dissolTing the in-
junction, and awarding a writ of possession,
plaintiffs appeal. Decree reversed. Injunction
reinstated, and cause remanded.
Wm. T. George, of Phllippl, and John B.
Dllwortli, of La Porte, Ind, for appellants.
J. Blacbbum Ware and Warren B. Kittle,
both of PhlUppl, tor ameUeeo.
POFFENBABGEB, P. The bin In tUa
cans^ baving for its [mrpoae an. iDjnnctlon
against the prosecution of an action for un-
lawful entry and detainer, settlement of an
account, and a compulsory GODveyance of a
tract Of 40 acres of land, proceeds upon the
aaaertton and c^lalm of a trust, the purposes
of vrhUAi have been accomplished. The ap-
peal Is from a decree, rejecting the claim ot
equitable tltle^ adjudicating title in the de-
fmidant, dissolving -the Injunction, and award-
ing a writ of possession.
The question presented is very similar to
tbat involved in the case of A. A HndUns
V. Grim and Peck, decided by this court and
reported In 64 W. Va. 22S. 61 S. B. 166. This
controversy relates to 40 acres of tbe VtH^
acre tract InTolved In that suit and there
a^Ddged, a^ against A. A Hudkins, to be the
property of Crim's helxa. This 40-aGre tract
Is dalmed by 'the wife of B. B. HudUns un-
der a conveyance from A. A. Hndldni^ mat^
dating th6 adjudication against him.
She purchased It, while the creditor's salt
of Crlm, instituted In November, 1885, to sub-
ject A A Hudkins' land to sale for tbe satis-
faction of liens, was pending. Though a
pendente lite purchaser and not protected In
her purchase for that reason, she claims
Crlm, the moving plaintiff In that suit who
purchased the entire tract of the Hudldns
land, made himself a party to the transac-
tion with her. The deed firom A A. Hudkins
to her is In Crim's writing, and he took the
purchase-money notes, six in number, amount-
ing to $1,360, by assignment from A. A. Hud-
kins, which notes were never returned to her
and are now In the hands of Crim's execu-
tors. As to whether any money was directly
paid on tbem the evidence is conflicting. After
the Grim purchase of the entire tract, A. A
Hudkins and E. B. Hudkins, both hoi>ele8sly
insolvent, continued to reside upon the land,
and continued to do business largely in the
names of their wives. Some time after the
purchase by M. J. Hudkins of the 40-acre
tract of land, a residence and outbuildings
were erected on the Hudldns farm by her and
her husband, and there they bare since re-
sided and reared a family.
About the year 1902 or 1903 the Hndkinses
gave to the Bijou C6al Company options upon
the coal under tbe land, which Crim refused
to recognize, but he later optioned and finally
sold the coal under the entire tract to tbat
company at the price specified in the Hudkins
optiona He died in January, 1909, and, when
Ids executors took charge of Ids business and
attempted to collect the balance due on the
purchase money of the coal, the purchaser
objected to payment without a release of the
claim of M. J. Hudkins. M. Peck, one of the
executors, thereupon prepared a quitclaim
deed for execution by her and her husband,
conveying all their right, title, and Interest
Id tlie 40 acres to E. H. Crlm and G. H. Fedc,
heirs at law of J. N. B. Grim, and sent It by
mail to B. B. Hudkins. It bears date Hardk
21, 1905, and was acknowledged on the 28ttL
day of Uarch, 1905, and returned to Peek.
It Is under and In emnecllon with tlds oon-
veyanee that the allied trust is sM op and
claimed. Following the establidied course uit
conduct, clearly shown by tbe testimony, M.
J. Hndklns acted upon the advice and t7 the
direction of her buaband In tbe execntlim of
the de^ She bad no rwrcsentatlons ttmn
Peck or tbe Crlm betrs as to the purpose^
other than those given t9 ber bnSband, un-
less the letter tmnsndtttng tbe deed conveysd
It, for she bad no otbw direct oonunnidcatloa
from them or any of tbeoL Tbe letter Is not
produced npr la its contents sbowB. As to
the purpose of the conveyance, the tosttmony
of E. B. Hudkins, the husband, conflUte -with
that of Peek shd BL H. Oilm. He says be
•rar eOksr esMS SM ssU* topis and ilsAIbBlnTHBBB U DMi XMl. * Am.-Dlg.
i045
called upon tbem «ftor )3i» recd^ ,of Uie
unexecuted deed, and was assured that tbe
purpose was merely to remoTe tbe obstacle to
tbe collection of tbe money due from tbe
coal company. He says be related to tbem a
prior understanding and agreement between
bis wife and J. N. B. Crlm. to tbe effect ttaat
tbe balance of tbe parcbase money due from
ber on ber notes given to A. A. Hndklns for
pnrcbase money of tbe land and assigned to
Crlm was -to be paid out of tbe purcbase
money of tbe coal under tbat land, about 35
acres at $80 an acre, and tbe surplus paid
over to ber, and expressed his willingness to
execute tbe deed In order to enable tbe ex-
ecutors to collect tbe money from tbe coal
company, provided tbe surface of tbe land
sbould be reconveyed to bla wife, and tbat
Feck assented, saying "Yes, yes," as tbe
statements were made. Be says be tben went
to E. H. Crlm's store wltb tbe deed in bla
possession, and obtained from Crlm an enve-
lope In wbicb to mail tbe deed back after
execution and made tbe same statement to
bim, and be said "All rlgbt," from wblcb
statement tbe witness says be Inferred be
would do wbat J. N. B. Crlm bad agreed to
do; and be says E. H. Crlm furtber said be
bad belped bis fatber make tbe calculation
on tbe amount due from K B, Hudkins and
bis wife, and in tbat connection said, "Inter-
est counts up fast" All of tbls is flatly,
positively, and totally denied by both Peck
and Crlm. Nothing was paid for tbe con-
veyance, however. The consideration recited
In tbe deed was $1 in hand paid.
The alleged contract between Crlm and
Mrs. Hudkins antedated bla purcbase of tbe
Hudkins farm. Under tbe application of
strict legal principles, ber pnrdutse under
tbe pesden^ of tbat suit was futile and
abortlTA Legslly and logically J. V. B. Crlm
Cook by bis purchase at tbe judicial sale
such title as a stranger would have ac-
quired tberennder. His preparation of tbe
deed from A. A. HudJcins to H. J. Hudkins
and acceptance o< tbe notes of tbe latter as
assignee while tbe suit was pending eoa-
stitnted no legal impediment to tbe iKircliaBe
of tbe land at tba Judicial sale.
[1] AU of tUs tbe theory of tbe Mil nee-
essarily admits. Legal tltla la X N. B. Oilm
la not denied. Tbbugb his title Is absiAnte
on its face, tbe blU dutrges tbe deed to be
In ftict a mortgage. Deeds absolute on tbelr
fiices, whether made under purchases at in-
dldal sales 6r not, bave nftm been declared
to be Bortgages In point of Hsct In Law^
race T. Du Bois, 16 W. Ya. 443, tlw court
hM the tolUniIng drcunstances to be in-
dtcatlve of Oie relation at mortgagor and
mortgagee: "First Where the parties ad-
mit that tbe grantor owes, after tbe execu-
tion of the deed, the consideration of the land-
to Qie grantee as a debt Second. If this
allied ebndderation Is grossly Inadequste.
ZUrd. If - the Toodot remalas bi possttalo^
of tbe land for many years without the pay-
ment ct any rent" VangUder t. Hoffman,
^ W. Ta. 1, adds tbe following drcum-
stances as Indicating tbat relation : "Blrst;
that the grantor was hard pressed for mon-
ey, and that the grantee was a known mon-
ey lender ; second, tbat the actual szecutlon
of the deed was preceded by a negotiation
for a loan of money by the grantee to the
grantor; tbird; that the parties Old not ap-
parently consider or contemplate 'ibe quan-
tity or value of tbe land.** ' In tbe Inception
of the transactions between Cilm and the
Hudklnses, BI, J. Hudkins was not his debt-
or. She becfune so only by tbe execution of
ber notes to A. A. Hudkins and tbe asslgn-
moit thereof to <MnL She was not tb«a a
debtor needing money, applying to a money
lender for a loan. She was a purchaser of
land. By that purchase, however, she be-
came tbe debtor of Crim, and by her deed
took an equitable titU} from A. A. Hudkins.
Though the r^Hon of borrower and lender
between ber and Grim did not exist, the re-
lation of debtor and creditor was utabll^ed,
and tbe relation of mortgagor and mortgagee
may have sprung out of Crlm's purcbase at
tbe Judicial sale. If, In point of fact he pur-
chased for ber boieilt, intending to permit
ber to pay ber notes and redeem the land,
and thweafter to make ber a deed for it tb^
sttnation would be the same' as if she had
been his debtor originally and he had taken
a deed frpm her, absolute on Its face, but
Intended to be a mortgage. liskey v. Sny-
der, 66 W. Va. 610, 49 S. B. 515. Tbe fol-
lowing authorities are to the same effect:
Jones, Mort | 332; Byan v. Dox, 84 N. T.
307, 90 Am. Dec. 696; ^rown v. Lynch,
1 Paige (N. T.) 147; Sahler v. Signer, 37
Barb. (M. T.) 329; Oulnn v. Locke, 1 Head.
(Tenn.) 110; Hlester v. Maderia, 3 Watts
ft S. (Pa.) 884; Roberts v. McMahan, 4
O. Greene (Iowa) 34; Sandfoss v. Jones,
Oal. 481; Smith v.. Doyle, 46 111. 451; Beat-
ty V. Bmmmett 94'Ind. 76; Beece r. Bonsh,
2 Mont. 586.
[i1 Whether such a rdatlou was estab-
lished Is a question of intent to be deter-
mined by the facts and circumstances, both
contemporaneous and subsequent Sadler v.
Taylor, 49 W. Va. 104, 38 S. B. 583; Liskey
V. Snyder, 56 W. Va. 610, 49 S. E. 615 ; Bur-
sey T. Horsey, 66 W. Va. 148, 49 S. B. 867.
To establish such an equitable title, tbe evi-
dence ought to be clear and convincing. Sad-
ler V. Taylor, cited; Hndklns v. Crim, 64
W. Va. 225, 61 S. B. 166. Mere direct con-
flicting oral testimony is generally Insoffl-
dent for the purpose. There should be some-
thing decisive In tbe facts and circumstances,
uncontradicted or clearly established, and
resolving tbe conflict in the oral testimony.
Hence the presence or absence of the Indicia
mentioned is highly important Such facts
god drcumstances make out a case of eQuIty
tn the grantor outside ot, and beyobd, the
tertlmony imd lndep»ident of the deed:
Digitized by Google
1049
78 SOUTHBASTBBN BEPOBTBB
(W.Va.
"In all nicli caaes the drcomstances wblcb
surround the case very frequently hare a
powerful, nay almost controlllug, influence
In determining the doestlon, and the direct
parol evidence may be quite weak, and yet
the court may hold the absolute deed as a
conditional sale or a mortgage, because these
surrounding circumstances are strong to
show that such was the real character of
the transaction." Lawrence v. Du Bois, dted.
The oral testimony of the plalntlfl and
her husband is relied upon, but it is clearly
incompetent Freeman v. Freeman, 76 8. B.
6B7 ; Kllgore t. Hanley, 27 W. Va. 451. How-
ever, testimony of competent witnesses to ad-
missions by J. N. B. Crlm was adduced.
L. N. B. Paugh says he bad a conversatiofi
with him In the year 1904 in which he had
said "that after he received the money for
the coal that he would make them a title
for the surface of the land." Ai Cleavenger
says he had a conversation with him also,
the substance of which he states as follows:
"X asked him if there would be any of that
that wonld go to £^ and Abe Hndklns, and
he told me there would be none of the coal
money go to them. That the coal money
wonld come to him. I made the remark to
him when he told me there would be no
money coming to them. I said, 'Will that
leave the land pretty well out of debt? and
he says, 'We have not made a settlement,
but pretty much I think.' " Edward Thomp-
son, the agent of the company that bought
the coal, says Crlm objected to the option
nkade by the Hndklnses on account of £he
price ; bnt said ev^tbing was aU right ex-
cept he would require a little more purchase
money. As a reason for this, the witness
says he stated there were certain interests
down there he would have to pay for, bnt he
did not state what those Interests were.
tS} In contradiction of this testimony,
certain papers signed by the Hudkinses, and
certain transactions between them and Crlm
in his lifetime, are relied upon. The docu-
ments thus invoked are substantially set
forth in the opinion in Hudkins v. Crlm, 64
W. Ya. 225, 61 S. EL 166. All but two of them
are signed only by EX B. Hudkins and A. A.
Hndkins. One of the two bearing the name
of M. J. Hudkins relates to personal proper-
ty, giving a list thereof and declaring it to
be the property of J. N. B. Grim. Those
signed only by the hnslMtnd, or by him in
company witb A. A. Hudkins, do not, of
conrae, affect the rights of the plaintiff,
one In which she a<^owledged the title of
J. N. B. Grim to the personal inoperty bears
date In the year 1899, some 18 years after
Grim bad bou^t the property. It is im-
portant only as bearing upon tlie celatloa
between the partlea Obvioiisly tlu^t rela-
tion was established many yeara before this
paper was execnted. II It was that of mort-
gagor and mortgagee, the execution of this
paper did not change Its character. In so
far as it acknowledges the relation of land-
lord and tenant, it, of course, has an im-
portant bearing, but It is not concludre^ as
will be hereinafter shown. The other paper
slgned by M. J. Hudkins is the letter in
which she offered to release her right and
title to the coal in consideration of $100,
dated May 1, 1902, after the date of the op-
tion of the coal, and relating to the negotia-
tion of the sale thereof. It Is not necesearliy
Inconsistent with the position now taken by
her. According to the theory of their bill,
the purdiase money for the coal was to go to
Crlm and out of It her indebtedness was to
be paid, after which the surface was to be
conveyed to her and the surplus of coal
money, if any, paid over to her. This letter
relates only to the coal, and may be constru-
ed as asserting a claim to a surplus of coal
money over and above the amount of her in-
debtedness. These papers are not conclusiTe,
for the relation of the parties had been fixed
long before the date thereof.
In all cases of this class, the maxim,
"Once a mortgage, always a mortgage," ap-
plies, and the relation is not extinguished or
changed by subsequent writings in the ab-
sence of payment of an adequate considera-
tion. Sadler r. Taylor, rited ; liskey v. Sny-
der, dted; Hnrsey t. Hursey, dted. In lits-
key T. Snyder were many papers similar In
character to those relied upon here in con-
tradiction of parol testimony, partlenlarly
admissions of Crlm, but they were unavail-
ing. These papers may have been executed
and delivered for the accomplishment of par-
poses and objects entirely consistent with the
claims of the plaintiff, such as the better
security of Crlm as a creditor. Similar pa-
pers were so interpreted In the case of Lis-
key V. Snyder. Notwithstanding these pa-
pers, the following facts remain in corrobora-
tion and support of the admissions: He took
no deed for the land until 1802; ICary J.
Hudkins remained in possession, and tiie
land was taxed in her name; she was ap-
parently the owner ; dim retained her
notes ; and this state of affairs obtained un-
til 1899, a period of 13 years, during which
nothing occurred to indicate any relation-
ship between the parties other than that of
mortgagor and mortga:gee. After the con-
veyance of this land to plaintiff and down
to the year 1908, Grim recognized Mrs. Hod-
kins as having some financial credit or
standing for he r^teatedly loaned money on
her notes executed by her husband for and
<m her bdialf. This land is tbe only proper-
ty she had or daimed at any time in that
long polodt and hex husband neither .owned
nw dalmed any property. This conduct oa
his part is a strong circumstance In support
of the theory of the bill. One <xt the «x-
ecntoxs of Grim's wtU says plaintiff's has-
buidt after the death, of the testator, notl-
fied him of the danger of a .levy of an ex-
ecution upon the stock on the farm for a
debt of M(f"'h*^^ and his brothw, and thus
admitted the relation of hmdJord and tn-
Digitized by V^OOg IC
HUDKIN8 OBnC
1M7
ant But Hda was not an admission as to
title, nor made by the plaintiff. The answer
seems to admit that this personal property
never was delivered to the ezecatora. It as-
sets a right to an accounting as to It.
The deed of March 21, 1905, executed by
Mary J. Hndklns to the heirs of J. N. B.
Crlm, Ss a paper of the character of the oth-
ers, ABSomlng the testimony of E. B, Hnd-
Idns as to what took place between him and
Peck and Bl H. Crlm to have been false, it
nevertheless remains that Mary J. Hudklns
received nothing as a condderation for that
conveyance. Under princb>leB already an-
nounced, her voluntary and gratuitous ex-
ecution thereof did not change the character
of the relation of the parties. Rellnqulab-
ment by a mortgagor of his egult? of re-
demption without cofislderation does not
alter the relation of the parties, in the
absence of clear proof of intent to do so.
The burden Is upon the mortgagee to prove
be obtained it fairly and for an adequate
consideration. Hursey v. Hnrsey, cited; Vil-
la V. Rodriguez, 12 Wall. S23. 20 L. Ed. 406 ;
Wright V. Bates, 13 Vt 841; Henry v.
Davis. 7 Johns. Oh. (M. 40; Mills v. MUls.
26 Cktnn. 213.
[C] As Mary 3. Hudklns la an assignee of
the equity of redemption of A. A. Hudklns,
and therefore stands in privity with him,
the adjudication In the case of Hudklns v.
Orlm is relied upon here as one against her,
though she was not a party to the suit
This theory is not tenable. Though she
stood In privity with A. A. Hudklns, she is
not bound by an adjudication against her
grantor or a^gnor, subsequent to the ac-
quisition of ber right "A privy in estate
Is not bound by a Judgment or decree against
him from whom he derived bis estate, after
he derived It merely because of such privi-
ty." Benslmer v. FeU, 35 W. Va. 15. 12 S.
Bi 1078, 29 Am. St Rep. 774; MazweU v.
Leesou. SO W. Va. 361, 367, 40 S. B. 420, 88
Am. St. R^. 875; Ste^ V. Long et al., 104
Iowa, 39, 78 N. W. 470; Blade, Judgments,
i 549.
[4] The charge of fraud against the plain-
tiff Mary J. Hudklns is predicated upon the
financial manipulations of A. A. Hudklns and
B. B. Hudklns in their wives' names. If
her purchase was bona flde and without
fraud In Its inception, the subsequent conduct
of her husband could not nvike it fraudu-
lent At that time Orlm held valid liens up-
on all the proiwrty, good against most of the
other creditors of A. A. Hudklns, possibly
all of them. All the purchase money paid
and the purchase-money notes were delivered
to him on accoimt of his claims. Assuming
in^btedness and insolvency on the part of
her husband, B. B. Hbdklns, the conveyance
was not made In fraud of his creditors, for
he did not ovirn the land and nothing in the
evidence Indicates that he bad any Interest
therein. A* to V» goieral eredlton of A. A.
HudUna; Orlm's debts were liens and prior,
and, as the otber lien creditors are not eom-
plalnlug, they were presnmptlvely satilsfled
In some way. In her purchase of this 40
acres and application of the purchase mon^
thereof to the liea Indebtedness In fiivor of
Crlm, the plaintiff may w^ be supposed to
have thought she was acting In good taith.
The test of frand Is the intent with which
the act is done, except in the few instances
In which there is a conclusive legal pre>
sumption of fraud. As this is not a convey-
ance from husband to wife, we have not
here the usual case of inability on the part
of the wife to overcome the presumption
of the pajrment of the purchase money by
the husband or out of funds famished by
him. But U there were such presumption,
it has been overcome by proof that the pur-
chase-money notes of the wife alone were
accepted for practically all the purchase
money. Nor is there any evidence of actual
fraudulent intent on the part of the wife in'
making the purchase. Nothing appears upon
which to base the charge except that the hus-
band had creditors whom be was unable to
pay. Ta purchasing this land, not from her
husl)and, but trom a third person, she did
nothing to their prejudice or injury.
[I] Bvldrace was taken by the defendant
tending to prove the buildings of the plain-
tiff are not on the land claimed by her. As
neither the bill nor the answer contains any
specific allegation or averment as to the
locations of the boundary lines, It cannot be
said any issue was made respecting them.
The bill avera the buildings are on the prem-
ises In question, and the answer seems to
make no doiial of that allegation. As it
states a conclusion rather than a fact since
the bill does not undertake to locate upon
the ground the lines, or rather to Identify
them, it follows there was no Issue as to
the location thereof. Moi«over, as the cir-
cuit court dismissed the bill, denying the
plaintiff's right as to any of the land, the
issue attempted to be made by the Introduc-
tion of this evidence r^rdlng the location
of the boundary lines was evidently not de-
cided by the court
[7] Our conclusion Is that Mary J. Hud-
klns and J. N. B. Crlm suBtained toward one
another the relation of mortgagor and mort-
gagee, and that the former was entitled to
have the proceeds of the purchase money of
the coal underlying ber 40 acres of land
credited on the purchase-money notes and
the interest thereon and the surplus of such
proceeds, if any, paid to her. Claiming the
proceeds of the coal to have been amply suf-
ficient to pay off the balance due on her
notes, she has tailed to aver willingness to
pay any balance that may be fonnd against
her. This, though a formal one, is a neces-
sary allegation of a bill to redeon, and It
Aonld be amended according^.
For the xaaaons stated tli« de^M oooh
Digitized by VjOOglC
78 801ITHBASTB1BM BBFOBTBB
plained ^ will be rereTsed, tike Injunction
reinstated, and the cauw pemaaded tor
farther proceedings.
iT2 W. Tft. MB)
OHIUrOM T. WHITD et aL
(Bnpieme Oonrt of Appeals of Weit l^rtinla.
Ua7 27. 191S.)
(Bylldbu9 t%a Court.)
X. FOBOXBLB EiRTBT AND DRAXnB Q 6*)— Is-
em— Title.
In an action of nidawfal entxy and detidn-
ar, wherein tlie relation <d landloni and tenant
doei not flxist, and the entry of defendant has
been peaceable and under a claim of right, the
rifbt to jKMsession depends upon the true own-
ership of the land.
[Eid. Note.— For other cases^ Me Fordble Bn-
trr and Detainer, Cent Dig. H 20-32; Dec.
Dig. I a.*]
2. Aovxiuni PO88B80IOH (I 14*>— GoRerauo-
tlTK PossEssioir— EmccT.
ConstrocUve poueBalon of land does not
anply in faror of a dalmant thereof against
the tme owner, nnlew nidi claimant has had
actnal adverse possession of some part of the
controverted land.
[Ed. Note.— For other caaes, see Adverse Pos-
session. Cent Dig. ii 77-81 ; Dec Dig. 8 14.*]
8. Adtbbbk Posbbssioi* a 96*)— "Oonarmro-
Tin Posnsnoir"— What Govbtitdtis.
Actual possession of one or more tracts of
land, oonfclgaoas to another tract In controversy,
under a deed for a larger boundary which in-
clades them all, does not ffive constructive pos-
session of the controverted tract against the
true owner tfaeraolL There most be actual pos-
session of some part of the land In controversy
before the, role of oonstrnctiTe possession can
apply.
[Ed. Nota^For ether easea, see Advene Pos-
•essioB, Cent Dig. H63S-S36; Dec; Dig. S W-*
Fu other definition^ see Words and Phrases,
vol 2, pp. 1474, 1476J
4. JUDOKBlfT (I 707*)— itKB JUDICATA— ESTOF-
raik
One Is not estopped by proceedings In a
suit to which he Was not a party^ when not
ni«iiqiny ft right in inrivit? with a party tiiereto.
[Ed. Note— For other casea. see Judgment
Cent Dig. I 1230; Dec. DigTi 707.*]
0. Taxation (I 517*)— Pathknt— Fobfeitum
— Advebse Possession,
Payment of taxes upon land by either of
two adverse claimants thereof, daiming title
from the same person as a common aource. pre*
vents a forfeiture thereof in the name of the
person under whom they so claim,
[Ed, Note.— For other cases, see Taxation,
Geift. Dig, % 063% ; Dec Dig. | 517.*]
6l Adtbbse PoBSBasioH A 80*)— DcEDa— Pbo-
BATITB BmCT.
A deed which does not identify the land In
controversy, and is not shown to inclnde it,
is not evidence of colorable title thereto.
[Ed. Note.— For other cases, see Adverse Pos-
session, Gent Dig. H 468-MT; Dea Dig. i
80.*!
7. ADVnSB POBOHBION ^ 16*)— WHAT OOH-
■nruTxs— Wild Lands.
Occasional cutting of timber on, and rang-
ing cattle over, wild and uninclosed land is not
such occupation of it as will amount to adverse
POMSBSton.
[Bd. Note.— For etiier cases, see Adverse Pos-
Mssion, Cent Dig. {{ 82-89 ; Dec Dig. S 16.*]
Error from drcnlt Conr^ Zjognn Conntj.
Action by J. E. Chilton against Anderson
White and others. Jndgment for deCendanta^
and plaintlft brings errw. Afflrmed.
Ellison ft England, iA Logan, and Piioe^
Smith, Salman ft Clay, .of Gharleston. for
plalntLfl in error. B. H. Greene and Ghafin
ft Bland, all of Logan, and Camirt>ell, Brown
ft Davli^ ot Hnntliigtoii, for dtftoidants lo
wror.
WILLIAMS, J. This action of onlawfol
entry and detainer was bron^t 1^ J. E.
Chilton against And«non White and others
in the drcalt oonrt of Logan count? to re-
cover possession of 23,047% acres of land. It
was tried by the oonrt In lieu of a Jury and
resulted In a finding and Judgmoit In favor
of defKidahta, and plalntlir ohtaiiiad this
writ of error.
The land la composed of conUgnoos tracta,
and the description In the writ Is ^ exterior
boundary lines oi. the whole. Defendants
disclaimed possession and the ric^t to poo-
session of all of the land, except a tract of
842% acres \^ch lies wholly within the lar-
ger iMundary. The ri^t to the posseaaion
of this smaller tract Is the real contention.
The relation of landlord and traant does not
exist betweai the parties. If defendants en-
tered unlawfully and by force oosted plain-
tiff, he would be entitled to recover irrespec-
tive of his right to the possession or owner-
ship of the land. The law does not penult
even the tme owner of land to assert his
rights In such unlawful manner, Moore t.
Douglas, 14 W. Va. 708; Dutt v. Good. 24 W.
Va. 682; Fisher v. Barman, 67 W. Va. 619,
68 3. E. 885; Ollnger v. Shepherd, 12 Grat
(Ya.) 462. But there is no proof that defend-
ants entered unlawfully. Their entry was
peaceable and under a claim of rig^t The
tract In dispute Is wild, timbered land, and
defendants entered upon It about two years,
or a little more, before suit and built small
houses on it, and are now occupying them
with their families, claiming title by convey-
ance from Harriet Jarrell and her husband,
made In 1007, to her nine children. Defend-
ants are her sons and sons-in-law.
[1] While iinlawful entry and detainer is
purely a possessory action and may be main-
tained without regard to title, still title la
sometimes involved In the action, as an inci-
dent to the right of possession, for, lu the ab-
sence of actual possession, constructive pos-
session belongs to blm who has the title:
"Title draws aftor it possession of property
not In the adverse possesstoa of anoUier.**
Moore v. Douglas, snpra. Ollnger r. Shep-
herd, supra, and DufC v. Good, snpra. And
constructive possession by the tme owner is
saffident to enable him to maintain the ac>
tton against a wroiu:doer or mere trespftaeer.
Plaintiff claims under color of tlOe, derived
mediately from Harriet Jarrell in 1888, and
•For otbsr essss sss ssms tsiple sad ssotloa KUUBSa U Des. Dtc * Am. Dl^K^-:^^^fl^^^^^^:^d*xM
W.Va.)
CHIZ.TON t; WHITB
1049
adverse poasesrion Qierftunder tot ten years
or more before defendants entered. DefCTd-
ants claim by deed direct from said Harriet
Jarrell and ber husband, made In 1907, and
lawful entry tbereonder. The Issue depends
upon the true ownership of the land.
[7] The case was tried upon an agreed
statement of facts, upon record evidence and
testimony of witnesses; the testimony re-
lating chiefly to the matter of actual posses-
sion by plaintiff and those under whom he
claims of the tract In dispute. A careful
examination of that evidence satisfies us that
It Is not sufficient to prove actual, adverse
possession by plaintiff of the 842^ acres.
McCIlntock cut the poplar timber off tbe
tract, beginning in 1890 and completing It In
1892 or 1893. He located bis sawmill on tbe
tract and also built shanties on It for the
accommodation of bis men, but as soon as tbe
work waf done his actual occupancy ceased.
The work occupied less than three years.
No other person is shown to hare lived on
tbe land. Plalntifit and bis predecessors In
title employed agents to look after it and
keep off trespassers. These agents lived In
the neighborhood of tbe tract and were au-
thorized to lease It, and did lease it, to
others who ranged their cattle on it dur-
ing tbe summers for a number of years. But
the boundary was not inclosed. There was
a fence extending for 100 or 160 yards across
Seng Camp branch, from hill to hill, but
there is no evidence that cattle did not have
free access to tbe land from all other quar-
ters. S. S. Chambers, who was the first man
employed by McCIlntock to look after the
land, testifies that the fence was on the land
of Mr. White who owned land adjoining the
controverted ti'act There was also about an
acre of cleared land In the bottom adjoining
this fence which had been cleared fdr a good
many years, but when and by whom does
not appear. Chambers says this cleared
ground was Inclosed and cultivated In com a
year or two Mr. B. W. Whlt^ to whom be
had leased the land, or by a snblessee of Mr.
White, bat says that it lay out un Inclosed a
portion of the' tlma The pioot does not
show that this acre was kept inclosed and
cnltlvated for any number of consecutive
years. Tbe diaracter of possession wUdi the
evidence tends to prove plaintiff and his pred-
ecessors in title had of tbe Harriet Jarrell
tract does not constttate adverse possession.
It lacks tbe Important elements ot notoriety,
continuity, and ezdnslTeneBs. Gore v. Fan-
pel, 24 W. Ta. 2S& '^ere can be no adverse
possession of wild lands as against the m-
perlor title unless such poss^on Is actual,
exclusive, visible, and notorious." Wilson t.
Braden, 66 W. Va. 3T2, 49 S. E. 409, 107 Am.
St Rep. 027. Occasional cutting of timber
or ranging cattle over unlnclosed wild lands
Is not sufficient Xokum v. Flckey, 37 W. Ya.
762. 17 S. BL 818; One/ t. Ofamdwiln, 28 W.
Ta. 84.
[I. t] But counsel for plaintiff insist that
he and bis predeeessors have bad oonstrne-
tlve adverse poesesBlon of tito'Hanlet Jarrell
tract and that snch construcUre possession
Is all that the law tequlres to -Invest blm
with Indefeastble title. It Is agreed that on
October 1, 1601, Alexander' McCIlntock oon-
veyed the 28,647 acres to P. B. - Dobbins,
trustee^ as one entire tract, describing It by
exterior boundary lines; that the disputed
tract is situate wholly within tiiose bound-
ary lines; and that the laud has come down
to plaintiff teom said Dobbins, trustee,
through several mesne conveyances, as a sin-
gle tract described In the same manner. It is
also agreed that plaintiff and bis predeces-
sors in title have had actual, adverse pos-
session continuously since 1891 by their ten-
ants of all the land outside of tbe 842H acre,
or Harriet Jarrell, tract In view of these
admitted facts, counsel for plaintiff Insist
that he has had adverse possession of tbe
Harriet Jarrell tract for tbe same period on
the principle that, if a person has color of
title to two contiguous tracts of land and Is
in actual possession of one of them, his pos-
sesion will extend so as to Include both
tracts. This is a rule generally recognized
as law. State v. Harman, 67 W. Ta. 447, 60
S. EL 828. But the application of it Is lim-
ited by another well-defined principle, which
Is that constructive possession never runs
against the true owner, unless there has been
actual adverse possession of some part of tbe
land in controversy. Here the Harriet J&r-
rell tract Is the only land claimed by defend-
ants. If plaintiff bad had actual adverse
possession of some part of it. such actual
possession would extend, by construction, to
the whole tract, because the whole is includ-
ed in his deed. But not having actual ad-
verse possession of any part of the disputed
land, tbe rule contended for cannot apply.
Possession on the 23,647 acres, outside of the
842% acres, would not be notice to defend-
ants that plaintiff claimed tbe 842% acres.
Possession must be snch as amounts to con-
structlve notice of tbe adverse claim and
such as would give the true owner a right
to sue for trespass. Sudh can new be the
case unless the trespass is committed upon
some part of tbe disputed boundary. The
present case Is iu»t distingulBbable from that
of an ordinary Interior of boundaries be-
tween Junior and senior patenteee. The Jun-
ior patentee's possession, outside of the in-
terlock, avails nothing. It Is never con^
strued to embrace tbe land within the Inter-
lock, as against tbe senior patentee. Tbe
senior patentee's title draws after it the con-
structlve possession of the whole of his
grant what is within as well as what is
.without the Interlock, so long as there is no
actual adverse pwsesslon within the inter-
lock. But U the Junior grantee has bad
Actual adverse possession of some part of
U» interlock, the ai«.«toilJ««n^r^Q^[g
1060
78 SOUTHBASTBBN BBPOBTOB
(W.Ta.
sodi powcorion, be tt of srar ao UmlteA a
portloik of It, li conBtrnea to extend and
embrace tbe wbole of the laterlodE, provid-
ed the senior grantee has not also bad actual
P088eB8ion of some part of It Garrett t.
Bsjnser, 26 W. Va. 846; Taylor's Derlsees
T. pamsldea. 1 Grat (Va.) 165; OTerton'B
Hatrs T. Daviaaon, 1 Grat (Ta.) 2U, 42 Am.
Dec. 644; Sulphur Minea Co. t. Thompson's
Heirs, 83 Ta. 293, 26 8. fi. 232.
The principle whldi we moat apply to tbe
preaoit case was dedared In McNeeley t.
OU Co., 02 W. Va. 616, 44 8. B. 608, 62 L. B.
A. 662, aa tUlows: "Where an occupant's
boondary covers adjoining lands of aeparate
owners, his poase&don on land of one of them
will not be adTorae possession of land of the
otbatj without actual poasesfAon of such oth-
er's land, on the tbeoiy that possession ot
part la possession of the whola" And In
Camdoi West Bnuudi Lumber Ca, 69 W.
Va. 148, 68 8. BL 409, It was stated In the fbl-
lowlng language: "The actual poesession of
the owner of a tract of land, lying adjacent
to another tract of undeared land, the title
to which ta vested In onothw person by a
grant from the state, is not extended over a
portion of such other tract by tbe acquisi-
tion of a Junior patent, covering such por-
tion and purporting to veat title thereto In
the ower of such first-mentioned tract, bow-
ever long such possesion may continue. To
work an ouster of the elder patentee and
bold adversely to blm, tbe Junior patentee
must take actual possession of some part of
tbe land Included In tbe Junior patent and
within the boundaries of the senior patent"
Such is also the statute law of this state.
Section 19, c. 90, Code. And such is also the
rule adopted by the courts of other states.
See the following cases: Kimball v. Stormer,
65 Cal. 116, 3 Pac 408 ; Jones v. Qaddls. 67
Miss. 761, 7 South. 489; Byrd v. Phillips,
120 Tenn. 14, 111 S. W. 1109; Turner v.
Stephenson, 72 Mich. 409, 40 N. W. 735, 2 L.
B. A 277. In the foregoing discussion it Is
assumed that defendants are claiming, un-
der tbe older and superior title, a matter
depending on otber questions presented by
the record and to be determined by this
<q>lnion.
Both parties claim title to tbe 842^ acres
from iHarriet Jarreil, a daughter of Boyd W.
Mulllns, deceased, as a common source;
plalntlft claiming, remotely, under a special
commissioner's deed directed to be made to
M. B. Mulllns by tbe circuit court of Logan
county in a suit brought by Hinchman, ad-
ministrator de bonus non of Boyd W. Mulllns,
deceased, against bis heirs, which deed bears
date the 19th of July. 1888, and defendants
claiming by deed directly from said Harriet
Jarrell and her husband to her nine children,
made In 1907. Defendants are her sons and
Bons-ln-law.
[4] Counsel for plaintiff claim that defend-
ants are estopped by the proceedings in that
suit On tbe other hand, counsel Hor dOCesd-
ants Insist that the A>ctrlne of estosqtd has
no apidlcatton, because^ th^ say, Harriet
Jarrell was not made a party to that suit
A eopj of t3ie moceedings la that canae ia
made a part of t2ie record in thl^ and it
thereby appeus that Bi^ W. Mulllns died
Intestate about the year 1869; sdsed of sev-
eral tracts ot land which bad been granted to
him by Oie commonwealth of Virginia be-
tween the years 1888 and 1865, and that the
842% acres ia a part of those lands; tiiat
he left six children as his only heirs at lav,
among whom was a dai^hter, Harriet, who
married Pails Jarrell ; that in 1875 the afore-
said suit was Instltnted by the administrator
of B. W. Mulllns, deceased, gainst his heln
at law, for the purpose of selling his Isnds,
or a portion therec^ In ord«r to pay his ddtta,
the bill sll^ng that the puwnal property
was not sufficient to pay than. HarxfeC
Jarrell appears not to have been named as , a
defendant elthw In the bW or the summons.
There was an ascertalnmoit of the debts and
a decree of sale entered the 18th of April,
1876, but no sale was made. Pending the
decree of sal^ tbe six children of Boyd W.
Mulllns, deceased, entered into a vrrlttCT
agreement, tbe husbands of tbe married
daughters joining therdn, partitioning the
land among themselves and agreeing to pay
their ratable portion of tbe debts due by the
estate. Tbe various lots of land were de-
scribed by metes and bounds; lot No. 3,
which la the 842^ acres In controversy, fall-
ing to Harriet Jarrell. Tbey also bound
themselves by that agreement to make an in-
terchange of deeds as soon as all the debts
were paid, and further agreed that If they did
not do 80 "to direct P. K. McComas. the com-
missioner appointed to sell the land aforesaid.
In tbe suit of Hinchman v. Mulllns' Heirs,
or whoever may hereafter be appointed or
substituted to make said deeds, to convey the
said lands as partitioned as aforesaid." This
agreement bears date the 12th of F^ruary,
1880. The cause was thereafter, on the 9tb
of April, 1886, again referred to a commis-
sioner to ascertain who were then the heirs-
of said B. W. Mulllns, deceased, what divi-
sion had been made of the lands amongst
them, and how much of the d^ts were un-
paid, and from whom due. Pursuant to that
reference there was a report filed by the-
commissioner, from which it appears that two
of the children of B. W. Mulllns, deceased,
viz., Charles Mnllins and Henry Mulllns, bad
died, each leaving a number of Infant chil-
dren. Tbe commissioner also reported the
amount of the debts which had been paid, by
which ones of the children paid, and how
mucb was yet due from each. Tbe agreement
among tbe heirs to partition the land Is ex-
hibited with bis report On tbe 4th of July.
1887. tbe cause was again heard upon thla
second rejfort of a commissioner, and a de-
cree was made reciting that^the lands had
Digitized by VjOOglC
CHILTON Tmrrx
1061
been parttUoned among the beln, and that
U. B. Mullins bad become the owner of the
Interest assigned to Harriet Jarrell, and H.
<X Bagland was appointed a special commis-
sioner to make conveyance of the same, when
tlie debts due by the eetate shonld be paid.
Pursuant to that decree, said special commis-
sioner, on the 19th of July, 1890, conveyed
the Harriet Jarrell interest to M. B. Mnl-
lins. Alexander UcCUntock acquired the M.
B. MuUlns title to the Harriet Jarrell tntw^
estt and, through varlona mesne conveyanceB,
It has passed to plalutUt
It nowhere appears that Harriet Jarrell
appeared either In court or before tlie com-
missions. We have already aald she was
not a party to the UU. If It could be said
that she submitted herself to the jurisdic-
tion of the conrt by the partition agreemrait.
It would only be for the purpose of carrying
out the agreement by having the special com-
missioner to exeente piorgex deeds to the sev-
eral parUee thdeto, in the evoit they f^led
or refused to do so them selves. But the de-
cree of July 4, 1S87. finds that M. R Mnl-
Una, a stranga to the agreonent, had ac-
quired Harriet Jandl'a Intcreat How did
the conrt ao find, and on what evldoice? lAe
commissioner did not so report, and there la
DO evidence shown in the record whereby the
eourt ooold bare found that fact She Is not
boond by the redtail in the decree^ not btfng
a party to the inlt, and we know of no rule
«f law whldi could be applied to eatop her
firom asserting her tttta. JudgnMOtts and de>
creee bind only parties and privies. She was
not a party^ nor la ahe prlTy in estate to
any one who was a party. The deed executed
Bagland, oommlaeloner, while it may have
served aa color of title, if lOalntiff and his
srantors had held advow posses oion of the
land under it, did not operate to divest Har-
riet JarreU of tttla
[I] But plaintiff claims that Harriet Jar-
reU'B title is forf^ted and that the forfeiture
Inures to hla boieOL It is agreed that no
taxes have beoi aasessed tOt or paid by, Har-
riet Jarrell or ha grantees on the 842^
acres staice the year 1888. FlalntUt contends
that this proves a forfdture of her titles But
the taxes on the whole 28,647^ acres have
be»i regularly paid by McGlintocfc and ttuwe
^Ha^TiU'^g under him since that year. McCUn-
todc claimed the land in dispute under deed
from M. B. Hulllna, who thought he was get-
ting the tlUe of Harriet JarreU by the deed
from Bagland, special commissioner. Both
parties to the suit are elalmlng to own the
Harriet JarreU tltle^ and the payment of
taxes thereon by tither of them would pre-
vent a forf^ture of the land in her name.
The payment of taxes by plaintiff and his
predecessors In title on the 23,647% acres,
which Includes the Harriet Jarrell tract, has
prevmted a fbrefeltur& "The state Is not
«ntltled to ^uble tax on mme land under the
same tlUe." State r. AUcai, 66 W. Va. 835,
'64 & 20. 14a
"Where there 1> privity of title; one pay^
ment of taxes is suffldent and fall satisfac-
tlon, irtiethw the land la ciharged as a
whole In the name of one» or the various in-
terests separated and charged to the respec-
tive owners, dividing the valuation equitably
between or among them as provided in sec-
tion 26, a 28; Code." State v. Low, 46 W.
Ta. 4S1, S8 S. B. 271.
binding that her title did not become for-
f^ted to the state tea mmoitry and nonpay-
ment of taxes, and that the deed by Bagland,
special commissioner, did not operate to di-
vest her of title, it follows that Harriet 3ax-
rell, her husband joining in the deed, couM
pass title to her children.
tl] But plahitlff claims the land by an-
other and distinct source of title also. He
claims under a deed from Bar Wakeman's
executors to Benjamin C. Bowman dated
28th of February, 1801, and a deed from
said Bowman and wife to Alexander Mc-
Cllntock. These deeds do not purport to
convey the Harriet JarreU land, nor do they
identify It as a part of the land conveyed.
The first deed mentioned describes the land
as "all and every their right, title, and in-
terest at law and In equity in and to any
lands owned or claimed by the said Bur
Wakeman at the time of his death or ac-
quired by his said executors and trustees, or
either of them, since his death and situate
In the counties of Logan and Wyoming in
the state of West Virginia, and within a
certain patent for 142,000 acres of land more
or less, granted February 19, 1796, by the
commonwealth of Virginia to De Witt Clin- -
ton, which patent to De Witt Clinton Is
bounded as follows." Then follows the
metes and bounds. To prove that the dis-
puted land was embraced In that deed, plain-
tiff examined, as a witness, Alfred Busklrk,
a surveyor, who had run some of the lines
of the De Witt Clinton patent He says that
in his opinion the Harriet JarreU tract is
Iniduded within the boundary of the De
Witt Clinton grant His testimony, however,
shows that he had very Uttle knowledge of
the lines of that large survey, and especially
relative to the lines nearest to the disputed
land. It appears that he did not run from
known oomers, but "pitted up** a line whidi
bad been partly run and left off by some
otba Burv^or. One of the lines; he says, he
carried throiu;h to Quyandotte rivw, and
missed the corner about 6,000 feet He ran
a line from a comer on Oayandotte river
toward Spruce ilver on a bxan<^ of which
the land In controversy lies, and says the
distance of the line whtdi be waa running
gave out about a mile from the numth of
Spruce river, and that he then turned east
on a division line of the survey. He saya he
was then within 8 or 8% miles of the land
In controversy. His testimony is entirely too
vague and uncertain to prove that the De
Witt CUuton grant includes. ^''^^^(^^[(^
11^
78 SOirrBpiJiiTJ^UtN BS^BTOB
Junn dabn, Ibe very perpoM of colorable
titio iB to define the extrat of one's dalm
by fornlBlilng evidence of location and
boimdailes. Bnt tbete Is stlU a stronger
reaatm wby the aforesaid deed Is not suffl*
dent as color of title to the land in qnestton,
and that Is that it purports to oonTey only
anoh land wltbln the De Witt Clinton grant
as was "owned or claimed by the said Bur
Wakeman at the time of bis death or acquir-
ed by hie said executors or trustees or either
of them since his death." It does not pur-
port to convey all the land within the De
Witt Clinton grant, and there is no evidence
respecting the quantity or location of the
land which the deed did convey. Plaintiff
does not connect with the De Witt Clinton
grant It was pat In evidence by defend-
ants, however, to show that it was an Inclu-
sive grant Forty thousand acres of prior
claims, located wltbln its boundaries, were
excluded from its operation, and it does not
appear that the Harriet Jarrell claim was
not a part of the land thus excluded. It is
therefore not evidence of colorable title to
the Harriet Jarrell tract of land.
The other deed above mentioned, from
Bowman and wife and the Bowman Lumber
Company to Alexander McCIintock, whi<di
bears date Ist of September, 1891, Is much
more uncertain and Indefinite as to location
and description of the land conveyed by It
than the first one. The only description given
in it, of the lands conveyed, is by reference to
other deeds by dates and by numbers and
pages of the deed books wherein they are
recorded. None of the deeds thus referred
to are found In the record.
In view of the fact that there baa been no
actual adverae possession of the land In con-
troversy, there Is no limitation upon Mrs.
Jarreirs right to assert title to It Her in-
action for so many years is not a matter of
which plaintiff can take advantage. The
rules and prlnoiplea governing cases of this
character are well defined, and In view of
them we are compelled to affirm the Jndg-
ment
Oa. m)
GBNTBAZi OF GBOBGU. BY. Ca r. AI«-
(Snpierae Court of Georgia. July 19, 1913.)
(ByOalHU »v the Oturi.)
1. Mabtkb and Sebvant (IS 286, 238*)'^In-
JVBT TO SXBTAHT— QUESnOH FOB JUBT.
The motion tot nonsuit was properly de-
ided.
lEi. Note. — For other cases, see Master and
Servant, Cent Dig. Sf 1001, 1006, 1008, 1010-
1016. 1017-1088, 1036~10ti, lOH. 1046-1060,
1068-1088; De& Dig. SS 2SB. ^*]
X MAOTU and SZBVAIfT (S 204*)— IlWUBT TO
SsBVAnr— Obdinabt Gabk.
Under the ezpreu provision! of Act Aug.
16, 1909 (Acts 1909, p. 160; Qv. Code 1910.
S 37^2 et B«i.), sad Ctr. Code UOO, % S1S1« •
raflroad emplOyC assDmes, Ib the absence of
express contract <^ the sabjeet. no more than
the "ordinary risk" of the partiealar bodness
In iritdch be li employed, and does not aanima
the risk of onnsnal dangers, which in the ordi-
nary conrse of the business as conducted would
not naturally occur.
PSd. Note.— For other eases, see Master and
Servant. Gent Dig. H 644-046; IMe. Dig. |
:j04.*]
Brror from Snperlor Court, Fnlton Comitr;
Geo. Jj. Bdl, Judge.
Action by B. T. AU^ against tbe Centra:!
of Georgia Railway Company. Judgment for
plaintiff, and defendant brings error. Af-
firmed.
The assignment of enwr x«Ued on ftw a
reversal Is upon the Judgmmt refasli« ■
nonsuit Tt» plaintiff was an employe, and
the defendant was his empl<9er. The action
was for damages on account ot Injuries al-
leged to have been received tiirough the neg-
ligence ot the servants of the defendant in
operating its traina. The injury occurred at
a public crossing, known as "McGall'^" where
a street crosses defendant's line of ralizvad
tracks on a grade level, between 4 and 5
o*(do^ in the morning- of October 28, 1910;
when it was dark. Over this crossing the
defendant had three parallel main line tra Aa,
Nos. 1. 2, and 8, about 8 feet apart TtkOB
was a parallel side track east of them, and
another paralM dde track west of them. At
the time of the injury the plaintiff was a
ni^t watchman at the croedng, and It was
his duty "^'ke^ anybody out of the way <tf
trains passing and to teep timina tliat were
passing over tiie crossing from blttlnK peo-
ple^ wagcni% and bugglea, and wbm pecols
were coming and a train was coming I would
wave tite peoiM ba^; if Oie people wanted
to ooBS. and then were no trains ooming; I
would let them cross. 11^ duties tbtte as a
wat<^an woe to ke^ people and tralna
from coming into colUsion on that crosdng
and from Utting each other; and t got $40
per month for that" The phdnUff woa on
duty at the crosring. Two sections of a dr*
ens train were going out of Atlanta. He had
let one by. and the otbet was approadiing
about 60 feet away. He was standing near
the side of main line track No. 8, and noticed
a pedestrian coming from the opposite side
of main line track No. 1, Intending to go
over the crossing. The pedestrian attempted
to cross the railroad track, and the plaintiff
waived him down. "He looked Uke he was
going to come anyhow, and I stepped on the
first Une to start that way" to stop him, "and
about that time I was Icnocked down** by
one of the defendant's engines, which, with-
out giving any signal by blowing a whistle
or ringing a bell, baclced over the crossing
of track No. 3 at a high rate of speed wltii-
out displaying a rear ll^t The plalntHTs
testimony was somewliat confused as to his
•FW etlMr sMM am ssoe tople aad sssHea NUHBBa la Deo. Dl|t * Am. Dig. K^-No. BsriM * R«p'r<nd«ns
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position whep struck, be stating at one lime
tbat kQ was In on« place on the croa^qg, ajod
at anotber that he was In a different place ;
but he offered explanation and testified, "I
am positive, though, that I was between the
east side track and the tblrd main line when
I was struck. I was on the west side of the
three main lines when I was hit" He did
not see the engine which struck him until
it was gone beyond the crossing where it
stopped, at which time be noticed the head-
light from where he was lying, and the mem-
bers of the crew picked him up. The pedes-
trian already referred to testified ttiat he did
not see the headlight <m the back of the en-
gine, and did not hear any ^gnal, and did
not see the engine nntil It struck the plain-
tiff; that it was running about 30 or 36 miles
an hour; and that the drcus train, which
was nearly opposite, was not running orw 20
miles an hour. The grounds of negligence al-
leged were that the defendant's "agents and
servants who were operating said switch en-
glae were negligent in running upon and
over said crossing at a rapid and unlawful
rate of speed, to wit, 30 mllea an bour, and
were negligent In not ringing the bell of said
englBe or giving some kind of warning of
the approadi of said, engine on tbe crossbv."
Uttle ft Powell, of Atlanta, for plaintiff
In error. Wentmoieland Koa., of AOanta,
tm dsSanOMxA In arror.
ATKINSON, J. t1. t] By statnte in this
■tatcii befoK tte adoption of the act avvvr-
ed AQgnat 1«; 1800 (Acta IMX^ p. 160; avll
Code 1910, i 2782 et seq.), common eazrlam
by railroad were liable for Injmlea to their
employes resulting from n^llguMe attributa-
ble to tbe oiqiloyer irtme the tojnred am-
lAoyA was wltbont Cault Ttda law «u
amended by tbe act above moitloned, and
ilnce tbe amoidment St Is no longer essen-
tial that tbe injured employ^ must have been
without fautt; but he may recover provided
tbe injury was not brouj^t about "by bis own
carelessness, amounting to a failure to ez-
erdae ordinary care," or If he could not have
avoided the consequences of defendant's neg-
ligence "by the exercise of ordinary care."
But in cases where the negligence of the em-
ployfi In some degree, less than Indicated
above, contributed to the injury, he may
recover diminished damages. In Glvll Code,
I 3131, it is also provided that "a smutt
assiunes the ordinary risks of his employ-
ment, and is bound to exercise his own sUU
and diligence to protect himself." Wlme
there is no express contract on the subject,
.irtiatever risk the employ^ of a railroads com-
pany assumes can be no more than the
dlnary rlak" of tbe particular business in
which be Is emidoyed. It will not extend to
an unusual danger, whidi, in the ordinary
course of tbe business as conducted, would
not naturally occur. In Georgia B., etc., Oq^
T. Rhodes, SO Oa. 61S, wbitdi was a salt
damages on aoopunt of an Injmy. to a bag-
gagemaster on a train, it was h^d: "Such an
employe assumes the risks necessarily Ind-
d^t to his occupati<Hi, but not such as re-
sult from the negUg«ice of his co«mpLoy€a."
The negligence of the coemployto had refer-
ence to the operation of two trains which re-
sulted in their collision, causing plaintiff's
injury. In X«awhom v. MlUen & Southern
B. Oo., 97 Ga. 742, 26 3. 11. 492, it was ruled:
"Bven if a train employ^, who by reason of
Us having full knowledge that the track of
a railroad was In a dangerously defective
condition and had so remained for a con-
siderable period, can be held to have thereby
assumed all risk of injury necessarily intd-
dent to riding, while engaged in bis work,
upon a train when being run In the usual
manner and at the usual rate of speed, yet
where, upon a given occasion, be was injured
by a dwailment of a car upon wbicdi he ms
riding in tbe due course of Ills employment
and, on the trial of an action against Uie,
railroad company for the injury thus sustain-
ed, proved affirmatively that the train at tbe
time of tbe injury was being ran at a dan-
gerous rate of speed around a sharp cnrve,
it was at least incumbent on tbe defendant
to show that Buch rate of speed at the point
In question did not <aceed that at which the
train had usually been run. at Oils plac&"
In this case a Jut^unent granting a nonsidt
was reversed. WhUe> that' was not the ease
of a watchman at » crasahig, nevotfaje-
less the mlii^ la an application of the
law relative to Qie assumption of risks
by railroad employes, and furnishes an ex-
afliple UlQstratlTe of unusual risks which are
not aBwnmed In the later case of A., K. ft
N. B. Oo. T. TOson, 181 Oft. 896, 62 S. B. 281,
a Judgment overruUng a nonsuit was sus-
tained. Ur. Justice LumiOcln, in the course
of the opinion, used the following language:
"While an emiployfl assumes the ordinary
risks of a dangerous occupation,, it could
hardly be said that car^essnees on the iwrt
of the engineer in tbe operation of bis en-
gine, or on tbe part of the company in re-
gard to its track, of which he had no notice,
was one of the usu^l and ordinary risks as-
sumed a freight hand' in the discharge of
his duty, so as to present a legal bar to a
recovery by him, under our statute allowing
a recovery by an employfi of a railroad, who
is not at fault, and who is Injured by neg-
ligence of other employte."
In the present case the plaintiff's duty as
watchman was to. remain at tbe crossing,
where there were a number of railroad
tracks over a street in a city at a grade
level, to prevent injury to persons and
things by defendant's traina niere appear-
ed to him imminent dai^er cf a caatastropbe,
described in tbe statemeiU of facts, which he
was attempting to prevent, when a switch
tfa^ne moving backward on a differ^t txKdk,
^riUiout rear lights ox giving warning, and
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1064
78 SOUTHKASTOBN BEPOBTEB
nmnlnff at M or 40 miles an boor oror the
crossing, strnCk Mm before Its presence was
discoTered. While it was his duty to wat<A
tor trains on all the tracks, there was no evl-
dence that this manner of operating switch
engines at that place was usual, or even that
it had ever occurred before. In running In
the manner described the switch engine was
running in' violation of a statnte In regard to
giving signals at street crossings (Civil Code,
I 2677), and was dangerous. Under all the
circumstances the Judge did not err In refus-
ing to toke the case from the jury on the
question of assumption of risks by the plaln-
tlfl, or negligence of the defendant
Judgment affirmed. All tha Justices con-
cm
OM Ga. ns)
MALOT. Tax Collector, v. WHiLlAMS «t sL
(Supreme Oonrt of Georgia. July 19, IBIS.)
/Byllahtu ly the Oourt^
1. SxAXuiEB (I 76*)— LoOAX. Laws — OmcsB
—Bonds.
The act approved August 18. 1910 (Acts
1910, p. 80Z>, requtring the suretiM on bonds
of county officers in Telfair county to b« guar-
anty companies authorized under the laws of
this state to become sureties on official bonds,
is violative of article 1, | 4, par. 1, of the Con-
atitotion ot this state, in that it is a local law
on a subject for which there was provision by
an exiathig general law at the time of its adop-
tion, and, U i^ven effect, would prevent the
general law from having uniform operation
tnroughont the state.
[Ed. Note.— For other cases, see Statutes,
Cent Dig. SS 77V&-7816; Dec Dig. | 7tt.*J
2. Taxation (| 640*)— Tax CoixxoiOft— Bi-
UOVAI..
Accordingly it was erroneous, on a quo
warranto proceeding against the tax collector
of Telfair county, to oust him from bis office
on the ground that be bad not given an indem-
ni^ bond under the provisions of tbe act
[Bid. Note.— For otiier cases, see Taxation.
Gent. Dig. SI 1019-lOM: Dec Dig. | 546.*]
Error from Superior Court; Tdfair Coun-
ty; B. D. Qraham, Judge.
Quo warranto proceedings by G. O. Wil-
liams and others against C. W. Maloy, Tax
Collector. Judgment for plalntlffB, and de-
fendant brings error. Reversed.
L. C. Harrell and Bscbol Graham, botb of
McBae, for plalnttff In error. W. A. Wooten.
of WsBtmnn, and W. S. Mann and W. O. Mc-
Allister, both ot McBae^ for defendants In
error.
ATKINSON, J. [1. 2] Error Is assigned on
a Judgment ousting a tax collector from
his office on writ of quo warranto. The offi-
cer had been elected and given bond with
perstmal sureties, and entered upon the dis-
charge of bis duties, but had not given bond
with an indemnity company as surety. The
act approved August 13, 1610 (Acts 1910, p.
802), declares: "Be it enacted by the (General
Assembly- of this state, and It Is hereby en-
acted try authority of tbe same^ that from
and after the passage of this ac^ all county
officers of the county of Telfair, In this state,
who are required by law to execute bonds
for the discharge of their official duties, be,
and they are, h»eby required to give as
surety on such bonds some guaranty com-
pany authorized by the laws of this state
to become securities on such bonds." The
ground upon which the officer was ousted
from his office was that he had not given
tbe bond required by this act The correct-
ness of the decision, therefore, depends up-
on the effect to be given to the act It was
attacked as violative of the state Constita-
tlon on several grounds, only one of which
need be mentioned, vis. : Tbe act was a
local act applicable only to the county of Tel-
fair, wboreas at the time of its adoption pro-
vision had been made by existing genural
laws covering the subject dealt with In the
act; therefore it was vlolattve of article 1,
S 4, par. 1, of the Constitution ot this' state
(dvU Code^ I 6391), whldi declares: "Laws
ot a general natnra iball have uniform i^cv*
atlon througlxmt the state, and no qieclal
law shall be enacted in any case tor which
provision has been made by an existing gen-
eral law," etc
Hiib act ot 1910, siq>ra, imdudes among
other county officers tax collectors ; and clear-
ly It was applicable only to Tdtalr county,
and required the giving ot indemnity com-
panies as surety, and exduded the giving of
personal sureties. At the time of the adop-
tlon of the act tiiere were in existence laws
on the subject of tax collectors' bonds as
follows : Pol. Code, 8 1207 : "He shall also
give bond and security for thirty-three and
one-third per cent, more than the state tax
supposed to be due from the county for the
year for which said officer is required to give
bond, the amount ot the bond to be filled up
by the comptroller general before being sent
out to the county from the e»entlve olBce,
and shall give another bond with sufficient
security, payable to the ordinary, conditioned
for the faithful performance of bis duties
as collector of the county tax, in a sum to be
fixed by such ordinary." Section 1208: "SiuA
bond for county taxes, when given, must be
approved by the ordinary, filed in his office,
recorded in the book," etc Section 1200:
"Tax collectors shall not collect any portion
of the county tax until such bond is given,
and If they fall to give such a bond, or one
satisfactory to 8u<di ordinary, be may appoint
some competent ^eteon to collect tbe county
tax." Section 292: "The official bonds of
the clerks ot tbe sapolor court, of sberifEi^
cOToners, county surveyon, county tr^isnrers,
tax collectors and receivers, given for coun-
ty taxes, must be approved by the ordinary
and fllsd in hli office, and by him recorded.
Hie bonds ot tax collectors and reoetrm
for state taxes, &tter being likewise approved,
•FBr oUmt eases um« topic and Mction NUMBBB In Dm. Dig. A Am. Dig. Kar-t^o-
Digilizea by
SOnTHKRN BT. 00. t. SHEPPABD, DAVES * NIX
1065
mast be recorded by the ordinary, and the
original bond most be by him transmitted
to the GoTemor for deposit In the comptrol-
ler general's office." Section 291: "Erery
official bond executed under this Code Is ob-
ligatory on the principal and saretlea there-
on— 1. For any breach of the condition dur-
ing the time the oflQcer contlouee In office or
discharges any of the duties thweot 2. For
any breach of the condition by a deputy,
although not expressed, unless otherwise de-
clared by law. 8. For the faithful discharge
of any duties which may be required of such
officer by any law passed subsequently to
the execution of such bond, although no such
oondltioq is expressed therein. 4. For the
use and benefit of every person who Is In-
jured, as well by any wrongful act com-
mitted under color of his office as by bis
failure to perform, or by the improper or
neglectful performancs of thoae duties im-
posed by law.**
These were general laws applicable In all
the counties of the state, and applied to the
office of tax collector. They constituted the
gmeral law in reference to the bonds of tax
collectors In this state, save only the pro-
Tlslons of Political Cod^ I 282, which de-
clares: "Guarantee or security companies
Incorporated under the laws of this state
may become security upon the bimds of all
state or count7 officers, and the varlons offl-
cfiTB of this state, whose duty It la to approve
the sureties upon such bon^ are authorized
to acccqpt snch company or companies aa
one of the suretlea or the only surety upon
such bond aa the solvency of such company
may warrant"— and CItU Cod^ 1 2651, whldi
declares: "Solvent guarantee companies,
surety companies, fidelity insurance com-
panies, and fiddity and deposit companies
Incorporated and organised undor the laws
of this state, or any other state of the Unit-
ed States, for the purpose of transacting
business of fidelity Insurance, which have a
paid-up capital of two hundred and fifty
thousand dollars, and which shall have com-
piled with all the requirements of law as
to license required by the state, may upon
proper proof thereof, and upon production
of evidence of solvency, be accepted upon the
bonds of all d^, county, and state officers
of this state; and the various officers of
this state, whose duty it is to approve the
sureties upon such bonds, are hereby author-
ized to accept such company or companies
as one of the sureties, or the only surety, up-
on such bonds as the solvency of such com-
pany may warrant: Provided, no company
shall he relieved of Its liability upon any
such bond by reason of the tact that the
books and accounts of the principal have been
examined and approved as correct by the
proper authorities, when in fact there haa
been a breach of sold bond and a loss occoxv
ring from such breach.**
Under the four Code sections above men-
tioned, personal sureties could be given on
tax collectors* bonds. Under the provisions
of sections 282 and 2554, guaranty and fidel-
ity companies possessing certain qualifica-
tions were permitted to become sureties cm
such bonds; but the two sections last men-
tioned obviously were not intended to im-
pair the privilege of giving personal sure-
ties under the general laws embraced in the
four sections first motioned. It appears,
therefore, that at the time of the adoption
of the act of 1910 there were existing gen-
eral laws in regard to sureties on the bonds
of tax collectors, whereby pers<mal sureties
and guaranty and fidelity companies possess-
ing certain qualifications could be given. The
local act, the clear intent of which was to
prevent t^e tax collector, among other coun-
ty officers, from giving any surety accept
an IndNunity company, therefore, dealt with
a mattw covered by existing general laws,
and, if carried Into effect, would prevent
the uniform operation of the general lavrs
in regard to the surety on tax collectors'
bonds. The act is violative of the provision
of the Constltudon referred to above, and
should not have been given effect by the
Judge In passing on the case.
Judgment reversed. All the Justices con-
cur.
OM 0«. SS4>
SOUTHEBN BY. CO. v. SHEPPABD, DA-
VIS & NIX et aL
(Suprone Court of Georgia. July 19^ 191S.)
(SyUtthiu by tfts Court.)
1. Saus (f 233*)— CLAnra or Tbibd F!^bboi»
— SiTFFICIKNCT OT EVIDENCE.
There was no evidence to support the nr-
dlct, and it Is set SBide upon that ground.
[Ed. Note.— For other cases, see Sales, Gent
Dig. iS 653-656; Dec Dig. { 233.*]
(Addition^ Svllabu* by Bditorial Staff.)
2. Sales (1 228*>— Pdbchase Pbice— Liabil-
itt ov thibd pbbsok.
Where a company sells ties under a mis-
apprehension as to the identity of the buyer,
and neglects, upon discovering the facts, to re-
ftudiate the trade and demand redelivery, or to
Qstitute proper legal proceedings, a notice to a
railway company, which subsequently purchas-
es the ties, not to move or use them, is Insuffi-
cient to render the railway company liable on
quantum meruit for ties which it takes and
uses.
[Ed. Note.— For other cases, see Sales, Gent
Dig. i 647; Dec Dig. i 22&^1
Error from Superior Cour^ Gwinnett
County; B. F. Walker, Judge.
Petition by the Southern Railway Com-
pany against Sheppard, Davis & Nix and an-
other, praying for Interpleader. A Judgmmt
was rendered on directed verdict for the de-
fendant named and petitioner brings error.
Beversed.
^ 0. Dobbs, of Buford, John J. ft Boy M.
gtrlf^ot^. Athens, anl D. M. Byrd, of
*Fm- oUmt oatis SM saaw topic taa section
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78 60UTm!JA9TttRN EBPOfeTBE (Oa.
tosoi
LawnnceTine, for iflaintlff la error. W:
Staric, of Commerce, for defendants In error.
BOOK, J. The Sotidiem Railway Gom-
ffua, being Indebted to the Woolejr Tie Com-
pany (hereinafter called the Tie Company)
Is the sum <tt $2,186^ for cross-tlee bonght,
filed Iti petition against the Tie Company
and other parties, Including Sheppard, D&tIb
& Nix, allei^g that the Railway Company
had bought the ties from the Tie Company
bat tbat the other parties defendant were
making demands and bringing anlta against
the Railway Company for ties which had
been delivered npon its right of way ; that,
vrtdle It owed the Tie Company the amount
before stated. It was all for ties; and that,
If any part of this money should be adjudged
to be dne to the parties who were making
d«nands npon It for the payment for ties,
petitioner was ready to pay the m<mey over
to them. It prayed for Interpleader between
the Tie Company and the other claimants of
the fund. In their plea and aiwwer Shep-
pard, Davis & Nix set up two reasons why
the ^IntUt was Itable to them for tbe
amount of their tilalma: Birat; because the
Tie Con^tany, at a time when it had money
In the hands of the Railway Oompaxv, gave
defendants an order npon the Railway Com-
pany (which ordeE Is hereinafter set forth)
for the amount of tiielr claim, $228.80, and
this order amounted to an equitable assign-
ment of that much of the funds In the hands
of the plalntUt belonging to the Tie Com-
pany; and, second because the Railway
Company not only took and used the cross-
ties after BoOce not to do ao wltiiout pay-
ing defendants for them, hut removed and
appropriated them after the filing of tUs
suit
The case was referred to an auditor, to
whose report certain exceptions were filed.
Among others, the Railway Company except-
ed to his finding that Sheppard, Davis & Nix
were entitled to recover of the Railway Com-
pany ¥223.60, In which sum he found the
Railway Company indebted to Sh^pard,
Davis & Nix upon a quantum meruit for ties
which had been delivered upon the railroad
right of way and taken possession of and
used by the Railway Company. This ex-
ception was allowed by the court; and It
was agreed between tiie parties that the
Judge should hear the evidence "and direct a
verdict as he might think advisable under
the evidence. Under this authority the pre-
siding Judge directed a verdict in favor of
Sheppard, Davis & Nix against tbe Southern
Railway Company for the amount of their
order." The Southern Railway Company
moved for a new trial, upon the grounds
that the verdict was contrary to the evi-
dence and without evidence to support It,
which motion waa orermled, and the movant
excepted.
There were many parties in this case, and
very probably numerous lasuea, hat tbe sole
'issue broa(ht to this court ft>r r«Tlew w*»
the question as to whether or not the South'
em Railway Company was tnd<d>ted to Bhep-
pard, Davis ft Nix in the sum of 9223.60 for
cross-ties; no question as to the plaintiff's
right to have the def^dants Interplead befnff
raised, nie contention of tbe Railway Com-
pany is that It boiq;bt ftom the Tie Com-
pany the cross-ties for the pundiase price of
whldh Sheppard, Davit) ft Nix are contend-
ing, and bad no dealings with Sb^ppard,
Davis ft Nix in reference to tbe purdiase of
the cross-tlea^ but that, on tbe contrary,
Sheppard, Davis ft Nix bad sold them to
the Tie Company, and they were resold by
that company to the Railway Company, and
delivered to the latter company upon its
right of way. The Jury, under the direction
of the Jn<^ found against the Railway
Company upon this issue; and the question
is, Was there any evidence to support tbe
verdict?
[1] After a careful consideration of the
evidence in the record, we are unable to find
testimony supporting this verdict Tbe tes-
timony of P. L. Wooley, a member of the
firm of the Wooley Tie Company, was to the
effect that, while he may not have had any
direct transactions in his own person with
tbe original owners of the cross-ties, the per-
sons who went out and procured them from
the owners were the agents of his company ;
and the reading of the entire testimony of
P. L. Wooley shows that his company was
the purchaser of the ties, and that the Tie
Company should be the purchaser of the ties
and deliver them to the Railway Company
was In consonance with the contract which
the Railway Company had made with tbe
Tie Company. Of course, the terms of this
contract were not binding npon Sheroard,
Davis ft Nix. It is merely referred to as
showing that the testimony of P. L. Wooley
in reference to the purchase of the ties from
the first owners was In accord with the
scheme contemplated In tbe contract If this
testimony of P. L- Wooley Is contradicted in
any respect it is by tbe testimony of U I*.
Davis, a member of the firm of Sb^pard,
Davis ft Nix. His testimony In substance
waa as follows: "I received this letter from
Mr. Fink, tie and timber agwt, Southern
Railway. I notified this same man not to
move those ties. Those ties bare been haul-
ed off since the suit was started. I gave
notice not to move them. I don't remember
the exact time the Southern Railway Com-
pany took them, but after notice was given
them not to move them. The Wooley Tie
Company gave me this order, a copy of which
is attached to my answer. I don't remem-
ber to have bad transactions with the Wooley
Tie Company under that system. We had
done bu^ess with the Southern Gross-Tie
Company, The Southern Cross-Tie Company
Is the one I dealt with. I don't think Wooley
ever came to our town. I don't remember to
have ever seen ^ft^.H^^v^O^^ ^
gare hm tUa ortfer, and At Uiat Ume tbe tl^
were on the railroad track, and the movliig of
tbe same was aft9r thatr-after I had taken
this order and the railroad refused to accept
It I thouxbt I waa dealing with the Southern
Tie Compao7< I liad tmn^ The order Just
referred to was as follows: "Atlanta, Ga^
Joly 26, 1»10. Mr. W. H. Fink, T. & T.
Agt Bo. Ry., WasmoKton, D. 0.— Dear Sir:
Please deduct from the amount tbe South*
em Railway Gompfiny owes ns for cross-ties
t^o hundred and twenty-three 0223.60) and
**/>•« doUara, and prepare Touchers for this
amoont favor Sheppard^ Davis It Mix, Oom-
iqerce, Ga., charging the same to our account,
and greatly oblige Very tmly yonra, Wooifey
Tie Oompany."
It will be obserred that by this testimony
Davis does not positive .deny the testimony
of .P. Lk Wooley in ref er«ice to the purchase
of ties . by the Wooley ^e Ckimpany. . He
does say: "I d<»i't remember to have bad
transactions with the Wooley He Company
under that, system. We had done business
with the Southern Cross-Tie Company. The
Soathecn Gross-Tie Company la. the one I
dealt with." Bnt this very qnallfled denial of
tbe testimony of Wooley. when conddered in
otHonectlon w^tta the.othar facts la tbe rec-
ord, does net amount to a denUl-of Wooley's
testimony upon the real issue in this case.
These Is notbixi^ in. the record to show that
Sheppard,, Davi? & Nlz had any- deaUnip
with, the Southern Cross-Tie Company in
reference to the lot of ties la ijnestlon In this
case. And the other drcuinstance in the
record, to which we have referred as de-
stroying the force of Ur. Davis* quaUfled de-
nial of P. Ifc Wooley's theory ot the case, la
to be found In other testimony of Davla him-
self; for he t«itlfles that be took an order
(the order set out above) for the payment
of the amount of money claimed, $£23.60,
signed by the Wooley Tie Company. If
Sheppard, Davis \ Nix really thought, at
the time of selling the pre^nt lot of ties,
that they were dealing with the Southern
Cross-Tie Company (and it maj be noted
right here Davis did, not dalro in his testi-
mony that he thought he was . dealing direct-
ly with tbe Southern Railway Company),
they certainly knew, when they took, the or-
der on Blnk, the agent of the Southern Rail-
way Company, that the Wooley Tie Company
was the company with which they had been
dealing and to 'vvhich the tj.es had bejm sold
by them.
IX} If they, had sold the ties to the Wooley
Tie Company, under any. false impression as
to who were the actnal px^xshasers^ and that
^Ise impresalons were due . to any false and
fraudulent representations of the ag^ts of
the Wooley Tie. Company, they ^oold have
repudiated the trade and demanded a, red&-
livecy of. the ties to them, or Instituted legal
proceedings to set aside the sale and to se-
cure poasegplon ot the,tlejf», Bjrt tlwy.<Vfl.
not do this, and the . mere . noUce to . the.
Southern Railway Company not to move .or
use the ties which the latter had purchased
from the Tie Company was not enough to
render the Railway Company, liable upon a
quantum meipilt for the value of the lot
of ties, although it took them and used them.
The auditor In his report declined to pass
upon the. question whether or not the o^er
for the payment of money given by the Tie
Company to the defendants In error amount-
ed to an equitable assignment of the $223.60,
Inasmuch as under his findfng the railroad
company became liable for the payment of
the ties upon a qaantum meruit, and there
Is no exception by Sheppard, Davis & Klx
to this finding of the auditor, and therefore
the question as to whether or not the order
referred to did amount to an equitable as-
signment, so as to entitle the payee In the
order to a Jud^ent for timt amount, Is not
Involved in the record.
Judgment reversed. All the Joatleea con-
car.
BOTOS y.' OOOE,
(Soproma Oonrt of Georgia. Jnly 193X.)
(Syllalut &y the C/rnrt.)
BounOAioBB a 52*) — PsocBssioNina Pno-
CEEOINQ8.
Under the law of proceasioning an it ex-
fats in>tUs Btate, established liDes, and not new
ones,, a^e t* be fixe^ and determined. Tb^ lo-
cation of linesi not as they ought to be, but ..as
they actually exist, is to be Bought And ft ap-
E Bring in the present case that la ninDing the
le between the partiMiths prDoesslooerB.and
the surveyor "i^oored.the claims of both sides"
as to die actual location of the line between
them and their respective cocteotions as to
actual oceopation, and. Bought alone for. the
discpvery . of the true original line, by courses
and directionB and certain cornerB on what
they considered the true original Hue, the line
traced and marked by them in this way was
not ran aocerd'og to the- law gov^ning mocesr
sioners in the discnarge of their duty, and
should not tiave been established as the true
line by verdict rendered on die trial of' tbe Is-
sue made bp aiproit<8t-to,the.rpfucQ. of tbeiiiir»-
cessioners,
[Ed. Note.— For .other casM. see Boundaries,
Cent Dig. it;26S^2eO. 262,^^; Dee. D^;. |
Error from Superior Oourl^, Walton Coun-
ty; H. C. Hammond, Judge..
Processioning proceedings between Sirs.
Scott Boyce and T. J. Cook. Mrs. Boyce
protested the return of.tlte proce^sloners, and
from a denial of a motion fOr new trial,
affcer an adnxae veicdlct, dbe brings error.
Reversed.
J. H. ITelker and Qal G.. NoweU, hott^, of
Monroiv ^ plaintiff In er^r». B. U C!(iffr.,OiC
Monroe, ft>t defepdapt.lR err^r.
BBCK, J, PracessiooeriB. made a return,
a^mpanled by surveyor's plat, showing
^■er «tbar mm* sm «mm tsple anft'-McttM MVHBanUn Dm, Dig. A-Aar Dife. KvyNo. SorMs A
nB.ia.-~m Digitized by
1058
78 SOUTHEASTBRN REPORTBB
(Qa.
the boundary Une as marked by them be-
tween tbe land of tbe defendant in error
and tbe land of the plaintiff in error. The
latter filed a protest to tbe line drawn by the
processioners between tbe two lots of land,
setting fortb wbat ehe dalmed to be the trae
lin^ and ahowlnc tbat itbe bad been in ex-
dnalTe pcnaeaaion, for nuare ttian 25 years,
of the land op to a line which she claimed
should baTB been run. The trial of the iasae
thns made resulted in a verdict to establish
the line run by the processioners as the true
line. Mrs. Boyc^ the protestant^ filed a mo-
tion for a new trial, which was denied, and
she excepted. The motion for a new trial
contains, among other grounds, the com-
plaint that the verdict Is contrary to the law
and tbe evidence and contrary to the follow-
ing <^arge of the coart: "Yon are chuged
tiiat the processioners are not authorised to
go in and fix wbat they regard as a right,
proper, equitable line between the parties
to the case. They must fix the actual line as
it existed. They don't establish a new line;
Ih^ are merely to determine and locate the
<^d line; and they are not authorized to
make a line dUtwent from tbe old line,
because they brieve it substantially right be-
tween the parties."
Tbe evidence for the protestant in this case
tmded to show that tbe line as run by the
processioners was on and over land whldi
she had been In actual possession of for more
than seven years; and the teatlmoDy of the
otber party tending to contradict this Is very
vague and indistinct, especially In that, when
he speaks of having cultivated up to a certain
hedge line, he falls entirely to show at what
time he cultivated np to that .hedge, and
falls to show whether there was any of the
hedge remaining at the time the procea-
sioners run the line in question or when the
hedge disappeared. He seems to rely upon
the contention that certain well-eatablished
corners show the line as run by the proces-
sioners was the true line between his land
and that of his antagonist If there were
nothing more than this In the testimony,
however, we might hesitate before disturbing
the Judgment of the court below refusing a
new trial. But when we consider tbe testi-
mony of the count? surveyor and of the pro-
cessioners, which was Introduced by the de-
fendant in error, It becomes clear that a new
trial should be had. The coimty surveyor
who ran the line In Question testified, in sub-
stance, that he made the survey; that he re-
membered very little about a certain stamp
referred to in the testimony of other witness-
es ; that wbat he and the processioners were
after getting was a line directly from the
hlclEory tree to tbe iron pin ; that the hickory
tree ^as selected, because It was considered a
comer on the orlf^nal line. He was trying to
find the original land line from the hickory
tree to a stake on the east side. He found
that Une^ He m94e a trial mui. then, after
making certain calculations, he ran back to
the hickory tree. Proper corrections were
made, allowing for the variations. He testi-
fied further, showing the pains and care
taken In running the proper courses and
directions, and stated: *'Afy effort was to find
the original line. The original line is the
old line. If tb^ had any marked trees or
comers, we would run by that; they had a
sort of crooked turn row. ^^Hieu I go to
run a line, I ignore what anybody says
about it I pay no attention to them. I
can't afford to do it of course. The com-
missioners [processioners] told me they want-
ed to run the old Une, and tiiat Is what I
did. Tbe commissioners [procesGltmers] and
X under their direction didn't read this daim
of Mrs. Boyce at all. This is correct They
never ran the line with any Tlew of making
the old fence tbe line. There was no fence
line there; Z dldnt see any teuee line; could
not see where tbe original fence was. "Sbey
claimed It was at a certain place; fheir
claims were Ignored, and they run this new
line there. * * * I ignored Cook's [de-
fendant In error] claims too; Ignored both
claims." The testimony of the prooessicmers
showed tliat their conc^tion of their doty
was similar to the surveyor's conception of
his duty In this particular case. Tbey were
looking for comers and endeavoring to as-
certain the tme line, the trae original line,
and they "Ignored the claims of both sidea"
Under this testimony the line as run by tbe
processioners with the county surveyor was
not run in accordance to the law governing
processioners in cases of this kind, and the
verdict establishing it should be set aside. In
the case of Bowen v. Jackson, 101 Oa. 817,
29 S. E. 40, It was said: "Processioners are
not charged, under the law as we understand
It, with ascertaining and marking su<± lines
as were originally fixed between subdivisions
of land, to the exclusion of such lines as have
been, before the time of processioning, estab-
lished either by the act of the parties or by
operation of law. When a claim Is made by
a coterminous owner of actual possession un-
der a claim of right for more than seven
years to a portion of the land found to be
outside of the true original line, tbey are
not to declare where the lines ought to be
without regard to adverse possession, but
where they really are. Any actual possession
under a claim of right whidi has continued
for more than seven years Is to be respected
by processioners. The question with which
processioners deal is not one of prescription,
but of boundary. But they are to deter-
mine the question of fact as to whether pos-
session has been held for 'seven years under
a claim of right Christian v. Weaver, 79
Ga. 40d [7 S. E. 261]. Where actual posses-
ion has been had under a claim of right for
more than seven years, sut^ <daim shall be
respected, and the lines so marked by the
prooessieners. as not to Int^ere with such
Digitized by V^-QOg I.C
JAOKSON T. SSIABOABD AIB LI^B BT.
f4069
possession. Gamp- y- Cocbraoert 71 Ga. 865-
In a case where tbe protestaDt oljjected to the
line because of sucb possession by himself
and those under whom he claimed Cor a great
Dumber of years, exceeding seven. It was er-
ror to disregard sn<A claim and seek only to
ascertain the original district Une which
correctly divided lots. And where the testi-
mony of himself and the processioners tended
. to show that the surveyor was not trying to
find the Une between the parties, but the
district line, and did not pay any attention
to what either party was In possession of,
and the line so run was by the Jury set up
as the true line between the parties, the ver-
dict should be set aside." What Is there said
In the Bowen Case, under the facts of the
preseut case, is controlling.
If the parties to this case are still disposed
to press their adverse claims to the strip of
land in dispute, and wish to have the line
established by processioners, then the proces-
sioners, with the county surveyor, should run
the Une anew, and in doing this they should
not "ignore tbe claims of both aides."
Judgment reTeraed. AU the Jiutloei con-
cur.
a40 Oa. 270
JACKSON T. SEABOARD AIB LINE BT.
(Supreme Court of Georgia. July 18, 1918.)
1, Bsvnw or Etidxhcb.
The verdict Is supported, by the eTidence.
2. Masteb Ann Sebvant (i 274*)— Injubiu
TO Sbbvani— Evidence.
Where the widow of one who was em-
ployed by a railroad company as a flagman to
eeitorm service within its Bwitchisg yards
rought suit to recover damages for his alleged
tortious homicide by the running of one of the
defendant's cart, evidence of the general custom
as to the manner of flagging trains at the point
where the Injury occurred, and of instructions
to such flagman as to such custom, was admis-
sible as tending to show that the deceased knew
of the custom aud the danger to which he was
exposed while on duty as a flagman, and wheth-
er he exercised that care which an ordinarily
prudent man in these circumstances would have
exercised for his safety.
[Ed. Note.— For other caseK see Blaster and
Servant, Cent Dig. ft 989-949; Dee. Dig. 1
274.*1
8. Trial Q 217*)— Insisuonom — Duxt or
JUBT.
It is not error for a trial ^udge, before be-
ginning tiis instructions to the jury, to tell them
of the obligation resting upon the court and up-
on the jurors in the trial of a case, and to caU
&eir attention to the necessity of giving close
attention to the law as given them by the
court, and to return **a true verdict, according
to the opinion they entertain of the evidence
produced to tbent, without favor or af^tion to
either party, and according to the law as given
in charge by the court."
[Ed. Note.— For other cases, see Trial, Oent
Dig. II 483. 486; Dec Dig. | 217.*]
4. TmAi (I 288*)— iWBTBTTcnoNS— Plbaotugs.
It was not error for the court in Charging
the Jury to read to them the original petition
' and the amended petition, where the amend-
ment worked a dismissal of the case .as. to one
of the defendants, and the original petition was
amended in several other material parts, and
where there was no offer on the part of the
plaintifTB attorneys to remodel the papers, and
where the court instructed the jui^ that the
part of the original petition and -the amend-
ments that .had been stricken were not a part
of the plaintiff's statement of the case in writ-
ing, and that t4ie pleadings would go out with
the jury, and explained to tiiem how the amend-
ments were related to the original petition.
[Ed. Note.— For other cases, see Trial, Oent
Dig. !S 527-630; Dec. Dig. | 233.*]
5. Tbial (i 136*}— Injtjbt to Bailboad Eh-
plot£ — Sfbbo of Tbain — Qubstiohs xob
JUBT.
In view of the evMenee as to the chaiacttt
end surroundings of the locality where the Ui-
jury occurred, it was not improper for the
court to submit to t^e Jury the question of
whether a municipal ordinance r^ulating the
speed of trains within the dty limits was ap-
plicable at that particular locality.
[Ed. Note.— For other cases, see Trial, Cent.
Dig. §S 318, 320, 321, 323-327; Dec. Dig. 1
136.*]
6. Appeal Ann Ebbob <| 1063*)— Habhless
Ebbob— IlfgraUCTlONB.
None of the charges complained of en^iody
any error requiring a new trial.
[Ed. Note. — For other cases, see Appeal and
Error, Cent. Dig. {9 4225-4228, 4230; Dec.
Dig. i 1068.*]
Error from Superior Court, Fulton County;
W. D. ElUs, Judge.
Action by Buth Jackson against the West-
em & Atlantic Ballroad Company and the
Seaboard Air Line Railway. Action dismiss-
ed as to the first defendant, verdict for plain-
tiff as to the second defendant, motion' for
new trial by plaintiff for InsufBdency of the
verdict overmled, and she brings error. Af-
firmed.
Westmoreland Bros., of Atlanta, tor plain-
tiff In error. .Moore ft Pomeroy, W. Q. Lov-
ing, Brown it Bandolpb, and Parker ft Scot^
all of Atlanta, for defendant In error. '
HILI^ J. Mrs. Bntli Jacluon, then a minor,
by her next friend brought against the
Western ft Atlantic Railroad Company and
the Seaboard Air Line BaUway, to recover
damages for the homicide of her husband, W.
P. Jackson, alleging that by the concurrent
negligence of both defendants her husband
was klUed. The case against the first-named
defendant was dismissed, and an order taken
amending the petition against the Seaboard
Air Line BaUway, and the case was tried
solely against the latter. The trial resulted
in a verdict for the plaintift for f2,500. Be-
ing dissatisfied with this verdict, the plaintiff
made a motion for a new trial, which was
overruled, and she excepted.
{1] 1. The first ground of the motion Is
that the verdict is inadequate and Is not sus-
tained by the evidence. It is argued that if
the plaintiff le entitled to recover at all, she
ought to recover a sum in excess of $2,500,
and that there is no evidence to support the
amount found by the Jury. Our Civil Code,
«Var et&ar oasOT see s^ aaa ssotlon HUHBSR IB Dei. Dig. A Abl Dig. Kw-Me. BorlM ft B^rb^
Digitized by VjOOQIC
78 -KfePOR^nSi
I 27131, provides: •TTo person shall recoTer
damage from a railroad oompanr for injury
to himself or Mb property, where the same is
done by bis consent, or Is caused by Ma own
negligence. If the conplalnant and the agents
of the company are both at fault, the former
may recover, but the damages shall be dimin-
ished by the Jury In proportion to the amount
of default attributable to him." There was
eriOenee tending to show that the plaintiff's
husband was killed under circumstances
which showed ntfsllgenee on Us part and on
the part of the defendant. The Jury, there-
fore, were anthorlssed to find that the recov-
ery should be decreased in proportion to the
contributory negligence of the husband In
causing Ms death. We think the verdict is
supported by the evidence.
[2] 2. The fourth to the fourteenth grounds,
inclusive, of the motion for a new trial com-
'plain that the court «rred in overruling ob-
jections to cartain evidence offered by the
defendant as to "the tmiversal custom out
tbtfra at this locality In those yaxds as to
what a flagman should do In order to protect
tile rear of his train.** The nnmerons gnes-
tions objected to varied as to form, but near-
ly if not all of them related to "the cnatom"
as to the duty of a flagman in the local^
where tiie homldde oocnrred, and what iU'
stmctions were given to the deceased flagman
as to "the dangers surrounding yard work
and places that he would hi^ye to look out
for." It is 'insisted that the court erred in
allowing the questions and answers as to the
custom of flagging trains, and in allowing
wttnesses to testily as to what a flftgrymn
should or should not do, or that the englnev
would not pay any attention to flagmen on
any other track than the one on wMch his
-train was. The plaintiff offered the evidence
of several witnesses which tended to show
that the plaintiff, in the line of his duty,
was correctly flagging the train, and that
he was on tike right track. It was compe-
tent, therefore, for the defendant to show
what the general custom was in the yards
where the homldfle occurred with reference
to flagging trains, and that the plalntirs
husband had been instructed as to and knew
of the custom about wMch the witnesses tes-
tified, and that Ms position on a railroad
track other than the one on which Ms train
was was in violation of that custom. This
evidence was admissible as tending to show
that the deceased, knowing of the custom
and of the dally and hourly danger to wMch
he was thus exposed while on daty as a flag-
man, should have exercised that care which
an ordinarily prudent man would have ex-
ercised for bis own safety.
[t] 3. Complaint is made of the followlns
preliminary instruction to the Jury: "There
are obligations upon the court and upon the
Jurors In the trial of a case. The obligation
on .the Jury Is under the solemn oaths they
tak» -to find a tnw nrdfct aosortfng to 'Qm
opinion tbey oitertaln of Che 'evidence pro-
duced to them without favor or affection to
dther party and according to law as given In
charge by the court The law Imposes upon
the Judge ' the solemn duty to exercise Mb
beat and moit Impartial skill and ablUty in
giving yon the I^. Now I mention tills
feature of 'the matter particntarly because It
Is entirely impossible for a Jury to deliver
a true, conscientious, and proper verdict in
a case where they do not listen to the charge
of the court. It Is not only a mattK of dnty,
but It Is a matter of respect'to the Judge, that
the Jurors Will do their best to understand
the law as he gives It In charge. Ton un-
derstand the law is a very difficult proposi-
tion ; lawyers Hont understand It perfectiy,
and courts consdentiouBly differ about what
It is. But you must take the law as given
you by the court. The responsibility of Und-
ing the truth of a case rests upon your eon-
BCiences ; the responslbiUty of giving you the
true law of a case rests on mine. In the
nature of tMngs in considering the law as
given you by the court, it Is well not to pick
out -any Isolated parte of the law as given
yoa, but to try to recollect the whole charge,
and see how one part of it is related to an-
other, because It would be impossible for the
Judge to ^ve yop In a paragraph. In a seo-
tence, or a page all of the law that would
relate to and'be applicable to a case of this
kind." It Is Inslstfld by the plaintiff In error
that this preamble to the Judge's charge was
error, caleillateid to prejudice the plaintiff's
case at the beginning of his Instnuctlons to
the Jury ; that It was equivalent to saying to
the Jury that the plaintiff's case would ap-
peal to their aympathy, and they would be
Inclined to find a verdict tor her; tiiat she
was not entiUed to recover; and tiiat the
court would warn the Jury against making
such a mistake, etc We do not think that
the instructions of the codrt complained of
are susceptible of the construction placed
upon than. We do not see how It could prej-
udice the plaintiff's case any more than U
would the defendant's case for the court to
call the attention of the Jury to the obliga-
tions resting upon the court and upon the
Jury and admonish them of the necessity of
findli^ "a truer Terdlet Aeeordtns-to the ovta-
lon they entertain of the eWdence produced
to them without favor or affection to ^thtf
party and according to law as given in charge
by the court," etc Indeed, we fall to see bow
it was prejudicial to either side. AU that
was said by, the learned Judge would apply as
well to the defendant as to-tiie plaintiff. See
McDuffie V. State. 121 Oa. 680 08). 49 & BL
708; Lyies v. State, ISO Oa. 294 (5). 60 S. B.
578; Beck v. State, 76 6a. 4S2 {5).
[4] 4. I%e Sixteenth gnnma of the motion
-for a new trial aiUegee mor,iMRmnse theoourt
read to -the -Jtiry plaintUTs petttioD as origi-
nally flled. The original sAlt was against two
defendants. Before the trial of the c«s^ the
.p^tlAn was ananded-Ay oaAar^ tlM-ooul
Digitized by LjOOglC
'JBSBl
te 9eftMl oMkilBl VUiS> lAUb KuM H-
OtstntBHl of the cm u t4> obe wf tbe ^
faidknts, aiDd tlw cuu ms tiM on the pett-
tbm as amended agalaat flie other dstadant
It is liulsted tftat tbe coart ehmiM kaire
ealled the attention of the Jnry to the plead-
taigs an emended, and that Us Caihire to do
BO piejo diced ttw plaintiiTs ansa Xhe oomrt
Inatraeted the jnry tlurt the petition Ind
been amended, and nlao told tbam that Urn
pleadlma wonld be est trlth than. He also
read ttw pleadlnce which had been atirtoicen
^ emwartiaeat. and tHe nttker nllegatlafw'
which JCad keen nbetitirted And on wUth
the eaas -m tnied. It la akgtied thnt tun
imm oonfulas te thh Jnry nnd ma error
onlUnff for MvcnaL To this fvaand of the
motten for a new txial tbe conrt append* the
ItoUowlag notis: mw pleadlngB in thto eas^
as erlU be shown by the raoorO, arc volttnft-
ixnuk They wtU shew that the plaintiff fifvt
charged neglUmwe on the Western -4k lAftlan-.
tic Bailcottd, that ma the -major detaadaat,!
and the 8e^»oaid Afr Line 'Gompanr. the]
niaor daimdant Vhe-^eetUosa were anend-
ad ao aa to Btrlke the \Re6t«n A Atlantic.
Ballfoad teom tbe oas^ aad dnitng ttw VMff-
reaa ot the trial the defoidant. the Sea-;
board Air Lbie Rtdlway Ccmpai^, pot in «vl-l
draoe^ as admlealons, some of tbe pleadings
whlcb bad been stricken by ameadment
During the argnment ot Om case, eonnsel
for defendant preesed uppn tbe Jury tbe
Idea that the plaintiff bad laid her oase
in one way, prominently against one raU-
load, and when the band of tliat railroad
was disclosed she changed ber mind, and,
aeeklng somebody to hoid liable, psacti-
caUy changed ber whole case and charged It
np to the Seaboard Air Line BaXlway Com-
pany. In otber words, the Insinuation to the
Jury was plain and {Kilpable that the plain-
tiff had doctored her case,, and bad manu-
factured testimony to suit Its new -condition.
In view of all these facta, and In view of tbe
further fact that the court bad no j;>ower to
mark out what had been stricken, and in
Tlew of tbe (act that tbe whole pleadings had
to go to the Jury, tbe judge concluded that
the best way to get it properly before tbem
was to read the petition as It orlginaUy stood,
and ttara read the amendments, and sliow
bow they were related to the original peti-
tion, and then to tell the Jury ttfdt part of
the original petltlob and the amendments
that had been stricken were not a part of
the plaintiff's statement of the case In writ-
ing. I respeCtfitlly say that, in order to un-
derstand the -sttnatlon which called for labo-
rious woi* on the part of the court, reference
must be had to the oi^glnal pleadings. There
■was no offer made by plalntftrs attorneys
to remodel the papers, no otter tnade to con-
ceal any part -of the petition that bad teai
stricken, and the matter was left before the
judge to use bis best -discretion In letting the
^ry ond^tand how the case stood as to
plendiw 7m was submitting £be
-In VMsndt tWrnto." Wm mm -& ttat <ttae
Hmy was ona •of aTatage antemgence; Md
na Iftia eent nand>lK>a th* abStkm andaab-
BtltBtad aaaffndatHilB, bath of ivMch trere in
the ^uey room -aOien tim .eonaMeaad and.
made tkalr ▼eidtet, we fUl to see that tbe
ooDduct «f tbe Jndfo In tills reepect twas
pinfndtelal to the plalatUt. In fact we tklnic
ttw eout eonld haxdly have done otherwise
than as stated tn bte wfeB to the ground vt
ttw moflon tot a va* titaa.
[ff] 5. Sfee foUonrlng chaiva of Hw •coart
ia MBlgnad na acror: fEke plaUUff ma
tntiodttoed In afMwieb «n ordlnrace -of the
flUr atf Atlantn tagnlntlni ttwvpead of mi-
way traina irttbtn ttw oorporate Otaalta. Tim
conrt daddaa na n wattar of Inw flait awdi
an ordinance wanld fee wjaamaMa; 'bwt
i*cttwr tt wcB 'naainnble and anMlnaUs to
the thne and place wlbm tt is alibied this
•Inlnir ■aauifti'od Is fox 9*0 le ctnaldar and
determine along with other evidence In Hie
cas&** TUB charts 4a oMxAed as erroneons,
for the reason that It was for tbe court to
decide whfilher tbe ordinance was reasonable
and Talid, and ha^t -so' dedOed It was ei^
nor to sOIow tbe Jury to toy -whotber «r not
tbe ordinance was reasonable and applicable
to tbe time and place where the Injury oc-
curred. In the case of Central K. Co. v.
Bconswlok, .etc.. &. Oo^ 8fJ Oa. 886, IS fi. B.
tSSO, it was hold: **if a dty ordtnanee reg«-
ladng the speed of trains embrace In Its
lai^age tbe whole area of the dty^ and Is
voBsenable in Itself, the Oourt may aobadt
to tbe jnry the question as to whether, on
account of the special local conditUms and
surroundings, it would or would not Teasoan-
bly apply to the particular locality In qnee-
tlon; that locality being jnst fn^de the
dtty Itmtts." These wm evidence tending to
show that the i^ace where tbe homicide oc-
curred was near tbe dty limits and was used
«zclnriT<ely as railroad propert;y, and that
there were no 'crossings ot iroas-patiw at flds
place, but that the propert? was used en-
tire for railroad purposes. Whetbw tbe
ordinance was 'reasonable as appUed to tliia
paRtlcular iocaUty, under all the cinnim-
stances of tbe case,. the court left to the jtfrj'.
There wa« evidence tendiag to sbow that a
greater i&pe of speed was habitually main-
tained at the place whore the Inju^ occur-
red, and that this was well known to .the
plaintiff's husband; and the question as to
whether the ordinance was reftso&able as
applicable at the point wQere the injliry oc-
curred was not improperly left to the Jury.
II] 9. In some instances error was assign'
ed on diarges to tbe Effect that in certain
events the plaintiff could not recover at all.
As the jui^ round that the tAaldtlff was en-
titled to recover, and these charges do not
seem to affect the measure of damages ta
case of recovery. It is not apparent that these
charges -were Injurious to hA, even If In
some particulars there were sllgbt inaccura-
ide#. fr*t toast one ^,^^i^g^^[e
ioe2
78 SOtTTHffiASTBBN BE^RXBB
plained of— Chftt rcilatliix to tbs statu of a
penwn TolnntarHy lying down npon a lail-
road track — the charge vras apparently more
favorable to the plaintiff than she was en-
titled to have given. In view of the fact that
the plaintiff obtained a verdict of $2,500,
and her dissatisfaction is that t^e verdict
Ifl too small, and in view of the evidence and
the general charge, we do not think there is
anything in the charges mentioned requir-
ing a new trIaL Nor do we think It wonl^
serve any good purpose to set oat each of
these charges at length and repeat the dls-
cnsslon as to them separately. We have
qwnt much time in considering the volnmi-
noos record in this casct and all the assign-
ments of error, and the anthoxltles cited, as
well as others, and reach the oondnslon that
no le^ reason has beea shown why the Ta^
diet should be disturbed.
Judgnmkt affirmed. AU tli* Justices oon-
eur.
OUO Oa. St7)
KNOTT T. HeWHIBTBB.
(Supreme Court of Qeorgia. July 19, 1913.)
(8t/lldbu8 hy the Oourt.)
1. Pabtiks a 92*) — Pakcixs DElSirDANT —
Common Intebest.
The amendment to the petition, Which was
demurred to by the defendant, Bought to make
one a party wno had no common interest with
the deioidant in the ori^al petition, and be-
tween whom and the original defendant there
was no ground of common interest; and the
court ahould have sustained the defendant's de-
murrer.
[Ed. Note.— For other cases, see Parttea, Cent
Dig. S| lB0-ltS2; Dec Dig. | 92.*3 ^
2. Appbal Ann Bbbob (| 874*) — Rkvibw —
Habhusb Erbob.
The demurrer having been erroneously
overruled, what took place In the subsequent
trial was entirely negatory; and it ia entirely
unnecessary to pass upon qu^tions raised as to
the ralings of the Court during the progress of
the trial, and as to certain portions of the
charge to the jury.
_IEd. Note.— For ottier cases, see Appeal and
Brror. Cent Dig. fS 847a 8480. 3^ 8484.
^630-8540; Doc Dig. { 8T4.*]
Error from Superior Co art, Fnlttm Coun-
ty; Geo. U Bell, Judge.
Action by R. M. McWhIrter against J. J.
Knott Judgment fbr plaintUI, and defend-
ant brings error. Reversed.
Alexander Ratteree was the owner of land
lot 134 in the fourteenth district of Fulton
connty. Mrs. B. M. McWhIrter, allegli^
that she was the owner of a lot which had
been carved out of land lot 134, brought suit
against J. J. Kiott, alleging that he owned a
lot of tight acres carved out of land lot 184,
and lying north of the plalntUfa lot She de-
rived title from Alexander Batteree tiirongh
1^ series of conveyances, the last having been
ezecnted in 1904, and describing the land as
f ollowB : "All that tract or parcel of land
situated, lying and being In land lot one
htindred and ttdrt^-fonr (184) of the fionr-
t^th district of originally Hairy, now Fol-
ton county, Ga., commencing on the right of
way of the Central Railroad, at the sonUi-
east comer of Dr. Knott's lot, and extending
west along Or. Knott's line nine hundred
and forty-four (944) feet to the old New-
nan road, thence southeasterly nine hundred
and twenly-nlne (929) feet to a point on
the Oentral road four hundred and forty
(440) feet sooth from the starting paint,
thence northerly four hondred and forty
(440) al(Hv s^ rU^t of way to the start
lug point; containing four and Iforty-one
hundredths (4.41) aiTes, more or less."
The defendant's land adjoins petitioner's
land on the north. He acquired title In flie
year 1882 by virtue of two deeds execnted to
him W. T. Waters and A. P. Bskrldge^ fn
each of whl<^ the vendor conveyed to J. J.
Knott aU of hia Interest and title to "aU
that tract w parcel of land sltnated In the
northern part of land lot me hondred and
thirty-foor (134) In the ftmrteentb (14th)
district of originally Henry now Fidton
county, Georgia, containing tight acres, and
boonded as follows: On. the west by the
Newnan road, south and north by original
line number 134, and east by Mac<Hi and
Western BaHroad." In the original potion
it Is alleged that Dr. Enott has entered upon
the lands of petitioner, and has begun to cnt
down and remove valuable trees growing on
the premises ; that when petitioner went In-
to possession of this land there was a fence
which she allies marked the southern line
of the property claimed by Knott; that
some of the land lying north of this fence
was In dispute between her grantor and
Knott, and is now in dispute between her
and Knott; that on February 1, 1905, Knott
constructed across her premises, over her
protest, a fence Inclosing within his land
a strip of her land about 80 feet wide, and
extending the entire length of her premises,
and he is claiming possession of the same;
that In the deed under which Knott holds
the property is well defined; that the lines
of petitioner's properQr d^nd upon the
lines of the property of the defendant; and
that it la necessary, In order to establish the
exact Un^ that the same t>e surveyed. In
May, 1907, the plaintiff by amendment show-
ed the following: In 1871 Batteree conveyed
to Pritchett a tract containing 6 acres of
land and to Waters a tract containing 8
acres. Waters aoauired title to the 8 acres,
and In 1882 Waters conveyed the 8 acres to
Knott Ratteree In 1877 conveyed to H. F.
Leak 171 acres of lot of land 134, being all
of that tract except the 8 sens prevlonsly
conveyed. In 1886 Leak oonvo^ed to W. H.
liOfttn 4.41 acres adjoining ths Snott tract,
and balng a portion of ftu> 171 acres last
r^erred to. Leak Is now dead, bat before
his death, In the year 1900, he conveyed
•rw othw CUM SM SUM toplo ud MOtlOB NUMfiBB in Dee. Die « Am. Dlc,-^-]
KNOTT T. MoWHIRTBB
1063:
"nUt tnct 'or parcel of lantf v^blcb bad been
conrered said Batt«:ee [to lilm] ' to bis
dani^ter and aula belr, Mia Maud Leatc
Cobba," deed desczlbbig Uie land as - fol-
lows : *'A11 tbat tract or parcel of land lying
and being In Pulton county, being one hun-
dred and seronty-one (171) acrea, more or
less, bounded sontb by WUUam Walker, west
by Jo8«pb Galdw^ east and north by Asa
Tdand, north by Julian Ratteree, excqit
el^t acres on the north line In the old fi^
between the big road and the Macon and
Central B. B. right of way, number one bun-
dred and thirty-four (134) In the fourteenth
district' of f«lglnally Henry how Fulttm
county aforesaid." The land conr^ed to
Loftln by Leak Is marked by no natural
landmarks, but the boundary oommoices at
the Bouthrast corner of tbe Knott tract and
follows Knotts line west to the old Newnan
road; and beCnfe the Lofttai tract can be
laid out and defined by metes and bounds, it
Is neceemy to ascertain the southeast cor<
ner of the Enott tract and define the south
line of his tract between the right of way of
the Macon & Western Railroad and the old
Newnan road. Tbe dividing line between
the Leak land (now Mrs. Cobbs' lan<!0 and
that portloa sold to Loftln (now petitioner's
land) has never been definitely ascertained
and marked; and before It can be fixed and
determined, It la necessary to fix and deter-
mine the south line of Knott's parcel or
tract Mrs. Cobbs Is interested in the loca-
tion of the south line of Knott's tract, be-
cause the Loftln tract, which now belongs
to petitioner, Is to be laid out with reference
to said south line, and Mrs. Cobbs owns the
land adjoining the Loftln tract The deed
from Leak to Loftln is a warranty deed;
and, If the title to any portion of the land
so conveyed should fall, there would be a
breach of tlie warranty, and Leak's estate
would be liable; and, "although Leak con-
veyed the titie of all said tract or parcel of
land conveyed to him by Ratteree, together
with all his other property, as petitioner Is
Informed and believes, to his daughter [Mrs.
Cobbs], yet the same vras without any con-
sideration, but made as a gift to his said
daughter and only heir, and said property
would be liable to any legal claim against
H. F. Leak; that Mrs. Cobbs Is not a bona
fide owner for valuable consideration, but
simply a volunteer." The land adjoining the
Lonhi lot (now petitioner's lot) on the
sontb, for a distance of 929 feet, is now in
the possession of Mrs. Cobbs, under the deed
made by Leak, and she has no title, right or
possesion which could be paramount to the
titie of petitioner to any portion of the land
necessary to satisfy the Leak deed to Loftln,
and petitioner is enUUed to a tract or parcel
of land which will fulfill the description and
measuronents ot the Leak deed to Loftln.
Petitioner cannot protect her rlgbt^ ullder
the origlnaL petition, the only party de-
fendant thereto being Knott, wblie petitioner
and Knott would be bound by a judgmoit or
decree therein, fixing and determining the
south line of tiie Knott land; the relative-
rl^ts of petitioner and Mrs. Cobbs would '
not be fixed by such decree, for when peti-
tioner seeks to have her tract laid out in
accordance with the dimensions given in the
Loftin deed, Mrs. Cobbs can object thereto,
and contend that the south line of the Knott
tract was Improperly located. Mfs. Cobbs'
therefore is interested In a decree aaootain-
ing and fixing tbe southeastern comer and
southern line of the Knott tract or pared of
Und, and petitioner prays that Mrs. Cobt»
be made a party defendant to this suit The
court allowed the amendment and Mrs.
Cobbs was made a party defendant The
deed showing the tdialn of conveyances put-
ting title in petitioner, Knott, and Mrs.
Cobba are all attached to the petition as «c-
hlblts.
Knott donnrred to the amendment <ni the
grounds, among others, that tbe amendment
seeks to brim; into the case a party defendant
who has no comnum interest with tiie defends
ant and Is an improper party to be Joined'
with him. that if Bfrs. Gobbs has encroached
upon the south side of tbe property claimed
by the plaintiff, the defendant is In no way '
Interested In the suit and the plalntifl should
assert her rights in a distinct suit against
Mrs. Cobbs, and that if the amendment ^ould
be allowed, the suit would be multifarious.
In that it would embrace separate and dis-
tinct causes of actions against separate and
distinct parties. This demurrer was overrul-
ed, and Knott excepted to this ruling, and to
the refusal of a new trial aftw verdict which
was adverse to him.
Jos. W. & Jno. D. Humphries and Herbert
A. Sage, all of Atlanta, for plaintiff In error.
P. H. Brewster, J. Li Mayson and Wimbish &
Ellis, all of Atlanta, for defoidant In error.
BECK, J. (after stating the facts as above).
[1] 1. We are of the opinion that the court
erred in overruling the demurrer to the
amendment seeking to make Mra Cobbs a.
party defendant to this case. Clearly she
has no conmion right with the plalntitt or
with the defendant Under the auctions in
the petition and in the proposed amendment
when they are considered together, it dis-
tinctly appears that the description of the
property which was conveyed by Leak to
Loftin in 1885 was made with reference to
the prior conveyances of Ratteree to Pritchett,
Ratteree to Waters, and Waters to Knott ex*
ecuted. reqDCctively, In 1870, 1871. and 1882. '.
These three deeds last referred to, especially
the deed from Waters to Knott conveying
eight acr^ in 1882, fixed definitely and abso-
lutely the southeast corner of the tract of land
conveyed to Knotty and the southern line of
Knott's [ffoperty; and the northern bound,
ary vt the land now daimed bjMn, Mc-.
Digitized by LjOGglC
1064.
78 SCWl'UiiViSTBBkN- BBFOfi^EB
Wbirfier* vUeh wa» Orst caEred. o«k ^ ttw
land conveyed b;^ Batteree to, Leak vhea
Leak sold to Loftliif wa» made idantlcal with
tlie line constltntloe the Bontbera botmdary
of Knott's tiact . of land aaiulred by blm
from Waters^ or £rom Wat^s and Bskridge.
There was notblnf Indefinite about the loca-
tion of that Bontbeast corner of Knott's land
or of the southern boundary. If It after-
wards beeamo Indefinite, It was t>ecause
Knott crossed his southern Ufte, and laTade4
territory belonging to Leak, or to Leak's suc-
cessors In title, to whom had been conveyed
the land Immediately adjoining the tract of
elgfat acres described in the conveyance by
Waters to KnotL When in 1885 Leak con-
veyed to Lof tin the 4.41 acres of land bounded
on the north by the southern boundary of
Knott's 8 acres of land, Knott could not have
acquired any yrescrlptlre title, as against
Leak's grantee^ Loftln. If by subseauait ad-
verse possesfdon he acquired a good prescript
tive title to the s^v of land south of the
southern bouudai^ of his land, as fixed by
his deeds to the 8 acres of land. It was ac-
quired to the loss of those who held, throu^
BOtiBeiiuait oonveyanoes, from Loftln ; and If
Knott acvilred In iMa way a prescripave
title to a strip of land on the northom part
of Hut 4AL acres of land conTeyed by Leak to
LotOn* It In no way affected MtaL GoMw*
title with which she became vested under the
deed ezecnted In 1800 by ber txQux, H. V.
I««k. If tbe title be any paft of tbe land
which Leak's deed to Us daoghter, Mrs.
0(A)bs, purports to convey, fails, it will be not
because of any title to a atrip of land, ao-
qntred by Knott along tbe nortbem portions
of th« 4.41 acres of land, bat becaase It em-
braces a part of the land which Leak h^
formerly conveyed to Loftln. For, examin-
ing the deed from Leak to his daughter, it
seems to convey (though this, may be an am-
biguity) tbe land in land lot 134, "except
eight (8) acres on tbe north line In the old
field between the big road and the Macon and
Western and C«itral R. R. right of way."
me description we have just quoted may be
ambiguous and open to this objection; bat
that does not affect what we have said above,
tbat the title to tbe 8 acres of land to whldti
Knott holds written title, and the 4.41 acres
conveyed by Leak to Lc^Idi and thence^ by
subsecfnent conveyances, to the plaintifT, is
not affected by the deed which Leak executed
to Mrs. Cobbs, It being snbseqnent In date of
execntlon and record to the deed to Loftln,
throng whom Mrs. MeWhlrter derives title,
and to tbe deed to Knott. There can be no
controversy between Knott and Mrs. Oibbs,
nor has he any common Interest with her.
And the a&omrer to the amendment seeking
to make Mrs. Oobbs a party ebouM ban ben
sustained.
It] 2; Tbe court having erroneously overrul-
ed the demurrer offered by tbe defendant tb
tbe- ammdmart to tbe. petitlMS. wbat took
place In the telal subsequently to tbe ovetr
ruling of die demurrer was entirely nuga-
tory ; and. ib Is onneeessary to pass upon the
qoestloH. that were raised as to* the rallngs
of tbe oonrt during the progress of the trial,
and as to cwtatn portions of the charge to
the Jury. Louisville & NaahvUle B. Go. v.
Beece, 130 Ga. 8&4» 71 S. B. 675.
Judgment reversed. All the Jnatlees eon-
cnr.
(140 Oa. 306)
STANLEY et aL v. CITX OP GLENNVIIiLE
et aL
(Supreme Court of Georgia July 18f 1913.)
(BfUalua by the Cottrl.}
1. Religious SociienBS (| 18») — Deeds —
Construction— Bbbacb or CoNDixioifs.
Where title w«» conveyed by an individual
to trustees of the Baptist Institute of the' Bap-
tist Union Association, which" had been incor-
porated (whether by coBsent of the Union As-
sociation or not), and such tvoatees, with the
consent of the union Associatioa, conveyed the
property to the deacons of a certain Baptist
church, referring in the deed to a resolution of
the association which made certain proviaioDs
as to tbe conducting of the school on tbe prop-
erty hy the grantees, and declared that in case
of a willful violation thereof "the deed should
be null and void, and the property revert back
to the assodatlom," If this reference constimt-
ed the reaolntiDn a part of the deed and creat-
ed a condition subsequent, upon a breach there-
of the title would revert to the trustees of the
institute, and would not pass to the- unincorpo-
rated Baptist Union or Its individual members.
(a) The plaintiffs were not shown to be tms-
tees of tbe Institute; but it was alleged tbat
they were the executive committee of another
named Baptist association, and were tnntees
of each of the two associationsj appointed for
tbe purpose of bringing this suit and recover-
ing and holding tbe property in trust for tiie
members of such association.
(b) The other association did not appear
from the petition to have any interest in the
transaction.
[Ed. Note.— For other cases, see Rell^oua
Societies, Gent Dig. H 111-129; De& 1% |
ia«]
3. I^IMCIPAL AHD AOElfT 171*)— RMU-
oious SociKTiKS (I 20*)— AtmioBiTX or
Agent— Saubs— Right to Attack.
If the Union Association should be consid-
ered as principal and the trustees of the Insti-
tBte as amenta, tbe rsscdutton- passed hy tbe
former, fairly construed, autborised a- convey-
ance of the school property, and not merely
of the bouse, with no land.
(a) A principal cannot recdve and h^d tlie
proceeds of a sale by his agent, andj at the
sante time attack the authority- of the agent'to
sell.
[Ed. Note. — For other cases, see Principal
and Agent Cent. Dig. f{ 644-65&; Dee. D4f. I
171;* Reli^oQs Sodetiss, Gei*. Dig. || IM-
143; Dea Dig. S ^.'l
Error from Superior Gonrti TattblS Oonn-
ty; W. W. Sheppardi Judge
Actten by R. M. Stanlcr and olb«s agadnst
the Olty of Glemtville and otbua. Judgmoit
for defeadantt^ and plabttUb Mng enor.
Affirmed.
•For etksr cases as* suae tepla and ssetlon NUMBSB m Dee. Dig. Am, Dig. Ksy-No.
Digitized
Was
Wii7i|fc>Barttelta'.-of JEtetdBvHle, tor plate-
tiffs In vnoT. C Ifc Oowart. ot CUsmviUe,
and Bines & Jordaa, of AtUato, Cor Astoid-
•nts la smw.
LUMPKIN, J. A petlttOD wu flled bf
Stanley and others, 'in tlialr own bdialf and
aa the executive committee and tnutees of an
D^nlxed religious society known as the
Tattnall Baptist Association, and a rdlgloua
society known as the Btujtlst Dnlon Assoda-
tton." It was alleged that the Tattnall
Baptist Assodatton was oomposed of 16
churches, with a total membership of 1,14B,
and that the Baptist Union Assodatlon was
composed of 8 charchee, having a total meni'
barshlp of 008L The purpose was to han a
deed from the trustees of tbe Baptist lusti*
tote to the deacons of the Philadelphia Bap-
tist Chnrch of the Union Ausodatlon, and
one from the latter to the dty of Glenn Tllle,
canceled, and to obtain other taddental re-
lief. The petltlou was dlsmlsaed on de>
mnirer, and the i^lntlfTs excepttO.
II] 1. The petition did not dlaciose that
ttie Tattnall Baptist Assodatlon had any in-
terest In the matter at alL It did allege In
the first paragraph that ths plaintiffs and
the members of i the two asaodattois were
Joint owners of the tract of land to recoTcs
which salt was brong^t against the dty of
OlenuTille. But in the fourth paragraj^ the
plaintiffs alleged that they and the. parties
represented by them acquired title under a
deed executed on October 13, 1891, by' James
J. Barnard to George W. Smith and others,
■^s trustees of the Baptist Institute of the
Baptist Union Assodation, and thdr suc-
cessors, the said parties named as trustees
being, at the time of the said conveyance,
trustees of the said Baptist Union Assoda-
tlon and Incorporated as sudi trustees by
the superior court of the said county of Tatf-
nall on the 13th day of April, 1861, for the
purpose of reddrlng the said property and
holding the same In trust for the members
of the said Baptist Union Assodation, and
for the purposes of promoting the general de-
sign and looking after the general interest of
a school or academy to be established on the
said lot or parcel of land, to be known as
the Baptist Institute of the Baptist Union As-
sociation." It will thus be seen that, while
the plalntlfTs alleged that the members of
the Tattnall Baptist Assodation weVe part
owners of the property, the deed under
wbldi they claimed showed no Interest In the
members of that assodation.
We will therefore consider the matter only
with reference to the Baptist Union Asaoda-
tlbn. T^t assodatton had no title conveyed
to It or its mmbe^ hut the. title was con-
veyed to tnutees. of an ln«tl.toteh wlio had
been ibieorporated for th« poipose^ as al-
lied in the original, petition. And tUongh
by amendment It was alleged that thq tr,u^
tees of the Institute aa. auch obtained ai chat-
ter taom the mperUar eMirt aflto thdr «p-
polntment 1^ fbe Baptist Ibdott Assodatlffli
aa trustees of the Institute^ &ad without •aij
authority from the Baptist Union Asaodatiwi
for lhat p^Epo•^ tfda did not mate tba eon-
vctyance operate as oat to gesml trastees
of a dmnOi for <dtarch purposes ; bat, wheth-
er they wen incorporated or not, the deed
conned ttie title to the trustees of the
institute^ These trusteea, who held the legal
title, made a conveyance to the deacons of
the Philadelphia Missionary Baptist Cbordi.
The deed contained a redtal that It was
made In pursuance of a remlutlon passed by
the Union Baptist Association. From a copy
of the resolution attached to the plaintUtH*
petitioQ it appears that it was resolved that
the aasodation should convey the pnv»erty to
the Philadelphia Baptist Church. Certain
PFovlsloBs were, therein made in regard to
the manner in which the Institute should be
conducted and It was declared that for a
willful violation of any of such provlalons
"the deed should be null and void, and the
property revait bade to th* Union Associa-
tion." If the deed from the trustees of the
institute to the deacons of the Philadelphia
Baptist Church was rendered null and void
by i^son of the tuneaoh of a condition snb-
sequent on the part of the grantees, the title
would be In the grantors; and this is true,
whether the grantors be considered as indl-
rldnais. or as fbrming a body corporate.
1*1 ere could not be a reversion to those who
never had title. The language of the resolu-
tion cannot be constnied as creating a condi-
tional limitation over to a third person. Here-
over, it does not appear that the baptist
Union Assodation was incorporated, so as to
be able to take title or to bring suit as an
entity. Eelsey v. Jadntm, 1^ Oa. 118, SO
S. E. 951. The trustees of the institute were
not parties, and It did not appear that the
plaintiffs were successors to those who
signed the deed. According to the allega-
tions, it seems that the plaintiffs were elect-
ed trustees of the two Baptist assodatlons,
and for the purpose of suing and holding
what they might recover. They were not
trustees of the Institute, bat rather trustees
for litigation. Nor could the plaintiffs, as
trustees of such assodation, or as Individu-
als, bring suit to recover the property, based
on a reversion because of a condition sab-
sequent broken. Inasmuch as it does not ap-
pear that the plaintifTs. in any capadty ever
had title, or that there was any reversion to
them. In so far, therefore^ as the case la
based upon the idea of a reversion because
of the breach of a condition subsequait on
Ote part of the deacons of the FhUadel^tla
Baptist Church, the plalnttffs showed no title
whldi th^ could «iforc&
[1] 2. The itlalnttlKi also aontfit tpdeny.ttie
anthorlty of the tmsteea of U» Instltnte to
seUAnythingbnttbeboUdlng. While one-part
of th«. refolutiPiL declftifld tfeat .Ttte boUd-i
.. Digitized by VjOOglC
1068
78 SOnTHBAfiTBIRN BBBORTBB
Uig known as the Baptist Institute of Glenn-
TlUe" shonld be conveyed to the Philadel-
phia Baptist Charch of Glennville, yet In oth-
er parts of the resolatlon reference was made
to the school property aa a whole, and to the
operation of It as a whole. Fairly construed,
It is evident that it was Intoided that the
school lot, as well as the house Itself, should
be conveyed. Moreover, if It were sought to
attack the act of the grantors on the ground
that th^ were agents who exceeded their
authority, it appeared that a consideration
was paid, and that there was nothing to
show that the alleged principals did not re-
ceive and retain such consideration, or that
th^ ever tendered It back.
The plalntifts showed no title in them-
selves, and there was no error In sustaining
the demurrer to the petition,
Jadgmant affirmed. All tbe Justtoes con-
car.
aM Oa. SIS)
CRTTHP T. CRtTMF et at
(Supreme Court of Georgia. July 18» lOlS.)
(ByOabvt by tk* Court.)
BxBCunoR (S 246*) — CoNnDBimA]:. Rkla-
TlOBB— SaLK.
Where one waa present at a sale of land
under a fi. f a. issued from a justice court, and
participated in the Bale by aaslstliig and aid-
ing tbe purchaser, who was his mother, and to
wbom he sustained confidential relationB, by
loaning her money with which to make tbe pur-
chase and making such "arrangementB" aa were
necessary, ha being present "for tbe purpose
of protectlnc big mother" in what Bbe did, be
coiud not afterwards, bavins subsequently to
the date of tbe sale bought the interest of the
defendant In fi, fa., attack the sale on the
ground that It waa void, because the fL fit was
not properly backed and tlie levy was azees-
sive.
[Ed. Note^For other cases, see Execntiiuit
CenL Dig. if 681-«86: DecTDlg. { 2tf.*]
VStTQT from Superior Oonrt» Banks Gonnty;
C H. Brand, Judge.
Action for partition between E. T. Crump
and J, W. Crump and others. From the
granting of a new trial, B. T. Ommp brings
error. Beversed,
One of the heirs at law of B. G. Crump,
deceased, made application for partition of a
tract of land in Banks county. It appears
from the pleadings and admissions duly made
tliat the widow of said deceased had a life
estate in said land, that she was dead, and
that there were several children, each orig-
inally owning, at the death of their father,
B. O, Crump, one undivided seventh vested
remainder Interest in the land in question.
It was mutually admitted that B. T, Crump
had purchased and owned the Interest of T.
B. Crump, and thus owned two-sevenths;
that J. W. Cmmp^ one of tbe respondents,
had purchased and owned the interest of W,
F. Crump, another of the heirs, and thus
owned two-sevoiths; and that two of the
heirs, Mam Crump and Mary R Eesler, each
owned one-seventh, their original shares.
But R. T. Crump claimed to own a third
seventh, originally belonging to J. G A.
Crump, through a sheriff's deed under levy
and sale to the mother, Mrs. A. H. Crump,
and a deed of gift from Mrs. A. H. Crump
to B. T. Crump. On tbe other hand, J. W.
Crump claimed to own this seventh under a
deed direct from J. C. A. Cramp.
An order waa passed, agreed on by conn-
sel for the respective parties, that certaiA
commissioners appointed should so dlvld»
the land aa to give B. T. Crump two-seventbs,
J. W. Crump two-sevenths, Mem Cnimp one-
seventh, Mary Eesler one-seventh, and shonld
lay off one-seventh for the interest or share
of J. C. A. Crump, and that the question of
ownership of this last seventh part shonld be
determined by trial. J. C. A. Crump, having
been nmde a party, appeared and set up a
claim to this share. After hearing evidraioe
offered on the trial of this Issue, the court
directed the jury to return a verdict that the
seventh interest belonging originally to J.
C. A. Crump belongs to R. T. Crump, and
not to J. W. Crrimp or J. G. A. Crump. J.
W. Crump filed a- motioa fOr new triaL Tbie
motion was sartained, and a new trial grant-
ed. B. T. Crump excepted.
H. H. Perry, of Gainesville, for plaintiff in
error. W. B. LIttie and Geo. L. Goode, both
of Camesville, for defendants In error.
BECK, J. (after stating the fiicts as abov^.
We are of tbe opinion that the verdict di-
rected by the court was demanded under the
pleadings and evidence in the case, and thaf;
having properly directed the verdict, the
judge erred when subsequentiy, upon mo-
tion of one of the losing parties, J. W. Crump,
he set It aside. Whether or not the sale
of the intere^ of J. C. Crump in the lands
in question, which was made by the sheriff
of Banks county In the year 1S85, would be
held to be void on the ground that the levy
was excessive, or on the ground that the A.
whi(^ was levied by a bailiff of Banks
county, and under which the sale took place,
was not backed by a justice of the peace or a
notary public of Banks county, if the ques-
tion were raised by a party entiUed to make
such a question, we think that the defendant
in error was clearly estopped from making
that issue. He was present at the sale; be
knew or conld have known all of the facts
upon which he now bases the contention
that the sale was void; and yet under his
own evidence It ai^ars that he participated
In the proceedings which resulted In the sale
of the land to bis mother. With her he gave
a note for the principal and interest dne on the
fl. fa., leaving the fi. fa. to proceed for the cost,
whldi was not paid. The mother waa a bidder
at that sale, and he was there with her. The
•r«r etlMr cum tm suw topla and ■•ottos NUMBER la Dm. Die. * Am. DIc^^E^-N^^Bs^ ^^^^^^^asM
WHITFIBILD T. MBAMtf
d^ndant In enor Unuidf tesUOed that the
alieriff put up t3ie land ifell tot tbe costs,
and she benight It In for tbe costs. I for-
nlshed the moneor, $6. utd motbor paid It
I loaned her the moner. I waa with her. I
helped her make all tlie anmngementa— drying
to protect her In It I waa irtth her for that
purpose. I was with mother to protect her,
and try to keep hw from being broke np^ I
was here ae long as flie sale lasted. I let
her have $5 to pay that cost; that wu what
■w&it to the sheriff. I helped her make all
the arrangements she made that day."
Oonslderliv the relations ot tbe defendant
in error to his aged mother, who was being
I^otected by him and assisted by him at the
sale, the fact that he loaned her the money
to make the pnrcbaae^ and that he made all
tbe arrangemenbi for bar in the purchase and
partldpated In the sale, we do not think that
there can be any donbt that he Is eetopped
from now aasertlng that the mother, whom
he had aselsted in making the purchase at
the sberUTs sale and in obtaining the sber>
UFe deed «»cnted In porsoance ot that sale,
did not obtain a tide to the hind whldi she
porchased. Oode, H 4637, 4628. See, alai^
In this connection, Reldiert r. Voss, 78 Ga.
54, 2 S. E. S58; Crosby t. Me«k8, 108 Ga.
12^ 88 S. EL (OS; Boorqaln T. Booranln. 120
Gft. 115, 47 S. B. 688. And. that being tme,
.this plaintiff in error, her grantee in a deed
dniy ezectited, also obtained title; and. tbe
eviaence sboWtng this being nncontroTerted.
tbe court, as saM above, properly directed a
verdict in favof « B. T. Gmmp, and shonld
bare permitted It to stand.
Judgment reversed. All the Justices con-
eur.
a« Oa. 480)
WHITTIELD et aL T. MEANA
(Sapiuu Court of GeOTgis. July 21» 1913.)
fBvtWbiu iv 4ke Court)
1. Wills ft 627*)-^onstbttctioit.
Item 7 of a will contained the followinK
language: "I give, begaeath, and devise to my
daughter. Mary B. 'Means, wife of John a.
Means, lot No. of my tract of land ly-
ing in aaid county, on Middle river, now own-
ed by me, whereon I now live, to have aald lot
of land No. to her and her children and
to the exclusion of all other persons whatever,
said lot of land in fee, to her and her child and
children, all rights thereto appertaining." This
was a devise to Mra. Means and her children,
and vested title in her and such of her children
as were livins at the date of tbe will and at the
death of the testator, as tenants in common.
McCord V. Whitehead. 98 Ga. 381, 2S S. E. 7t(7.
[Ed. Note.— For other cases, we Wills, Cttlt
Dig. H 1462-1469 ; Dec Dig. | e27.»]
2. Wills (i 627*)— CoNBrBTTonoK.
The direction in a subsequent item of that
will that certain tiamed grandchildren of the
testator be paid by Mary El Means and other
named children, of tbe testator a certain sum of
money In lien of tiia grandchildren's propor-
£i(Aiate part of the real estate, connected wifh
the recital that tbe testator had bequeathed aU
of hU land to his dau^tcr, Mary MeaQs, and
other children, would not anthorize a different
construction of the provisians of item 7 from
that which m have given it In the preceding
headnote.
[Ed. Note.-^FoT other cases, see Wills. Cent
Dig. 11 1452-1468; Dec. Vig. % e27.«r
8. Tenancy in Common (S 38*)— tJHLAwrot
Ouster— Right or Action.
It follows that, where one of the children
of Mary E. 'Means took possession of the lands
devised in Item 7 of the will, having purchased
the interest of Mary Means, the mother, and
having ousted the other tenants in common, the
tenants In common so ousted could maintain an
action for the recovery of thdr interest in the
land.
[Ed. Note.— For otiier cases, see Tenancy in
Common, Cent Dig. H 100-104. lOT-^isTDee.
Dig. s ak*} w
4. Demitbbgb to PBTrnoH.
Tbe court erred in sustaining a goteial
demurrer to the petition.
Error from Superior Court, Franklin Oonn-
ty: D. W. Meadow. Judge.
Action by Mrs. A. M. Whitfield and others
against T. B. Means. Judgment for defends
ant, and plaintiffs bring error. Reversed.
Mrs. A. M. Whitfield, Hugh Means, and
others brought their action for the recovery
of certain land gainst T. B. Means, the
brother of petitioners, alleging that they and
T. B. Means were the children of Mary B.
Means, and were the joint owners and ten-
ants In common of the land sned for, which
had formerly belonged to Thomas J. Lang-
stott, who died in the year 1885, leaving a
win, the seventh and ninth items ot whldi
were as follows :
"Item Seventh. I give, bequeath, and de-
vise to my daughter, Mary E. Means, wife
of John S. Means, lot No. of my tract
of land lying in said county, on Middle river,
now owned by me, whereon I now live, to
have said lot of land No. ■ to her and
her children and to the exclusion of all
other persons whatever, said lot of land In
fee, to her and her child and children, all
rights thereto appertalQlng."
"Item Ninth. I desire and direct that my
grandchildren, namely, Joel T. Langston, Re-
becca B. TUea, wife of John T. Tiles, Georgia
B. LangstOQ. children of Reuben B. Langston,
deceased, be paid by William F. Langston,
Nancy Aderhold, Mary E. Means, and Martha
M. Means the sum of in lieu of their
proportional share of my real estate, having
bequeathed my entire tract of land to said
William F. Langston. Nancy W. Aderhold.
Mary E. Means, and Martha M. Means, said
proportional share as the said Reuben B.
Langston, deceased, would be entitled to waa
be living at the time. . Each share being
Individually paid to them Indlvldaally and
remain their individual property."
The platntllb alleged tha^ under the provl-
slona of item 7 of the wlU, t^cty became,
tenants In contmon with their mother and
thtlr brother, T. B. Means, and that T. B.
qror otlMT. oases see sam* togu sod ssotloa NDMBBR in Dm. Die * Am. Dig. K«f
19M:
18 SOQ9994iJBXBS^ ^UVjQBppflB
Means had by par<teM woaJrod tiW: latw^
est of their mother In the UutdBt snd> had
dona and performed such acts aa amounted
to an ouster of petitioners.
Jas. H. Skelton, of Hart well, for plaintlfls
in error. J. N. WorleTt of Blberton, and
W. B. Little, of CamesTlUe, for defendant
In error.
BEOK, J. Judgment reversed. AU me
Joatices ooncnr.
(X« Oa. U2)
WAXB A HABPBB t. MTIUCK BROSL
(Supreme Court of Georgia. July 19, Iftl^.)
(SyUabuB H the Conrt.>
BmOKKBS 1% SO*)— BlOHT TO GoMMTSSIOH.
An sllegatloD that tbn plafaltiffl^ ai bro-
ker* and salfiB agents, had effected a trade for
a certain poot room and near-beer saloon at
170 Edgewood avenue, In the city of Atlanta,'
•ma not anpilor^ed by proof that the plaintiffs
had procured a purofaeser willing, reedy, and
able to buy, provided the business of selling
near beer and conducting a pool room at that
place was not, epos the re-establishmept of the
sone within which such basiness coald legiti-
mately be coBdacted, ezduded from such sone,
wbtfD tbe erideace showed that 110 Edgewood
8T«Bae was Dot within the sone within which
the business referred to could be conducted aft-
er the re-establishment of the district or terri-
tory where such ai business would be lawful.
Th* erideace ffif the plaintiff* faUed to- sepport
the' essential allegation of the petition, and a
nonsolt was properly directed.
[Ed. Note.— For other cases, see Brokers,
Cent. Dig. H 86^; Dee: Dig. } 66.*]
Error from Superior Court. Fulton. Coun-
t7 ; J. T. Pendleton, Judge.
Action by Ware A Harper agabiat Myttck
Bro&. Judgment for defendant^ and plals-
tUf s bring error. Affirmed.
Ifoere A Pomeroy and W. W. Bood, all of
Atlanta, tot plaintUXs ta error. IMnn A
Spence and F. B. Radensleben, all of Atlan-
ta, for d^ndants In errw.
BECK, 3. Ware A Harper, a firm, ally-
ing that they were engaged In the brokerage
and commission busioeaa for (he sale of real
estate and "business propositions," brought
suit against Myrlck Bros., alleging, in the
flrst count, that the defendants, "about the
19th day of May, 1911," placed with petttion-
ers for sale a certain near-bew saloon and
poot room atx Edgewood avenfMs being then
operated by Myri<& Bros., agreeing to pay pe-
titioners the sum of S^OO* upon finding a pup-
chaser therefor; that daring the agency they
found a peiufHi able, wilUng, and ready to
pfirchaaei and who actually purchased, said
property in aecordaaee with said omtracC;
and that petittonen^ coaaaiaaioma were thwe-
fore eaned. la the seccmd co«tt It Is alleg-
ed aat, aa or about the date above aa»ed^
petttlenerB prOeilred and IndMrested a pre-
posed purchase, one 8. A Dunn, for a oer>
, toli^ nwbe«r salop^ «nd. yool v¥>m ofwncd by
the defendants, located on Edgewood. avwne,
in the city of Atlanta ; that the defendants
accepted the beoeSts. of tbe sexvlceB of petl-
tlonesa In. the matter, and sold aaXd saloon
and pool room to the purchaser found by pe-
tltlonerB; aad that the defendants therd>y
'became Uable for the value of such services,
to wit, ¥200i After hearing the evldeDoe. tbe
court granted a nonsuit and the plaintiffs
exoei)te&
The grant of a nonsuit was unquestionably
right The evidence introduced by plaintiffa
shows that they did procure a purchaser for
the fixtures and stock of defendauts' pool
roem and. near-beer saloon, located at 170
Edgewood aveonfe The flxturea and vtoOL
here referred to are -what are r^erred to in
the contract as the "business proposition" for
which the plaintiffs were to find a purduaer.
But while they fonpd a purcbasec for this
"business prc^jiosiaen" at 170. Edgewaod ave-
nne, aecordiug to the evidence "It wu under-
steod thAt, if tbe license at 170 Edgewood
ft.T«ine oooM noli be rwiewted, there would be
be' eala" The '^ne? wtfiUn whl^ near
bew could be sold was re<«s^bU8he^ and did
net taduda 170- Edeewood avenue ; and con-
seQueal^* o agreed, with Dwm, the pro-
posed peowbaaer, ttia somr of; tMO; whliA ha
had paid te Und Hm tradsi i«a» returned to
Mna iit accordance with the understanding
U tfaenear^wa "Bene** eheuU be aare*
atrleted am sot to Includ* 17Q Bdggwood ave-
nue, the sale should m&b Wt eoosununated.
All negotta«ioDs fWv tKe «Uk-oC the nevrteer
saloon and pool tmm la ttie plaee wfaei*
MyrlcK Brea were ecmdaethv tba bnslMes
at the time they altered into the contract
with Ware <Bb Har3;>w, t» wit, at 170 Bdge-
wood avoiue, were terminated. And, ac-
cording to the evidence introduced by tBe
plaintlffB themselves, when the $100 which
bad bora paid to Ware ft Harper to bhid the
trade was returned to Dunn, Myrlck Bros,
did not have a lease on the property at 142
E^dgewood avenue. There was no trade pend-
ing, and tbe relations of the proposed pur-
chaser with Ware & Harper ceased, when the
money was returned to Dunn, and he then
abandoned all Idea of purchasing the iwoper-
ty. Subsequeii^ Myrlck Bros., it seems, cUd
lease a room or store at 142 Edgewood ave-
nue, and moved the furniture and other per^
Bonal property which tbey had sought te sell
through Ware & Harper from 170 Edgewood
avenue to 142 Edgewood avenue. Some time
after the trade between Ware ift Harper and
Dtuua had been Anally abandoned, one of tbe
firm of Myrlck Bros, sent for Dunn and asked
him It he would consider a trade at 142 Edge-
wood avenue^ to which Dunn r^Ued in tba
afflmatNe, and a trade was agreed npoa
aild the purchase price fixed. Wan A Harp-
er did not have anything to do wtth
last transaction.
•Itor MiMr Msw asetanwto^ aa* ssottsa' MVHBBR la Best IH» * Amt. U*. nv-N«,^^«^tA
eet^Uab tb4 aiUegatlons in tbo-peUtloa tbat
Uut plalatiffa ha^ sold tbe near-beer saloon
and QOQl room, at 170 EdgejroocI,. aTenn&
oaifice was a oondltloD^l sale oC tb}5' "busi-
ness pcopoaitlou," as U- is termed 1^ the; coa-
tract; but the evidence for the plalntlfla
showe that the contingency, upon the happen-
ing of which the tra^ was to be dedared
noneffective, actually happened. In brief, the,
plaintiffs undertook to handle for sale a
"bustnesa proposition!' at 170 Edgewood are-
nuft, and they did not hajidle It The sale of
the aame physical prpperty at 142 Kdgewood
arenoe was. an entlreily different proposition
from thAt which they had vmdertaken sell
for the defendants.
Jadgment afilxined. All this J[ustloes con-
cur.
a« Oa. MS)
(Snprem? Court of Georgia. July 18, 1913.)
rSylla&M by tkm Court.)
1. Biixs ARD Notes ^ filO*)— PBSSEimai^
— TiMip— EvrD«i»c»— PatmbiW bt Chios or
?HIU> PlBSQlf.
In a suit by. a, vendor of Und againsf a
vendee to'retover a part of the purchase mon-
ey, wher6 ooe of the pleu of the defbnd&at was
that the plaintiff rMuvKd^ certain cbeoki for the
amount qf mon«}{ sued , for, i^hict> b4 {ailed tp
present within a reasonable Uve, and that on
acconnt of the drawer's InBOlveccy, occnrring
between ttie reoeipt of the checks by the vendor
Bo4 theip preaegliMiof. tq Uke. drawee. ba«k, tfce
checks, were not pud. an admission by t^ie
plai&tiit mat he han' Uie che<AB 10 days after
be received them and used ttaent te pay lor land
purchased from anoUier Ib relevuit qb the iame
of preBentation within a. resfionablie, tine.
[Bd. Note.— For other esses, see Bills and
Notea^ Cent 174fr-175B ; ^Dec. Dig. f,
2. BxLca Ain> KoTBS (t tllO*y-PmKitntmfn—
pAvKKicr BT Gbtok ot 7bim> FsmoK-^S)*-
iDsno*.
Where it is relevant to show that. If a
check had been promptly presented, it would
have beea booored by the drawee bank, it Is
competent for a witneas to testify that, the
drawer gave him a check for about the same
sum a few days later od the same bank, whicb
wa» paid and nedtted to his account by tbe
bank, before the preseotatton o| the dishonored
check: and tbe witness' depcwit twok contain-
ing the entry is admissible ih connection wi^
his testimony.
[Bd. Note.— For oth« cases, see ■ Bills- and
NotH. CtQt Dig. II ll4»-X7SBt Z>a8w IHm 1
WO.*]
8. Afro Nonts (K 404, 498*)— ^Btntncn
01 pEoor— Check.
A vendor of land, who receives from his
vcnd<e the duck of a strangn-, payidde to and
indorsed by a th^rd perMi^ to be. collected and
its proceeds aj}pue4^ to tJtie payment of the ppr-
chase money, is bound to exercise reasonable
dlligcnee in tbs prteentation of the ofaeeh ; and
it ka l0 lacktw ID snob diligtnoB. wi the check
la disbonored, begiuse of ths drawer's insol-
vency Interyening before its presentment, the
loM win fell on the vendon Although the
drams msv bs- svsiArvm. in. Us soconnt witlt
the AmwMt nsTWtMm it th» "W^Te^,
•For other eases sss sasM topio aod aeetlcn NUHB^^
depgsiitt.f Cenr tJ^e-Armer «ojl mfs, Us cteck?,. i^.
is the duty, or a.hoider of a ch^^ of spch draw-
er to prHient it{ with nsaaonable dUigenoe, to
tbedrawBei
The instructiion of tba couft^ av^ if subject
to the criticisin of its verbiage, was in essential
harmony witti the foregoing principles, and,
Tdien considered' in coaaeetion with ths evi-
dence, ia not ground for; a< naw trial
[Bd, Nf)t%-TFo^ othes cases, see BiUs and
N6teS CenPbig. S 10m!3099. XlOl-llOS.
168S-!Le94 : Dec. DlE U 404, 488>]
4. BU«.8 AWD NCTM. (I 1*)— "ChBOKS.:*
A **clieck" is a commercial device intend-
ed to be used as a temporary expedient for ac-
tual money, and la generally designed for im-
mediate payment, and not' for. circulation.
[EM. Note.— For other caaes, see BUki s»d
Notes^ Cent Dig. 9 U Dee, Dig. { L*
For other definitions, see Words and Ptirases,
vol. 2, pp. 1109-1112 ; vol. 8, p. 790O.J
Birw trooi .SnpertQT Cowtf ^AtitnaU Coun-
ty; B. T. Bawlijaga, Judsc^:
Action bR 8. Q. KiNUMdy ^sainst U. W.
Jones. Judgmept.fcir d^fsA^^nt, ajp4.plal9fifK
br^ags ecjm^ Ajinned. ,
H Gi BMHer, U BeMtsine^ and maea. h
Jwdaiit 1^ Mlnnta, fin - plaintiff la entub
Way. dp BuiiteUexv nt BsUarlUer flu d^d-
uit In* enor*
WUmf Pi Jl B. a meamm wdd.tot V
W. JoneV' tt trut. of Ivul.tm. fltOQft . -MneB
paid Use muduue money kj' PUyliNt 1^98.
In.eadm and.bgr isUrcrlBc to J.^ D. Kwfly,
foe & a Kenasdir, tun staiac^ dnteil Olen-
TtU^ Oft., Xftwiargi % UOei diKW^ br. B.
P«nrtft-fl«L' ^ Vwvif^ Bank «t OlemMtef
botb pftyablA to tte.oidet; olt % V. VcmOyt-
twj tbet mm- efi etek. . botb lor
doEved.bji D9v^. Tba.cbeeln wwn dsiltrand
on Jaxmxs- 9,. 1908. On imum' 1QU» i$m-
nedy delivered tbeee chedta to B. Dnkos
la part jmwaat ot a tsafil laad. wblidk l|e
bftd bongtat tnm, Delc^a la Wayne- eonqtr*
Oa. Dufeea deposited tttese qbeoha la
Hercluuits' A Tarmers; Bank of Jesqp Jaa*
uerar 16, 1908, aqd they vera ffwapded to
the dtisens' \ Soiftt^em Bank of Savam^b.
Ga., wUch, lat^ter bank tor^uded them Fsb-
mnry «, 19OS, to, tbe baaik at. CUeuvill^, fer
c<dlflc^n. The :^ee bank .de<]^lned to doj
the ^beeks^ becanse tbe di^vrer hfid bp fpnde
svffi<dent to ms tb/aa. It appeared from
the evldeace tbM duitnc tbe interval, between
tbe drnwlng and tbe present^Oqn of the
cliAcks tbe ftCioofni^ of W. B. purvla was
overdrawTi; but ^ s^so S'RP^&'ed tbat dor-
Ins this, time be ba4 tpad^ mj^oerons deppsita
and drawn swenU, obepks,, which were.BSidj
by; tbe draw»e bank, Xhe amount qf the de-
poslta wa6 largely in ^ceas oi; the cbec^.
dishonored, Wbei) tjxe cb^<;ka, were dish(tn-
o^Ifienqedya^ed qut.an at^chnient against
Jenes fpr so. innch ^ tbe ^rclMU^e money of
tbe iAi>4 Bold by hirP tjo ^ones as. w«« i?Biwer
8^te4 b]c tbe checks. T^^e de£endfint ude^ed
tb|i^ be. aot.la^lbt^^ beowsp t^cjhepks
^^pae. Dig. a Am. Dig. Kv-NejJptKiM^jf^laktil^lC
78 SODTHBASTEBN BBPOETBB
were accepted In paTment of the land, and
because of the delay In preeentlng the checks
for payment by Kennedy and bis transferee,
alleging that the drawer had become Insol-
vent after giving the checks, and for this
reason the money could not be made out of
him. The Jury found In favor of the defend-
ant, and the plaintiff's motion for a new trial
was overruled by the court
[1] 1. The court allowed in evidence a plea
filed by the plaintiff, Eennedy, to a suit
brought against him by L. B. I>ukes. It ap-
peared from that plea that the checks drawn
by Purvis on the GlenvlUe bank In favor of
■Dowdy, which were delivered by Jones to
Kennedy In part payment of the land, had
been used by Eennedy In paying for the land
bought from Dukes. Eehnedy averred In
that plea that these checks were delivered to
Dukes on January 16, 1908, and were accepted
by him as payment for the land purchased.
The evidence was objected to on the ground
of irrelevancy. The evidence was not irrele-
vant It was admitted In that plea that Ken-
nedy was in possession of the checks as late
as January 16th, and this was relevant to
tbb issue as to whether or not he acted with
reasonable promptness In the collection of tlie
checks.
■E2} 2. A wttneM wfta aUdwed to testify tbat
the drawer of 'tbe^edib deUvered br Jones
to Eeiinedy also gave bim a chei^ <m the
same bank at a time between- the drawing and
the dishonor of the checks In 'oontroversy*
wUcta was paid and Credited- to bis-accoiint
by ttte bank.- The witness Identlfled ttUs Item
In blft-deposUi'book. The deposit book was
then 4dEered 'fai evidence, and was admitted
over objection. Vha testlmwy was admift-
sWe^ and so was the book in conneetlon with,
ttte testimony.
[3, 4] & A cheek is a conmierdal Awtce In-
tended to be need as -a temporary- expedient
for the actual money. It Is generally de-
seed for Immediate payment, and not for
circulation, and therefore It becomes the duty
of the bolder to present it for payment as
ea&n as he reasonably may; and, If he does
not, he keeps it at bis own peril. Daniels v.
Kyle, 5 Ga. 245; Comer v. Dufouri 96 Ga.
378. 22 S. B. 643. 80 L. R. A. 300, 61 Am.
St. Rep. 89. Most usually the question of
prompt presentation arises in cases of at-
tempts to hold the drawer or Indorser liable
because of the 8u{}sequent Insolvency of or
suspension 6t juiymfint by the drawee. But
where a vendor of property receives a check
drawn by a stranger In favor of a third per-
son for the payment of property, and there Is
no agreement that it Is taken as an abso-,
lute payment, the vendor, who thus becomes
the holder, Is under a duty to his vendee to
present the check to. the drawee with reason-
able promptness; and If, by falling to do so,
the check is not paid, ^because either of the
drawer'a w drawee's Intervening Insolvency,
the loss must fail on the vendor. There may
be conditions which will excuse the holder's
delay in making presentation, as where the
drawer has no funds and no ground for a
reasonable expectation that the check will
be paid. 6 Cyc. 633. The basis for this ex-
cuse Is that the law does not require a vain
thing. The burden la upon the hold^ to
show such excuse. If It appears that at the
time the check was drawn the drawer bad an
arrangement with the drawee to honor the
check, or from a course of business dealings
such an arrangement might be implied, or
that subsequently sums of money In excess
of the check were paid by the drawee on
other checks, the holder will not be relieved
of the duty of exercising due diligence In the
presentation of the check, because It cannot
be said that if the check had been presented
with reasonable promptness it would not have
been paid. Hamlin x. Simpson, 106 Iowa,
125, 74 N. W. 906, 44 U B. A. 397; Boblnaon
V. Ames, aO Johns. QT. Y.) 146, U Am. Dec.
259.
The circumstance tbat the drawer may
have overdrawn his account, and there may
not. have been auythlhg to his. credit, will not
necessarily excuse want of presaitatlMi at
the check of the holder with due diligence.
For, as we have seen^ either from an express
or implied agremnent between tb« drawer
and drawee, or from th^ oonrse of deal-
ings, the drawer may have had a reasonable
expectation for the payment ot hla check,
and the holder would- be under a duty to
use reasonable diligence In its presentationJ
In the Instant case it appears tbat in the
intwval- between the drawing of the dbeck
and its presoitation the dtawee paid numer-
ous cbedoi of the drawer, the aggregate be-
ing largely in excess oi the' amount of tbose
in controvoay. The plalnUfC rodded within
seven miles ot GleavUtei . He gives no reason
whatever for retaining the checks wltbout
presentation to th^ bank; and it appears
that on the day that h^ in company with
his father, left for Wbyne count?, tb^
spent a part of the day in GUraville, bavlng
the checks in their possession, and they dis-
cussed the advisability of presenting them
for payment. Of their own volition they
preferred not to present the checks, but re-
tained them to be used in the purchase of the
Wayne county land. The plalhtlfl's trans-
feree deposited them with his bank, and 30
days elapsed before their presentation to the
drawee bank. This evidence came from the
plaintiff, and was not In dispute. The Jury
were well authorized to find that the failure
to collect the checks was dpe to the plain-
tiff's negligence In presenting^ them. Under
such circumstances, the charge of the court
compl&lned 6t, even' if open to the criticism of
its verbiage. wa'& in such essential^ harmony
with the law ziegarding the presentation of
dieck^ as abdv%^bittn(9ated^^Uiitt th^ wa»
Go.)
AliEXAMDKB, SHITa * 00. T. FUUSX NAT. BANK
,1071
no abose of hU discretion In raCuing to
grant a new trlaL
Judgment affirmed. All the ^ntOcei con-
enr.
aw Oa. 268)
ALEZANDEB. SMITH & CO. t. FIRST NAT.
BANK OF FRESNO.
(SnpruM Court of Georgia. Jul; 18, 1913.)
(8vtlabu$ hy the Court.)
1. Witnesses (S 37*) — Evidbncb (S8 157,
271*) — APPEAL AND EBROR (S 1050*) —
HAB1ULB88 EBBOR— SBU-SeBTXNO DKOLARA-
Tions. ,
The rulingi of the court on the admiBsi-
bDit; of evidence do not afford (round for re-
v«rBaI of the judgment
[Ed. Note.— For other caiet, lee Witnesses,
Cent Dig. « 8(^-S7: Dec Dig. $ 37 Evi-
dence, Cent Dig. frS 460-470, 106&-1079, 1081-
1104; Dec. Dig. 15T, 271;* Appeal and Er-
ror, 6ent Dig. §§ 1068, 1069, 41!»-4157, 4166;
Dec Dig. f 10BO.»1
2. EviDEKca (S 231*) — Carbieu (I 68*) —
Claim of Tbibd Pabtt— Pbiobitt— Tbasb-
FSB or Biu. or Ladino.
Where a pacliing company delivers to a
common carrier goods to be transported to a
distant point conslfDed to the order of the
shipper, with direction to notify a dedgnated
{leraon at the place of delivery, and a bill of
adiBg is doly Issued by the carrier to the
CMisignor, and the latter attaches the blU of
lading to Us draft for the price of the goods
on the person to be notified, and delivers it
witii the bill of lading, which is Indorsed In
blank, to his bank to be placed to his credit on
his general acoount and the amount of the de-
posit is credited to the depositor's general ac-
count and drawn against him, the bank ac-
quires title to the goods represented by the
bill of lading, which can Iw asserted against the
lien of a saosequent attachment creditor of the
consignor.
(a) On the trial of a claim case between the
tuuak and a judgment creditor of the consignor,
where the nndisputed evidence riiows that the
bank, In the manner indicated In the preceding
note, acquired title from the consignor before
the levy of the attachment, the fact that after
the bank had acquired title the consignor wrote
letters seeking to induce the person to be noti-
fied to accept and pay for the goods, and others
seeking to make disposition of the goods, would
not affect the title of the bank, iniich had not
received reimbursement to cover the advance-
ment made to the consignor.
(b) The evidence demanded a verdict for the
claimant
[Ed. Note. — For other cases, see Evidence,
Cent Dig. H 835-839, 852-SS9; Dec I>ig. i
231;* Carriers, Cent Dig. SS 179-190; Dec.
Dig. 8 68.»]
Error from Superior Coort; Fnlton Oooni^:
W. D. BlllB, Judge.
Actlm by -Alexander. Smlttk A 0& against
- tbe Malaga Packing Company, In ti^iich the
nrst National Bank of Preano filed a etatn
tory dalm to 0ie properly. Judgment for
claimant on directed verdld; and plolntUFs
ttrlng error. Affirmed.
Thomas & Klni; of Atlanta, for plalnUffs
In error. J. &. Portfer, of Atlailta, for defend-
ant Id error.
ATKINSON, X Alexander, Smith & Co., In
Atlanta, Oa., sued out an attachment against
the Malaga Packing Company, a nonresident,
and caused it to be levied on certain peaches
and raisins as the property, of the defendant
The First National Bank of Fresno filed a
statutory dalm to all of the attached prop-
erty. At the conclusion of the evidence on
the trial of the claim case, the Judge directed
a verdict in favor of the claimant, and the
plaintiffs excepted.
[1] 1. Error was assigned upon the ruling
of the court permitting the cashier of the
claimant bank to testify: "On August 31,
1909, the Malaga Packing Company deposited
as cash a draft on Alexander, Smitb & C9.,
of Atlanta, Ga., for $2,547.87, and bill of lad-
ing was attached to said draft, covering 1,050
56-pound cases of peaches and 100 40-pound
cases of seeded raisins. This draft was for-
warded by the First National Bank of Fresno
to Atlanta, for collectlan," This evidence
was admitted over the objections: (a) That
It was secondary e^dence. (b) "Because It
appears from the answer of the witness, here-
tofore given, that he was cashier of the
First National Bank of Fresno; It appears
from bis answers that , he could not possibly
know of the facts to which he Is attempting
to testify ; that his knowledge would neces-
sarily be derived either from tbe books or
from the receiving teUer; he does not state
that he knows of bis own knowledge these
things, but he says that a draft wap deposit-
ed with the bank; now he does not state tliat
it was deposited with him as cashier; on the
contrary, It Is generally understood, unless
the proof is to the contrary, I should think
it would be presumed that a d^mstt would
necessarily be made with the receiving teller."
There la no merit In these objections. The
witness purported to give hfs personal In-
formation In regard to the matters tesUfled
about He was subject to cross-examination,
and further inquiry could have been made of
him to develop the f^ct that his testimony
was secondary, If It was suCb. or to Odvelop
thi fact that be had not testlfled from big
personal Informadon, If such were the trutb
of the case. But farther Inquiry as to these
matters was not made, and the testimony as
Introduced does not show that It was subject
to the objections urged to Its mdmladUUty.
Another assignment of error was upon the
ruling of the court in allowing the same
witness to testify: "State whether yon au-
thorized any correspondence between Alexan-
der, Smith & Co., and the Malaga Packing
Company." The objection urged to this evi-
dence, was that It was Irrelevant and a self-
serving declaration. The plaintiff was con-
I tending that the claimant bank had not de-
1 rived tlUe from the defendant In execution
t by virtue of the assignment of the bill of
.lla^ng, and, bearing on that question, Intro-
1 duced certain letters ftOm the Malaga Fack-
•Vsr ethsr oasas ses same UpU aaft seottoa Ko^^^^dss. Dig. 4 Am. Dig. Kqr-Mo. SwUs A B«p'r ladeaas
Digitized by Google
1075
log Otmj^tasj to AIexaMto« Smith it Co.,
written sabseaaenOy to tlie aalgnment of
the hlU of lading, and calling upon Alexan-
der, SmiQi & C!o. to pay the draft The testi-
mony objected to was merely . Intended to
Bhow this correspondence was without au-
thority from the dalmant bank, and did not
affect its right as a bona flde holder of the
bill of lading for value. The evidence was
not *'a self-serving declaration" In any sense,
and while it might have been Irrtievant or
' immaterial oa the theory that such evidence
would not have defeated the title of the bank
' as a bona flde holder tor value of the bill of
' lading (Golcer t. Vttat Nttt. Bank of Memphis,
112 Oa. 71, 87 S. E. 122), the fact that It
was admitted could not barm the plaintiff,
nor furnish ground for a reversal of thu
judgment.
Error was also assigned on the mllng of
the GOttrt admitting in evidence "the deposit
Blip and draft and bill of lading, which are
marked ExhlbltEi A, B, and C, respectively,
which witness testifled was deposited with
the claimant bank, also certlQed copy of the
accou^it of the Malaga Packing. Company
with the First National Bank of Fresno, for
a certain period as therein stated," over the
objection that "there has been no proof that
the money or draft called for by this deposit
slip was actually deposited with the' bank,
the only evidence being that of the cashier,
who, we submit, could. not possibly, from the
very nature of things, have knowledge of this
fact." There was an additional objection to
the adtnlssiblllty of the draft and bill of lad*
Ing on the. ground that "there Is no cbnnec*
tlon if the. bill of. lading with 'these partlc-
' nlar goods." An examination of the evidence
Introduced by the claimant, and that Intro-
'ddced by the defendant In execution, shows
plainly that the bills of ladiifg referred to
covered the goods which were levied upon.
The cashier was a competent witness to testl*
' fy that the draft was actually deposited
with the bank, and that the bill of lading
was delivered to the bank In conuection with
such deposit The purport of his testimony
as to these matters was that be was testify-
ing from personal Information. Accordingly,
there was no merit In any of the objections
urged to this part of the testimony.
[2] 2. The uncontradicted evidence shows
the following In regard to the circumstances
nnder which the dalmant acquired title to
the property levied on under the attachment
The Malaga Packing Company, the defendant
in attachment^ delivered to a common carrier
for transportaUon certain peaphes and rais-
ins, 'for wbich tiuee separate bills of ladtog
were'doly Issued. Tfie goods were. consigned
"to the drder ot the consignor' for delivery at
Atlanta, 6a.,' and contained Erection to "notl*
'ty Alexander, Smith & Co." at the plftce of
deUvetr. The bilja ot lading i^era Indorsed
'm bladk' by the Malaga FkiSdi^ Conqiany,
and on the Slst day of August, 1909, the coa-
islgnor made a drAf t for the price of the
goods on Atexander, Smith ft Co., to wliom
they had been sold, and attached to the draft
so indorsed the bills of lading Issued by the
common carrier, and thereupon delivered the
same to the First National Bank of Fresno.
The Malaga Packing Company was a goieral
customer of ttie bank, and- the foU cmunnt of
the draft was on the date motioned above
placed to the credit 6t the Malaga Padding
Company, who thereafter jffoceeded to dieck
■against it and other depealte wliieb were
made from day to day. Alexander, Sndtli A
Co. refused to accept the goods on arrival
and declined to pay the dra^ and the Malaga
Packing' Company did not npay to the First
National Bank of Fresno tibe aauiant ad-
vanced to it The attadiment was not levied
nndl October, about six vreeks after the Fixst
National Bank of Fresno reeelred tibe biU of
lading and credited the Malaga Paddbof Com-
pany with the proceeds of the draft
The reasoning in tiie case Of National Bank
of Webb City t. Everett, 136 Ga. 372, 71 S. E.
660, appUee so aptly to the tacts ot this case
that It Is annecessary -to enter into a further
discussion. According to the ruling In that
case, the claimant bank was clothed with
title wbich It could assert agaliwt the attach-
ment creditor of the' Malaga 'Packing Com-
pany. Stress was laid upon the fact that
after the tumk became the holder of the draft
and bill of lading, the Malaga Packing Com-
pany corresponded with Alexander, Smith &
Co., endeavoring to induce them to accept
Che goods and pay the draft and also wrote
other letters In regard to shipping the goods
to other persons for disposal; it being con-
tended that evidence of this character tended
to Impeach the title of the claimant, and
thereby raise a' question for determination by
a jury. But evidence of similar character
was involved in the case of Goker v. First
Nat Bank of Memphis, supra, and It was
held that notwithstanding such evidence the
verdict for the dalmant was demanded. In
the case last cited the bill of lading was
actually "indorsed over" by the claimant to
the consignor of the goods to enable him to
dispose of the goods for the exdoslve b^eflt
of the dalmaet Under the doctrine of the
case cited, the fact that the Malaga Packing
Company lurd such- correepoadenoe ae above
Indicated, looking to a disposition of the re-
jected goods and.th& collection ot the draft,
did not have the effect to im^wii fche title
of the claimant, wbich bad advanced money
on the strength of the vnvertj i^^eeentfed
by dw bUl J»f lading and had- net been fully
reimbursed. There was no error in dlreetlog
M verdict in favor of the claimant
Judghunt affirmed. All tha'iuBtlcea con-
cut
Digitized by Gobgk*
BAXU>m T. 'XDAXa
>10T3
0<n Ga.' W)
HARDIN T. ADjUA at aL
<Sapt«me Ooart QeotyU. Jbl7 tBi UlS.)
/'SvHabiM'&v the GovrtJ
EXXCnriON <S 2S6*)— ShXBIFI'S SALS-^BlOHTfl
OF Biddebs—Rbsau.
While a bona fide bidder at a BheriffB tale,
w1k> is able to comply with fal»' bU, baa a right,
where bts bid ia wUlfully disregarded by the of-
ficer (Serine ' the property for sale, to go into
equity for- the parpose of compelling a resale of
the pToperty, and to have the sale resumed at
tbe point of his bid, provided euch bidder acts
■with reasonable promptness, yet if he delays
for an unreasonable time, and- is thereby guilty
>of laches, equity will interpose a bar- to his ac-
tiOD. In the present case, a delay of two years
after the sale, before the bringing of tbe salt to
oompel a resale, showed a laea of due diligence
■ Md an anreasonaUe dday.
[Bd. Mote.— For other cana, i«e Bxecntioii,
Cent Dig. iS 723-733; EheoDig. | 256.*]
Srror from Superior Oonrt, liiltni Conntr;
J. T, PendletoD, Judge.
• AcdoB by Kate O. Hardin against O. W.
Adair and O. W.'Mangam. JndsibeBt for'de-
tendaikti^ indfiUlntUf brliiga«ror. Affirmed.
On JtiXnaxj 9, 1812. the plaintfff filed ber
■ pettttoik against CL W. BCangom, iberiff of
ipiiltim' emmtr, and 'Oeorge W. Adair, aUeg-
tdS aa folMvB: Maagiun. lAerifl. exposed <br
sal^ on Januarf 4, 1910. a .dertaln house and
let on West Peacbtree Jdreet, In itbe dty of
Atlanta, nndfer a oenaln- 0. fa. Oeorge W.
Adalr' Md 948;O0O for ttie propertr. and petL-
tloner Ud tBO,tMO. Althottgb sbe was' the
highest Udder, the sherltr wUlfnUy and ut-
terly dtsrecBided Her bUU and knoc^ted- the
prop«l7 down to AdSlr. On>tbe-, day of bie
sale- die went to the sbcAlff'fttfd (rtrered-te
pay him the $60,000. and be refused to' take
the' Bftoney or to make her a deed. 33ie prop-
erty Is worth -flOO.X)00. She is 'ready bnd
able to tender tiie |60iO00H(to court, -of-, gtre
gbod security to gmrastBe bn npset-Ud teom
her of $S0,000, tf the court itrlll order a Re-
sale of the propert?. She prays that tbe ssle
to Adair be set a]ride, that the property again
be exposed for sale at the bid offered by peti-
tioner, and that IC be feiio«l£«d down to ber.
or to such person as shall make a lilgher bid.
The defendants demnrred to the petition on
varions grounds, among others, on the ground
that the • petitioner's right of action was
barred by reason of laches on her part In
'lIHng her equitable p^tlbn. Thai court sus-
tained the demurrer generally,^ abd'ithe pUtoi-
ttfC emtejilad.
' Lowndes Calhoun, of Afl'abta, for pl^lntlff
In error. Bosser ft Btandon and Aldlne
Chambers, all of Atianta, Cor . defendants in
error.
BECK, jr. (after stating tbe &cts as aboTejf.
Under the facts of the case thfi court .proper-
ly held that tbe petition hbould be dismissed.
The plaintiff bad been guilty of such iscber:
as wduM' render it cleuly oniofet aiid In-
equltable't^t^tbls date to- enforce her demand
for a resale' of tbe property. -Section 4S8& of
the GlTll Code is as follows: "The limita-
tions'berclu provided apply equally to all
courts; and In additlon'to the abore, courts
of equity may Interpose' an equitable bar.
whoever, from lapse of time and laches of
the complainant. It would be Inequitable to
allow a party to enforce his legal rights."
And we can scarcely conceive of a dearer
case for the appUcatioD of the provisions In
reference to tbe interposition of the equitable
bar than tMs. The propMty sold for $48,000.
Tbe plaintiff's own bid was $50,000, accord-
ing to her aUegations. There is no allegation
that, except in the matter of not crying the
plaintilTs bid, tbe sale was not conducted In
such a way as to give every one attending
full opportunity of bidding, and tbere Is some
presumption that tbe amount bid was In tbo
neighborhood of the real' value of tbe proper-
ty. The property Is alleged to be now worth
$100,000, a sum double In^ amount that of the
pialntllTs bid. We do not think that a court
of equity would tol«*ate-^certalnly not aid —
a party In delaying the making of a claim,
where delay 'wotild amoubt to giving to the
party gnUty of the delay an opportunity to
speculate in^ the value of the property which
she seeks to have resold. In the two' years
between the sale and the :QUng 6f tbe petition
In the 'present cftse, sbe h^d an opportunity
to 'i^atcb the trend of the market fbr real
estate ln the locality in wblbb the property In
controversy is situated, and to ascertain
whether it would be profltatde or not to ptess
her dafau of a right to a resefle or to aban-
'don It' 'Tf bona Ude she bAd desired to have
a resale and to' hare opportunity of bidding
on this property, she should have pt'oceeded
promptly. In reference to an analogous ques-
tion, the sbbstance of a decision Of the Su-
preme Court of the milted States Is thus
stated by Mr. Pomeroy, in bis work on' Equity
Jurisprudence : "As the question i^bether the
sale should be vacated or not depends upon
tbe fftcts.as they existed at tbe time of tbe
sale, BO, in taking proceedings to avoid such
sale, the plaintiff . Should act upon his In-
formation as to sdtAi acts, and not delay tor
the purpose of ascertaining whether he is
likely to be benefited by a rise in tbe proper-
ty, since that would practically- amoant- to
throwing. ,ypon the .purchaser .sjpy.loBses be
might liustaln by a Call, aqd denying him tbe
benefit of a pof^ble rise.** 6 Pom. Eq. Jut.
4Y. ' Vttieif tbe cSnnunftances- alleged in. this
petition, the plaintiff could not wait, aud
make her action In setti&g aside' tbe sale de-
'pOndent upon the question 'Whether It ts like-
ly to prove a profitable speculation. Id. 47.
, Although- the statute In. reference' to the
iXesale of : land at administrator's salev- ander
^tl>.00de, { B071, ftzes no- time Umtt wttUn
'which sale 'mtist be had. this court held,. In
'•Voretfenr oAm Mstawlepie'aaa'sAtlbirNtnCBint lalfsii. tMg. A Am^
78S.E.-08
1074
78 SOUTHBASTCBN SEPOBTEIB
the caae of Saunders t. Bell, 66 Ga. 442. that
"where, at an admloIstrator'B Bale, property
Is bid off and the bidder refuses to take 1^
and the administrator elects to resell and
proceed against the first purchaser for the
deficiency arising from such Bale, he must
resell the property as soon as practicable;
and if he delay, without the consent of the
bidder, for 12 months, on the ground of strin-
gency of the times, such delay will forfeit his
right to reojTer, and a nonsuit will be properly
awarded." In that case Bell was a bidder
for the property, and It was knocked .off to
him at the amount of his bid, and afterwards
he declined to comply with his bid and take
the property. The administratrix, after de-
laying for 12 months, again offered the land for
sale, and after receiving bids knocked It o
at a certain price considerably less than
Bell's bid at the first sale, and subseqoeoitly
brought suit against Bell for the difference.
Upon the trial of this suit the plaintiff was
nonsuited upon the ground, among others,
that she bad not put up the land for resole
until 12 months had elapsed from the time of
the flnt sale. OThe excuse offered bj thb ad
jQinistratrix was the stringency of the money
markrt and the hardness of tlie tUnes. This
court; in refwenoe to this question, said:
"We think that the court properly granted
the nonsiUt Tbe land should have been of-
fered tox sale again as aoon as practicable;
Any unroasonable delay, with the assent of
the bidder, would, put it In the power of the
estate to q»eculate upon the bidder by Belec^
lug BudL time to resell as would be to the In-
terest of the estate and adverse to that of the
bidder." Se^ also, the case of Boberts t.
Smith, 187 Oa. 30^ 72 8. a 4ia In the case
of DuOey t. Butherford, 21 Ga. 863, 68 Am.
Dec. 460, It was ruled: "At a sheriff's sale,
A. bid li, B. bid 12, A. bid $S. and B. bid
. $3.60 ; but the sheriff fnndulentiy refused to
cry this bid, and knocked off th.e property
to A. at $3. Held, that B. had the right to go
Into equity, and have the sale resumed at the
point of his bid." But in that case there Is
nothing to show that the plaintiff asking th
resale did not move with reasonable prompt-
ness and diligence.
Judgment affirmed. All the Justlcea con-
cur.
(140 Oa. 8S2)
FBI/rr T. SOUTHEEN FLOUR A
GRAIN OO.
(Snpr^na Court of Qeorgia. July 19, 1918.)
(BvUaTnu fiy the Court.)
1. Saxas a 888*)— BoBDT or Bwa,w»—No-
nCB OF fixSAU.
If a vendee refuses to take and pay for
goods bonghL one of the remedies given the
vendor by CTvU Code 1910, | 4181. Is: "He
may sdl the propflrty, acting for this pQrpose
as agent for ute Tendee, and recover the differ-
ence between the oontiact price and the pnce
on resale." However, before the vendee will
be liable for sndi difference. It must appear
that he was notified of the vendor's intention to
resell at the vendee's risk. Green v. Ansley, 92
Ga. 647. 19 S. E. 63, 44 Am. St Rep. 110 ;
Davis Sulphur Ore Co. v. Atlanta Gaano Co..
109 Ga. 6U7, 34 S. B. 1011 ; Mendel v. MiUer.
126 Ga. 835, 837, 66 8. Jil 88, 7 L. B. A. (N.
S.) 1184.
(a) Nothing was said hi McCord v. Laidley.
87 Ga. 221, 13 S. B. 509, contrary to what
held in the above-cited cases. It appears from
the record In McCord v. Laidley, of file in this
court, that the petition specifically alleged that
notice of the resale was given to the veadee,
and that on the trial such notice was proved by
the plaintiC and not denied by the defendant.
The record raised no iwint aa to want of no-
tice, and the opinion rendered in the case dealt
only with the controlling points. That case^
therefore, is not even a "phydcal pxeoedeatf
for holding that notice to the vendee of resale
at bia risk Is not necessary.
(b) The foot that the vendor tendered tte
goods and that the vendee refused to aco^t
them is no reason why a notice of resale by the
vendor at the vendee's risk should not be ^ven.
This is true because the ri^t to recover the
difference between the contract price and the
price on resale is given to the vendor only
where the vendee refuses to take and pay for
the goods bought; and manifestly there coald
be no refusal to take the goods by the vendee
unless he had the opportunity to take themr-
that Is, unless they bad been offered or tender-
ed to nim by the vendor. What waS' said in
Davb Sulphur Ore Co. v. Atlanta Guano Co..
109 Ga. 607, 34 S. H 1011, to the effect that
proof of tender of the goods and demand for
payment by the vendor, and refusal by the
vendee to take the goods or pay for them, would
dispense with the necessity of notice to the ven-
dee of the vendor's intention to resell at the
vendee's risk, was not necessary to the decision
there rendered, and the last sentence in the
opinion clearly shows that the ruling made was
distinctly put on the bet that the petition did
not aUc«e that the vendee was notified of the
resale.
[Bd. Note.— For other cases, see 8al«, Gent
Dig. i 919; Dee. Dig. i S3S.*]
2. Sales (| 889^— TsiAL-Noirsmx.
The action being for the recovery of the
difference between the contract price and the
price on resale by the plaintiff of goods sold by
the plaintiff to the defendant, which the latter
refused to take and pay for, and there beinf no
evidence of any notice to the defendant of the
intention of the plaintiff to resell the goods at
the defendant's risk, the plaintiff was not enti-
tled to recover, and therefore the court properly
granted a nonsuit.
[Ed. Note.— For other cases, see Sales, Cott
Dig. « 924, 926; Dec Dig. | 889.*]
Error tcom Superior Oourt; Fatton Oonn-
ty ; J. T. Pendleton, Judge.
Action by A. Felty against fbe SoDtbem
Flour & Grain Gonq^any. Judgment Cor de-
fendant, and plaintiff brings error. Afflnned.
Oeo. Bb Biudi. of Atlanta, for plaintiff in
error. Walter McElreatb, of Atlanta, for de-
fendant In error.
FISH, 0. J. Judgment afSrmed. AH tiia
Justices concur.
•forsthsri
p teple sad ssettoa NUHBBB la Dso. Dlf. * Am. Dig. Kar-Ne.
' ■ ' ■" Digilized by
Toima MEETS casisrtkS ass'n vatiul
1075
aw Oa. STS)
RUNT AN T. HOBOOOD.
(Sapreme Court of Q«orgU. July 19, 1913.)
fBvttabut Ijr tU OourtJ
JUBTICKS or THB PBACK (| 135*)— BXBOOTXON
— T&A.VEBSE or RbTUBK— SUFFICIENCT.
The statute provides that, except in cases
where the defendant in a justice court fi. fa.
EoiDti oat levj land in his poaaea^wi, a coasta-
la ia vithoDt aothoritj to levy micb fi. fa. on
land, nnleu there U no personal proper^ to
be found sufficient to satisfy the debt. Where
a constable makes an entry on a justice court
fi. fa. of "Due search made and no personal
property found on which to levy this fi. fa.," It
18 DO traverse of his return to simply allege that
no search was made. In order to make an is-
snc it most be averred in the traverse that the
defendant did have personal inroperty on which
to levy the fi. fa.
[Ed. Note.— For Other cases, see Justices of
the Peace, Cent. Dlf. H 426^7, 749; Dec.
Dig. I
Error from Superior Oonrt; Gordon Coun-
ty; A. W. nte. Judge. ,
A traverse waua filed by A. E. Hobgood to
a constable's return on a fl. fa. issued after
Judgment, which traverse was sustained, and
R. H. Bunyan brings error. Reversed.
J. U. LanSi of CaUionn* for plaintiff In
error. O. N. Starr, of Calhoun, fi>r defend-
ant In srror.
BVANB, P. J. A JtUtloe court 11. fb. was
levied on land, and m tSalm was interposed:
Prior to the levy on the land the constable
Indorsed this entry on the fi. fa.: "Due
search madcg and no' persoral property found
on which to levy this fl. ft." The claimant
filed a traverse to this return, averring that
its falsity consisted fn tiie fact that at the
time of the entry the constable had not made
any search for personal property. The case
was heard by the court by consent of parties.
The claimant submitted testimony tending
to show that the constable made the entry
upon presentation of the fl. fa., to him, with-
out going to the defendant's house to search
for personal proper^. The court sustained
the traverse.
Civil Code, 8 4767, provides that "no con-
stable shall levy" a Justice court ft. fa. on
land, "unless there Is no personal property
to be found sufficient to satisfy the debt,
which fact must appear by an entry on the
execution to be levied by a constable of
the county where such execution was issued,
or where the property to be levied upon may
be found: Provided, that the defendant shall
have the right in all cases to point out any
portion of his property in his possession he
may think proper; and should he point out
land to be levied upon, the above entry of
'no personal property* may be omitted." The
object of the statute* is to require satisfaction
of Justice court executions by levy and sale
of personal property, unless the defeijdant
therein points out land In his poBsesston. it
is the \a€k at personal property oWned by the
defendant which authorizes the levy on land,
and not the failure of the constable to seordi
for It McKoy v. Ddwards, 65 Ga. 32&. Of
course, a conscientious officer would not
make the entry of "No personal property"
without some endeavoD to find personal prop-
erty, unless his knowledge of the defendant,
or bis environment and property, was such
that he knew that he had no personal proper-
ty. The preliminary requisite to the levy of
the fi. fa. on land Is the entry of "No per-
sonal property" on It That Is the officer's
return, and a traverse of It must put that
fact In Issue, viz., that the defendant had no
personal property on which to levy the exe-
cution at the time of the entry. The trav-
erse In the instant case did not challenge
the verity of the return that the defendant
bad no personal property on which to levy;
it simply denied that the ofilcer bad made a
search. The traverse was insufficient In
law, and the evidence was also insufficient to
show the falsity of the essential part of the
constable's return.
Judgment reversed. An the JusUcea eon-
cnr.
a«
TOnNG MEN'S CHRISTIAN ASS'N v. ES-
TILL et aL
(Supreme Court of Georgia. July 18, 1013.)
(BytlmUu H *h* XJourt.)
1. FBAuns, Statote of (I 84*)— Stook 8ub-
SCBIFTION— DOMATION- TO GEAUXABLS OOB*
P0RAT7ON.
An qral promise to a charitable corpora-
tion to give a specific sum of money for the
construction of a building, to be devoted to car-
rying out the design of such corporation, as
soon as the work begins, is not a subscription
to shares of stock of a commercial corporation,
and is not within the dsuse of the stattite of
frauds which requires contracts for the sale of
goods, wares, and merchandise to the amount
of $50 or more to be in writing.
TEd. Note.— For other cases, see FrauA,
Statute of; Gent Dig. || 104-161; Dec. Dig. |
84.«1
2. Frauds. Btatutb or {% 49*)— Agbbbubnts
TO BE PSBTORICED WlTHIN A TEAB — COIT-
■nNOENCT.
Where the time when the contract is to be
performed depends on some contingency, It is
within the statute of frauds, provided the con-
tingency cannot happen within the year ; but,
if it may happen, it is. not within the statate.
[Ed. Note. — For other cases, see Frauds,
Statute of. Cent Dig. S 74; Dec Dig. | 4».*J
8. Subscriptions (J 5*)— Contracts (J B6*)
— Donation — Enforcement — Consider-
ATioN— Mutual SunacBiFTions.
As a general rule, a promise to donate
money to a charitable purpose is gratuitous
and unenforceable, unless some consideration
therefor exists. But a consideration of a
promise to donate money to a charitable cor^
poratlon is. supplied where the corporation^
during the life of the promisor, and oefore a
withdraw^ of the promise,' and In reliance on
his promise, as well al that of others,' expend-
ed money and incurred enforceable liabilities -
in furtherance of the enterprise the donors in- .
tended to promote. The origin^ gratuitous
•hrettMeAsetfM* Sims topic anil sedtfaiiKBlfBi4Q-ia-Des.l»B.* -Am.'DIg: Ksy-M&^«Mlifi
1076;
(9a.
promise wiU thiu be cooTorted Into s TaUd.and-
enforceable contract
(a) avU Code. | 4246. e«Mtd«r«d In eon-
necbon with foregob^ roUiiff^ aa banjg linitfld
to eaaaa of matual wdttca anbacidipttoDs.
[Ed. Note.— For other cases, eee Sabscrip-
tione, Cent Dig. S| 6, 7; Dec Dig: { G;* Con-
tractB, Gent Dig. t| 844, 349~-3!3; Dec Dig.
I 66.
4. SUBBCBIFTIOITS (| 21*) — ACTIOir TO EN'
rOBOB— PZ.BADI»a.
The pnblioatioD in a newspaper, owned
and coDtroUed bj a corporation of which the
promisor was president and principal stock-
bolder, and with his knowledge, and without re-
padiation by him, of a Uat of sabscribers to
a charitable corporation, embracing his own, is
relevant as tending to show an admisHion of
the promisor to donate the particalar snm to
the charitable enterprise.
PM. Note.— For other cases, see Subscrip-
tiont. Cent Dig. H 26-2»; Dec Dig. { 31.*]
EbTor from Saperlor Court, Outtbam
County; W. G. Obarlton. Judge.
Action by the Young Men's Christian Asso-
ciation asalnst M. H. BstUl and others, ex-
ecutors. Judgment for defendants, and
plaintlir brings enor. Berersed.
The Yoong Men's Christian Association, a
corporation, brought Milt against the exec-
utors of J. H. Estill to recover an amount
alleged to be due Ofi a verbal oontract to
give $S00 for the constmctloQ of a building
to be devoted to the general purposes of the
plalntlfl corporation. It was alleged that
the directors of the plaintiff osrporatloa de-
tennlnod (o ereet In the city of Savannah a
large building for the benefit <tf the young
men of the city and country, and for the
advancement of the cause reprea^ted by
the plaintiff, which Is oitirely charitable and
benevolent; the i^lntlff having no- capital
stock and not being organized for corporate
benefit or gain, but solely for the advance-
ment of the purposes of the Young Men's
Christian Association. On April 21, 1905,
W. B. Stubbs and J. B. Beld, representing
the plaintlK, solicited from Mr. EstlU a sub-
scription for the construction of the building.
Mr. Estill agreed to subscribe and did sub-
scribe 9600, and the following memorandum
was made on a card at the time: "Will give
$500 as soon as work begins." This memo-
rand um was not algned by Mr. Estill, and the
subscription was verbal. Subscriptions were
made by others for the same purpose, prior
and subsequent to the promise of Mr. Estill,
all of which were mutual subacrlj^tlons for
the common ob]e^; and because of the sub-
scriptions made by Mr. EaUll and others
th» work was undertatet by the idalntut
The f contract was given out and tbe woit
cwnpleted at a wy large expoim; and it
the 8ubs(^ptl<«s had not been mads by Mr.
BetiU and otheort, the voA wotild not have
bflflu uidertalE«t by the i^alDjtlflL Subse-
qasBtty, on BlarA ISr 1906^ In an lasu of
that date, of tlie SaTaimah VorBlng Iffemit *
public gasette, tiben a»d now published In
the city of Savannah, and owned by « com-
pany of which Mr. BMUl waa t)ia president,
and the chief. If not the sole^ stockholder,
and the management of whitdi was contndled
by him, a local' item was mbUahed, calling
attenClDn to ttia merlta of' the tmpEovenMnt
contemplated, and giving a Ust itf the sat»-
scriptlona np to that date; there being a
large numher pnhUabed, indadingj Among
them the sabacrlptlon of Mr. Estill for |60a
Although Mr. Estill w«a cognizant of the
fact that hla uibseription bad bew taken b7
the plaintiff, and this fact had been pobUsh-
ed to the world by his newspaper, he nev»-
repndtated or disavowed the same. The con-
tract for the erection of the building waa
let on April* 24. 190T, and the vroA was be-
gun OQ June 3, 1907, and on the last-men-
tioned day the subscription became due and
payable. On Novouber S, 1007, Mr. Bstfll
died, and on November 12, 1907, his wlU was
duly probated and lettera testamentary la-
sued to hi» execulpni. The executors refuse
to pay the subscription of Mr. Estill to the
plaintiff and Jw^ment. Is pra^ied for the
sum of $500, the amount of the subscription,
wipi. Interest thereon from June 3, . 1907.
The court sustained a demurrer to the pfr
tltlon and dismissed It
Adams & Adams, of Savannah, for plain-
tUC In errpr,. Osborne & . Lawrepoet . oC Qur-
vannahi for defendants in. ecror.
EiVANS, P. J. (after suting ttie fleets as
above). [1] 1. A promise to donate uKoiey
to a charitable corporation In furtbesanea at
the design of its creation stands upon a dif-
ferent footlDg from a subscription to shares
In a commercial corporation. In their relation
to that clause of the statute of frauds which
reaulrM contracts for the sale of goods,
wares, and merchandise to the amount of
$50 or more to be io writing. In HIghtower
V. Ansley, 1^ Oa. 8. 64 8. £. 039. 7 Ann.
Gas. 927, It was -held that a coatract for the
sale of shares of stock In an Incorporated
company of the value of $50 or more fell
within this clause of the statute* Should this
holding be applied to a subscription fl»
shares, treating the corporation as selling
shares to the subscriber, there would, be no
analogy to a promise to d<mate mon^ to a
charitable Instltutton,- A promise to bny
shares In. a ooounerclal au^uratloa la quite
dlaslmUar from a promise to donate, money
to an eleeraosynasy institxUion. A promise
of the latter fclntt does not tsll wItUn this
idaosa of the ststnta.
LSJ SL The piomtsft •Jleged waa one to give
$600 to the charitably corporatton, upon the
begleniag of the contemplated work of oop-
struetUii; a. boUdtng, ia, fprtherajce- of tte
gen^r^l Goqtoiate d«rigp. t ^lila cpntfaynry
could oecttf wUhtn a nnd the mle is
settled In this, state Uiat, whepe the tUne
when a contract. Is, to be, perfoin^ dependa
•fw otbst CM— — • ■WW »Wlo end steUoo NUIIPB^ M| OfM. Sl^.a Am. Dig. ^<^ff |^ ^^^tS^A^I^'
107.7
of frauds nqoMng ovntracta not t» be jfM-
fbrmed within a year to b« lb wrttiii& U
tho contingency cannot liappen within a
year; bat» If U may Hmvwb wltliUt' a yaa«
It l8 not wftbia tte stafcater Bifruy vi Btl],
24 Ga. 609.
[3] S. The Yoong Mw'a Chrii^aan A^soda-
ttoa la a ohaiitable- ctHrporatJon, aoit ita dl-
rectora tSeteioalaed^ to arect la tin dtj of
Savanoalb a. Utigo boUdlng for, thq adjrange-
moit of the caww vqpnaaMwi. Ijy it, yn^leta
WM entftrelr dmuditaUfr and beaeTOlant Bw-
eirnl persona nibacrlbed i« vrltlHc proqilo-
ins to give named sama of money for t&»
aceompllabment of the e^tf^rprlw* Wbea Air.
BqtUl, waa aaUdted fo^ a, labBCristioii, he
promised to give fSOO for Oie work as soon
as tlie worfe of constrncdns the^ building ^e-
gan. The load newspaper owned and pub-
lished bf a company of which he was the
clM:tt not til* (wly. stXHMt^IdjV. and soan-
aged by him, published a Uqt. oC th«. subr
scribers, which Inobtded. bis name among
the rest, M subscribing tbe amount which
be had orally promised to glre. The build-
ing was completed st great expense, In re-
Ifaoce u^ flie sabaeirtttl'ou of prtMtnlses of
Mr. BstUl ai|d .ottaBW WoKfc iNgan upon the
boildlug mosa than dx msotta^ bafeze ttiei
death of Hr^ BstUl, and tes. baon ftiUr com-
pleted. Bfr. BMH never wlfhdveic or re-
pudiated Us pnmlae to p«y the unoont he
paomlsed. to dgnateb Hlii «xeontors. deny the
binding force of Ids promise to doaata |B00
to fihe enterpilapk me eratentlon b ttiat a
promise to donate a named sum to ft c3imj%-
tablet purpose ia purely fiatulitona aad nnen-
forceidtleb. for want oi a eonslderatloau If
Mr. filstin had tfgned a subscrlOtlon contract
with oQters to nwA this bnUdiog, Ota mutual
pmnlaea of the snbseilbefB wouM ban fun-
nldied a good consideration. Oar Code de*
darea 0iat *in mutual subscriptions for a
cmnmon object the promise of the- otbors la
a good consldMratlOK for the promise ol
each." OlTll Oode, 1 4246. This section has
been held applicable to subscriptions to build
Churches, and to locate asauahly gronnds of'
a rAlglons denomlnallon at a particular
point Wilson v. First Presbyterian Church.
66 Oa. 664; Owoisby t. Georgia Baptist As-
sembly, 187 Oa. 608, 74 S. B. 66, Ann. Cas.
1918B, Sas. The petition aUeges that other
subscriptions were made by other persons
before and after Mr. Btsttll's promise to give
$500, and that all of them, including Mi. Ka-
tin's verbal promise^ were mutual aubscrip-
tlona for the common object Motwlthqt^nd-
ing this allegation^ we do not think the csae
in hand comes within the Code section QUO^.
ed. That aection has api^caUon to mutual
anbscriptiona, which means wrttt^ promises
mutually altered Into by the subscribers;
The statute la not anfBolentlar brosNl to tn-
dod* oaal ptoiidaes^ And esoAol bei eaEteode*
sfr' a» to cow promlaa in 1^ caae at bar.
A ^Ofolaa to donate mon^ to ^ diaritftbl%
PWpqsB in gnttaltons anA.weioCMweabifti an-
iens smao c(msldaTStfp%Utetrefwr eo^sta. Sniib.
a. p^oiDtaa amoipnts to, noUUng, moiie. ths^ a,
Ttiuntarji offflf, which may be wlbh4u>^^
btf ore bdns sictod i^khi. But i^ on the fsltb
of the loomlsf, the promisee, befom wltti-
dxewol of the promise, expends money «9d
1b cure enforGeable UablUties In, fjartheranpe
of tiie enterprise the promisor Intended, to
promote, the conaiderajUon la suppUedt aud
the promlj^ 1* rendereii^ yqlid. and. binding.
Oweasby Qeorgla Baptist Assembly,, suera,;
Sehool District of Kansas City v. Sheldjey*
138 Mp^ 672, 4(> 8. W. 606, 37 L. R. A. 406,
60 Auu St. Rep. 676; McCaJw O'Gonpof,
ea Iowa, 134, 28 N. W. 673,; Amh^iat Acadr
emy v. Cowls, 6 Pick. 427, 17 Am. Dec. 387,;
RidbeUeu Biotel Oo. t» Interpotlanftl. MiUtftry
BncampmeDt Co., 140 lU. 248, 29 N. E. 1044, 3S
Am.StRep.234; 1 Page op Contracts, | Jnd;
1 ESIlott on Contracts, { 228. In 1 Parsons on
Contracts (8tfa 9».) *463, it U said: "On the
Important quesfeleD, bow faff T0liMtsai7 gab-
scrlpUona for cbarltabte purposes, . as fbr
Alass, ediicatliMi, vfllli^M. - or etkev piMlc
uses are UndiqA. th^ l8.w hw tai Ws country
passed through some., flncboatlon, and cajwot
now be recarded aa on aU pcrints aettlad.
Where advaooea have been made, or eapenses
or UftbllitleB Incurred by others- in conM-
quence o| s^cb. sabscrlptionst b^re any
notdco: odC withdnwal* tUs shoidd, oa gen-
eral pilndples, bei deemed seffldeBt to mako
them obligatory, ptoVUed t&e advances were
authoijaed by « fair and revonaUa depend*
am on Uie ' nbacrlptinia; and thlS' tula
seems to be w^ estaUished." The death of
the promiaor beforo any. UaUtfty has been
incurred cm the fojlth of ^ promlsft vould*
of coursf^ serve to withdraw or revoke
promise.
We do not tUuk tha^ because tte momlse
to give rests 1» parol, it Is unenfWcsaUo
after it haq been acted on. If the promise
is found in a, written subscrls>tlen 1^ the
iwomiflor and others, tbe mutual promlsos
fumlah ft eonslderatioD uadei oar Cod&
Bnt the pvomlsa to ghea to a «lMUrltab]e p«r-
pose need not be In writing to be aa ^bvce-
able contract, where tbe promtsfie has acted
on the faith of it So long as the nsomise
is gntultoust it is wltteut oondderatlan ;
bu^ whoi acted on, there la not only mutual-
ity of contract, bnt a consideration for the
contract If A. promise to bay a hoosQ for
his nephew, that la nothing; bnt If A. prom-
ise to buy a house fbr hts nephew, and re-
quest the nephew to enter into a contract of
parehaaa in itbe a^ew'a own aame. and tJie
nephew doea ao^ the law Implies a promise
on the part; of A. to relmtmrse tbe nephew
any part of the pmrchAse mon^ whjbA be
may ha called on to payv Skldmsn r* Baad-
ford. U R. 9 Bq. 184.
[4] It v«s tiUeg^ mt In a local newspa-
per, owned by a comp^ of which Mr.,
titv waa ti»e presldeot, and the chlel^ if not
^ aol^ stodLheld», ttere apneand, a&I^
. • ■ - Digitized byVjOtjg It
78 SOUTHOASTIBM BDPOBTBB
article auanc atfcatlon to the mertts of fbe
enteiprlee, UMag a Urt of the eobscrlptloiia
up t» Oat time, whldi Included a ntbscrip-
tlon «f Mr. lEstin for fBOO. It wU ftuther
alleged that, although Mr. Bstlll waa cogni-
xa&t that his subscription had been taken tor
f60&, and that it had been so published to
the world through his newspaper, he nevex
repudiated or disavowed the same. The
ground of the epedal demurrer was, not that
it was improper to plead evidential tacts;
but Uiat the eridoitiarr tacts pleaded were
inelennt ^ese allegattons were relevant,
as tending to show an admisslfni by Mr. Es-
till of h^ promise to donate fSOO to the
plaintiff for the purpose of constmctli^ fbe
building.
Judgment rerarsed. All the Justices con-
cur.
(140 Oft. SSB)
TANGSX et aL V. LAMAB-RANEIN DRUG
CO.
<Si^eme Court of OeorgU. Jnlj 19, 181&)
(B^Htthut ty the Oomt,)
1. TmAvmnxm Convktancbs (| 8*)— Bui^
Saubb— CoKSTmronoN or SrATtms.
Under the "sale in bulk" act (Civ. Code
1910, I 3226), the following transactioni are
decUxed to be fraadulent and void as against
creditor! of the vendor, when the provisions
of the act are not comiuied with: (1) Bvery
sale or transfer of a stock of goods, wares, or
merchandise in bulk; (2) or of substantiallT
the entire business theretofore conducted by
the vendor of suchastock; (S) or every sals or
transfer of inch a stock out of the nsnal or or-
dinary course of business or trade of the ven-
dor.
[Ed. Note.— For other cases, see Fraudulent
CoDveyances, Cent Dig. 8 ^: I)ec Dig. i 3.*]
2. TpBAvvuixttT GonvbtAhcks (I 6*i—Bm^
Suss— CoRSiniiCTiON OF Statute.
The act is In derogation of the common
law, and of the right to alienate property with-
out restriction, and is therefore to be strictly
construed. Cooney t. Sweat, 13S Ga. Cll, 66
S. B. 267; 25 L. K. A. (N. S.) 758.
FBd, Note.— For other cases, see Fraudulent
Conveyances, Cent Dig. K 4, 6; DecDig. 8 S.*]
3. Fbauduunx Gonvktahoib (I 47*)— Saij«
IN Bulk.
So construed, the provisions of the act
did not apply to a transaction whereby a co-
partnership composed of two persons engaged
in ft grocery budness sold a two-thirds inter-
est in their stock of goods to two other per-
sons, whereupon one of the original partners
retired from the firm, and the same basiness
was thereafter eondacted In the name of a new
firm, composed of the renudning ordinal part-
ner and the two purchasers. Such transacdoo
did not fail within either of the classes set
forth in the first headnote. While it may have
been out of tiie usual and ordibary course of
business or trade, it was not a sale or trans-
fer of a stock of goods, wares, or merchandise.
See Stovall Co. v. Shepherd Co., 10 Ga. App.
4S8, 73 a. B. 761, and Fairfield Shoe Co. v.
OUs/176 Ind. 626, 96 N. B. 69^ holding that
the provisions of the "sale in balk" law do
not apply to a sale by a partner of Iiia interest
in s stock of merchandise to his copartner.
[Ed. Note.— For other cases, see Fraudntent
Conveyances, Cent. Dig. f 84; Dec Dtg. f 47.*]
4. FbahduleKt GoNVXTAncBs (| 47^— Bulk
Saus— Appuoation of Statute.
In view of the rulings above stated, the
court erred In hol^g that the transaction set
out in the third headnote came vrithin the psr-
view of the "sale in bnlb" act, and in directing
a verdirat for the plaintiff in fi. fa. on the trial
of the issue formed by a traverse of the answer
of the garuishees, the purchasers of Uie two-
tUrda taiterest in the partnership.
[Ed. Nbt&r-Vor other casesL see Fnuidnl«it
ConveyancM^ Cent Dig. f 84; Dee. Dig. I 47.*]
Error ftom Supeiior Oourt, Gwinnett
Oounl7; O. H. Brand. Judge.
Action by the Lamar-Rankin Drug Cbm-
pany against A. T. Taucey and others. Judg-
ment for plaintiff, and the garnishee defend-
ants bring error. Reversed.
O. A. Nix and I. L. Oakes, both of Law-
rencevllle, for plaintlfls in error. N. U.
Hutctalns, of Lawrenoevill^ for defoidant in
error.
FISH, a J. Judgment revmed.
Justices coneor.
All the
ato 0«. MO
HOOD V. VENABLB.
(Supmne Court of Georgia. July 1918.>
(SyUabtu Ity the Court.)
1. DiVOBCE ({ 246*)— Separate Maintenahoe
— MODDIOATION or JuDaiCENT.
Where a suit for permanent aUm«iy waa
pending, and an application for temporary ali-
mony was included in the petition, and there
was also a prayer for custody by the wife of
the children, and at the bearing the prayer for
the custody of the children was abandoned, and
the judge held that, on account of his inability
to decide from the evident^ the grave question
as to misconduct upon the t>art of the wife, he
would leave the entire question of alimony to a
jury, and where afterwards the children were
permitted by the husband to return upon a
visit to the mother under an order of die court
directing that they be permitted to vi^t her for
a period of abont a week, and the children ac-
tually remained with the mother for about four
years, the husband making no demand for tiieir
return, and making no effort to recover custody
of them, and where it appears, further, that
the wife fell into a physical decline and be-
came utterly helpless and unable to provide for
herself or the children, who still remained with
her, it was competent for the judge, notwith-
standing that at first he had decided to refer
the entire question of alimony to a jury, to re-
open the question, and modify or change his
judgment, and allow alimony on a proper show-
ing therefor.
[Eld. Note.— For other cases, see Divorce,
Cent. Dig. S| 681-695; Dec Dig. | 245.«]
2. AlXOWAHOE or AUUOBT.
There was no abuse of discretion In allow-
ing alimony, or in the amount allowed.
Brror from Superior Court, Jackson Coun-
ty; C. H. Brand, Judg&
Action by Beulah T.. Hood against Ben
Hood, Subsequent to rendering Judgment
the court reopened' and modified . the same,
and defendant brings, error. Aj^im^
Geo. A. Jcluis, of Winder, and Jno. J.
StridOand, of Atlkens, for plaintiff In errar.
J. A. B. Mahafley, of Jefferson, and Shaded
•^or othOT ceAs BM SUM iople and SMUon NUIIBBB in Dm. Dig. '* AjDl'o%);^|f|i^%,^^<^@^^@em
Ski
OOLUMBIAN MAT, IJHB DQI. CKK ^ MTT.t.to
1079
ford ft 8aiacktiA>rdl, of Athena, for deteidant
In error.
ATKINSON, J. JndgnMot affirmed. AU
tbe Jnstlees ooncar.
<1« Ga. in)
SOLOMON T. SOLOUON.
<8iipreiiw Court vi Geoisia. Jnly IB. 1918.)
(ByXldbut ^v Court.)
1. DiTOBCS (B 326*)— FOEMON DlVOBCT-^COL-
XiATERAi. Attack— Constructive Sebvicb.
A judgment of divorce, based on construe-
tiTe service, is not within the provisions of the
•Constitution of the United States and statutes
passed thereunder, reqairioK that full faith and
credit shall be given in each state to the public
acts, records, and judicial proceedings of every
other state. Such judgment, based entirely on
constructive notice, without actual notice or
provision for the came to the noaresident de-
fendant, may be collaterally attacked for fraud.
Matthews t. Matthews, 1S» Ga. 123. 76 J3. B.
85S.
[Ed. Note.— For other cases, see Divorce,
Cwt. Dig, 8f 827-830, 840; Dec Dig. } 326.*]
2. AtncoiiT — CusTODT OF Child.
The judge did not abnse bis discretion in
.awarding alimony and counsel fees to tlie wifo,
nor was flie allowance excessive in amount.
Nor did the judge abase'his discretion in award-
ing the custody of the child to the mother pend-
ing the divorce proceeding.
Error from Superior Oonrt, Chatham Ooon-
ty; W. A. Cbartton, ladg& .
Actkm between P. O. Solomon and A. B.
Solomon. From tbe judgment, F. Bb Solo-
mon brings error. Affirmed.
W. B. Hewlett and Herscbel P. Oobb, both
of Savannab, for plaintiff In error. Horton
Bros. & Barress, of Atlanta, and Twiggs &
■Qazan, of Savannah, for defendant in error.
ETANS, P. J. Judgment affirmed. All the
JusUces ooncar.
Oa. 368)
ANDERSON v. HUMPHRIIS.
.(Snpreme Court of Georgia. July 19, 1013.)
(SyUaJnu by iU OoMrt.)
L SxcEFTiONS, BnJ. OF ft 58*>— Sdfuoibmct
— Sebvioe.
Under the mlings in Weatfield t. Mayor,
etc.. of Toocoe abr, 80 Ga. 736, 6 S. E. 471,
and Advance Lnmber Go. t. Moreland, 132 Ga.
WZ, S. B. 86, a mere statement entered on
a bill of exceptions, and feigned by counsel for
plaintiff in error, to the effect that he had serv-
ed a copy of the bill of exceptions by delivering
it to counsel for defendant in error, with no of-
ficial entry of service or affidavit thereof as pro-
vided by the statute, la not sufficient; and a
case brooght op by such bill of exceptions will
be dismissed on motion.
[Bid. Note.— For other cases, see Exceptions,
Bill of. Cent. Dig. || 100-106; Dec; Dig. f
58.*]
2. Afpsai. and Ebbok (I 439*) — Smrtm —
Waxvbb bt Afpkabanob.
The appearance In this court of counsel
who represented tlie party in whose favor the
judgment wsa rendered U the court below, and
the making by him of a motion to dismiss the
writ of error for want of service, among other
grounds, does not operate as a waiver of serv-
ice or an agreement for the case to proceed* un-
der Civ. Code 1910, S 6160, par. 3.
[Ed. Note.— For other cases, see Appeal and
^To:^ Cent. Dig. H 2184r'2190; Dec Dig. {
Brror from Superior Coart, Cobb County;
N. A. Morris, Judge.
Action between A. H. Anderson and W. A.
Humphries. Judgment for Humphries, and
Anderson brings error. Dismissed.
B. Ol liOrett, of Atlanta, for plaintiff In
error. Geo. F. Gober, of Atlanta, for defend:
ant in error.
LUMPKIN. J. Writ Of error, fllsmlsaoa
All the Justices concur.
(140 Oa. my
8TIDIND T. SILTBB et «L
(Supreme Court of Georgia.. Jul/ 21, UlS.)
(SvUatut »v Me OourtJ
BSVIEW ON APFEAZ.
The exceptions to the charge of tb» court
are without merit, and there is abundant eri-
dence to support tbe verdict Allen v. Pearce,
81 Qa. 606, 10 S. E. 1015 ; Jones v. Danoen-
berg Co., 112 Ga. 426. 37 & B 729, 62 L. B.
A. 271.
Brror from Superior Court, Warren Coun-
ty; B. F. Walker, Judge.
Action between Max Steine and Myer Sli-
ver and others. From tlie Judgment, Stei&e
brings error. Affirmed.
B. P. DbTls and Ij. 1>. McQregmr. botb of
Warrenton, for plaintiff In enw. B. T.
Shurley and M. I* Felts, botb of Warrenton,
Cor defoidant In «Tor.
BBOK. J. Jodgment affirmed. AH llie
Justices concnr.
a« OS- M)
COLUIBffBlAN NAT. LtFB INS. 00. T.
MILLER.
(Supreme Court of Georgia. Jnlj 19; 1918.)
(Syltabu* ly the Court.)
1. iNSUBAncB (5 668*)— Action on Accidcht
Policy— STrmoiBHOT of EJvidbnoie.
Where a policy of accident insuranoe pro-
vided that it "does hereby insure * • •
against bodily injuries sustained through acci-
dental means (excluding suicide, sane or insane,
or any attempt thereat, sane or Insane) and
resultiag directly therefrom, independently and
exclusively of all other causes." and where, on
the trial of a suit brought by tiie beneSciary in
the policy against the insurance oempaay|. to re-
cover the amount named In it for the accidental
death of the insured, the testimony for the
plaintiff tended to show that the sole cause of
the death of the insured was- by accidental as-
phyxiation, and .the testimony for the defendant
tended to show that the death was. due to apo-
plexy or fainting and unconsciousness preceding
asphyxiation, ft was not error for tbs court to
submit to the jury, under proper instructions.
•For Btbsv easse sse sane tapis and ssoUm HyHBBB ta Des. Dig. 4 Am. Dig. SUg-
1080
tiie qneatioD of wketber the tntared came to Us
death by acddental asphTxiatton, ladependentlr
and exclosiTelr of all other causes, or whether
it was cansed by apoplexy or faiDting and on*
consciousness preceding asphyxiation.
(a) The verdict was supported by the evi-
dence.
{Bd. N6te.-*rFor otiier cases, ^aee Insurance,
Cent Die. If 10S6, 1782-1770; Deo. IH<. f
668.»]
2. iNSUBAITOa (i 668*) — AOOHmiT POLUFT —
CoNsisiiciiaii Noncv — QnEsrxon yoB
JUBT.
An ftcddent poller of innranoe pnrvMed
tliat 'Vritten natioe of an «eeideDt, on account
of which a claim may be made, must be given
to the company at its home office in Boston as
■oral u may be reasonably poaBlble, togetter
with fnll partlealara Uiereof and the, full name
and addreaa of the intnred," and the policy pro-
vided also that a like notice was to be given in
case of '♦bodily 'Injnry or deAth." The policy
did not contain ft clause providing for its Cor-
feitnre In case of failure to give the notice as
required. The Insured was found dead in hi^
•batltfoom, which was tightly closed, lying near
the ttathcub, partly undressed, under circum-
stances from -which .the Jury might have infer-'
that he. died from acdoeatal asphyxiation.
Tne'bene'ficlary dtd not give notice of the death
of the insuBM ,to the company until 18 days
after his death, for the reason, assigned by her,
that she had been sick in bed several days pre-
vlOds to the death of the inenred, and was in a
nervons condition for several weeks afterwards,
^eld, that it was not error for the court to snb-
mit to the jnry the Auestion whether the plain-
tiff ' had given ' the required notice - as soon as
reasonably possible under all the facts and cir-
cumstanceshe having also t^iarged them that
if the notice was not so given the plaintiff could
not recover.
a) Nor -wM It- errors the oouxt'to' vefiM to
(a)
hold, as matter of law,, that the ix^tey! was .void
because notice was not given, unm IS days after
the death of the insnreo.
(b) 'The TOKUct'for the plaintiff was aot -con-
tratr to law because the noUce was not given
until 18 days after the death of the insared, or
' for any other reason assigned.
[Ed. Note.— For other cases, see Imurance,
Gent Dig. If 1656, 1732-1770; Dec Dig. g
668.*)
Fish, O. J., dissenting.
Error from Superior Court, Fnlton Coun-
ty; Geo. L. Bell, Judge.
Aotton by Josie B. MUIer .agaloat the Co-
lumbian Nationa-I Life Insurance Company.
Jtidgmant tta plaintiff, and defendant brings
error. Affirmed.
Watklns ft Latimer, of Atlanta, for plaln-
tUf in error. Smith ft Hastings, of Atlanta,
for dtf endant In ertor.
HILL, J. Mrs. Josle B. Miner, the widow
of Oarlton H. Miller, as the beneficiary un-
der a certain policy of accident insurance
Issued by (he Columbian National Life Insur-
ance Company to Carlton H. Miller on or
about tlie 20tb day of January, 1910, brought
suit agalnftt the company to recover the
amount named in the policy. The result, of
t9ie trial waa a iwrdtet and Judgment in fa-
vor iji the plaintiff for the full am<}unt named'
In the woiicy. The trial court having overrul-
ed'a oiotlon for K'.new. tdai; the defendailt
BxespAed. mb% poUcy ned on provided: *rrbe
Colombian National Life Insurance Company
of Boston, Mass., does hereby insure Carlton
IH. Miller agaipaC Jwdily bl]^rleB sustained
thpough accidental means .(excluding snicide,
sane or Insane, or any attempt thereat, sane
or Insane) and rraulting directly therefrom,
independently and exclusively of all otber
causes." It .alko provided: "Wrttten notice
oC an ^oddemt, on aooount.of which a claim
may be made, must be glvoi to the company
at its home office In Boston as soon as may
be reasonably possible, together with fall
particulars thereof and the fall nanje and ad-
dress of the insured. I4ke notice of bodily
injury or d^tti, on acconnt of wbldi a dalm
Is to he made, must be given to the eonqtany
as som as may be leaaonably possible after
the oeoDrrsnee of tiw acddant caiulnc aocb
bodily Injury or death.**
There are two controlling lasaeB In this
oase. (1) Waa the death «f the insnrad caus-
ed thioivb accidental means (excluding sni-
cidSb ete), and did It result dtreetly tbere-
ftom, independently and ezdnsivtiy of all
attux causes? (2) Was the policy void be-
cause ttie writtw notice required to be glvCT
to fbe company as soon as "reasonably possi-
ble after the occnrrence of the accident cans-
Ing such Iwdlly injury pr death," w>s not
given untjll 18 days after the death of ttie in-
sured?
[1] 1. On the trial tile issue first above
stated was submitted to tiie jury, and theb*
finding was In favor of' the plaintiff. There
seems to be no dispute that at the time of the
deat^ of' the insured the policy was of full
force and effect, nor as to the amount of the
llaUlIty of the defendant company, if liable
at all. The plaintiff's efvMence .tended to
show that the insured died about 1 o'clo<ft p.
■m. on April 6, 1911. He > was found dead in
bis bathroom at about his usual lunch hour
on the date named, undressed except as to
his underwear, and the bathroom was filled
with gas. It was the practice of the insured
to take a bath In the middle of the day after
he came In from town. The plaintiff went
to the bathroom and found it closed, and gas
was escaping. She and a servant opened the
door, and found the deceased lying on the
floor of the bathroom, right by the batbtub,
and the room was filled with gas. The de-
ceased was lying as if be mi^t have fallen
against the bathtub. The room had one win-
dow, which was closed when the plaintiff and
the servant, first entered. Gas was escaping
from an lintantaneons gas tieater located In
the bathroom and used for heating water.
The heater has a "litUe pilot", that li^ts It.
and whlchi lias to l>e turned on. . "Tou light
the pllot^'and you'turn the wat» and the gas
on, and the pilot lights the gas itself. The
gas sBd water are turned on- at the same
time, ^d.tt^en the pilot lights tlie gas and
heats the water.as .lt comes thrQugh." When
^*rat otktr ousB iune topie sad eectloa NUVBBB'ta Dw. Dls> a Am. D
the deeeaaccl ww found,, tbe' water was toay
«d on, and tbft gas was eacaplngi Ptfftly
burned matches wtt« npon the bathroom floor
near Uie heater. The deceased was drltddng
the night preriona to his death, though he
was not an habitual drinker. From this evi-
denee for the plaintiff, we think, the Jury was
authorized to find that the death of the In-
sured was cansed by accidental asphyxiation,
Independently and exclusively of other caus-
ey althongb the testimony o£ the. defendant
tended to show that death had resulted from
apoplexy. The indstence of tiie defendant
Is that, even If the death of the tnsared was
doe to aq}Iiyxlatlon, it was preceded by faint-
ing and unconsciousness, and that those caus-
es contributed to the accident, and, this being
■o, his death did not come within the provl*
sions of the polity which would render the
company liable in case of accidental death—
that the death thus occasioned did not re-
sult directly from accidental means, "inde-
pendently and exclusively of all other caus-
es." In the case, of Freeman v. Mercantile
Mutual Accident Association, 166 Mass. 3&X,
80 N. a 1013^ 17 Lk R. A. 7fi3, it wa» held:
"An accidental fall causing peritonitis which
naulla in death wUI ra^er the insurer liable
under an accident insurance ppUcy limiting
the Insurer's liability to cases wbera an In-
jury Is the pioxlmata cause of de^th, even
althoni^ by reasoa of a, former attack of
the diaesae the deceased was liable to a re-
coTseaea of It" In a somewhat similar case
It was. held that an- bijary which resulted in
henla was the proximate oauae of death
ftam pacttoaltis, whidi resulted from a snrgl-
cid opontloa skillfully pecfonned for the
hernia ^ the only possible meess of saving
tbe Ufe of tile Injured. Travelers' In& Co. v.
Hurray. 16 CoJa. 206, 26 FaC. 774, 2B. Am.
St. Bw> 267. So,. In a case where a death
ftdlowlng an external, vislblfli and bodUy in-
jury caased by an accident was bjeiia. b> be
tbe remit of Wh accident within tbj& mean-
ing- of an Insurance- ptdlcy., Naik Ben. Asa'n
T. Omuman, 107Ind«288.TN.]B.233. In
die. case of Naitlcmal Ben. Asa'n r. Bowman,
UO Ind. 365, 11 M. B. 318, 1£ WBSi held, that
IntoslQaden, although a crime, is not neoesr
sarily the peoximatei cause ef tbe deatb <tf
one who was thiUTm fcom a wagon while In-
toxicated. In the <ABe of Manufactucen^ Ao*
ddmb Indemnity Oa v. Dorgan, 6& Fed. MS,
7 G. C. A. 681, aa U B. A. 020^ tbe insured
was "seen on an island In the brook playing a
trout" Twenty minutes later he was dls-
oorored lying In the brook with Ms face
downwasd, and submerged in sfix inches of
WMta, dead. The bank wa» atwat 16 iBchea
above tbe water, and there were in the water
•tones, egg-sized ^nd sm'allei', upon which he.
ml^t have struck bis head. There were twd
bruises on his forehead. The policy in tbat
case provided that It did not «Etend to any
case exc^t where tbe acddcntAl injury Aav
be the sole cause of dlsabllitf or daatli.
.Judge Ta^,Jn.deUrer4ns.tte qqinlpn. ofitbe
Circuit Court, o£, Appeals, said; "We- are of
tbe opinion that In the legal sense, and wlthr
in the meaning of the last clause, i£ the de-
ceased suffered death by drowi^g no matter
what was the cause of, bis falling; Into the
water, whether dlaeaaa or a sUpplng, the
drovnilng in 8u<;h case, would be tbe proxi-
mate and sole cause of the disability or
death, unless.lt appeared that death would,
have been the- result, evrai had there beep no
water at band to fall Into. Tbe disease,
would be but the condition.; the drownli^,
would be the moving; sole, and pnoximate
cause."
And so tbe Juiiy were authorized to find
from, the evidence In this case that the in-
dued, was asphyxiated by escaping gas, and
that this caused his deatl^ Indwendently and.
exclusively: of bis fainting- or unoonscions
condition.
[2] 2. The next question for conaLderatlon
Is. whether the plaintiff. a» the beaefidary
named in the accident policy sued on, for-
feited ber right to sue and collect the.amount
named In, the policy by reason of her fail-
ure to give full notice of the accident to the
defendant company at Its home office In
Boston as soon as was "ceastpaably possibly"
as provided by the policy. . Th^ testimony
for the plaintiff tended to show that she
gave tbe notice 18 days aftac the. death of
her husband, and that before bis death i^e
was sick In bed. and that after his death sbe
was In a nervous condition for several
weeks. There was also evldanee tending to
show that after the notice was given to the
cfHnpaoy, the plalntlfTa attorneys received a
letter from It insisting that no liability at-,
tacbed to the company because, as it Insisted,'
the death of tbe Insured was due to causes
not covered by tbe policy, but stating that
the company had Instructed Its district agent
to submit proof of loss by tbe plaintiff If
she BO desired. The letter set up no. con-
tention of forf^ture for failure te give no-
tice within a reasonable time, but denied aU
llabUI^ solely on tbe ground of the cause
of tbe death. Nor did the policy itself, oour
tain any clause providing for Its furftiture in
case of failure to give notice as required.
The court submitted to the Jury tbe ques-
tion whether the plaintiff had given the no-
tice required as soon as reasonably possjblet
under all the facts and dronmatances, and
charged tbem that If tbe notice was not ao
given, the plalntUf could not recover. Qn
this point the court dmrged- the Jniy: "Now,
: whether or not tbe plaintiff has csmpUed.
with that provision, of the. contraot and, if
not whether or not a, seasonable, excuse has
bera given for a failure to comply with the
i terms thereol^ la submitted to you along, with
the case, and you will tak« all the> evidence.
and, circumstances of the casa a^ say by
your verdict whether tha plaintiff Is entitled
to BecQver of. not" Tlds charge is objected
to on tb« ^nad that it sobmittaA^thftJik ■
Digitized by VjOOglC
1082
ry the qnesHon irtietlwr or not a naswable
excase had been girai for tt taUnre to comply
with tlie contract relating to notice, and
farther that tiiere was no evidence showing
any reawm whatsrer for a ftdlnre to do sf^
and no evidence to ropport the charge.
This gronnd of tlie motion !■ without merit
There was evidence tending to show that pri-
or to and Immediately aftu the deaOi of the
inanred the plalntUf was sick and in a nerr-
oos state of lieallh, and we tliink the court
properly decided that It conld not say, as a
matter of law, tliat the proper notice had not
been glrei^ bnt would sobmlt to the Jury the
Question as to whether the notice had been
given as soon as reasonably poisible^ under
all the circomstanoes of the case^ and. If the
notice was not so given, tike plaintiff could
not recover. The Jury found for the plaln-
tUf on all questions of fiiet submitted to
them, and we cannot say that their mdlct
Is without evidence to sujiSMrt It
In tba ease of Southern lire Ins. On. r.
Enlgh^ m Ga. 622, 86 S. EL 821. 62 L. R. A.
70, 78 Am. St Bep. 216, a lire insurance pol-
icy contained requlremoits and conditions,-
file violation of vrbliA by the insured would
work a tortAtare of the policy, and the pol-
icy contained a stipulation requiring the In-
sured to furnish proofs of loss within 60 days
after the fire, but did not make fite failure
to slve such notice a gronnd of forfdture,
and under the terms of the poU^ the Insniw
was not liable to make payment until after
60 days from tlte receipt of audi proolh of
loss; the policy farther providing that no
suit thereon should be brought unless com-
menced within 12 months after the fire. It
was held tliat, "if the insured furnished the
required proofs of loss in time for at least
60 days to ebpse betweoi 13ie date upon
whlcb they were furnished and the expira-
tion of 12ie 12 montlis limitation, the policy
was not forfeited by a fiiilnre to furnish such
proota within 60 days after the Are oc-
curred." In delivering the opinion of the
court Oobb, J., s^: **It baa been often held,
and may now be contfdered as settled law,
tbat If there is an express sttpnlatlon in a
policy of fire Insnranoe that the fnrnlaihing
at proofs of loss within a specified time shall
be a condition precedent to a recovery, or
that a fsllnre to submit the prooAi within
the time limited In the poUcy shall forfeit
the same, sucA ftdlure on flie part of the In-
sured vrill be tBtal to his rt^t to recovra-.
See 13 Am. A Etag. Bnc; of Iaw (2d Bd.) 328,
notes 7 and 8. There Is not In the policy in-
volved In the present Investigation either a
stipulation tliat the famlBhli^ of proofa of
loss within 60 days diaD be a condition pre-
cedent to a recovery, or that the failure so
to do shall tqwrate as a forfeiture of the
policy. AVhUe flte-dedalons of the American
courts are not entlzely uniform on this ques-
tion, Che curroit of authort^ seems to be
that^ in the absence of a stipulation providing
tbat the furnishing of proofi wlUiln a des-
ipuifed time shall be a condition precedent
to recovery, or that flie foilure to submit tbe
proofk wiQiln such Ume shall work a for-
feiture of tbe policy, the failure so to do
will operate idmply to postpone the right of tlie
Insured to bring a suit until aftor lie haa ftir-
nlshed the proofs of loss required by the pol'
icy. This results from the familiar rule tbat
forfeitures are not favored, and that a con-
tract will not be construed to work a for-
feiture unless it Is manifest tbat It waa the
int^tlon of tbe parties that It should have
tbat eifect** Bee 4 Joyce on Ins. i 8282.
The fact that the policy in the Instant case
provides that It is made subject to the con-
dltl<His and stipulations which are a part
thereof does not Astlngulsb It from tbe
Knight Oase, supra, where the policy (as
shown by the orlglnid reeort^ contained the
provisions tliat: "Tliis policy is made and ac-
cepted subject to the foregoing stipulations
and conditions, together with such iMier
provisions, agreements, or conditions, as may-
be indorsed hereon or added hereto." In tbe
case of Harp Fireman's Fund Ina Co^ 130
6a. 726, 726, 61 S. Bl 704, 14 Ann. Oas. 290.
this court reaffirmed the dedskm in the
Benight Case on this point, after reviewing
It and declined to overrule It On tbe ques-
tion of what is a reasonable time wltliin
which to give notice, aee tte fOIlowng cases:
Fidelity, etc., Oo. v. Oourtaey. 186 U. 8.
22 Sup. Ot 838, 46 L. Ed. 1198; WaM v.
Maryland Oasnalty Co., 71 N. H. 262, m Atl.
000, 83 Am. St Bep. 514; Remli^ton v. Fldti-
Ity, etc., Oo., 27 Wash. 429, 67 Pac 002;
American, etc.. Go. v. Norment, 91 Tenn. 1, 18
S. W. 885 ; €termanta Fire Ins. Co. v. De<A-
ard, 8 Ind. App. 361, 28 N. EL 868; Oarey v.
Farmers*, etc., Ins. Co., 27 Or. 146, 40 Pac.
91; Mtna. life Ins. Co. v. Flt^rald, 165
Ind. 817, 76 N. IB. 262, 1 L. R. A. (N. S.) 426.
112 Am. St Rep. 232, 6 Ann. Oa. 661. In
Donahue v. Windsor, etc;. Fire Insurance
Co., 66 Vt 874, where the policy provided
tbat the notice should be given "forthwith,"
and the notice was not given for 22 days, it
was held that It was a question of fact for tbe
jury to say whether the notice was In com-
pliance with the terms of the policy.
8. The other grounds of tbe motion for a
new trial are without anbstantial merit
Judgment afflrmed. All the Justices con-
ear, «xsq^ TISEI, O. J., dlsssnting,
a4o ga. 4m
LANB et aL v. NBWTON et sL
(Supreme Court of Geoigia. July 21, 1018.)
(SvUahtM hf the Courts
1. VBAjjvmMm ConvsTAHon (t 265*>— Ao-
TXON ro CANCElr-PABXaa— HuSBAVn AHD
WlTE.
Where creditors seek equitable petition
to cancel a deed made bj a nnsband to his wife,
it is necessary to make tbe grantor a party de-
•Vor ethir sasM sm sasM topu aad MSttea NOHBBB la Dm. Die. 4 An. I>lS(j^f ItPt^^ldy^^^^ (^"^
fendant If be be dead, bla l^al representatlTe
miut be made a party, or a anfBdent reason
muBt be alleged and ptored to excose such fail-
ure.
(a) In tbe present case certain persona, alleg-
ing tbenuelvea to be creditors and bolders of a
security deed from a hoaband, atta^ed a eon-
Teyance made if tbe busbaiid to bis wUb.
They alleged that there was no administration
on the estate of the hnsband, and that do ap-
plication for administration was pending. The
plaltttilEB made parties defendant to the action
the wife and two of the children of tiie dece-
dent, who were alleged to be adults, averring
that he left "scTenu children, among whom"
were those named. A demurrer was interposed,
on the ground that the admlniatrator of the de-
cedent sbonld be made a party, and the answer
denied that there was no admlnistratioii, and
named the administrator who had been ap-
pointed.
The record does not sbow tiiat he was «tw
made a party, nor was any proof adduced to
show that in fact there was no adminifitration.
Held, that a decree of cancellation could not be
rendered under such circumstances, for want of
proper iwrtiea defendant
[Bd. Notbr— For other cases, see Fraudulent
ConTerancea, Gent Dig. y 741-700 ; Dec. IMg.
2. fuuditlbnt convbtancks ^1 t4, 274*)—
Gift bt Insolvent Debtor— Validity—
Cthcttmstaktial Bvidenck.
Under tbe raling in First Natitmal Bank
of Gartersville v. Bayless^ 96 Ga. 684, 23 S. E.
861, a gift by a debtor, ineolvent at the time,
is void as to bis then existing creditors, whether
made for the purpose of defrauding them or
not; bat such a gift is not void as against a
subsequent creditor, unless at tbe time of mak-
ing it there was an intention on the part of the
debtor to defraud such creditor.
(a) It is not held that an Intention to defraud
Bubsequent creditors as a class might not be
auAcient relatively to one of tbem, although tbe
intention to defraud was not directed against
him specially.
(b) Under the mling in the above-cited case,
altbougb money may have been obtained from
a subsequent creditor for the purpose of paying
off debto existing when the ^ift was made, this
al<me would not make the ^t void as to such
creditor, If the conduct of the debtor tbroughout
the entire transaction was honest, and be bad
no intention to defraud.
(c) An intent to defraud may be inferred from
circumstances.
[Bd. Note.— For otlier eases, see Fraudulent
OonToranees, Cent Dig. ^ 186-190, 806; Dec.
Dig. U 74, ^r4.*]
8. FBAtTDiTLiNT GoirTETAiian (| 20^) —
FbAOD of SUBSEQrSRT (^■Dirou — Hus-
BARD AHO Wife.
If an Insolvent husband makes a voluntary
eonveyance of bis property to bla wife, with an
inteocon to borrow monej and pay off his ex-
isting indebtedness, knowing that he is in em-
barrassed or failing circumstances, and proba-
bly will not be able to repa/ tbe money thus
borrowed, and intending by this scheme to save
the property for bin wife, such a conveyance is
^auaulent, and the creditors lending the money
widi which tbe former indebtedness is discharg-
ed can attack it on tbat ground, aa prior cred-
itors coold have dona^
[Ed. Noter-For othar oum. h* Tiaadnlent
Conveyancea* Cent Dig. H 681, 688; Dea Dig.
i 208.*]
4. Frauduuent Gohtbtances <SS 163, 210*)—
Fbattd of SuBSEQmm Cbeditobs •- Hub-
band AND WlTE—RKCOaD.
If a debtor transfers bis vn^vtr to his
wife, whether voluntarily or for value, and
KEWTOH . - 1080
thereafter procurea another to lend Um money
with iriiicb to pay off tbe existing indebtedness,
representing the property to be his, and thua
fraudulently obtains money on the faith of ttie
security furnished by the property, and gives a
securibr deed to the lendor, who fends the mon-
vy wittnut knowle^^ or notice of tbe convey-
ance to tbe wife, and it the wtfe actively par-
ticipates in such fraud, or knowingly permits
her husband to hold blmself out as tbe owner
of the property to obtain such credit, the deed
to ber will yield to tbat of tbe creditor ; and, if
it affects the security of tbe creditor, it can be
canceled aa fraudulent
(a) The fact that a deed is recorded, even
though it may be a deed for value, does not nec-
essarily prevent one from whom the grantor
procures money, by representing the property to
be bis, from having an egaitable remedy against
tbe grantor and grantee, if the tatter actively
participates in the fraud, or knowingly permits
the grantor to bold himself out as the ownar
of tbe property, and tbua procure credit on tbe
faith of it
[Ed. Note.— For other eases, see Fraudulent
Conveyances, Cent. Dig. SB 610, 617, 634; Dee.
Dig. H 163. 210.*]
5. SBCOBDkD INSIBUHENTB — VOLUIfTABT
Deed.
The rule as to the effect of recording a vol-
nntary deed upon the rights of a subsequent
purchaser for value and wltbout notice, or Vt
one occupying the legal status of a Dpreliaser
for value, ia sufficiently atated in Martia T.
White, lib Ga. 866, 42 8. B. 279.
Error from Snperior Court, Jenkins Coun-
ty; B. T. R&wUngs, Judge.
Action by J. D. Newtfw and another against
Elmlra Lace and others. Judgment fbr plaln-
UflTs, and defendants bring error. Reversed.
J. B. Newton and A. H. O. Newton brought
their petition against Elmlra Lane and ber
sons. Renter, John, and Thomas, alleging la
substance as follows: In 1008 T. J. Uute
was Indebted to tbe Daniel Sons & Palmer
Company In a sum represented by uotm ag-
gregating ^86.77, and on anotlter note for
the amount of $04.80 principal, besides Inter*
est and attorney's fee& Tbe creditor also
bad a mortgt^e on certaia live stock and
other personal property, modi of which re-
mains in the hands of the defendants. The
creditor brought suit on the notes first men-
tioned, to the December term of the clt7
court of MlUen, and also foreclosed the mort-
gage on personal^. Lane was unable to pay
the debt, and in great distress applied to the
plaintiffs to lend him the money with whlcb
to do so. He offered to give notes for the
loan, and to secure them by a deed to a cer-
tain parcel of land containing 801 acres, of
which be was then In possession, and which
he had held for 26 years. He represented
that this was his own and was entirety with*
out incumbrance of any kind. On Janoary
6, 1909, the plaintiffs loaned him $644 for the
purpose of paying the indebtedness. They
took his note therefor, and he executed to
them, a deed to secure Boch note, containing
therein a power of sale, U the note should
not be paid at maturity. lane died in No-
vember, 1909, without having paid any part
of the note, "learipg defendant, Elmlra I^nc^
•For otbw eases mm same teple and sestlen HUMBBR la Oee. Dig. £ Am. Dlr-'Kor-No. SertM ft Rap'r,
Digitized by Mj'
78 SOtitfiBABTHBir ft^BTHlB
3ls wl^w, and •erei&I dmttren, ftmong wbom
are Ute defendant^ BMOor, John, and Thom- '
aa, of adult age. * * * No admlnlstzft-
tion has bees graiited Jxpoti tbe estote pf sidd
T. J. Ifsne, and no aE^catton la poiding,
tfaerefttr. Slnoa bla daatii bla widow lua ie> '
fused to make any pajrmeit, and baa deolat>-
ed tbat she owns the land. I^Km examina-
tion of the tecords of Ote ai^erlor coort, the
plaintiffs haTQ foond the record of a deed
from Lane to his wife, dated September 12, ,
1906, and recorded September 21, 1908, con-'
Tejiinc 13ie same tract of hind u tbat above
-mentioned. 'While the deed recffes a oomdd-,
oration of $1,800, the pUilnttfla charge that it
was a TiduntaiT deed; tiiat no craialdeEatlen .
waa paid; that it was fmodul^t, and In-
tended to binder and delay the coUeetlm of
the debt of the DanMl Bona ft Palmer Com-
pany, and waa ao fcnom to be by Mrs. Lane;
thai b^ng a Tolpntaqr deed, Its record did
not oonstftnte notice to tba plalntMT; tbat It
waa void as to Daniel Sons & Palmer Oompa< <
ny, becaose It waa wiOioat consideratiaa, :
and waa iateoded to hbider, dday,.«Jid de-;
ftaod tliat company; "and pettHonen bar-
ing fnnilahed the money for the exp^s par-
pose of paying said debt, and being upon no,
notice of the existence of said deed, and the
said T. J. Lane contlnalng In the aAoal pos-
sescdion and management of the same, peti-
tioners are in equity sabn)gated to all the
rights of ttie said Daniel Sons ft Palmer
Cfuivsny to snbject said land and ea&cel
said deed as well as the property embraced
iB the mortgage; and they here^ set np
TOCh right of sabn>gatl(«, and ask svdi de-
cree as will enforce tb^ said rtght" As
further reason for the cancellation of the
deed as a ^and upon the i^htS ef the plaln-
tlfla, tli^ alleged that In the latter part ef
December, '1908, or the first part of January,
1909, Jnst before the making of the security
deed to (hem, Mrs. I^ne esecnted and deHT-
ered to her husband, without consMeratton
and as a gift to htm, a fee-simple deed to the
land. Plaintiffs oharge that Latie had been
adTlsed that the prerlons deed would not
protect the land against the debt of Dtmiei
Sons ft Palmer Company, and tirey believed
that Lane was at^ttng ia good faith to them
when 'he assured them that the title was in
him and that there was no incumbrance up-
on the land. But the deed so made to falm
has been frandnlently kept off the record,
and la now In the possession <st UIs family, or
has been fraudulently concealed or destroy-
ed. Hie value of the land consists largely of
the niarketable timber on It, and but for
such timber the plalntlfla wonld not have
loaned the money or have regarded the secu- ;
rltr as anffldenl. The d^endhnts hat« com-
menced to cut tlie timber and to saw It into
ttunber, preparatory to removing and selling \
it If this is done, the ralne of their secnri-
will be largely destroyed; and the plaln-
fnk ifrSa. ba zemedllaa^.M fiw Oefandanta,
are insolvent kn^ unable totf^ftHftta la dam-
ages. dOifiy bavA akeady committed damac-
es to the extent of f 160. Plalntlfls pray lor
an tnjnnctioa 'to restrain the further feOtns.
^wlng, or removing of the timber; that the
deed firam Lane to bis wife be canceled: and
tbat [Aalntlfla liaTe :]ndgnfent fbr the Oaans-
es cUready done. The notes attatdied bb «e-
hlhlts were dated January 6, IMO, and be-
came dae Oofcaber 1 and October 36, 190a
The defendants demurred to the pettttoa
en the grounds, among others, that no xeaaon
was set forth In the petition why tbe plaln-
ttffs shoiOd be Mbrogated to the rights of
Daniel Son« ft Pahner Oonqiany, and that
there was a nonjoinder of parties, basame
the administaitor of the tatKte of Lane, de-
ceased, was ndt made a party dettandnnt.
The demurrer was overruled, and aaowaoaa
Veadenta Ute wvoe filed, and turot 'waa as-
signed thereon In the bill of exc^tfons later
shed -odt Tbe ^defiBnda&tB did not adntft or
deny the aHegatlbns aa to the transactions
between Lane and the plaintiffs, but denied
ttxat the dead from Lane to hla vrttb was
fraodnlent or irftboat oonatderatlon. Tliey
allege tbat Mrs. Lane algHed a deed fbr de-
livery to taar liustattd for a wnaideratlon ot
91.800, bat he did not pay the pur^iase mon-
ey, and dw declined to deUver tbe deed.
They denied tfiat sndi deed was a deed of
gift, or was ever ddlvered. They denied
that the estate of Lane was unr^wesented,
and alleged that Remo- T. Lane, Jr., was the
duly appointed and qualified adndnlBtratw of
the estate of T. J. iLane.
A verdict was rendered In favor of the
plalntlffB. The defendants moved for a new
trial, which waa overruled, and they ex-
oepted.
R. P. Jones, of Milieu, for plaintiffs in w-
ror. W. Woodnim, of MiUea, and S. L.
Brlnson, of Waynesboro, for ^SetendantB la
error.
LUMPKIN, J. (aftw staitbig the facta aa
above). [1 1 1. Where creditors seek by equi-
table petition to caucd a deed made by a bus-
■band to his wife, it is necessary to make
the grantor a party defendant Palmer v.
Inman, ISH Gtu 226, GO S. £. 86; PauUc v.
Bnst^-Oscamp Oo., 123 Ga. 487-468, 61 8. K.
344. If he is dead, hU legal representatire
must be made a party« or a sufficient reason
shown to excuse the fttUnre to do oo. In
thts case the plalntifDi brought their petltloD
against the wtte of the decedent and tlifee of
bla aona, who ircre alleged to ba adults; bat
It does not appear tiiat these were aU at
the ASlOren. On the conttary, It waa allied
that Lane died leav^ aVldow and "sevml
children, among whom were" the three who
were made defraidanta. It waa i^leged tiut
the defendanta waa inaolTflat and emable to
a&sffer In ^daauiees; but it waa not alleged
tliat tiie estate of Lane was Insolvent, or that
there would ha no ad mJntolratton _m4 no
Digitized by VjOOC
seed for Cn litt 9aahr» «f'&e de^fl-;
ants tbey dented thht <ateve iraa no ttdmUOB-
tfaUon, and stated irtto 'Was ttie Mtolni^tra-
tor. It nowhere appeanin tbe record that It
was Bbown that tibere was no admlnlsttatlfni,
or 'ttiat tbe adnofiilBtnitdr was made a party :
nor was any excuse ttdvaneed for the 'failure
to do 80. No dlmtotttion of the f«oord was
snggBSted, Mt In the brieir of eomisel feir
defradant In arm It was aUe^ that,
•Hrhen admlnlstratton was granted on his
estate^ the administrator was made a party."
Upon reading this, we Issued an order to the
clerk of the snpezlor court, requiring Urn to.
send up a certlfled eoiv ttf the tfrder nurtdnff
the administrator a party; btit the dark
certlfled that he bad made -diligent search of
the records, and had found that **there was
never an order taken making the administra-
tor of T. J. Lane a party to said suit" The
bill tff ez(%ptlon8 recited that tbe case waa
between the plaintHEs and Mrs. Eaiie and htx
three soui, and It contatnefl no Intlmaflon
that an vdrntntstrator was ever made a
pattT' As the administrate ef lAie and
Un. Lane were the two necessary parttes
defendant, the failure to make the admlnis-.
trator a party deftadant In *rrtfr and to
serro Mm, If he was a defendant In the court
below, would iiave been fat^. But no such
point was made or Suggested. Counsel tdv
the plaintiffs In error, in effect, stated in his
brief that he Insisted on ttU of the grounds
of error taken by him. Thus we have, 'so flir
as this record shows, a caife where a deed
has been'adjildged to be fraudulent and^a
been decreed to be canceled without the
presence of the maker of It, or his adminis-
trator, or aU -of the iielrs, Wa veeesaltatefl
a reversal.
[2-4] '3. One ground of the demurrer at-
tacked the allegations of the plaintiff 'tliat
they were soibrogated to the right of Daniel
Sons A Palmer Company to attack the tieed
by lAne to his wife, because It was a volun-
tary deed made to hinder, delay, and defraud
that company, and because, when such com-
pany was pressing for the collection of the
indebtedness to It, and bad brought' suit
thereon; the plaiatUfs were induced, on rep-
resentations of Lane, to advance ttke money
to pay off the pressing indebtednera. Ttiere
Is a difference between the status of creditors
of an insolvent person existing at the time
when a TOluutary deed is made and that of
subseciaent creditors. First National Bank
of Cai'tersTiUe r. Bayle^s, 96 Gta. GSi, ^ S.
B. 861. After dedarlng broadly the existence
of the dfstlnctlicm, ev«n where tihe Subsequent
creditor loans money with whfph to pay the
prior debts, still in the opinion, on pages
687. 688, of 96 Oa.,<and page 8SS of 38 S. ID.,
it was s&id: "If, when He [a husband] made
the conv^anoe [to hla .wlfe], be had an In-
tention ito borrow ..moMy aiid psy off Ida
eztstfaig indcfttedneaB, bMwlng tb&t he waa
la elhharraned or '^isXo§ cteertmstahcM, an^
ttobUMy. wotfia flbt «e dbto ft> >Mp«^ Vhe
money -borrowed, and ihttodtng this
scheme to ta.ve the bouse asd 1(A to hla wife,
the coirveyance would Itftra •hem teuddlent,
and the bank [tibe snbsequoht -creditor] would
have been adbregsled t* the rights of the
pre-existing cMdltoxb whoie -dettts were padd
with the Bum^ 'bdnowed- tKHtt the bank."
The subrogation inferred to exists so far as
ccmewns ttttaddng the^fitrnveyance for fraud.
Four ftUtbortties are idted in that ease as
anstahdng Che tight uf a pieraon ^from wbnn
money Is borrowed In order to pay off an
existing Indebtedness to be subrogated to the
Btatns at the credttw whoee indebtedness fa
thus patd, as to attaiftlng-for tttmA a volun-
tary conreyance made while the fliM debt
was in existence 1>ut before the second was
created, nte first df these is Walt on Btend-
ulentOonTeyanees (3d Ed.) { lOS, which reads
as fbUows: "A device to whldi fkavdulent
InsoTveuts often resort consists in making a
Tohintary conveyance and following this up
by paying all -die adtecedent or existing cred-
itors, pracdcaliy with tb» moneys derived
from the credit extended by subsequent cred-
itors. Savage v. Murphy, 34 N. T. 608, 90
Am. Dec 788, already qaoted, was audi a
case. It Is a most unsubstantial mode of
paying a debt to ccmtract another of equal
amount It Is the merest falUicy to call such
an act 'getting out of debt, and the case
should be treated as if the prttrr Indebtedness
had contititied throughout, or as a case of a
continued or unbroken Indebteddess." ^e
second authority cited Is Bump on fraudu-
lent Conveyances (4th Bd.) i 296. It is
there said: "The general rule In -retard to
voluntary conveyances undoubtedly ' is that
they are vOid on^ so far as may be necessary
to satisfy prior creditors, and &at if they
are paid the conveyance WIU stand, mie
mere fact, bcmever, that the jHTior debts have
been paid off, will not atftne render the trans-
action valid, though it Is entitled to great
weight A great deal will d^end upon the
mode In wbidi sndi debts are paid. Paying
off one debt by contracting 'another is not
getting out of debt * * • In such In-
atances the subsequent creditors are subro-
gated to the rights of the creditors wtaese
debts their means have be«i used to pay.
Any other rule would simply peri^H the
debtor to take property of sUbBequent
creditors and give tt to his donee." The
other two authorities sustain the same doc-
trine. 'Rudy V. Austin, 66 Ark. 86, 10 S. W.
lU, 85 Am. St Rep. '85; Bavage v.'Huitfiy,
34 N. T. 508, 90 Am. iDec. 783.
The difference between chiindttg nhvoga-
tlon bo a contract or to a Hen,' and'da&ning
the rigbt 'to attack a Ttoltmtary deed as
fraudulent, tt money 'bWrOWed from >th» «tr
tattkbqt patty waa used to payoff astwedent
^ta, and'WlUiout kBOWleOge oaLUa'p^ ot
the making of t3ie oonveyaDce, is dear. Hie
aeeOtiinis rtfiea <m tv counsel -for^tiie-plain^
bigHiz'edbyV^OOgle
.1089
78 SOUTHBASmBN BBBOBTOB
tut 1b anot (UcOowrd Brooks, 118 Oa.
632. 3e S. D. 116, Sackett t. Stone, 115 Oa.
406, 41 S. S' 664. and Bagan v. Standard
Scale Co., 128 Ga. 644, 646. 58 S. B. 31) were
in cases where, an effort was made by one
who advanced money to pay off and dis-
charge a lien or security to be subrogated to
the rights of the holder thereof. What we
are now discussing is the making by an in-
solvent creditor of a voluntary conveyance,
and then borrowli^ money from another and
discharging prior debts as creating substan-
dally a continuing indebtedness, rather than
a cessation of debt and the creating of a dis-
tinct subsequent debt. It seem to the
writer that the decision In tiie Case of First
National Bank of Gartersville. above cited,
does not go as far as the authorities on
which It relies, and that it does not clearly
distinguish between the status of Independ-
ent subsequent creditors of an Insolvent who
makes a voluntary conveyance and that of
a subsequent creditor who lends money to
pay prior debts which are thus discharged.
That decision requires an actual fraudulent
Intent by the grantor in such a deed toward
a subsequent creditor In order to obtain sub-
rogation to the position of prior creditors
paid with the money furnished by the sutise-
quent creditor, although the prior creditor
could attack a voluntary conveyance by an
Insolvent without showing actual fraudulent
intenL Really the entire matter of attack-
ing such conveyances rests on the ground of
fraud. In some instances the law declares
that certain acta are fraudulent without
proof of Intent, such as a gift of his property
by an inaolvent as against creditors (prima-
rily meaning existing creditors). In other
Inatancea (such as sales or gifts, relatively
to ffubseqnent creditors generally), the intent
tp d^and ifl a neoeesary dement Such an
intent may be inferred from circumstances.
What drcamatanoeB wlU authorize snch an
Inference lued not now be dlscnssed. The
gEOimd tot boldlng that In some Instances
a anbseqiwDt creditor is subrogated to the
status of a i^rior creditor as to attecking a
voluntary deed for fraud la that his money
went to pay the debt antedating the gift,
and therefore, relatively to the person fur-
nishing the money, in substance there was
a continuity of debt, rather than a dlsduirge
from debt and the creation of a new debt
1 Moore on Fraud. Gonv. 268-270. and notes.
The writer does not deem It necessary to con-
sider here whether "subrogation" is the most
apt expression in such cases, or whether it
is more strictly a continuous state of indebt-
edness; bat the authorities use that term.
If a trap were set by a husband and wife
for the purpose of defrauding a snbsequmt
creditor, and he were defrauded, It would
not seem that he needed any subrogation in
order to attack the fraud. If only the intent
of the husband Is deemed necessary, this
•Fat OttMT OSMS
would make tlie subrogation of a snbseqaent
creditor depend on an intent of one party to
a voluntary conveyance. See. in this con-
nection, note to Hagerman v. Buchanan, 14
Am. St Rep. 732, 739, 745. But, under oar
statute, the decision above cited stands as
the law. unless modified on formal review.
There is also a statement in one of the
grounds of the motion for a new trial, that
the question of subrogation was abandoned,
though much of the allegation of fraud wa^
on that subject The charge of the court
should have distinguished between prior and
subsequent creditors.
[6] If the reconveyance from Mrs. Lane to
her husband was a deed of gift and It was
delivered, then the plaintiffs acquired a good
title, and the deed from Lane to his wife
does not need to be canceled. Perhaps there
jnay be a decree declaring the fact and re-
quiring a record. What is said In Martin
V. White, 115 Ga. 866, 42 S. E. 279, covers
the question as to the effect of recording a
deed which Is in fact voluntary, relatively
to a subsequent purchaser for value with-
out notice.
As we find it necessary to. reverse the
Judgment for want of proper parties, which
point was raised both In the demurrer and
In the answer, and because of the failure
to make any distinction In the charge be-
tween antecedent and subsequent creditors,
which Infected much of the charge, we deem
it unnecessary to discuss in detail the va-
rious grounds ot the motion for a new trial.
Judgment reversed. All the Justices concur.
a« Oft. mi
THOKNQUIffT T. OOLEITHOBPB LODGE
NO. 1.
(Supreme Court of Georgia. July U« 191S.)
(ByttahUM Iv the Court,)
1. WJXUS (S 470*)— CoHSTRTJCnON.
If two clauses of an item of a will are so
inconsistent that both cannot Btand, the later
will prevail ; bat the whole item is to be taken
tacetner, and operation is to be given to every
part of it it this can be done witnout violating
Its terms or the intention of the testator. Such
intention la to be sought hy considering the
item as a whole, rather than detached parts of
it separately.
[Ea. Note.— For other cases, see Willa, Gent
Dig. S 988; Dec. Dig. 1 470.*J
2. Wills (| 686*) — CoNSTBUcrnoir — •'^iilb
UNUAsaniD.'*
A testatrix devised and bequeathed her en-
tire estate, after the payment of her debts, to
her executors as trustees upon the foUowing
uses and trusts: "(a) To provide for my faith-
ful friend and companion, the nurse of my ton
[naming faim], to wit (naming her], while on-
married, such modest support as she has had
while living with me; provided, however, that
DO' more than one-half of the income of my es-
tate shall be devoted to this parpose. (b) To
pay over to my son [naming him} dorinc his
natural life the balance of the net income Irom
my estate, after providing therefrom for the
support of said [nurse named], (c) From and
after the death of my said son,, leaving him sur-
wm iams topic and aaeUon HtniBBk la Das. SIfr 4 An. Dig. Kqr-HOw
Digitized by
THOBNQUIST T. OOI^ETHORPX LODaS-NO. 1
1087
vMng a child or children, or the child or chil-
dren of a deceased child, to par his share of
the net income of my estate for the mainte-
naoce and support of such child or children, or
child or children of a deceased child, during the
life of said [nurse], and at and after her death,
then in trust to convey said property to said
surriving child or children of m; said son
[naming him], the child or children of a de-
ceased child to stand in the place of their par-
ent, and to take per stirpes and not per capita,
(d) In the event of the death of m^ said son
[naming him] vithout issue him surviving, then
and in that event to pay the entire income from
my estate to said '[nnrse named] dnring her
lifetime, and from and after her death, then in
trust to convey my entire estate to" a certain
lodge of the order of Odd Fellows, to be held,
managed, and controlled by the trustees for the
time being of such lodge, and the income to be
applied to the support and relief of the needy
moowB wd orphans of members (tf such lodge.
The woman named as tbe ftiitbfal friend, com-
panion, and nurse married, and her husband
subeegaently died. The son of the testatrix
died withoat leaving issue. Held, tliat upon
th« manlage of the friend and nuree faer inter-
est In the estate terminated, and was not re-
vived by the suhseqnent death of her husband ;
and upon ^be death thereafter of the son of the
testatriz. without leaving descendants him sur-
viving, ue lodge of Odd Fellows became the sole
legatee, for the purpose of carrying into effect
the trost created for the widows and orphans of
its members.
lEd. Note.— For other cases, see Wills, Cent.
DiS. H 1031-1637; Dec. Dig. 1 686.n
Brror from Superior Court, CHiattuun Coim-
tr; W. Q. Charltim, Jadgs.
StQnltable action by lOawmxl Thomqnlst
against OgleXbcrpB Lodge No. L Judgment
A>r defendant, and plalnttft brings error. Af-
firmed.
The will of Eliza Anne Bennett, wblch was
admitted to record in common form In 1900,
contained the following Item: "Item Second.
I give, devise and bequeath mito my execu-
tors bereluafter named as trustees and their
successors, all and every part and parcel of
my estate, real and personal, Including all
money, dioses In action, rights and credits
belonging to me, after the payment of my
Just debts as hereinbefore provided* upon the
following uses and trusts, that la to say: (a)
To provide for my faithful friend and com-
panion, tbe nurse of my son, George Wolfe
Bennett, to wit, Missonrl Thurman, while
unmarried, such mod^t support as she has
bad while living with me, provided, however,
tliat no more than one half of the Income of
my estate shall be devoted to this purpose,
(b) To pay over to my said son, George Wolfe
Bennett, during his natural life the balance
of the net Income from my estate, after pro-
viding fherefnmi for' tbe suppor|; of said
Uissonrt Thnimaa (e) From and aitec the
death of my said son, leaving blm snrvlvtiig
a child or children, or tbe cbUd or <dilldren of
a deceased child, to pay bis sbare of tiw net
income of my estate to tbe maintenance and
snpiwrt of each diild or cbUdren, or cblld
or cbildrcn <tf a deceased child, dnrli^ tbe
life of said Missouri Thurman, and at and
after her death, tbai In txnst 4o conv^ said
pretty to said surviving diild or children
of my said son, George Wolf^ the child or
children of a deceased child to stand In the
place of their parent, and to take per stirpes
and not per capita, (d) In tbe event of the
death of my said son, George Wolfe, without
issue him surviving, tben In that event to pay
tbe entire Ineome from my estate to said
Missouri Thurman during faer lifetime, and
from and after her death thai In trust to
convey my entire estate to Oglethorpe Lodge
No. 1, Independent Order of Odd Fellows, of
Savannah, Georgia, to be held, managed and
controlled by the trustees for tbe time b^ng
of sncb lodge, tbe Income thereof to be ap-
plied by them to tbe support and relief of the
needy widows and orphans of members of
said lodge, in so far as the same may be nec-
essary; and should there be any balance of
income, such balance sbaU be Invested by
such trustees for the same uses and purposes.
It Is my will that the trustees for the time
being of said Oglethorpe Lodge shall be the
sole Judges as .to the widows and orptians
who shall take the benefit of the support and
relief provided for herein, and as to the
amount thereof, and the continuance of tbe
same. And I further authorize and empower
such trustees for the time being, without the
order of any court, at public or private sale,
and on such terms as tiiey may elect, to con-
vey and dispose of any and all of my estate,
the proceeds of snch conveyance or disposal
to be invested and held by them upon the
uses and trusts hereinbefore set out"
Missouri Thurman married Thomquist,
who later died, and she remained a widow.
George Wolfe Bennett died without Issue sur-
viving him. Tbe executors and trustees
named In the will resigned, and Brooks be-
came the administrator cum testamento an-
nexo. The property subject to the terms of
tbe item of the will above quoted consisted,
at the time tbe litlgaUon began, of about $475
In cash, and a lot of land of the approximate
value of $1,000. Missouri Thornqulst claimed
that she was entitled to the entire income
from such property. Oglethorpe Lodge No. 1,
Independent Order of Odd Fellows, of Savan-
nah, Ga., contended that, Missouri Thurman
hfiving married, it was entitled to the entire
Income from the property, and also to have
a conveyance of the property, to be held by
It upon the trusts set forth In the second
It^ of the will. The administrator being
unwilling to pay over to titber of these par-
ties tbe Income from the property until th^
CfmflictUig claims were settled. Missouri
Tbomqnist filed an equitable petition for the
porpOBe of obtaining a constmctton of tbe
wOl and determining her rights. Tbe pre-
siding Judge construed tbe Item of tbe will,
above quoted In favor of tbe defendant, C^le*
tborpe Lodge No. 1. Mrs. Tbomqnist ex-
cepted.
•For otiier oases asxas topic and seetlen MDUBBR u Ota. Dig. A Am.
10881
78r 30PTQAA^TWf , EUCEpRTPI^ ,
Geo. Hi lUcbter, of SanitBabj for. ptaliMlft
In errors WU8cm> * Boflezp, ol Savwub,
for detendant lo.jerror* . , .
LXTMPEIN, J. A testator died learlng a
will, the second Item of which Is set out la
the statement of fact BUssourl Thurman,
who was mentioned as a benefldary und^r
aubsectlonfl (a) and (d) of the Item of the
will, married, bat afterward became a widow.,
The son of the testatrix mentioned in the will
has died without leaving issue sorTiVlng blm.
Missouri Tbornqulst (formerly Missouri
Tbarman) claims that she is entitled to the
entire Income from the property, while Ogle-
thorpe Lodge No. 1, Independent Order of
Odd Fellows, of Savannah, contends that,
Missouri Thurman having married, it is enti-
tled to the entire Income from the property,
and also to have a conveyance of the safne
made to It, upon the trusts set forth in the
will.
Counsel for the plalntllf In error argued
that it was the intention of the testatrts
to provide for Missouri Thurman, her faltb-
tal friend and companion, during such time
as the latter was unmarried, whether before
she married or during widowhood, and that
the words "while nnmarrled." were not words
of limitation under which tbe beneficiary lost
her interest by marriage. He further con-
tended that, if this were not correct, never-
theless there were two testamentary schemes
included in the second item of the will, one
embraced iu the first part of the Item, and
the other embraced in subdivision (d) thereof
and Uiat the preceding divisions might be
entirely eliminated from this Item, and leave
the last-mentioned provision to stand alone.
He further argued that, if it ebonld be held
that there was merit in the contfiintlon that
tbe words "wldle nnmarried** conBtituCed a
tlmitation, there was an irreconcilable con-
flict between the anterior and posterior pro-
vlsiona of tbe Iton, and tbat In saOi a case
the latt«- would prevail. On bebalf of the
defendant In ern»' It was contended tbat the
second item of tbe will abould be conatmed
as a conristent wbole» and tbat tbe cbioaes
dionld not be constmed as InconslBtent, if
this could be avoided, and tbat, so constmed,
the provision made for Missouri Thurman
(afterwards Missouri Tbornqulst) terminated
after her marriage, and did not revlte upon
tba death of ber bnaband, or upon tbe deatb-
ot the son of tbe testatrix vitlArat issue' ^ijc
viving liim.
[1] It is mdtmentary Ikw tbat In the can-
straciion of wiUs titte eourt will seefe -diluent*
ly for tbe intention of tba testator, and wiU
give efflect to it as fltr as it may be coBslst-
ent with the rules of - law.- Olvil Code, 1 890(k-
It is well settled tbat, "If two danses of a
will' are so inconsistemt' tlttt botA cannot
stand, the later will prevail; but the wtaole
wI0 is to-be taken together, and' operation is
to be given every part of It, if this can be
dC)a» without Titrating Us terms 09 tbe 1^
ixmlStfix,fii.am testator. And ;tbe tofce^ttm of
tbe teatator Is to be •sought by looking to tbe
wtE^ win rather than to detacbed parts of
It" Bogers V. Blffhnote^ 126 Ga. 740,- 06 S.
£1 93. In Klmbrough v, Smltti, 128 Ga. 602,
58 B. 24t Mr. Justice Etvane said: "Before
a posterior provision shall be given the effect
of nullifying fi. devise prevlonaly made in the
will, the conflict between tbe two provision*
must be IrreconcOabla** See, also, 40 Oye,
1413.
in In tbe Hgbt of these ndes let us exani-
Ine the -provislonB of the second item (tf tbe
will here Involved. The testatrix Induded
several subdivisions marked by letters under
the same item, thus indicating that they ware
considered to be closely related, and as jtorm-
Ing together such a ategle purpose SA.to be
included in one item, rather than such sepa-
rate and , distinct testamentary sebemes or
legacies as to be divided into s^arate items.
We think that Item second iH'esents a single
testamentary scheme witii certabi subdivi-
sions thereof, ratbw than ^stioct and coo-
flictlng testamentary schemes. In that Itun
tbe first- tboagbt iHreaeated by the testatrix
was to uufce provlsloa fAr tbe-beBeflt of hee
friend and companion, Missouri Tburman,
"wbllfe unmarr^" At tfalit.time tbe bene-
ficiary was unmarried; and 'tbeee words evl-
danCtr mean wbUe.or so long as she runatfe-
ed in that oondltlo& SiBL Oom. •ISff. Tbe
tsstabrfx oobld bard^f bare blended tltat the
beMfldair might first take uadee the wlU,
and than: by- marriage oeaM..tOiber>a. besie-
fldary, and then again become a beneficiary
by tbe deatb,,or divorce of ber husband. The
legacy was., not of tbat. eluslTe diaraetor
which might, b^ 8ub4ect to the description,
"Now yon see and now you don't" It
might have been that the woman for whom
tbe testatrix was providing would ™ore
assistance if she manried and bad a large
tiimuy than if she remained unmarxlM, or
the same tMng might have been true it, vet^
chance, marriage with ber had proved a fall-
nre; but it. was evidently not tbe testamen-
tary purpose to provide for according to
what . sbe might need in such circumstances,
but to make provision for her, benefit so long
as she did not see fit to marry.
Ulwn ber marria^ provision xmdw Bobseo-
tlon (a) terminated, and the beneficiary could
not alternately take and not take undto the
will, aocordlQg as sbe m^ht marry, become a
widow or a divotcee, and ronarry. Later in
the itnn ttie testatrix made provision fbr ber
sdn te receive "^fae balance of the nrtlncome
from my estate,' after providing therefrom
for the support of sald'Mlttonrl rainmian."
She thus contemplated tbat a part of 'the in-
come, not exceeding one-balf thereof.- Aould*
be devoted to tbe support of Missouri Thur-
man, while unmarried, and ttie residue of
the income should be paid 'to the son. By .
subdivision (d> it' was provided that, in the
event of the death of the son of the testatrix.
KELDRIM v. M^DRlk
should pay the oitbtt income' ftotn tbe estate
to BBld Hlssonrl TbocnuLii Aatii^ ber life-
ttme. ^vlng iffovlded that ItlsSoOrf Thnr-
maii alioiild recelTe less tbxa the entire U-
oome wUle ahe Aovld remain unmarried,
and that tbe aon ot the testatrix anoold re-
oelve tbe balance snbtUTlslon (d) then pro-
vided tbat^ In the event of tbe death of her
eon withoat leaving Issne, '^e entire In-
come^ should be paid to Missonri Thnrman.
In other worda, bavli^ provided for a part
to be used for the benefit of Missonri Tlrar-
man while she remained nnmarried, the tes^
tatrlx then provided for the balano6 of the
Income, which wonld be going to her son, to
be added to that which wonld be need for
Bdasonrl Ilrarman, thns paying the entire
Income to the latter. The testatrix contem-
plated that Iflas Xhnrmon shonid th«i be
reedvlng some of tbe Income^ which npon a
contingency would be Inereoaed so as to In-
clude the whole of It This was not an Inde-
pendent or conflicting testamoitary schSbie,
destroying that wbldt had preceded It In the
■ame Item; but it shonid be construed In
harmony ■ wlUi that which bad preceded It.
Aa we have seen that the provision for Mis-
souri Thnrman made In the first part of this
Item terminated npon her marriage so, also
the addition thereto made in the latter part
of the same Item terminated upon the same
event Thus this l^tee Remained an object
of the bounty of the testatrix so long as she
did not marry; but when she married, this
terminated the provlsloD made for her in the
will, and the legacy did not revive by rea-
son of the death of her husband. The death
of the husband did not reproduce life In the
legacy.
Upon careful consideration of the second
Item of the will, we hold that the trial Judge
correctly construed it that after the mar-
riage of Missouri Thurman she no longer
took any interest thereunder, and that after
the death of the son of the testatrix leaving
no Issue surviving him, the Oglethorpe Lodge
Mo. 1 became the sole legatee for the purpose
of carrying out the trust created in its favor.
Judgment affirmed. AU the Justloes con-
cur.
<1M 0*. 4W)
HELDRIM T. MBLDBIBL
<8apranie Ootirt of CreorsiR. Jttly 31, 18(183
(Syttdbu* by the Court.)
1. Appkal ahd Bbbob (I 719*) — FunnTA-
noN fob Beview— SninoiENCT.
Where error is not auigned in the main
bffl of ezcepttona, nor in the Supreme Court,
upon eaeepdooa pendente lite brought up in tbe
Mcordf the qoestioDi raised by tbem will not
be considered. Shaw t. Jones. Newton ft Co.,
138 6a. 446, 66 a B. 240: Jones v. Began!
U6 Qa. 668 (7). n & B. 1098. ^
[Ed. Note.— Fw other casai, see Ameal ^xiA
gmir^ Out Dig; || 2968-^. S^BOTd^
•For oUttr ohm ••■ suu to^ aad Motion 1
78S.S.-69
% iHTEBPLEADtt (4 29»)— <?LAnUStS *0 4*Hd-'
OKBDB OF Insbnlnoa PeiioT— Evjoxnoc
The ctait 4id not err ill admittin|; ta
evidence a certified copy of tbe ordinal judg-
ment and decree of absolate divorce granted in
the suit between Bobert Lee Meldrim and Mrs.
Mollle Meldrim, over the ol^tion that the
same was irrelevant and immateriaL
[Ed. Noteir— fi^r other casaL see Intarjdeader.
Cent mgTi 57; Dec. Diin 29:»]
3. INTBBPLSADBB (| 29*)— CLAUUNTS TO pBO-
CBEDB OF IneU&ANCE POLICT— EVIDBNCK.
Nor was it error to admit in evidence, over
the same objection, a Gratified copy of the mar-
riage li<»nBe of Robert I«ee MeUxun and John-
nie E. Joiner, together wlui a certificate of the
minister who officiated at the marriage, stating
that Robert Lee Meldrim and Johnnie m. Join-
er were duly joined In matrimony by IMm, the
minister, on the 10th day of November, 1906.
[Ed. Note.^For other cases, see Interpleader,
Cent Dig. I 57; Dec. Dig. | 29.*]
4. ImnrBFLUDEB (f 29*)— Claiicants to Pbo-
orans of Insttbanoe Poucy — Bvidbncb —
CONTBAOT.
It was not error for tbe court to admit tes-
timony tending to show tbat the date "24th
day of Aprir was by mistake written for "4th
day of April," and the date "24tb day of Octo-
ber," when it sboold bare been "itii day of
April," over the ol>jection that the same was
immateriaL •
[Ed. Note.— For other cases, see Interpleader,
Cent Dig. I 67; Dec. Dig. 129.*]
6. TaiAL (I 820*)— Vbbdiot— Pabtieb.
The court did not err in directing the v^
diet over the objections presented.
eid. Note.— For other cases, see Trial, Cent
. U 774^-776, 782; Dec Dig. | 329.*]
Error from Superior Court, Sumter Coun-
ty; Z. A. Llttlelotau. Judge.
Bill of interpleader by the Locomotive
Engineers' Mutual Life ft Accident Insurance
Association against Mrs. Johnnie Meldrim
and Mrs. Mollle J. D. Meldrim, praying that
tbey be required to interplead and for other
reUef. From tbe Judgment, Mrs. MolUa J.'
D. Bieldrim brings error. Afflrmed.
The Locomotive Bnginens' Mutual Ufie
ft Accident Insnrance Aasodatiai, hetmfStet
TettmA to as the Aasodation, breiu lit its
I>etltlon against Mrs. Jobmrie IMdrim luid
Mrs. Hellie J. D. Mddrim, praying that tM
two named defendants be requtoed to Inter-
plead, etc. It alleged as follows: 1^ Aaeo-
elation issued npon tite Ufe of one Bobert
Lee Meldrim two InHurance policies, aggre-
gating tbe fiace vttlne of 93,00a In eacb of
said policies Mrs. Mollle Mddriu was tfUned
as tbe beneficiary to whom tbe insdrance
was to be paid upon the death of Robekt Lee
Meldrim. He died on the 6th day of AugUst,
1010, and proof of bis death was duly made.
Mrs. MoIUe Meldrlln was the laWfQl wife of
Bobert Lee Meldrim at the time of the Issn-
ance of the policies, and, so fftr ki the policies
themselves Indicate, is stiU the beneficiary
named in them. She has brought suit dpoti
tbe policies against the Association, to re-
cover the amotant of the insurance. Th^
Association has been advised that, snbse-
quehtl^r to the issuance of tbe Insnrance
poUclea and prior to the death of Bobert Lee
Digitized by VjOOgle
1090
78 SOUTHBASTEBN BBPOBTBB
(Ga.
Meldrlip, Iw dalmed to have procured a dl-
rorce from Mrs. Mollle Meldrlm. and tbat
afterward be Intermarried witb Jotmnle E.
J^ner, and at the time of his death was
living witb her as Ms wife. She also has
bron^t suit upon the policies, seeking to
recover the amount of Insurance, alleging
that she la temporary administratrix upon
the estate of Robert Lee Meldrlm, and claim-
ing that as temporary administratrix and
as -the wife of Robert Lee Meldrlm sbe Is
entitled to recover said Insurance. The As-
sociation has been advised that Mrs. Mollle
Meldrlm, prior to the death of Robnt Lee
Meldrlm, executed a contract In connection
with an alimony suit, whereby said policies
of Insurance became assigned to said Robert
Lee Mtidrim or to such beneficiary as be
might thereafter name, and that a decree was
rendered in the alimony suit, by virtue of
which, it is contended, Mrs. Mollle Meldrim
was divested of all Interest in said policies
as the beneficiary thereof; but the Associa-
tion is advised that on that particular point
said decree Is ambiguous, and that the claims
of the two defendants are such as to render
it donbtful or dangerous to the Association
to pay the Insurance to either until th^r
claims can be determined under proper plead-
ings. The Association has no interest in the
controversy, farther then to protect itself as
a mere stakeholder desiring to ascertain to
whom the amount of the Insurance should be
paid.
An order was passed, requiring the named
defendants to Interplead, and they were
enjoined from farther prosecuting their In-
dividual suits against the Association. Mrs.
Mollle Heldrtm pleaded that the "entire es-
tate of Robert Lee Meldrim consists solely
of the Insurance fands now in the hands of
the court, as benefldary, if th^ do not be-
long to Mrs. Mollle Meldrim"; that the es-
tate of Robert Meldrim is Indebted to Mrs.
Mollle Meldrim, as alimony under the decree
of the court, in the sum of $30 per month
from August 1, 1910, down to this time, and
she will continue to be entitled to receive
from said estate the sum of f30 per month so
long as she lives and rematos ^ngle; tliat
Mrs. Johnnie Meldrim Is not entitled to re-
ceive said Insurance individually or as heir
at law of Robert Lee Meldrlm j that the poli-
cies are due and payable to Mrs. Mollle
Meldrim as the benefldary named in them;
that Robert Meldrim "understood, and in
bis lifetime acted on his understanding, that
the rights of Mrs. Mollie Meldrim to said
policies did not npire until December 24,
1810, and so stated to witnesses;" and that
the contract and decree for alimony have not
been complied with by Robert Lee Meldrlm,
and hence said representative of said Robert
Lee Meldrlm has no right to the proceeds
of said insurance.*' The last two allegations
Jnat quoted were stricken on demurrer, and
exception to this mling was taken p^dente
Utflb There was no assignment of error npon
this, in the main bill of exceptions or upon
the hearing In the Supreme Court; and the
same Is true of another exception i>endente
lite found in the record.
Mrs. Johnnie Meldrim pleaded as follows:
She was the lawful wife of Robert Meldrim
at the time of bis death, and Mrs. MoUle
Meldrim ceased to be the beneficiary In the
policies on the 4th day of June, 1910. Robert
Lee Meldrlm, before his last marriage, pro-
cured a divorce from Mrs. Mollie Meldrim ;
and at the time of his death Mrs. Johnnie
Meldrim was living with him as his wife.
On AprU 4. 1906, Mrs. MoUle Meldrlm and
Robert Meldrim executed a contract in view
of a certain alimony suit then pending,
whereby said policies of insurance, prior to
the death of Robert Meldrim, "became as-
signed to him or such beneficiary as he ml^t
name." By reason of this contract m order
of court was passed under date of April 14,
1906, embodying in part the terms of said
contract, and on December 17, 1906, a verdict
and Judgment purporting to be upon consent
were rendered in Sumter superior court,
said verdict and said Judgment having been
prepared by the attorneys of record of fiirs.
MoUle Meldrim; but through inadvertence
the word "October" was erroneously and mis-
takenly written by the draftsmen of said
verdict. Instead of the word "April," In fix-
ing the time when, by the terms of the con-
tract of April 4, 1906, and the decree of April
14, 1906, the assignment of all Interest of
Mrs. Mollie Meldrlm In the Insurance poli-
cies to Robert Lee Meldrim should become
effective. Said contract was executed April
4, 1906, and by the terms thereof all the right
or interest of Mrs. Mollle Meldrlm termin-
ated at the expiration of fifty months from
that date. Copies of the contract and of tbe
verdict and decree are attached to tbe plead-
ings.
Upon the trial the Jury by their verdict
found tbe facts to be as follows: "That R.
L. Meldrlm and Mrs. Mollle J. Meldrim mar-
ried on the 9th day of January, 18S9, and
that a legal and valid divorce was granted
between the parties, Robert Lee Meldrlm and
Mollle J. D. Meldrim, releasing one from the
other, and from all marital obligations one
toward the other, and absolutely dissolving
the marital tie between them, on April 26,
1906; that Robt. Lee Meldrim and Johnnie
fi. Meldrlm, n£e Joiner, were lawfully mar-
ried on the 10th day of November, 1906, and
that Johnnie B. Meldrim remained the law-
ful wife of Robt Lee Meldrim until his death
oh Aug. B, 1910; that Johnnie B. Meldrlm
is now the widow of Robt. Lee Meldrlm, de-
ceased ; that Johnnie B. Meldrim Is the duly
appointed and qualified temporary adminis-
tratrix of Robt Lee Meldrlm, deceased, said
Robt Lee Meldrim having departed this life
on August 5, 1910 ; that Johnnie B. Meldrim,
as temporary administratrix of the estate of
Bobt Lee Meldrim, deceased. Is entitled to
rec^ve tbe entire fond, flie proceeds o£ (wo
Digitized by VjOOglC
taumraiMe polldM Israed the LoeomotlTe
Bbsineen^ Uutnal Ufe ft Acddmt Insaranoe
Association on the life of Bobt Lee Mel-
dilm, amonntliig to the sam of 13,000, with
lawful interest thoeon; and that, as the
lawful wUe of Bobt Lee Heldrlm and only
h^ at law of said deceased, she is entitled
to ncelTe said fnnd. sabject; boweTer, to
any claim of any cieditor of the estate of
Robt Lee Meldrlm, deceased, which may be
of legal priori^ to her da^ as wife and
heir at law."
Mrs. Mollle Meldrlm filed a motion for a
new trial, which was orerroled, and she ex-
cepted.
Lb J. Blalock, of Americas, for plaintiff lo
error. J. E. Sheppard and J. A. Hlxon, both
of Amexlcus. and OUT«r ft OUver. of Savan-
nali, tor defendant in error.
BBCK, J. (after statins the facta as
above)- [t-4] 1-1. nw vulinga made in
headnotes 1. % 8, and 4 leonlre no ehibora-
tlon.
[f ] 8. Tb» fonrtb gnmnd <tf the amwd-
nent to the nwtlon for a new trial enn^ains
ot tht allowance and direction of the ver-
diet ower the fbUowing objecttons: *'13iat
the Terdict is far ontstde of any issne an-
tliorlsed bgr this record or the ladings;
that Uiere is no appearance here by Mrs.
Johnnie B, ICeldrim indlTidoaUy, and that
it is flkor^re b^iid the scope of ftue plead-
ings and the interpleader to cover anything
by the verdict and the decree that tends to
fix the ri^t between Mrs. Johnnie E. Mrt-
drim IndlrlduaUy and this former wife ; and
that the issne is as to whether Mrs. Mollle
J. D. Meldrlm is ttititled to It as beneficiary,
or Mrs. Johnnie D. M^drlm as temporary
administratrix." In approving the grounds
of the motion the court appended this note:
"Oonnsel for Mrs. MolUe J. D. Meldrlm stat-
ed that they were vrUllng that a verdict be
directed awarding the insurance money to
Mrs. Johnnie Bi Meldrlm ad administratrix,
bnt objected to the verdict going further
than as above suggested." Oonstrulng the
fourth ground of the motion in the light of
this note, It will be seen that the objections
to the direction of a verdict are narrowed to
the q;ieclal objection that there was no ap-
pearance by Mra. Johnnie EI Meldrlm, the
defendant In error, Individually, and that it
was therefore beyond the scope of the plead-
ings "and the Interpleader" to cover anything
by the verdict and the decree that tends to
fix the rl^ts between Mra Johnnie Meldrlm
individually and the plaintiff in error.
With this contention of the plaintiff in
error we cannot agre& In the petition for
interpleader It la alleged that she was tem-
porary administratrix upon the estate of
Robert Lee Meldrlm, and claiming that ae
such temporary administratrix, "and
to recover said insurance asfainat petitioner."
And In tiie fourth paragraph of the prayers
to ttie pettllon St la prayed that "Mr^ John-
nie Meldrlm [not Mrs. Johnnie Meldrlm as
admlnistratilx] be made a party to this bUI
for Interpleader." And the answer of Mrs.
Mollle Meldrlm, the plaintiff in error, la thus
headed: 'Xocomotive Engineers' Mutual
Life ft Accident Ins. Association v. Mrs.
MolUe X D. Meldrtm and Mrs. Johnnie Mel-
drlm. Bill fbr Interpleader, etc. In Snmtei^
Superior Court" And In the answer of Mra
Mollle Meldrtm she thus raises the dUtlnct
Issue as to whether Mrs. Johnnie Meldrlm Is
entitled to receive the fund Individually:
"Whereupon she [Mrs. Mollle Meldrim] says
that said Johnnie E. Meldrlm Is not entitled
to receive said fond individually, or as heir
at law of Robert Lee Meldrim, If she is sucb
heir." And evidence was introduced which
showed that Mrs. Johnnie Meldrlm was the
heir of Robert Lee Meldrlm, and his sole
heir at law. Other evidence was introduced
tending to show that Mrs. MoUie Meldrtm
had no Interest whatever In the estate of
Robert Lee Meldrim. In view of these al-
legations in the pleadings and the scope of
the evidence, we do not think that the special
objections raised to tiie Erection (tf a ver-
dict are mwltorious.
Judgment afilrmed. AH llie Jostloes con-
cur.
a«> Cte< «s>
OIBYIN T. GEORGIA VBNBBB ft PACK-
AGE CO.
(Supreme Court of Georgia. July 2U 1913.)
(Syltabu* ty ths Court.)
Master and Sbsvaivt (S 2t56*)— Ibjubt to
Sebvant— Pktitioh— SnmciENCT.
The petition in this cue was sufficient to
withstand a general demurrer, end the court
erred in Ruataining the same.
[Ed. Note.-~F<ff other cases, see Master and
Servant, Cent Dig. 11 80B-S12, SU; Dea Dig.
i 256.*] ™™. ...
Fish, C. J., aud Atkinson^ J., dissenting.
Error from Superior Court Glynn (^nnty ;
C B. Conyers, Judge
Action by K. E. Girvin against the Geor^
Teneer ft Package Ounpany. A general de-
murrer to the petition was sustained, and
plaintlfl brings error. Reversed.
F. H. Harris and D. W. Krauss, both of
Brunswick, for plaintiff in' error. Byals.
Grace ft Anderson, of Macon, and A. J. Cro-
vatt of Brunswick, for defendant in error.
HILL, J. This case Is here on exception to
the judgment of the court b^ow, sustaining
a general demurrer to the petition. The
pl^ntlff alleged substentlally the following
case: Ralph Girvin, her 15 year old son, was
an employe of the defendant and was en-
gaged by It to work in a safe place within
Its mlU building proper, and should not have
wife of Robert Lee Meldrlm, she Is e
Tof oUwf CMM w isnw topic nd wction * Kej-NOb SwIm ft Bap'r laAaxm
Digitized by Google
78 SOU'WttA^TSQN BBFOBl^
tnoi plac^ at work when b« was UUe^
namely, at a Tat of boiling wat^r, wblcli was
entirely diaconnected witli Ma work within
the mlU. and was the place where loss and
timber were prepared for inanufactur& The
defendant In the operation of Its business
had and used two large vats, which contain-
ed a large quantity of boiling and scalding
water, and Into which the defendant placed
logs for the purpose of steaming and cooking
them as proper material to be manufactured
Into boxes, baskets, eta Hie Tats were at all
times filled with boiling and acaMing water,
and the place was dangerous, and one where
onl^ men employes were able to and did appre-
ciate properly ttie danger, and guarded them-
MlTes accordingly. The defendant did usually
haTe grown men and not boys and youths to
perform the work around the Tata In order
to render the place reasonably safe to its em-
ploy^ the defwdant should bave lAaced a
CDud rail or some protection around ttw
vats, so that it any person ta employ^ should
lose his balance and come near falling into a
TSt, such employ* or person could quickly
■rise the guard rail or protection, and save
blnuelt fnmi falling Into the Tat and scalding
to death. The defendant was careless and
negligent, and in utter disregard of fb» lires
of its employes and others, by neglecting to
place around and near auch vats any safe-
guard, railing, or protection whatever, and
the lack of mich protection was a menace
and dai^er to the safety and lives of the
employes working around the vets. The
plalntUTs son was absolutely inexperienced in
working around the vats. He was immature
In Judgment and appreciation of danger, and
by reason thereof was unable to comprehend
and awredate the danger and know of the
same In order to guard against it and the
negligence of the defendant The defendant
did not warn the deceased of the danger to
which he was subjected, as was Its duty to
do, nor could deceased have remembered the
warning if it had been given him, or have
appredated his danger, in order to protect
and guard himself therefrom. On the Oth
day of July, 1911, Ralph Glrvln, In the first
part of the day's work, was engaged In his
usual and customary duty under his employ-
ment In the mill. After the noon hour the
mill became "short-handed," and the defend-
ant insisted upon placing a number of boys,
indndli^ plaintitrs son. at work in and
around the vats, for the purpose of placing
logs therein. By reason of his tender years
her son did not know and appreciate hla right
to- decUne to perform aerrlce around the rata
of bolUng water; and by zeasou of the coer-
cion of hla employer^ and against his will, he
was forced to perform the service of pladag
logs in the rats^ wherry be lost Us life.
About 30 minutes after he had been placed at
work putting logs In tb» vats, and while roll-
ing a log towards the vat, his feet slipped,
and bf ^ell into the rat. and died on the same
day as a result of being scalded and burned.
His death was due to the carelessness and
negligence of the defendant, its agents, serv-
ants, and employ6& It was negligent In
changing her son's place of work from the
mill to the dangerous place at the vat He
had familiarized himself with the work
around the machinery in the mill, and waa
in comparatively little or no danger there-
from; whereas, he was entirely without ex-
perience in handling tbe logs and timber be-
ing pr^wred at the vats tor manufacture
wltUn ttie mill, tbe attendant danger of
which was great and entirely dissimilar to
that of the mill madilnery. Ttie danger was
as fbllows: Tbe logs and timber, after bdaff
cnt Into aeetiona of from fliree to alx feet
long, were placed <m a way leading to the
rata, «ikd those bandllng the logs. In order
to place them in the vats, wcve reqnlred to
roll the section along the way parallel to the
verge of the vat until reaching the verge,
when tiie section would tall imx the edge
and Into the bcriUng watn. The peraon roll-
ing the section aloi^ tbe way to the vat
W0Q14 have the aeefelon of timber, about
three feet in diameter, always brtween him
and the vat, and In pushing it wottUl be In a
stooping porition, bilngln« his head and the
tmnk <tf hla body almost at right angles with
bis loww limbs ; and by reason vt this posi-
tion, and the intervention of the section of
the log, his view of any danger of any kind
along tim way, including tbe near approach
to the vat, would necessarily be Impaired and
obstructed, all of which was known to the
defendant, or by proper exercise of care could
have been known, and the defendant could
have provided against the danger by placing
a guard rail at the verge of the vat, so that
the section of a log reaching the guard rail
would be stopped, thus putting the person
pushing the log on notice of its arrival at
the vat and then, by raising or removing the
rail the section of log would fall into the
vat. Her son being so engaged in pushing
the sectioD of timber along the way into the
vat his entire attention being applied to
keeping the section in motion, his entire
physical strength being applied to his work,
his body being In tbe position described, and
he having pushed or rolled tbe section of tim-
ber to the verge of the vat, and there being
no guard rail to arrest its motion, it fell over
the edge into the vat; and the plaintiff*B
son, exerting Us strength In rolling the tim-
ber, by the natural momentum of the section
of timber hla body fell with it Into the vat
with the result as stated.
We think the petition as a whole hi suf-
ficient to withstand the genial demurrer.
It was alleged that tbe deceased, a minor,
was hired to work In the miU-na safe place
— but that he was forced by tbe defen<tont
and tta agents to leave the safe idace and
to work in a place of danger around the vats
of scalding water, where^ owing to the negU-
Digitized by Google
1098
cent condnet of tbe defmdant and Its agents,
be lost his lUe. Be was 1& years of age. He
was put to wort: at a highly dangerous place,
without warning or instmctlon. and without
any safeguard or railing around the boiling
Tats of water, or other protection to prevent
employes from slipping and fatUng Into the
water while engaged In rolling logs tbertjln,
■o far as the record discloses.
In 1 lAbatt on Master & Servant, 1 19, It Is
said: "The almost universally accepted doc-
trine is that the care to be observed to avoid
injuries to children is greater than in respect
to adults. That oourse of conduct which
would be ordinary care when applied to
persons of mature Judgment and discretion
might be gross, and even criminal, negligence
towards children of tender years. The same
discernment and foredgfat In discovering de-
fects and dangers cannot reasonably be
expected ot them that older and experienced
persons habitually employ; and therefore the
greater precaution should be taken where
children are exposed to danger. Upon this
ground he has been held liable for the fol-
lowing acts of nefl^ence: Not Insisting on
the use by a minor of certain safeguards
provided for the servants ; requiring a minor
to do work which Is not within the compass
of his age and experience; requiring a minor
to encounter risks of an unusual kind, al-
though such work la within the scope of
his employment; augmenting the risks of a
minor's service by giving him additional
duties to perform; transferring a minor to
new duties Involving greater dangers than
those Involved in the work for which he was
originally hired; setting a minor at a task
wbi<A he has neither the strwgth nor the
dElU to perform ; failing to prevent a minor
trom doing work in a dangerous way, when
there Is a temptation of a person of his
yean to do It so; allowing a minor to do
things in^rlous to his health." In the case
of Hay V. Smith, 92 Ga. 96, 80, 18 S. B. 860
(44 Am. St Rep. 84) Bleckley, G. J., said:
*^niere was evidence from which the Jury
could infer that the machine by which the
^alntUt below was Injured was dangerous to
an inexperienced person, and that the danger
was not mffldemtly obvious to be apparent
to such a person without proper explanation
and warning. That the plaintiff was not a
child, but was 17 yean of ag^ would not
derive him of the right to be warned, 1^
as a question of fact, the employes, or the
mau reiffesmtlng them, ought, undw all
the drcnmstances^ to have Inaitized of him
as to bis experience, or taken notice of the
jwobabUlty that be was so Inexpwiettocd as
to render it proper to give him warning.
Tbat bis age alone did not d^nrlTe him ot
the right of being warned Is establlataed by
many authorlttea (dtlng numcnniB case*)."
In fibe case of A. A W. B. B. Go, r. Smitb,
94 Oa. 107, 20 & B. 76S, it was held: "g.)
There is no preaomptbm of law that a mtixot
onr 14 yean of age^ who applies for a
tlou Involving dangerous service \a aware
of the danger and needs no instruction. (2)
The obligation to instruct an employ^, before
putting him to work, as to any of his duties
which are dangerous does not necessarily
follow, as matter of law, from his minori-
ty when employed, his Inexperience, the
fact that the service is dangerous, and the
fact that biS' Inexperience is known to the
employer. In a case like the present It is a
question for the Jury whether the particular
service was so dangerous, and Its dangers
so obscure, or whetber the Information of
the employs was so limited, or his mind so
Immature, at the time be was injured, as
to render It needful and proper that Instruc-
tions should have been given him when he
was employed, or at some time previous to
the injury." This was a case in which the
plaintiff, a boy 17 years of age was employed
as a train hand, and received Injuries while
endeavoring to couple two cars. On the
question of the duty of a master to warn
minors and Inexperienced persons, see 1
Hopkins on Personal Injuries (2d Ed.) U 300,
SOL In Hobbs v. Small, 4 Ga. App. €27, 62
S. E. 91. it was held: "The court erred in
sustaining a general demurrer to a petition,
in an action by a servant against his master
for personal Injuries received pending the
employment, alleging, in substance, tbat the
[ilalntlff, a boy 16 yean of age^ wholly in-
experienced^ was put to work, without in-
struction or warning, upon a machine which
was highly dangerous, was lacking In the
usual and common safety devices employed
on such machines, and was being used to do
work of a character for which it was not
intended, whereby It was rendered more dan-
gerous ; It being also alleged tbat the master
knew all these things and the servant did
not, that the mastM assured him that be
could do the work at the machine all ri^t,
and that the Injury oconrred immediately up-
on bis attonpting to operate it, and befon
he bad the opportunity of discovering iu
dangers."
But it is argued tbat the danger In this
case was so obvious that no warning was
necessary from the master to the servant
In the case of Betts Co. v. Hancock, 1S9 Ga.
108, 77 S. B. 77, a boy 13^ years old was
placed by the master to work trnmedlately
above a rapidly revolving "re-saw," which
was not covered, and the boy fell upon ibe
"re-saw" and was Injured. The plaintiff hav-
ing recovered a verdict, this court, in up-
boldliv the trial court in denying a motion
for a new trial made by the defendant, said
(page 208 of 130 Ga., page 82 of 77 S. B.):
"Whether the dangw to the plaintiff in this
case from the saw and place to work was
so obTlous to blm tbat no wamli^ of sodi
danger was necessary from the mastor, and
whether the minor was of such age and
I capadt? as to be cognizant of the obvious
[danger and appreciate the hazard and to
\ guard i^lnst It, wen qnestloDB of fact tme
Digitized by Google
1094
T8 SO UTUB ASTERK BBPOBTEB
the Jury to determine from the evidence. It
was for the jury to say, In the light of the
evidence^ whether the age and capacity of the
minor wen Bucb as to bring him within the
mie where no warning Is necessary from the
master, and where he must gnard against
obTlons danger." In the Olvil Code, { 8130,
It 1b provided: *lf there are latent defects
In machinery, or dangers Incident to an
employment; nnknown to the servant, of
whidi the master knows or ought to know,
be must give the servant wamli^ In respect
fliereto." 2 Bailey on Personal Injuries
<2d Ed.) 1 868» p. 9S4. In view of the allega-
tions of the petition: mat the deceased was
IS years of age; that he was forced by the
master from a safe to a dangerous place of
woA; that be was Inexperienced and of
immature jndgmoit^ so as not to make him
cognisant of the obvious danger to which
be was exposed, and to appredate the same,
etc—we tblnk these were qnesticnis which
Aould be submitted to a Jury, in order that
thegr may det»mlne whether the age and
capadtT of ' the minor were such aa to bring
him witbln the rule where the master is not
bound to give flie servant warning In cases
of obvious dai^er.
Judgment reversed. Tbe othw Justices
concur, except
FISH, €. and ATKINSON, J. (dissent-
ing Considering on^ tbe allegations of the
petttton that are well pleaded, and not tbe
mere conclusions of tbe pleader, we are of
tbe opinion that tbe petttton does not set
fttrtb a cause of action, and fbAt the court
property sustained a general demnrrw Ibereto.
a40 Oa. 411)
SmOBB T. SANTA PA1TLA COMSfBBCIAL
00.
(Supreme Court of OeoniBja. July 21, 1918.)
(Byllabu* by the Court.)
Sales (| 164*)— Liabilitt fob Fbxok— Pab-
TIAI. FULEILLUBNT BT SeLLEB.
A lait to recover for a shipment of only a
part of the goods ordered and sold (a quantity
of walnntB) upon a contract sigoed by tbe seller
and the purdiater, containlDg the stipulation
tfaa^ "owmg to ImpossibiUty to estimate quan-
tity of No. 1 bard-shell grade, or either of the
second grades, which wiU be produced, render-
ing it impracticable to agree as to prorating
thiesiB grades, it is understood tbat oil orders
for No. 1 hard-riisll. No. 2 hard^hdl and No.
2 aoft-shell widnats are condttloDal, and to be
accepted provided available at the time the No.
1 BoEt-sbeil variety is shipped" (all of tbe wal-
nuts ordered falling witbiu tbe grade referred
to in tbe part of the writing quoted), was de-
murrable, It appearing that the defendant de-
clined to receive the part of the order shipped ;
tta, wbether tbe stK)u]atioD tbat "all orders
• • • are conditional, and to be accepted
{trovlded available," means tbat it was abso-
ately optional with tbe seller to fill the orders,
be being the Judire as to whether the walnuts
ordered were available or not, or whether tbe
quoted stipnk,tion should be construed as mean-
ing that, if the goods ordered were "available,"
the seller was bound to fin the ord», the seller
could not, by only partially filling the order
and delivering a part of the goods ordered, uffoa
a refusal by the purchaser to accept the goods
shipped In partial fulflllment of tbe order, re-
cover tbe value of the goods so- shipped.
gld. Note.— For other cases, see Sales, Cent.
. II 886-890; Dec Dig. | 161.*]
Error from Superior Oour^ Fulton Coun-
ty; Geo. L. Bell, Judge;
Action 1^ tbe Santa Paula Commerdal
Company against H. Ll Singer. Judgmoit
for plolntUt, and defendant brings mm.
Reversed.
The suit was to recover $601.75, which it
was alleged the plalntUf bad lost In conse-
quence of the refusal of the defendant to
take a shipment of 120 saclcs of walnuts,
valued at $1,695.01. After having endeav-
ored to Induce the defendant to take the nuts.
It Is Insisted he was bound to take under the
terms of a contract hereinafter set forth,
and after due notice to the defendant the
plaintiff sold the nuts for $1,093.29. The
contract upon which the suit is predicated,
ao far aa material to tbe Issues Involved, Is
as follows:
"Santa Paula, CaL, Sept 21, '07.
"H. L. Singer, Atlanta, Qa. (buyers) have
this day bought, and the Santa Paula Com-
mercial Osmpany (a corporation) has sold,
the following quantities of walnuts to be
packed in bags of about 100 pounds each,
at the prices herein named:
"Sacks CJalifornla No. 1 soft-shell walnuts
at per pound: 50 sacks California No. 2
soft-shell walnuts at 12; 75 sacks California
No. 1 hard-shell walnuts at 14^; 50 sacks
(California No. 2 hard-sheU walnuts at 11^.
"Pacific weights, as per terms and condi-
tions herein stated, to be delivered. F. o- b.
common shipping point, (Dallforula, crop of
1907. Terms: Net cash, sight draft, with
bill of lading attached; draft to be held
pending arrival and Inspection of shlpmoit.
Quality: Good average of tbe section where
grown, season stated, and aasodatlon's grad-
ing or eguaL
"(1^ All sales are based on estimate of
the season's crop for the No. 1 soft-shell
grade; and in the event of the crop falling
abort from any cause, delivery will be made
proportionately or in filled orders In hand
when sbortage Is ascertained.
"(2) Other Grades.— Owing to impossUdl-
ity to estimate <iuantity of No. 1 hard-sbell
grade or either of tiie second grades which
will be produced, rendering it imiwactlcable
to agree as to prorating these grades, it la
understood tbat aU orders for No. 1 hard-
shell. No. 2 hard-sbell, and No. 2 soft-sbeU
walnuts are conditional, and to be accepted
provided avaUable at the time tbe N& 1
soft-shell "Variety is shipped.
"(3) Owing to crops usually furnishing at
least 10 per cent of Na 2 soft-sbell variety,
it la agreed by buyers that seller has the
•For otbsr oasM sss BUM tople sad SMtlon NUMBER la Deo. Dig. A Am. ^t- j^,^p-t#!<^^^jl^9^fi@sas*
BINOBR BANTA TAUUL OOlUCSROIAIi OO.
1096
optieii of Including In deliveries nuts of this
grade up to 10 per cent, of the entire shipment
It «dler is enabled to obtain orders for a
conrtderable quantity of No. 2 Boft-shell wal-
noto, tt will not avail itself of Its option of
shipping 10 per cent of this grade to buy-
ers, preferring that same should be omitted."
The foregoing paragraphs are numbered
for convenience of reference in the opinion.
The sUpments alleged to have been made
were as follows : 20 sacks of California No.
2 soft-sbell walnuts, at 12 cents per pound,
amounting to $282.60; 60 sacks of California
No. 1 hard-shell walnuts, at 14% cents per
pound, amounting to f 787.64; SO sacks of
Oalitorala No. 2 soft-shell walnuts, at 11%
cents per pound, amounting to $624.80. The
defendant d«nurred, on the grounds that the
petition set forth no cause of action, that
it showed on Its face that the platntift had
not fulfilled the terioa of this contract, aud,
further, that the contract sued upon was
void for want of consideration and for lack
of mutoality. The court overraled the de-
nnner. and the defendant excepted.
RoU. a ft PhlUp H. AlBton, of Atlanta, fbr
lAainttff In error. Hamlltm DoOglas and O.
B. BeynoldB, both of Atlanta, for defradant
In exTor.
BECK, J. (after stating the tects as above).
Paragraph 1 of the contract relates to the
sale of walnuts classified as "No. 1 soft-sbell
grade." No walnuts of this grade were or-
dered. No part of that paragraph qualified
the portions of the contract contained In par-
agraph 2 or paragraph S, and we cannot
agree with the contention that paragraph 2
of the contract should be read in the light
of paragraph 1. There la nothing In the
wording of paragraph 2 or paragraph 8
which makes the construction of the terms
of either of these paragraphs depend upon
the interpretation of the terms of the other ;
but, on the other hand. If we make the ex-
preeaion contained In paragraph 1, "AU sales
are based on estimate of the season's crop
Cor the No. 1 soft-shell grade," apply to the
next two paragraphs, the contract becomes
.imintemglbl& Oounsel for the defendant In
error advances the smsestlon that puagraidi
2 should be construed together with para-
graph 1, and that, thru oonstmed, the con-
tract means that "at the time when, dispos-
ing of the crop, the 1907 shipments were
made of No. 1 soft^ell, at that time defend-
ant In error had the right to ship all or any
part of orders on hand for grades falling
under proviso No. 2." This construction is
not sound, because in twragraph 2 stipula-
tioQS are made which authorize the seller
to fill orders for the grades referred to In
paragraph 2, independently of any of the
stipulations which are contained in paragraph
1; It being expressly provided In paragraph
2 that "all orders for Now 1 bard-shell,
2 hard-shell, and No. 2 soft-shell walnuts are
conditional, and to be accepted provided
available at the time the No. 1 aoft-shell
variety Is shipped." Under this proviso it
was declared that the seller was not bound
to ship any part of the order falling under
the grades mentioned in paragraph 2 of the
contract, unless they were "available at the
time the No. 1 soft-shell varied la shipped."
And the reference In paragraph 2 to "the
time the No. 1 softrshell variety Is shipped"
does not have the effect of making the stlpa-
latlon In paragraph 1 in reference to the last-
mentioned grade in any way qualify the stip-
ulations in the other paragraphs pertaining
to any other grades. The only effect of the
proviso in paragraph 8 was to give the seller
the privilege of substituting as much as 10
per cent of the No. 2 soft-shell grade in any
other grade order, and It did not bind him
to do that or anything else. If there is to be
found any binding obligation under this so-
called contract upon the seller. It Is to be
found In "paragraph 2."
Under the stlpulatlonB in paragraiA 2 that
"it ia understood that all orders for No. 1
hard-sbeU, No. 2 hard-shell, and No. 2 soft-
shell walnuts are conditional, and to be ac-
cepted provided available at the time the No.
1 softrshell variety Is shipped," either the
seller had the privilege and option, in the
first place, of shipping the entire amount of
each grade ordered, or of not making any
shipment at all, or, In the second place, the
stipulation quoted meant that If the grades
ordered were "available," the seller was
bound to fill the order. But whether the
first or the second construction Is placed up-
on this paragraph of the contract and In
that paragraph is embraced all of the grades
ordered, the seller could not under the first
construction, by shipping a part of the order,
supply the consideration, so as to give the
contract the element of mutuality, wtdch was
wanting at the time of Its execution, If Uie
contract meant that it was absolutely in the
power of the seller to ship or not; he being
the Judge of whether the grades mentioned
were available or not Or, if the second con-
struction Is placed upon It, that the seller
was bound to ship, If STallable, still we do
not think that he could, by a partial shlp-
moi^ fnlflU his obUgatttm under the con-
tract If the walnuts were availably he was
bound to fUI the order as given ; if not avail-
able, thm' he was not bound ; and If be at-
tempted to fnlflll his obllgattona under the
contract by sending lees than the entire or
der, the purchaser was not bound to receive
It Consequently, it appearing that tbe seller
had shipped and offered to deliver only a
part of the quantity of walnuts ordered, he
was not entitled, upon a refusal by the pur-
chaser to accept his partial filling of the
order, to recover.
1 Judgment reversed. All the Justices con-
Icux.
Digitized by Google
as 6*. App. 154)
HIGK8. BbaMt r. J. A. WABF^ILD tt CO.
(Now 4.783.)
(Conit of AppMb of GMCgia. Aug. 11, lOlSO
(8ylldbu» h9 the Court.)
1. SBmm AND GoasTABXM (| 101*>— Du-
nU— liUBXIOTT.
"An officer like « sheriff most b« diligent
as well ai honest" Where an attachment is
placed in the hands of the Aeriff, to be levied
XQ certain described personal propert;, it ii
duty to make a diligent search for the prop-
erty, and. in the absence ot a statutory reple^
bond, to seise and hold the same. If the aneriff
makes no search, bat relying upon the state-
ment of the defendant that tiie property ia in
his possession, and that when the officer calls
for ft he will produce it, or will give liim the
bond, makes an entry of a levy on the attach-
ment, leaving the properW in the defendant's
possesalon, the sheriff on failure of the defend-
ant to produce the property or give the bond
is liable to the plaintiff for any damage* result-
ing from the neglect to perform his official duty.
[Eld. Note.— For other cases, see Sheriffs and
OonsUbles, Gent Dig. 1 174; Dec. Dig. S 101.*]
2, Shebhtb anu Coiibtablzs (i 138*) —
Breach or Dijtt— Dauaqkb — Bukdkit of
Pnoor.
Where an attachment Is placed In the
hands of a sheriff to levy npon personal property
therein described, and he does not make a levy,
w after making a levy, leaves the property in
the defendant's possenion, wiAout taking the
statutory bond for its retention, and the prop-
erty cannot subaeqiaently be found, a presump-
tion arises that the plaintiff in the attachment
was injured and damaged, and, on the trial of
a rule against the sheriff, the burden is on him
to show to the contrary.
[Ed. Note.— Fw other case^ see Sheriffii and
Constables, Cent Dig. H ^0-286; Vn, Dig.
t 188.*]
error from City Court of Ogletbozpe; R.
L. Qreer, Judg&
Action by 3. A. Warfield & Company against
D. A. Hlcka, Sheriff. Judgment for plain-
tiff, and defendant brings error. Affirmed.
3. 3. Ball & Son, of Oglethorpe, for plain-
tiff In erxor. F. Cbamben ft Bant of Maoon,
tm defendant In error.
HIIjLv a J. The qoestloofl In thli case
arise on a role against a sheriff for fail-
ure to take the statutory bond for property
lerled on under an attachment for purchase
money. The Judge, who tiled the rule with-
out tiM Intervention of a Jury, made it ab-
solute; and the writ of error challenges the
correctness of that Judgment. The tacts
were not in dispute. Briefly stated, they are
as follows: Warfield ft Oo. sued out an at-
tachment for purchase money, and placed U
In the hands of the sheriff to be levied. The
'Sheriff made an entry of levy on the proper^
described therein. Subsequently a declara-
tion In attachmrat was filed, and a final
Judgment taken In favor of the plaintiff for
the property, and tbe execution Issued there-
on was also placed In the hands of the shei^
1ft It appears from the evidence tJiat th«
wtry of levy made by the sheriff on the at-
tachment, according to his answer to the
role, was made by him npon the statement
of the defendant In attachment that the sher-
iff could not find the property described to
levy on It, but that It wnn In the defendanfa
possession, and that he would dellvw the
property to the sheriff on demand, or would
give him a statutocy bond therefor. Upon
this statement and promise of the defendant
the sheriff made the entry of levy. The de-
fendant telled and refused to d^ver the
property deeoUwd In the entry of levy, and
also refused to give Oie statutory bond, and
thereupon this rule warn brought syilnst thm
sheriff.
[1] We think It Is very clear that the Judff.
ment of the trial Judge was correct Tbi&
answer to the rule set up no defense In law
whatever, either for the making of the entry
of levy, which was untrue^ or for (lie failure
of the sheriff to take the statutoiy bond.
It was the plain dnty of the shviff, when the
attachment was placed in his hands, to make
diligent seardi for the property, uid, when
found, to sdze It He had no right to rely
upon the statement of the defendant In at-
tachment that he would deliver the property,
or give the statutory bond. The duty of
the sheriff was to make the levy, seize the
proiwrty thereunder, and demand the bond,
and, on a failure to give It, it was his duty
to take possession of the property and keep
it to answer the attachment "An ofBoer
like a sheriff raust be diligent as well as
honest" He had no right to take the mere
word or promise of the defendant in attach-
ment to produce the prop^ty or give b<Hid,
and if he did so, he did so at bis peril. The
statement in the sherUTs answer that he
made the entry of levy on the attachment
through mistake. In that the entry recited
that the property levied npon was in the poe-
session of the defendant, when In fact It was
not in his possession, construed with the
further allc^tion made by the sheriff, In
his answer, that he made this entry relying
solely npon the defendant's statemoit that
the property was in his possession, and that
he would deliver It or give the statutory
bond, shows that the untrue entry was made
through lack of diligence on the part of the
sheriff. The sheriff Is liable to be ruled for
his failure to take the replevy bond In an
attachment case as required by law. Ford
V. Pericerson, 69 Ga. 359; Beyles v. Bank. 96
Ga. 706, 22 3. E. 582. If a sheriff makes a
false return, he Is liable to answer in dam-
ages to any one who Is injured thereby.
Duncan t. Webb, 7 Ga. 187. And if a sher-
iff, when he seizes property, turns It over to
the defendant without taking a bond, he does
so at his peril Steamboat Co. t. Bartholomes^
67 Ga. 456. According to the sheriff's answer,
he left the property in thcf defendant's posses*
slon merely upon the promise of the defendant
that he would produce it or give the bond.
This was a most flagrant failure on the part
•For etlnr easM see mio* tople and seoUoa NUMBBB la Oee. Dig. A Am. Dig. ^^^^^^^f^^f^^^*'
Ga.)
MOOBK T. OAJfVXBT MOWfaAOK 4 PBpOBIT 00.
1097
of the sberlfl to perform bis official duty, and
to take the bond or seize the property. The
only excuse be coold give for not making
the levy was that after diligent search be
can find no property to lery npon. Tha en-
try of lery was calculated to deceive the
plaintiff. He relied upon this official state-
ment that the prioperty of the debtor had
been seized by the sheriff, and was lulled
Into security, and thus the defendant In at-
tachment was enabled by the misconduct of
the BherlfF and the want of any further
ectlTlty on the part of the plaintiff to make
away with the property, and to leave the
plaintiff remediless, especially as the defend-
ant is attachment was insolvent There
can be no donbt on this branch of the case
that the trial judge properly made ttie rule
absolute; the answer of the sherUT setting
VP no defense whatever.
, [I] It Is said. In the next place, that there
la no allegation or proof that the platntlfT
was Injured or damaged by this mlacondnct
at the sheriff. It has been held that when
an execution has been placed In the hands
of an olBcer for eollectlon, and he falls to
collect It In the time prescribed by law, the
law DEesomea that the plaintiff was Injured,
and, npon a rule to show cause, the burden
la npon him to shov that his n^lect has
caused do injury to the plaintiff. Beevee t.
Pariah. 80 Qa. 222, 4 8. ID. 768; Hlxon t.
Callaway^ 2 Oa. Appw 680. 68 a BL 1120. Ii^
respective of Oils prraumptton, we think
that the fhct^ evm as set up In the answer
of the sheriff, show Out the ^alntlff was
injured by the aherlff*!, failure to perfbrm
Ilia dnt7.
Judgment alDnned.
(18 Oa. App. U»)
OOOPKB T. OITT OF FT. TAUAT. <Nol
4,082.)
(Court of Appeals of Qeorgls. Aug. 11. 1918.)
(Syttabut &v th9 OowtJ
X. iNToxiCATiNa InqiTOBs(|236*)— VioLATion
or OSDIKANCB— EVIDENOB.
Where the accused Is cbareed with a vio-
latlMk of a valid mnnidpal ordinance prohibit-
ing the keeping in iMMneBsion of intoxicatiag liq-
aors for the purpose of illegal *ale. the posses-
lion of the IlquorB and proof of one sale will
authorise a conviction. Sawyer v. City of
Blakely. 2 Ga. App. Wd, 68 8. B. 809.
[Ed. Note.— For other cases, see Intoxicating
Igaors, CeoL Dig. {{ 80(Mt22; Dec. Dig. jj
2. IifTOXiOATiKa tjquoBS (SI 236, 238*) —
ViOIATION or OBDXNAROK— ETinSNCK.
Tlie case ii squarely within the prindide
of nomerouB dedsioDs of the Supreme Oonrt
and of this court, that when one Is given money
to purchase intoxicating liquor for the person
from whom the money ii received, and the
recipient of tte money goes away, and snbse-
Quently returns with toe liquor, and delivers it
to the person giving Um the money, a prlnia
fade case is made that the one taking the matt.
ey and delivering the liquor hr either the aeU-, l
or intenatcd In the sale, and tha harden la ^ \
•yor otbw aasM sm sum topic nd ssetlon N^I^^-'^bw. Dig- * Am. Dig. |C«r-He. SwUs * Rsp'r ladmi
on him to show to the contiaty. Where
only effort to carry this harden Is by the state-
ment of the BCcoaed, the qaration Is exclusively
for the jury. Bray t. City of Commerce, 6
Ga. App. 60Q, 63 9. E. 696, and citations.
[Ed. Note.— For other cases. Bee Intoxicating
Ligaore, Cent. Dig. H 800-822, 824-880; Dec
Dig. 18 236, 23&*']
3. Vkboiot Sustainkd.
Mo error of law la complained of, and the
evidence supports the verdict.
Error from Superior Court. Huston Coun-
ty; H. A. Mathews. Judge.
R. L. Cooper was convicted of violating a
city ordinance, and from a judgment of the
superior court brings error. Affirmed.
R. N. Holtaeiaw, of Ferry, for plalnttfl in
error.
HIXJ^ OL J. Judgment affirmed.
0> Qa. App. M)
MOOBE v. OALVBRT MORTGAGffl ft DE-
POSIT CO. (No. 4,840.)
(Court of Appeate of Georgia. Jnly 8. 1018.)
1. Appkal and SteBOB n 870*)— Final Jnoo-
MBNT—BxcBPTio NS— Review.
Where a bill of exceptions contains a valid
exception to a final judgment, all proper and
timely ezceptioDs to Interlocutory rulings will
be considered without reference to whether the
exception to the final judgment is meritorious.
[Ed. Mote. — For other cases,
Error, Cent Dig. |l 8461.
8512; Dec Dig. f 670.*]
2. PUADINO (I 263*)— ANSWKB— AUmDMEHT.
Where a defendant in his original answer
makes no reference to certain paragraphs in
the petition, containing material averments, an
amendment to the answer expressly denying
such paragraphs is a sufficieat joinder of issue
thereon, altbougb there is in the amendment no
withdrawal of the admissions of the para-
Saphs in the orii^nal answer, implied from the
llnre to answer them.
[Ed. Note.— For otiier cases, see Pleading,
CenL Dig. I 802; Dec Dig. & 263.*]
3. Plcadino (I 121*)—An8wn— OumAL
' DKRiAir-FoBic— Admission.
An answer, averring merely that the de-
fendant can neither admit nor deny a specified
paragraph, without adding that he Is without
■uJBcieDt information upon which to base either
an admission or denial, must be treated as an
admission.
[Ed. Note.— For other cases, see Reading,
Cent Dig. H 24&-248: Dec iMg. | ISL*]
4. Plbaoino ({ 129*)— Answbb — DnxiAi,—
Aduibsion.
An allegation In a petition In reference to
a matter peculiarly within the knowledge of
tiie defendant must be expressly draied, or rise
It 1^ be taken as having been admitted.
[iaid. Note.— For other easeiL see Pleading.
Cent. Dig. II 270-276; Dec IMg. { 12a*]
5. Bdildino and tiOAN AssooiATiona (I 88*)
—Loans— Usubt—Plkaoing.
As the answer, properly construed, admit-
ted tiiat the plaintilt was a building and loan
association aw authorised as such to do busi-
ness in this state, and as It appeared from the
answer, that the notes sued on did not exceed
an aggr^ate of the prindpal sum and 8 per
cent, toterest thereon for the fidl period of the
loan. #vided bito monthly iastsBments aa rap-
Digitized by
,y Google
Tim
18 SOUTHBASTERN REFOBTBIB
'restttod by tbe notes med on, the trauoetion
mi not nsarlom^ and tiie coart did not err in
'strikinf tlM defoidsnt'e aniwer and directinff a
verdict for the tfalntiff for tlw full amount
>aaed for.
[Bd. Note. — For other cases, see Building and
I^oan Assodations, Cent. Dig. M 43-17,
Dec Dig. I 33.*]
Error from City Court of Fitzgerald;
D. B. Griffin, Judge.
Action by the Calvert Mortgage & Deposit
Company against Mrs. A. L. Moore. Judg-
nmt for plaintiff, and defendant brings er-
ror. Affirmed.
McDonald & Grantham, of Fitzgerald, for
plalstitt In ^or. C. B. Teal and L. Ken-
nedy* both of Fltzsttaid, for defendant In et-
ror.
POTTLE, J. The petition alleged that the
plaintltt was & building and loan association
Incorporated under the laws of the state of
Maryland, and that the defmdant was in-
debted to It upon 43 promissory notes for
93025 each, b^ng part of a series of 72 notes,
all dated September 8; 1908, the first matur-
ing October 8, 1908, and the others matur-
ing the 8th day of each succeeding month,
respectlTely, tot 71 consecntlTe months there-
after. It was further alleged that paymmt
ot the notes was secured by a deed to real
estate^ CopleB of tiie notes and a copy of the
deed ware exhibited with the petition. In
each note it Is recited that the plaintiff Is a
building and loan association, that the de-
fendant Is a member or stockholder In the
oompany, and that the note Is executed In
paymuit of dues on stock and Intoest on a
loan. In tlw deed it Is recited that the iftaln-
tifl is a building and loan assodatlon, and
that ttM defaidant has subscribed for 15
shares of stock, par value of f 100 eacSi,
and has procured from the company under
Its charter and by-laws an advance or loan
of fl,SOO and has esecuted a series of notQS
correBp<mding to those described In the pett-
tloa It is further recited in the deed that,
nptm defhult In tbs poynmit of any of the
notes, the company shall have the rli^t to
declare the whole d^ due. BefOTence Is
also made In the deed to certain t^-laws of
the company, providing for the maturity of
the stock. The plaintiff prayed fbr a recov-
ery of a general Judgment on the notes and
for a special judgment setting up a lien on
the laud described In the deed. In each of
the notes it Is stipulated that the maker
agreed to par all costs "including tea per
cent as attorney's fees." In the deed it is
stipulated that in the event legal proceedings
should be adopted for the collection of the
debt the maker should be liable "for ten
per cent on the indebtedness hereby secured
as attorney's fees." The defendant answered
admitting all the allegations in the petition
OKKPt that paragraph in which the right
to recover attomey** fees was (Saimed;
but the fact that written notice was gliea
as required by the statute in order to Mad
the defendant for the payment of attom^*ii
fees was not denied. The defendant further
answered that she bad paid 29 of the series
of notes as set out in the petition and that
the loan was infected with usury; the com-
pany having exacted about f350 more iatw-
est than It was entitied to.
The defendant amended her answ^ by
denying the Indebtedness as set forth in the
petition by averring that she was unable
either to admit or to deny, for want of suffi-
cient tDformaUoo, that the plaintiff was a
corporation of the state of Maryland, organ-
ized for the purpose of engaging In the bosl-
ness of a building and loan association;
and also averring that, for want of suffi-
cient information she could neither admit
nor deny .the allegation that she had made
default in the payment of the notes, and that
the company had notlfled her of its option
to declare the whole debt due. The amoid-
ment further answered that the defendant
had only received "In money from the plain-
tiff company the sum of $1,425." The usury
claimed was set forth In detail In the an-
swer ; it being averred that the def aidant
had received only $1,425, to which should
be added $9.61 for interest up to maturity
of the first note, from whldi should be de-
ducted the amount of the first note. Interest
is then calculated on this new principal to
the maturity of the second note^ and so on,
until the last note. It is averred In the
amendment that a large part of these notes
had been paid from time to time, and that
the def^idant Is really indebted to the plain-
tiff in the sum of $766.91; that aU of the In-
d^tednees claimed by the t^aintiff in Bxeem
of this amount Is usurious. It is taiOux
averred that the scheme adopted by the
plaintiff in selling the defendant stock was
a mwe subterfi^^ to cover up the usurions
transaction, and that the plaintiff Is in fact
not a building and loan association, or au-
thorised to do business in Georgia under the
laws of this state.
The trial Judge Btenek tJie d«Cftndant^s
original and amended answer and directed
a verdict for $1,012.75, principal, $10L02 in-
terest and $111.37 as attorney's fees, togeth-
er with all cost and the further finding "In
fftvor of plaintiff's Uen upon tl^ premises
described in tAaintilTa petition.*' A motion
for a new trial, on the general ground Out
the verdict was contrary to die law and
the evidence, was overruled, and the defend-
ant has filed her bill of exceptions assigning
error upon the striking of her answer, upon
the direction of the vu-dlct and upon the
overruling of the motion for a new trial.
[1] 1. A question of practice Is suggested
in the brief of couns^ for the defendant in
error. The direct exception to the direction
of a verdict cannot be considered because it
•rer otbw esMs *m sum tovle and ssotlon NU1C8BR In Dw. Die. * Abl Dig.
MOOBB ▼. OALYBBT MOBT0AaB A-DXPOSXT OO.
came too late. The motion for a new trial
la without merit, because, if the court prop-
erly Btrack tlie defendant'a answer, the ver-
dict In the plaintiff's favor was the logical
reeolt, and it cannot be said to be contrary
to the evidence- It la suggested that we
ongbt not to consider the assignment of error
npon the striking of the defendant's answ^,
because there is no meritorious exception to
a final Jndgment. or to one which vronld
have been final If it had been roidered as
claimed by the excepting party. The reply
to this is that the Judgment overruling the
motion for a new trial Is a final Judgment,
and, while the exception to It Is not merito-
rious, it is a sufficient assignment upon which
to fasten a complaint, made by proper and
timely exceptions, that the court erred In
striking the defendant's answer. If the
Judgment striking the answer was erroneous,
then everything else that took place during
the progress of the trial was nugatory. An
exception to a final Judgment was necessary
to enable us to consider the complaint that
the eobrt erred In striking the defendant's
answer; bat, having served this purpose, It
may be wholly disregarded. This suggests
a reason why there might not properly be
l^slation dispensing with the necessity of
making a totally naeleea esseptlon to a final
Judgment In midi a caae as the one now In
hand.
[2] 2. The petition contained 16 para-
graphs. In the original answer the defend-
ant admitted paragraph 1, relating to her
residence, admitted the execution of the note
sued on, and denied par^pnph IS. In the
original answer no reference was made to any
of the other paragraphs in the petition. By
ammdment to the answer the defendant de-
nied, by nnmber, certain of the paragraphs
to which no reference had been made in the
original answttr. In paragraph 6 of the
petition it was alleged that the plaintiff was
a corporation '^nrganlsed for the purpose and
engaged In the burtness of a bnlldtng and
loan assodatltm.*' In the elghtti jwragraph
It waa aUeged that the def^dant had nuide
default in the payment of fonr of the notes
sued on, and that the plaintiff had notified
her of Its option to declare the whole debt
due. In reference to these two parmraphs
It la allc^^ in the amended answer that "de-
fendant can ndther admit nor deny para-
graphs 6 and 8 of the iflaintiff's petltton."
By way of farther answer, alter setting forth
a long calcnlatlon for the pourpose of showing
that usury was diarged, tlie defendant, in
paragraph 6, arerred that the sdieme adopt-
ed by the plaintiff 'in proposing to sell hw
sto^ In said company, was and la a moe
snbterftige to corer -up the nsurloua transac-
tion." It la suggested in the brief of ooonsd
for the defeidant In error that, under a
proper coDstmcttoo ot tlie defendant's an-
swer, she ought to be held to have admitted
all of the substantial avwmoitB in the p^.
tlpn. It la contended that^ In view of ^
fact that the original answer in effect admit'
ted all of the allegations except the claim'
for attorney's fees, the defendant cannot, In
the amendment, by a mere general denial
of certain numbered paragraphs Join issue
with the plaintiff without expressly with-
drawing the admissions made in the original
answer. By tailing to answer certain para-
graphs in the petition, the defendant is held
to have admitted them; but the necessary el-
fect of the amendment in which these para-
graphs are expressly denied is to withdraw
implied admission resulting from the failure
in the first Instance^ Where, In an answer,
a paragraph Is admitted, if the defendant
wishes to deny this paragraph in an amend-
ment, the better practice would be to ex-
pressiy withdraw the admission. Withdraw-
als by Imidlcatlon, Uke nowala Inwltca-
tlon. In statutes, are not favored but such
withdrawals will be allowed where the only
reasonable constmctlon to be given the
amendment Is that the defradant Intended
to withdraw an admission previously made.
Thla la the only conatractlon whldi can be
given to an amendment which expressly de-
nies an averment laevion^ admitted. .
[I] 8. The main owtentlon whldi the de-
f aidant sought to make in her answer waa
that the plaintiff was not a building and loan
association within the meaning of the stat-
utes of this state, authorized to aggr^te at
the date of the loan the principal and interest
for the ^tire period of the loan and divide
the sum of the principal and interest for the
entire period of the loan into monthly or
other installments, or take notes therefOr, if
in SO doing no greater rate of interest than 8
per cent was charged. Civil Code 1910, |
2878. The vital question, therefore, was
whether or not the plaintiff was a building
and loan association within the meaning of
the statutes of this state which authorize such
assodatlonB to engage In transactions of the
nature above Indicated, even though in so do-
ing a greater rate of interest than S per cmt
on the principal sum loaned Is charged. It was
distinctly alleged in the petition tliat the plain-
tiff was an association of this character. If
the defendant desired to Join Issue In refer-
ence to this matter, it was Incumbent upon her
to expressly deny this averment, or to state
that for want of sufflcl^t information she
could neither admit nor deny the same.* She
did nether, but contented hersdf with an
answer Uiat she could "neither admit nor de-
ny" the arerment in reference to thla materi-
al matter. We have recmtly held that snch
an answer must be taken as an admisslim.
8ow Bell Telephone ft Teiegnsii Oo. t. Sham-
es, 12 Ga. App. 468, 77 S. B. 812. It Ifl only
when the defendant has no Informattoi In
reference to a matter alleged in the petition
that he can nether admit nor deny ; and, be-
fore such nxi answ« will be accepted, he must
allege that he makes it because he la without
foffldsnt Information to "enable Urn. tmfb-
Digitized by
Google
lioo
folly either to admit or to deny. Aa the de-
fendant's pleadlngg stood at the trials she
was In the attitude of admitting the allega-
tion tHat the plalntlfl was a building and
loan assodatlon, authorized nnder Its charter
to do business as such In this state. Nor do
the other averments in the amended answer
help the def^dant, In the ligjit of the ad-
mission that the plaintiff was a ball ding and
loan association, the allegation in paragraph
B that Uie adieme adopted by It was a mere
BObterfnge to cover up an usnrKms tnmsac*
turn most be taken a a mere condusion of
the pleader ; and the facts set forth In the
answer to support this conduslon are not
sufficient for this purpose, If the plaintiff la
In fad; as the defendant admHa, a building
and loan association.
[4] 4i The genml aTerment in the amend-
ed answor that the defendant "can neither
admit nor deny" the allegation that she has
made default in the payment of four of the
notes, and that Qie plaintiff had notified her
at Its Intoition to dedare the whole debt
due, was Insnfflctoit, for two reasons: First,
because, ae above Indicated, such an answer
most be regarded as an admission ; and sec-
ond, because the allegations, being In refer-
ence to matters. peculiarly within the knowl-
edge of the derendant, called for an express
denial by her. Raleigh ft Oaston Railroad Co.
V. Pullman Co., 122 Ga. 700, 60 S. B. 1008;
So. Bell TeL ft TeL Oo. t. 8hauo% nq^ra;
Civil Code 1010, I G637.
[I] fi. WhU« the defendant denied llabUity
for attorneys fees, she did not deny having
recefrred the preliminary notice required by
tile statute In order to bind her by the stlpu-
latltm In the notes to pay attorney** fees.
The question whether the plaintiff had charg-
ed usury was a mere matter of calculation.
In one paragraph of the answer the defend-
ant avers that she received from the plain-
tiff only $1,426 in money. This was an
equivocal answer. The plaintiff alleged that
It had loaned the defendant «1,600. If
this was not tm^ the defendant should have
unequivocally denied It. Taking the answer
most strongly against the defendant, as it
must be done, it does not appear but that the
defendant received $1,426 In money, and the
other $76 in some other valuable considera-
tion. Upon the basis of a loan of $1,S00^ the
plaintiff was entitled to charge $720 Interest,
and to divide the aggr^te of principal and
interest, to wit, $2,220, into 72 montUy pay-
ments, each of which would have amoonted
to $30.83. As the defendant was required to
pay only $30.25 in monthly installments. It Is
apparent that no usury was charged. As to
whether the defendant could raise the ques-
tion that the plaintiff was not a building and
loan association, after having contracted
with It as such, and In reference to the quea-
thm upon whom the burden of proof rested
upon this issue, see Mcintosh v. Thomasvllle
Real Bstattf & Improvement Co., 138 Ga. 128,
74 S. S. 108& The record in the present caas
does not call for a decision upon either oC
these questions. The court did not err in
sMklng the defendant's answer and directing
a verdict for the full amount of prlndpal, In-
terest, and attorney's fees sued for. The
stipulation In the notes In reference to at-
torney's fees was saffldenUy definite and
authorized a recovery oC 10 per cent of the
prlndpal and accrued Interest Hamilton v.
Rogers, 126 Ga. 27, 64 S. E. 026. There Is no
suffldent asBlgnmeiit of error In the record
to call fbr a decision in reference to the
power of the d^ court to awanl a special
Judgment against the land described in the
security deed. np<m tlUs qnestira, howev«,
see Edmfleld v. Bank <tf Mlllen, 7 Go. Affp,
646, 67 S. B. 896.
Judgment affirmed.
(18 0«- App. 171)
W. D. BARBER ft SON t. SINGLBTART
et bL (No. 4,649.)
(Court of Appeals of Geoigia. Aog. 12, 1018.)
(SvUaiut »y the Court.)
1. Salxs <| 267*)— WAKBAnrT— CoNSrancnoii.
An express warrsnty will exclode an Im-
plied warrsnt; on the same or a closely related
Bubject, but does not exclude an imphea war-
ranty on an entirely dllferent subject Conse-
quently It was not error for the trial jndge to
charge the Juiy that the defeadants had tbs
right to rdy upon either an Mpreis warranty
or an Implied warranty. In a case in which the
express warranty was confined to the age and
souudoess of the mule, and, the mul« havlDg
been porchased for a plow molsk there was a
plea that he was worthless as a woik mnl^
and evidence supporting that allegation, to the
efF^ that tiie mule would not plow.
(Ed. Note.— other cases, see Sslea, Oent
Dig. II 700-761; Dec. Dig. | 267.*]
2. SAlas (I 267*)— BviDsivofe (M 213, 266*>-
AOIXOK FOB PBZCK— COUfBOKISB Oms.
The .fact tbat the maker of a not& given
for the purchase price of a male, offered to re-
tam the mula and to pav $80 for the hire there-
of, this offer beln^ declined by the seller, did
not require a findmg in favor of the plaintiff
for $30 or any other sum. So far aa appears
frcoD the record, the defendant's proposition
was an offer of compromise, and could properiy
have been excluded from the tesdmony.
[Ed. Note.— For other cases, see Sales, Cent
Dig. H_760, 761; Dec. DlgTl 267;« Evidence.
Cent Dig. {} 745-751. 7K. 102^-1050; Dec.
Dig. « 218. i85.»I
8. APPUL AND Bbrob (i 1002*)— TBBtncff-
C<|^FLI0TXNQ EVIDBRCB.
The evidence authorized the verdict
[Ed. Note.— For other cases, see Appeal and
^r^Cent Dig. H 303S-S887; DecTlMg. |
Error txom City Gowt of Cairo; 1. K.
SIngletary, Judge.
ActloB by W. D. Barber A Son against O.
H. SlBgletary and others. JndgniMit foe
defendants, and. plaintiff brings error. At-
flrmed.
T8 BOOTHEAdTBKi^ ABPOBO^tt
•mr otae^MBMS ssssMMtepl* tad sscAdbnOUBBR ib Oso. Dig. * Am, big. KM>-2«a. Smus A
Digitized by VJ
W. D. BkUCBER A SOK T. SINOLBTABT
liol'
K. L. Ledford. of Oalro, for plalntlfl In
vnoT. R. 0. Bell, Ira Carlisle, and J. S.
Weatb^ an of Cairo, for defendants In
error.
RnSSBLIi,:J. Barber & Sons sued O. H.
Slngletary and Berry Stngletary upon a prom-
issory note, wblcb recited that It was given
for pnrcbase money of a certain mnle. Tbe
note also created a mortgage Uen upon the
mnle. The mortgage had been foreclosed,
and the suit proceeded for the balance due
npon the note after the proceeds of the mort-
gagi. sale bad been credited npon it The
jury returned a rerdlct in favor of the de-
fendants. Barber & Sons made a motion for
a new trial, and tbey except to the judg-
ment re{ualng It There are two aadgn meats
of error.
[1] 1. It Is insisted tbat the court erred In
instructing .tbe Jury as follows: "I charge
you that the defendants plead a failure of
consideration, and they have the right to
rely upon either an express warranty or an
implied warranty, and if they have shown
tbat there has been an express warranty or
an implied warranty, and that the considera-
tion has teiled, and that they liave carried
the burden in whole or in part, and that they
have produced a preponderance of the evi-
dence, then you will find in favor ot the
defendants the amount they have shown the
oonslderatloB to liave AUled, whether in part
or in all." The point Is made tbat since an
express warranty will exclude an Implied
w&rranty, and stnce the note contained war-
ranties as to the title and the absence of
OTitstandlng Mots, as well as a warranty
In reference to tiie age of the mnle, tbe court
erred In tiling the jnry tbat they mlgbt con-
sider the breach of any warranties which
mlgbt be implied. It la true, of course, as
was held in De Loach Mill Mfg. Co. r. Tut-
weller Coal A Iron Co., 2 Qa. App. 493, 58
8. Q. 790, following the mling of the Su-
preme Court In Johnson v. Latimer, 71 Ga.
470, that an express warranty exdudra im-
plied warranties upon tbe same subject; tbat
only in the absence of an express warranty
can a breach of an Implied warranty be con-
sidered. This rule' is well settled, not only
in this state, but in other jnrlsdlctiona Six-
press warranty as to any particular subject
will exclude any warranty by implication up-
on tbe sama sabject But an express war-
ranty on one subject does not exclude an im-
plied warranty on an entirely different sub-
ject For Instance, an express warranty of
title will not exdnde an implied warrant of
soundness, or an imidled warranty of ma-
clmntability. ot an ln^Ued warranty of sn^
b«inlng and stmgth ae wtU enable a mnle,
whldi has beeb purchased for tbe particular
pnipoae fatm wmAc, to do ancta work. Ad
c^fesa w«rran^ of quality wiU not exclude
an implied warranty of title, nor will ^
eMpreae warranty that ttw arttel* shall
lii good o^dtt^ ftcdnd^ tfn intpUM t»ttn%^^
of AtttesB fbr the pdl*i)ostt ^textded! Wbea a
known, described, and definite article is or-
dered of a manufacturer, erea thongh It be
stated that tt id required for a particular
purpose, yet U tbe known, described, and
definite thing is of the kind and quality call-
ed for by the order, and fs actually supplied; '
there is no implied warranty that It win an-
swer the particular purpose Intended by tbe
buyer. Crankshaw v. Schweizer Manufactur-
ing Company, 1 Oe. App. 384 (12), 58 S. B.
222; De Loach V. Tutweiler, 2 Ga, App. 493, .
58 S. B. 790; Cyc. SI, 392; Fay ft Eagan Co.
V. I>udley, 129 Ga. 314. 58 S. EL 826. It may
be stated as a general rule tbat where tiiere
is a sale of personal property under ah ex-
press warranty as to Quality, there Is no
implied warranty. Brooks Lnte^r Co. v.
Case Threshing Machine Co., 136 Ga. 754,
72 S. B. 40; Malsby T. Yonng, 104 Ga. 205,
80 S. B. 854; Blgin Jewelry Co. v. Estes. 122
Ga. 809, 00 S. E. 939 ; Moultrie B^lr Co. r.
Hill, 120 Ga. 730, 48 S. R 143. AH of these,
however, are cases in which it was Sot^ht
to vary an express contract of warranty, ei-
ther by tbe addition or sutetttatlbn of inr*
piled warranties contradictory to or variant
from tbe terms of tbe express contract of
warranty. Tbey fall under the general nile
that an express warranty in the sale of goods
excludes all Implied warranties on tbe same
subject It la equally ^1 settled t&at when
a warranty of sultftbloKss can be Implied as
to a subject not tout^ed or corered by ttn
express wart^y. the brea<A of this impUed
warranty may be used as a defense. As Was
weU stated by Judge Powtift In Ha#Ie|r Dotin
Draft mmace Go. v. Van Winkle Gin ft Ma-
chinery Co., 4 Ga. App. 85 a), 60 S. B. 1008:
"While In the contract of sale there can bei '
no coexistence of tdpress and impuei
rantles on the same subject; since the one,
ipso facto, excludes the other, still this ex-
clusion does ^ot necessarily ext«Ad to every
feature of the contract" See, also, SUmp-
son Computing Scale Co: t. Taylor. 4 Qa.
App. 567, 61 S. El 1131; Qty of Moultrte
Schofleld Sous & Co.. 6 Ga. App. 464, 66 S. B.
316. In tbe case last cited the rule is stated
that if an ordet be given for a spedflc arti-
cle, and if the defined and described article
be afterward supplied, there Is no Implied
warranty tliat it will answer tbe purpose fo^
which it was Intended by the buyer. In the
case now before us the sellers expressly wnr-
ranted that the male was sound and eight
years old, and that their tlUe was perfect
It was alleged and proved that a part of
the contract wMch was not reduced to writ-
ing (and which nutnraliy was not IndndM
in the Instrument executed by the purchas-
ers), was a stateaiait upon tbe part of the
s^ers that tSie male was a good plow iftole.
This was a warranty tipon an etttir«ly iHffer-
ebt subject from those fn<!lnded In the tn-
stmmait therefore the judge did not
err In permitting the jwry-to ascertain whetb-
t et there hftA Mftt a IMA Of tUMNUhHm«K
Digitized by VjOOglC
1102
n SOUTHBASTBRN BBFORTEB
and In charging tbat the defendants had a
Tight to rely upon the failure ot consldefa-
tton arising from the breach of either the
eq;>re8s or the implied warranties, if the Jury
beUered socb warranties bad been made.
Sine* there was no issue as to the fact that
Am wairanfy, to the eileet that the mule
was a good plow mole, was mad^ and the
<mlr Question was as to whether the mule
oorraQwnded with this warranty, the charge,
of the court could not In any eveot hare
harmed the plalntiOs.
[2] 2. Upon the trial ot the case, one of
the defendants admitted that be had offered
the plaintiffs fSO for the hire of the mule, and
tbat ha would return tike mule to tiion in
cancellation of tlw trade. It la insisted by
learned counsel for the plaintiffs that slnte
this testimony was uncontradicted, the ad<
mission of liability demanded a vadict In
Cavor of the plaintifEi. We cannot concur
in tlds opinion, aluae It appears from the
record that this was a mere offer of com-
promise not aco^)ted bjf the plaintiffs, who
proceeded to foretilose tii^ mortgage, and
themaelves bought in the mule at the sale.
[I] 8. Tbe eridotOB of the quality of the
male and its adwtabilifcy fo; lowing was
In otmfllct There was teiUmony that it was
a good plow mnle; there was also testimony
tiiat the animal was mtirely untrained and
^mormally lazy. The Jury resolved this is*
an* in favor of the d^cudants. Since the
txlal Judge approved that solution of the
qnestlon. It Is b^ond the pom of this oonrt
tO! interfere.
. Judgment afflnned.
(U Oa. Appu M)
OUUBONOS T. ABNOLD. (No. 4,988.)
(Ooort «( Appeals of Georgia. Aug. 16, 101&)
fByOahua the Oour$.)
1. Affeaz. ahd Ebeob Q 722*)— Rbview— As-
■siomiBRTs or Ebbok— Wart or Vebifica-
^*^e aBsignments of error raising the point
that the conrt ahonld not have proceeded with
the trinl, for the reason that the attorney for
the defendant had leave of ^>Bence, not being
fnUy verified by the trial jndge, will not be con-
sidered by this court.
[Ed. Note.— For other cases, see Appeal and
Error, OvuL Dig. H 2980-jSM; I>e& Dig. I
722.*]
2. Plbadxnq (I 862*) — MoTzoir to Stbikb.
Tbe absence of a defendant or of his aole
counsel does not authorize the striking of a
Eiea setting np.a valid defense to the action,
a such a case, tiioagb the court may proceed
with the trial u no sufficient reason for a con-
tinuance appears, the plaintiff is not relieved
from eatablishine the affirmative of the issue
formed by the filing of a proper plea. The
tlmel? filing of a preper amd snffident plea pnti
the plaiotis upon proof of his claim or demand,
whether the defendant be present or absent
[Ed! Note.— For other cases, ses Pleading,
Cent Dig. II 1O7»-1O01, 1125; Dec. Dig. |
352.*]
Error from Oity Court of Lexington; Jo^
Cloud, Judge.
Action by N. D. Arnold against G. B. Com-
mings. Jndgment for plaintiff, and dtfend-
ant brings error. Reversed.
Jna J. ft B. M. Strickland, of Athene for
plaintiff In orror. Paul Brown, of Lexinc-
ton, for defendant In error.
BUS^UjI^ J. Arnold sued Onmmings upon
two promissory notes. The case was con-
tinued for several terms, and on December
4, iS12, In the absoice of the defendant and
his counsel, the court entered a jndgment In
favor of the plalntut. Neither the defendant
nor his counsel was present at the term of
tbe court at which this Judgment was render-
ed. On Feomary 8, 1913, the defendant filed
a motion to set aside the Judgment The
court refused to set the Jndgment aside, and
the defendant excepted.
[1] 1. The motion to set aside a Judgment
is based upon two grounds. We decline to
deal vrith the first ground, because the trial
judge does not fully verify the statement
of the bin of exceptions with regard to the
leave of absence of the defendant's counaeL
In an explanatory note the Judge states
that it was publicly announced, during the
presence of the attorney at the regular No-
vember term, 1912, of the dty court of Lex-
It^on, that there would be an adjourned
term, mainly for the purpose of trying cases
represented by nonresident attorneys. The
defendant's counsel Is- a nonresident attor-
ney, and the Judge certifies that no mention
was made of tbe case at bar at the time that
counsel asked for leave of absence^ As it
Is the duty of counsel themselves to keep
informed of the exact status and condition
of all proceedings in which they are interest-
ed, and certainly Is not ordinarily the duty
of a trial Judge to Inform attorneys having
cases in his court as to when adjourned
terms will be held, we may say in passing
that, even If the assignment of error upon
this ground had been fully verified, we
should probably have sustained the finding
of the lower court upon this point
[2] 2. When the instant case was called
for trial, the plaintlCTB counsel made a mo-
tion to strike the defoidant's answer, and
the court granted this motion. Thereafter,
without -proof, the court entered a Judgment
in favor of tbe plaintiff as upon an uncondl- .
tional contract to which no issuable defense
had been filed upon oath. In striking the
plea the court erred, and for this error the
court should have set aside the judgment
The absence of a defendant or of his sole
counsel does not authorize the striking of
a i^ea setting up a valid defense to the ac-
tion. In such a case, though the court may
proceed with tiie trial no sufficient reason
for a continuance appears, the plaintiff Is
not relieved from establlshli^ the afflrm-
*Ver otb^ ; y _*m^ waaM.Uiffa sad Motion NyMBBSl tn Dec Dl|. A Jm, Dig, I^-No.^telM*^|i^j^i^«l
VXDEBWOOD T. 8t An
U08
aUve of ttie lasne f<»med by the filing of a
^per plea. In tbe Instant caae the defend-
ant had filed a idea, to which no timely ob-
jection had been offered by demnrrer. In
this plea, which was verified by his oath,
the maker of the note set up that one of the
notes was glTen under duress and that the
other was without any consideration what-
erer. The plea appears to ^esmt a good
defoise. It was too late to demur at the
time of making the motion to strike, and
the motion to strike conid not properly have
been sustained, for the allegations of the
answer are sufficient to withstand a general
d^urrer. The filing of a proper and sufil-
dent plea puts the plaintiff upon i«oof of his
dalm or demand, whether the defendant Is
present or absent
Gases can be imagined In whldi tbe plain-
tiff ml^t not be willing to swear In contra-
diction of the defendant's E^ea, and like-
wise instances may occur in wbi<A the plain-
tiff, as well as the defendant, might be ab-
sent without sufficient cause. In tbe present
case the record is silent as to this; but if
it had happened that Mr. Arnold, ai w^ as
Mr. Cummings, was absent, why should
Mr. Arnold, rather than Mr. Ctammings, be
pwmltted to Boetaln his side of the pen^ng
IsBoe wSUunit proof? Oertainly, if the case
had been one in which the defendant had
filed a plea that the note waa barred by the
■tatote of limltatUHis, and. an ln8pectl<m of
the note Itself had demonstrated that the
Idea was sustained, the court would have
been as mnch authoriaed to strike this jdea
as the one aetoally flledi But we do-not ap-
prehesid that in sufdi a snppoaititlinis jcase
the learned Judge who prestded would have
struck the plea. The ordw strlkliq; the
]>lea should be set aside, and the case should
be reinstated upon the second ground of the
motion.
JuOgBnaat reversed.
(u Oa. App. aOB)
UNDERWOOD t. STATB. (No. 4,943.)
(Court of Appeals <tf Georgia. Aug. 15, 1913.)
(Syllalut by the Court.)
WrniKSSss d 293*)— GaniiNAi. Law (U 898,
894*) — Pbitxlegs or AocnsKD — Bvidbmce
lujoAixT Obtained — UNaaASONABLi
SSABCHXS.
"CoartB ibould liberally construe the con-
stitutional proviiion against compelling the ac-
cused to be a witness against himself, and re-
fuse to perqcdt any Srat or doubttul atepa
which may invade his rights in this respect.''^
(a) Where a person was arrested on anapi-
dott of keeping on hand intozicatiog Uguora in
his place of buainesBf the arrest being made
withoat a warrant, and, the officera, while
holding him in illegal custody, violently seized
hia person and, against his atmoat resistance*
took from his po<^et the keys to hie Iron asfe.
and with the keys unlocked the safe and fn»nd
the finding of tiie liquors In Us safe should
bave been excluded, because the evidence was
wrongfully obtained by Ute officers, in criminal
violation of the law, by an unlawful search and
aeizure following an unlawful arrest, and tbe
accused was thus compelled to give evidence
tendii^ to criminate himself, in Eolation of
the constitutional restriction on that subject
[Bd. Note.— For other cases, see Wtnesses,
Cent Dig. It 1000-1014: Dec Dig. 1 293;*
Criminal Law, Cent Dig. H 871r«7e: Dec. Dig.
IS 803, 894.*]
Bmv from City- Oonrt «t Ameriena; W.
M. Harper, Judge.
01 EL Underwood was oonvicted of ke^i^ng
Intoxicating Uqiumi at bis place ol bnatateas,
and brings error. Berosed.
Underwood waa convicted of a violation
of the Penal Code 1910, { 426, in keeping on
hand at his place of business intoxicating
liquors, and, bis motion for a new tilal hav-
ing been overruled, he excepted.
From the evidence it appears that the tddef
of police, with other policemen, went to the
place of business of the accused without a
warrant, and instituted a search for intoxi-
cants. While this search was in progress
the accused closed and locked Us iron safe.
This act aroused the suspicion of the officer,
and he ordered the accused to open the safe
for Inspection. Tbe accused refused tS do so,
and the officer thereupon, without a warrant,
arrested him on suspicion, and took him to
the police barracks, leaving a policeman In
charge of the storehouse. At the police bar-
racks. In the presence of the solicitor of the
city court and of several policemen, the cM^
ordered the prteoner to give up his keys to
the Iron safe. Again tbe accused refused to
do BO, and thereupon the offlcen caught hold
of him, and, forcibly and against his will and
protest, overcondDg by violraioe his resistance,
took from his pocket the keys of his safe.
Leaving the accused in custody at the bar-
racks, the chief hurried to the storehouse^
securing on his way the services of a lock-
smith, and, on reaching the storehouse, or-
dered tbe locfcsmltii to turn the combination
of the safe; and when this was done the of-
ficer unlocked the safe, using the keys he
bad secured from the person of the accused
tor that purpose, and found in it 114 pints
of whisky, which he seized. Based upon the
evidence thus obtained, a warrant was sworn
out against the accused, and an accosatiini
was filed, on which be was tried and eaa-
vlcted.
On the trial the accnsed objected to the
introduction of the testimony as to the un-
locking of his safe and tbe discovery of the
whisky therein, on the ground that such testi-
mony waa not admlsirible, because it was in
violation ot tbe provisions of the Oonstttotloii
of the state, that "no person shall be conqtel-
led to give testimony tending In any manner
to criminate himself." The admitting of this
ih^reinntoxi^'ting Uquon^^^^^ ^ crinunaw mnweii." Tue «»^tung M tttt
trial for the offense of kee^ bitoxlttttbl testimony la the subject ot the controlUnc
non on hand at his ^ace o! bn^ess, 5 \ assigDment ot error.
•rwotluri
I sssM fepie aa< saeUoB
-^^B^- IHl* * Jun. file. Kn-N«. Sartw ARep'r IndWM
Digitized by VjOOglC
1104
78 aOVXmUkSTIDBN KRFQSTBB
a B. Wlndiester wa^ I* J. Blalock. botli
pf Amerlcns, lor plaintiff In error. Zack
Cbllders, Sol^ of AmericaB, for the State.
BIIA 0. J. ^ft» Btatliic tb» facts as
abora). Tbe apecifflc oldectloii made to the
admiaaioa of tbe teatlmony as to the finding
<hC the Uanor was that the eTldance waa ob-
tained by the officers while the accused was
nndtt an illegal arrest and by means of a
key fordUy teken ibom-hla person, and tttat,
ther^ore, be was compelled to glTe testimony
tending to criminate himself, in violation of
the conatittttlonai proTlaion on that subject
This constltntlonal pcoTlalon Is is the fol-
lowing langnage; "No person shall be com-
pelled to giTe testimony tending in any man-
ner to criminate himself." Article 1, | 1,
par. 8, of tbe Oonstltution of this 8tat& This
constitutional proTlaion and the other of
kindred Import, that "tbe right of the people
to be secure In their persona; hoqaes, papers,
and effects, against nnreasonable searches
and setxores, shall not be Tiolated" (article
1, section 1, paragraph 16), had all the dig-
nity of maxims In the earliest days of
English history, and were brought, with
other fundamental principles of the common-
law system of England, by our ant^stors to
America as a. part of their birthright. In
other words, these constltuttoval restrictions
are but tbe expression of tiie unwritten com-
mon-law rights which had come to be recog-
Itived iQ England In revolt against the thumb-
screw and rack of early daya Marshall t.
Riley, 7 Ga. 867; Thornton r. aute^ U7
Wis. 388, 98 M. W. U07, 08 Am. St Rep. 924.
As to the application of these fundamental
pxlndplea the declsLons of the courts are In
great conflict and. In some confusion. Two
distinct lines of inteivretaUon have been an-
nounced by the courts of this country. One
is a liberal construction of these coustitution-
al guarantees In favor of the rights the
citizen, and the other Is a literal and re-
stricted construction, confining the applica-
tion of the principle within very narrow lim-
its. The latter construction may be. stated
generally as follows: "Though papers and
other subjects of evidence may have been il-
legally taken from the possession of the party
against whom they were offered, or otherwise
unlawfully obtained, this la no valid objec-
tion to tbeii admissibility. If they are perti-
nent to the Issue. The court will not take no-
tloe how they were obtained, whether lawful-
ly or unlawfully ; nor will it form Issues to
determine that question." 1 Oieenleaf on Br*
Sdoice, I 24Sa. In equivalent phraseology
this role has been enunciated bj tiie majors
1^ of the courts of final resort. It was said
bj tte Snprane Court of Illinois, in the caae
at Olndmt t. People; 188 HL lOS, S7 M. B.
■1086; that courts In the admtnlatratloD of
the erlmlnal law Sxb not aoeustomed to be
oversenslUve in regard to the souroes from
which evideiue oomei^ and Till ,apUl them-
selvea of all evidenoe that la competent and
pertinent, regardless of how It was obtained.
Adoptii^ this technical oonatruction. It is
held by these courts that tbe provision re-
lating to self-crimlnatioa must be strictly
testimonial, in other words, that it Is applica-
ble to the accused only as a witness, and
must be directed to a positive, overt act on
the part of the accused personally, and does
not Include acts of other persons. One learn-
ed authority expresses this view ot the rule
as follows: "It seems to us an unfounded
idea that the dlscov^es made hy Uie offlcHs
and their assistants, in the execution of
process; whether legal or Illegal. Or who*
they intrude upon a man's prlva^ without
any legal warrant, are of the nature of ad-
missions made under duress; or that It la
evidence furnished t9 tlie party himaelf upon
compulsion. The information thus aoQulred
is not the admlsston of the party, nor evi-
dence given by him, in any sense. Tbm party
has in his power certain mute witnesses, as
they may be called, which he endeavors to
keep out nit sight, so that they may not dla-
cloee the facts he is desirous to conceal By
force or fraud access is gained to them, and
they are waihlnad to see what evidenoe they
bear. That evidence ts theirs, not their own-
ers." State T. Flynn, 86 N. H. 6«. Ur. Wig-
more, In his treatise on Evidence, takes this
view of these ctmstltntlonal restrictions, cit-
ing many dedstons In support of his conten-
tion, and combating the soundness ot the
decision of the Supreme Ck>urt of the United
States announcing a contrary opinion. In the
case ot Boyd v. Unified States, 116 U. 8. 616^
6 Sup. Ct 624, 29 L. Ed. 746. 4 Wlgmore on
Evidence, H 2261-2270.
Liberal constmction In favor of the rights
of the dtteen has been adopted by this court,
beginning with the case of Hammock v.
State, 1 Ga. App. 126. 68 S. Bl 66, where tt
is held that: "When, by an unlawful search
and seizure under an illegal arrest, a person
is compelled by an officer of the law to fur-
nish Incriminating evidenoe against himself,
such evidence Is not admissible against him
iu a criminal prosecutfon." In- the Ham-
mock Oase Judge Powell calls attrition to
the fact that the decisions of the Supreoie
Court of this state In the interpretation of
these constitutional restrictions are not in
absolute barcoony, and declares: "If we
were nntranuueled by some of these detil-
sloDs, our own views of the sacred character
of these funstitnUonal rights of the private
dtlsen might Induce us to ei^end the rule
further than we da" Be then endeavors to
harmodae tbe aroftrently eonfilctlhg deci-
sions of tbe Supreme Oourt^ and oondudea
with the statement that the ruling In the
Hammock Chee Is not in conflict irith any of
tlu declslona of tiiat court Without eztoid-
Ing the dlBCuaBl<m «long this line, and< omit-
ting any effort to hamKmlce conflicting de-
cisions, we put our opinion ^ tbunKSit
Digitized by
CMB. nuder tlie Cacti, on tb« dedsions In
Div T. State, 63 Ga. 668, livaiu T. States 106
Ga.5t8,82&ID.698,71AiD.8t B«I>. 276,
and Hammocfc t. State, aupra. In tbe Day
Case it was held that: "Bnrldence that a vit-
neas forcUily placed .deCendast'a toot is cei^
tain tracks near the scene of the burglary,
and that they were of the same size, la not
admissible. A defeodant cannot be com-
pelled to criminate h<fnf«»if by acta or words.**
C^f Justice Warner, aa was his custom,
briefly dlapoeed of the qoes^on by the state-
ment that such testimony was In violation of
the constltatlonal prorlslon which declared
that: "No person shall be compelled to glre
testimony tending in any manner to crimi-
nate himself." In the Evans Case tbe Day
Case was referred to and approved, and It
was held that: "EMdence which was offered
by the state and admitted showing that the
accused, while not under legal arrest, had
been compelled to put his hand In his pocket
and surrender a pistol, thus disclosing that
he was violating the law, was not admissible
on the trial of such person for the offense of
carrying a concealed weapon, alleged to have
been committed on that occasion;" the de-
cision being put squarely upon the same con-
stitutional provision as In the Day Oase.
Judge Cobb, In the £}vans Case, also attempts
to harmonize the apparently conflicting de-
cisions of the Supreme Court on this subject,
and he deduces from all the decisions this
rule, that: "The law in this state Is that
evidences of guilt found upon a person under
legal arrest may be used In. evidence against
him; but that, where a person not In legal
custody Is compelled to furnish incrim^fttlng
evldmce against himself, the evidence Is not
admlssibl&" In the Hammock .Oase, where
the facts were identical with those of the
Bvans Case, Judge Powell, speaking for the
court, says: "Under the Constitution, persons
are protected against unlawful searches and
seizures, and also against being compelled
to give testimony tending In any manner to
incriminate themselves. A violation of the
former right does not necessarily render evi-
dence, incidentally disclosed thereby, inad-
missible ; a violation of the latter right does.
When the act in question is a concurrent vio-
lation of both rights, the person is none tiie
less to be protected." In other .words. In the
Hammock Case it Is held that the evidence
was Inadmissible und^r the constitutional
restriction against unlawful search anc^ sei-
zure of the person, as well as under that pro-
.vision which prohibits the compulsion from
the accused of criminating evidence against
himself. Where the arrest is legal, evidence
obtained by a search and seizure Is admijs-
are gathered is a aojU to -tlw caw «f State
V. Turner, in 1S6 Abl St Bep. 125. et seq.
In our amnion there is no sabstantUU differ-
ence in the facte of the present caee and those
of the three cases above relied upon. Bere
the nociued wae arrested without a warrant
on aoqilcltfn. Hta preodaea were aearched
without a warrant on aus^doa. What he
refused to open his safe at the command of
the ofBcer, he was arrested and taken to the
police barracks. His custody was wholly il-
legal, and the office was guilty of the offense
of false Imiirlaonmeut. When be reached the
police barracks, the chief of police and other
officers again demanded of him his keys,
which ha declined to give up. The officers
then forcibly took from him his keys, over-
coming his utmost resistance. In other
words, they committed an unpardonable tres-
pass, for the purpose of finding evidence
tending to incriminate him. In endeavoring
to find evidence sufficient to establish the
crime which they suspected he was guilty of,
these officers of tifye law committed much
graver offenses than the one of which they
suspected the accused. He was suspected of
keeping intoizicating liquors on hand at his
place of business, an offense malum prohib-
itum. They Illegally deprived him of his
liberty, they search^ his premises illegally,
they made an assault and battery upon his
pe^n, and in so ^Ing they violently pulled
down the constitutional bulwarks which pro-
tected him as a citizen, both as to his person
and as, to his property. The language of
Chief justice Bleckley, in Rusher v. State,
U Ga; 366, 21 S. B. 594, 47 Am. St Bep. 175.
is here pertinent: ."The law ought to hold
out no encouragement to violent and lawless
men. to commit crime for the sake of detect-
ing a previous crime and bringing the offend-
er to punishment The law should never suf-
fer Itself to become an enemy or antagonist
to its own reign." Here, under the facts,
was a.multipUcati(m of crimes committed by
the officera of the law, crimes against the
Inherent rights of the dtizen, secured by the
Constitution of this state, in order that a
comparatively venial offense, made so by stat-
ute, but not Inherently an offense, could be
detected. If such means could be adopted In
the detection of crime and were approved by
the oonrts, the law would not only be antago-
nistic to Its own reign, but a state of anarchy
would exist In the case of Rusher v. State,
supra, while it Is held that tbe rule Is well
established that independent facts discovered
in consequence of a con^rained confession
made by a prisoner are admissible in evi-
dence, the following important qualification is
mads to the rule: "Unless it appears that
Bible ; where the arrest is illegal, evidence 1 crlmlnel violence was used In procuring the
thus obtained Is Jnadmisstble. 1 Qontesslon or making the discovery." The
It may be hjere iM^ted that there are ^ \ vnteience li dear from this qualification that
dedslons In confilct with the Day. 0**^^*^^ \ fflhere the Incrlndnating facts are discovered
li^ans Case, and tbe Hammock Case, tJ^ 1 i^y crbolnal violence, they are not admissible
aupe state of £acta«- Tbe majority. o( ^> tl'^lftg^iut tbe aovued. Bere the keys were
Digitized by
Google
re SODTHHASTBEN BOPOftTBlB
10a.
taken ftom Uie person of tlie accused by a
criminal aasanlt and battery made tip<m Idm
bj tbe officers of tbe law.
It Is said by counsel tor the state that the
forcible taking of the keys from the accused
was not material, that the dlscqreiy of the
liquors In his storehonse was an Ind^i^dent
fact^ and admissible as soch under the well-
establlflhed law on that subject, and that the
means adopted to make the dlBCovery, or, in
other words, to open the safe, were Immate-
rial; but in the Day Case, supra, the cor-
respondence of tbe tracks to the foot of the
accused, and In the Hammock Case, supra,
and In the Elrans Case, supra, tbe discovery
of a pistol on the person of the accused,
were Independent facts, but nerertbeless they
were held to be Inadmissible, because the ac-
cused tn tiiose cases were under Illegal ar-
rest, and the evidence against them was ob-
tained by compulsion, while they were held
In unlawful custody. True, the officers might
have gone to the safe and without a warrant
broken It open, and in that event the testi-
mony probably might hare been admissible;
but they did not pursue that course. They
forced tbe accused to give up Ms keys. In
other words, they forced him to give into
their possession the means of discovering the
Incriminating fact It is wholly Immaterial
that they might have discovered the Incrimi-
nating fact otherwise. We are simply dis-
cussing the method employed by the officers
to compel the accused to furnish the means
whereby the Incriminating evidence was dis-
covered. On the trial of Aaron Burr, 1 Burr's
Trial, 240, it was held in substance by the
great Chief Justice Marshall, that tbe pro-
hibition against one's being compelled to be a
witness against himself should not be limited
to the mere exclusion of oral statements
against himself; that, If a link in the evi-
dence which he could not be required to
furnish were to be furnished by some fact,
document, or proper^ which he bad a right
to keep secret, the mantle cast about him by
tbe Constitution would be as mucb rent as if
he were forced to furnish It by word of
mouth.
The two provisions of the Constitution
which we have been discussing appear In the
fundamental law of every state of this
Union, as well as In the federal Constitution.
They are the sacred dvll jewels whidi have
come down to us from an ElngUsh ancestry,
forced from the nnwiUihg hand of tyranny
by the apostles of personal liberty and per-
sonal security. They are hallowed by the;
blood of a thousand struggles, and were
stored away for safe-keeping In the casket
of the Constitution. It Is Infidelity to for-
get them ; It Is sacrilege to disregard tiiem ;
It Is despotic to trample upon them. They
are given as a sacred trust Into the keeping
of the courts, who should with sleepless
vigilance guard these priceless gifts of a
free government We hear and read mucb of
the Ikwlessness of the people. One of the
most dangerous manifestations of ttils evil
Is tbe lawlessness ot One mlnlstCTi of (te
law. TUji court knows and fully appreciates
the delicate and difficult task of tbow
are charged with the duty of detectbig crime
and appreboiding ciindnala, and It wfU V9-
hold them In the most vigilant, l^al dis-
charge of their dnttes; but it utterly re-
pudiates the doctrine that Oiese Important
duties cannot be successfully performed wiUi-
out tbe use of Illegal and despotic nmsnres.
It Is not true that In the effort to detect
crime and to punish the criminal "the end
justifies the means." This Is especially not
true when the means adopted are vlolatlTe
of the very essence of constltutlimal free
government Neither the liberty of tbe
citizen nor tiie sanctity of his home should
be Invaded without legal warrant Suqtt-
don Is no substitute for a warrant, and
the badge of authority Is the emblem of law
and order, and gives no right to the wearer
to arrest without warrant, imprison without
authority, and torture without mercy. Any
compulsory discovery of self-incrlmlnatlng
evidence is abhorrent to a proper sense of
justice and is Intolerable to American man-
hood. What Is commonly known as the
methods of ttie "third degree," so frequently
used by zealous officials or Interested de-
tectives, may be an appropriate part of that
jurisprudence which holds that every man
Is guilty when accused of crime until be
proves his innocence; but it has no place
In the jurisprudence of a land where the car-
dinal principle of humanity and justice is
that every man is presumed to be Innocent
until his guilt is shown by legal evidence
beyond a reasonable doubt These arbitrary
methods of discovering crime are subversive
of tbe fundamental principles of law, de-
structive of the Indefeasible rights of per-
sonal liberty, personal security, and private
property, and place at the mercy of every
petty official and conscienceless criminal the
life, liberty, and reputation of the citizen.
They flourished in the dark days of the Star
Chamber and the Spanish Inquisition, but
could not exist in the clear atmosphere of
political liberty and personal freedom. Be-
sides, these bistmments of oppression are
successful only when used against the ig-
norant or tbe wicked. The former cannot
combat the artifice and tricks of the ex-
perienced official, and the latter will not
hesitate to involve the Innocent to himself
escape detection. Therefore courts of justice
will not approve such methods to discover
crime, and the law, seeking pure and im-
partial sources of evidence, will refuse to
admit compulsory confessions of guilt and
condemns as- dangerous, untrustworthy, and
without probative value testimony against
others obtained by the use of physical tor-
ture or mental coercion.
In the Instant case the only evidence of
guilt having been discovered In the forcible
asuJB T. a T. oouER A ao.
1107
no man Bball be compeUed to tXve testimony
tliat In any manner tends to criminate Um-
B^, the conviction was oolawfoL
Jndsmoit reversed.
(u Oil App. no
mUJS V. a T. GOMBB ft Oa (Na 4,06&)
(Cknirt of Appeals of Georgia. Aug. IS, 191S.)
(SyUahns hy tite Court.)
A0BICU1.TUBK (I 7*)— Sals of Febthjzkb—
AenoN FOB nict— Defbnse.
The provUIons <rf section 1794 of the ClvU
Code of 1910 do not extend to the tagging of
commercial fertilizers. Under tbe tenns of
thia section a sale of commercial fertilizer
which hat not been analysed as evidenced by
its reristration is illegal, and any contract
made m pnrsoance of such a sale is void, bat
a sale of fertilizer, without the tags which are
required to be purchased in order that the state
may secnre its revraoe therefrom, is not neces-
sanly illegal; oor is a note givoi for fertilis-
er void for the sole reason that the tags were
not attached to the sacka.
[Ed. Note.~For other caaes, see Agriculture,
Cent. Dig. f» 18, 14; Dec Dig. | 7.*]
Error .from City Court of Waynesboro;
Wm. H. Davis, Judge.
Action by C T. Comer A Ga against B. J.
HiUls. Judgment for plaintiff, and dtfend-
ant tHdngs error. Affirmed.
H. A. BoyUn, of Sylvanla, and H. J. Full<
bright, of Waynesboro, for plaintiff In error.
Brlnson & Hatcher, of Wayneaboro, for de-
fendant in error.
BCSSEIiL, J. The defendant tn the court
below had purchased 48 tons of fertilizer
from the plaintiff, and bad given bis note
for $1,080 therefor. When he was sned on
the note he filed a plea that the sacks con-
taining the guano did not have attached to
them tbe tags sent out upon application by
the Department of Agriculture. The defend-
ant did not defend upon the ground that no
inspection of tbe fertilizer had been made, or
that the guaranteed analysis of the ingredi-
ents had not been stamped on the sacks as
required by law, or that the fertilizers sold
did not come up to and correspond with the
guaranteed analysis, nor did he plead that
the manufacturer or seller had not paid the
tax of 10 cents per ton as required by law.
Upon demurrer to the answer, upon the
ground that It set up no valid defense, tbe
plea was struck In the lower court, and the
bill of exceptions challenges the correctness
of this ruling.
The plaintiff in error claims that, In order
to legalize the sale of fertHizers. three things
must necessarily be done by tbe sellers: (1)
Tbe fertlUzers must be registered with tbe
Commissioner of Agriculture, under the terms
of section 1771 of the Civil Code; (2) They
must be branded and lnsi>ected as required
by that section of tbe Code; and (3) after
tbe fertilizers bave been ^perly regLste^ed
and inspected, Uie mannfactnreni and mtujjp.
*r6r ether osms ns warn*'
ulators, or their agents, shall attacli tags pr(^
cured from the Commissioner of Agriculture,
under the provisions of section 1793 of the
Code, to eacta bag, barrel, or package, as an
evidence that the seller has complied with
tbe requirements of the law. It is insisted
that the provision of section 1771 as to regis-
tering and inspection Is not more mandatory
than the requirement of section 1703 as to
the procnranent of tags, and the requirement
that they be attached to the several bags,
barrels, or packages containing fertilizers,
and therefore that the trial Judge erred in
striking the defendant's answer, in which it
is alleged that, "while it is recited in the
note that the fertilizers were branded and
ta^ed as required by law, yet, as a matter
of fact, the fertilizers were not tagged at all,
and the sale was therefore Illegal and In vio-
lation of the plain requirements of the stat-
ute, and for that reason this defendant Is
not liable, under the law, for'the same." We
are not now required to pass upon the validi-
ty of a plea setting up that the manufacturer
or seller of the fertilizers had not in fact
paid tbe tax reqtdred by the provisions of
section 1793 of the avil Code, or had failed
to purchase a sufficient number of tax tags to
tag every bag or padcage of fertilizer manu-
factured or sold by him. No anch plea was
filed in this case, and tbat question la not
presoited. While the pnrebaser of fertilizer
la not apedally concerned wUb the oofisldera-
tion of tbe question as to wbether tbe mann-
factor^ or seller of the fertilizer he pur-
chases baa paid the tax required by law, still
it may be that where It Is shown that a seller
or manu&cturer In a particnlar instance Is
so conducting bis bustneas as to deprive the
state of its revenue, and operating a bnsiBess
in violation of tbe law, tbe case will fliU
within the prln^ple announced In Ford v,
Thomason, 11 Oa. App. 3S9, 75 S. B. 299, as
applicable to real estate dealers, and by the-
Supreme Court In Murray v. Williams, 121
Ga. 63, 48 S. B. 686, as applicable to physi-
cians.
The single qnestlon here presented is
whether the failure of the manufacturer or
seller to tag fertilizers is a good defense to
an action brought to recover the purchase
price of such fertilizers. We think the trial
judge rightly held that the mere failure to
tag the fertilizer presented no defense to the
purchaser. We cannot agree with the argu-
ment of the learned counsel for the plaintiff
In error that the requirement as to tagging,
as It affects the purchaser, Is the same as
the requirements of section 1771 as to regis-
tration and inspection of fertilizers offered
for sale In this state. .The provisions of sec-
tions 1771 and 1772 are designed for the pro-
tection of all users of fertilizers. Section
1771 requires the manufacturers and sellers
of fertilizers to register the names of th6
brands tb^ desAre to seU, and the guaran-
toplo tta sMtUn NUi^^^Stc Dig. ft Aai. Dig. Key-No. Sertes * R^r Indens
Digitized by Google
1108
18 hOjrtBEASttEOsr ttSPOATBft
nan.
teed analyals thereof, with the CommiBsloner
oC Agriculture. Section 1772 requires this
guaranteed analysis to be branded or printed
on each sack or package which is Intended
for sale. Section 1794 expressly declares
that: "It shall not be lawful for any manu-
facturer or company, either by themeelves or
their agents, to offer for sale In this state
any fertilizer or fertilizer material that has
not been registered with the commissioner of
agriculture as required by this chapter. The
fact that the purchaser waives the Inspec-
tion and analysis thereof &hall be no protec-
tion to said party selling or offering the same
for sale." It will thus be seen from a read-
ing of this section that the sale of fertiliz-
ers which Is dwounced as Illegal is where
such fertilizer has not been registered as re-
quired by sections 1771 and 1772, and that
no reference whatever Is made therein to the
tax tags or the subject of tagging. Section
1793 Is purely a revenue measure, for except
in the case of cotton seed meal (see Qriner t.
Baggs, 4 Ga. App. 232, 61 S. £. 147), which
is almost wholly nitrogenous In Its nature,
the affixing of tags Is not intended to take
the place of the branding or printing upon
the sack, barrel, or other package required by
section 1772. The law recognizes the fact that
the tags may become detached from the pack-
ages in the ordinary course of trade and
shipment (Holt t. Navassa Guano Co., 114
Ga. 666, 40 S. B. 736), and the statute is
tlierefore particular in Its requirement that
the guaranteed analysis, as well as the name
of the manufacturer or seller, shall be plain-
ly printed on ea<di and every package. Ham-
lin V. Bogers, 78 Ga. 681, 3 S. E. 259. We
hold, therefore, that the provisions of sec-
tion 1794 of the Civil Code, by its express
terms, do not extend to the tagging of com-
mercial fertilizers. Under the terms of this
section a sale of commercial fertilizer which
has not been registered In conformity with
the analysis required by section 1772 of the
Code la illegal, and no contract made in pur-
Buanoe of such a sale Is valid, bat a sale of
fertilizer without the tax tacs, which are
retnlred to be purchased In order that the
state may secure Its Tev&me, Is not for that
reason necessarily ill^al* nor is a note given
for fertilizer void for the sole reascm that
the tax ta^ woe not attained to the aatika
of fertillaerB whldi were the consideration
of the note. This mlins la not In conflict
with any of the decisions of the Supreme
Court cited by the plaintiff In error.
In Hamlin v. Rogers, anpra, Judge Hall,
delir^ng the opinion of Qie cour^ held that
the ooqrt did not err In refuslnE to charge
that If the fertillxer did not have the inspec-
tor's tag attadied to the sacks at the time of
the sale^ then the plaintifls cannot recovra-.
It Is tnU) fbat in that case Judge Ball's ttd-
tag was placed partly upon the fact that tags
were shown to have been missing from otUy
S or e sacks out of 30. and he remarked that
the request was Inapposite, considering the
Vague and indefinite character of the testi-
mony; but he holds dlstlnctiy that the par-
pose of the tags la to afford evidence that the
inspection fees have been paid, and tliat
whether the absence of tags would have the
effect of showing that the sale was illegal
Is very qnestionable.
In Allen v. Fearce, 80 Ga. 418, 7 S. E. 82,
the suggestion In the Hamlin Case, supra,
that the absence of tags might not have the
effect of rendering the sale illegal was criti-
cised by Chief Justice Bleckley for the reason,
as stated, tliat the presence of the tags was
the only authentic evidence the seller had
that the fertilizer had undergone the inspec-
tion which the law required. Under the law
as It then stood (embodied In section 1553a et
seq. of the Code of 1832), the learned Chief
Justice ctfrrectly held that the presence of
the tag was the only authentic evidence of
a legal Inspection. Under the provisions of
that section It was made a misdemeanor for
any manufacturer, dealer, or other person to
offer any fertilizer for sale or distribution
without having the brand tag, or such other
device as the commissioner might require,
showing the analysis of the contents of the
package. But by the provisions of the act of
1898 (Acts of 1898, p. 100) the branding of
the analysis upon the sack was made essen-
tial, and, as has already been pointed out, it
is only the failure to brand the analysis on
the sack whldi Is now made penaL Under
the provisions Of section 1772 the guaranteed
analysis of eadi sack or package is required
to be idalnly printed or branded thereon,
and thus the ostensible contents of the ferUl-
leer is brought home to Uie purdiaser. In s
manner and by means of a label which can-
not be detached.
Sections 1780, 1788, 1787, and 1788 of the
Civil CcMe expressly provide the means by
which the purchaser may test the truthful-
ness of the statements branded upon the
sack.
The ruling In Holt v. Navassa Ouano Co.,
114 Ga. 666, 40 S. E. 736, as in Young t. Har»
ray, 8 Ga. App. 204 (8), 59 a B. 717, held
merely that when the def»idant pleads that
the textOSzet was not tagged as required 19^
law, he carries the burden of provliiC this sl-
iSsaUon.
Judgawnt sfflnned.
(U G*. Avv- itf )
COULSOK V. STATE. (No. 4,425.)
(Otfort of Appeals of Georgia. Aug. 11, 1911.)
3. Cbikuial Law (| IIU*)— Bixx. of Bxgxp-
TXORS— VkSlTT.
A Statement fai a MU of ezcepttoaa that
certain sjjvecifled exceptions pwtdente Iit« ^er«
duly certified by the court, and duly filed and
entered on the mlntttea of the coart, must bt
•rtw ot&or easM am sun* fopK aatt HoUra HfteBOB U Dfia. * Aft. Dig. ^
Ga.)
OOUUSO^ T. STAVE
1109
accepted as true, and casnot be impeached b7
the reviewiog court, although the exceptions
pendente lite referred to are not in the record,
and althouKb the derk of the lower coart, in
anftwer to an order requiring him to certify and
■end up the exceptions pendente Ute, certinea
that no luch exceptions pendente Ute are of
fila or entered on the minatea, that If any aBcta
von filed they have not been recorded, and are
not now of fife, and that he has no recollection
that any were filed and no recotd of any hav-
ing been ffled.
[Ed. Note^For other easea, see Oifailinfcl
Law, Cent Dig. il 2804^2800; Dec. Dig. 8
IIU.*]
2. Cbiuinax. Law (t 918* )- Niiw Tmal —
GSOUNDa— RCUNGS OIT PLBADIHflS.
Bulings upon the sufiSciency of the plead-
fngB are not proper subject-matter for a mo-
tion for a new trial
[Bd. Note.~For other cases, see Criminal
LinrrGeiiL Dig. |{ 213T-2145; Dec Dig. I
SI8.*J
a. CouBTB (S 66*)— Tebmb. _ ^
■While the judge of the dty court of nts^
gerald is anthorlzed, in hia discretion, to hold
■pedal terma of that coart, and has the ume
power that Judges of the superior courts have
in that respect, still the power of the judge of
the dty coart of Fitzgerald to keep a term of
his conrt open, by adjoomment, from one day
until anothor, does not extend beyond the next
regular term, ^ce otherwise two terms of the
same court could be held at the same Ume.
Consequently the court erred in sustaining a
demurrer to a plea to the Jurisdiction, setting
up that Uia court was being held at an unau-
thoriaed time, that it had no authorl^ to ad-
journ the term to a day In July, aubsegnent
to the time for holding the regular June term,
and that because of the lack of such authority,
die Mar tnm expired prior to the fdorth Moo-
dor In June.
[Bd. Note.-^or other caae^ "ee fiowU.
Cent Dig. IS 2S1-242; Dec. Dig. ! 6e.*l
4. JUDOIBNT a 11*)— VALIDITT — JUBIBDXO-
TIOM.
Since the Idea to the jurtodictton and the
objection to the Jurora ^onld have been n*-
taioed, the snbsequeot verdiet and Judgment
were void.
[Ed. Note.— For other cases, see Jadgment,
Ciat. Dig. II 14, 14% : DecTDig. | IL*!
Error from City Court of iTltigerald;
Wall, Judge.
Anna Coulson was convicted of crime, and
brfmca error. Reversed.
ElUns & Wall, of Fitzgerald, for plalntilE
In error. Alex J. McDonald, SoL, of nt>-
garald, for the State,
RUSSELL, J. [1] In the brlM of the
soUcltot of the dty court of Flt^erald the
point is made that there is no proper excep-
tion to the sustaining of the demurrer men-
tioned In the Mil of esxeptloAB and the
striking of the plea of tbe defendant, for the
reason that the defendant filled to file ex-
ceptions pradente Ute. As appears from the
tMs conrt cannot deal witU the point as a
ground of the motion for a new trlaL Treat-
ing the brief of the counsel for the defend-
ant in error as being in the nature of a
suggestion of a diminution of the record,
this court passed an order requiring the
clerk of the dty court of Fitzgerald to com-
plete the record by certifying and sending
up to this court the bill of exceptions pen-
dente Ute, which it was certified in the
main btU of exceptions had been duly cer-
tified and filed. In response to this order
the clerk of the city court of Fitzgerald cer-
tifies that "there are no exceptions pendente
Ute of file in this office or entered on the
minutes. If any have been filed they have
not been recorded, and are not now of file,
and I have no recollection that any were
filed, and no record of any having been
filed."
In spite of the certificate of the clerk we
cannot sustain the contention of counsel for
the state that the question as to the cor-
rectness of the court's rnling in sustaining
the demurrer and striking the defendant's
plea Is not before the court for considera-
tion. It Is of course well settled that in
case of conflict between the statements of
the bill of exceptions and the record, the
record will control; but, so far as we are
aware^ this rule has not heretofore been,
nor do we think it should be ao, extended as
to include statements of fftct in the bill of
exceptions certified to by the jn^sldlng Judge,
aa to which the record is sUent In such
cases aa that now before iu it la not an in-
stance of conflict betwettt the recitals of
the bUl ot exceptions and tbe record, hut
merely a case in wUeb the recitals of the
bill of oxc^tiona are not corroborated 1^ the
record. In other words, tbe record does not
contradict a single recital contained in tbe
biU of exc^tUons; and tbov^ on the otha
hand, it does not affirm tliese recitals,
thla same condition wonld obtain in the case
of any writ of error in which certain redtals
of the bill of exceptions might be deeme&
auffidently fidl to dl^poiae with the spedfl-
catlon of a particnlar portion of tbe record
as onneceaaary to be transmitted to thla
court If the exceptions pendente Ute, when
transmitted as a part of the record, bad evi-
denced or developed conflict with tbe re-
citals in tbe blU of excqitionB, aa to the
time of filing or as to tbe Babject>matter of
tbe exceptions, or as to any material mat-
ter, the record would control, but the mere
fact that no ^ceptlons pendente lite acQ)ear
in the transcript of the record as braasmltted
does not even suggest a confliGt, nor offer
occasion for snrailse that pel-haps ho excep-
tScRu pendente Ute were in fact ever fit6d.
record, the point premnted by tbe ex«M>.
tiona to that judgment iM tbe cOittrolHng \ The sugUKStlon that nofie wer* ev«f fll«
in tbe case, and yet, k hot t>rOperlir^^* 1 a «frfeiflit*« «eiatiiTer) fl^hst AfectiMariiy
sen ted by the exceptions pendente Ut^ 1 U*'* origin In sometblng dehors the rec-
not before this conrt for consideratloQ
•For otlier eases see saBW topte and ssetlon
otdi redtals of a bill of exceptions
t*' V"'''©*' Wt. * D*- ^-No. SertM ft Hep'r Indues
^ Digitized by GoOglC
1110 78 SOUTHEASTERN HBPOETBE
verified by tbe certificate of tbe preflddlng
Judge, If Indeed they can be contradicted at
all, cannot be Impeached In this way.
If we are at liberty to consider the cer-
tificate of the clerk to the effect that the ex-
ceptions pendente lite referred to In tbe bill
of exceptions are not upon the record, and
that none were ever filed so far as he recol-
lects, stUl the contents of the certificate In
tbe present case do not eftectnally dispute
the statement of the bill of exceptions that
exceptions pendente lite were filed. The
clerk does not positively affirm that no ex<
ceptlons pendente lite were filed, he states
only that he has "no recollection that any
were filed,"'and without any reference to tJie
clerk making the certificate in this case
(whom we recognize as an official more than
ordinarily effidrat), it would not do to hold
that exceptions pendente lite had not been
duly certified by the prodding Judge, and
properly filed, merely because they were not
entered upon the record. They should be
entered upon the record, but Instances may
be Imagined in which the nonperformance of
this duty would be entirely due to the neg-
lect of the clerk, and in such a case the rule
that no person shall snfFer from the mis-
prision or neglect of a public officer should be
applied.
[2] 2. In the motion for a new trial an
effort Is made to asEdgn error upon the rul-
ing of tlie court in striking upon demurrer
certain written objections to the Jury, in the
nature of a plea, offered by the defendant
before arraignment ; and a new trial is ask-
ed upon tbe ground that because of this er-
ror the subsequent proceedings on the trial
were null and void. A motion for a new
trial is not an appropriate means for the
review of rulings upon pleading. Whether
the ruUng sustaining tbe demurrer be right
or wrong, It is not proper subject-matter for
a motion for a new trial. Wheeler v. State,
4 Oa. App. 326, 61 S. E. 409; WliUams v.
State, 4 Oa. App. 853, 62 S. B. 62S ; KeUy v.
Malone, 6 Oa. App. 618, 63. S. B. 689. As
was said in Mayor and Council of Dublin v.
Dudley, 2 Oa. App. 762, 59 S. E. 84, quoting
from Chief Justice Lumpkin In Sutton v.
McLeod, 29 Ga. S94; "This principle is
boary with age. We bow to it reverently."
[3] 3. Before pleading to the merits of the
accusation filed against ber In the city court
of Fitzgerald tbe defendant filed a special
plea to tbe Jurisdiction of the court This
plea all^^ tbat tbe court was without
Jurisdiction to try the defendant at that
time, for the reason that she had demanded
and was oitltled to a Jury trial, and that the
Jury then In attendance upon court was not
quallfled to try her, and that tbe court could
not, wltbout her consent^ legally try her,
or BDlHnlt the issoes ot fact In ha case ta
tbe Jury then Ja ftttndauM npoa tb* oonrt;
(Ga.
for the reason that tb% Jury In attendance
was the Jury originally drawn to attend the
regular May term, 1912, of said court, and
that the adjourned term at which they were
then in attendance was being held as the
May adjourned term, and yet was being held
in the month of July, and at a date subse-
quent to the time for tbe regular July term,
which had been regularly held. Tbe defend-
ant further pleaded that tbe court did not
bave authority to pass an order adjourning
the May term to a date subsequent to the
date fixed by law for the regular June term,
and had no authority to require the same
Jury to attend tbe adJoiTmed term subse-
quent to the time for holding the June term.
The solicitor filed a demurrer to tills plea,
contending that the plea set up no reason
why the court had no Jurisdiction to try tbe
defendant at that term of the court, desig-
nated as the May quarterly term. The court
sustained the demurrer and struck the plea.
Thereafter the case proceeded to trial, and
the trial raited in tbe couvtetlon of the
defendant
We think the court erred in sustaining tbe
demurrer and In striking the plea to the
Jurisdiction. The Judge of the dty court
of Fitzgerald is authorized. In his discretion,
to hold special terms of that court He has
tbe same power, with reference to tbe hold-
ing of special and adjourned terms of court,
as the Judges of the superior court, but no
more. Since Oie Judges of the superior court
are required by law to adjourn each term
at least five days before the time fixed by
law for' beginning the next term. It Is plain
that while he might call a special term at
any such time as he might deem it proper to
liold one, for the dispatch of public business,
still a Judge of the superior court could not
adjourn one term of his court and continue
tbe life of that term at a period subseqnent
to another regular term, without violating
the express terms of tbe statute. The Judge
of the <Ats court of Fitzgerald, being govern-
ed by the rules that govern the judges of Qie
superior courts, has no power to keep a term
of bis court open by adjournment, from one
day until anotber, beyond the next regular
term. If he could do so, two terms of the
same court could be held at the same time.
Without the power to adjourn the court to
a date subsequent to the next regular term*
he could not compel the attendance of the
Jnrore; and, since the qualifications of these
Jurors ceased with the adjournment of the
court they were disqualified to serve, and
the plea should have been sustained, and the
case should have been continued.
[4] 4. Since tbe plea to tbe Jurisdiction
and tbe objection to tbe Jniors should hare
been sustained, the subsequent verdict and
Judgment were null and void.
jndgmemt ceveraed.
Digitized by Google
BOUTHSBN EXPRESS 00. T. OORBN
UU
(U Oa. App. 170
SOUTHERN EXPRESS CO. t. COHEN.
(No. 4,600.)
(Court of Appeals of Georgia. Anf. 12, 1913.)
(SylUbMa hp Oe OowU
1. Appeal and Ekbob (| 1062*) — Etibxroe
317*)— HxABaAY— Cube op Bbbob.
The error of admitting teBtimooy wbidi is
legaUr inadmissible may be rendered harmless,
when the point or fact in question is snbse-
qnently proved bj ■nffident competent evidence,
but this rule is not one of uniTeraal applica-
tioD. The harmful effect of the original error
is not cured, but rather aggravated, bj admit-
ting other testlmonj which, though not objec-
tionable upon the same ground as that first ad-
mitted, is, for other reasons, none tiie less il-
legal and prejodiciaL
[Ed. Note.— For other cases, see Appeal and
Error, Cent. Dig. K 4171-4177: Dec. IHg. fi
1062;* Brideoce, Gent Dig. H 1174-UJB2;
Dec. Dig. I 817.*]
2. Evidence (SI 123, 242, 248*)— WiriraesBS
(I 81*)— Dbclabations or AOEir^-X&ncT
AS Evidence— Res Gest^b.
The rule that the dedarationg of an agent
are not adndssible against his principal, un-
less they were made at a time when the agent
was engaged in a transaction within the scope
of his agency, and was acting in behalf of bis
Srincipal, is ancient and well established. The
edaration or admission of an agent which
binds his principal must be one made dum ter-
vet opuB, and so closely connected with an act
done ID behalf of his principal, which is within
the scope of his agency, as to be free from the
suspicion of device or afterthought, and thus
to become a part of the res gests.
[Ed. Note.— For other cases, see Bvidence,
Cent Dig. SI 361-368, 898-015 ; Dec.
128, 242. 243;* Witnesses, Oent Dig. S
De<L Digl I 8i:*l
8. Cabbibbs (I 186*)— Loss OP Goods— Eti-
DENCB.
Other than an alleged admission of an
agent of the defendant, there was no proof of
delivery to the defendant of the goods the val-
ue of whicb was sued for. If the evidence of
this admisBion was competent, It must be
adopted as a whole; and, so treating It, it
showed that the goods had been ddivered to
the plaintiff. If ^e evidence was not admissi-
ble, the plaintiff was not entitled to recover,
because the proof failed to show that the goods
were ever In the possession of the defendanL
[FA. Note.— For other cases, see Carriers,
Cent Dig. U 836-860; Dec. Dig. | 186.*]
Error from Oity Oonrt nit SaTatmah; Da-
vis Treeman, Jndgs.
Action by Joe Oohen Malnst the Southern
Express Company. Judgment tor plalntU^
and defendant brings error. Reversed.
Lawton & CuDUingham, of Savannah, for
plaintiff In error. Shelby Myrlck, of Savan-
nali, for defendant In error.
RUSSELL, J. Cohen brought an action for
damages against the Southern Express Com-
pany for failure to deliver a package of
skirts, which be had purchased from the
Manhattan Skirt Company of New York, and
which had been delivered by the Skirt Com-
pany to the Adams Express Company in New
York, for transportation to Savannah via
the Southern Express Company. According
to the testimony, snch shipments were trans-
ferred from the Adams Express Company
to the Southern Express Company at Rich-
mond, Va. The jury returned a verdict in
favor of the plaintiff, and the express com-
pany excepts to the Judgment overmllng its
motion for a new trial.
[1] PlalntlfTs right to recover turns upon
the question whether the package In suit was
ever In tact delivered to the Southern Ex-
press Company. In the trial of the case,
over tbe objections of the defendant's counsel,
the judge of the city court permitted the
introduction of testimony to the effect that an
agent of the express company admitted that
the express company bad received the pack-
age in question. It was testifled that the ad-
mission was made by the agent of the
express company In the trial of a suit
brought by the Manhattan Suit Company
against Cohen to recover the purchase price
of the package of skirts In the trial of the
present case the agent of the express com-
pany, Mr. Lafltteau, himself testified that
in the previous case mentioned he stated as
a witness that the express company was In
possession of this package, and had delivered
it to Cohen; bat he explained that in making
this admission he was giving merely such
information as he derived from the records
of the company, which he had before him
at that time, and was basing his opinion upon
the approximate correspondence in weight
between the [Mtckage delivered to Cohen and
the alleged weight of the package sold Cohen
by the Manhattan Skirt Company. The mag-
istrate t>efore whom the case of the Manhat-
tan Skirt Company against Cohen was tried
was also a witness in tUte case at bar, and he
testified that Lafltteau admitted, on the trial
of the former case, that the Southern Ex-
press Company had delivered to Cohm the
mckage of skirte, the failure to deliver
which Is the basis of the present snit
We are of the ofdnion 12iat the learned trial
judge erred in admitting the testimony as to
the declaration of ttie eatress company's
agent Lafittean. It Is true that be testified
that he had antli(»lty to settie any datans
.a^lnst the company growing ont of tJie loss
of shipments, and likewise authority to make
settlements with retwenee to the delay m
loss of packages whldi were not promptly
delivered. It Is to be borne in mind, however,
that Lafltteau did not make the admission In
March, 1909, while the qaestlon of the d^T*
ery of the package was aftwt^ and when an
effort was being made to trace the package^
nor while he was engaged in his duties with
relation to the carriage of the pa<Aage, or the
adjustment of the alleged loss, but made it
at least several months thereafter as a wit-
ness, and at a time when he was not acting
in behalf of his principal, the defendant com-
pany, nor at Its suggestion, so tar as It ap>
pears team the record.
•tor other oases las lam* toplo and atotloB N1I]i(^a U Deo. XHg. ft Am. Dig. KayO^iBMUf J
1112
(Ga.
Whw the plalatUE nm testtfled to tbft »d-
jnlBslOB o( lAfltteau, In the Hanbattan SkJLrt
Company case. It appears from the record
that Laflttean vas In court, and a competent
wltoeaa. It vould seem, the»0ore, that
Oohen'a teatimony upon thla paint was mere
hearaay, and for that reaaon inadmissible.
Counsel for the defendant in «Tor, i^acti-
caUy conceding this, argue that the error of
the court primarily. In admlttliig the testi-
mony of Qohot up<»i Uiis subject, was cured
by the fact that anbseQueiitly Lafltteau (who
was a con^wtent wltneea) testlOed to subatan-
tially the same effect* and the cases ot Mona-
ban T. National Bealty Co., 4 Ga. App. 684,
62 S. B. 127. and Thompson t. Wilkinson, 9
Oa. Appi 867, 71 S. El. 678, are cited in SQP-
port of this proposition. In the Monahan
Case, supra, we held: **It ia undisputed, in
the evidenee, that the person who is said to
hare made this admission was the defend-
ant's superintendent, and in general charge
of the buUdi^; and, when be was placed
upon the stand as a witness, be practically
admitted the entire statement wliich had
teen attributed to him, and testified to the
truth of the facts therein related- If, there-
fore, there was any error in the admission of
the statement primarily, it was cured by the
Introduction later of higher testimony." As
a general rule, the error of admitting testi-
mony which is legally inadmissible may be
rendered harmless If the fact to which It re-
lates is subsequently proved by sufficient
competent evidence. But even this rule Is
not without its exceptions. Certainty the
harmful effect of the original error Is not
cured, but mther aggravated, by admitting
other testimony which is illegal and prejudi-
cial, though it may not be objectionable upon
the same ground as that first admitted. Con-
ceding that the error of allowing the state-
ment of Mr. Lafltteau in another case, be-
tween different parties, to be proved by
Cohen, when Laflttean was alive and accessi-
ble to the court, might have been cured by
proof from Lafltteau that he, as agent of the
express company, bad made a declaration by
which the defendant would be bound, we will
next inquire whether the declaration of Laflt-
teau was made under such circumstances and
at Bucb a time as that it couid legally bind
his principal.
in 2. Section S606 of the Civil Code de-
clares: *^e agent is a competent witness
either for or against Us prindpaL Hie In-
terest goea to his credit Tlie dedarationa
of the agent as to the busineas transacted
by him are not admlssibie against his prin-
cipal, unless th^ were a part of the seeotla-
Uon, and constituted the rse gestae or else
flie agent be dead." This role was of force,
and ualverBally recogniaed by law .witters
before the adoption of oar Code. The rule
that tbfi declaration of an agent is not ad-
missible against bis prlndpal, nnleas nu.de
at ^ time whw tbe agent was engaged In
a transaction within the scope of his agency,
and acting \n b^U of bis prlndpal, is an-
deat and well established. 1 Oreenleaf on
EMdence a6th Ed.), 1 184e; 1 Smc. Br. 638
et seq.; Hweet Water Manufacturing Com-
pany T. Olover, 29 Qa. 898. Tlie declaration
or amission of an agent wbldi blnda bia
principal must be one made dnm fervetj opus,
and so closely connected with an act done
in l)^iaif of Us mindpal whidi la wittdn
the scope of his agency as to be free from
the suspicion of device or afterthought, and
thus to become a part of the rea gastn.
Measuring tfte admission of Lafltteau aa a
witnesB by tliis wdl-established rule, It does
not seem to us that his statement as a wit-
ness,.In a case in which his prlndpal was
not even a party, and apparently made aer-
eral montha after the transaction, was ad-
missible. It la to l>e borne in mind that in
the case at bar Lafltteau did not admit tltat
the package in question bad ever been in
the po8sesel<Hi of the Southem Szpress Com-
pany. Tbe extreme extent of tkis admission
was that he had testlfled in another suit, to
which the express company was not a party,
forming his opinion from the company's rec-
ords, that the package had been In the pos-
session of the express company, and had
been by It delivered to ^ben. In the present
trial he admitted that his Judgment as to
the possession and delivery of the packa^
arose from the apparent similarity in weight
t>etween tbe package claimed to have been
lost and certain packages which were de-
livered about the same time to Cohen. Up-
on the trial now under review be did not
admit that tbe express company had ever re-
ceived the package in question. But even if
he had admitted upon the trial of the present
case that the express company received the
package in question, his principal would not
be bound by that declaration. "Testifying as
a witness In a lawsuit Is no part of the res
gestse of a transaction involved In the litiga-
tion; and, as a general rule, the dedaratlons
of an agent, to affect his principal, must be a
part of the rea gestse." SIzer v. Melton, 129
Ca. 143, 68 S. E. 1055. "No sayinf^ of an
agent are admissible against his principal,
except what he says concerning his appoint-
ed business while be is doing It— dum fervet
opus." Sweet Water Manufacturing Company
V. Glover, 28 Ga. 309 (2). The package In-
volved In the present case should have been
delivered, in the ordinary course, on March
26 or 26, 1909. The trial In which it is here
insisted that the dedaiatlon of the agait
was inadmissible was had on May 22, 1912:
So tar as Mr. Lafitteau's agency for ;Qie pur-
pose of delivering the package was concern-
ed, the transaction bad long been dosed.
As a witness, he waa no more tbe agent of
tbe upress company than of the opposit»
party, because presumably he would testis
to tbe truth, and, though the agent of the
express oompany, ba 18 loadr-competoat to
Digitized by VjOOQIC
testify either for or against pMiicIkial.
avU Obde, I S606L
It] 8. Otiier tban an alleged aOndsslon of
an agent of tbe defendant, there was no
proof of dellTery ta tbe defendant of the
goods the Talne of which was sned for by
the plalntUC It tbe evidence of this ad-
mission was competent, It mmt be adopted
as a whole, and, so treating It, It showed
that the goods had been delivered to the
plaintiff. If tbe evidence was not admis-
sible, tbe plaintiff was not entitled to recov-
er, becavse the proof failed to show that the'
goods were ever in the possession of the de-
fendant
Judgment reversed.
(U App. 184)
GRANTHAM v. TLBMINO. (Ko. 4,60a)
(Court of Appeals of Qeorila. Ang. 1B» 1918.)
(ByllaUu »v ike OonrtJ
1. Rrvrrw or Evidengk.
Ttt evidence authorised the verdict
a. Pluding (ft 416*)— Ruuica on Dkuubbbb
— Failube to Except.
The defendant, by a demnrrer, brought In
question the right of the plafaitiS to reo6vert
and raised the point that he was not entitled
to recover because It did not appear that he
was a legally licensed physician, and therefore
not entitied to collect pay for any services.
No ezceptlons were filed to the jodgment over-
ruling the demurrer, and it therefore became
the law of the case, binding alike upon the
parties and the court.
[Ed. Note.— For other cases, see Pleading,
Cent Dig. H 1897-1400; Dec Dig. S 416.*]
Z. Phtbicians and Subosonb (I 24*) — Ac-
tion >OK OolCPIHSATIOn— iNSTBUCTJOm.
The defendant "went to trial facing a spe-
des of compound estoppel," and relieved the
plaintiff of the necessity of proving hla right
to practice medidne and to collect for profes-
sional serrices rendered; and therefore the
court did not err In instructing the inry that if
the plaintiff rendered the alleged services as a
physid&n to the defendant, and the defendant
accepted these services, and the jury found
tiktm to have been of any value, tbe i^intiff
was entitled to recover sach an amonnt as the
service! might be shown to be worth, especial-
ly as there » no evtdenoe tending to Ao# that
the plainlift was not a legaQy neanssd.i^r^
dan.
[Ed. Note.--For o4er casuu see Fhysidans
and Surgeons, Cent Ug. SI Dec Dig.
1 24.*] '
Brror from Snperlor Ooor^ Whyne County;
CI B. Conyers, Judge.
Action by A. Fleming against H. P. Grant-
ham. Judgment for plalntifl; and defendant
brings error. Al&nned.
Jaa. W. PoppeU and Oscar Nail, both of
Jeann tax lAaiottff in error. Thomas A
(UMm, of Jenp^ for diCsndant lb arm. -
BU6SBLL, J. In the cwuty court of
Wayne county Fleming sned Qrantham oa ui
open acconnt for servlcea as a physician Is
attending the defendant for a fractured hip;
and, on appeal, the case was tried In tbe
*ror other esMS sse same t^U ana ■eetlen
rlor coart OrlglnaUy the account contained
items for medicine and the services of anoth-
er physician, but these were atriclcen. Bxcept
as to these items a demnrrer, on both general
and special grounds, was overruled, and the
case went to trial upoea that part ot the ac-
count which covered the personal services of
the plaintiff. The defendant set np, by way
of recoupment, that tbe plaintiff failed to ex-
ercise a reasonable degree of care and skill
in treating him as a physician, and that by
reason of the plaintiff's negligence, mistreat-
ment and malpractice, his leg was misset,
and be was damaged in the sum of $600.
The Jury fOond against the plea of recoup-
ment; and in favor of the plaintiff fnr the
foil amonnt claimed for his servlcea. The
defendant's motion for a new trial was over-
ruled, and he brought Hie case to this conrt
on exceptions to the jvSgmeat refnslnff a
new trlaL
[1] 1. So fhr as the general grounds of tbe
moti<m tcx a new trial are concerned, it Is
sofltdent to say that v^ille there was erl-
denee In behalf of the defendant whldi wonld
havo authorised fbe Jnry to retom a verdict
In his fsTor, the tasHmony for the pialntig
amply supports the verdict rendered
It] 2,8. The defendant sought to make tbe
point timt tbe plaintiff waa not entitled to
recover, for the reason that It was not shown
that the plaintiff waa lawfully anthorlEed to
practice medidne or snrgwy. In one of the
special gronnda of the motion for a new trial
it la complained that the oonrt eired in re-
foaAng the defendants reqnest for an instruc-
tion to the Joiy. to the effect that In ordu
to rscorer Cor services as a ^lyddan, it mnM
be diown tbmt the plaintiff was a l^pUly li-
censed physldan, and had registered as pre-
scribed by law. It is, of course, well settled
that a phyddaa wbo has failed to roister in
compliance with the provlslwis of sections
ieB4 and 168S of the ClvU Code a910) ia not
entitled to recovn for profeselooal servlcea.
Murray t. WUUams, 131 Ga. 6S, 48 S. B. 68a
In tbe statement of account attadied to the
plainttfl*B petition, tbe Indebtedness claimed
was "for medical attention fnKn January IS
to February 12, 1909^ fmctured hip, 910a"
The . petition was silent as to whether he
was a legally lloansed and registered physi-
cian. Tbe defendant demurred to the peti-
tion generally, and alao cm the n>eeiflc ground
that It waa not alleged that tbe iriaintUT
was a licensed i^sldan and anthorized to
practice medidne. Tbe demurrer was over-
ruled, and no exception was taken to the
Judgment on tbe demurrer. It matters not,
tberefon^ whether the ruling on the demnrr«r
was right or wrong; it became the law of
the ease, and Is condudve upm the parties
thereto. The Ju^ment on the demurrer, as
long as It stands unreversed, la conclnsive as
I to all questions necessarily invc^ved In the
I decision. Georgia Northern Railway Oo. t.
1» Dtfc. Slfl. * Am. Dig. Kar-Mft BMiei ft ttvf'r Indem
Digitized by Google
1114
78 SO DTHB ASTERN EEPOETE3R
(Ga.
Hatdilns, 119 Ga. 604, 46 S. E. 6S9. The de-
murrer not only raised the qaestlon as to the
sufficiency of the plaintiff's allegations to an-
thorlze a recoTery, but it spedflcaUy raised
the point that he was not entitled to recover,
because It did not appear that be was au-
thorized to practice medldne, or to collect
for professional services rendered as a phy-
sldan. In passing upon the demurrer the
coart was compelled to decide that it was not
necessary for the plaintiff to show affirma-
tively that he was legally authorized to prac-
tice medldne. We think the lower court err-
ed in the ruling upon the demiirrer, but, as
there was no exception to the ruling, It be-
came the law of the case, and controlled
every phase of the trial where a contact with
the legal prindple announced was effected.
This case differs from that of Horsley v.
Woodley. 12 Ga. App. 456, 78 S. E. 260, in
two refivects: <1) In that case there was
no demurrer to the petltton upon the ground
that there was a failure to allege one of the
essential prereaoisitea secessoiT to entitle
the plaintiff to recover; and la the pres-
ent case It doea not appear (as it did affirma-
tive appear in that case) that tlw plaintiff
was in fact not entitled to recover, became
a racovery would be lU^sU. No evidence
was addnced in this case tending to show
that the plaintiff had not registered in the
county of his realdeEace (Jones t. State, 8
Ga. App. 412, 69 S. B. 315). or diat he was
otherwise not qcallfled to practice medidna
[3] By not excepting to the ruling on the
doDorrer, the defendant, to use the language
of Justice LnmpUn, In Richmond Hosiery
Kills Western Union Telegraph Company.
128 Ga. 221. SI a B. 298. "went to trial
fadng a species of compound estoppel." He
was condnded by the judgment on the de-
murrer as to the right of the pfaysldan to
collect his fee. In the absence of evidence
showing affirmatively ttmt the plaintiff was
not a duly licensed and registered physician.
The court therefore did not err in charging
the Jory that the plaintiff would be entiaed
to recover. If the Jury believed he rendered
the services alleged, whatever amount the
evidence m^ht establish those services to
be worth, dross v. Ooffin-Fletcher Co., 128
Ga. 820, 51 8. B. 704; Moss v. GhappeU, 126
Ga. 200. 54 S. B. 968, 11 I* R. A. (N. S.) 88a
The court did not err In refusing the rtf-
quest for InstructlonB. to the effect tluat the
plaintiff could not recover unless it appeared
from the evidence that he was a physidan
authorized by law to practice medldne, for
the reason that 'It is not within the power
of the trial judge to give to dther party the
benefit of a contention which he Is himself
estopped to urge." Sims v. Qa.. Ry. & Elect
Co.. 123 Ga. 645, 91 S. B. 674. That the de-
fendant, by his failure to except to the rul-
ing upon the demurrw. was estopped to deny
the idaintUTs right to practice medldne, and
Us rUbt to collect fees tfaerefi>r, see also
Moody T. Cleveland Woolen BIIIIs. 133 Ga.
746, 66 S. B. 008; Myera v, Grlner, 120 Qa.
726. 48 S. B. 113; McElmurray v. Blodgett.
120 Ga. 15, 47 S. E. 531.
It is Insisted in the motion for a new trial
that the court erroneously stated the con-
tention of the defendant, and virtually In-
structed the Jury that "the plaintiff Is en-
titled to recover." The instruction to which
exception la taken is as follows: "In con-
sidering the case, gentlemen. If you find, by
a preponderance of evidence, tliat the plain-
tiff, with the defendant's permission, treat-
ed him as a practicing physidan (all of
which facts are denied by the defendant, if
yon find this is established, and nothing
more, then the plaintiff will be entitled to
recover whatever he has shown to be a
proper amount for that service." We fall
to see wherein the defendant was injured by
this charge. It Is true that the court Incor-
rectly stated that the defendant denied
that the plaintiff treated him with his per-
mission ; for it appears from the answer of
the defendant that the services, which the
defendant avers were unskillful, were render-
ed with his permission. However, It could
not have harmed the defendant for the jury
to be told that the defendant denied giving
permission, because coupled with this Im-
material matter was the greater proposition,
strenuously contended for by the defendant,
that the defendant denied that the plaintiff
treated blm as a practldng physician. There
Is no merit in the contention that the court
erred in the Instruction upon the ground
that he virtually instructed the jury that
the plaintiff was entitled to recover, because,
for the reason already steted, the defendant
was precluded from denying that the plain-
tiff was a practldng physidan. He admitted.
In his answer, that he permitted the plaintiff
to serve him. and the Judge very properly
Stated to the jury the well-settled rule that
one who knowln^y aco^ts sarvlces of valoa
Is liable to sndi person upon a qnantom
meruit
The learned trial jndge, no doubt, based
his ruling upon the demurrer on the dedsioD
of the Supreme Court in Da rand v. Grimes^
18 Ga. 698, which, like the presoit case, was
an action upon an account for services ren-
dered by a physidan, and in which It was
held that: '*It Is too late, after the defend-
ant has pleaded to the merits of the action,
and the cause has been submitted upon the
appeal, for the defendant to demur to the
declaration upon the ground that the plain-
tiff, who sues as a physician, has not al-
leged In hie writ that he was licensed to
praottce medldne." The case now before us
originated in the county court, and the de-
murrer was not filed until after the appeal
to the superior court However, no matttt
wliat reasons Influenced the trial judge In
his ruling upon the demurrer, there was no
exoeptlott to that ruling, and it was not
necessazy for the plaintiff to~pn>v« that he
Digitized by VjOOglC
aEOROIA. LIFE INS. 00. T. MoOBANIS
Ills
was a legally llceised physlctan, and tbe de-
fendant was estopped from contesting what
might otherwise have been a materiel point
In tbe Issne. The rnllng of the court upon
the demurrer became tbe law of the case,
and it was not within tike power of the court
to change It Under the decldon In Georgia
Northern By. Oo. t. Hutcbina, supra, the
court iras bound to adhere to this ruling
throngtaout the Bubsequent conduct of the
case, regardless of the consequences.
Judgmmt affirmed.
OS ChL App. SK)
OEOBGIA UFE INS. CO. t. McCBANIS.
(No. 4,m)
<Contt of .^eaU of Georgia. Jmt 2S, 1918.)
(Syllabvt by the Court.)
1. IBBUEANCI (I 6B8*)— AOXIOH OH POLIOT—
EVIIWNCB. „^ ,
In the trial of an action npon a life m-
eurance poUcy, where the defense is that the
insnred met bis death by suicide, and tbe plain-
tiff contends that bis self-destruction was ac-
cidental, and the defendant Introduces evidence
that, shortly prior to his death, tbe insured
stated that be intended to commit suicide, be-
cause bis wife had been unfaithful to him, it is
not erroneous to permit the plaintiff to intro-
duce evidence of the good character of the wife
for chastity, ^is evidence was admissible up-
on tbe theory that a husband with sound mind
would not charge bis wife with infidelity, when
there was no evidence npon which such a
charge could have been founded.
[Ed. Note.— For other cases, see Insurance,
Cent Dig. || 1691-1693; Dec. Dig. 1 659.* J
2. Insdeahce (I 662*)— Action on Policy—
Btidxncb — Attobnit's Fees — "Bad
Faith."
In tbe trial of an action upon a life Insur-
ance policy, wbere It Is sought to recover dam-
ages and attorney's fees on account of "bad
faith" of tbe company in refaslng to pay the
claim, It is erroneous to reject testimony of
one of tbe general officers of the insurance
company, showing that prior to the refusal to
pay tbe loss he investigated the dreumstancea
and in good faith reached the conclusion that
tbe company was not liable; sucb testimony
discloBiug facts sufficient to show probable
canse for refusing to pay tbe loss.
[Ed. Note.— For other cases, see Insurance,
Cent Dig. U 1697, 1698, 1700-1706; Dec
Dig. i 6^*
For other definitions, see Words and Phras-
es, voL 1, p. 602.]
a Ihscbancb (g| 602, 665*>— Aonov on Pol-
icT — Allowance of Attobnet'b Fees —
ScvnciBNCT op Evidence.
Tbe evidence demanded a finding that the
refusal of the defendant to pay the loss was
hot made in bad faith, and the verdict finding
attorney's fees was contrary to tha evidence.
[E!d. Note.— For other cases, see Insurance,
Cent Dig. H 1498, 1600, 1707-1728; Dea Dig.
II 602, 665.*]
4. JUDGUENT AITIBKBD CONDITION ALLY.
Except as above Indicated^ no material er-
ror waa committed, and the judgment will be
affirmed upon tbe condition that the plainU^
will write off the sum recovered as attoruev**
fees. '
(AiUHondl StlUbiu fty BiUorM Btalf.)
5. Insubancb (I 662*)— Action on Polioy—
DOCTTMENTABY BTIDBNCE.
In an action on a life insurance policy, let-
ters of administration were not inadmiuU>le
because they described deceased aa "Chas. H.
McCranie" bistead of "CbarUe H. McCranie,"
as he was described in the proof of death and
the policy, where it was undisputed that tbe
names referred to the same person.
[E!d. Note^For other eases, sea Insurance,
Co^Dig. il 1687, 16^ 1700^1706; De& Dig.
6. Insubancb (| 662*)— Action on Policy—
Ettdbnce.
Proof of deatb was not inadmissible, in an
action on an insurance policy, because the pol-
icy was mistalcenly described therein as for
$400 instead of for $4,000, or because it was
stated therein that tbe death was caused by
carbolic acid taken by mistake for bay mm.
[Ed. Note.— For other cases, see Insurance,
Cent. Dig. \% 1607, 1698, 1700-1706; Dec Dig,
I 662. •]
7. WnNEssEs (I 874*)— Cbbdibzltit— Admis-
sion 01- BlTIDENCE.
In an action on a life Insurance poUcy, evi-
dence that a brother of one witness was in liti-
gation with plaintiff, though of slight evidential
value, was admissible upon the question of tbe
credibility of tbe witness.
[Ed. Note. — For other cases, see Witnesses,
Cent Dig. SI 1201, 1202; Dec. Dig. { 874.*]
8. Witnesses (| 379*)— lUFEAcnuiNT.
Where, in an action on a life insurance
policy, a witness testified that be told certain
persons that insured stated to him that he in-
tended to commit suicide, evidence was admis-
sible to show, not only that the witness had
not repeated the statements as claimed, but
that he had said he knew nothing about the
case.
[Ed. Note.— For other cases, see Witnesses,
Cent Dig. fit 1209, 1220-12^ 1247-1256;
Dec Dig. I 379.*]
9. Appeal and Ebbob (fi 1050*)— Hauclbss
Ebbob— Admission or Evidence.
In an action on an insurance policy, error
in permitting a witness to state bis opinion
that insured could not distinguish a bottle of
carbolic acid from one contauiing bay rum or
one containing chlorofonn is hannless, where
the Jury see the three bottles, and can reach
their own cooclasions in the matter.
[Ed. Note.— For other cases, see Appeal and
Error, Cent Dig. H 1068, 1069, ^[S3-4107,
4166; Dec Dig. | 1060.*]
10. Insubancb (| 662*)— Action on Poliot—
Evidence.
In aa action on a life Inanranee policy, It
was not error to permit an agent of the insnr-
ed to testify that insured took out tiie Insur-
ance in order to borrow money on it. and that
the agent sonebt out tbe insured, where sudi
evidence may have shed some light upon tbe
issue of irtietiier the Insund oonunitted soldde.
[Ed. Note.— For other eases, see Insurenee,
Cent Dig. II 1697, 1698, 1700-1706; Dee.^£
I 662.*]
11. Inbobance (I 646*)— Acixon oh Foijoy—
BuBDEM or Pbooe.
In an action on a life insurance policy, the
presumption was that insured's deatii was ac-
cidental, and tbe burden was on tbe insurer to
establish the defease that he committed suldde.
[Ed. Note.— For other cases, see Inaorance,
Cent. Dig. II 1555, 1645-1668; Dec Dig. |
646.*]
•For otber cum m* same topic sad section NQ^g^ \a I>ec. DiS* A Am. Dig. Key-No. Serlss ft 'BMg't lodsKss
Digitized by Google
78 SOUT^mSTSRN BBPORTBB
Shrror from OU7 Conzt of Eastman; J. A.
Neese, Judse.
Action by A. Ifc MeOranle, administratrix,
against tbe Georgia Life Insurance CompaDy,
Jfndgment for platntlfl, and defendant brings
error. Afflrmed on ctntditlon.
Walter M. Olements and Roberts A Smith,
all of Eastman, W. I«. & Warren Orloe, of
HawbJnBTllle, Wm. IB. Birch, of Macon, and
jMiea & Ghamben, of Atlanta, for plaintiff In
error. W. A. Wooten and Ghas. W. Ortffln.
both of Baatman, for defendant In error.
POTtCLB^ J. Tbe deatb of the Insured re*
salted from taking carbolic add. Tbe policy
ma made payable to hli estate, and suit
waa instltnted by his vlfB u administratrix.
The plalntlit claims that the deatb of the in-
anred was acddratal, and the dtftodant con-
tends that bis self-destmctlon was Inteutionat
"Death by snldde waa not covered by the pol-
icy. The plaintiff recovered tbe amount of
the policy, which was ¥4,000, besides Interest,
and 20 per centum of this amonnt as attor-
ney's fees.
[1] 1- The defendant Introduced witnesses
who testified, In substance, that shortly be-
fore the death of tbe Insured he threatened
to commit suicide, giving as bis reason his
belief that bis wife bad been unfaithful to
him and in one Instance giving the names of
men with whom he claimed she had sustained
criminal relations. In several grounds of
the motion for a new trial complaint is made
tliat the court committed error in permitting
tbe introduction of evidence as to the good
character of the Insured's wife and her repu-
tation for chastity in tbe community in which
she lived. It is argued that this testimony
raised a false Issue In the case; that the real
question was whether the Insured bad said
tbat his wife had been unfaithful to him, and
not whether the charge was tni& It is con-
tended that the company did not undertake
to establish the truth of the cba^e, but mere-
ly undertoofe to show tbat tbe husband had
made the charge and bad assigned this as a
reason why he no longer desired to live.
The general rule Is that in an action by a
woman npon a policy of insurance upon tbe
life of her husband her diaracter Is not In-
volved, and evidence of her good character
la not admissible. Nor Is her character as
a witness in her own behalf admissible,
where no Impeaching evldenpe has been in-
troduced by the defendant Travelers' In-
surance Co. V. Sheppard, 85 Qa. 761, 12 S. E.
18. In the present case Mrs. McCranle tes-
tified as a witness, and an effort was made
to impeach her by proof of contradictory
statements made previously to the trial in
reference to matters material to the main
Issue in the case. In such a case it is well
settled tbat testimony of a witness may be
supported by general good character. OMl
Oode, I 688L Aside from this, we think the
evSdaiioa wia adndatlbla for aaotbw naaoa.
While- at least two witnesses testified
that the insured had made statements reOect-
lag upon his wife's character, the proof is
overwhelming that she was a chaste woman,
and that her character In this respect was
unassailable. Tbe husband waa dead. His
lips were sealed. He could not be heard to
deny the testimony of the witnesses who
claimed that he had made these serious
charges against his wlf& It is true that the
question of the truth or falsity of these
charges was not in Issue, but since there
could be no direct proof that the bu^and
had not impeached his wife's character for
chastity she could only resort to Indirect
and drcomstantlal evidence to refute these
charges. It la not reasonable to suppose
tbat a man of sound mind would charge with
unchajBtlty a wife against nhom no tveatb
of suspicion had arisen In tbe community In
which she bad resided for many years. Tbe
Jury might well reason tbat no husband
would bring snch a charge against soch a
wife. The wife might well say: "My hus-
band did not and would not nuke audi a
serious reflection upim my diaract« vltbont
at least some evidence nptm whldi to base
it, and If I can show that there was no such
evidence, and that sndk a diai^ If made,
would have been wholly without fonndatlcai,
audi proof will justify the InfMence that no
sudi reflectlMi was In fact made npon my
character by my husband." We recognise
fully the force of the defendanTs conteur
tlon that tiie evidmoe was prejudicial to the
company's defense, and was calculated to
arouse in ttie minds of the Jury a spirit of
resentment against the company for under-
taking to assert that the husband bad as-
signed his wife's unfaithfulness as a reason
for destroying his life; but this waa one of
the risks which tbe company took, and it
cannot complain of the conclusion on this
question reached by the Jury, which was
practically demanded by the evidence. If the
testimony of tbe witness In reference to the
reasons assigned by the Insured for taking
bis life was untrue, the Jury might also con-
dude tbat tbe testimony tbat the insured
bad threatened to take bis life was equally
false.
[2] 2. The statute of this state allows at-
torney's fees to be recovered against an in-
surance company in suits upon Insurance
policies, "provided It shall be made to ap-
pear to tbe Jury trying the same tbht the
refusal of the company to pay said loss was
in bad faith." This statute has been bdd
to be a constitutional and valid law. Harp
V. Firem^L's Fund Insurance Oa, ISO 6a.
726, 61 S. IL 704, 14 Ann. Oas. 209.
Bad thith, aa used in this statute^ has
been defined to mean "any frivolous or un-
founded refusal In law or In feet to comply
with tb^ requisition of the policy holder to
pay according to the terms of his ctmtract
and the conditions imposed by-statutei.** . Oot-
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1117
Ion StetoB JAU. Ine. Co. t. EdwariSs. 74 Oa.
220 See, also, American lusaraoce Co.
T. Bailey, S Oa. App. 424, 65 S. E. 160.
Wlme nmumal and apparently unnecessary
driay tn paylns the dabn Is shown, the bur-
den la upon Uie company to show that tbe
nfiisal waa made lu cood talth. Ifissourl
Insurance Co. t. Lovelaoe, 1 Ga. App. 446.
466, 68 a. B. 98. In tbe present case, there-
fan, the burden waa upon the company to
make It appear Chat its refiual to pay was
not MTotooa or ui^ounded, either In law
or la fact. By showing that the contract
did not authorise a recovery In case of sul*
dde, the company acquitted itself of the
charge that Ita defoue waa unfounded In
law. In undertaking to carry ttie burden
of proof that the refusal to pay waa not
atao unfounded In fhct, the onnpany offered
Qie P^Amrmj of Mr. Hall, Its general, coun-
sel, to the following effect: When tbe death
of the insured waa reported to the company.
Mr. Hall .instituted an iuTeetlgation aa to
the drcumatancea under which the accused
met his death. The company furnished
blank fomui for proofb of death, and wltbln
30 days thereafter the wlf< of the Insured
and tbe pbyidclan who was called to attend
him came to Macon tor a personal confer*
ence with the general counsel of the compa-
ny in reference to the claim. - In this con-
ference the phyei^an stated that the Insured
had been taking bay rum for toothadie, bnt
had not been in tbe habit of swallowiiw It
for the toothache. He further stated that
the first impulse would be to expel from
tbe mouth carbolic add. if taken In the
mouth unawares. From this conversation,
and on account of other facts and circum-
stances which Illustrated the cause of tbe
death of tbe insured, Mr. Hall, in good faith
as general counsel for the company, reached
the conclusion that the insured bad met his
death by suicide, and be therefore advised
tbe company to decline to pay tbe claim.
The court reeled this testimony upon the
ground that It waa irralerant and immate-
rial.
Counsd for tbe defendant in error con-
toid that tbe evidence was properly rejected
under the authority of tbe Sbeppard Case,
supra, 85 Ga. 761, 12 S. E. 18. In that case
the plaintiff sought to introduce in evidence
an affidavit made by . a brother of the in-
sured and submitted to tbe company, in con-
nection with tbe preliminary proofs of death,
prior to the suit This affidavit contained a
recital of the circumstances of tbe dlBappear><
ance of the Insured, based mainly on hear-
say, together with some representations as to
a. reward baving been offered for the recov-
ery of the body, and aa to the character of
ny*8 defense in that case was that tbe In-
sured had committed suicide by drowning,
and tb0 plaintiff's contention was thfit hit
death waa accidental. The Supreme Court
held: "The good or bad faltb of an insur-
ance company in refusing to pay after d^
mand is to be determined by the evidence
adduced at the trial upon the merits of the
controversy, and not by ex parte affidavits
produced to tbe company as preliminary
proof or for the company's InformatlDn to
induce voluntary payment. Probable cause
for refusing payment will negative the Im-
putation of bad ftlth, and without Rdi
probable cause refosai will be at the oran-
pany*s perlL Bx parte affidavits are not
admlsslUe to illustrate the queeti<m of good
or bad faith."
While there Is some laiwoage In the above-
stated case by the Supreme Oourt whidi
would sQipport the contention of the defend-
ant in error In the present case, it must be
apparwt that the dedslon upon Us t»x!ta
does net control the Instant case. In Its
last analysis It amounts to no more than a
ruling that what may be intparted to the
company in ^rtflmlnary pnxtfs of death by
the benefldary, or In affidavits supporting
such proofs, would not be admlsslhle for
tbe purpose of showing bad faith on tbe part
of the company In reusing to pay. We do
not nndwstand that dedslon to liold that
the company would not be permitted to show
that it had in good faltb Instituted an inves-
tigation, had received Information which
satisfled it of nonliability, and offered to
prove, not by ex parte affidavits, bnt by
sworn testimony, what Investigation It did
make and Just what information it had re-
ceived and the evidence upon which it relied
in imssing upon the Question of liability.
The circumstances surroundtng tbe death of
the insured in the present case were extreme-
ly suspicious. The insured, while alone and
in the daytime, took from a medicine cabinet
a bottle of carbolic add and swallowed a
suffldent Quantity of the poison to cause his
death In a short space of time. No one saw
lilm take It, and no one could say with cer-
tainty whether his act was intentional or
not In order to determine this Question,
all the facts and circumstances which threw
light upon the Question of intention were
proper matters for consideration by the Jury.
Among these was tbe very important cireum-
stance, detailed to Mr. Hall by the idiysldan
who attended the insured, that upon taking
carbolic acid in tbe month the first impulse
would be to expel it rather than to swallow
it And that, while it was claimed that tbe
insured was taking bay rum for the tooth-
ache, the fact was that he bad not be«i
tbe river and tbe nature of the obstacles 1 ^ ^ habit of swallowing bay rum. bnt
to the finding of the body therein. rv,^g\ simply holding it In bis mouth in order to re-
affidavit furnished names and addresQ^'^'^fl Ueve the pain. These statements of the
persons acquainted with the river, aaTj^ physlcUn, In connection with other facta and
knowledgs of tbsse otistaeleB. The \ dseamituwMi led Mr. Ball to advise his
Digitized by
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1118
78 SOUTHEASTERN RBPOBTBB
client to decline to pi^ tbe dalm. In bo do-
ing he Bays he acted In good faith, honestly
believing that the company was not liable.
As a Tepresentatlve of the company In the
transaction, he had a right to testify afflrma-
Hvely that he acted in good faith. Such
testimony was a statement of fact, and not
of a mere conclnsion. Hale t. Robertson, 100
Oa. 168, 27 S. B. 937. In the Bheppard Case
it was hdd that "probable cause for refnslng
payment will negative the Impntatlon of bad
Mth." The parpose of the testimony of
Mr. ^11 was to show that the eranpany had
probable cause Cor refusing to pay the claim.
Certainly It vas at least a jury question
whether Mr. Kdl stated suffldoit facts in
his testimony to authorise the concluidon
that the company had probable cause for
the refusal. In Blacfcwell t. American Oen-
tral Insurance Co., 80 Ho. App. TO, the court
said: "It must be borne In mind that the
statutory punlshmoit Is not Inflicted merely
for tbe reason that it turns out at the trial
there was, In reality, no reason for tbe delay.
The question Is, How did matters appear be*
fore tbe trial, as judged by a prndoit and
reasonable man seeing to And out the facts
about an occurrence which it was his doty
to Investigate?"
The company is punished for Its refusal
to pay the claim. The question Is, Did it
then act la bad faith? If it had probable
cause for refusing, its refnsal cannot be said
to be either frivolous or unfounded, and hence
in bad faith. Whether it had probable cause
at that time must be determined by the facts
and drcnmstances as they then existed, and
by the knowledge which the company then
had. Suppose, for example, a thoroughly rep-
utable man had informed the company that
he was present wltb the Insured at the time
of his death, heard him say that he was go-
ing to commit suicide by taking poison, and
saw him deliberately take the bottle of car-
bolic add and swallow its contents. No one
would contend that, with such Information,
a refusal to pay would be frivolous or un-
founded. But suppose this witness should
die before the trial, and the company be
left, therefore, without any defense, and the
plaintiff should Insist upon trying the case
simply for tbe purpose of mulcting the com-
pany In attorney's fees and damages, could it
be held that the company would be precluded
from proving that It had rec^ved this in-
formation from the person since deceased,
in order to exculpate Itself from the charge
of bad faith? And yet this Is exactly what
would happ«i if the contention of the de-
fendant in error be sound and some of the
Intimations in the Sbeppard Case, as well as
in the case of Missouri Insurance Co. v. Love-
lace, be applied In all th^ strictness. If
the company is to carry the burden of prov-
ing good bith, It seems to us It ought to be
permitted to prove anything which would
negative tlie existence' of bad faith at the
time It refused to pay the loss. Of course,
If subsequent to the r^usal to pay and prior
to the trial it ascertained that Its infbmUL-
ticHQ was Incorrect, Its continued refnsal to
pay would justify the Imputation of bad
faith. All these would be questions for the
jury. In our opinion it was error to ezelade
the testimony of Mr. HalL
[3] 8. The evidttice was oonflleUn^ and
authorized ttie flnding at the jury that the
self-destmcUon of the Insured was acddentaL
It did not, however, demand such a flndlne.
On the contrary, there were many dream-
stances which would have authorized tbe con-
clusion that the insured met Us death by
sulddew There la absolutely nothing In the
evidence to justify the inference tihat the
company acted in bad faith In refusing to
pay the claim, except the fact that titiere was
evidence that ttie deatti of the insured was
acddental rather than intentional. Ttie 12
men composing the jury found this to be tbe
fact, but certainly it cannot be said Uiat
every reasonably prudent man naut hare
readied the same conclusion. There wsa
niuch expert testimony to tlie effect that on
account of the burning sensation resulting
almost immediately upon taking the carbolic
add into the mouth the natural impulse
Would be to expel It It also appears that
carbolic add has a pronounced odor differing
from that of bay rum, and this Is a fact
which tbe court might know judicially.
When this is considered in connection with
the t&ct that the poison was taken in Qie
daytime, and with the further evidence that
the Insured had stated to more than one per-
son that he intended to kill himself, the evi-
dence itself acquits the company of bad faith.
The verdict against the company must be ac-
cepted as a finding that these things wofe
not true; but the statute does not contem-
plate that in every case of conflicting evi-
dence the company may be penalized by the
Imposition of attorney's fees. The question
Is, Was the refusal to pay wholly frivolous
and unfounded, dther In law or In fact, or
were there facts and circumstances snffid^t
to justly the conclusion of nonliability by a
reasonably careful and prudoit man? The
jury are not authorized to find that the re-
fusal to pay was in bad faith, merely be-
cause. In their oi^nlon, the company tm^A to
have paid the claim.
[4-6] 4. Other than as above Indicated, we
find no substantial error. The letters of ad-
ministration were not Inadmissible because
they described the deceased as "Chas. H. Me-
Cranie," whereas the proof of death was that
of Charlie H. McCranie, and the policy was
issued to Charlie H. McCranie. These names
Import the same person, and there was no
contrition that they did not in fact relets to
the same person. Nor was the proof of
death inadmissible because the policy was
therein described by mistake as bdng tor
1400, and the policy sued on-vas for 14,000.
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OXORGIA lilFE INS. 00. t. MoCRANIB
1U9
The fact that In Ute proof of death It was
stated that carbolic add waa taken by mis-
take for bay mm did not render the proofs
Inadmlssibla The policy required the caase
of death to be given. One witness testified
that he prepared the proof of death and the
statement made by the attending physician;
that the physician wrote ont his answers
without any assistance. The witness was
asked if he explained to the physician "the
facts of the afQdavlt** He replied that he
did not; that "when we flzed the proof of
death we had no Idea of this snit." This an-
swer was evidently made In explanation of
the fallore of the witness to explain to the
physician the tacts in the afQdavlt The an-
Bwer was not Inadmissible for any of the
reasons assigned.
[7] It was not error to permit proof that a
brottier of one of the witnesses was in litiga-
tion with the wife of the insured, the plaln-
tUt in the case. This was of slight evidenti-
ary valne^ but wu a proper matter for con-
sideration by Oie Jury in paastng upon the
credibility of tlie witness.
[I] A witness who bad testified in refer-
ence to statonanta made to him by the insur-
ed, which tended to show that the Insured
Intended to take his own llffe, dalmed that
he bad re[>eated these statements to certain
named persons. These persons were permit-
ted to testify that no such statements bad
been repeated to them by the witness. It is
contoided that no proper fbundatlon was laid
for Impeaching the witness by proof of con-
tradictory statements. There was no error
in admitting the testimony. The witness
having claimed that he told certain persons
what the Insured had stated to him. It was
competent to show that the witness had not
repeated the statements as he claimed. This
was simply impeaching the witness by dis-
proving facts about which he testified, and
was material as tending to discredit his tes-
timony in reference to what be claimed the
insured had told him. It was farther com-
petent to prove by one of these peiwns that
the witness had not only repeated such a
statement which he claimed the Insured bad
made, but had stated afllrmatlvely that ho
did not know anything about the casa
[I] It was probably error to permit a wit*
ness to examine three bottles, one containing
bay rum, one carbolic add, and one chloro-
form, and state that, in his opinion, the in-
sured could not have told one from the oth-
er. In view of the fact, however, that the
Jury could see the three bottles and reach
their own conclusion In reference to the mat>
ter, we do not think the admission of this
testimony, even if erroneous, suffident to Jus-
tify the grant of a new trial.
[II] It was not error to permit an agent of
the insurance company to testify that the in-
sured took ont the Insurance in order to bor-
row money on it, and that the agent sought
the insured for the purpose of Indudng him
to take the Insurance. This testimony had
little bearing upon the case, but may have
shed some lli^t ap<m the question in issue, in
view of the tact that the Insured met his
death some six or sevoi months after the in-
surance was takm out Even if erroneous,
the admission the evidence was not of snf-
Adent Impratance to Justly the giant of a
new trial. It was not prejudicial erm In
this case to charge that pleadings are in bo
sense evidence and have no value as evi-
dence, but that the Jury abonld refer to them
solely for the purpose ot ascertaining the is-
sues between the parties.
[1 1 ] Nor was it error to charge the Jury, In
substance, that when death was shown the
law would presume it accidental, and the
burden was upon the company to prove that
the case came within the exception In the
policy. Travelers* Ins. Oa t. Gsynor, 12 Oa.
App. , 77 S. B. 1072.
As the verdict against the company for the
full amount of the policy was authorized by
the evidence, and as no material error was
committed which affected the plaintiff's right
to recover this amount the Judgment will be
affirmed, on condition tiiat the plaintiff wzlto
off the sum recovered as attorney's fieeiL
Judgment affirmed on condition.
Bkd ov Oaub nr Vol. 78
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